{"id":241374,"date":"1997-12-09T00:00:00","date_gmt":"1997-12-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-orissa-soonge-iron-ltd-anr-vs-the-state-of-orissa-ad-others-on-9-december-1997"},"modified":"2017-04-08T10:17:29","modified_gmt":"2017-04-08T04:47:29","slug":"ms-orissa-soonge-iron-ltd-anr-vs-the-state-of-orissa-ad-others-on-9-december-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-orissa-soonge-iron-ltd-anr-vs-the-state-of-orissa-ad-others-on-9-december-1997","title":{"rendered":"M\/S. Orissa Soonge Iron Ltd. & Anr vs The State Of Orissa Ad Others on 9 December, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Orissa Soonge Iron Ltd. & Anr vs The State Of Orissa Ad Others on 9 December, 1997<\/div>\n
Author: M J Rao<\/div>\n
Bench: S.C. Sen, M. Jagannadha Rao.<\/div>\n
           PETITIONER:\nM\/S. ORISSA SOONGE IRON LTD. & ANR.\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF ORISSA AD OTHERS\n\nDATE OF JUDGMENT:\t09\/12\/1997\n\nBENCH:\nS.C. SEN, M. JAGANNADHA RAO.\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nM. JAGANNADHA RAO, J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     This Civil\t Appeal is  directed against the judgment of
\nthe Orissa  High Court in O.J.C. No. 4056\\1995 dated May 14.
\n1996, dismissing  the writ petition filed by the appellants.
\nThe  appellants\t are  aggrieved\t by  the  Industrial  Policy
\nResolution of  1959 of\tthe State  of Orissa which came into
\nforce from 1.12.1989 insofar as it restricted the benefit of
\ndeferment\/exemption of\tsales-tax to  industries  which\t had
\ngone into  commercial production  after 1.4.1986  and denied
\nsuch benefit  to those which had gone into production before
\n1.4.1986. The  industrial policy  of 1989 in this behalf was
\nnotified by  the Orissa\t Government under  S.R.O No.  790\/90
\n(Finance) dated\t 16.8.1990 issued  under Section  7  of\t the
\nOrissa Sales Tax Act w.e.f 1.12.1989 to which we shall refer
\nin detail  later. We  are concerned  with medium and large –
\nScale Industrial units.\n<\/p>\n
     The appellant-Company  was incorporated an 9.4.1979 for
\nmanufacture of\tSponge Iron  in the District of ********* in
\nthe State  of Orissa. The land was acquired and purchased on
\n4.4.1980  and  the  appellant  proceeded  to  construct\t the
\nfactory. It went into commercial production w.e.f. 1.4.1954.
\nThe Industrial Policies in the State of Orissa with which we
\nare concerned  in this\tappeal area  three policies, (1) the
\nPolicy of 1980. (ii) the Policy of 1986 and (iii) the Policy
\nof 1989.\n<\/p>\n
(I) 1980 POLICY : Interest-free load for Sales tax paid.\n<\/p>\n
     In the Industrial Policy of 1980 which came into effect
\nfrom 1.2.1980 it was stated that Large and Medium industries
\nwould  be  entitled  to\t reimbursement\tof  entire  cost  of
\npreparation  of\t project\/feasibility  report  subject  to  a
\ncertain maximum\t if a 25% cost is initially deposited and if
\nthe reports  are obtained  from approved agencies. Otherwise
\nreimbursement would  be\t after\timplementation\tof  project.
\nThese industries,  whether new\tor intending  to  expand  or
\ndiversity shall be eligible for interest-free Sales-tax loan
\nequivalent to  the Sales-tax  said   within the State by the
\nunits during  the first\t five  year  subject  to  an  annual
\nmaximum limit of 10 per cent of the capital invested out not
\nexceeding Rs.  20 lakhs\t per year.  The loan shall be repaid
\nafter 10  years of  each year’s drawl. The Policy deals with
\nvarious other  benefits given to Large and Medium Industries
\nnot only in regard to Sales-tax out in regard to electricity
\ncharges. etc.
\nThe appellant availed of the above-said Sales-tax incentives
\nwhen it\t went into  commercial production  with effect\tfrom
\n1.4.1984. In  other words,  the appellant was entitled to an
\ninterest-free Sales-tax\t loan as  per the  1980 Policy for a
\nperiod of  5 years  subject to an annual maximum limit of 10
\nper cant  of the  capital invested  by not  exceeding Rs. 20
\nlakhs per  year and  the said  loan could be repaid after 10
\nyears each year a drawl.\n<\/p>\n
(II) 1986 POLICY : Deferment of Sales Tax\/Exemption.\n<\/p>\n
     Government of  Orissa came forward with a new Policy in
\n1986. Under definition A. the State is divided into Zones A.
