Gauhati High Court
WP(C)/1860/2019 on 12 February, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
GAHC010058322019
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
PRINCIPAL SEAT
W.P(C) NO. 5917/2018
Shiva Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, Near Rangia in
the district of Kamrup and in the
present proceedings represented
by one of its partners Sri Navin
Kumar Jain age about 45 years.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
Page 1 of 116
4. Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5. Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 1828/2019
Raj Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, P.S. Puthimari,
Rangia, Kamrup and in the district
of Kamrup and in the present
proceedings represented by one of
its partners Sri Ajay Kumar Jain,
one of the partners of the
petitioner firm.
........Petitioner
-Versus-
1 State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4 Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
Page 2 of 116
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 2138/2019
Shri Balaji Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
Vill & P.O. Azara, Hatkhowapara,
Mouza- Ram Chariani, Dist.
Kamrup, Assam and in the present
proceedings represented by one of
its partners Sri Sanjay Jain
........Petitioner
-Versus-
1 State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4 The Superintendent of Taxes, Central VAT Audit
Team, Kar Bhawan, Guwahati-5.
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati-5
........Respondents
W.P(C) NO. 6027/2018
Ganesh Met Coke Industries,
Page 3 of 116
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, 5F, Electronic
Centre Kolkata-700072 and its
industrial unit situated at Azara,
Hatkhuwapara, Ramcharni, Dist.
Kamrup, Assam and in the present
proceedings represented by one of
its partners Sri Hansraj Jain aged
about 76 years
........Petitioner
-Versus-
1 State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4 Assistant Commissioner of State Taxes
(earlier known as Assistant Commissioner of
Taxes), Guwahati, Unit-B Kar Bhawan,
Guwahati-5.
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati-5
........Respondents
W.P(C) NO. 2096/2019
Ganesh Met Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, 5F, Electronic
Centre Kolkata-700072 and its
industrial unit situated at Azara,
Page 4 of 116
Hatkhuwapara, Ramcharni, Dist.
Kamrup, Assam and in the present
proceedings represented by one of
its partners Sri Hansraj Jain aged
about 76 years
........Petitioner
-Versus-
1 State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4 Assistant Commissioner of State Taxes
(earlier known as Assistant Commissioner of
Taxes), Guwahati, Unit-B Kar Bhawan,
Guwahati-5.
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati-5
........Respondents
W.P(C) NO. 2111/2019
Ganesh Met Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, 5F, Electronic
Centre Kolkata-700072 and its
industrial unit situated at Azara,
Hatkhuwapara, Ramcharni, Dist.
Kamrup, Assam and in the present
proceedings represented by one of
its partners Sri Hansraj Jain aged
about 76 years
Page 5 of 116
........Petitioner
-Versus-
1 State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4 The Superintendent of Taxes, Central VAT Audit
Team, Kar Bhawan, Guwahati-5.
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati-5
........Respondents
W.P(C) NO. 5960/2018
Raj Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, P.S. Puthimari,
Rangia, Kamrup and in the district
of Kamrup and in the present
proceedings represented by one of
its partners Sri Ajay Kumar Jain,
aged about 47 years one of the
partners of the petitioner firm R/o
34/1N Ballygunge Circullar Road,
4th Floor, Kolkata-700019, West
Bengal
........Petitioner
-Versus-
1 State of Assam
Page 6 of 116
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4 Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 5957/2018
Raj Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, P.S. Puthimari,
Rangia, Kamrup and in the district
of Kamrup and in the present
proceedings represented by one of
its partners Sri Ajay Kumar Jain,
one of the partners of the
petitioner firm
........Petitioner
-Versus-
1 State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
Page 7 of 116
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4 Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 5937/2018
Jai Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, near Rangia,
Dist-Kamrup, Guwahati, Assam
and in the present proceedings
represented by one of its partners
Sri Sanjay Jain, aged about 51
years.
........Petitioner
-Versus-
1 State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2 General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3 Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
Page 8 of 116
4 Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5 Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 5954/2018
Sheo Shakti Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
Village-Maranjana, Near rangia in
the district of Kamrup, Assam and
in the present proceedings
represented by one of its partners
Sri Ajay Kumar Jain.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4. Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5. Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
Page 9 of 116
........Respondents
W.P(C) NO. 5931/2018
Jai Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, near Rangia,
Dist-Kamrup, Guwahati, Assam
and in the present proceedings
represented by one of its partners
Sri Sanjay Jain, aged about 51
years.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4. Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5. Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 5932/2018
Shiva Coke Industries,
Page 10 of 116
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, Near Rangia in
the district of Kamrup and in the
present proceedings represented
by one of its partners Sri Navin
Kumar Jain age about 45 years.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4. Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5. Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 5980/2018
Sheo Shakti Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
Village-Maranjana, Near rangia in
the district of Kamrup, Assam and
Page 11 of 116
in the present proceedings
represented by one of its partners
Sri Ajay Kumar Jain.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4. Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5. Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 1860/2019
Sethi Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
Village-Moranjana, Near rangia in
the district of Kamrup, Assam and
in the present proceedings
represented by one of its partners
Sri Hansraj Jain.
........Petitioner
-Versus-
Page 12 of 116
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4. Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5. Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 1843/2019
Sheo Shakti Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
Village-Maranjana, Near rangia in
the district of Kamrup, Assam and
in the present proceedings
represented by one of its partners
Sri Ajay Kumar Jain.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
Page 13 of 116
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
4. Assistant Commissioner of State Taxes
(Earlier Known as Assistant Commissioner of
Taxes), Guwahati, Unit-B. Kar Bhawan,
Guwahati.
5. Commissioner of State Taxes (Earlier known
as Commissioner of Taxes). Kar Bhawan,
Guwahati
........Respondents
W.P(C) NO. 5133/2018
Sheo Shakti Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
Village-Maranjana, Near rangia in
the district of Kamrup, Assam and
in the present proceedings
represented by one of its partners
Sri Ajay Kumar Jain.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
........Respondents
W.P(C) NO. 5139/2018
Page 14 of 116
Shiva Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, Near Rangia in
the district of Kamrup and in the
present proceedings represented
by one of its partners Sri Navin
Kumar Jain.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
........Respondents
W.P(C) NO. 5141/2018
Raj Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, P.S. Puthimari,
Rangia, Kamrup and in the district
of Kamrup and in the present
proceedings represented by one of
its partners Sri Ajay Kumar Jain,
aged about 47 years one of the
partners of the petitioner firm.
Page 15 of 116
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
........Respondents
W.P(C) NO. 5143/2018
Jai Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
village Dalmagaon, near Rangia,
Dist-Kamrup, Guwahati, Assam
and in the present proceedings
represented by one of its partners
Sri Sanjay Jain, aged about 51
years.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
Page 16 of 116
........Respondents
W.P(C) NO. 5136/2018
Sethi Coke Industries,
A partnership firm registered
under the India Partnership Act,
1932 and having its principal place
of business at 1/1A Biplabi Anukul
Chandra Street, Kolkata-700072
and its industrial unit situated at
Village-Moranjana, Near rangia in
the district of Kamrup, Assam and
in the present proceedings
represented by one of its partners
Sri Hansraj Jain.
........Petitioner
-Versus-
1. State of Assam
Represented by the Commissioner & Secretary to
the Government of Assam, Department of Finance
& Taxation, Dispur, Guwahati-781006
2. General Manager,
District Industries & Commerce Center, Kamrup
(Rural), Mirza, D.K. College Road, Mirza 781025
3. Commissioner of Industries and Commerce
Assam Udyog Bhawan, Bamunimaidam, Guwahati-
21
........Respondents
-BEFORE-
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the petitioners :Mr. A. Saraf, Senior Advocate assisted by
Mr. N.N. Dutta, Advocate
Advocate for the respondents :Mr. S.C Keyal, Standing Counsel, CGST
Mr. B. Chowdhury, Standing Counsel, SGST
Judgements reserved on : 03.10.2024
Date of Judgment & Order: : 12.02.2025
Page 17 of 116
JUDGMENT AND ORDER(CAV)
This bunch of writ petitions can be clubbed into two
separate groups.
2. W.P(C) No. 5133/2018; W.P(C) No. 5139/2018; W.P.(C)
No. 5141/2018; W.P.(C) No. 5143/2018 and W.P(C) No.
5136/2018 are the writ petitions filed by the petitioners
aggrieved by the rejection of their respective eligibility
certificates which they had applied for under the relevant
provisions of the Industrial Policy of 2008. The petitioners are
aggrieved that without due and proper appreciation of the
facts and materials available before the respondent-
Department of Industries, their claim for eligibility certificates
were rejected. Consequently they being aggrieved, they have
approached this Court praying for appropriate Writ Direction or
Order for setting aside their respective rejection orders for
grant of eligibility certificates as well as consequential order to
the respondents to issue the eligibility certificates and/or
otherwise consider them eligible for availing the benefits under
the Industrial Policy of Assam 2008.
3. In so far as the writ petitions being W.P.(C) No.
1828/2019; W.P(C) No. 2138/2019; W.P(C) No. 5954/2018;
Page 18 of 116
W.P(C) No. 5937/2018; W.P.(C) No. 5957/2018; W.P.(C) No.
2111/2019; W.P.(C) No. 1843/2019; W.P(C) No. 2096/2019;
W.P(C) No. 6027/2018; W.P(C) No. 5960/2018; W.P(C) No.
5917/2018; W.P(C) No. 1860/2019; W.P(C) NO. 5980/2018;
W.P(C) No. 5932/2018 and W.P(C) No. 5931/2019 are
concerned, the petitioners therein have assailed the
assessments conducted by the department of Finance and
Taxation, Government of Assam considering them as regular
dealers who are not entitled to the benefits under the
Industrial Policy of Assam, 2008 and overlooking the claims of
those petitioners that their cases for grant of eligibility
certificate was either pending before the appropriate
department at the time the assessments were made or that
the same has been rejected and which are being put to
challenge by the petitioners.
