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TMI Blog2016 (12) TMI 1770X X X X Extracts X X X X X X X X Extracts X X X X ..... said prayer was not pressed by the respondent company. The learned Single Judge has committed an error while holding that petitioner-respondent Shree Cement Company Ltd. has vested right by virtue of principle of promissory estoppel and legitimate expectation to get subsidy upto 75% on the basis of entitlement certificate issued by the SLSC because the State Government is framing scheme from time to time to grant certain benefits and concession in the form of subsidy to the industrial development, but here in this case, upon perusal of entire record, it is obvious that till deletion of provision vide notification dated 28.4.2006, none of the eligibility conditions were fulfilled by the respondent Company but ignoring those facts, the SLSC issued entitlement certificate on 29.6.2006 and 28.7.2007 much after the deletion of the provision by way of notification dated 28.4.2006. Specific provision has been incorporated under clause 13 of the RIPS, 2003 to check the action and orders of SLSC while exercising revisional power, therefore, it cannot be said that any error was committed by the Principal Secretary, Finance of State Government to quash the orders passed by the SLSC, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in SB CWP No. 4790/2009 (Annex.-2) this Hon'ble Court may be pleased to: a. Grant interest in favour of the Appellant Company herein at the rate of 12% per annum or at such other rate as this Hon'ble Court may deem fit, on the arrears of subsidy amount, for the period for which the subsidy has been wrongfully withheld by the Respondent i.e. starting from 15 days after the respective dates of application for grant of subsidy for the period October, 2008 to June, 2011 and the subsequent quarters on which dates the subsidy sanction order were required to be passed and ending till the date of actual set-off with tax liability; and b. Pass any other Order(s) that this Hon'ble Court may deem fit in the facts and circumstances of the case. 3. Succinctly stated facts of the writ petition would reveal that the petitioner-respondent Shree Cement Company Ltd. is a public limited company incorporated and registered under the Companies Act, 1956 and is engaged in the business of cement manufacturing. The petitioner No. 2 of the writ petition Sh. Suresh Chandra Maheshwari is Indian National and share holder of Shree Cement Company Ltd., who is working as Senior General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75% as per the amendment dated 2.12.2005 under the RIPS-2003 on 10.12.2005. 5. An application dated 24.1.2006 for grant of subsidy under clause 7(vii) of RIPS-2003 was duly received on 30.1.2006. 6. As per contention of the petitioner-respondent Shree Cement Company Ltd. the investment made was at ₹ 303.91 crores with additional employment of 650 persons, financed through secured loan of ₹ 224.25 crores. According to company all required conditions stipulated for expansion under clause 7(vii) were fulfilled, therefore, SLSC in due course, granted eligibility certificate to the said expansion in its meeting held on 29.7.2006 and entitlement certificate No. 2/37 for a period of seven years from 21.12.2005 (which is the date of commencement of commercial production as defined in RIPS-2003), was issued to the company. The petitioner-respondent Shree Cement Company Ltd. was also allowed subsidy including upfront subsidy from 21.12.2005 to April, 2008 for the said expansion at Ras. The petitioner-respondent Shree Cement Company Ltd. registered its other options for proposed expansions at Ras and Khushkhera on 28.1.2006 and 9.2.2006 involving investment of ₹ 450 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2005 under sub-clauses (vi) and (vii) of Clause 7. Further, it is stated that in no case, the subsidy would be payable. Meaning thereby, the Finance Department negated the notification dated 2.12.2005 itself as is of no consequence and as if, never issued. Aforesaid fact were intimated to the petitioner-respondent Shree Cement Company Ltd. vide letter dated 27.1.2009 of the Finance Department for review of SLSC decision dated 29.7.2006 and 27.6.2007. A meeting was fixed before Principal Secretary, Finance on 5.2.2009, but alongwith intimation letter, no reasons were assigned nor any document was enclosed, therefore, the petitioner-respondent Shree Cement Company Ltd. requested the authorities of Finance Department to provide the same and sought document on that date. The petitioner-respondent Shree Cement Company Ltd. received show cause notice dated 9.2.2009 intimating for review of the decisions of the SLSC because according to the Finance Department the grant of subsidy was not in accordance with law as pointed out by the Commercial Taxation Department. 