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TMI Blog2022 (12) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver of electricity subsidy in terms of the Scheme. 2. APOT 59 of 2021 is at the instance of West Bengal Industrial Development Corporation (respondent in the writ petition) and APO 68 of 2021 is at the instance of the writ petitioner, Sova Solar Limited. 3. The writ petitioner had filed the petition with the plea that it was engaged in manufacturing of 'Solar Photovoltaic Crystalline module' having unit at district Burdwan with the fixed capital investment of Rs. 1038.37 lakhs. The writ petitioner claimed that its unit falls under 'Scale 1' and 'Area B' of the West Bengal State Support for Industry Scheme - 2008. The writ petitioner had claimed that Fix Capital Investment Subsidy to the tune of 12 % on units fixed capital investment in terms of clause 9.1 of the Scheme. It also claimed interest subsidy to the extent of 25 % of annual interest liability on the term loan borrowed for implementation of project for a period of 5 years under clause 9.2 of the Scheme. The petitioner further claimed waiver electricity duty for a period of 5 years from the date of commencement of commercial production under clause 9.3 of the Scheme. According to the petitioner, concerned authorities h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of incentive of waiver of electricity duty. 4. Since the claim of the petitioner was not decided, therefore, the petitioner had earlier filed W.P. No. 460 of 2018 which was disposed of by order dated 18th of February, 2019 directing the concerned respondent to decide the issue of entitlement of petitioner under the WBSSIS - 2008. Thereafter, by the order dated 26th of March, 2019, the claim of the petitioner was rejected. Hence, the petitioners had filed WPO No. 437 of 2019 which has been disposed of by the learned Single Judge by the order under appeal. 5. Submission of learned Advocate General appearing for the State is that the writ petitioner is not entitled to interest subsidy as he does not fulfill the conditions prescribed in clause 9.2 in as much as the interest was not paid in full and on due dates. He has further submitted that there is no certificate by WBIDC certifying that interest was paid in full and on due date. On the contrary, the document on record indicates that there was default in payment of interest on due date. He has further submitted that the conditions of Scheme are required to be strictly construed and in support of his submission he has relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: ""Authorized Agent" means the WBIDC, an agent specially authorized by the State Government, for operation of the WBSSIS-2008 (as amended upto 31.12.2010) in respect of large and medium scale industries" 9. Clause 3.5 of the Scheme defines Category of Industries in Scale 1 as under: "Scale-1: Fixed Capital Investment of Rs. 5 Cr and up to Rs. 50 Cr." 10. Clause 3.11 of the Scheme defines Financial Institution as under: ""Financial Institution" hereinafter referred to as FI shall mean the "State Financial Institutions" and include Commercial Banks, Nationalized Banks and Financial Institutions constituted under the Acts of Parliament" 11. Clause 4 of the Scheme relates to applicability of the Scheme. Clause 8 relates to classification of area and district Burdwan falls under Group B. 12. Clause 9 relating to eligible incentives for Investment Scheme under Scale-1, relevant for the present controversy, provides as under: "9. Eligible Incentives for Investment Under Scale-1: 9.1. Fixed Capital Investment Subsidy (FCIS): An eligible unit with investment under scale 1 will be entitled to the FCIS as per the standard set below, Incentive Area/Group Percentage of subsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsidy due for the respective year, Interest Subsidy, Employment Generation Subsidy, EIPA and CIPA will be credited to the account of the eligible unit towards advance payment of Vat as and when such claims are preferred and admitted. 16.2. An eligible unit, however, will not be entitled to any of the aforesaid benefits in respect of goods sold by it which was not manufactured in the said unit. 16.3. Such payments would be continued for the period outlined in this scheme or till the financial cap is reached, whichever ends earlier, and the period shall not be extended further even if any balance entitlement remains at the credit of the unit at the time of expiry of the period as above. 16.4. On commencement of commercial production the unit will have to submit application to the Managing Director, WBIDC in the prescribed form praying for release of incentives. 