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TMI Blog2023 (3) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... , being an arm of the State has conferred with and consulted the appropriate departments of the Government and this inter- departmental discretion has resulted in the issuance of the Eligibility Certificate imposing a cap on the period of benefit. The respondents have also established clearly that there has been application of mind to the request of the petitioner as well as to various other aspects of the project including the exemptions - there is nothing perverse in the procedure that has been followed or on the restriction imposed. The petitioner cannot dictate any aspect of the benefit that it seeks and it is a matter of negotiation between the petitioner and the respondents as to the kind of aid that it receives. No doubt, it is always within its discretion to seek a particular benefit and in this case, the petitioner has sought the benefit of 10 years, which has been rejected. The policy and consequential the Government Orders issued reveal that there are several considerations to be taken into account by the State in curating an incentive/aid package to an applicant. In the present case, the fact that the petitioner has failed to achieve the requisite production for 13 year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on power purchased from TNEB or generated and consumed captively was extended for all manufacturing units based on employment and investment in eligible fixed assets made within three years. 4. That apart, both new and expansion units were granted electricity tax exemption for five years from date of commercial production. In addition, manufacturing units located within SIPCOT industrial park or SEZ were to be provided an additional 50% capital subsidy over and above eligible limits. 5. An exemption from stamp duty was provided in certain enumerated circumstances, and where the new manufacturing units had set up dedicated Effluent Treatment Plants (ETP) or Hazardous Waste Treatment Storage and Disposal Facilities (HWTSDF), they were granted a special subsidy for this purpose. 6. Special and specific incentives were also extended, sector-wise. This is only to say that the policy covered investment promotion, manufacturing and infrastructure sectors and envisaged different means, measures and methodologies to incentivise and encourage economic activity in the State. 7. One notices differences and an individualistic approach in the manner in which the incentives have been propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in eligible fixed assets of less than Rs.250 crores in a period of 3 years from the date of sanction order, Memorandum of Understanding or any other date to be fixed by Government (investment period), will be given a soft loan equivalent to the net output VAT + CST paid to the Government, in the following manner:- Sl. No . Investment within 3 years Soft loan given would be equal to VAT paid in the 1 Rs.50 crores - Rs.100 crores First 3 years from commencement of commercial production 2 Rs.100 crores - Rs.200 crores First 4 years from commencement of commercial production 3 Rs.200 crores - Rs.250 crores First 5 years from commencement of commercial production Expansion projects will mean those projects, which create net additional capacity in the State through the projects located in Southern Districts. The package will be available only for significant capacity addition. The soft loan given in the first year will be permitted to be repaid in full along with a nominal interest of 0.1% per annum in the month of April in the 8th Financial year; the soft loan given in the second year will be permitted to be repaid in full along with a nominal interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting various benefits upon compliance with the conditions therein. 11. The eligible investment and period of investment was quantified as follows: a) Investment Investment in Green Field Cement Plant at Karikali Village, Dindigul District amounting to 520 crores and a sum of Rs.52 crores (out of Rs.160 crores investment in captive power plant) being 10% of the investment in Eligible Fixed Assets of Rs.520 crores, (i.e 572 crores Rs.520+52 crores) will be taken as eligible investment for sanctioning of structured package of Assistance to M/s.Chettinad Cement Corporation Limited. b) Investment Period Since the proposal for expansion of Karikali Plant was given on 04.06.2009, the investment period for this plant will be three years from 1st July 2009 and end on 30.06.2012. 12. The State offers incentives by way of two modus operandi, one a soft loan based upon the production and the second, by way of a refund of sales tax/VAT paid. The investment period was set out as three years from 01.07.2009 to 30.06.2012 and the manner in which the quantification of subsidy was to be effected is per the second method, set out in clause (c), reading thus: c) Investment promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Karur. On an application made by that unit, G.O.Ms.No.65 dated 01.03.2011 was issued. Aside from various stipulations, conditions and benefits set out, the investment promotion subsidy was itself granted for a period of 10 years from date of commercial production subject to a ceiling of 50% of the eligible investment as defined in that Government Order. The unit in Puliyur opted for the soft loan method for incentive. 15. The petitioner proceeded to set up a unit and has, admittedly, commenced commercial production on 29.09.2010. Also admittedly, there has been, till date, notwithstanding the elapse of 13 years from date of first commercial production, no application from the petitioner seeking refund of VAT paid. Evidently, this is for the reason that the petitioner has, admittedly, been unable to achieve any production above the base production volume of 65 lakhs MT fixed under the impugned eligibility certificate. This failure has a relevance which I will elaborate shortly. 16. While this is so, Eligibility Certificate dated 31.12.2015 has been issued by SIPCOT substantially along the lines of G.O.No.150 of 2010 dated 28.10.2010 save for a condition that the petitioner will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as on date, leaving one to suspect that that is perhaps the reason why the primary argument was at all being advanced. 21. The submission of Mr. Ramanlal, learned Additional Advocate General assisted by Mr.B.Vijay, learned Additional Government Pleader for the State/R1 and Mr.Silambanan, learned Additional Advocate General assisted by Mr.V.S.Rajaram, learned counsel for SIPCOT/R2 is that the 2007 Industrial Policy is a document that sets out the aims, intentions and objects of the State in regard to the economic benefits that it proposes to grant to eligible units in certain identified and specified sectors upon their complying with prescribed conditions. The details of the packages are not set out therein and in fact the policy is itself clear in stating that the packages shall be customised to suit a unit once an application is found eligible. 22. They also admit that the Government Orders do not contain any stipulation in regard to time, but would brush that aside as being unnecessary as the orders have been issued generally, in the spirit of the corresponding policy. The Industrial Policy sets out the intention of the State to offer incentives and subsidy/aid packages to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crafted taking note of the specifics of the petitioner's case. Being a matter of policy, and one that empowers the respondents to customise the same, including the duration thereof, no fault can be attributed to the time limit fixed. 29. They also point out that it is the petitioner that had itself, sought a ten year minimum period for the benefit. Though that period was not accepted under the impugned order, even that period has worked itself out as on date. Thus, even if the respondents had granted the period as per the request of the petitioner, nothing would have turned on that as of now, as the issue is merely academic. 30. The State has filed a compilation dated Nil, filed on 06.12.2022 containing letter dated 10.08.2015, which is an internal communication between the Additional Secretary to Government, Industries Department and the Managing Director of the SIPCOT. The letter is issued in response to a query from SIPCOT dated 20.02.2015 in regard to the application filed by the petitioner for subsidy. 31. While referring to G.O.Ms.No.150 dated 28.10.2010, SIPCOT has listed out various clauses of the proposed eligibility certificate and had sought clarification on some asp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the realm of judicial review, unless the applicants were to establish conclusively and unambiguously that the decision taken, and the customisation offered, is perverse. In the present case, the petitioner has utterly failed to do so. 36. The last ditch of argument is that it would be impossible for it to ever achieve a production of 65 lakhs MT and thus the question of exceeding that capacity will simply not arise. However, the petitioner has not challenged the fixation of base volume and the entirety of the thrust of its challenge is only as against the fixation of time limit. 37. The fixation of base volume has itself been done in line with the policy which stipulates that there shall be a comparison of the production volume proposed to be achieved by the new unit as compared with the actual production volume of all units combined of that applicant in the State of Tamil Nadu, and the higher of the two, be adopted. 38. In this case, the anticipated production of the new unit is 3352687 MT, being and the existing capacity of its units in the State of Tamil Nadu is 65 lakhs MT. The higher of the two figures being 65 lakhs MT, there is nothing erroneous in adopting that ..... 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