9. Two applications, both dated 18.7.2008, bearing Nos. 108 and 109, filed by the Commissioner of Commercial Taxation befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and contrary to law because no vested right created to the respondent Shree Cement Company Ltd. under the amendment notification in RIPS, 2003 dated 2.12.2005 by virtue of principle of promissory estoppel and legitimate expectation . Further, for the reason that there is no foundation and material available on record to sustain those findings, the representations do not in any manner co-relate issuance of amendment dated 2.12.2005, which notification as per the order of revisional authority, was issued on account of increase in the rate of sales tax on cement from 19% to 28% on the same day. It is also submitted that writ of certiorari cannot be issued unless there is error apparent on the face of record in the order impugned. The order impugned dated 31.3.2009 passed by the Secretary, Finance, Government of Rajasthan is well reasoned order and the same was passed after taking into consideration entire facts and law, therefore, no interference was required for judicial review, but learned Single Judge committed a gross error while interfering in the order passed by the revisional authority while giving erroneous finding. 15. According to learned counsel for the appellant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te unit at Kushkheda. The land was leased out by RIICO to the petitioner-respondent Shree Cement Company Ltd. on 24.2.2006 upon consideration of ₹ 7,78,09,744/- and amount of ₹ 31,37,700/- towards stamp duty. 16. As per contention of learned counsel for the appellant on 1.4.2006, Rajasthan Value Added Tax (VAT) Act came into force whereby the rate of VAT on cement was reduced from 28% to 12.5%, therefore, as a consequence of reduction of tax on cement, sub-clauses (vi) and (vii) introduced in the RIPS, 2003 were came to be deleted. After deletion of the said clauses, SLSC issued certificate on 29.7.2006 for grant of subsidy to the petitioner-respondent Shree Cement Company Ltd. under the notification dated 2.12.2005, but SLSC committed a grave error because SLSC ignored the notification dated 28.4.2006 whereby the said amendment made in the RIPS, 2003 was deleted. The learned Senior Counsel vehemently argued that it was the duty of SLSC to take into consideration the notification dated 28.4.2006 whereby the amendment notification dated 2.12.2005 whereby sub-clauses (vi) and (vii) were inserted in clause 7 of RIPS, 2003 were deleted. Therefore, while exercising revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the State Government has power to withdraw subsidy at any time in public interest as per clause 14 of the RIPS, 2003, which provides for review or modification of the scheme. The essence of the said clause is that Finance Department of State Government reserve right to review or modify the scheme as and when needed in public interest. For withdrawal of subsidy upto 75% there was legal and valid reason to delete sub-clauses (vi) and (vii) inserted vide notification dated 2.12.2005 due to change in the rate of tax on same as well as introduction of the VAT from 1.4.2006. The learned Single Judge committed an error in rejecting the said argument that subsidy was withdrawn on account of reduction of sales tax. The amendment notification dated 2.12.2005 was issued for granting benefits in respect to same nature only and it was withdrawn for the reason that rate of tax on cement was also reduced from 28% to 12.5%, therefore, it is apparent that learned Single Judge has completely ignored clause 14 of the scheme of 2003, which provides for reviewing or modification in the scheme. 