{"id":14408,"date":"2002-03-01T00:00:00","date_gmt":"2002-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tiger-steel-engineering-vs-the-state-of-maharashtra-and-anr-on-1-march-2002"},"modified":"2017-03-12T23:34:47","modified_gmt":"2017-03-12T18:04:47","slug":"tiger-steel-engineering-vs-the-state-of-maharashtra-and-anr-on-1-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tiger-steel-engineering-vs-the-state-of-maharashtra-and-anr-on-1-march-2002","title":{"rendered":"Tiger Steel Engineering vs The State Of Maharashtra And Anr. on 1 March, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Tiger Steel Engineering vs The State Of Maharashtra And Anr. on 1 March, 2002<\/div>\n
Equivalent citations: 2002 127 STC 13 Bom<\/div>\n
Author: J Devadhar<\/div>\n
Bench: V Daga, J Devadhar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 J.P. Devadhar, J.  <\/p>\n
 1.The short issue raised in this petition is
\nwhether a manufacturer can be given eligibility
\ncertificate under the dispersal of industries package
\nscheme of incentive, 1993 from a date other than the
\ndate of commercial production even though the scheme
\nprevailing at the relevant time provided for issuance
\nof eligibility certificate from the date of
\ncommercial production.\n<\/p>\n
 2.The Petitioner No.1 Company is a Company
\nregistered under the Companies Act and is having its
\nfactory at village Kudavali, Tal. Murbad in the
\nDistrict of Thane in Maharashtra.\n<\/p>\n
 3. With an aim to achieve dispersal of industries
\noutside Bombay and Thane area and to encourage
\nestablishing of industries in the underdeveloped and
\ndeveloping areas of the State, the Government of
\nMaharashtra, Industry, Energy and Labour Department
\nhas announced schemes since 1964 with the concurrence
\nof all the departments of the State for grant of
\nincentive to such industries established in the
\nbackward area of the State of Maharashtra. The said
\nschemes were amended from time to time and in this
\npetition, we are concerned with Dispersal of
\nindustries Packaging Scheme of incentive, 1993 dated
\n7th May, 1993 (1993 scheme for short).
\nThe Statutory provisions of 1993 Scheme   <\/p>\n
 4. Before dealing with the facts relevant for the
\nadjudication of the issues raised in this petition,
\nit would be appropriate to refer to some of the
\nrelevant clauses of the 1993 scheme:\n<\/p>\n
 a) The 1993 scheme was to be in operation
\nfor a period of 5 years from 1st
\nOctober, 1993 to 31st September, 1998.\n<\/p>\n
 b) Clause 3.1 defined “date of effect of
\neligibility” as follows:\n<\/p>\n
  “Date of Effect of Eligibility  <\/p>\n
 (1) The Eligibility Certificate
\nunder the 1993 Scheme will be
\nissued by the Implementing
\nAgency after commencement of
\ncommercial production as may
\nbe determined by it, based on
\nthe totality of the
\ndocumentary evidence led by
\nthe Eligible Unit in this
\nbehalf, as also such other
\ninformation, details, e.g.
