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TMI Blog2006 (12) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... earing No.G.O.(MS)No.4/92/PD dated 6.2.1992, was issued, which reads as under : ORDER In the light of the statement of Industrial Policy approved for implementation by Government the following incentives in respect of electricity are ordered : 1. New industrial units will be exempted for 5 years from payment of enhanced power tariff which came into effect on 1.1.92. This concession will be available. i. to new units from the date of commercial production, which start such production between 1.1.92 and 31.12.96. ii. to manufacturing units only and not to service and entertainment units. iii. To existing units for substantial expansion/ modernization/diversification the concession in such cases will be available only for the consumption of the new machinery and equipments which adds to the capital asset, by not less than 25% of the exiting fixed capital investment excluding land and building, the installation of which is to be certified by the competent authority. iv. for modernization, to industrial units having a contract demand not exceeding 500 KVA. In such cases, new equipments alone will be eligible for the concession. The said industrial policy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogress. Any further delay in receiving the power allocation will affect our total project which will lead to a financial constraint. It is really unexpected from the authorities such a situation by the entrepreneur who is taking initiative to install a factory in Kerala. Since we have already invested a huge amount for land, building and machinery, we do not have other alternative other than to complete the project and start production at the earliest. We have informed these facts and figures to the previous Ministry vide our letter dated 22nd February, 1996, addressed to Hon ble Minister of Electricity. We are sorry to inform you that so far we have not received any favourable decision. According to our schedule, we are planning to start production in the month of August, 1996. Of the huge investment of ₹ 12.5 crore, 75% of the total cost of the project has already been invested and any more delay in power allocation will effect our project very seriously. To avoid unnecessary delay in starting the production, we need the sanction of power allocation urgently. We understand that our file is pending with the Chief Engineer, World Bank Projects, Vaiduthy Bhavanam, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was already over. We are of the view, ext. P1 order of the apex court would not apply to the facts of this case where power allocation was made from the year 1991 but the power could not be supplied. Hence commercial production could not be started by 31.12.1996. Hence Petitioner had not complied with the formalities so as to get the benefit of the concession orders. The principle of promissory estoppel in the facts and circumstances of the case cannot be put against the Board. Above being the factual situation, we are of the view Petitioner is not entitled to get concessional tariff. So far as case of M/s. A.P. Steel Re-Rolling Mill Ltd. is concerned, we need not go into the factual aspect of the matter. Suffice it to notice that its writ petition was permitted to withdrawn by the High Court by an order dated 24th November, 2003. A review application filed by the said appellant was also dismissed by an order dated 25th May, 2004. We may, however, note that an application for grant of electrical connection was filed by it in November, 1995 and actual commercial production started in or about October, 1998. The principal contentions which have been raised by Mr. Ranjit Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant s unit did not start till 31.12.1996. But the question for consideration is when the government has itself come forward alluring industrial units to set up their industries and when under the provisions of the Electricity Act, every consumer has the right to get the supply of power and in the case in hand, when power allocation has been made in favour of the appellant as early as in 1995, and yet the same power could not be supplied for such non-supply of power, the commercial production could not start by 31.12.1996, would it at all be equitable to deny the relief to the appellant by giving a literal interpretation to the incentive scheme of the government as adopted by the Board? Our answer to this question must be in the negative. There are several documents on record, which were produced before us to indicate that the appellant has been communicating with the Board, seeking power connection at an early date so that it would be able to start commercial production by 31.12.1996. In making such communication, the appellant has been bringing it to the notice of the Board but for supply, the appellant has made all other arrangements to set the production, but yet there has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise. Applicability of doctrine of promissory estoppel in a case where entrepreneur alters his position pursuant to or in furtherance of a promise made by the State to grant exemption from payment of charges on the basis of current tariff is not in dispute. The State made its policy decision. The said policy decision could be made by the State in exercise of