4. The facts involved in both these bunches of cases giving
rise to the present litigation are common and therefore all
these writ petitions were heard and taken up together for
disposal.
5. The brief description of the writ petitioners are
enumerated as under:
Page 19 of 116
Case No. & Brief Description
Party Name
W.P(C) No. This writ petition has been filed challenging the order dated
5133/2018 05.05.2018 issued by the Commissioner of Industries &
(Sheo Commerce, Udyog Bhawan, Assam holding the industrial unit of
Shakti Coke the petitioner firm to be ineligible for grant of eligibility
Industries) certificate under the Industrial Policy of Assam, 2008 as the said
industrial unit was presently found to be "non-functioning"
assigning the reason that the Government provides tax
exemptions and other fiscal incentives to encourage industrial
units for their contribution in economic development of the State
in general and employment generation in particular and a non-
functioning unit neither contributes in economic development
nor in employment generation and as such the same is not
entitled for grant of eligibility certificate.
W.P(C) No. This writ petition has been filed challenging the order dated
5139/2018 05.05.2018 issued by the Commissioner of Industries &
(Shiva Coke Commerce, Udyog Bhawan, Assam holding the industrial unit of
Industries) the petitioner firm to be ineligible for grant of eligibility
certificate under the Industrial Policy of Assam, 2008 as the said
industrial unit was presently found to be "non-functioning"
assigning the reason that the Government provides tax
exemptions and other fiscal incentives to encourage industrial
units for their contribution in economic development of the State
in general and employment generation in particular and a non-
functioning unit neither contributes in economic development
nor in employment generation and as such the same is not
entitled for grant of eligibility certificate.
W.P(C) No. This writ petition has been filed challenging the order dated
5141/2018 05.05.2018 issued by the Commissioner of Industries &
(Raj Coke Commerce, Udyog Bhawan, Assam holding the industrial unit of
Industries) the petitioner firm to be ineligible for grant of eligibility
certificate under the Industrial Policy of Assam, 2008 as the said
industrial unit was presently found to be "non-functioning"
assigning the reason that the Government provides tax
exemptions and other fiscal incentives to encourage industrial
units for their contribution in economic development of the State
in general and employment generation in particular and a non-
functioning unit neither contributes in economic development
nor in employment generation and as such the same is not
entitled for grant of eligibility certificate.
W.P(C) No. This writ petition has been filed challenging the order dated
5143/2018 05.05.2018 issued by the Commissioner of Industries &
(Jai Coke Commerce, Udyog Bhawan, Assam holding the industrial unit of
Industries) the petitioner firm to be ineligible for grant of eligibility
certificate under the Industrial Policy of Assam, 2008 as the said
industrial unit was presently found to be "non-functioning"
assigning the reason that the Government provides tax
exemptions and other fiscal incentives to encourage industrial
units for their contribution in economic development of the State
in general and employment generation in particular and a non-
functioning unit neither contributes in economic development
nor in employment generation and as such the same is not
entitled for grant of eligibility certificate.
Page 20 of 116
W.P(C) No. This writ petition has been filed challenging the order dated
5136/2018 05.05.2018 issued by the Commissioner of Industries &
(Sethi Coke Commerce, Udyog Bhawan, Assam holding the industrial unit of
Industries) the petitioner firm to be ineligible for grant of eligibility
certificate under the Industrial Policy of Assam, 2008 as the said
industrial unit was presently found to be "non-functioning"
assigning the reason that the Government provides tax
exemptions and other fiscal incentives to encourage industrial
units for their contribution in economic development of the State
in general and employment generation in particular and a non-
functioning unit neither contributes in economic development
nor in employment generation and as such the same is not
entitled for grant of eligibility certificate.
W.P(C) No. This writ petition has been filed challenging the order of
5917/2018 assessment dated 31.03.2018 passed by the Assistant
(Shiva Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand issued in pursuance thereof whereby tax has been
levied for the year 2012-13 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
1828/2019 assessment dated 22.02.2019 passed by the Assistant
(Raj Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand issued in pursuance thereof whereby tax has been
levied for the year 2014-15 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
5932/2018 assessment dated 31.03.2018 passed by the Assistant
(Shiva Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand issued in pursuance thereof whereby tax has been
levied for the year 2013-14 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
5931/2018 assessment dated 29.03.2018 passed by the Assistant
(Jai Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand dated 31.03.2018 issued in pursuance thereof whereby
tax has been levied for the year 2012-13 during which the
petitioner was entitled to the benefit of exemption from
payment of tax by way of remission as per the Industrial Police
of Assam, 2008 read with Assam Industries (Tax Remission)
Scheme, 2005 and also during the pendency of the application
for issuance of Eligibility Certificate
Page 21 of 116
W.P(C) No. This writ petition has been filed challenging the order of
5954/2018 assessment dated 31.03.2018 passed by the Assistant
(Sheo Commissioner of Taxes, Guwahati, Zone-B and Notice of
Shakti Coke Demand issued in pursuance thereof whereby tax has been
Industries) levied for the year 2012-13 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
5937/2018 assessment dated 29.03.2018 passed by the Assistant
(Jai Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand dated 31.03.2018 issued in pursuance thereof whereby
tax has been levied for the year 2013-14 during which the
petitioner was entitled to the benefit of exemption from
payment of tax by way of remission as per the Industrial Police
of Assam, 2008 read with Assam Industries (Tax Remission)
Scheme, 2005 and also during the pendency of the application
for issuance of Eligibility Certificate
W.P(C) No. This writ petition has been filed challenging the order of
5957/2018 assessment dated 22.03.2018 passed by the Assistant
(Raj Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand issued in pursuance thereof whereby tax has been
levied for the year 2012-13 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
5960/2018 assessment dated 22.03.2018 passed by the Assistant
(Raj Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand issued in pursuance thereof whereby tax has been
levied for the year 2013-14 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
2111/2019 assessment dated 22.02.2019 passed by the Superintendent of
(Ganesh Taxes, Central VAT Audit Team and the Notice of Demand
Met Coke issued in pursuance thereof whereby tax has been levied for the
Industries) year 2014-15 during which the petitioner was entitled to the
benefit of exemption from payment of tax by way of remission
as per the Industrial Police of Assam, 2008 read with Assam
Industries (Tax Remission) Scheme, 2005 and also during the
pendency of the application for issuance of Eligibility Certificate
W.P(C) No. This writ petition has been filed challenging the order of
2096/2019 assessment dated 29.08.2018 passed by the Assistant
(Ganesh Commissioner of Taxes, Guwahati, Zone-B and Notice of
Met Coke Demand issued in pursuance thereof whereby tax has been
Industries) levied for the year 2013-14 during which the petitioner was
Page 22 of 116
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
6027/2018 assessment dated 28.03.2018 passed by the Assistant
(Ganesh Commissioner of Taxes, Guwahati, Zone-B and Notice of
Met Coke Demand issued in pursuance thereof whereby tax has been
Industries) levied for the year 2012-13 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P.(C) No. This writ petition has been filed challenging the order of
2138/2019 assessment dated 14.02.2019 passed by the Superintendent of
(Shri Balaji Taxes, Central VAT Audit Team and Notice of Demand issued in
Coke pursuance thereof whereby tax has been levied for the year
Industries) 2014-15 during which the petitioner was entitled to the benefit
of exemption from payment of tax by way of remission as per
the Industrial Police of Assam, 2008 read with Assam Industries
(Tax Remission) Scheme, 2005 and also during the pendency of
the application for issuance of Eligibility Certificate
W.P(C) No. This writ petition has been filed challenging the order of
1843/2019 assessment dated 14.02.2019 passed by the Assistant
(Sheo Commissioner of Taxes, Guwahati, Zone-B and Notice of
Shakti Coke Demand issued in pursuance thereof whereby tax has been
Industries) levied for the year 2014-15 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
1860/2019 assessment dated 14.02.2019 passed by the Assistant
(Sethi Coke Commissioner of Taxes, Guwahati, Zone-B and Notice of
Industries) Demand issued in pursuance thereof whereby tax has been
levied for the year 2014-15 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
W.P(C) No. This writ petition has been filed challenging the order of
5980/2018 assessment dated 29.06.2018 passed by the Assistant
(Sheo Commissioner of Taxes, Guwahati, Zone-B and Notice of
Shakti Coke Demand issued in pursuance thereof whereby tax has been
Industries) levied for the year 2013-14 during which the petitioner was
entitled to the benefit of exemption from payment of tax by way
of remission as per the Industrial Police of Assam, 2008 read
with Assam Industries (Tax Remission) Scheme, 2005 and also
during the pendency of the application for issuance of Eligibility
Certificate
Page 23 of 116
6. The Government of Assam, Department of Industries
and Commerce by Notification No. CI.310/2001/PT-III/61
dated 26.09.2003 announced the Industrial Policy of Assam,
2003 to achieve various aims and objectives which are
enumerated in the policy which are extracted below:
"(i) To increase the share of the Industrial Sector to
the State Domestic Product (SDP) from the present
level of 13.29% a level of atleast 18% at the end of
the terminal year of the policy.
(ii) To generate more employment opportunities in the
State.
(iii) To ensure development of adequate and
appropriate infrastructures for industrial growth.
(iv) To make Assam one of the preferred destinations
investment for outside investors.
(v) To encourage private investment in Industrial
infrastructure projects.
(vi) To ensure industrial development in hitherto
industrial backward regions of the State.
(vii) To create avenues for sustained growth and
development of the Small Scale and tiny sectors.
Page 24 of 116
(viii) To catalyse administrative and legal reforms with
a view simplify the procedure and to ensure time
bound disposal matters.
(ix) To take steps to promote rural handicrafts so as to
conserve and enrich culture heritage, traditions and
customs of the state.
(x) To promote establishment of medium and large-
scale mother industries to create an industrial base,
offering large-scale employment opportunities through
backward and forward linkages.
