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Judgment
Arindam Sinha, J
Mr. Mishra, learned senior advocate appears on behalf of petitioners and submits, his clients are claiming benefit of incentives under Industrial Policy of Orissa (IPR), 1996. He draws attention to clauses 23.1 and 23.2 in the policy. He submits, claim has to be made by application. There must be determination of date of commercial production for the claim to be made.
With reference to production certificate dated 16th May, 2007 issued by Director of Industries, Orissa, Mr. Mishra submits, his clients’ credential for applying was thereby had. He then refers to annexure 7 in the writ petition. He submits, by letter dated 19th May, 2007 his client had duly applied. The certificate not having been granted, his client is before Court seeking interference.
Mr. Nanda, learned advocate, Additional Government Advocate appears on behalf of State and draws attention to clause 8.5 in the policy. He submits, petitioners have not been able to provide evidence of commissioning captive power plant. Mr. Mishra in reply once again draws attention to clause 23.2 and clause 8.3 in the policy, in that order. Mr. Nanda submits, the Government has framed guidelines, including format in which application has to be made. It was not complied with by petitioners.
We reproduce below clauses 8.3, 8.5, 23.1 and 23.2 from the policy.
“8.3. New industrial units with contract demand between 5,000 KVA and 10.000 KVA will be exempted from payment of 25 percent of electricity duty payable for a period of 5 years from the date of power supply if these are set up in Zone – A, 15 percent in Zone – B and 10 percent in Zone – C. Explanation:
Date of power supply means the date of power supply by the Orissa State Electricity Board for commercial production. In cases where power for construction and power for production are separately taken, the date of power supply shall be arrived on the basis of power for commercial production.
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8.5. Captive Power Plants in respect of which fixed capital investment has commenced after the effective date will be entitled to exemption from Electricity duty payable, for a period of five years from the date of commissioning of the plant. Provided that no such exemption from payment of electricity duty will be available in respect of quantum of power sold/supplied to users other than the industrial unit(s) to which such power plant is Captive.
xxx xxx xxx
23.1. CLAIM FOR INCENTIVES.
No right or claim for any incentive under this policy shall be deemed to have been conferred merely on the ground of provision in this policy. The State government may issue operational guidelines / instructions for administration of incentives contained in this policy. An industrial unit which considers itself eligible for any incentive, shall apply for the same in accordance with the operational guidelines / instructions and the same shall be considered and disposed off on merit.
23.2. DETERMINATION OF DATE OF COMMERCIAL PRODUCTION.
The date of commercial production for availing of incentives on sale tax or for any other incentive, shall be the date determined by the General Manager / Project Manager. District Industries Centres for Small Scale Industrial Units and Director of Industries for medium and large industrial units, basing on the totality of documentary evidence and recommendation of promotional / financial agencies, if any.”
(emphasis supplied)
The Director of Industries (opposite party no.4) issued said production certificate dated 16th May, 2007. Date of commercial production was stated to be 16th April, 2000. Petitioners say, thereafter they applied for the incentive. Their application is dated 19th May, 2007 introduced in paragraph 30 of the writ petition, copy of the application being annexure-7. We reproduce below paragraph 16 from counter filed by opposite party nos.1 and 4.
“16. That, in reply to the averments made in Paragraph-30 of the Writ Petition, it is submitted that the application of the Petitioner towards grant of incentive certificate does not contain the required documents as per the prescribed application format (Annexure-D/4). Hence, additional documents were required to examine the proposal for needful action.”
(emphasis supplied)
State’s contention is, the application was not made in prescribed form. On query made Mr. Mishra points out, in sub-paragraph-(j) under paragraph-4 of his client’s rejoinder his client had asserted that once again on 12th July, 2022 they had approached the Director of Industries with documents for grant of incentive certificate in terms of the policy.
It appears to us, application has to be made by an industry for availing incentives under the policy. Date of commercial production is a fact necessary for ascertaining eligibility of the applicant. Petitioners have date of commercial production certified by the Director of Industries on said certificate dated 16th May, 2007. We have ascertained date of production is 16th April, 2000 as mentioned in the certificate.
Clause 8.3 in the policy carries an explanation. The explanation is, date of power supply is the date of power supply by Orissa State Electricity Board for commercial production. Commercial production can only happen on commencement of commercial production as from a date. Petitioners already have that certified.
Clause 8.5 has been relied upon by State to submit, date of commissioning has not been furnished. We have not been able to find from the counter there is allegation that date of commercial production certified in respect of petitioners is production at a plant other than in respect of which the incentive is sought. As such, date of commissioning mentioned in clause 8.5 must necessarily relate to date of commercial production certified in respect of applicant industry.
At this stage Mr. Nanda submits, the guidelines also provides for application to be made within time prescribed. It was not done. This contention we do not find as pleaded in the counter. What we do find is as aforesaid, the Director of Industries issued said certificate dated 16th May, 2007 and petitioners applied soon thereafter on 19th May, 2007. Mr. Nanda submits further, petitioners are unscrupulous in wrongfully seeking to obtain incentives. The incentives are to be made available to bonafide industries. Petitioners have speculated in purportedly setting up industry and thereafter dealing with it to third parties. Recovery proceedings are pending against them.
We refuse to be drawn into allegations made by State against petitioners as they do not form subject matter of the writ petition. In view of aforesaid, we direct opposite party no.4 to issue requisition on omission by petitioners to produce documents referred to in the prescribed form disclosed by annexure-D/4 in the counter filed by, inter alia, the Director. This is to be done within four weeks of communication of this judgment, failing which the application for incentive must be dealt with either by allowing it or rejecting it on some other ground. On the requisition issued in compliance, petitioners must forthwith produce documents within two weeks on receipt of it. On contingency of issuance of requisition and answer thereto by petitioners, opposite party no.4 must deal with the application within four weeks from date of communication of answer to the requisition.
The writ petition is disposed of.
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