20. Learned Senior Advocate submits that another error has been committed by the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate his arguments, which are as follows: A. Writ of certiorari cannot be issued unless there is error apparent on the face of record: (i) 1980 (4) SCC 336 : Mukunda Bore v. Bangshidhar Buragohain; (ii) 1984 (2) SCC 488 : Bishnu Ram Borah v. Parag Saikia (iii) 2007 (2) SCC 468 : State of Raj. v. H.V. Hotels B. Subsidy cannot be claimed as a matter of right nor it is vested right: (i) 1987 (1) SCC 31 : Shri Bakul Oil Industries v. State of Gujarat (ii) 1995 (1) SCC 274 : Kasinka Trading Anr. v. UOI (iii) 1995 (6) SCC 53 : Arvind Industries v. State of Gujarat (iv) 2004 (7) SCC 673 : State of Rajasthan v. J.K. Udaipur (v) 2008 (13) SCC 213 : Kusumam Hotels (P) Ltd. v. Kerala SEB (vi) 1996 (5) SCC 268 : PTR Exports (Madras) v. UOI (vii) 996 (2) SCC 438 : S.B. International Ltd. v. Director General F.T. C. Withdrawal of subsidy is permissible in public interest: (i) 1995(1) 274 : Kasinka Trading Anr. v. UOI. (ii) 1999(4) SCC 357 : State of Rajasthan v. Mahavir Oil Industries. (iii) 2004(7) SCC 673: State of Rajasthan v. JK Udaipur (iv) 2011(3) SCC 193 : Shri Sidhbali Steels v. State of UP (v) 2011 (3) SCC 778 : State of Haryana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n conditions. The petitioner-respondent Shree Cement Company Ltd. had established its cement unit at Kushkhera upon the said promise and assurance given by the State Government. So far as the Ras unit was concerned, the entire investment thereon was made after meeting with the Hon'ble Chief Minister in the month of April, 2004. The major portion of the total investment and entire investment on phases of plant and machinery was made after budget speech dated 24.3.2005. Therefore, the petitioner-respondent Shree Cement Company Ltd. became entitled to enforce said assurance and promise, even if, no amendment had been made to the RIPS, 2003 on 2.12.2005 and, even if, no order had been passed in favour of the petitioner-respondent Shree Cement Company Ltd. by the SLSC. The learned counsel for the petitioner-respondent Shree Cement Company Ltd. vehemently argued that all investments were made upon assurance given by the Government, therefore, the doctrine of promissory estoppel will apply in this case for grant of subsidy upto 75%. The learned counsel for the petitioner-respondent Shree Cement Company Ltd. further argued that under clause 7(vii) of RIPS, the exercise of the option by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent Shree Cement Company Ltd. would be entitled to 75% subsidy eve if the two other pillars are for any reason struck down by this Court. The learned Single Judge upheld the existence of each of the said three pillars, therefore, quashed the order passed by the revisional authority in which there is no illegality. 26. The learned counsel for the petitioner-respondent Shree Cement Company Ltd. further argued that revisional jurisdiction was not available to be exercised as the order passed by the SLSC was not erroneous, more so, the orders passed by the SLSC in favour of the petitioner-respondent Shree Cement Company Ltd. on 29.7.2006 and 27.6.2007 were just and proper because the only view possible at any rate was exercised by the SLSC to issue the orders dated 29.7.2006 and 27.6.2007, therefore, the argument for exercising revisional jurisdiction, is on the face of record, is fallacious. In support of above arguments, it is submitted that application for grant of subsidy was moved under clause 7(vii) of the RIPS, 2003 and on the date, SLSC passed the order, though clause 7(vii) was deleted before 28.4.2006, but there was no question to exercise revisional jurisdiction because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Union of India Ors. 2000(4) SCC 57 iii. Motilal Padampat Sugar Mills Co.(P) Ltd. v. State of Uttar Paresh Ors. AIR (79) SCC 621 iv. MRF Ltd., Kottayam v. Asstt. Commissioner (Assessment) Sales Tax Ors. 2006(8) SCC 702 B. VESTED RIGHT: i. Shanker Lal Verma 13 Ors. v. The RSEB 1999(1) WLC (Raj.) 1 ii. Madras High Court, The Chairman v. Kanimozhi 2014 LAB IC 4007 iii. Raghuveer Singh Saxena v. United India Insurance Co. Ltd. Ors. 2014(2) RLW 1047 (Raj): iv. Girish Chandra Ors. v. State of Rajasthan Anr 2013 Lab IC 645 : v. Prem Kumar Ors. v. State of Rajasthan 2007 (3) ILR (Raj.) 95 C. EXERCISING IMPERMISSIBLE REVISIONAL JURISDICTION: i. Commissioner of Income- Tax, Mumbai v. Contimeters Electricals P. Ltd. (2009) 317 ITR 249 (Delhi) ii. Commissioner of Customs, Mumbai v. Toyo Engineering India Ltd. 2006 (7) SCC 592 iii. Bagsu Devi Bafna v. Commissioner of Income Tax Ors. 1966 (62) ITR 506 iv. S.L. Srinivasa Jute Twine Mills (P) Ltd. v. UOI Anr. 2006(2) SCC 740 v. Malabar Industrial Co. Ltd. v. Commissioner of Income Tax, Kerala State vi. 2000 (243) ITR 83 : 2000(2) SCC 718 vii. Commissioner of Income Tax v. Max I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme, a proviso to Clause 7 (i)(b) was inserted, whereby it is provided that maximum limit of 50% prescribed under clause 7(i)(a) and