(xi) To promote Information Technology, high-tech,
knowledge based and biotech industries.
(xii) To promote export oriented industrial units.
(xiii) To take steps to revive the potentially viable sick
public Sector undertakings and to make the Public
Sector Undertakings economically viable.
(xiv) To promote Single Window Clearance system for
fast track clearance of industrial proposals."
7. The said policy was made effective from 01.10.2003 and
was to remain valid for a period of five years upto 30.09.2008
unless modified/terminated earlier. Under the Industrial Policy,
there were various sectors of Industrial activities in the
Industrial policy of Assam 2003 were identified as thrust areas
and amongst many industries which were based on locally
Page 25 of 116
available minerals were identified as thrust areas. Under the
said Industrial Policy of 2003, the State of Assam offered
various fiscal incentives which included the State Capital
Investment Subsidy, Interest Subsidy on Working Capital,
Power Subsidy, Subsidy on Captive Power Generation, Subsidy
on Feasibility Study costs, Subsidy on Quality
Certification/Technical knowhow, Subsidy on Marketing
Assistance, Subsidy on Drawal of power Line etc.
8. Initially when the policy was announced, exemption from
Sales Tax was not part of the said Industrial Policy.
Subsequently, the Assam Industries (Tax Remission) Scheme,
2005 was notified in the Assam Gazette (Extraordinary) No.
165 dated 02.05.2005. Under the said Assam Industries (Tax
Exemption) Scheme, 2005, the eligibility criteria for enjoying
the benefits by an industrial unit will be available if that
industrial unit was considered to be an industrial unit eligible
for the benefits available under the Industrial Policy of Assam
2003. Section 3 of the Scheme of 2005 provided for the Tax
Exemption/Remission for the eligible unit. Under the said
scheme, if an eligible unit registered under the Scheme
manufactures any goods in Assam, the said eligible unit shall
Page 26 of 116
be entitled to remission of 99% of Tax payable by such unit
according to its return in respect of sales of such goods
manufactured in such unit and continue to be eligible for such
remissions until the amount of such tax payable exceeds the
unavailed quantum of monitory ceiling or the extended
unexpired period of eligibility whichever is earlier. The benefits
of the Industrial Policy of Assam, 2003 was available to new
units which were set up on or after 01.01.2003 as well as for
existing units undergoing expansion/diversification in the same
place in the State of Assam on or after 01.10.2003.
9. The facts being common to all the writ petitioners, the
facts in W.P.(C) No. 5917/2018 (Shiva Coke Industries) is
taken up for discussion as the lead case. Being desirous of
availing the benefits offered under Industrial Policy Resolution
2003 and the Assam Industries Tax (Remission) Scheme,
2005, the petitioners had set up its industrial unit for
manufacture of Low Ash Metallurgical coke and Breeze Coke
Industry. The petitioner also applied for provisional registration
as a small scale industry before the Government of Assam,
Directorate of Industries, Assam. The petitioner claims to have
made investments of over Rs. 240,00,000/- setting up its
Page 27 of 116
industrial unit. On application made before the department of
Industries and Commerce, a provisional registration was
granted to the petitioner on 31.12.2004 which was valid for
five years from the date of the issue. The petitioner also
applied for "No Objection Certificate" from the Pollution
Control Board. However, the same was rejected on the basis
of a communication issued by the Department of Industries
and Commerce, Government of Assam dated 16.0.2005. Being
aggrieved, some of the writ petitioners filed writ petitions
before this Court being W.P(C) No. 690/2007 assailing the
communication dated 16.05.2005 issued by the Joint Secretary
to the Government of Assam, Industries and Commerce
Department. The said writ petition was disposed of by order
dated 06.08.2007 by which the communication dated
16.05.2005 was set aside. Pursuant to the said order passed
by this Court, the certificate was issued and the petitioner
completed its setting up of industries. Pursuant to the order
dated 06.08.2007 passed by this Court in W.P.(C) No.
690/2007, the petitioner applied for and was granted "No
Objection Certificate" by the Department of Industries and
Commerce, Government of Assam by a communication dated
04.04.2009 to set up Coke Industries subject to compliance of
Page 28 of 116
the directives of the Government of India as per notification
No. 1533 dated 14.09.2006 and subject to obtaining
environment clearance of projects falling under category-A and
category-B from the Ministry of Environment and Forests,
Government of Assam. A communication from the Pollution
Control Board, Assam was also enclosed therewith whereby
the Assam Pollution Control Board expressed no objection in
granting consent to establish Coke units provided that there is
compliance to directives of the Government of India as per
Notification No. 1533 dated 14.09.2006 and subject to
clearance from necessary authorities. The petitioner thereafter
applied for and was granted provisional consent to establish a
Low Ash Metallurgical Coke and Breeze Coke manufacturing
unit by the Pollution Control Board, Assam. The Pollution
Control Board also gave consent to the petitioner to operate its
business of the petitioner industry for the periods 2009-10,
2010-11 and 2011-12. License was also applied for and was
granted by the Chief Inspector of Factories under the Factories
Act, 1948 for setting up of factory. Upon due verification of the
steps undertaken by the petitioner industry and due
compliance of the procedure prescribed, the General Manager,
District Industries and Commerce Centre issued an
Page 29 of 116
acknowledgment dated 27.08.2009 on which date it was
mentioned that the activities of the Industrial Unit had
commenced from 24.06.2009. In view of the
acknowledgement issued, the petitioner started commercial
production on 24.06.2009.
The Government of Assam thereafter by way of
Notification dated 12.05.2009 issued by the Department of
Industries announced a new policy namely the Assam
Industrial and Investment Policy, 2008 with effect from
01.10.2008. The validity of the said policy was made effective
from 01.10.2008 to 30.09.2013. The said policy was available
for all new units as well as existing units which go in for
substantial expansion and which had commenced commercial
production within the period of validity. The said policy was
announced by the Government of Assam vide Notification
dated 12.05.2009. The Government of Assam also amended
the Assam VAT Rules 2005 by insertion of Rule 57A whereby
various manufacturing activities mentioned therein would not
be treated as "Manufacture" within the meaning of Section 2
(30) of the Act. Amongst the various activities not considered
as "manufacture", the activity of conversion of Coal to Coke
Page 30 of 116
was also included. The said Rule 57A was made retrospectively
applicable/effective from 01.10.2008. This Rule 57A under the
Assam VAT Rules, 2005 came to be assailed before this Court
by the petitioner by filing W.P.(C) No. 2900/2011. By the
Judgment and Order dated 12.05.2015, the writ petition was
allowed and Rule 57A was held to be ultra vires and beyond
the competence of the rule making power to alter the
definition of manufacture as already provided under the Act of
2003. During the said proceedings before the Court, a dispute
arose as to the date on which the industry was set up and
started its commercial production. The Court therefore
directed the Industries Department to decide the question on
facts as regards the date of commence of the commercial
production by giving fair opportunities to both parties.
10. Pursuant to the said direction, the petitioner submitted
relevant documents before the authority. A communication
was also submitted by the petitioner dated 16.06.2016
requesting the department to process its pending claims in
respect of interest subsidy, transport subsidy, capital
investment subsidy and eligibility certificate. It was also
informed by the petitioner that the Coke Industry of the
Page 31 of 116
petitioner was not in operation because of the ban of coal by
National Green Tribunal (NGT) and once the ban imposed by
NGT is withdrawn, the petitioner will start its operation in the
industrial unit.
11. That during the pendency of the process of examination
of the eligibility of the petitioner to claim its benefit for
exemption under the industrial policy which the Department of
Industries was examining in terms of the judgment and order
dated 12.05.2015 passed in W.P.(C) No. 2900/2011 directing
the authorities to do so, the Department of Finance and
Taxation initiated the assessment proceedings under the
Central Sales Tax Act in respect of the writ petitioner for the
period 2012-13 under section 36(1) of the Assam Value
Added Tax Act 2003 read with Rule 9(2) of the Central Sales
Tax Act. According to the petitioner, since it was eligible for
exemption from payment of tax by way of remission and the
eligibility certificate in respect thereof was not issued till then
by the industries department, the petitioner could not submit
its annual and monthly returns online as is required to be
submitted by dealers who were granted the benefit of
exemption under the Industrial Policy.
Page 32 of 116
12. It is the contention of the petitioner that the online
returns could not be submitted in the format prescribed as the
returns are required to be accompanied by the eligibility
certificate which the petitioner was not provided with by the
industries department as its claim was still being examined.
Accordingly, the petitioner submitted its return in the offline
mode/the manual form by claiming exemption from payment
of tax by way of remission. These returns, however, were
rejected by the Assessing Officer treating the petitioner to be a
dealer other than a registered dealer and accordingly
completed the assessment levying interest and penalty. The
assessing officer levied penalty to the tune of 100% of the tax
payable and notice of demand in pursuance to the
assessments completed was issued to the petitioner.
13. After completion of the assessment order and being
served with the notice of demand, the petitioner received the
order from the Commissioner of Industries and Commerce,
Government of Assam, respondent No 3 being order number
CI&C(II) US/EC/202/2003/2017/248/897 dated 05.05.2018
rejecting the petitioner's claim to be eligible for grant of
eligibility certificate under the Industrial policy of 2008 on the
Page 33 of 116
ground that the State level committee in its meeting held on
the 28.03.2018 had decided to reject the application for grant
of eligibility as the status of the unit of the writ petitioner was
shown to be " non functioning" by the General Manager
District Industries and Commerce Centre Kamrup (Rural),
Mirza namely respondent No. 2 herein. In the said order it was
held that since the petitioner is a "non functioning" unit and
thereby it neither contributes in economic development or in
employment generation, the petitioner is not entitled to tax
exemptions and other fiscal incentives which are available to
other eligible industries under the industrial policy.
14. This order is assailed by the petitioner by filing WP(C)
No. 5139/2018 which is also being taken up for hearing and
disposal together with the present writ petition. By the said
writ petition, the petitioner seeks to assail the assessments
completed by the department dated 31.03.2018.