\nS  and\t C  w.e.f.  1.4.1986.  The  effective  date  as\t per
\ndefinition (D) under the said Policy was 1.4.1986. being the
\ndate  from   which  the\t  incentives  available\t  under\t the
\nIndustrial Policy  Resolution of  1980\tand  other  relevant
\nPolicy Resolutions would cease to be ******** except for the
\ncontinuing industries  to which\t the 1980 Policy applied. It
\nwas further stated that continuing industries of 1980 policy
\nare those  which have made any kind of investment before the
\neffective case\tor have\t availed themselves of any incentive
\nor facility under the Industrial Policy of 1980.\n<\/p>\n
     Part D  deals with\t concessions relating  to Sales-tax.
\nSub-para (i)  thereof deals  with exemption  of Sales-tax on
\nraw-materials. While  sub-para (11) deals with exemptions of
\nSales-tax on  finished products produced by all existing and
\nnew khadi, village and cottage industries.\n<\/p>\n
     So\t far  as  medium  and  large  industrial  units\t are
\nconcerned, sub-clause  (iii) of\t part D deals with Sales-tax
\ndeferment scheme  while sub-clause (iv) deals with exemption
\nof Sales-tax  on finished products in lieu of deferment. The
\ntwo sub-paras read as follows:-\n<\/p>\n
     ” (iii) Sales tax Deferment Scheme:
\n     New  medium  and  large  industrial
\n     units will\t be  eligible  to  defer
\n     payment of\t Sales Tax  collected on
\n     their  finished   products\t for   a
\n     period of\t5 years in Zones B and C
\n     and 7 years in Zone A from the cate
\n     of\t their\t commercial   production
\n     Deferred amount  in respect of each
\n     year would be aid in full after the
\n     expiry of\tthe period of deferment,
\n     annually.”<\/p>\n
     (iv)  Exemption   of  Sales-Tax  on
\n     finished  products\t  in   lieu   of
\n     deferment:\n<\/p><\/blockquote>\n
     In lieu  of the Sales-tax Deferment
\n     Scheme,  new   medium   and   large
\n     industrial\t units\t can   opt   fro
\n     exemption of  Sales  Tax  on  their
\n     finished products for a period of 3
\n     years if  located in  Zones B and C
\n     and for  a period\tof  5  years  if
\n     located in\t Zone A from the date of
\n     their commercial production.
\n     But in  view of exclusion of Continuing units of 1980 –\n<\/p><\/blockquote>\n
units have  either had\tinvestment or availed of incentives\/
\nfacilities  of\t 1980  policy  from  the  1986\tpolicy,\t the
\ncontinuing units  of 1980 policy could not avail of the 1986
\npolicy regarding  deferment\/exemption whether they went into
\nproduction before 1.4.1986 or after 1.4.1986. It was only in
\nthe 1989  policy, that\tthe units  of 1980 policy which went
\ninto production\t after\t1.4.1986  were\tgranted\t benefit  of
\ndeferment\/exemption of sales tax, as shown below.
\n(III) 1989 POLICY : Deferment of Sales Tax\/Exemption.\n<\/p>\n
     We than  come to  1929 Policy  Resolution for which the
\neffective date\tis 1.4.1989. Para 2.7 defines New Industrial
\nUnit as\t Industrial Units there fixed capital investment has
\nbeen made only on or after 1.4.1989 Para 2.9 defines Pioneer
\nunits and Special Class Entrepreneur, in para 2.11.\n<\/p>\n
(a)  Para 2.17\tdefines Continuing  Units of  1986 Policy as
\nfollows:-\n<\/p>\n
     “Continuing Units\tof  1986  Policy
\n     means  any\t industrial  unit  where
\n     fixed capital  investment commenced
\n     on or after the Ist April, 1986 and
\n     prior to  the effective  date  and,
\n     the unit  has  gone  or  goes  into
\n     commercial production after the Ist
\n     April, 1986.”\n<\/p><\/blockquote>\n
(b)  Para 2.18\tdefines “Continuing Units of 1980 Policy” as
\nfollows :\n<\/p>\n
     “Continuing units\tof 1980\t Policy”
\n     means any\tindustrial  unit,  where
\n     fixed capital  investment commenced
\n     on or  after the  Ist August,  1980
\n     and prior to the Ist April 1986 and
\n     the unit  has  gone  or  goes  into
\n     commercial product\t after\tthe  Ist
\n     April, 1986.<\/p><\/blockquote>\n
     The offending  part is the underlines portion above and
\nthe main prievance of the appellant is that in the abovesaid
\nPara 2.18  while defining “Continuing Units of 1980 Policy”.