clause 7(i)(b) may be raised by the BIDI (Board of Infrastructure Development and Investment Promotion, Government of Rajasthan) to 60% in such cases where the investment exceed to ₹ 100 crores, but are less than or equal to ₹ 200 crores; and this maximum limit may be raised further to 75% in cases where the investments exceed ₹ 200 crores. Clause 7(iii) provided that the subsidy shall be available to the investors for seven years from the date of first repayment of interest in case of Interest Subsidy, and first payment of wages/employment in case of wage employment subsidy and in case of expansion/modernization/diversification, the unit shall be eligible for subsidy under the scheme from the date of payment of sales tax over and above the highest sales tax paid in the immediately preceding three years before such expansion/modernization/diversification. 31. Upon perusal of amendments, it will reveal that vide notification dated 2.12.2005 sub-clauses (vi) and (vii) were inserted in the RIPS, 2003 for new cement unit having invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ores. The said option for both the units was again reiterated vide communication dated 9.2.2006 addressed to the Commissioner of Industries, Member Secretary of SLSC, Jaipur for clinker unit at village Ras, Tehsil Jaitaran, Dist. Pali and grinding unit of village Kushkheda, Tehsil Bhiwadi with total new investment of approximately ₹ 450 crores. 33. It is also admitted fact that another notification dated 28.4.2006 whereby Clause (vi) and clause (vii) inserted in RIPS, 2003 vide notification dated 2.12.2005, were deleted after about 5 months after insertion of the said clause. In the notification dated 28.4.2006 only one line amendment was made which says Sub-clause (vi) and (vii) of clause 7 of the said Scheme shall be deleted. The petitioner-respondent Shree Cement Company Ltd. submitted before the learned Single Judge that neither any reason nor any preamble containing such reasons for such deletion of these clauses was brought on record, in fact, deletion of sub-clauses (vi) and (vii) of Clause 7 in RIPS, 2003 vide notification dated 28.4.2006, is the reason for present litigation. According to the petitioner-respondent Shree Cement Company the said deletion was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary, Finance and Commissioner of industries considered the case of the petitioner-respondent Shree Cement Company Ltd. for its Kushkheda, Tehsil Bhiwadi grinding unit and in the consideration despite referring to amending notification dated 28.4.2006, deleting Clauses (vi) and (vii) from clause 7, the SLSC took a conscious decision that petitioner-respondent Shree Cement company Ltd. had exercised its option prior to deletion of clause 7(vii) vide notification dated 28.4.2006, therefore, covered by the previous amending notification dated 2.12.2005 and, therefore, entitled to increase benefit of subsidy to the extent of 75% under the first amending notification dated 2.12.2005 because the petitioner-respondent Shree Cement Company Ltd. is fulfilling the conditions of making investment of more than ₹ 200 crores and providing employees more than 100 persons. The SLSC held that the petitioner- respondent Shree Cement Company Ltd. entitled to the benefit upto 75% of subsidy for a period of 7 years and issued Entitlement Certificate in prescribed form No. 6 in favour of the petitioner-respondent Shree Cement Company Ltd., for its Bhiwadi unit for a period of 7 years from 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax. 37. The Principal Secretary, Finance Department after providing an opportunity of hearing to the Commissioner, Commercial Taxes department as well as the petitioner-respondent Shree Cement Company Ltd., set aside the order of SLSC vide order dated 31.3.2009 while exercising revisional jurisdiction provided under clause 13 of RIPS, 2003. Although petitioner-respondent Shree Cement Company Ltd. raised an objection that revision petition is not maintainable, but the Principal Secretary, Government of Rajasthan passed an order on 31.3.2009 and quashed the eligibility certificates while overruling the preliminary objections of the petitioner-respondent Shree Cement Company that revision petition filed by the Commissioner is not maintainable. 