BALIA, J. - (1.) THESE two writ petitions arise out of a common order and hence are heard and decided together.
(2.) THE respondent in Writ Petition No. 3002 M/s Sankeshwar Metals and another established new Industrial Unit and commenced commercial production on 1. 1. 86 and respondent M/s Shri Suparshwa Tube in writ petition No. 3008/99 commenced commercial production of its new industrial unit on 1. 5. 1986. Both of them were entitled to certain concessions under the 1985 Dispensation under the Rajasthan Sales Tax Act, 1954. However, the State Government had introduced an Incentive Scheme known as Rajasthan Sales Tax Incentive Scheme 1987 on 23. 5. 87 which permitted new Industrial Units under 1985 Dispensation to opt for availing benefit of Incentive Scheme, 1987 provided they make their option known to the competent Authority within 60 days of the commencement of the scheme initially. THE period was extended to 150 days. However, both the units did not exercise their option within time allowed under the 1987 Scheme, but they applied to avail the benefit of Incentive Scheme 1987 on 28. 1. 88. Those applications were not entertained by the Dist. Level Screening Committee as the exercise of option was delayed and 1987 Scheme did not contain any provision empowering the Dist. Level Screening Committee to entertain the application beyond limitation. THEreafter with effect from 6. 07. 1989, Rajasthan Sales Tax (New) Incentive Scheme, 1989 was introduced. Clause 1 which describes operative field of the Scheme envisages that 1989 Scheme shall be deemed to have come into operation with effect from 5. 3. 1987 and shall remain in force until 12. 3. 97 which has been extended from time to time. In the first instance, the Dist. Level Screening Committee by its order dated 24. 5. 90 granted eligible certificate in favour of both the respondents under the new Incentive Scheme, 1989 by condoning the delay. However, by order dated 10. 6. 1992, the said eligibility certificate was cancelled by the Dist. Level Screening Committee without notice to the concerned dealers. That followed in filing of writ petitions No. 3530/92 and 3410/92 by the two dealers which came to be allowed by this Court on 29. 3. 93 and 20. 5. 93 respectively with a direction to DLSC to decide the question afresh after affording an opportunity of hearing to the dealers. The Distt. Level Committee after hearing the dealers in its meeting held on 17. 3. 1994 again decided to cancel the eligibility certificate as issued in favour of the two dealers and decision was again communicated on 6. 4. 94. Aggrieved with cancellation of their eligibility certificates, the respondents in each case filed separate writ petitions before this Court which stood transferred to the Rajasthan Taxation Tribunal on its constitution. The Rajasthan Taxation Tribunal by a common judgment which is under challenge in these writ petitions allowed the writ petitions, set aside the order cancelling eligibility certificate and upheld the grant of eligibility certificate under Sub-Clause C of Clause 1 of 1989 Scheme. Mr. Lodha has contended that in view of specific provision and Clause 1 (b) excluding new Industrial Unit covered by 1985 dispensation, the dealers were not entitled to benefit of availing eligibility certificate under 1989 Scheme and, therefore, the case of the respondents-dealers could not have been entertained by DLSC under the 1989 Scheme at all. There being no provision in 1987 scheme for condonation of delay in exercise of option and no power of reviewing the order of rejection passed under 1987 Scheme, the order of rejection in respect of respondents who fall within the purview of 1985 dispensation became final. Therefore, admittedly, the eligible certificate issued in favour of respondents in both the petitions was wholly without jurisdiction and has rightly been cancelled. The Tribunal, according to the learned counsel has erred in not appreciating this clear position.
(3.) MR. Eklavya Bhansali on the other hand has contended that the case of the dealers is governed by sub Clause (C) of Clause 1 which is not inhibited by exclusion of new unit covered under the 1985 dispensation. Both the clauses operate in different field and, therefore, there was no impediment before the Dist. Level Screening Committee to have considered the application of the two dealers in question which has been rejected under 1987 scheme solely on the ground of limitation. On the first flush the contention of Mr. Bhansali appears to be plausible but fails to sustain itself, on a close look at the Scheme in its entirety. It would be appropriate if the background of the relevant concessional scheme for the present purpose is noticed. Before commencement of the Incentive Scheme, 1987 and Sales Tax Deferment Scheme, 1987, the State of Rajasthan has vehicles interest free Sales Tax Loan Scheme under 1985 dispensation. The new Industrial units covered under 1985 dispensation prior to commencement of 1987 Scheme, incentive as well as deferment, were entitled for concession in the form of Interest free Sales Tax Loan. Under the Income scheme 1987 new industrial units which commence commercial production during the operative period of said scheme became entitled to avail the benefit of exemption from payment of tax on the sales made in the course of Interstate trade or commerce of the goods manufactured by them within the State. This Scheme was introduced vide notification dated 23. 5. 1987 and the originally was to remain in force upto 31. 3. 1992. This scheme was applicable to new industrial units which commenced commercial production on or after 5. 3. 1987, but prior to closure of the Scheme namely 31. 3. 1992 or the extended date. On 26th Sep. , 1987, Sales Tax Deferment Scheme 1987 was also introduced. Under this Scheme, the units availing the benefit thereunder were not exempted from payment of tax, but enabled them to defer the payment of tax chargeable on the sales made by them within the State of the goods manufactured by them within the State until expiry of the period prescribed under the scheme. Similar concessions were extended under the Central Sales Tax by separate notification. The provisions was made under the two schemes for permitting the new industries which have started commercial production on or after 1. 5. 85 and were entitled to Interest Free Sales Tax Loan Scheme under 1985 deferment Scheme to avail benefit of two schemes instead of availing benefit of concession under 1985 dispensation. The extension of this benefit was not automatic, but it was left with the concerned industrial unit which has started commercial production on or after 1. 4. 85 and was entitled for Interest Free Sales Tax Loan Scheme under 1985 Dispensation to opt for the benefit under the Incentive or Deferment Scheme 1987 as the case may be with a condition that it exercises its option within the time allowed under the Scheme. No provision was made for extending the period for exercise of option or for condoning the delay in making application for availing benefit required to be made in this Scheme. Thereafter during continuance of 1987 scheme, the Rajasthan Sales Tax New Incentive Scheme, 1989 was introduced vide notification dated 6. 7. 89 as well as Rajasthan Sales Tax Deferment Scheme, 1989 was introduced vide notification dated 6. 7. 89. It may be pertinent to notice that 1989 Scheme did not replace or substitute 1987 Scheme, but was allowed to run parallel along with 1987 Scheme and was made applicable with effect from 5. 3. 87, the date on which Rajasthan Sales Tax Incentive Scheme, 1987 became operative. The operative field of this 1989 Scheme which was to run parallel to 1987 Scheme gave option to industries which had commenced commercial production on or after 5. 3. 87 to switch over from the Concession under 1987 Scheme to 1989 Scheme on their option. However, from the operative field of 1989 Scheme, the Units which were covered under 1985 Dispensation which were entitled for availing the benefit of Interest Free Sales Tax Loan and were allowed to opt for benefit under 1987 Scheme, were deliberately kept out of the operative field of the 1989 scheme and benefits were confined either to avail interest free Sales Tax loan under 1985 Dispensation or incentive under Scheme of 1987. The relevant provisions of the Scheme of 1989 which invite attention are firstly Clause 3 which reads as under: "3 Applicability of the New Incentive Scheme The New Incentive Scheme will be applicable (1) to New Industrial Units (2) to industrial units going in for expansion or diversification and (3) to Sick units. " ;