\nthe State  ought not to have restricted Sales-tax benefit to
\nunits which  had gone  into production\tafter  1.4.1986\t and
\nshould not  have denied\t the same  to those  units which had
\ngone into  production  before  1.4.1986.  The  appellant  is
\naggrieved  decease   the  appellants   unit  has  gone\tinto
\nproduction before 1.4.1986 i.e. on 1.4.1984.\n<\/p>\n
     We shall refer to the incentives granted under the 1989
\npolicy. The scheme of 1989 divides the incentives into three
\nParts as part I. II and III.\n<\/p>\n
(a)  Part I  deals with\t incentives  of\t deferment\/exemption
\nfrom dales  tax in  respects of\t new industries\t established
\nafter 1.12.1989.  Provision is made for deferment of payment
\nof Sales  tax upto  9 years  or 7 years depending on whether
\nthey were located in different geographical areas Zones A.B.
\n& C.  If one  opts for\tthe benefit of deferment. It will be
\nfor 9\/7\t years as  the case  may be  while if  one pots\t for
\nexemption it will be for 7\/5 years.\n<\/p>\n
(b)  Part II  of  the  1929  Policy  deals  with  incentives
\ngranted in  favour of  the  Continuing\tunits  of  the\t1986
\nPolicy. i.e.  as stated\t in para  2.17, where investment has
\nbeen made  after 1.4.1986  and price  to 2.12.1989 and where
\nproduction stated  after 1.4.1986.  They get  the same sales
\ntax incentives as in part I. applicable to new industries of
\n1985 Policy.\n<\/p>\n
(c)  Part III  of the  1989  Policy  deals  with  incentives
\ngranted in favour of the Continuing units of the 1980 Policy
\ni.e. as stated in para 2.18. Where investment has been after
\n1.8.1980 and prior to 1.4.1986 but where prosecution started
\nafter 1.4.1986.\t They are  again given\tthe  same  sales-tax
\nincentives as  in Part-I,  applicable to  new industries  of
\n1989 policy,  subject however  to the  provision relating to
\nsurrender of  loan or other benefits received under the 1980
\nPolicy. This is mentioned in para 7.3.2 as follows:\n<\/p>\n
     7.3.2 Exemption\\Deferment\tof Sales
\n     Tax on finished products. The sales
\n     Tax incentive  on finished products
\n     as is  applicable to new industrial
\n     units  under   Part  I   shall   be
\n     applicable to  continuing units  of
\n     1980 Policy,  after  the  effective
\n     date. provided that Sales Tax Loan,
\n     if any. availed of under the Orissa
\n     Sales Tax\tLoan Scheme  Rules, 1980
\n     is\t surrendered   within  the  time
\n     limit prescribed in the operational
\n     guidelines\/instructions.<\/p><\/blockquote>\n
     Then it  is stated\t in Para 7.3.3 that similar benefits
\nare extended  to units\tof the\t1980 Policy to the extent of
\nincreased production  over and\tabove the installed capacity
\nof  an\t existing  industrial\tunit  which   has  taken  up
\nexpansion\/modernisation\/diversification after  1.8.1980\t and
\nbefore 31.3.1986  and which  has gone  into production after
\n1.4.1986.\n<\/p>\n
     The grievance of the appellant before the High Court:
\n     The appellant’s  grievance was  that the  definition of
\ncontinuing units  of 1980  (para 2.19) got incorporated into
\npara 7.3.2  and precluded  units such as the appellant which
\nmade investment\t under the  1980 policy\t out which went into
\nproduction before  1.4.1986 – from surrendering the benefits
\nof  interest   free  loan   and\t obtaining   the  sales\t tax
\ndeferment\/exemption benefits  of the  1989  scheme.  If\t the
\ndiscriminatory pat  of the  definition in  para 2.18  of the
\n1929 policy  is struck\tdown, then the appellant could avail
\nthe benefit  of para  7.3.2 and surrender and loan. and then
\nclaim deferment\/exemption  of sales  tax  as  per  the\t1989
\npolicy.\n<\/p>\n
The High Court’s decision:\n<\/p>\n
     The appellant  therefore approached  the High  Court of
\nOrissa contending that the definition of Continuing units of
\n1980 in\t para 2.18  was\t violative  of\tArticle\t 14  of\t the
\nConstitution  and   was\t arbitrary  and\t unreasonable.\tThis
\ncontention was rejected by the High Court on the ground that
\nwhile granting\texemption from sales tax the Government must
\nhave taken  into account a variety of circumstances and that
\nthe Government\thas a great latitude in taxation matters and
\nthe same could not be interfered with in writ jurisdiction.
