BALIA, J. - (1.) THESE two revisions are against the common judgment passed by the Rajasthan Tax Board, Ajmer on 18. 12. 98 allowing the appeals filed by M/s. Binani Cement, a division of Binani Industries Ltd. , Binanigram, Pindwara, which relates to the extent of exemption from tax to which the respondent is entitled to avail under the Rajasthan New Sales Tax Incentive Scheme, 1989 under the Rajasthan Sales Tax Act as well as under the Central Sales Tax Act, 1954. Since two separate applications have been made in respect of grant of eligibility certificate to avail benefit under the notifications issued with reference to State Act as well as the Central Act, two proceedings have continued in that regard. However, the basic facts and issue remain the same.
(2.) THE respondent (hereinafter called, `the company') established a new cement unit within Panchayat Samiti, Pindwara which commenced commercial production in 1997. It engaged itself in the manufacture of cement, the total Fixed Capital Investment (FCI) in the new industrial unit claimed by the company was Rs. 53252. 87 Lakhs (Rs. 532. 52 crores) but only Rs. 5553. 72 Lakhs (Rs. 55. 53 crores) were accepted in the first instance as FCI eligible for availing the benefit under the New Incentive Scheme 1989. On that basis, the State Level Screening Committee certified the company entitled to avail exemption of tax to the extent of 25% of the tax imposable only by treating it be to a large scale industry. Though it has not given any reasons for confining the benefit to 25% apparently it refers to Item 1-E of Annexure-C appended to the Rajasthan New Sales Tax Incentive Scheme 1989. Aggrieved with the quantum accepted as fixed capital investment as well as the percentage of tax exemption specified in the order of SLSC, the company appealed before the Rajasthan Tax Board under the provisions of the said Scheme. Before the tax Board, it was contended by the revenue that as it is not the first cement unit within the Panchayat Samiti, Pindwara, it is not a prestigious unit falling under Item 4 to avail the benefit of tax exemption at the rate of 75% of the tax leviable and it otherwise remain a large scale unit having FCI over Rs. 5 crores, therefore is to be considered only a large scale unit governed by item 1e of the Annexure C. Under item 1e the determination of extent of exemption was rightly made by SLSC. This contention has not been accepted by the Board by pointing out that the definition of a prestigious unit lay down two alternative requirements to qualify a unit as a prestigious unit which are not required to be fulfilled cumulatively but as a substitute for each other. As the unit in question had invested more than Rs. 25 crores, and employs 336 workmen (more than required 250) it does not remain a condition that it must be the first unit of its kind in the Panchayat Samiti, to claim status of New Prestigious Unit and therefore as the unit falls within the definition of `a prestigious unit' it shall be governed by Item No. 4 making it entitled to avail benefit at 75% of the tax leviable to be imposed subject to other limits. The Tribunal has reasoned that since intention for extending benefit of Scheme to cement industry is manifest from deleting the name of cement industry from Annexure `b' to the Scheme vide notification dated 10. 12. 96 and insertion of Item 1e in Annexure `c' specifying the limits of exemption in case of cement industry in small, medium and large scale units, and excluding the benefit in the case of very prestigious units, the unit qualified for exemption as a prestigious unit. So far as the contention of the company about computation of eligible fixed capital investment, to quantify the maximum exemption limit which it could avail during the period of continuance of the eligibility certificate, the matter was remanded back to the State Level Screening Committee for deciding the question afresh in the light of observations made in the Board's order. That part of the order has not been challenged in these two revisions. However, learned counsel for the parties state that ultimately claim of the unit to FCI at Rs. 53252. 57 lakhs (Rs. 532. 52 crores) has been accepted by SLSC; which puts it in the category of a very prestigious unit because of its FCI is more than Rs. 100 crores. Aggrieved with the aforesaid order of the Board, these two revisions have been preferred by the revenue.
(3.) LEARNED Advocate General contents that benefit to the cement industry under the Scheme 1989 is confined to the extent envisaged under Item 1e of Annexure `c', the said entry being specific entry relating to the cement industry, no other entry which is general character can be looked into for the purpose of availing benefit in respect of a new cement unit. Therefore, notwithstanding that the Company's unit may be considered a new prestigious unit, Item No. 4 being general in character, cannot govern the case of cement industries. He relies on a decision of this Court in CTO Chittorgarh vs. M/s. Aditya Cement (1), in contending that the legislative history of the provision goes to show that the general benefit available to prestigious or new very prestigious unit are not extended to the cement industry in general from the very beginning and therefore the entries in Annexure `c' must be read in that background as not conferring additional benefit than what has been envisaged under Item No. 1e of the appendix Annexure `c'. Mr. Sudhir Gupta, learned counsel for the assessee, on the other hand, contends that there has been considerable shift in treatment to the cement industry under the Scheme since 1996 and in relation to the cement the Scheme has undergone material change. Therefore, applicability of Scheme to the cement unit will have to be considered in the light of the Scheme as it stood when the new unit in question started commercial production and became entitled to avail benefit of the Scheme and applied for grant of eligibility certificate under the Scheme of 1989. He pointed out that while Aditya Cement became eligible to avail benefit of the Scheme and its case was under consideration, the cement industry was included in the list of ineligible industries in Annexure `b' at Item No. 10 and no provision of the Scheme including Annexure `c' quantifying the availability of incentive under the Scheme was attracted at all. As a measure of exception to general inapplicability of Scheme, a limited entry to large scale cement industry only was provided by inserting provisos two to clause 2 (j) and proviso to clause 4 (a) of the Scheme then existing which envisaged that notwithstanding the cement industry remaining on the list of ineligible industries, the benefit to the extent provided in clause 4 (a) be granted to large scale cement units. The Aditya Cement's case was thus decided on the basis of the Scheme as it stood in the light of facts relating to the provisions carving out exception to the general ineligibility of cement industry by inserting two provisions under clause 2 (j) and clause 4 (a) of the Scheme of 1989. On the other hand, vide notification dated 10. 12. 96 the cement industry has been deleted from the list of ineligible industries in Annexure `b' and has become entitled to avail the benefits of general conditions subject to restrictions if any imposed afresh. Simultaneously, with the taking away the cement industry from the list of ineligible industries, Item 1e was inserted in Annexure `c' for quantifying the incentives available to the cement industry generally to the new cement industry falling in small, medium and large scale category at different rates which were largely different from what has been provided to a new industry, in general, to small, medium and large scale industries. Not only this, by specific provision it excluded applicability of some of the other clauses which would otherwise had attracted consideration for quantifying the incentives under the Scheme in respect of cement industry. For the purpose, he invited attention to Item No. 2 concerning expansion or diversification unit and Item No. 5 New very Prestigious Unit and clause I applying to new units generally, yet no amendment was made in Item No. 4 specifying the quantum of incentive available to new units falling in the category of a unit producing pollution control equipment/pioneer unit/prestigious unit. This act of excluding cement industry deliberately from Item 1, 2 & 5, contents learned counsel, will leave no room of doubt that industry of cement otherwise fall in specific items identified specially for privileged treatment in the matter of grant of incentives under the Scheme did not lose its applicability unless expressly excluded by the amended notification dated 10. 12. 96. I have given my anxious consideration to the rival contentions. ;