15. These facts which are narrated above are common for
both the series of writ petitions. W.P(C) No. 5133/2018;
W.P(C) No. 5139/2018; W.P.(C) No. 5141/2018; W.P.(C) No.
5143/2018 and W.P(C) No. 5136/2018 have been filed by the
petitioners putting to challenge the respective orders passed
Page 34 of 116
by the Department of Industries rejecting their claim for
eligibility as an "eligible unit" under the Industrial policy of
2008 and thereby denying them the benefits and tax
incentives available under the said industrial policy.
16. W.P.(C) No. 1828/2019; W.P(C) No. 2138/2019; W.P(C)
No. 5954/2018; W.P(C) No. 5937/2018; W.P.(C) No.
5957/2018; W.P.(C) No. 2111/2019; W.P.(C) No. 1843/2019;
W.P(C) No. 2096/2019; W.P(C) No. 6027/2018; W.P(C) No.
5960/2018; W.P(C) No. 5917/2018; W.P(C) No. 1860/2019;
W.P(C) NO. 5980/2018; W.P(C) No. 5932/2018 and W.P(C)
No. 5931/2019 have been filed by the petitioners whereby the
assessments made by the Department of Finance and Taxation
have been assailed as the same were completed during the
pendency of the consideration of the claims of the petitioners
to be eligible units by the industries department and by
ignoring their claims that in the event they are considered to
be eligible units, they will be entitled to all the fiscal benefits
and the exemptions available under the industrial policies as
well as the Assam Remission of Taxes scheme 2005.
17. In so far as the challenge made to the rejection and/or
non consideration of the claims of the respective industrial
Page 35 of 116
units to be "eligible units" by the Department of Industries and
Commerce, Government of Assam is concerned, the senior
counsel appearing for the petitioners submits that the rejection
of the claims of the petitioner industrial units for grant of the
eligibility certificate on the ground of being "non functioning
units" is opposed to the very object and purpose of the
industrial policy initiated by the Government of Assam. It is
submitted that the industrial units commenced its commercial
production as per the dates given in the chart below:
Case no & Party Name Commenced date for
commercial production
W.P(C) No. 5917/2018 (Shiva 24.06.2009
Coke Industries)
W.P(C) No. 1828/2019 (Raj Coke 18.06.2009
Industries)
W.P(C) No. 5932/2018 (Shiva 24.06.2009
Coke Industries)
W.P(C) No. 5931/2018 (Jai Coke 20.06.2009
Industries)
W.P(C) No. 5954/2018 (Sheo 21.10.2009
Shakti Coke Industries)
W.P(C) No. 5937/2018 (Jai Coke 20.06.2009
Industries)
W.P(C) No. 5957/2018 (Raj Coke 18.06.2009
Industries)
W.P(C) No. 5960/2018 (Raj Coke 18.06.2009
Industries)
W.P(C) No. 2111/2019 (Ganesh 05.04.2009
Met Coke Industries)
Page 36 of 116
W.P(C) No. 2096/2019 (Ganesh 05.04.2009
Met Coke Industries)
W.P(C) No. 6027/2018 (Ganesh 05.04.2009
Met Coke Industries)
W.P.(C) No. 2138/2019 (Shri 05.04.2009
Balaji Coke Industries)
W.P(C) No. 1843/2019 (Sheo 21.10.2009
Shakti Coke Industries)
W.P(C) No. 1860/2019 (Sethi 21.10.2009
Coke Industries)
W.P(C) No. 5980/2018 (Sheo 21.10.2009
Shakti Coke Industries)
W.P(C) No. 5133/2018 (Sheo 21.10.2009
Shakti Coke Industries)
W.P(C) No. 5139/2018 (Shiva 24.06.2009
Coke Industries)
W.P(C) No. 5141/2018 (Raj Coke 18.06.2009
Industries)
W.P(C) No. 5143/2018 (Jai Coke 20.06.2009
Industries)
W.P(C) No. 5136/2018 (Sethi 21.10.2009
Coke Industries)
18. It is submitted that pursuant to the initiation of the
commercial production, the petitioner submitted its returns
before the Sales Tax Authorities claiming VAT Remission.
Various other incentives announced under the industrial policy
of 2008 were also claimed and submitted before the
appropriate authority. In view of the insertion of Rule 57A in
the Assam VAT Rules of 2005, the process of conversion of
Page 37 of 116
coal to coke was held to be "not manufacture" and the
eligibility certificate to the petitioner industrial unit was not
issued. Nevertheless, the petitioner started its commercial
production with effect from the dates mentioned in the chart.
Because of the ban imposed by the National Green Tribunal in
the State of Meghalaya, the commercial production had to be
stopped as the coal which was sourced from the State of
Meghalaya could not be obtained because of the ban imposed
by the NGT. It is submitted that first, in view of the offer made
by the state of Assam by virtue of industrial policy, the
petitioner altered its position by making huge investments in
purchase of land and setting up of the industrial unit. It is
submitted that when the commercial production of the
industrial unit started as far back as the dates mentioned in
the chart given and continued thereafter, the respondent
authorities could not refuse to issue eligibility certificate on the
ground that in 2018 the said industrial unit was found to be
non functional. It is submitted that the industrial units which
was operation for nearly seven years, therefore the claim of
the respondents that as these industrial units did not satisfy or
fulfil the required criteria, they were not eligible for is wholly
unjustified. It cannot be said that the object and purpose of
Page 38 of 116
the industrial policy of economic development and
employment generation was not met by the petitioner
Industrial units. It is submitted that the respondents were
informed by written communication that once the ban on coal
by NGT was withdrawn, the petitioner will restart commercial
production in its industrial unit. Under such circumstances,
refusal to grant eligibility certificate by the respondent No. 3 is
absolutely illegal without jurisdiction and not tenable in law
and therefore the impugned order, rejecting the claims of the
petitioners to grant the eligibility certificates should be set
aside and quashed. It is submitted that the grounds on which
the claim of the eligibility certificate of the writ petitioner was
rejected are completely irrelevant as the eligibility certificate is
to be made effective from the date of the commencement of
commercial production of the industrial unit.
19. The respondents cannot deny the various incentives and
concessions available to the industrial unit under the industrial
policy by refusing to grant the eligibility certificate in respect of
the period during which the industrial unit was in operation
solely on the ground that the petitioner industrial unit was
found to be non functional in the year 2018. It is submitted
Page 39 of 116
that such finding of the respondent No. 3 is absolutely
perverse, contrary to the object and scheme of the industrial
policy and the same therefore amounts to illegal deprivation of
the petitioner from the legitimate claims of the various
incentives and concessions announced in the industrial policy,
Government of Assam. It is submitted that the impugned
action of the respondent authority being absolutely illegal and
arbitrary, the same cannot withstand the test of Article 14
Constitution of India and therefore the impugned order dated
05.05.2018 (Order of rejecting eligibility) is liable to be set
aside and quashed by the respondents of authority. It is
submitted that neither under the Industrial Policy 2008 nor
under the provisions of the Assam Industries (Tax Exemption)
Scheme 2009 is there any provision to the effect that if the
industry closes down before completion of the entire period of
eligibility, the said industrial unit shall not be entitled to the
benefits of the industrial policy of Assam 2008 for the period
the said industrial unit was in operation. It is submitted that
that the activity carried on by the petitioner industrial units
which was considered to be "not manufacture" in terms of rule
57A of the Assam VAT Rules having been declared ultra vires
by this Court, there was no hurdle on the part of the
Page 40 of 116
respondents to issue the eligibility certificate in favour of the
petitioner. However, the same was denied by treating the
petitioner industrial unit to be "non functional" which is
contrary to the facts on the ground. It is submitted that
ordinarily an eligibility certificate is issued immediately after
commencement of commercial production and once the
commercial production commences, the benefits available
under the industrial policy of 2008 is required to be conferred
on such an industrial unit during the entire period of the
industrial policy. It is submitted that there is no provision
under the industrial policy of 2008 and/or the Assam
Industries Tax (Exemption) Scheme, 2009 that the benefits
that if an industrial unit closes down before the expiry of the
period of eligibility, the benefits availed will have to be
refunded back to the government. It is further submitted that
the period of eligibility indicates the maximum period
prescribed to which the industrial unit shall be entitled to the
benefits as per the industrial policy of Assam 2008. As such, it
is submitted that it cannot be interpreted to mean that the
industrial unit shall be entitled for incentives only if the
industry remains functional for the entire period of the
eligibility.
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20. Referring to clause 6-B of the exemption scheme of
2009, the learned senior counsel submits that the said clause
prescribes that where an eligibility certificate has been granted
under the scheme to an industrial unit and it closes down or
reaches the maximum limit of exemption, it shall be the duty
of the unit to inform in writing to the jurisdictional tax
authorities which had issued the eligibility certificate to it and
along with the said report, it should also surrender the original
eligibility certificate along with the certificate of entitlement to
the concerned authorities. Referring to the said provision,
learned senior counsel submits that the framers of the scheme
were aware that the situation may arise where unit may for
various reasons, close down. However, in such an event,
clause 6-B only contemplates a report in writing to be
submitted within 14 days of closure to the jurisdictional tax
authorities who had issued the eligibility certificate and also
surrender the eligibility certificate along with the certificate of
entitlement. There is no provision prescribing refund of the
benefits availed of by the industrial unit prior to its closure. In
support of his contentions, the learned senior counsel refers to
order dated 22.11.2023 passed by coordinate bench in WP(C)
No. 1603/ 2021 (Duroply Industries Vs Union of India and
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Ors). Referring to the said order, the learned senior counsel
submits that before the Co-ordinate bench, the claim of the
petitioner therein was release of transport subsidy. The
transport subsidy claimed by the petitioner to have been
entitled was not released on the ground that the industrial unit
was not functioning on the date of release of transport
subsidy. The writ petition was finally disposed of on the basis
of the averments made by the industries department therein
that the entitlement of the petitioner for transport subsidy has
to be ascertained on the basis as to whether the materials
were actually transported or not. The Co-ordinate Bench
accordingly held that the rejection of the claim of the benefit
of transport subsidy was improper and consequential orders
were issued by this Court.