\ndate of power connection,
\nelectricity consumption bills
\nover a period, first sale
\nbill, excise licence, extract
\nof excise register\/production
\nregister,etc. required\/called
\nfor in connection therewith.\n<\/p>\n
 (2) The decision of the
\nImplementing Agency, subject
\nto such directions as
\nGovernment may issue from time
\nto time in this regard, will
\nbe final and binding on the
\nEligible Unit.\n<\/p>\n
 (3) The Commissioner of Sales Tax
\nwill endorse the EC issued by
\nthe Implementing Agency and
\nshall specify the date of
\neffect of eligibility for the
\nSales Tax Incentives.\n<\/p>\n
 c) Clause 4 deals with general provisions
\nand clause 4(1) dealt with Application
\nfor Eligibility, as follows:-\n<\/p>\n
  “Cll .41() Application for Eligibility  <\/p>\n
 (1) An application for eligibility
\nunder the 1993 Scheme shall be filed
\nby an Eligible Unit only after it has
\ntaken all the Initial Effective Steps
\nbut not later than 30th September,
\n1998. It shall be supported by
\ndocumentary evidence in regard to
\nconmpletion of the Effective Steps.\n<\/p>\n
 (2) For claiming eligibility under the
\n1993 Scheme, an Eligible Unit shall
\nalso complete all the Final Effective
\nSteps on or before 30th September,
\n1999.\n<\/p>\n
 (3) An application filed with the
\nimplementing Agency on or before 30th
\nSeptember, 1993 after completion of
\nthe Initial Effective Steps for
\nincentives under the 1988 Scheme, but
\nwhere the applicant fails to complete
\nall the Final Effective Steps latest
\nby 30th September, 1994, shall be
\nautomatically considered under and be
\nsubject to the 1993 Scheme but the
\nincentives to such an Eligible Unit
\nshall be applicable at the scales
\nwhich are lower of the scales of the
\n1988 Scheme or the 1993 Scheme.\n<\/p>\n
 (4) An application for eligibility
\nshall be submitted to the Implementing
\nAgency at least three months prior to
\nthe expected date of commencement of
\ncommercial production. An Eligible
\nUnit shall comply with the
\nrequirements preceding the issue of
\nthe EC by the Implementing Agency to
\nensure obtaining the EC within the
\nperiod of six months from the date of
\ncommencement of commercial production
\nas laid down in the Procedural Rules.”\n<\/p>\n
 5. By a Resolution dated 23rd March, 2000, the
\nGovernment of Maharashtra, Industries, Energy and
\nLabour Department amended 1993 Scheme inter alia
\nsubstituting clause 3.1(1) as follows :-\n<\/p>\n
  “Notwithstanding the provisions of para
\n4.1(2), the Eligibility Certificate under the
\n1993 Scheme will be issued by the Implementing
\nAgency after commencement of commercial
\nproduction as may be determined by it, based
\non the totality of the documentary evidence
\nled by the Eligible Unit in this behalf, as
\nalso such other information, details, e.g.
\nelectricity consumption bills over a period,
\nfirst sale bill, excise licence, extract of
\nexcise register\/production register, etc.,
\nrequired\/called for in connection therewith.
\nThe effective date of eligibility certificate
\nshall be from the date of commercial
\nproduction.”\n<\/p>\n
THE FACTS   <\/p>\n
 6. With this background, let us now look at the
\nfacts pertaining to the case of the Petitioners.\n<\/p>\n
 7. The Petitioner No.1 Co. with a view to avail
\nthe benefit under the 1993 Scheme decided to
\nestablish a factory in a backward area. With that
\nview in mind, the Petitioners. purchased a plot of
\nland in M.I.D.C. at Kudavali, Murbad Taluka,
\nDistrict Thane in the year 1996. After conclusion of
\nthe formalities and constructing a factory and after
\nthe commencement of commercial production, the
\nPetitioner Company made an application to the
\nRespondent No.2 namely State Industries and
\nInvestment Corporation of Maharashtra Limited (SICOM)
\nseeking eligibility for their Unit under the 1993
\nScheme. After perusal of the relevant documents and
\non being satisfied that the Petitioner Company
\ncomplied with all the initial requirements and
\nformalities, an agreement was executed by and in
\nbetween the Petitioner No.1 Company and SICOMs
\nrepresenting State of Maharashtra on 21.9.1999
\nwherein it was agreed that the Petitioners are en
\ntitled to the benefits under the 1993 Scheme.
\nThereafter, by a letter dated 16.12.1999, SICOM as
\nper the 1993 Scheme forwarded the case of the
\nPetitioners to the Respondent No.2 seeking approval
\nof the Commissioner of Income-tax so that requisite
\nEligibility Certificate could be granted in favour of
\nthe Petitioners. Along with the said letter, a copy
\nof the Eligibility Certificate under the 1993 Scheme
\ngranting deferral of the sales Tax liability proposal
\nwas also forwarded to the Sales Tax Authorities.