38. The petitioner-respondent Shree Cement Company Ltd. preferred writ petition before this Court in which the learned Single Judge after hearing final arguments, quashed the order of Principal Secretary Finance, Government of Rajasthan dated 31.3.2009 on the ground that under the amendment notification dated 2.12.2005 vested right created in favour of the petitioner-respondent Shree Cement Company Ltd. cannot be taken away on the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, as recorded in the letter dated 15.05.2004, the respondent Company started incurring expenditure of civil construction and land acquisition/development from the month of April-May 2004 onwards. According to respondent company, it also started placing orders for part of plant and machinery required for Raas unit, which required long lead period for delivery. 43. The respondent-company pleaded in the writ petition before the learned Single Judge that the Chief Minister of State of Rajasthan clearly indicated that she was in principal to consider the grant of 75% subsidy to enable new cement units to be established. 44. While inviting attention towards the Budget Speech delivered on the floor of State Legislature on 24.03.2005, it was argued before the learned Single Judge that the Hon'ble Chief Minister gave an assurance that a new package would be framed for cement plants with 75% subsidy. According to respondent company, the aforesaid factual averments were not denied by the appellant State in the reply filed in the writ petition, nor contradicted in the counter claim. According to respondent company, a major portion of capital expenditure of Raas Unit was incurred onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt company is claiming its right for 75% sales tax exemption, first of all we have perused the RIPS, 2003. 48. The scheme known as RIPS, 2003 was introduced by the State Government on 28.07.2003 with a view to provide investors to an attractive opportunity to make investment in the State of Rajasthan. Initially the said scheme came into operation w.e.f. 01.07.2003 and remained in force upto 31.03.2008. The scheme was made applicable to all new investors and investments made by the existing units, entrepreneurs for modernization/expansion/diversion, subject to condition that such units shall commenced commercial production/operation owing in such investment during the operative period of the scheme. 49. In Para 5 of the said scheme, some eligibility conditions were provided and in Para 7, provision for subsidy was incorporated. It is worthwhile to observe that the said scheme was initially meant to remain in force upto 31.03.2008, but it was subsequently extended upto 31.03.2009 by amendment dated 15.03.2007 and further extended upto 31.03.2011 by amendment order dated 06.08.2008. The RIPS, 2003 was amended vide notification dated 02.12.2005, whereby sub-clauses (vi) and (vii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Tax Act as and when introduced in the State) and Central Sales Tax Act, 1956 for a period of 7 years from the date of commencement of production, subject to the following conditions, namely- 1. The investor shall submit an option to the Member Secretary, SLSC to avail benefit under this scheme within 180 days of this amendment; 2. The unit shall start commercial production within 5 years of filing of application for option; and 3. The sum total of 75% subsidy shall be calculated in the following manner: - (a) Subsidy of 45% of the Rajasthan Sales Tax or Value Added Tax and Central Sales Tax shall be allowed upfront on the basis of actual tax liability; and (b) The remaining subsidy to the extent of 30% of Rajasthan Sales Tax or Value Added Tax and Central Sales Tax liability shall be allowed in form of interest subsidy, wage/employment subsidy out of which interest subsidy shall be limited to 5% of the documented rate of interest and the amount actually paid as interest shall not include penal interest, and wage/employment subsidy. A unit not claiming any interest subsidy can claim wage/employment subsidy to the extent of 30% subject to other conditions under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iteria of the investment exceeding ₹ 200 crores and minimum additional employment of 100 employees was made by the company. Therefore, the SLSC issued Entitlement Certificate No. 2/66 dated 27.6.2007 for a period of 7 years from 26.03.2007 to 25.03.2014 to the respondent company. 