21. The learned Senior counsel also referred to the judgment
of the Tripura High Court rendered in Sukhumoy Paul Vs State
of Tripura and others reported in (2021) SCC online (Tri) 273
to buttress his arguments that once the industrial unit
commences its production, subsequent closure will not deprive
the benefits which accrue to the industrial unit merely because
the unit was non functional subsequently. The learned counsel
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for the petitioners further submits that the fact that the
petitioner industrial unit was functional and had commenced
commercial production with effect from date of commercial
production is evident from the fact that for the relevant period,
the Department of Finance and Taxation had completed its
assessment by treating the petitioner unit to be a dealer not
covered by the exemptions and the benefits. It is submitted
that a bare perusal of the assessment order which is impugned
by way of a separate proceeding, will reveal that the
assessments were completed by due examination of the books
of accounts. It is submitted that under such circumstances, the
finding of the respondent No. 3 that the unit was non
functional is disputed by the assessments completed by the
Department of Finance and Taxation. These assessments were
completed under the Central Sales Tax read with the Assam
VAT Act and the Rules made thereunder. In terms of the
assessment, the petitioner was assessed to tax, penalty and
interest for sales. These assessments were in respect of the
industrial unit for the period in question. Under such
circumstances it cannot be held that the unit "non functional"
as the tax authorities had completed the assessments upon
due perusal of the books of accounts.
Page 44 of 116
22. It is therefore submitted that the denial of the eligibility
certificate by the industries department being contrary to the
facts as evident from the records, the same is totally illegal,
perverse and is therefore required to be interfered with, set
aside and quashed.
23. The learned senior counsel submits that as the
petitioners had acted upon the offer of the Government of
Assam by the Industrial Policy 2008 and had altered their
positions to their detriment by making huge financial
investments in setting up industries and purchase of materials
and employment of personnel. Under such circumstances,
under the doctrine of promissory estoppel, the respondent
authorities cannot deny the benefit which have been offered
under the Industrial Policy of 2008 as the petitioner had
genuinely accepted the offer and altered its position by making
the necessary investments.
24. In so far as the writ petitions filed by the various writ
petitioners/ industrial units challenging the various assessment
orders made by the Finance department, it is submitted that
under the Remission scheme, returns were required to be filed
online accompanied by the eligibility certificate. Unless the
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eligibility certificate is submitted, the returns could not be filed
online as per the format prescribed. Under the circumstances,
since the question of eligibility certificate was under due
consideration before the respective industries department, the
petitioners who although had fulfilled all the criteria prescribed
under the industrial policy and had commenced its commercial
production with effect from the respective dates of the
respective industrial units, because of none issuance of the
eligibility certificates by the respondent industries department,
the petitioners were deprived from filing the annual/monthly
returns by the online mode. Since they were not issued the
eligibility certificates by the industries department at the time
they were required to furnish their returns, they had to file
their returns in the physical form by mentioning therein that
they are eligible for the exemptions and that their eligibility
certificates have not yet been issued by the Industries
department as the matters were under consideration of the
State Authorities. However, the respondent Tax department
refused to accept the plea of the respective Industrial units
that the eligibility certificates were under active consideration
by the designated authorities and thereby refused to grant the
benefits attributable to the respective industrial units under
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the Industrial policy of 2008 read with the Assam Industries
(Tax Remission) Scheme. It is submitted that because of the
lapses on the part of industries department, the returns could
not be filed by the online process and for which the petitioner
industrial units are not at fault. The delay that had occurred in
consideration of the claims for eligibility was not due to any
fault of the petitioner industrial units. It is submitted that
when the industrial policy of 2008 was initiated by the
Government of Assam, it is expected that the various
departments and components of the Government of Assam
will act in unison to ensure that the benefits conferred under
the Industrial policy of 2008 will be made available to all units
who satisfy the requirements prescribed. It is submitted that
the Department of Industries as well as the Department of
Finance and Taxation being both components of the
Government of Assam, there ought to have been proper
coordination between both the departments. The Department
of Taxation ought not to have proceeded with the assessments
made until such time the claims of the benefits of eligibility
was considered by the industries department. This was
required to be done more so in view of the order dated
12.05.2015 passed in W.P.(C) 2900/2011, whereby this Court
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directed the industries department to decide the question of
fact as regards the date of commencement of commercial
production after giving fair opportunity to the parties. It is
submitted that under such circumstances, the assessments
completed by the respondent Taxation Department are
contrary to the very scheme and object of the industrial policy
and the benefits available thereunder read with the Assam
Industries (Tax Remission) Scheme. In support of his
contentions, the learned senior for the petitioner relies upon
the following judgments of the Apex court:
"(1) Motilal Padampat Sugar Mills reported in (1979)
2 SCC 409.
(2) Century Spinning and Manufacturing Company
Ltd, reported in (1970 1, SCC 582
(3) Purnami oil mills versus state of Kerala reported
in 1986, (Supp) SCC 728;
(4) State of Bihar versus Usha Martin Industries,
reported in 1987 Supplementary SCC 710;
(5) Sri Bhakul Oil Industries reported in 1987 1 SCC
31;
(6) Pawan Alloys and Castings Private Limited
reported in 1997 7 SCC 251;
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(7) Mahabir vegetable Oils (P) Limited reported in
2006 3 SCC 620;
(8) State of Punjab versus Nestle India Limited
reported in 2004 6 SCC 465.
(9) Kashinka Trading versus Union of India reported
in 1995 1 SCC 274;
(10) MRF limited versus assistant CST reported in
2006 8 SCC 702;
(11) State of Jharkhand versus Brahmaputra Metallics
reported in 2023 10 SCC 634."
25. Relying on all the judgments referred above learned
senior counsel submits that the actions of the respondent
authorities in denying the petitioner unit its eligibility certificate
to claim the benefits it is eligible to under the industrial policy
of 2008 read with Tax Remission Scheme is wholly irrational,
opposed to public policy, contrary to the very object and
purpose of the industrial policy and the same is contrary to the
facts available on record and therefore perverse inasmuch as
the tax department concluded its assessments by holding that
the industrial unit had completed its sales from the said
industrial unit, the impugned orders, whereby the eligibility
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certificate was rejected needs to be interfered with, set aside
and quashed.
26. The learned counsel appearing for the industries
department submits that an affidavit has been filed on behalf
of the industries department in W.P.(C) No. 1828/2018. He
submits that since the facts involved are similar and common
for the purposes of all the other cases, he would like to refer
to and rely on the said affidavit.
27. The learned counsel for the Industries Department
referring to the various provisions of the industrial policy
submits that there are various steps which are required to be
undertaken in so far as the industries are concerned in order
to avail the various incentives and benefits prescribed under
the industrial policy. Referring to the facts of the case in
WP(C) 1828 of 2019, the learned counsel for the industries
department submits that in so far as this petitioner is
concerned, their application for eligibility certificate was filed
only on 08.02.2016, although they claimed to have
commenced their commercial production on the 18.06.2009. It
is submitted that it is not believable that where an industry
claims to have commenced its commercial production with
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effect from 18.06.2009, it does not submit its eligibility
certificate for about seven years. It is submitted that unless all
the steps and procedures prescribed under the industrial policy
are duly complied with, the benefits available under the
industrial policy cannot be made available to the concerned
industry. It is submitted that for availing the benefits, the first
step is to submit the application for eligibility certificate
accompanied by all relevant documents and information. The
learned counsel submits that there is no explanation as to why
the petitioner unit submitted its application for eligibility
certificate in 08.02.2016 if it had already commenced its
commercial production on 18.06.2009. The learned counsel for
the industries department, further submits that the eligibility
criteria under the industrial policy is prescribed under clause
4.6. Clause C of the said clause prescribes that over the period
of five years there should be 100% of indigenous people in
employment in non managerial posts, and 90% of indigenous
people in managerial posts. It is submitted that these
information are nowhere reflected in the pleadings although it
is submitted that all were furnished before the authorities. The
learned counsel for the respondent submits that for grant of
eligibility certificate, an enquiry report is required to be issued
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by the General Manager of the District Industrial Centre
(DICC) as an enquiry officer in the format prescribed. From
the communication of the General Manager dated 06.03.2017,
which is enclosed to the affidavit, the enquiry report, as
required, could not be submitted as the concerned unit was
found to be within "non functional". Under such circumstances
where the scheme itself prescribes for furnishing of an enquiry
report by the General Manager, DICC and the same could not
be furnished by the Enquiry officer for the reasons mentioned,
namely, for the unit being "non functional", the State Level
committee had no option but to reject the claim of the
petitioner for eligibility certificate. It is therefore submitted
that there is nothing available on record to show that these
industrial units were functional at the relevant point in time
and a field enquiry as required to be conducted could not be
conducted by the industries department as the unit itself was
"non functioning". Under such circumstances, there is no
infirmity in the order impugned the present writ petitions
rejecting the claims of eligibility by the industries department.
He therefore submits that there is no merit in these writ
petitions and the same should therefore be dismissed as being
devoid of any merit.
Page 52 of 116
28. Mr. B. Chowdhury, learned counsel appearing for the
Taxation department submits an affidavit in opposition has
been filed in WP(C) No. 5917 of 2018 and he also submits that
since the facts are similar for the purposes of the respondent
Taxation department, they would like to rely on the affidavit
filed in WP(C) No. 5917 of 2018 for all the other writ petitions.
