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TMI Blog2022 (5) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... are not starved of power and, further, if CPPs are encouraged and established by private sector, State resources towards supply of power can be utilized to supply power to other sectors/industrial units which could not establish CPPs. It is with the said avowed objective, it was clearly stipulated in the Policy that power generated from such CPPs would be exempted from payment of electricity duty for a period of 10 years from the date of commercial production. It is an admitted fact that Petitioner has established 25 MW and 10 MW CPPs on 26.03.2002 and 15.11.2004 respectively, and, since the said CPPs were established before 31.03.2005, Respondent-State of Jharkhand extended the benefit of exemption from payment of electricity duty to said CPPs for a period of 10 years, which has already been availed by the petitioner - Even an additional ground of production of Certificate of Commercial Production from Director of Industries was taken by the Appellate Authority for denying the benefit of exemption. The main thrust of the arguments of the Respondent-State is upon Clause 29.2 of the Policy. However, from a bare reading of Clause 29.2, it would be evident that the incentive enu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elates to Assessment Year 2010-11, W.P.(T) No. 2157 of 2020 relates to Assessment Year 2011-12, W.P.(T) No. 2019 of 2020 relates to Assessment Year 2012-13 and W.P.(T) No. 2273 of 2020 relates to Assessment Year 2013-14. Common Appellate Order dated 20.01.2015 has been passed pertaining to the Assessment Years 2009-10, 2010-11 and 2011-12 and common Revisional Order has been passed by Commercial Taxes Tribunal also in respect of the aforementioned Assessment Years. With respect to the Assessment Years pertaining to 2012-13 and 2013-14, learned Commercial Taxes Tribunal and learned Appellate Court have passed respective separate orders. Challenge in the present writ applications relates to the orders passed by Commercial Taxes Tribunal which are all dated 29.01.2020 passed in Revision Petitions Nos. JR (ED) 106/2015, JR (ED)107/2015, JR(ED)108/15, JR(ED) 109/15 and JR (ED) 40/2017 for the periods 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14 respectively. 3. With the consent of the parties, Writ Petition bearing W.P.(T) No. 2018 of 2020 pertaining to the Assessment Year 2012-13 has been treated as the lead matter and since the facts in all the writ petitions are common and ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, inter alia, for issuance of follow-up notifications by all concerned departments and institutions to give effect to the provisions of the Policy within 30 days of declaration of the Policy and, accordingly, a follow-up notification bearing Notification No. S.O. 70 dated 17.07.2004 was issued by the Secretary, Department of Commercial Taxes and National Savings, wherein in exercise of powers under Section 9 of the Electricity Duty Act, 1948, exemption from payment of electricity duty for a period of 10 years in respect of captive power generation from CPPs which came into commercial production during the subsistence of Policy was notified. Since the industrial policy came into operation from 15.11.2000 and was initially valid up to 31.03.2005, in the aforesaid notification it was provided that exemption from payment of electricity duty would be granted to such captive power generation plants which came into commercial production between the period 15.11.2000 to 31.03.2005. 9. Petitioner further during the subsistence of the Policy of 2001 established a 10MW captive power generation plant which commenced commercial production on 15.11.2004. The said captive power generation pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. S.O. 70 dated 17.07.2004 petitioner was also required to furnish certificate evidencing date of commercial production issued by the Director of Industries which was also not produced by Petitioner and, hence, petitioner cannot be extended the benefit of exemption. Being aggrieved by the order passed by the Appellate Authority, petitioner preferred statutory Revision Application before the Commercial Taxes Tribunal. During the pendency of the Revision Application State of Jharkhand vide Notification No. S.O. 78 dated 26.03.2015 amended Notification S.O. No. 70 dated 17.07.2004 and validity period of the Notification was extended up to 31.03.2011. Accordingly, the Writ Petition filed by the petitioner before this Court being W.P.(T) No. 1155 of 2015 was disposed of by giving liberty to avail appropriate remedy. 14. It may be noted here that during pendency of Revision Application petitioner entered into a Business Transfer Agreement on 22.09.2018 with Tata Steel Limited , wherein decision was taken for sell and/or transfer the petitioner s steel business including an operative iron ore mines, a coal mine under development, CPPs and plant and machinery to Tata St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries on 27.09.2019 evidencing that 30 MW CPP of the petitioner was established and commenced commercial production with effect from 4th May, 2009. 18. Thus, during the pendency of the Revision Application before the Commercial Taxes Tribunal the twin conditions imposed by the State Authorities for availment of the benefit of exemption was duly fulfilled as the validity of Notification S.O. 70 dated 17.07.2004 was extended up to 31.03.2011 and even the petitioner produced the certificate of commercial production issued by Director of Industries evidencing the date of commercial production of 30 MW CPP. It is relevant to mention here that the State of Jharkhand neither before the Commercial Taxes Tribunal nor before this Hon ble Court disputed the factum of issuance of certificate of commercial production by the Director of Industries to the petitioner. 