\nInstead of issuing Eligibility Certificate, the
\nRespondent No.4 namely the Deputy Commissioner of
\nSales Tax, Incentive and Enforcement, called upon the
\nPetitioners to pay the sales tax up to 30th November,
\n1999 and only on such payment being made the
\nrequisite eligibility certificate will be granted to
\nthe petitioners. The Petitioners made several
\nrepresentations stating therein that under the 1993
\nscheme, the date of the Eligibility Certificate ought
\nto be the date of commercial production and if the
\ncertificate is issued in the light of the 1993
\nScheme, the question of paying the sales tax for the
\nperiod from the date of commercial production does
\nnot arise at all. The Sales Tax Authorities declined
\nto consider the case of the Petitioners. However
\ndecided to wait for the decision of the Maharashtra
\nSales Tax Tribunal, as similar issues were pending
\nbefore the Tribunal. It appears that even after the
\ndecision of the Tribunal holding that the date of
\neffect of entitlements of eligibility should be from
\nthe date of commercial production, the Respondents
\nfailed to issue the requisite certificate to the
\nPetitioners.\n<\/p>\n
 8. In the light of the amendment to the 1993
\nScheme, by the Resolution dated 23rd March, 2000, the
\nPetitioners once again sought the Eligibility
\nCertificate with entitlement from the date of
\ncommencement of commercial production as per the
\namended Scheme. By an order dated 19th June, 2000,
\nthe Respondents held that the amendment to 1993
\nScheme was applicable only to pipeline cases and the
\ncase of the Petitioners cannot be treated as a
\npipeline project and accordingly, the amendment to
\nthe 1993 Scheme was held not applicable to the case
\nof the Petitioners. By their letter dated 26th July,
\n2000 (Exhibit-P) sales tax authorities once again
\ninsisted upon the payment of sales tax failing which
\nsought to take suitable action against the
\nPetitioners. In these circumstances, the Petitioners
\nhave filed the aforesaid petition on 11th July, 2001
\ninter alia seeking to quash and set aside the order
\ndated 26.7.2000 and an order directing Respondents to
\ngrant the eligibility entitlement from the date of
\nthe commercial production. During the pendency of
\nthis petition, the Respondent No.2 by a letter dated
\n27.8.2001 forwarded Eligibility Certificate dated
\n16.12.1999. In the Eligibility Certificate, it was
\nstated that although the date of commencement of
\ncommercial production was on 5.7.1998, the date of
\neffect of Eligibility Certificate will be from
\n1.1.2000.\n<\/p>\n
 The Arguments    <\/p>\n
9. Mr. Joshi, learned Counsel appearing on
\nbehalf of the Petitioners submitted that when the
\napplication of the Petitioner was complete in all
\nrespects and when the Respondents have not disputed
\nthat the date of commercial production was 5th July,
\n1998, there was no reason whatsoever on the part of
\nthe Respondents to grant the Eligibility Certificate
\non 16.12.1999 effective from 1.1.2000. It was
\nsubmitted that under the 1993 Scheme, it was
\nobligatory on the part of the Respondents to issue
\nthe Eligibility Certificate from the date of the
\ncommercial production. It was submitted that even
\nassuming that there was any ambiguity, then, the case
\nof the Petitioners being pending on 23rd March, 2000
\nwhen the amendment to the 1993 Scheme was brought in,
\nit was not open for the Respondents to deny the
\nbenefit of the amended scheme and ought to have
\ngranted Eligibility Certificate effective from the
\ndate of the commercial production. Mr. Joshi
\npointed out several decisions of the Sales Tax
\nTribunal, wherein it was held that the
\nentitlements\/Eligibility Certificate under the
\nunamended 1993 Scheme is to be effective from the
\ncommencement of commercial production. It was also
\nsubmitted that in view of the fact that the
\nimplementing agency namely SICOM had no objection to
\nthe Eligibility Certificate being granted with effect
\nfrom the date of commercial production, the action of
\nthe Sales Tax authorities in issuing the impugned
\nEligibility Certificate is wholly arbitrary, illegal