\nContentions in this Court:\n<\/p>\n
     In this appeal, it is contended by Shri Shanti Bhushan,
\nthe learned  counsel for  the appellant\t that the  words  in
\nclause 2.19  of the  1989 policy  “after the Ist April 1986”
\nmust be\t a crafting  mistake and  the Government  must\thave
\nmeant “after Ist August 1980”. It was also contended that in
\nview of the decision in Nakara vs. U.O.I (1923 (1) SCC 305),
\nthe cut\t off cate  1.4.1926 in\tpara 2.18 of the 1989 policy
\nmust be declared as pad because the 1989 scheme could not be
\ntreated as  a new scheme, out was s continuation of the 1980
\nscheme. In any event, even treating the 1929 scheme as a new
\nscheme, it was discriminatory inasmuch as the classification
\nof units  into two groups, those which went into prosecution
\nbefore 1.4.1986\t and those  which went into production after
\n1.4.1986 was  violative of  Article 14.\t Finally, Sr. Shanti
\nBhushan contended  that this  was the  only unit  which\t was
\nbefore us  and we  should grant\t relief under Article 142 of
\nthe Constitution of India.\n<\/p>\n
     On the other hand, Shri Harish Salve contended that the
\nabove submissions  are not  correct and\t the learned counsel
\nsupported the view taken by the High Court.
\nIs there a draftsman mistake :\n<\/p>\n
     So far  as the  first contention that there was mistake
\nin Para\t 2.18 of  the  1989 policy by the draftsman in using
\nthe words  after the  Ist  April  1986\tis  concerned,\tthis
\ncontention, in\tour opinion.  has absolutely  no  basis.  We
\ncannot presume\tany such  mistake. Further, para 7.3.3 which
\ndeals with  expansion of units of 1980 Policy also refers to
\nthe same  cut off  date. Moreover  the Gazette\tnotification
\n(Fiance) dated\t16.8.1990  in  S.R.O.  790\/90  (referred  to
\nbelow) issued under Section 7 of the Act to reflect the 1989
\npolicies again\tcontains the same date 1.4.1986 under item 3
\nand item 6. It is, therefore, absolutely clear that there is
\nno question  whatsoever of any mistake. On the otherhand, we
\nshall also show, in the further discussion below, that there
\nis not\tonly  no  mistake  put\tthere  is  good\t reason\t for
\nstipulating that said cut off date.\n<\/p>\n
Does Nakara apply ?\n<\/p>\n
     The other\tcontention based  on Nakara’s case [1923 (1)
\nSC 305]\t is also  not tenable. This argument is based on the
\ntheory that  the 1989  policy is  a continuation of the 1980
\npolicy. A  reading of the 1989 policy shows that it is a new
\npolicy and  not a  continuation of  the 1980.  It is clearly
\nstated in para 7.32. that unless a unit of 1980 policy which
\nhad taken  advantage of\t the said 1980 policy surrenders the
\ninterest free  loan received by it the said unit can not opt
\nto come\t under the  1986 policy.  Further,  while  the\t1980
\npolicy was  for granting  “interest free  loan” as  per\t the
\nprovisions of the Orissa Sales Tax Loan Scheme Rules, 1980 –
\nto cover  sales tax already paid, the 1989 policy dealt with
\ngrant  of  “deferment\/exemption”  of  sales  tax  duties  as
\nspecified in  the notification\tunder section 7, Inasmuch as
\nthe 1989 policy is a new scheme. In our opinion Nakara [1983
\n(1) SCC\t 305] cannot  apply. In\t Nakara case  certain  rules
\nconferred a  particular benefit\t on members  of a particular
\nclass and  subsequently, by  another order, the said benefit
\nwas denied  to a  section of  that class  based on a cut off
\ndate. It  was held that such withdrawal of an existing right
\nwas pad since the cut off date had not nexus with the object
\nof the\tscheme. This  court in\tthat case  clearly stated at
\nseveral claces\tthat what they were laying down would not be
\napplicable if  a cut  off date was introduce in a new scheme
\nfor the first time. It was stated that (at *.333).\n<\/p>\n
     “And beware  that it  is not  a new
\n     scheme it\tis only\t a  revision  of
\n     existing scheme.  It is  not a  new
\n     retrial benefit.  It is  an  upward
\n     revision of an existing benefit. If
\n     it was  a wholly new concept, a new
\n     retrial  benefit.\tOne  could  have
\n     appreciated an  argument that those
\n     who had  already retired  could not
\n     expect it.”<\/p><\/blockquote>\n
     This because whenever any financial benefit is intended
\nto be  conferred on persons or units etc. for the first time
\nfrom an\t anterior date,\t the State  has to  fix some cut off
\ndate and  could not  be compelled  to do  back into the past
\nwithout time  limit. If\t the State  should confer  financial
\nbenefits retrospectively  without any  time limit.  It might
\nindeed be  impossible for the State to come forward with any