The learned counsel appearing for the Finance Department,
submits that in so far as the assessments carried on by the
Taxation department in respect of the industrial units are
concerned, since there was no eligibility certificate enclosed,
they were not found to be entitled to the tax exemption and
other fiscal incentives offered under these schemes. It is
submitted that there is no bar for the State Government to
restrict or withdraw any of the incentives prescribed at any
point in time. It is submitted that since the industrial policy
prescribes specific procedures requiring eligible units to comply
with the same before claiming benefits under the scheme
under the industrial policy and the scheme, and the same not
having been done by the petitioner industries, and in the
absence of the eligibility certificates required to be issued by
the industries department, the respondent department is duty
bound in law to complete the assessments, and which was
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accordingly done. The orders of assessment which are
impugned in writ petitions W.P.(C) No. 1828/2019; W.P(C) No.
2138/2019; W.P(C) No. 5954/2018; W.P(C) No. 5937/2018;
W.P.(C) No. 5957/2018; W.P.(C) No. 2111/2019; W.P.(C) No.
1843/2019; W.P(C) No. 2096/2019; W.P(C) No. 6027/2018;
W.P(C) No. 5960/2018; W.P(C) No. 5917/2018; W.P(C) No.
1860/2019; W.P(C) NO. 5980/2018; W.P(C) No. 5932/2018
and W.P(C) No. 5931/2019 are therefore as per law, and there
is no infirmity in the orders issued by the respective
assessment authorities. The writ petitions assailing the
assessment orders are therefore devoid of and the same
should therefore be dismissed.
29. In reply, the learned senior counsel for the petitioners
disputes the contentions of the respondents. He submits that
once the eligibility is issued, it is valid for the entire period of
industrial policy. He submits that there is no provision for
cancellation of eligibility certificate or for periodic verification
by the industries department. It is submitted that there is no
provision for cancellation of the eligibility certificate with
retrospective effect. The learned senior counsel submits that
since under Rule 57A of the Rules of 2009 manufacture of
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coke was excluded from the term "manufacture", during the
currency of that provision, there was no question of the
petitioner units claiming any benefits under the industrial
policy for the exemption. These Rules were held to be ultra
vires and struck down on 12.05.2015 and thereafter, the
petitioner unit, having become eligible to make a claim under
the industrial policy, submitted its application for being
considered as an eligible industry. It was for these reasons
that notwithstanding the initiation of commercial production in
2009, the petitioner applied for eligibility certification in the
year 2016. He further submits that if the unit was indeed
found to be "non functional", there was no question of any
manufacture and consequent sales of its goods, therefore,
there ought not to have been any imposition of sales tax by
the respondent Finance department. It is submitted that if
there is no manufacture, then there is no question of sales
leading to imposition of sales tax/VAT. It is submitted that
merely because the industrial unit was non functional for a
particular period of time would not disentitle such an industry
from the benefits of the industrial policy by treating it to be an
eligible industry, if during the currency of the policy, the
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industrial unit satisfies the prescriptions and the requirements
under the said eligibility certificates under the industrial policy.
30. The learned counsel for the parties have been heard.
The elaborate pleadings on record as well as the Judgments
pressed into service have been carefully perused and noted.
31. As discussed above, there are two batches of writ
petitions which are taken up together for hearing and disposal.
32. In W.P(C) No. 5133/2018 (Sheo Shakti Coke Industries);
W.P(C) No. 5139/2018 (Shiva Coke Industries); W.P(C) No.
5141/2018 (Raj Coke Industries); W.P(C) No. 5143/2018 (Jai
Coke Industries) and W.P(C) No. 5136/2018 (Sethi Coke
Industries), the challenge in these writ petitions have been
made to the respective orders issued by the Commissioner of
Industries and Commerce, Udyog Bhawan, Assam whereby the
department has arrived at a conclusion that the industries are
not eligible for the grant of eligibility certificate under the
Industrial Policy of Assam 2008 as the said industrial unit was
found to be 'non-functioning'. The department came to the
conclusion that the fiscal incentives are provided by the
Government to encourage industrial units for their contribution
in economic development of the State in general and local
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employment generations in particular and the 'non-functioning'
unit neither contributes in economic development nor in
employment generation and as such the same is not entitled
for grant of eligibility certificate.
33. In W.P(C) No. 5917/2018 (Shiva Coke Industries);
W.P(C) No. 1828/2019 (Raj Coke Industries); W.P(C) No.
5932/2018 (Shiva Coke Industries); W.P(C) No. 5931/2018
(Jai Coke Industries); W.P(C) No. 5954/2018 (Sheo Shakti
Coke Industries) W.P(C) No. 5937/2018 (Jai Coke Industries);
W.P(C) No. 5957/2018 (Raj Coke Industries); W.P(C) No.
5960/2018 (Raj Coke Industries); W.P(C) No. 2111/2019
(Ganesh Met Coke Industries); W.P(C) No. 2096/2019 (Ganesh
Met Coke Industries); W.P(C) No. 6027/2018 (Ganesh Met
Coke Industries); W.P.(C) No. 2138/2019 (Shri Balaji Coke
Industries); W.P(C) No. 1843/2019 (Sheo Shakti Coke
Industries); W.P(C) No. 1860/2019 (Sethi Coke Industries) and
W.P(C) No. 5980/2018 (Sheo Shakti Coke Industries), the
petitioners are assailing their respective orders of assessments
passed by the jurisdictional assessing officer under the State
Taxes Department and the consequential notice of demand
issued in pursuance whereof Taxes for the year 2014-15 has
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been levied on the petitioners notwithstanding that the
petitioner had applied for and had claimed entitlement to the
benefits of exemption from the payment of tax by way of
remission as per the Industrial Policy of Assam, 2008 read with
the Assam Industries (Tax Remission Scheme), 2005 and
without taking into consideration the fact that the application
for issuance of eligibility certificate was pending consideration
before the competent authority. The challenge is made on the
ground that the petitioners cannot be deprived of its due
exemption which the petitioner claims to be entitled to under
the Industrial Policy as well as the Tax Remission Scheme for
no fault of the petitioners but only because the competent
authority took time for disposal of the applications for issuance
of the respective eligibility certificate. Since this fact was
brought to the notice of the Tax authorities, the respective
assessments of the petitioners ought not to have been
proceed with till effective orders were passed on their claims
for entitlements for the exemptions under the relevant
Industrial Policy.
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34. In order to appreciate the arguments addressed by the
counsel, it is necessary to refer to the provisions of the
Industrial Policy as well as the Tax Exemption.
35. The Government of Assam, Industries and Commerce
Department by a Notification No. CI.310/2001/Pt-III/61 dated
26.09.2003 announced its Industrial Policy of Assam, 2003 to
achieve various aims and objectives which are enumerated
herein below:-
1. To increase the share of the industrial sector to
the State Domestic Product (SDP) from the
present level of 13.29% a level of at least 18%
at the end of the terminal year of the Policy.
2. To generate more employment opportunities in
the State.
3. To ensure development of adequate and
appropriate infrastructures for industrial growth.
4. To make Assam one of the preferred destinations
investment for outside investors.
5. To encourage private investment in Industrial
infrastructure projects.
6. To ensure industrial development in hitherto
industrial backward regions of the State.
7. To create avenues for sustained growth and
development of the Small Scale and tiny sectors.
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8. To catalyse administrative and legal reforms with
a view simplify the procedure and to ensure time
bound disposal matters.
9. To take steps to promote rural handicrafts so as
to conserve and enrich cultural heritage,
traditions and customs of the state.
10. To promote establishment of medium and large-
scale mother industries to create an industrial
base, offering large-scale employment
opportunities through backward and forward
linkages.
11. To promote Information Technology, high-tech,
knowledge based and biotech industries.
12. To promote export oriented industrial units.
13. To take steps to revive the potentially viable sick
Public Sector Undertakings and to make the
Public Sector Undertakings economically viable.
14. To promote Single Window Clearance system for
fast track clearance of industrial proposals.
36. The said Policy was made effective from 1st October, 2003
and was to remain valid for a period of five years i.e. up to 30th
September, 2008 unless modified/terminated earlier. It may be
relevant herein to mention that various sectors of Industrial
activities in the Industrial Policy of Assam, 2003 were identified
as thrust areas and amongst many, industries based on locally
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available minerals were identified as thrust area. It may be
relevant herein to mention that amongst various other minerals
which are available in the State of Assam 'coal' is one of the main
minerals available in Assam.
37. As per the said Industrial Policy of Assam, 2003, the State
of Assam promised and assured the people that various fiscal
incentives would be provided which inter-alia were State Capital
Investment Subsidy, Interest Subsidy on Working Capital, Power
Subsidy, Subsidy on Captive Power Generation, Subsidy on
Feasibility Study Costs, Subsidy on Quality Certification/Technical
Know How, Subsidy on Marketing Assistance, Subsidy on Drawal
of Power Line, etc. It may be relevant herein to mention that
initially in view of the change to be brought into effect as regards
the tax system, the exemption from sales tax was not mentioned
in the Industrial Policy of Assam, 2003 but subsequently the
Assam Industries (Tax Remission) Scheme, 2005 was notified in
the Assam Gazette Extra-Ordinary No. 165 dated 02.05.2005. It
may further be relevant herein to mention that under the Assam
Industries (Tax Remission) Scheme, 2005, the eligibility criteria
for enjoying the benefits thereon amongst others, was if an
industrial unit is eligible under the Industrial Policy of Assam,
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2003, the said Industrial Unit shall be treated as an eligible
industrial unit. As per the terms of the Industrial Policy read with
the terms of the Tax Remission Scheme, 2005, the tax
exemption/remission which was allowed for the eligible units was
contained in Section 3 of the Scheme of 2005 whereby if an
eligible unit registered under the Act manufactures any goods in
Assam, the said eligible unit shall be entitled to remission of 99%
of the tax payable by such unit according to its return in respect
of sales of such goods manufactured in such unit and continue to
be eligible for such remission until the amount of such tax
payable exceeds the un availed quantum of monetary ceiling or
the extended unexpired period of eligibility whichever is earlier.