54. Upon consideration of above facts, undoubtedly both the certificates were issued by the SLSC after issuance of amendment notice dated 28.04.2006 on 29.07.2006 and 27.6.2007 knowingly well that provision has already been deleted. The amendment notice dated 28.04.2006 is quoted herein below for ready reference: - GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (TAX DIVISION) No.F.12 (63)FD/Tax/05 Jaipur, Dated 28.4.2006 ORDER In partial modification of this Department's order No. F.4 (18) FD/Tax-Div/2001 dated 28.7.2003 (as amended from time to time) the Government makes the following amendments in the Rajasthan Investment Promotion Scheme, 2003 (hereinafter referred to as 'the scheme'); namely; AMENDMENT 1. Sub-clause (vi) and (vii) of clause 7 of the said Scheme shall be deleted. Sd/- (Subir Kumar) Deputy Secretary to the Govt.) 55. It is true th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxes Department clarifying in case of six cases cited, the subsidy is allowable under the Notification dated 02.12.2005 upon its deletion on 28.4.2006. The said Clarification dated 22.05.2008 is also quoted herein below for ready reference: GOVERNMENT OF RAJASTHAN FINANCE DEPARTMENT (TAX DIVISION) No.F.12 (20)FD/Tax/2005 pt. Dated : 22.05.2008 The Government launched the Rajasthan Investment Promotion Policy, 2003 (hereinafter referred to as 'the scheme') vide this department's order No. F.4 (18)FD/Tax/2001 dated 28.07.2003 (amended from time to time). It has been brought to the notice of the Government that there is some ambiguity relating to the interpretation of admissibility of subsidy with regard to cement industry under RIPS-2003. To bring in more clarify, the State Government in exercise of powers conferred in Clause 11 of the said Scheme, clarifies the issues as follows: - CLARIFICATION Reference from the Commercial Taxes Department has been received regarding interpretation of the admissibility of subsidy (for new cement units having investment exceeding ₹ 400 crores and with a minimum regular employment of 200 persons) raised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (18) FD/Tax-Div/2001 dated 28.7.2003 (amended from time to time), the Government makes the following amendments in the Rajasthan Investment Promotion Scheme, 2003 (hereinafter referred to as the Scheme ); namely: - AMENDMENTS (i) In sub-clause (iii) of clause 7 of the Scheme after the existing provisos, the following proviso shall be added, namely:- Provided further that the investment made or committed before 22.05.2008 or under MOU signed during Resurgent Rajasthan Summit for both new cement unit or under expansion, having capacity more than 20 tons per day, shall be eligible for subsidy under this clause on the condition that such unit shall start commercial production by 31.03.2011. (ii) In clause 8 of the Scheme after the existing provisos, the following proviso shall be added, namely: - Provided further that the investment made or committed before 22.05.2008 or under MOU signed during Resurgent Rajasthan Summit for both new cement unit or under expansion, having capacity more than 200 tons per day, shall be eligible for exemption under this clause on the condition that such unit shall start commercial production by 31.03.2011. By Order Sd/- (S.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the SLSC pertaining to the same Applicant Company which have sought to obtain benefits under the provisions of Clause 7 (vi) and (vii) of RIPS 2003, which lasted for a mere five months. 58. I hereby accept both the revision applications dated 18.7.08 submitted by the Commissioner, Commercial Taxes seeking revision of the decision of the SLSC dated 29.7.06 and 27.6.07. These decisions are hereby quashed and the SLSC is directed to consider these two cases afresh and issue new eligibility certificates to the extent that only the original dispensation as provided under Clause 7, and existing prior to the amendment made on 2.12.05, shall continue to be enjoyed by the Applicant Company. The Assessing Authority shall make a reassessment of the tax liability of the Applicant Company as mentioned above and take necessary steps to recover tax in excess of its eligibility in terms of the new eligibility certificates to be issued by the SLSC. Pronounced on 31.3.09. Sd/- C.K. Mathew Principal Secretary, Finance Government of Rajasthan 62. Upon consideration of the facts and pleadings, it emerges that the order of Principal Secretary, Finance, Government of Rajasthan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon it. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel that the promisee acting in reliance of the promise, should suffer any detriment. The only thing necessary is that the promisee should have altered his position in reliance of the promise. 