(1.) The present LPA is filed by the appellants Messrs Dhrangadhra Chemicals Works Ltd. with one Mr.Pramodkumar Jain, Managing Director, through Mr.Sunilkumar J.Singh, AGM (HR) and shareholder of Messrs Dhrangadhra Chemicals Works Ltd. being aggrieved by judgment and order dated 22.10.2013 passed by the learned Single Judge in SCA No.2202 of 2003, whereby the learned Single Judge was pleased to dismiss the petition, discharge Rule and pass an order of vacating interim relief, if any, with no order as to costs.
(2.) Heard learned Senior Advocate Mr.Mihir Joshi with learned Advocate Mr.Paresh M.Dave for the appellants-original petitioners and learned AGP Mr.Rindani for the respondent-State.
At the request of the learned Senior Advocate for the appellants, the appeal is taken up for final hearing.
(3.) Learned Senior Advocate for the appellants submitted that the appellants-original petitioners made an application under the relevant provisions of law, i.e. sub-clause (a) of clause-(vii) of sub-section (2) of Section 3 or sub-section (2-A) of Section the Bombay Electricity Duty Act asking for exemption from payment of electricity duty. This application was processed by the authorities and an order was passed on 23.03.1992. The order was passed by using the term, "..... are eligible for remission of electricity duty with effect from 31-8- 1991 to 30-8-2001.....".
3.1 Learned Senior Advocate for the appellants submitted that thereafter the appellants-original petitioners filed an application dated 22.09.2001 for extension of remission for a further period of 5 years, a copy of which is produced at Annexure-F, page No.57. Learned Senior Advocate for the appellants submitted that besides that, another application was also filed on 20.11.2001 seeking extension of exemption from payment of electricity duty, a copy of which is produced at Annexure-E, page No.56. Both these applications are rejected by communication dated 01.01.2002, a copy of which is produced at page No.66. Learned Senior Advocate for the appellants submitted that the ground for rejecting was that there is no notification issued for extension and therefore, no extension can be granted.
3.2 Learned Senior Advocate for the appellants invited attention of the Court to the relevant provision of law, which reads as under:-
"3. (2) Electricity duty shall not be leviable on the units of energy consumed............. (vii) for motive power and lighting in respect of premises used by an industrial undertaking for industrial purpose, until the expiry of the following period, that is to say"...........
(2-A) (b) Where an industrial undertaking by installing an additional generating set starts generation of additional energy either single or jointly with any other industrial undertaking for its own use or, as the case may be, for the use of industrial undertakings which are jointly generating additional energy at any time on or after the commencement date, electricity duty shall not be leviable on such units of additional energy so generated as are consumed for motive power and lighting in respect of premises used by the industrial undertaking for industrial purpose until the expiry of-
(i) fifteen years from the commencement date or the date of starting the generation of such additional energy whichever is later if such generation of additional energy is by back pressure turbine or if such generation of additional energy is obtained by cogeneration...."
3.3 Learned Senior Advocate for the appellants submitted that the facts of the case are not in dispute and so far as all other aspects of the matter are concerned, there is no controversy, viz. the appellant was generating power by back pressure turbine and it was entitled to exemption as aforesaid for a period of 15 years.
3.4 Learned Senior Advocate for the appellants submitted that the only thing which has gone against the appellants-original petitioners is that in order dated 23.03.1992, when the authorities used the term 'remission', the appellants-original petitioners did not take any objection on the use of the term 'remission of electricity duty'. Not only that, another objection which is taken in the present case is that in application dated 22.09.2001 the term used by the appellants-original petitioners was, 'remission' and therefore, it is entitled to get that benefit for a further period of 5 years, though initially benefit was granted for 10 years, though it was entitled for 15 years as set out in subclause (i) of Section (2-A), i.e. "fifteen years from the commencement date or the date of starting the generation of such additional energy whichever is later".
3.5 The stand of the respondents is that when the appellants-original petitioners applied for extension, the application was rejected by order dated 01.01.2002 on the ground that there is no provision notification for granting extension.
3.6 Learned Senior Advocate for the appellantsoriginal petitioners submitted that when order dated 01.01.2002 was challenged by filing the petition, an affidavit in reply was filed and there, it was contended that it is possible that the unit was not entitled to the benefit of exemption for a period of 15 years. This aspect is dealt with by the learned Single Judge in para- 11 of the judgment and order and has refused to believe the case of the respondents in this regard. The relevant part of para-11 reads as under:-
"11. Another facet of the argument is the eligibility of the petitioner company in view of the contentions raised. There is a specific contention that the petitioner is not entitled to claim the benefit as the date of starting the generation by the petitioner was way back on 1.1.1926. However, a close look at the provision would make it clear that it is not that the benefit could not be availed of if the date of generation of electricity is earlier.
