PRASAD, J. - (1.) HEARD.
(2.) THE petitioner in this writ petition is a company trading in marble and granite. THE petitioner had applied for availing the benefit of Sales Tax Incentive under the Sales Tax Incentive Scheme 1987 (hereinafter referred to as `the Incentive scheme'. THE petitioner was granted the benefit of incentive as admissible under the Scheme of 1987 with effect from 1. 1. 89 by the District Screening Committee, Sirohi. A certificate to this effect was issued to the petitioner, the copy of which has been produced and marked as Annexure-1. The incentive was for the period of seven years to the tune of Rs. 141 lacs. According to the petitioner, the company was an export oriented unit running well and utilized its potential and the production capacity to its optimum until 1998. But thereafter due to reasons beyond the control of the Company, the production of the project was closed. The petitioner assessed the reasons for closure of the unit as increased cost of interest due to devaluation of rupee and arrival of new and cheaper technologies. The petitioner company had availed a total benefit of more than Rs. 70 lacs for seven years from the 1. 1. 89 to 31. 12. 95. The case of the petitioner is that after 1995 the petitioner had continued its production upto 1998-99 but thereafter it had to close down its unit. In the background of closure of the unit of the petitioner, notice was served on the petitioner dated 17. 5. 99 by the assessing authority to show cause as to why the case should not be referred to respondent No. 2 for revoking the benefits of Incentive Scheme for non-compliance of condition mentioned in Clause 4 (e) (i) of the Incentive Scheme. Clause 4 (e) (i) of the Incentive Scheme is reproduced below for ready reference : " The incentive referred to above shall be subject to the condition that the beneficiary industrial unit after having availed the benefit of Incentive Scheme. (i) shall continue its production atleast next 5 years not below the level of average production for the preceding 5 years. Such a notice was issued to the petitioner for the aforesaid infringement under the powers available to the authorities under the powers available to the authorities under Clause 9 (b) of the Incentive Scheme. Clause 9 (b) of the Incentive Scheme is reproduced below for ready reference : " The assessing authority under the RST Act, 1954 having jurisdiction shall, either suo motu or on receipt of an application in this behalf, and after affording an opportunity of being heard to the industrial unit, if he is satisfied that a breach of any of the conditions mentioned above has been committed, obtain the prior permission of the CCT before taking legal action under the provisions of the RST Act for the purpose of levy of tax on the finished goods not taxed under the tax exemption scheme as if there was no exemption and there was escapement of tax. The CCT, in case he concurs with the findings of the assessing authority, shall before according such permission to the assessing authority (consult) the appropriate Screening Committee. " The basic contention of the respondent department was that the petitioner company had failed to maintain the average production level for the period of five years after availing the benefits of Incentive Scheme as contemplated in Clause 4 (e) (i) of the Incentive Scheme. As per Clause 4 (e) (i) of the Scheme, the petitioner company was required to maintain the level of production and it was not permitted to lower down it below the level of average production of five years preceding the availing of the incentive. Admittedly, the petitioner's unit closed in the year 1998. The benefit of Incentive Scheme was availed by the petitioner in 1996. The unit having been closed in 1998, it was within five years of the availing of the incentive. Thus, there was an infringement of condition Clause 4 (e) (i) of the Incentive Scheme.
(3.) THE petitioner replied to the notice and pleaded that the reasons were beyond the control of the petitioner company and it had to be shut down. THE petitioner had bonafidely continued production and paid all necessary dues to the financial institutions but market conditions did not favour him and they forced the closure of the unit. Thus, the closure was on such factors which were beyond the control of the petitioner. The respondent Commissioner after receiving the reply from the petitioner passed the order Annexure-8 whereby the Commissioner was of the opinion that the reply of the petitioner is not satisfactory and the petitioner is liable to be proceed against under Clause 9 (b) of the Incentive Scheme. There is a clear infringement of Clause 4 (e) (i) because he had not maintained the level of production as required under the Scheme for five years after availing of the incentive scheme. In the present writ petition, the petitioner impugns the order Annexure-8 dated 11. 3. 2002 and notice dated 17. 5. 99 (Annexure-4 ). The case of the petitioner as set up in the writ petition is that it is not authorised to the Commissioner to invoke powers under Clause 9 (b) of the Scheme after 1996 because five years as contained in Clause 4 (e) (i) of the Incentive Scheme have to be counted from the date of passing of the order of award of incentive to the petitioner. ;