9911796707
TMI Blog2008 (4) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... sidy. Brief facts of the case are that the petitioner is a public limited Company duly incorporated under the Indian Companies Act, 1956. It is engaged in the manufacture of cement at Barmana in District Bilaspur. The petitioner-company set up its first Unit at Barmana prior to 1984 but the said Unit was commissioned in the year 1984. The Union of India had framed a scheme known as Transport Subsidy Scheme in the year 1971. This scheme was applicable in the State of H.P. and has been extended from time to time and admittedly continued to remain in operation with certain modifications. The salient features of the scheme as initially notified were that it would be applicable to the existing and new industrial Units. The scheme was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only an expansion of the first unit and hence not entitled to transport subsidy in terms of the notification dated 28.7.1993. Thereafter correspondence was exchanged between the parties and finally a writ petition was filed which has been allowed. Hence, the present Letters Patent Appeal. The main question which arises for consideration is whether the second Unit is a separate industrial Unit or is only an expansion of the old Unit. In case it is a separate Unit, then there is no manner of doubt that the petitioner-company would be entitled to grant of transport subsidy but in case it is only held to be only an expansion of the original Unit, the petitioner-company would not be entitled to grant of transport subsidy. It would be pert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an extended period , as a proposal to restrict the subsidy to a maximum period of five years was under consideration of the Ministry at that time; (vi) The minimum gestation period for a new cement plant to commence production normally is not less than two to three years. It is not clear how Unit No.2, which is being claimed as a new Unit, could commence production within a period of 18 months. This can be achieved only when it is a case of substantial expansion; (vii) In the meeting convened on 26.6.2000 by the Department of Industrial Policy and Promotion (DIPP) to consider whether Unit No.2 was to be treated as a separate Unit or a case of substantial expansion, officials of the State Government and representatives of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2; (g) The petitioner is maintaining separate RG-I and other registers in respect of Unit No.2, under the Excise Rules for raw materials, production and finished goods, which records are being verified by the Director of Industries from time to time; (h) The plan layout of unit No.2 has been approved by the Central Excise Department; and (i) Unit No.2 has been exempted from both Central Sales Tax (CST) and General Sales Tax (GST) for a period of nine years from the date of commencement of commercial production. Even when the office of the CAG raised an objection, the appellant - Union of India asserted that the grant of transport subsidy to the petitioner company for Unit No.2 was legal on the ground mentioned above. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formed out of the existing business if the physical identity with the old unit is preserved. This has not happened here in the case of the two undertakings which are separate and distinct. Applying the test laid down by the apex Court, it is clear that in the present case, the second unit set up by the petitioner company was a separate unit having its own distinct identify. The mere fact that both units are located at the same place, shared same infrastructure and office facilities does not mean that they are not separate units. Any company can have more than one unit and merely because there is one holding company, it does not mean that the manufacturing unit cannot be a separate and distinct unit. The respondents have relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting unit was increased by more than 25% subsidy was payable. There was also no time limit prescribed. It was only in the year 1993 that the time limit of 5 years was laid down. Therefore, the company by way of better tax management decided to treat the second unit as a separate unit. It applied for and obtained all clearance for the second unit as a separate and distinct unit. Both, the State Government and the Union of India treated the second unit as a separate and distinct unit. Merely because on a petition an objection has been raised by the CAG, the Union of India cannot now change its stand. The learned Single Judge rightly allowed the writ petition. We find no merit in this appeal which is accordingly dismissed. Cross-obj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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