16.5. The unit will also have to apply to the Commissioner, Commercial Taxed, West Bengal in the form shown at Annexure - V requesting him to certify the total amount of VAT paid during the year in respect of which the application has been made. Such application should be filed at the close each year. 16.6. Upon rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly the amount of VAT paid in respect of sales made by the unit to which it is entitled to enjoy refund under the WBSSIS-2008 (as amended up to 31.12.2010). If possible, the unit shall maintain separate accounts for which IPA and other incentives would be claimed. 16.13. For the purpose of receiving application from and issuing certificate to the industrial units as to the vat paid by them, the 'Commissioner of Commercial Taxes, West Bengal' shall also include the heads of the regional offices located in different parts of the state outside Kolkata as are duly and specifically authorized by the Commissioner and Commercial taxes, West Bengal for this purpose." 14. Since the matter relates to the entitlement of the writ petitioner to claim the subsidies under the Scheme, therefore, before examining various eligibility conditions, it would be more appropriate to take into account the legal position in respect of construction of such eligibility conditions in an incentive scheme. Hon'ble Supreme Court in the matter of Commissioner of Customs (Imports), Mumbai vs. Tullow India Operations Ltd. reported in (2005) 13 SCC 789, while considering the issue of construction of exemption n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpreting the notification which may give it some meaning other than what is clearly and plainly flowing from it. * * * 31. The preamble to the notification in this case states that "whereas the Governor is of opinion that industrial unit is manufacturing certain goods in West Bengal which are in need of financial assistance and accordingly it is necessary to formulate a scheme of industrial promotion to assist such unit for the purposes mentioned hereinabove". Clearly, the purpose of this notification is to promote industrial activity and development in the State of West Bengal. However, as is clear from the discussed cases, it is a necessary precondition that first the assessee should fall within the clear wording of the notification. The assessee in this matter falls outside the parameters of this notification, since his investment is over Rs. 5 lakhs, therefore, there is no question of the notification applying to him. Thus, there is no requirement of liberal construction as the notification does not apply to the assessee in the first place." 16. In the matter of State of Jharkhand and Others vs. La Opala R.G. Limited reported in (2014) 15 SCC 136, considering the similar i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction."" 17. In this regard, learned Advocate General has also relied upon the judgment of the Hon'ble Supreme Court in the matter of Director General of Foreign Trade and Another vs. Kanak Exports and Another reported in (2016) 2 SCC 226. 18. We are conscious of the fact that the aforesaid judgments have been rendered by the Hon'ble Supreme Court considering the statutory notifications relating to tax exemption whereas the notification in question concerning WBSSIS - 2008 is not a statutory notification but the broad principles stated by the Hon'ble Supreme Court will be attracted in respect of the present notification also. 19. The above judgments make it clear that the concession notification should be strictly construed to ascertain whether the subject falls in the notification or in the exemption clause, but once the subject is found to be eligible, then liberal interpretation is to given for extending the benefit. It is also settled that while determining the entitlement, the purpose of the scheme or notification should not be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Director of Industries, Government of West Bengal, the receipt of the certificate from Commissioner, Commercial Tax Department, West Bengal to the effect that the unit had not defaulted in the matter of payment of VAT dues, was duly admitted. Hence, we find that the writ petitioner fulfills all the conditions for grant of fixed capital investment subsidy. The denial of fixed capital investment subsidy on the ground that it will lead to granting of double benefit to the petitioner, cannot be sustained, as under the Scheme of subsidy, WBIDC was acting in two different and separate capacities as 'Authorized Agent' and as 'Financial Institution'. Hence, we find no error in the order of the learned Single Judge in allowing the prayer for grant of fixed capital investment subsidy. 25. So far as the claim for internet subsidy is concerned, the writ petitioner fulfils the eligibility conditions which are specified in clause 9.2.1 of the Scheme. 26. Learned Single Judge has duly considered the above clauses. The finding of learned Single Judge that the writ petitioner had last paid interest up to 31st of August, 2011 is based upon the loan related information issued by respondent no. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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