\nbeneficial scheme.  Every such\tbeneficial scheme  which  is
\nintroduced by  the State  will depend for its implementation
\nupon considerable sacrifice of the finances of the State. In
\nview of\t our finding  that the\t1989 scheme is a new one. as
\ndistinct from  the 1920 scheme, the appellant cannot rely on
\nNakara [1983 (1) SCC 305].\n<\/p>\n
     Is the  classification in para 2.16
\n     of 1984 policy or the corresponding
\n     provision of  SRO 790 of 1990 dated
\n     16.8.1990 violative of Article 14?\n<\/p>\n
     We then come to the main point which was strongly urged
\nby the\tlearned counsel for the appellant, namely, that para
\n2.12 of\t the new  policy of 1989 was violative of Article 14
\ninsofar\t as   it  denied  the  benefits\t of  the  sales\t tax
\ndeferment\/exemption to\tthose units which went to production
\nbefore 1.4.1986.  The Learned  counsel explained  that among
\nthose units which made investments after 1.8.1980 under this
\n1980  policy   some,  like   the  appellant,   were  managed
\nefficiently and\t could go  into production  before  1.4.1986
\nwhile some others, which were managed badly, could not go to
\nproduction either before 1.4.1986 (when the 1986 policy came
\ninto being)  on before\tor after  1.12.1989 (when  the\t1989
\npolicy came  into being).  It was  not open  to the State to
\nconfer sales tax benefits on those units which, by reason of
\npad management or inefficiency, could not go into production
\nbefore 1.4.1986.  To reward the less efficient and to depart
\nthe  efficient\t from  the  benefits  of  1989\tPolicy\twas,
\naccording to the appellant’s counsel. clearly discriminatory
\nand violative. Article 14.\n<\/p>\n
     The above\targument is  attractive out  does not  stand
\nclose scrutiny.\n<\/p>\n
     We shall  presently divide\t the units  which have\tcome
\nunder the  1980 policy\tinto three types, we will show that,
\nfor good  reasons, only\t two types  of such units were given
\nbenefits of  the 1989 policy, while excluding one particular
\ntype (like  the appellant),  from the  benefits of  the 1989
\nPolicy.\n<\/p>\n
     Before we do so, we shall refer to the relevant portion
\nof the\tstatutory  notification\t dated\t16.8.1990  (finance)
\nOrissa Publication  in the  gazette which  reflects the 1989
\npolicy\twhich\tcame  into   force  w.e.f   1.12.1989.\tThis
\nnotification was  issued under Section 7 of the Orissa Sales
\nTax  Act.  1947.  in  relation\tto  medium  and\t Large-sized
\nindustries, to\treflect the  1929 Policy.  Para 1(a) thereof
\ndeals with  deferment of  sales tax  and  para\t1  (b)\twith
\nexemption. Those  who upto  for deferment  would get, as per
\nColumn 4,  a benefit of deferment of 9 years of 7 years time
\nfor payment of sales tax in different zones. Those who opted
\nfor exempting  would get benefit for a period which was less
\nthan the  period mentioned  in Col.4. by two years. In other
\nwords those  who opt  for deferment  would get benefit for 2
\nmore years as compared to those who got for exemption.\n<\/p>\n
     The  gist\t of  the   deferment\/exemption\tnotification
\nclassifies the\tmedium and  large-scale units  of  the\t1989
\nPolicy (entitled to deferment) as follows :\n<\/p>\n
————————————————————\n<\/p>\n
    1\t\t  2\t\t   3\t\t  4\n<\/p>\n
————————————————————
\nSl.No.\tClass of Industrial   Effective\t\tPeriod
\n\tUnit\t\t      date\n<\/p>\n
————————————————————\n<\/p>\n
 1.  New medium\/large\t    Where fixed\t    9 yrs. in some
\n     industrial units\t    capital inve-   Distt. of 7 year
\n     (of 1989 policy)\t    stment has\t    in some Distt.<\/p>\n
\n\t\t\t    been made\n\t\t\t    only on or\n\t\t\t    after 1.12.1989\n 2.  Continuing medium\/\t    where fixed\n     large Industrial\t    capital invest-\n     set up on or after\t    ment has been\n     1.4.1986\t\t    made on or after\n     (after 1986 policy)    1.4.1986 but\t -do-\n\t\t\t    before 1.12.1989\n\t\t\t    and the unit had\n\t\t\t    gone into\n\t\t\t    commercial produc-\n\t\t\t    tion after 1.4.1986.\n 3.  Continuing medium\/\t    where fixed capital\n     large industrial\t    investments commenc-\n     units set up on\t    ed on or after\t  -do-\n     or after 1.8.1980\t    1.8.1980 and prior\n     (after 1980 policy)    to 1.4.1986 and the\n\t\t\t    units had gone into\n\t\t\t    commercial\n\t\t\t    production after 1.4.86.\n<\/pre>\n
[Note: Serial  Nos. 4  to 6  peal with similar concessing to
\nexpanding all  industries and there also Sl. No.6 deals with
\n1980 policy units.]\n<\/p>\n
————————————————————\n<\/p>\n
     We are  concerned in the case before us with Serial No.