The benefits of the Industrial Policy of Assam, 2003 was available
to new units which were set up on or after 01.10.2003 and
existing units undergoing expansion/diversification at the same
place in the State of Assam on or after 01.10.2003.
38. From the pleadings available before this Court, it is seen
that the Petitioners took steps for setting up Industrial Units for
manufacture of Low Ash Metallurgical Coke and Breeze Coke
Industry. The Petitioners thereafter applied for a Provisional
Registration as a Small Scale Industry before the Government of
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Assam, Directorate of Industries, Assam. In respect of the
petitioner Shiva Coke Industries, it was mentioned in the said
Provisional Registration that the investments made were as
follows:-
Land and Land Development - Rs. 20,00,000/-
Building and Shed - Rs.100,00,000/-
Plants & Machineries - Rs. 80,00,000/-
Other Fixed Assets - Rs. 40,00,000/-
39. In total the net investments to be made was Rs.
240,00,000/-. The General Manager, District Industries and
Commerce Centre, upon the Application made by the Petitioner,
granted Provisional Registration on 31.12.2004 which was valid for
a period for five years from the date of issue.
40. In the mean time, the Petitioner applied for a No Objection
Certificate from the Pollution Control Board. However, the
concerned officials of the Pollution Control Board rejected the
issuance of the No Objection Certificate on the ground that there
existed a letter from the State Government, Department of
Industries and Commerce dated 16.05.2005. The Petitioner filed
Writ Petition being W.P.(C) No. 4084/2007 challenging the
communication dated 16.05.2005 issued by the Joint Secretary to
the Government of Assam, Industries and Commerce Department
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directing all the General Managers, District Industries and
Commerce Centre not to issue temporary/permanent Registration
Certificate for establishment of Coke Industries and further
directing not to allow Coke Industries to start their industries
which have obtained license but have not started operating to
commence their operation. The aforementioned Writ Petition was
disposed off vide an order dated 10.8.2007 by which the
communication dated 16.5.2005 was set aside with a direction to
the Pollution Control Board to consider the request of issuance of
No Objection Certificate to the petitioner without being influenced
by the directions contained in the letter dated 16.5.2005.
41. Pursuant to the said Judgment and Order dated 10.08.2007,
the Petitioner completed construction of its proposed industrial
unit by spending huge amounts of money. At this stage, it may be
relevant herein to mention that the Petitioner made the following
expenditures towards setting up its industrial unit. The same are
stated herein below.
Sl. Particulars Amount Spent
No.
1 Land and land development Rs. 25,00,000
2 Factory shed and building Rs. 216,00,000
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3 Plant and machinery Rs. 104,00,000
4 Generator Set Rs. 5,00,000
Total Rs. 350,00,000
42. Pursuant to the Judgment dated 24.07.2007, 10.8.2007 and
various other Orders passed by this Hon'ble Court in relation to the
communication dated 16/5/2005 as mentioned above, the
Petitioner as well as other Coke Industries submitted applications
before the General Manager, District Industries and Commerce
Centre for issuance of the EM (Part - II) under the MSMED Act,
2006. Upon such requests being made to the General Manager,
District Industries and Commerce Centre, Kamrup, the latter
issued a Communication dated 23.06.2008 to the Director of
Industries and Commerce with a request to advise as to whether
the EM (Part-II) applications for issue of acknowledgement should
be issued or not.
43. The Director of Industries and Commerce in pursuance to
the aforesaid letter dated 23.06.2008 issued a communication to
the Commissioner and Secretary to the Government of Assam
dated 16.07.2008 requesting the latter to issue necessary
directions in view of the Order dated 24.07.2007 passed by this
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Hon'ble Court wherein the Communication dated 16.05.2005 was
quashed.
44. The Joint Secretary to the Government of Assam, Industries
and Commerce Department by a Communication dated
04.04.2009 informed the Director, Industries and Commerce that
the Government has no objection for setting up Coke Industries
subject to the compliance of the directives of the Government of
India as per Notification No. 1533 dated 14.09.2006 and subject to
obtaining Environment Clearance of Project falling under Category
- A and Category - B from the Ministry of Environment and
Forest, Government of India. In that regard, the Joint Secretary
also enclosed the Communication received from the Pollution
Control Board, Assam wherein it was mentioned that the Pollution
Control Board, Assam has no objection in granting consent to
establish Coke Units provided there is compliance to directives of
the Government of India as per Notification No. 1533 dated
14.09.2006 and subject to clearance from the necessary
authorities.
45. The Petitioner further applied for the Provisional Consent to
Establish a Low Ash Metallurgical Coke and Breeze Coke
manufacturing unit before the Pollution Control Board, Assam
which was accorded on 04.04.2009.
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46. The Petitioner also applied before the Chief Inspector of
Factories under the Factories Act, 1948 for approval, licensing for
registration of Factories under the Provisions of Factories Act,
1948. The Chief Inspector of Factories, Assam on 18.02.2009
granted the license bearing License No. KAM/1117 for setting up
the Factory. The Pollution Control Board also gave the consent to
operate the business of the Petitioner Industry for the period
2009-10, 2010-11 and 2011-12.
47. Subsequently, the Additional Director, Directorate of
Industries and Commerce by a Communication dated 06.05.2009
intimated the General Manager, District Industries and Commerce
Centre about the decision of the Government as given in the
Communication dated 04.04.2009. Pursuant thereto, the General
Manager, District Industries and Commerce Centre on 28.05.2009
by a Communication to the Director of Industries and Commerce
with a request to inform as to whether the General Manager,
Director of Industries and Commerce should accept the
actual/declared date of commercial production of the said unit or
as 04.04.2009, the date when the Government of Assam accorded
its approval in the acknowledgement under the EM (Pt-II).
48. The Additional Director, Directorate of Industries and
Commerce vide a Communication dated 01.06.2009 informed the
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General Manager, District Industries and Commerce Centre that
the EM acknowledgement should be issued on finding of actual
field verification and documents submitted with the EM Application
in support of different declaration, statements, etc. made in the
Application. It was further mentioned that the date of
commencement of the commercial production cannot be changed
in the acknowledgement EM (Part-II) to be issued provided the
same can be established with supporting documents by the
Applicant. After the receipt of the observations made in the
Communication dated 01.06.2009, the General Manager, District
Industries and Commerce Centre acknowledged that the Petitioner
Unit had commenced its activities of manufacture from
21.10.2009. The said acknowledgement was given on 15.03.2010.
49. In view of the above, the Petitioner could only start
commercial production only on 21.10.2009. In the meantime, it is
stated that the Government of Assam by a Notification dated
12.05.2009 issued by the Commissioner and Secretary to the
Government of Assam, Industries and Commerce Department
announced a new Policy, namely, the Assam Industrial and
Investment Policy of Assam, 2008 with effect from 01.10.2008.
50. The period of validity of the Industrial Policy of 2008 was
for a period of five years with effect from 01.10.2008 till
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30.09.2013. The eligibility criteria as per the said Policy was all
new units as well as existing units which go in for substantial
expansion and which had commenced commercial production
within the period of validity will be eligible for the incentives from
the date of commencement of commercial production for the
period applicable for each incentive. In the said Industrial Policy of
2008, various fiscal incentives such as interest subsidy on term
loan, power subsidy, subsidy of quality certification/technical
knowhow and subsidy on drawal of power line were given.
51 The Government of Assam, in the meantime amended the
Assam VAT Rules, 2005 by the insertion of Rule 57A in the
Assam Value Added Tax Rules whereby various activities of
manufacture mentioned therein was treated as not amounting to
manufacture within the meaning of Section 2(30) of the Act.
Amongst various activities, the activity of conversion of coal to
coke was included as an activity not amounting to manufacture
within the purview of the Act. It may further be relevant herein to
mention that the said Rule 57A was made retrospectively effective
from 01.10.2008. The Assam Industries (Tax Exemption) Scheme,
2009 was also notified on 3.11.2009.
52. The validity of the said Rule 57A was challenged before
this Hon'ble Court in a bunch of writ petitions. In those
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proceedings, it was contended that the Petitioner had on the
basis of the various promises and assurances given by the
Government of Assam in its Industrial Policy Resolution of 2003
had set up its Industrial Unit by altering its position and thereby it
was not permissible for the State in view of the Doctrine of
Promissory Estoppel to resile from the said promises by treating
the activities of conversion of coal to coke carried out by the
industrial unit of the petitioner firm not to be manufacture and
thereby denying the benefit of various incentives to the petitioner
firm.
53. Those writ petitions came up for hearing before a Division
Bench of this Hon'ble Court and vide judgment and order dated
12.05.2015 allowed the writ petition and held Rule 57A (l) of the
Assam Value Added Tax (Third Amendment) Rules, 2009 to be
ultra vires the provisions of the provisions of the definition of
'manufacture' under the Act of 2003 and beyond the competence
of the Rule making powers to alter the definition of
'manufacture' as defined under the Act. During the course of the
hearing of those matters a dispute was raised with regard to the
date on which the industrial unit was set up and started its
commercial production. It was contended by the State that the
industrial unit was set up in the year 2005 and commercial
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production commenced prior to the date of coming into effect of
the Industrial Policy of 2008 and thereby those units was not
entitled to any concession under the Policy of 2008. This Hon'ble
Court, therefore, directed the Industries Department to decide
the said question of fact as regards the date of commencement
of commercial production after giving fair opportunity to both the
parties.
54. After the aforesaid judgment of this Hon'ble Court, the
petitioner submitted its application for grant of eligibility
certificate under the Industrial Policy of 2008 before the
Respondent No. 2 along with relevant papers and documents
and requested for grant of eligibility certificate vide letter dated
08.02.2016. Thereafter, the petitioner was asked to submit some
additional documents which were submitted by the petitioner
vide letter dated 29.02.2016.