In fact, as stated in the petition, after the programme for modernization the capacity was expanded which led to generation of electricity by back pressure turbine as well as cogeneration method and it is the date for claiming the exemption."
3.7 Learned Senior Advocate for the appellantsoriginal petitioners also invited attention of the Court to para-12 of the judgment and order, wherein the learned Single Judge has held in favour of the appellantsoriginal petitioners. Para-12 is reproduced for ready perusal:-
"12. Thus, it is clear that an industrial unit which generates energy of its own would be eligible for such benefit from the date of commencement of the Bombay Electricity Duty (Gujarat Amendment) Act, 1999, or the date of starting the generation of energy, whichever is later, meaning thereby, in order to get the benefit of the scheme or the duty it has to be considered with reference to either the date of generation or the date of the Amendment Act, whichever is later. Further, it would mean that after the Amendment Act has been brought into force, when the industrial undertaking starts generating such electricity for its own consumption after the commencement of this Act, it can claim the benefit from the date of generation of such energy in terms of this provision of the Act."
3.8 Learned Senior Advocate for the appellants- original petitioners submitted that it is thereafter that the learned Single Judge has dis-entitled the appellants from the benefit and the same is denied by setting out reasons for the said in para-14, which reads as under:-
"14. Therefore, in order to now get higher benefit for a further period of 5 years a contention is sought to be raised that instead of exemption, remission was ranted and therefore the arguments are advanced referring to the provisions of the Act. However, it is required to be scrutinized in the background of the fact that admittedly when the petitioner has claimed remission which has been granted and which has been enjoyed for the full period of 10 years, is it permissible for the petitioner now to change the stand that it was entitled for exemption which ought to have been granted, and not remission? Therefore, by such change of stand or playing with the words it cannot be a ground to claim the benefit which is otherwise not available. Had the petitioner raised this very contention at the relevant time when remission was granted, perhaps, it could have been examined and it could have been decided whether the petitioner would have been entitled for exemption or remission. Since no such contention has been raised till the expiry of the period of remission which has been enjoyed, it is too late now to permit such a contention to claim benefit for a further period of 5 years. If that is permissible, it would amount to allowing the petitioner to take undue advantage by shifting the stand. It is well-accepted that the benefit which is granted or available would be for a stipulated period as provided in the statute or notification and no further extension can be granted. It is in these circumstances when the petitioner has made the submissions at length, the petition deserves to be dismissed only on such count that the petitioner cannot be permitted to claim such benefit."
3.9 Learned Senior Advocate for the appellants submitted that the learned Single Judge has erred in recording that, "..... admittedly when the petitioner has claimed remission which has been granted and which has been enjoyed for the full period of 10 years, is it permissible for the petitioner now to change the stand that it was entitled for exemption which ought to have been granted, and not remission?....." In this regard, learned Senior Advocate for the appellants invited attention of the Court to page No.47 application under which the appellants had applied for 'exemption' and not for 'remission' and therefore, it is not correct that the petitioner had claimed for remission.
3.10 Learned Senior Advocate for the appellants also submitted that what is important is that exemption from payment of electricity duty is a statutory right, conferred by the statute and if under the statute, the State is not entitled to levy electricity duty on an industry, the same cannot be levied only because there was, if at all, an error in mentioning the term 'remission' in place of term 'exemption'. Learned Senior Advocate for the appellants emphatically submitted that in the present case, in the application initially made (page No.47), the term used was 'exemption'. It is right that when order came to be passed on 23.03.1992, the term used was 'remission' and that was not taken note of by the industry and did not take necessary steps to get the said mistake rectified, but that inaction on the part of the industry should not dis-entitle the industry from enjoying the statutory right which is conferred by statute which is not challenged in any manner.
3.11 Learned Senior Advocate for the appellants submitted that the adverse inference drawn by the learned Single Judge against the industry, only on account of the aforesaid inaction, is not maintainable and therefore, this appeal is required to be allowed to that extent and the authorities are required to be directed to grant exemption for a further period of 5 years, for which it was entitled to and which was not granted for the reasons best known to the authorities when passing order on 23.03.1992.
3.12 Learned Senior Advocate for the appellants reiterated that only on account of inaction in drawing attention of the authorities to an error committed in order dated 23.03.1992, the appellants-petitioners should not be deprived of their rights conferred by the statute.;