Y. R. MEENA, J. - (1.) BY this writ petition, the petitioner has prayed the notification dated February 5, 1988 may be quashed and the demand raised by the respondents vide demand notice dated October 1, 1991 may also be quashed. Petitioner has further prayed that the respondents may also be directed to grant eligibility certificate to the petitioner with effect from June 28, 1988 instead of October 1, 1991.
(2.) THE petitioner is a limited company and is registered as medium scale industry. Petitioner has a mini cement plant for manufacturing Portland cement and having annual capacity on maximum utilisation of the plant to the tune of 33,000 tonnes per annum. THE petitioner-unit started commercial production with effect from June 28, 1988. THE exercise of the powers under sub-section (2) of section 4 of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the Act, 1954") respondent No. 1 issued a scheme vide notification dated May 23, 1987 known as Sales Tax Incentive Scheme for Industries, 1987 (hereinafter referred to as "the Incentive Scheme" ). Under the scheme new units are exempted from payment of tax on the sale of goods manufactured by such units within the State of Rajasthan provided they fulfil the conditions laid down in the scheme. Petitioner-company has applied for exemption of payment of sale tax under the scheme to the District Industries Officer but the District Industries Officer has returned the application to the petitioner on the ground that the petitioner has not started commercial production. The company started commercial production with effect from June 28, 1988, hence it has again submitted application along with the required documents on June 28, 1988. Copy of that application is marked as annexure 2. Some objections were again raised by the concerned officer pointing out some defects vide letter dated June 30, 1988. The required formalities were completed and the defects were removed and that has been communicated to the concerned authority vide letter dated July 16, 1988. The copy of the letter dated July 6, 1988 is marked as annexure 3. Again a reminder was issued on October 6, 1988 but nothing has been done by the concerned authority. It was also brought to the notice of the concerned authority that the petitioner has not been charging sales tax as he is eligible for exemption under the scheme. Thereafter, petitioner came to known that exemption under the scheme is available from the date of issue of certificate issued by the competent authority under the scheme. By the amendment in the scheme, on August 6, 1988, the exemption to the units like the petitioner was withdrawn. On September 10, 1990, the scheme was again amended and as per that amendment, the petitioner again became eligible for exemption. On the basis of amendment made with effect from September 10, 1990, a certificate was issued from exemption to the petitioner with effect from October 1, 1990 to September 30, 1992. The only grievance of the petitioner is that while he applied for exemption on June 28, 1988 and that date he was eligible for exemption under the scheme, he should be allowed exemption from the date of production, i. e. , June 28, 1988. Once he applied on June 28, 1988 and if authorities just sit over the application, there is no fault of the petitioner, therefore, on that ground sub-clause (d) of clause 7 of the scheme being ultra vires and unreasonable should be declared ultra vires and the exemption should be allowed from the date of the application as per the object and provisions of the scheme. Learned counsel for the petitioner has taken us to the various provisions of the scheme and submitted that the object of the scheme is to give assistance or encourage the new units in the beginning so that they can establish themselves in the market. He further submitted that under the scheme, when there was no time-limit for the commencement of production, the exemption cannot be withdrawn to the units which came in existence before August 6, 1988, secondly the exemption of the units like the petitioner which started commercial production on June 28, 1988 and applied for exemption cannot be withdrawn at all by subsequent amendment. If the concerned authority just sit over the application and do not dispose of the same, why the petitioner should suffer for the mistake of the concerned authority. They just cannot sleep over the application of the petitioner. On the other land, learned counsel for the respondent Shri B. C. Mehta submitted that production has been started with effect from June 28, 1988 but the exemption to the units like the petitioner has been withdrawn from August 6, 1988 and till that date no proper certificate for exemption under the scheme was issued to the petitioner and the exemption has been withdrawn from August 6, 1988 in case of the units similar to petitioner. The exemption is restored to the units like the petitioner with effect from September 10, 1990 and on the basis of amendment dated September 10, 1990 the certificate for exemption for the period from October 1, 1991 to September 30, 1992 has been issued. When the exemption has been withdrawn with effect from August 6, 1988, in case of the units like the petitioner, how exemption can be allowed to petitioner from June 28, 1988. The petitioner will not be loser. He will be entitled for exemption for a period of five years but not with effect from June 28, 1988. The exemption is allowed with effect from October 1, 1991 and this exemption will continue till five years on fulfilment of the conditions of the scheme.
(3.) THE exemption scheme No. F. 4 (35)/fd/gr-IV/87 was notified on May 23, 1987. Clause 7 provides how the newly established unit will obtain the eligibility certificate for exemption of sales tax. It, inter alia, provides that new industrial unit (assessee) will apply for the exemption under the scheme and the screening committee will consider whether the new unit is entitled for the exemption under the scheme. In case it find the assessee/new unit eligible for the exemption under the scheme, it will issue eligibility certificate to the assessee and this exemption will be available for five years. It may be given for a year and thereafter renewed year after year till five years. The fact is not in dispute that the petitioner's commercial production has commenced on June 28, 1988 and it applied on the same date for eligibility certificate under the scheme. The certificate was not issued. On August 6, 1988, there was an amendment in the scheme and exemption to the industries like the petitioner which comes in the category of new units was withdrawn. Thereafter, again the scheme was amended on September 10, 1990 and under that the petitioner became eligible for exemption under the scheme and a certificate for exemption was issued on October 1, 1991 vide annexure 7. The dispute rests in the narrow compass that is whether the petitioner is entitled for exemption under the scheme with effect from June 28, 1988 or with effect from October 1, 1991 ? The production in the petitioner-unit commenced on June 28, 1988 and on that day, the petitioner was entitled for exemption under the scheme though exemption certificate was not issued. The certificate has been issued on October 1, 1991, therefore, it is the case of withholding the certificate till the scheme was amended on August 6, 1988. Can exemption be denied to the petitioner on the ground of amendment in the scheme on August 6, 1988 whereby the small-scale sector and new industrial units in the Tribal sub-belt plant were excluded from the exemption. Shri Mehta, learned counsel for the respondent submitted that when petitioner after August 6, 1988 was not eligible as the rule was amended, the petitioner is not entitled for exemption. He relied on the judgment of their Lordships in the case of Municipal Board, Bareilly v. Bharath Oil Company [1990] 78 STC 453 (SC); (1990) 32 STL 68 (SC ). It is true that when the rule is amended and thereafter if somebody applies for exemption, he is not entitled but that is not the case before us. In the instant case, the petitioner has applied for exemption on June 28, 1988. On that day, the petitioner was entitled for exemption. If the concerned authority sit over the application, that is not the fault of the petitioner. When he is entitled for exemption under the scheme, the eligibility certificate should have been issued to him, once he applied for it in time. In fact, the petitioner has applied in time when the unit was eligible for exemption under the scheme. the next issue which is to be considered in this petition is whether sub-clause (d) to clause 7 of the scheme is ultra vires. Sub-clause (d) of clause 7 reads as under : " (d) : The benefit of incentive scheme shall be available from the date of the issue of the eligibility certificate. " ;