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TMI Blog2008 (5) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... r 28, 2007 set aside the judgment of this court and remitted the matter back for fresh consideration in accordance with law. Short facts giving rise to the present application are that the petitioner is a company registered under the Companies Act and engaged in the business of manufacturing cement. With a view to accelerate the pace of industrial development, achieve dispersal of the industries out of the urban industrialized areas and to attract them to the under-developed and developing areas of the State, the State Government in exercise of the power under section 23A of the Bihar Finance Act adopted a policy known as Sales Tax Incentive Scheme, 1989 by resolution dated 6th of September, 1989 (annexure 1). According to the Sales Tax Incentive Scheme, 1989, the incentive was to be available to the new industrial units starting commercial production from April 1, 1989 and also to the existing industrial units undertaking expansion. Clause 4 of the said policy which concerns the existing industrial units undertaking expansion, which is the subject-matter of this writ application, reads as follows: "Subject: Adoption of Sales Tax Incentive Scheme for rapid industrialization of B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industrial units and 90 per cent of the additional fixed capital investment in the case of existing industrial units undertaking expansion." The words "incremental production" according to the Explanatory Note appended with rule 3 of the Rules mean production over and above the installed capacity. The prayer of the petitioner for deferment of sales tax was considered by the State Level Committee in its meeting dated February 3, 2000. It took into consideration clause 4 of the Sales Tax Incentive Scheme, 1989 as also rule 3(b) of the Rules and observed that in industrial world the "incremental production" means production more than the actual production capacity, but in view of the meaning given to word "incremental production" by an Explanatory Note added to rule 3 of the Rules, the prevalent concept in the industrial world in regard to the incremental production is not fit to be accepted. Accordingly it was constrained to reject the request of the petitioner. It is relevant here to state that while setting aside the judgment of this court and remitting the matter back, the Supreme Court had observed as follows: "Before concluding, we may mention that there is conceptual diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial unit under the incentive policy itself. The industrial incentive policy is issued by the State Government after such policy is approved by the cabinet itself. The issuance of the notification under section 7 of the Bihar Finance Act is by the State Government in the Finance Department which notification is issued to carry out the objectives and the policy decisions taken in the industrial policy itself. In this view of the matter, any notification issued by the Government order in exercise of power under section 7 of the Bihar Finance Act, if is found to be repugnant to the industrial policy declared in a Government resolution, then the said notification must be held to be bad to that extent. In the case in hand, the notification issued by the State Government on April 4, 1994, has been examined by the High Court and has been found, rightly, to be contrary to the industrial incentive policy, more particularly, the policy engrafted in clause 10.4(i)(b). Consequently, the High Court was fully justified in striking down that part of the notification which is repugnant to subclause (b) of clause 10.4(i) and we do not find any error committed by the High Court in striking down the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy decision must be read as a whole. If the language employed is clear and unequivocal, it must be given meaning and effect." The learned Advocate-General, however, appearing on behalf of the State submits that there is no conflict between the Sales Tax Incentive Scheme, 1989 (hereinafter referred to as "the industrial policy") and the Rules. According to him, it is not possible to give each and every detail in policy and the field being open it defined "incremental production" by appending Explanatory Note in rule 3 of the Rules. In view of the rival submission, the question which requires consideration is as to whether the Explanatory Note appended to rule 3 of the Rules is repugnant to the industrial policy or not. Having appreciated the rival submission, I do not have the slightest hesitation in accepting the broad submission of the learned AdvocateGeneral that in case the industrial policy is silent, the rule can explain what is meant by the industrial policy, but at the same time one cannot lose sight of the fact that while interpreting the industrial policy one has to bear in mind as to what incentive the industrial world thought the State Government intended to give. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether that has to be calculated of the installed capacity or the actual production capacity. Explanatory Note appended to rule 3 provides that incremental production would mean production over and above the installed capacity. I am of the opinion that what the industrial world thought the policy intended to convey shall carry weight. What the industrial world thought about the policy is evident in the decision of the State Level Committee. It has observed that in no circumstance the actual production capacity can be compared with the installed capacity and majority of the industrial units do not produce to the extent of the installed capacity. In fact same is not practically possible to be achieved. The industrial policy cannot be interpreted applying the technical rules of interpretation and in case the language of the industrial policy is clear and unequivocal, it must be given effect to. I cannot lose sight of the wisdom of the Supreme Court, while remitting the matter back to this court that there exists conceptual difference between the installed capacity and the actual production capacity. The policy of the State contemplating deferment of sales tax on the incremental prod ..... 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