\n3 above\t relating to  the Continuing  units of\t1980 and the
\nalleged discrimination\tthereunder denying  benefit  of\t the
\n1989 Policy to such units of the 1980 policy which went into
\nproduction before, 1.4.1986.\n<\/p>\n
     Under  the\t  1980\tPolicy,\t  where\t units\t have\tmade
\ninvestments after  1.8.1980. there  could be  three types of
\nunits :\t firstly, those which made investment after 1.8.1980
\nput which,  like the  appellant, went into production before
\n1.4.1986:  secondly, those units which made investment after
\n1.8.1980 and  before 1.4.86  put had  gone  into  production
\nafter 1.4.1986\tand before  1.12.1989; thirdly,\t those units
\nwhich made  investments after  1.8.1980 and  before 1.4.1986
\nbut when  had gone into production after 1.12.1989, Now, out
\nof these  three types,\tonly the second and third, were made
\neligible to take benefits of column 3 of the Serial No.3 and
\nnot the\t first type.  Units of type two and three along were
\npermitted to  surrender benefits  of 1980  policy  and\tcome
\nunder the 1989 policy as per para 7.3.3 of the 1989 policy.\n<\/p>\n
     We shall  be comparing Serial Nos. 2 (relating to units
\nof 1986 policy) and Serial Nos. 3 (relating to units of 1980
\npolicy) in  the above  said notification  for finding out if
\nthere was  any justification  for conferring benefit of 1989
\npolicy on units of types two and three of 1980 and excluding
\ntype one  of 1980  Policy from\tthe  benefits  of  the\t1989
\nPolicy.\n<\/p>\n
     Firstly, So  far as  the 1989  policy is  concerned, it
\nextended the  benefit of  deferment\/exemption of  sales\t tax
\nunder serial  No.2 to the new units of the 1986 policy which
\nwent into  production after  1.4.1986. Then  the 1989 policy
\nextended its  benefits under  Serial No.3  to the second and
\nthird type  of units of the 1980 policy where the investment
\nwas made after 1.5.80 and before 1.4.1986 provided the units
\nhave gone  into production  after 1.4.1986.  Obviously,\t the
\nGovernment which  is the  delegated authority,\tfelt that in
\nall these  cases, i.e.\tthose falling  under the 1986 Policy
\nand type two and three of the 1980 Policy, the common factor
\nwas the\t factum of production after 1.4.1986, Such as common
\ntreatment, in  fact, ought  to have  been brought into being
\neven when the 1986 policy was introduce. The State realised,
\nwhen it\t come to  the 1989  policy, that so far as types two
\nand three  of the  1980 after  1.4.1986,  those\t units\twere
\nentitled to  the same benefits of deferment\/exemption as the
\nnew 1986  units, Obviously, the first type of unit under the
\n1980 policy where even though the unit made investment after
\n1.8.1980  and\tbefore\t1.4.1986  the  unit  had  gone\tinto
\nproduction before 1.4.1986, could not and would not fit into
\nsuch  a\t scheme.  At  the  same\t time,\tif  the\t benefit  of
\ndeferment\/exemption which  came into being for the new units
\nunder the  1986 policy\twas not\t extended to  the second and
\nthird type  of units  of the 1980 policy, both of which went
\ninto production\t after 1.4.1986,  then perhaps\tthere was  a
\ngood case  for a  plea by the second and third type of units
\nof  1980   policy  to\tcontence  that\t they\twere   being
\ndiscriminated as  compared to  the new units of 1986 Policy.
