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TMI Blog2000 (12) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... r and/or directions as this honourable court thinks fit. 2.. With a pious wish to accelerate steady industrial growth in the State, the Government sponsored attractive package of incentives and number of administrative measures designed to provide facilities to new entrepreneurs who desired to initiate industrial activities in the State of Orissa. The said policy is publicly called as Industrial Policy Resolution, 1980 (hereinafter referred to as "the 1980 Policy"). Clause 6.H. of 1980 policy stipulates different kinds of incentives to different category of industries. The provisions applicable to the petitioner is quoted hereinbelow: "Large and medium industries whether new or intending to expand or diversify shall be eligible for interest-free sales tax loan equivalent to the sales tax paid within the State by the units during the first five years subject to an annual maximum limit of 10 per cent of the capital invested but not exceeding Rs. 25 lakhs per year. The loan shall be repaid after 10 years of each year's drawal." 3.. In consonance with the 1980 policy, the State Government framed the Orissa Sales Tax Loan Rules, 1980 streamlining the procedure to be adopted fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy with the twin objective of encouraging new industries and providing support to industries which have come up in the State during the last few years. Under clause 7.3. of the 1989 policy, sales tax incentives under Part III were also extended to continuing industrial units covered under 1980 policy. Some of the relevant clauses of 1989 policy are quoted hereinbelow: "7.3.1: Eligibility: The incentive under this part shall be applicable to 'continuing units of 1980 policy'. 7.3.2: Exemption, deferment of sales tax on finished products.The sales tax incentive on finished products as is applicable to new industrial units under Part I shall be applicable to continuing units of 1980 policy, after the effective date, provided that sales tax loan, if any, availed of under the Orissa Sales Tax Loan Scheme Rules, 1980 is surrendered within the time-limit prescribed in the operational guidelines/instructions." 6.. The 1989 policy further stipulated under clause 7.1.6. that pioneer units will be allowed to defer payment of sales tax collected on finished products for a period of 9 years in Zones "B" and "C" and 11 years in Zone "A". Deferred amount of sales tax in respect of each yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same being not a pioneer unit, is not entitled to any of the incentives granted for pioneer units under 1989 policy. A rejoinder affidavit has been filed on behalf of the petitioner refuting the facts stated in the counter-affidavits. 10.. It is pertinent to state that the matter in dispute was before this Court earlier in O.J.C. No. 6198 of 1994, filed by M/s. Ipitata Sponge Iron Ltd., as the petitioner's unit was previously known. In the said case, after discussing the facts and law, this Court came to a categorical finding that all continuing units of 1980 policy, are entitled to the benefits of 1989 policy irrespective of the fact whether they got the benefit of sales tax loan under 1980 policy or not. This Court held as follows: "We are satisfied that the petitioner-company being industrial unit covered under Part III is entitled to the benefit of deferment/ exemption of sales tax under the Policy of 1989 with effect from June 10, 1992." In paragraph 22 of the judgment, this Court further held as follows: "The petitioner-company has submitted an application before the assessing officer for refund of sales tax, inter alia, on the ground that no sales tax was leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that M/s. Ipitata Sponge Iron Ltd., is not eligible to get incentives as a 'Pioneer Unit' under the IPR 1989 as it is not a 'new' unit under the said IPR. The State Government have been pleased to accept the above interpretation of IPR 1989 and hence your unit is not entitled to avail of the incentives as a pioneer unit." 14.. The orders under annexure 6 series are consequential to annexure 5. We are constrained to say that the authorities have failed to understand the directions issued by this Court in O.J.C. No. 6198 of 1994 (Ipitata Sponge Iron Ltd. v. State of Orissa [2001] 122 STC 259). This Court has come to a categorical finding in paragraph 19 of the judgment that the petitioner-company being an industrial unit covered under Part III, is entitled to the benefit of deferment/exemption of sales tax under the Policy of 1989 with effect from June 10, 1992. The said conclusion was arrived on the basis of clause 7.3.1. of 1989 policy which clearly stipulates that incentives under Part III shall be applicable to continuing units of 1980 policy. After arriving at such a conclusion, this Court observed that before availing of refund, the petitioner-company is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does is to provide specific remedies in particular cases of what might be classed as unjust enrichment in a legal system that is based upon civil law'." In the case of State of Rajasthan v. Novelty Stores AIR 1995 SC 1132, the apex Court turned down the prayer of refund solely on the ground of unjust enrichment holding as follows: "The orders of the High Court in the impugned appeals are to be set aside on the sole ground that the respondents after paying octroi duty have passed on the burden to the consumers and collected from the customers on the cloth purchased and sold by them. Therefore, the order of refund would be an unjust enrichment for them. This Court has repeatedly held that such a refund should not be ordered. In that view of the matter without expressing any opinion on the merits during the interregnum Gram Panchayat was entitled to collect the octroi, since respondents are not entitled to the refund of the amount which is already collected and passed on the burden to the consumers these appeals are to be allowed. The appeals are accordingly allowed and the writ petitions in the High Court stand dismissed." 16.. Last but not the least, the seven Judges (sic) B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2001] 122 STC 259). As disputed questions of facts are involved which need to be determined for arriving at a just decision, it would not be proper for us to delve into the matter at present and it would be just and proper to direct the authorities to apply their mind and to dispose of the representation afresh sacrosantly following the directions issued by this Court in O.J.C. No. 6198 of 1994 (Ipitata Sponge Iron Ltd. v. State of Orissa [2001] 122 STC 259) and the law enunciated in the preceding paragraphs. 18.. In view of the discussions made above, we direct the sales tax authorities to dispose of the refund application keeping in mind the ratio laid down by this Court in O.J.C. No. 6198 of 1994 (Ipitata Sponge Iron Ltd. v. State of Orissa [2001] 122 STC 259). It is needless to say that the authorities will give adequate opportunity to the petitioner-company and allow it to file such documents as deemed just and proper for deciding the issue. In view of the fact that the matter is pending since long, we direct that the entire exercise is to be completed within a period of three months from the date of receipt of copy of this order. With the aforesaid observations and dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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