67. In the light of the aforesaid mentioning of doctrine of promissory estoppel, first of all, it is necessary to observe that respondent company expressly not pressed the prayer to quash the order/notification dated 28.4.2006 whereby the clause 7(vi) and (vii) was completely deleted from RIPS, 2003. Meaning thereby, the prayer to quash the said deletion was waived by the respondent company, therefore, on this ground, the respondent company was not entitled for any relief on the principle of promissory estoppel. However, upon examination of finding of the learned Single Judge based upon principle of promissory estoppel it emerges that learned Single Judge relied upon the fact that SLSC issued entitlement certificates on 29.7.2006 and 27.6.2007, much after the date of deletion of clause 7(vi) and (vii), whereby SLSC being the prescribed authority under RIPS, 2003 provided in sub-clause (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fund Act, 1952, which confer the benefit of infancy protection of a new industrial undertaking for a period of five years. Section 16(1)(d) was omitted w.e.f. 22.9.1997, at that time, Srinivasa Jute Twine Mills had availed of infancy protection for only two years. The PF authorities sought to contend that as Section 16(1) (d) was no longer in the statute book, it was not permissible for Srinivasa Jute Twine Mills, to claim the benefit of infancy protection for the balance period of three years. In aforesaid case, the Hon'ble Supreme Court rejected the contention and held that vested right to infancy protection for five years had come into existence when Section 16(1)(d) was on the statute book and that vested right continued even after the omission or deletion of Section 16(1)(d), but in this case, according to the appellant-State subsidy cannot be claimed as a matter of right. Subsidy is an incentive provided by the State Government and the Hon'ble Supreme Court in number of judgments held that subsidy cannot be claimed as a matter of right. In addition to aforesaid judgment, the petitioner-respondent Shree Cement Company Ltd. claimed its right in view of the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e units fall within the scheme were entitled to claim subsidy upto the percentage provided initially, but here in this case, the subsidy was enhanced in one point of time vide amendment in the RIPS Scheme, 2003 vide notification dated 2.12.2005, but same was deleted vide notification dated 28.4.2006, but respondent company has claimed subsidy as a matter of right knowingly well that the provision of subsidy upto 75% is not in existence. It is admitted fact of the case that both the meetings of SLSC were not conducted prior to 28.4.2006 when the amendment made in the scheme on 2.12.2005 remained in currency upto 28.4.2006. All the judgments upon which the respondent Shree Cement Company Ltd. is claiming its right on the ground of promissory estoppel and vested right on the ground that SLSC in which the officers of the Finance Department were the member and those officers were having knowledge that amendment made on 2.12.2005 has already been deleted on 28.4.2006, in spite of that, they issued entitlement certificate granting subsidy upto 75% for seven years. 74. To consider the argument of promissory estoppel and vested right, we have perused all the documents and find that in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. More so, it is a concept fashioned by courts, for judicial review of an administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. 78. In the present case, the respondent company has claimed its right to get subsidy on the basis of entitlement certificate issued by the SLSC on 29.7.2006 and 27.6.2007. Undisputedly, the day on which, the prayer of the respondent company was considered by the SLSC, the order/notification dated 28.4.2006 whereby clause 7(vi) and (vii) of RIPS, 2003 was completely deleted, therefore, no provision was in existence in the RIPS, 2003 for grant of 75% subsidy. 79. The appellant State specifically pleaded before the learned Single Judge as well as in this appeal that on 1.4.2006, the Rajasthan Value Added Tax (VAT) came into force whereby the rate of VAT on cement was reduced from 28% to 12.5%, therefore, as a consequence of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 and 27.6.2007, we have considered the legal proposition of vested right . 82. The vested right is a right belonging completely and unconditionally to a person as a property interest which cannot be impaired or taken away (as through retroactive legislation) without the consent of the owner. 