its power under Section 78A of the Electricity (Supply) Act, 1948. The Electricity Board framed tariff for supply of electrical energy in terms of Sections 46 and 49 of the 1948 Act. While framing its tariff, the Board could take into consideration the policy decision of the State. It was, therefore, permissible both for the State to issue a policy decision and for the Board to adopt the same in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been applied and the leading authority on this point is the case of M.P. Sugar Mills. On the other hand, reliance has been placed on behalf of the State on a judgment of this Court in Bakul Cashew Co. v. STO. In Bakul Cashew Co. case this Court found that there was no clear material to show any definite or certain promise had been made by the Minister to the concerned persons and there was no clear material also in support of the stand that the parties had altered their position by acting upon the representations and suffered any prejudice. On facts, therefore, no case for raising the plea of estoppel was held to have been made out. This Court proceeded on the footing that the notification granting exemption retrospectively was not in accordance with Section 10 of the State Sales Tax Act as it then stood, as there was no power to grant exemption retrospectively. By an amendment that power has been subsequently conferred. In these appeals there is no question of retrospective exemption. We also find that no reference was made by the High Court to the decision in M.P. Sugar Mills case. In our view, to the facts of the present case, the ratio of M.P. Sugar Mills case directly app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply agreements with the Board as new industries prior to 1-8-1986. The question yet again came up for consideration before this Court recently in State of Punjab vs. Nestle India Ltd. Anr. [(2004) 6 SCC 465], wherein this Court surveyed the growth of the said doctrine and held the doctrine to be applicable to legislative action also. In Jai Narain Parasurampuria (Dead) Ors vs. Pushpa Devi Saraf Ors. [(2006) 7 SCC 756], this Court held : The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged\005 In Shrijee Sales Corporation Anr. vs. Union of India [(1997) 3 SCC 398], this Court referring to Motilal Padampat (supra), it was stated : Two propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omewhat different view viz. strict construction of such notification was advocated in the case of State Level Committee Anr. vs. Morgardshammar India Ltd. [(1996) 1 SCC 108], wherein, B.P. Jeevan Reddy, J., referring to CCE vs. Parle Exports (P) Ltd. [(1989) 1 SCC 345], opined : We agree with the above statement of law except insofar as it states that where two views of the exemption notification are possible, it should be construed in favour of the subject since it is contrary to the decisions aforementioned including the three-Judge Bench decision in Novopan India Ltd. It may be noted that this decision was referred to in Mangalore Chemicals and Fertilizers and yet a slightly different principle enunciated. So far as decision in Hindustan Aluminium Corporation (referred to in Parle Export), rendered by a Bench comprising Tulzapurkar and R.S. Pathak, JJ., is concerned, it only holds that the expression metal occurring in a notification issued under U.P. Sales Tax Act should be understood in its primary sense, i.e., in the form in which it is marketable as a primary commodity. The learned Judges held that the subsequent forms evolved from the primary form constituted distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which even domestic power connections were being refused. The high tension power supply required by the appellant had to be specially arranged by drawing the electrical lines on OYEC basis by construction of PSC polls along the line at the Appellant s cost. This amount was deposited on 11.12.1996, only a few days before the concession was about to lapse. Having examined the correspondence on record, we are not in a position to accept the contention of the appellant that the respondents had acted with undue tardiness or lethargy. Further, the remittances of ₹ 8,54,700/- and ₹ 3,45,200/- made by way of security deposit for executing the power supply agreement were actually made on 1.2.1997 and 4.2.1997, after the expiry of the period of concession. The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made. In M/s. O.N.G.C. Ltd. vs. Commnr. Of Customs, Mumbai [(2006) 8 SCALE 551], this Court held : This Court, times without number, has con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not ready for commencing commercial production. Machineries were obtained by it only on 4.6.1996. How much time was taken for installation of machinery and completion of the project, is not known. Sanction, evidently, had been allocated on 24.2.1997. It accepted the same without any demur. It had been making payments in terms of the new tariff. It filed the writ petition only in the year 2003, i.e., only after this Court rendered its decision in Hitech Electrothermics (supra) on 17th December, 2002. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief. {See Chairman, U.P. Jal Nigam Anr. vs. Jaswant Singh Anr. [2006 (12) SCALE 347].} We are, thus, of the opinion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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