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TMI Blog2017 (4) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... capital subsidy of Rs. 300 crores under "Special Incentive Package Scheme" notified by the Government of India, Ministry of Communications & Information Technology vide Notification dated 21.03.2007. 5. The said request was not considered on the ground that the Net Present Value (NPV) of eligible capital expenditure of the petitioner falls short of threshold NPV of investment of Rs. 1000 crores prescribed under the scheme. Aggrieved by the same, the petitioner filed W.P.(C)No.3625/2013 with the following prayer: "(i) Issue a writ of mandamus or any other appropriate writ directing the Respondent No.1 and 2 to release in favour of the Petitioner the subsidy of Rs. 253.2 Crores in respect of the total NPV of Rs. 1012.87 Crores achieved by the Petitioner under the 'Special Incentive Package Scheme'; and/or (ii) Direct the Respondent No. 1 and 2 to refrain from calculating the NPV under Clause 2.4 of the Special Incentive Package Scheme by discounting from the base year itself in contravention of the clauses of the Special Incentive Package Scheme; and/or (iii) Any other appropriate writ, order or direction which this Hon'ble Court may deem fit and suitable in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country. 2. Special Incentive Package The Special Incentive Package is as under: 2.1 The investment will be for the manufacture of all semi- conductor and eco-system units, namely displays including Liquid Crystal Displays (LCD), Organic Light Emitting diodes (OLED), Plasma Display Panels (PDP), any other emerging displays; storage devices; solar cells; Photovoltaics; other advanced micro and nano technology products; assembly and test of all the above products. 2.2 The Special Incentive Package shall be for state of the art technology. 2.3 In the case of semi-conductor manufacturing (Fab units) products, the threshold Net Present Value (NPV) of investment will be Rs. 2,500 crores and above. The threshold NPV of investment in manufacture of other eco-system products will be Rs. 1,000 crore and above. This threshold value shall be taken as the Net Present Value (NPV) of investments made during the first 10 years of the project life and the discount rate will be @9%. 3.1 The Central Government or any of its agencies shall provide incentive of 20% of the capital expenditure (as defined in sub-paragraph 3.3) during the first 10 years for the units in SEZ and 25% o the capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2.7 which deals with threshold limit reads as under: "2.7 Threshold limit (a) the threshold limit shall be the minimum amount of the investment calculated in NPV terms for eligibility of the benefits under the SIPS. (b) the minimum amount of such investment shall be Rs. 2,500 crore in case of Fab units, and Rs. 1,000 crore in case of eco- system units, made during the period of first ten years of the project following the base year. (c) the base year for the calculation of the threshold limit will be the financial year (FY) in which application is made. For this purpose, the FY will be the year beginning on the 1st April and ending on the 31st March of the succeeding year." (emphasis supplied) 12. Clause 3.7 and Clause 3.8 of the Guidelines which are also relevant for proper appreciation of the controversy involved may be reproduced hereunder: "3.7 The applicant while submitting the application for seeking release of all incentives other than equity contribution must ensure that such request be duly accompanied by the report of the annual audited accounts as adopted by the Board of Directors and a certificate from the auditors of the company with regard to date-wise ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of calculating the investments made during first ten years of project life. Thus, it is claimed by the respondent No.1 that the first ten years of the project life shall be reckoned from 2008-09 itself after giving the discount. 17. On the other hand, the petitioner claims that in calculating the NPV, investments made in the years following the base year alone are to be discounted in terms of Clause 2.4 and 2.7 of the Guidelines. 18. The learned Single Judge accepted the contention of the petitioner and held: 1. It is sought to be explained by the learned ASG that the expression "follo required to draw up guidelines to which reference has been made above. Therefore, what is pertinent, and therefore, requires to be noticed, is that, the operability of the scheme was dependent on the formulation of the necessary guidelines by the DIT. The 2007 notification, by itself, had neither set out the definitions nor the formulae for calculation of the NPV. As indicated in paragraph 15.3 above, the guidelines in fact added conditions to the 2007 notification. xxx xxx xxx 16.4 A plain reading of the definition of the symbol "i" in the formulae, provided in clause 2.4, along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culation of the threshold limit under the Scheme: "21. Having regard to the above, I am inclined to accept the argument that the base year, which is FY 2008-2009, in the instant case, will have to be excluded in arriving at the threshold limit of NPV of the capital investment made by the petitioner as prescribed under clause 2.3 of the scheme. In other words, eligible capital expenditure incurred in the base year will not be discounted to arrive at the threshold limit. 22. Accordingly, the respondents no. 1 and 2 are directed to re- calculate the threshold limit, under the scheme, in terms of the findings returned above. The respondents will complete the said exercise within four weeks from today, and in case, the petitioner, were to meet the all other parameters, they would release the incentives, to which, it is eligible, under the scheme, in terms of the provisions set out therein." 20. Assailing the said order, it is contended by Shri Sanjay Jain, the learned ASG appearing for the appellants that the interpretation given by the learned Single Judge is bad in law inasmuch as it militates against the express language of the Scheme in question as also the Guidelines and make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. While submitting that where two views are plausible and the court below has taken one of the plausible views, the appellate court would not intervene to reverse the decision of the court below, the learned Senior Counsel relied upon Umabai v. Nilkanth Dhonibai Chavan; (2005) 6 SCC 243 and Indian Oil Corporation Ltd. v. Sanjeev Kumar; 2015 SCC Online Del 6503. 25. It is also contended that the Government of India being the author of the policy under the Scheme in question cannot escape its consequences. In support of the said submission, the learned Senior Counsel relied upon J.K. Industries Ltd. v. Union of India; (2007) 13 SCC 673, P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors.; (1995) Supp. (2) SCC 348, K.P. Varghese v. ITO, Ernakulam; (1981) 4 SCC 73, Sant Ram Sharma v. State of Rajasthan; (1968) 1 SCR 111 and Desh Bandhu Gupta & Company v. Delhi Stock Exchange; (1979) 4 SCC 565. 26. We have given our thoughtful consideration to the rival submissions made on behalf of the parties. 27. Admittedly, the base year for calculation of NPV would be the Financial Year 2008-09. Clause 2.4 of the Guidelines has set out the formulae for calculating NPV. According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envisages that the threshold limit is to be quantified in present value terms, for which, a discount rate of 9% is fixed. However, in the calculation of the threshold limit, the scheme seeks to apply the discount rate to only those investments made in the years "following" the base year. If that be the intent, the approach adopted by the petitioner seems to accord with the provisions of the scheme. 18. Therefore, while one cannot quibble with the proposition advanced on behalf of the respondents that the guidelines cannot supplant the scheme, what cannot be lost sight of, is that, the guidelines make the scheme operable. The mechanics of the scheme are provided in the guidelines. For instance, the formulae for calculating the NPV and the manner in which the threshold limit is to be ascertained, is provided in the guidelines. The guidelines, to my mind, are thus an elaboration of what the scheme envisages. 19. One cannot also find fault with the proposition that the intention of the maker of the document is to be ascertained from the language used in the document, and if, the language is clear and unambiguous, no interpretative rules can be brought into play. If, as indicated a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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