\nIt could  perhaps be legitimately contended by them that the
\nfact that  investment was  made by  the between 1.8.1980 and
\n1.4.1986 and  the fact\tthat so\t far the  new units  of 1986
\nscheme were concerned, they made investment after 1.4.1986,-
\nwas irrelevant\tand  what  was\trelevant  was  the  date  of
\nproduction. So\tfar as\tthe first  type of  unit of the 1980
\nPolicy,\t where\tthe  investment\t was  between  1.8.1980\t and
\n1.4.1986 but  where the\t unit (like  the appellant) had gone
\ninto production\t before\t 1.4.1986,  those  units  could\t not
\ntherefore stand\t comparison  with  the\tnew  units  of\t1986
\npolicy, or  the second and third type units of 1980 policy –
\nfor the\t date of production by latter units was a date on or
\nafter\t1.4.1986.    After    all,    the    principle\t  of
\ndeferment\/exemption  was  introduced  only  under  the\t1986
\npolicy and was continued under the 1989 policy and there was
\nnothing wrong in extending benefits to type two and three of
\nthe 1980  policy so  as to  avoid discrimination  as far  as
\npossible, between  them and the new units of 1986 policy. In
\nthat context,  there was  good reason  for leaving  but\t the
\nfirst type  of units  of the  1980 policy.  In addition,  as
\nstated by  us earlier  the scheme  of interest free loan and
\ndeferment\/exemption were  different concepts,  what was done
\nunder the 1989 Policy was to bring uniformity of approach in
\nthe  deferment\/exemption  scheme  and  avoid  discrimination
\nbetween units  which were  similarly circumstance, as far as
\npossible. For  the aforesaid  reasons, we  find that the cut
\noff  date   of\t1.4.1986  has  amble  significance  and\t the
\nexclusion of  type one\tof the 1980 scheme to which category
\nthe appellant  belonged and  the inclusion of the second and
\nthird type  of units of the 1980 scheme into the 1989 scheme
\nwas for\t good and  valid reasons. The appellant’s contention
\nis therefore not acceptable.\n<\/p>\n
     A similar\tdistinction between  new units and old units
\nwhile granting\texemption from\tsales-tax was upheld by this
\nCourt in M\/s. Bharat General and Textile Industries Ltd. vs.
\nState of  Maharashtra<\/a> 1989  Suppl. (1).\t SCC 153, One of the
\narguments was  that (see  p.159)  the  result  of  the\t1985
\namendment to  Sec. 41-4\t was that  while the old unit had to
\npay Purchase-tax, Sales-tax, turnover tax etc. totalling Rs.
\n1650\/- per  metric ton,\t the new  units producing  the\tsame
\nwashed cotton-seed oil got away scot-free without paying any
\ntax and these stood placed in a very advantageous position.\n<\/p>\n
     It was  held that\tin  that  case\tthat  the  exemption
\ngranted in  favour of the new units has a sound economic and
\npolicy underlying it”. After referring to what was stated by
\nthe Government in the Counter, this Court observed :\n<\/p>\n
     “It cannot, therefore, be contended
\n     that the old units should also have
\n     been granted  the same  benefits as
\n     new units\tsince both the units and
\n     engaged in\t the manufacture  of the
\n     same type\tof  products.  In  fact,
\n     such a  policy, if\t followed by the
\n     Government, would\tnot only fail to
\n     provide  incentive\t  to   the   new
\n     industries put  wold also place the
\n     new   units    at\t a   comparative
\n     disadvantage in  being made to face
\n     stiff competition\twith older units
\n     which  have   been\t established  at
\n     lesser   cost    and   which   have
\n     stapilised\t themselves in the field
\n     by successfully  running the  units
\n     number of years’.\n<\/p><\/blockquote>\n
     Again in  Mohd. Jappan  Malik Lasjan  vs. State of J.K.\n<\/p><\/blockquote>\n
1994 Suppl.  (3) SCC 24 (to which one of us. S.C.Sen, I. was
\na party)  It was  held that  though initially exemption from
\nSales-tax was  granted for  a specified\t period\t to  certain
\nindustries  by\tplacing\t them  under  a\t common\t heading,  a
\nsubsequent denial of extension of the exemption to some only
\nof such\t industries was\t not an arbitrary exercise of power,
\nmore so\t when the  industry granted  further exemption was a
\ncomparatively new one. This Court observed:\n<\/p>\n