\nand contrary to the 1993 Scheme itself.\n<\/p>\n
 10. Mr. Deshpande, learned Counsel appearing on
\nbehalf of the Respondents Nos. 1 and 3 to 6<\/span>
\nsubmitted that amendment to the 1993 Scheme by
\nResolution dated 23rd May, 2000 was not applicable to
\nthe case of the Petitioners as SICOM had processed
\nthe case of the Petitioners and forwarded their case
\nto the Sales Tax Commissioner with approval, prior to
\nthe amendment and hence the case of the Petitioners
\ncannot be treated as a pipeline project. It was
\nsubmitted that under the 1993 Scheme the implementing
\nagency namely the SICOM grants the Eligibility
\nCertificate after the commencement of commercial
\nproduction and under Clause 3.1(3) of the Scheme, the
\npower to issue entitlement vests with the
\nCommissioner of Sales Tax. It was submitted that
\nclause 3.14 of the 1993 Scheme read with Rule 2.12 of
\nthe Procedural Rules as laid down in the Government
\nResolution dated 11.8.1980 clearly provide that the
\nCertificate of Entitlement shall be made effective
\nfrom the prospective date and, therefore, there is no
\nimpropriety or illegality in the eligibility
\ncertificate issued to the Petitioners.\n<\/p>\n
 CONSIDERATION & FINDINGS <\/p>\n
 11. We have heard both the parties and perused the
\nmaterial placed on record. It is not in dispute that
\nthe Petitioners on the date of their application had
\ncomplied with all the formalities and had taken
\nrequisite effective steps to avail the benefit of the
\n1993 Scheme. Under the 1993 Scheme, there was no bar
\nfor making an application after the commercial
\nproduction had started. It is not even the case of
\nthe Respondents that any of the final effective steps
\nwere complied with by the Petitioners after the
\nfiling of application. The provisions contained in
\nclause 4.1(4) of the 1993 Scheme to the effect that
\nan application for eligibility shall be submitted to
\nthe implementing Agency at least three months prior
\nto the expected date of commencement of commercial
\nproduction and that the Eligible Unit shall comply
\nwith the requirements preceding the issue of the
\nEligibility Certificate by the Implementing Agency to
\nensure obtaining the Eligibility Certificate within
\nthe period of six months from the date of commercial
\nproduction, cannot be construed to mean that even
\nthough the applicant has complied with all the
\nrequisitions, the Respondents can withhold the grant
\nof Eligibility Certificate for a period of nine
\nmonths. Those provisions are meant for the applicant
\nto comply with the requisitions within the stipulated
\ntime and are not meant for the Respondents to
\nleisurely process the application up to a period of
\nnine months. In our opinion, if the contention of
\nthe Respondents is accepted, it would mean promoting
\nlethargy instead of promoting industrial growth in
\nbackward area. Even the Implementing Agency has not
\nsubscribed to the view canvassed on behalf of the
\nSales Tax authorities.\n<\/p>\n
 12. In the instant case, there is no dispute that
\nthe commercial production had started on 5th July,
\n1998. The case of the Petitioners were forwarded by
\nSICOM to the Respondent No.4 on 16th December, 1999
\nand the Sales Tax Authorities were sitting tight on
\nthat application without any justification and it is
\nan admitted position that till August, 2001, the said
\npapers were lying in the office of the Commissioner
\nof Sales Tax and the same were returned to SICOM only
\nin the last week of August, 2001 and thereupon, by a
\nletter dated 27th August, 20001, SICOM has issued the
\neligibility certificate to the Petitioners with
\nretrospective effect from 16.12.1999. There is no
\njustification whatsoever put forth on the part of the
\nSales Tax Authorities as to why they had withheld the
\napplication of the Petitioners for such a long
\nperiod. In spite of our repeated opportunities
\ngranted, no satisfactory explanation has been given
\nas to why the Sales Tax Authorities were keeping the
\napplication of the Petitioners pending for so long
\nand as to why the Petitioners are not entitled to the