19. However, despite the fact that petitioner fulfilled the aforesaid twin conditions, Commercial Taxes Tribunal vide its impugned orders all dated 29.01.2020 dismissed the Revision Application of the petitioner. The learned Tribunal despite issuance of Notification dated 26.03.2015 by which the validity of earlier Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from payment of electricity duty in respect of its 30 MW CPP in terms of clause 15.2.2 of the Industrial Policy, 2001 and denial of such benefit to the petitioner is violative of the doctrine of promissory estoppel and legitimate expectation. The petitioner further while relying upon the decisions of Hon ble Apex Court in the case of Mohindhr Singh Gil Anr. v. Chief Election Commissioner, New Delhi Ors, reported in 1978 (1) SCC 405 and the decision of United Air Travel Services vs. Union of India reported in (2018) 8 SCC 141 have vehemently contended that Respondent-authorities cannot supplement fresh reasons in the shape of affidavit to otherwise validate the impugned orders. The learned Advocates have further argued that even if assuming that State-Respondents can supplement fresh reasons, then also, on merits the said reasons stated by the Respondent-State in its Counter Affidavit is not tenable both in facts and/or in law. 22. Mr. Kavin Gulati, Senior Advocate drew attention of this Court towards the provisions of the Industrial Policy, 2001 and has emphasized that under the Industrial Policy, 2001 various types of incentives were stipulated including incenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries was unwarranted, as the State of Jharkhand never disputed the aforesaid factum before the Tribunal. In fact, it was suggested by the learned Counsel for the Respondent that since the claim of exemption of the petitioner was rejected on the ground that S.O. 70 dated 17.07.2004 was only initially valid up to 31.03.2005 and further that Petitioner failed to produce the commercial production certificate by Director of Industries, and, since both the said grounds are now non-existent, the matter may be remanded to the Assessing Authority for passing order afresh in accordance with law and it would be left for the Assessing Authority to determine afresh whether benefit of exemption for 10MW and 30 MW CPPs would be available to the petitioner or not in terms of Industrial Policy, 2001. 24. Having heard learned counsel for the parties and after going through the documents available on record especially the industrial policy, only issue involved in the present batch of writ petitions is as to Whether petitioner is entitled for the benefit of exemption from payment of electricity duty for a period of ten years from the date of commercial production of its 30 MW Captive Power Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r power of industrial units. For setting up such power generation unit, no permission from SEB shall be required. The surplus power generated by such plant could also be purchased by the State Electricity Board on mutually agreed terms. The State Electricity Board shall allow wheeling and banking to such power plants. Large industrial unit/consortium of industrial enterprises in growth centers/industrial areas shall be allowed to set up power generating units as well as to take over distribution of power in such industrial complexes. Such captive power generation and purchase shall be provided exemption from electricity duty for a period of ten years from the date of commercial production. 28. A bare perusal of the aforesaid Clause would reveal as under:- (i) The Government was encouraging private sectors in setting up of Captive Power Generation Plants of any capacity to meet the existing as well as future demand for power of Industrial Unit. (ii) No permission from SEB was required for setting up Power Generating Units. (iii) Surplus Power could also be purchased by SEB. (iv) SEB was to allow wheeling and banking to such Power Plants. (v) Large Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2005 in the follow up Notification as, initially, the Policy was only valid up to 31.03.2005. However, the Policy was subsequently extended from time to time and was extended up to 31.03.2011 but validity of the Notification dated 17.07.2004 was not extended up to 31.03.2011 in terms of the Industrial Policy, which compelled the Petitioner to approach this Court by filing writ petition being W.P.(T) No. 1155 of 2015, and, it is only thereafter that Notification S.O. 70 dated 17.07.2004 was amended and the validity period was extended up to 31.03.2011 vide Notification No. 78 dated 26.03.2015. 32. It is an admitted fact that Petitioner has established 25 MW and 10 MW CPPs on 26.03.2002 and 15.11.2004 respectively, and, since the said CPPs were established before 31.03.2005, Respondent-State of Jharkhand extended the benefit of exemption from payment of electricity duty to said CPPs for a period of 10 years, which has already been availed by the petitioner. However, to the utter dismay of the petitioner, the petitioner was denied the benefit of exemption of 30 MW CPP having date of commercial production on 4th May, 2009 by the Assessing Officer and Appellate Authority on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutorily conferred by Section 3-A on the Government. And we have seen that the Statement of Objects and Reasons for introducing Section 3-A expressly states that the said section was introduced in order to fulfill one of the promises contained in the G.O. dated 11-7-1986. We find that the appellants, having relied on the said G.O. dated 11-7-1986, had, in fact, constructed a hotel building by 1991. It is clear, therefore, that the non-issuance of a notification under Section 3-A was an arbitrary act of the Government which must be remedied by application of the doctrine of promissory estoppel, as has been held by us hereinabove. The ministerial act of non-issue of the notification cannot possible stand in the way of the appellants getting relief under the said doctrine for it would be unconscionable on the part of the Government to get away without fulfilling its promise. It is also an admitted fact that no other consideration of overwhelming public interest exists in order that the Government be justified in resiling from its promise. The relief that must, therefore, be moulded on the facts of the present case is that for the period that Section 