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SCA/16466/2003 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16466 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.A.MEHTA
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
GUJARAT
PETROSYNTHESE LIMITED & 1 - Petitioner(s)
Versus
STATE
OF GUJART & 1 - Respondent(s)
=========================================
Appearance :
NANAVATI
ASSOCIATES for
Petitioner(s) : 1 - 2.
MS MAITHILI MEHTA, ASSTT. GOVERNMENT
PLEADER for Respondent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 19/07/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
This
petition has been preferred seeking following substantive reliefs :
[A] Your
Lordships may be pleased to hold and declare that the action of the
respondents in considering the failure on the part of the petitioner
to run the wind mill subsequent to June 1998 because of the total
disruption of the wind farm on account of the natural calamity viz.
Cyclone, as a breach of condition of the certificate dated 17.11.1995
and 18.7.1996 issued by the Commissioner of Electricity to resolution
No.EDA-1092-M(I)-8(1)-E and EDA 1092-M(1)-8(2)-E both dated 27.1.1993
as being illegal, unconstitutional and void.
[B] Your
Lordships may be pleased to issue a writ of certiorari or any other
writ, order or direction quashing and setting aside the order passed
by the Sales Tax Officer (I) dated 04.11.2003 at Annexure D and
the notice pursuant to the said order dated 19.11.2003 at Annexure
E hereto.
In
1993, respondent State of Gujarat announced the scheme titled
Incentive Scheme for Wind Power Generation 1993 for extending
sales tax incentives to industrial undertakings who would set up
wind farms in the State of Gujarat so as to curb the gap between
demand and supply of power in the State.
Pursuant
to the said Scheme, the petitioner established a wind farm at Lamba,
District Jamnagar at the cost of Rs.3,77,25,592/-. The power from
this wind farm was synchronized with GEB grid on 27.3.1995. Vide
exemption certificate dated 17.1.1997 issued by the Sales Tax
Department, the petitioner was granted sales tax benefit upto a
maximum limit of Rs.1,88,62,796/- under the Sales Tax Composite
Scheme, which was valid for the period 16.12.1996 to 26.3.2001.
On
9th June 1998, a cyclone hit the coastal regions of the
State, more particularly districts of Porbandar and Jamnagar
resulting in wide spread damage. The windmills installed by the
petitioner company were uprooted resulting in stoppage of production
of power. One of the conditions of the Scheme was Condition No.7(b)
which reads as under:
(b)
The Industrial unit will remain in production continuously during
the eligible period.
Since
the petitioner could not remain in production continuously during
the eligible period, vide order dated 29.4.1999 made by the
Assistant Sales Tax Commissioner, the sales tax exemption
certificate came to be cancelled. Vide demand notice dated
4.11.2003, the petitioner was called upon to pay the amount of sales
tax benefit enjoyed by it from 1996 to 1998 with interest. Vide
notice dated 19.11.2003 issued under section 59 of the Gujarat Sales
Tax Act, 1969, the petitioner was called upon to show cause as to
why the sales tax exemption to the tune of Rs.44.18 lakhs availed
under Wind Mill Scheme should not be recovered in one lumpsum as
there was a breach of condition. Being aggrieved, the petitioner
has moved the present petition seeking the relief noted hereinabove.
Vide
affidavit dated 2.9.2008, the petitioner has categorically averred
that due to circumstances beyond the control of the petitioner
Company, it could not re-install the said wind mills.
Heard
the learned Advocate for the petitioner and the learned Assistant
Government Pleader on behalf of the respondents.
It
is an admitted position that the controversy involved in the
present petition stands concluded by a judgement and order dated
7.8.2008 made in the case of Elecon Engineering Company Ltd.
and another v. State of Gujarat and others, rendered in
Special Civil Application No.2067 of 2004.
The
facts of the present case are therefore, required to be examined in
the light of the principles laid down in the aforesaid decision. It
is an admitted position as noted hereinabove, that the petitioner
herein has not recommissioned its windmills. In the circumstances,
as held in paragraph 9 of the said decision, the petitioner shall be
liable to discharge its liability for the period prior to the date
of the cyclone for which the original scheme provides for in
accordance with other terms of the Scheme. In other words, the
respondents shall not be entitled to effect any recovery on the
ground of breach of condition of continuous operation of period of
six years but such bar shall not apply to the petitioner as regards
discharging its liability, which it is otherwise liable to
discharge, qua the benefit availed of in accordance with the other
terms of the scheme.
The
petition is, accordingly, allowed. Rule is made absolute to the
aforesaid extent with no order as to costs.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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