     “The Government, in exercise of its
\n     power given  by Section  5\t of  the
\n     Act, can  decide the  exemption  of
\n     any gods  from taxation.  The power
\n     may be  exercised having  regard to
\n     social, economic administrative and
\n     fiscal conservations.”<\/p><\/blockquote>\n
     Therefore, it  was for  the  policy-maker\tto  consider
\nwhether he  should not allow the older units to get benefits
\nof sales-tax  which they  were producing  to  give  the\t new
\nunits.\tIf   they  felt\t  that\tunits\twhich  were  already
\nestablished at\tlesser cost  and which\tgot well stabilised,
\nshould not  be allowed\tto  have  any  advantages  over\t new
\nindustries, then  such a  classification would\tbe perfectly
\nwhich.\n<\/p>\n
     Nor can  arguments that  units of\tthe second and third
\ntype under the 1980 policy did not go into production before
\n1.4.1986 only on account of pad planning or inefficiency, be
\naccepted. There\t could\tbe  a  variety\tof  factors  like  –
\nincrease in cost of construction, machinery, the comparative
\nbackwardness of\t the area,  administrative delays  or labour
\nproblems – as to why some units could not go into production
\nbefore 1.4.1986.\n<\/p>\n
     It is  again well\tsettled that  the State\t has greater
\nlatitude in taxation matters and in particular, in the grant
\nof sales tax exemptions Verma J (as he then was) observed in
\nKerala Hotel and Restaurant Associations vs. State of Kerala
\n[1990 (2) SCC 502] as follows:\n<\/p>\n
     “The   scode   for\t  classification
\n     permitted in  taxation  is\t greater
\n     and unless\t the classification made
\n     can  be   termed  to   be\tpalpably
\n     arbitrary. It  must be  left to the
\n     legislative wisdom\t to  choose  the
\n     yardstick\tfor  classification,  in
\n     the background of the fiscal riding
\n     of the State…….” (p. 512)
\n     Venketachaliah  J.\t    (as\t  he  then  was)  stated  in
\nP.M.Ashwathanaravana Setty  vs.\t State\tof  Karnataka  [1929
\nSuppl. (1) SCC 696] as follows:\n<\/p><\/blockquote>\n
     “…..the State  enjoys the  widest
\n     lastitude\t where\t  measures    of
\n     economic regulations are concerned.
\n     These  measures   for  fiscal   and
\n     economic  regulation   involve  and
\n     evaluation\t of  diverse  and  quite
\n     often conflicting economic criteria
\n     and  adjustment  and  balancing  of
\n     various  conflicting   social   and
\n     economic values  and interests.  It
\n     is for  the State\tto  decide  what
\n     economic  and   social  policy   it
\n     should\tpursue\t    and\t    what
\n     discriminations\tadvance\t   those
\n     social and economic policies.”<\/p><\/blockquote>\n<\/blockquote>\n
     We, therefore,  hold that\tpara 2.18 of the 1989 policy
\nand the\t corresponding provisions  of the  notification\t SRO
\n790\/90 (Finance)  dated 16.8.1990,  insofar as they extended
\nthe benefit  of the 1989 policy only to the continuing units
\nof  1980   policy  with\t  had  gone  into  production  after
\n1.4.19986, the\tsaid classification is valid and was not hid
\nby Art.14 of the Constitution of India.\n<\/p><\/blockquote>\n
Article 142 :\n<\/p>\n
     The last  arguments of Shri Shanti Bhushan was that the
\nappellant was  the only\t industry which\t made come upto this
\nCourt seeking  benefit of  1989 policy\tand therefore in the
\ninterests of  justice, this  court  should  exercise  powers
\nunder Art.142  of the  Constitution of\tIndia. We are of the
\nview  that   appellant\thas  no\t case  on  merits  and\teven
\notherwise, this\t is not\t a fit\tcase for grant of any relief
\nunder Article 142.\n<\/p>\n
     For all the above reasons, the appeal is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Orissa Soonge Iron Ltd. & Anr vs The State Of Orissa Ad Others on 9 December, 1997 Author: M J Rao Bench: S.C. Sen, M. Jagannadha Rao. PETITIONER: M\/S. ORISSA SOONGE IRON LTD. & ANR. Vs. RESPONDENT: THE STATE OF ORISSA AD OTHERS DATE OF JUDGMENT: 09\/12\/1997 BENCH: S.C. SEN, […]<\/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":[30],"tags":[],"class_list":["post-241374","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. 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