\neligibility certificate from the date of commencing
\nof commercial production. There is no dispute that
\nin similar cases, the Sales Tax Tribunal has held
\nthat under the 1993 Scheme the entitlement of the
\nEligibility Certificate is from the date of
\ncommercial production. The Respondents have not
\nimplemented the said decisions of the Tribunal and it
\nis not the case of the Respondents that these
\ndecisions of the Tribunal have been stayed by any
\nauthority or Court.\n<\/p>\n
 13. The aforesaid contention of the Petitioners
\nalso gets support from the amendment to the 1993
\nScheme by Government Resolution dated 23.3.2000. In
\nour opinion, the Respondents are wrong in contending
\nthat the case of the Petitioners cannot be treated as
\npipeline case. If after processing of the
\napplication of the Petitioners by the Respondent
\nNo.2, nothing was required to be done in the matter,
\nthen the Sales Tax authorities could not have
\nwithheld the application of the Petitioners for such
\na long period. In any event, the fact remains that
\non the date when the 1993 Scheme was amended by
\nGovernment Resolution dated 23.3.2000, the
\napplication of the Petitioners was pending before the
\nSales Tax authorities and hence the case of the
\nPetitioners is liable to be held as pipeline case and
\ncovered under the amended 1993 Scheme. Thus, in
\neither view of the matter i.e. either under the 1993
\nScheme itself or under the amended 1993 Scheme, the
\nPetitioners are entitled to seek the relief as
\nclaimed in the petition. For all the reasons stated
\nabove, we are of the opinion that the Respondents are
\nnot justified in issuing the Entitlement certificate
\ndated 16.12.1999 effective from 1.1.2000.\n<\/p>\n
 14. Having said so, the question which needs
\nconsideration is to what relief the Petitioners are
\nentitled in the peculiar facts of the present case.
\nWe have noticed that the application for approval
\nunder the 1993 Scheme was made by the Petitioners on
\n3rd September, 1998 and the commercial production had
\ncommenced prior to that date namely 5th July, 1998.
\nTherefore, the question arises is as to whether the
\nPetitioners are en titled to the Entitlement under
\nthe Eligibility Certificate even for the period prior
\nto their making application under the 1993 Scheme ?
\nMr. Joshi, however, did not press for the date of
\nentitlement under the Eligibility Certificate for the
\nperiod prior to the date of application made on 3rd
\nSeptember, 1998. In view of this, the Petitioners
\nshall be entitled to the date of entitlement from the
\ndate of application. In this view of the matter, the
\nRespondents are directed to issue the Eligibility
\nCertificate effective from 3rd September, 1998. It
\nis expressly made clear that the issue of granting
\neligibility certificate prior to the date of
\napplication under 1993 Scheme is kept open.\n<\/p>\n
 15. In the circumstances set out hereinabove, the
\npetition succeeds. The Rule is made absolute in the
\nabove terms and the Respondents are directed to issue
\nthe Eligibility Certificate to the Petitioners with
\nentitlement effective from 3rd September, 1998 and
\ngrant all of consequential reliefs and entitlements
\nunder the 1993 Scheme. In the facts and
\ncircumstances of the case, there will no order as to
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Tiger Steel Engineering vs The State Of Maharashtra And Anr. on 1 March, 2002 Equivalent citations: 2002 127 STC 13 Bom Author: J Devadhar Bench: V Daga, J Devadhar JUDGMENT J.P. Devadhar, J. 1.The short issue raised in this petition is whether a manufacturer can be given eligibility certificate under the dispersal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-14408","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nTiger Steel Engineering vs The State Of Maharashtra And Anr. on 1 March, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tiger-steel-engineering-vs-the-state-of-maharashtra-and-anr-on-1-march-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tiger Steel Engineering vs The State Of Maharashtra And Anr. on 1 March, 2002 - 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