83. Admittedly, for industrial development, the State Government framed scheme known as RIPS, 2003 in which for industrial development, subsidy was allowed upto 50% to the new units established in the State of Rajasthan. It is true that number of representations and prayers were made by the respondent company to the State Government for enhancement of subsidy upto 75%. It is also true that certain documents are filed alongwith the writ petition, so also, it is argued by learned Senior Counsel Sh. S. Ganesh that at the floor of assembly, it was expressed by the Hon'ble Chief Minister for granting such subsidy upto 75%, but there is no documentary evidence on record to prove the fact that any assurance was given in writing by the State Government to the respondent company. The respondent company after filing representations and upon some statement of Hon'ble Chief Minister on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance deserves to be quashed. D. Whether the ground raised by the respondent company with regard to doctrine of contemporanea expositio will apply in this case or not? 87. To consider the aforesaid question, first of all, we are required to understand what is contemporanea expositio . The contemporanea expositio is a guide for interpretation of documents or statutes. It is one of the important external aids for interpretation. However, great care is required to be taken in its application. When a document was executed between two parties, their intention can be known by their conduct at the time and after the execution of the instrument. Where the words of the deed are ambiguous, the court may call in the acts done under it as a clue to the intention of the parties. Their acts are the result of usages and practices in the society. Therefore their acts are useful as an external aid to interpretation of the deed. This principle may also be applied in case of statutes. 88. Here in this case, the learned counsel for the respondent company raised the ground that amendment dated 2.12.2005 whereby new cement unit having investment exceeding ₹ 400 crores with a minimum re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their favour. 92. All the judgments cited by the learned counsel for the petitioner-respondent Shree Cement Company Ltd. to support the finding given by the learned Single Judge are for the purpose of interpretation of law but upon the facts of present case neither petitioner-respondent Shree Cement Company Ltd. fulfilled eligibility conditions mentioned in the RIPS, 2003 for the purpose of granting 75% subsidy nor at the time of giving entitlement certificate by the SLSC, the provision was in existence. 93. In view of the above, we are of the firmed opinion that contemporanea expositio will not apply in this case. E. Whether the order passed by the Principal Secretary, Finance exercising revision petition can be interfered in the writ of certiorari field by the respondent-company? 94. Admittedly, the respondent company preferred writ of certiorari before this Court to challenge the order dated 31.3.2009 passed by the Principal Secretary, Finance while exercising revisional jurisdiction, so also, amendment made in RIPS, 2003 vide notification dated 28.4.2006 whereby clause 7(vi) and (vii) were deleted, but during the course of argument, the respondent company di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, in our opinion, Principal Secretary, Finance has rightly exercised its power to entertain the revision petition. It is also required to be observed that the order of revisional authority is well worded order while considering all aspects of the matter and considering the most important aspect of the case that SLSC granted benefit of subsidy upto 75% under the provision which was not in existence. Therefore, apparently, no error was committed by the Principal Secretary of Finance Department, Government of Rajasthan while allowing the revision petition. There was no reason to interfere with the order of revision dated 31.3.2009 whereby two revision petitions filed by the Commercial Taxation Department, Government of Rajasthan were allowed and the entitlement certificates dated 29.7.2006 and 27.6.2007 issued by the SLSC were quashed. 97. It is settled principle of law that in public interest the State Government can provide incentive to the industrial sector to develop industrial growth but at the same time, it has to be considered by the State Government that benefit should not be granted contrary to public interest. Here in this case, the decision of the State to del ..... X X X X Extracts X X X X X X X X Extracts X X X X
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