3-A was in force, no building tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from payment of electricity duty for a period of 10 years from the date of its commercial production. Merely because the State authorities delayed in issuance of the follow up Notifications, the Petitioner could not be deprived of its legitimate entitlement of exemption in respect of its 30 MW CPP. 36. In view of the above, we are of the firm opinion that both, the Assessing Authority and the Appellate Authority, have wrongly denied the benefit of exemption to the Petitioner in respect of its 30 MW CPP on the ground that validity of Notification SO 70 dated 17.07.2004 was not extended and, further, that the petitioner did not produce the Certificate of Commercial Production from Director of Industries despite the fact that there was no dispute that Petitioner s 30 MW CPP was established on 04.05.2009 i.e. during subsistence of the Industrial Policy-2001. 37. The learned Tribunal has further committed grave error in upholding the decision of the Assessing Authority and the Appellate Authority and declining the benefit of exemption to the petitioner. As already stated above, during pendency of the revision application before the Commercial Taxes Tribunal, validity of the No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of the Tribunal s decision in the case of Goranmal Hari Ram Ltd., the prices at which SCIL were disposing of the goods of SACI in the State of U.P. had been correctly taken as the normal price for determining the duty liability of SACI under Section 4 of the Act . 17. In this context, we may usefully refer to the judgment of this Court in the case of Reckitt Colman of India Ltd. v. CCE. This Court held that it is beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the appellants had never been required to meet. ... Emphasis Supplied. 40. The learned Tribunal further rendered perverse finding and wrongly held that benefit of Notification dated 26.03.2015, by which validity of the Notification SO 70 dated 17.07.2004 was extended up to 31.03.2011, would not be automatically applicable in the case of the petitioner. We see no justification and are unable to comprehend as to why benefit of exemption would not have been applicable to the petitioner especially when Respondent-State of Jharkhand itself extended the validity of the exemption notification up to 31.03.2011. Thus, the said fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to give prior intimation, and, since the petitioner failed to give prior intimation, benefit under the Industrial Policy would not be available to it. On the strength of the above, it has been argued that petitioner was not entitled to the benefit of 30 MW CPP, and even the benefit already granted to the petitioner in respect of its 10 MW CPP is required to be reviewed. 44. In order to effectively adjudicate the aforesaid arguments raised on behalf of Respondent, we feel it appropriate to quote relevant clauses of the Industrial Policy.- 29.0 FISCAL INCENTIVES 29.1 There is a dire need for the new born State of Jharkhand to accelerate industrialization in the back ground of lost opportunities and non realization of its industrial potential. 29.2 The types of incentives which are being offered are given below. Such incentives shall be admissible only once to a unit, which comes into commercial production during the period this policy remains effective : 1. Capital Investment Incentive 2. Captive Power Generating Subsidy 3. Interest Subsidy 4. Stamp Duty and Registration 5. Employment Generation Based Incentives 6. Special Ince ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is undertaken by these units or the highest production in 3 years immediately preceding the year in which such expansion/ diversification/ modernization commenced, whichever of the two is higher. In order to qualify for the sales tax and other incentives, a unit undertaking expansion/modernization/diversification should send prior intimation before undertaking expansion/modernization/diversification program to the concerned officers of Industries Department and Commercial Taxes Department. For Small Scale Industries, General Manager, District Industries Centre or the Managing Director of concerning Industrial Area Development Authority and Deputy Commissioner, Commercial Taxes is the competent Authority. In case of Large Medium Industries, the Director of Industries and Commissioner, Commercial Taxes is the competent-Authority. Such intimation should be accompanies by detailed expansion/ modernization/diversification proposal giving the specific period of proposed additional investment. 45. The main thrust of the arguments of the Respondent-State is upon Clause 29.2 of the Policy. However, from a bare reading of Clause 29.2, it would be evident that the incentive e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated each CPP as an individual and distinct unit, as distinct from the Industrial Unit. Moreover, Clause 15.2 itself provided that for setting up of CPPs no permission from SEB shall be required . In view of the above discussions, we reject the contention of the Respondents that Petitioner was not entitled for the benefit of exemption in respect of its 10 MW and 30 MW CPPs. 48. Accordingly, we hold and declare that petitioner is entitled to the benefit of exemption from payment of electricity duty under the Bihar Electricity Duty Act, 1948 in respect of its 30MW Captive Power Generation Plant having date of commercial production on 04.05.2009 in terms of the provisions contained under Clause 15.2.2 of the Jharkhand Industrial Policy-2001. Consequentially, we quash and set aside the orders all dated 29th January, 2020 passed by Commercial Taxes Tribunal, Jharkhand, Ranchi in Revision Petitions bearing Nos. JR (ED) 106/2015, JR (ED)107/2015, JR(ED)108/15, JR(ED) 109/15 and JR (ED) 40/2017 for the periods 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14 respectively. We remand the matter back to Respondent No.3-Deputy Commissioner of Commercial Taxes, Adityapur Circle, Jamshedpu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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