55. In the meantime the petitioner vide letter dated
16.06.2016 addressed to the Respondent No.2, requested the
Respondent No. 2 to process the pending claims in respect of
interest subsidy, transport subsidy, capital investment subsidy
and issuance of eligibility certificate. In the said letter, the
petitioner also informed the Respondent No.2 that the coke
industry of the petitioner is not in operation because of ban of
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coal by N.G.T and informed the Respondent No.2 that once the
ban of coal by N.G.T is withdrawn, the petitioner shall start its
operation in its industrial unit.
56. The petitioner was, however, surprised to receive an order
from the Commissioner of Industries & Commerce, the
Respondent No.3 herein being order no. CI&C(II)US/EC/2003/
203/2017/332/916 dated 05.05.2018 holding the industrial unit
of the petitioner firm to be ineligible for grant of eligibility
certificate under the Industrial Policy of 2008 on the ground that
the State Level Committee in its meeting held on 28.03.2018 had
decided to reject the application for grant of eligibility as the
status of the Unit was indicated as "non-functioning" by the
Respondent No.2. The Respondent No.3 in the said order
observed that the Government provides tax exemptions and
other fiscal incentives to encourage industrial units for their
contribution in economic development of the State in general
and employment generation in particular and a "non-functioning"
unit neither contributes in economic development nor in
employment generation.
57 The Government of Assam announced the Industrial Policy
of 2008 for encouraging industries to establish the units in the
State of Assam by providing incentives in several aspects
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including taxation. The various features of the industrial policy
are extracted below:
INDUSTRIAL POLICY - INTRODUCTION
4.1AIMS AND OBJECTIVES
1) To generate economic development by accelerating the process of
industrialization.
2) To generate employment and increase income by encouraging
the establishment of micro enterprises.
3) To increase the share of the Industrial sector in the State
Domestic Product (SDP).
4) To make Nature - Economics Centric Development.
5) To make Agro and rural area linked industrial investment as
focused programme. Besides, the State Government would
endeavour to encourage youths of the State, particularly the women
entrepreneurs to set up industries, encourage to help increase
exports and attract Foreign Direct Investment (FDI) particularly from
NRIs.
4.2 STRATEGY
The aims & objectives will be endeavoured to be achieved by
following suitable and appropriate strategies like:
1) Creation of quality infrastructure
2) Cluster development
3) Encourage investment by fiscal incentives
4) Tax concessions to attract investment
5) Facilitate access to market
6) Facilitate mega investment
7) Simplification of procedures
8) Industry friendly administration
9) Create conducive atmosphere to induce investment
4.2 (A):
To provide incentives for development of service sector in the areas
of Tourism, Health services vocational training etc. a separate policy
will be notified later on.
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4.3 PERIOD OF VALIDITY OF THE POLICY
The policy will be effective from 1/10/2008 and will be valid for a
period of 5 years, i.e. up to 30/9/2013. All new units as well as
existing units which go in for substantial expansion and which
commence commercial production within the period of validity will be
eligible for the incentives from the date of commencement of
commercial production for the period applicable for each incentive.
4.4 EFFECTIVE DATE
Effective date for the new policy shall be 1/10/2008 and from that
date the 2003 Policy will cease to operate unless otherwise provided
for.
Units which commenced commercial production prior to 1/10/2008
and are eligible under 2003 policy shall continue to be governed by
the Industrial Policy 2003. However no application for Eligibility
Certificate claims under the 2003 policy will be entertained after 31-
3-2009.
4.5 DEFINITIONS
1) EXISTING UNIT means a unit, which is or was in commercial
production in the State of Assam prior to 1/10 /2008.
2) SUBSTANTIAL EXPANSION means a unit, which has commenced
commercial production in the State of Assam during the validity
period of Industrial Policy 2008.
3) SUBSTANTIAL EXPANSION means increase in value of fixed
capital investment in plant and machinery of an existing unit by at
least 25% as well as increase of employment by at least 10% and at
least 25% increase in production compared to average annual
production of previous three years. Prior to going for expansion, the
unit should be operating at least at a minimum of 80% capacity
during the period of three previous years and prior intimation to the
concerned implementing agency.
4) NON-ELIGIBNLE UNIT: Non-eligible unit means those industries,
which are declared as Non-eligible under this policy.
5) MANUFACTURE means any activity that brings out a change in an
article or articles as a result of some process, treatment, labour and
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results in transformations into a new and different article so
understood in commercial parlance having a distinct name, character
use, but does not include such activity of manufacture as may be
prescribed by Finance Department.
6) MICRO/SMALL/MEDIUM ENTERPRISE: As defined in the Micro,
Small and Medium Enterprises Development Act, 2006 as amended
from time to time.
7) INDUSTRIAL ESTATE/PARK under this policy means an area not
less than 500 bighas with infrastructure facilities or built up space
with common facilities for the purpose of industrial use
commensurate with the master plan of the district or town or city as
applicable. Minimum 25% area is to be left for open space and green
belt and minimum 10% area for common utility.
4.6 ELIGIBILITY CRITERIA
Unless otherwise specified, the eligibility criteria shall be as below:
a) A unit that is engaged in the manufacture or production of goods
pertaining to any industry specified in the First Schedule to the
Industries (Development and Regulation) Act, 1951 is eligible.
b) New Units set up on or after 1/10/2008 as well as existing units
undergoing substantial expansion at the same place in the State of
Assam on or after 01-10- 2008 shall be eligible for incentives under
2008 Industrial Policy provided that for the units undergoing
substantial expansion, the fiscal incentives will be only against the
additional investments made on plant & machineries.
c) A unit shall have employment of 80% people of Assam in the
managerial cadre and 90% people of Assam in the non-managerial
cadre and that over a period of 5 years from the commencement of
commercial production, such unit would take all effective steps to
ensure 100% employment of people of Assam in nonmanagerial
cadre and at least 90% in managerial post.
d) A unit availing grants/incentives from a Department/ an agency
under the State/ Central Government/ foreign agencies shall not be
eligible for similar type of incentives under this policy.
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e) Incentives/ subsidies/ concessions/ financial support under this
policy shall be applicable to units in the private sector, joint sector,
co-operatives as well as units set up by State Government only.
f) The non-eligible industries mentioned in annexure one will not be
eligible for any incentives under this Industrial Policy.
g) In case a new unit is promoted in the premises of an existing
unit; it should be distinctly identifiable and be located in the open
spaces available in the premises. The earlier unit in the premise
should not be closed nor any plant & machinery be dislodged from
the earlier unit.
The following tax incentives were also offered:
TAX INCENTIVES
7.1 VAT EXEMPTION
All eligible units, which manufacture goods in Assam, will be entitled to
exemption of 99% of the tax payable under the Assam Value Added Tax
Act, 2003 and the Central Sales Tax Act, 1956 subject to the limit
mentioned below.
Category Micro Small Medium &
Large
New Seven years Seven years Seven years
subject to subject to subject to
maximum maximum maximum
of 200% of of 150% of 100% of
fixed capital fixed capital fixed capital
investment investment investment
Substantial Seven years Seven years Seven years
Expansion subject to subject to subject to
maximum maximum maximum of
of 150% of of 100% of 90% of
additional additional additional
fixed capital fixed capital fixed capital
investment investment investment.
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Fixed capital investment means & includes investment in plant &
machinery or additional investment in plant & machinery (for expansion
units) and building connected directly with manufacturing process.
In case of micro industries only, cost of land purchased up to 40% of
total investment in plant and machinery, can be included as part of fixed
capital investment.
The Finance Department of Government of Assam shall be the
implementing agency for tax incentives. The Finance Department will
bring out a separate notification in this regard.
702. EXEMPTION FROM STAMP DUTY AND REGISTRATION FEE
To encourage setting up industrial infrastructure in the form of Industrial
Park/ Estate through purchase of Private/ Government land, there will be
100% reimbursement of the stamp duty and registration fees against
submission of equivalent Bank Guarantee from a nationalized bank that
the Industrial Park/ Estate will be set up within a period of 3 years. The
said Guarantee will be invoked if the Industrial Estate / Park will not be
set up within 3 years or if the land is used for any other purpose.
58. In the above conspectus, this Court is required to decide
whether the challenge made in these writ petitions can be
sustained.
59. During the course of the hearing, the relevant records
etc. were called for. The respondents during the course of the
hearing the respondents placed before the Court the
"operational guidelines for the Industrial and Investment Policy
of Assam 2008". Referring to the said guidelines, it is
submitted that under the procedures for issuance of eligibility
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certificate as per clause-4, the eligibility certificate duly filled
with all prescribed documents be submitted within six months
of the commencement of the commercial production and
incomplete and rejected application should be returned to the
concerned unit within one month of its receipt justifying the
reasons for rejection. The time limit for various authorities to
examine the eligibility certificate have also been prescribed
under the said clause. The form of eligibility certificate is
available Form-1A of the guidelines. The guidelines also
include an enquiry report on the application for grant of
eligibility certificate which is to be issued by the General
Manager, DICC/MD, AIDC after physical verification of the
unit. The said report will also include a statement on the
machinery and equipment etc.
60. The affidavit filed by the Industries Department in so far
as the writ petitions challenging the rejection of the eligibility
certificates are concerned, revealed that the rejection was
made on the basis of the report furnished by the General
Manager. The Minutes of the meeting of the State Level
Committee held on 28.03.2018 in respect of grant of eligibility
certificate under the Industrial Policy 2008 in so far as Shiva
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Coke Industries is concerned, was rejected on the basis of
information furnished by the Member Secretary as intimated
by the General Manager, District Industrial Centre vide letter
dated 06.03.2017 that the unit was 'non-functioning' and
pursuant to the committee meeting, the respective units were
informed about their ineligibility.
61. Under such circumstances, the respondents were
permitted to place before the Court the materials on the basis
of which the General Manager, DICC submitted its report of
'non-functioning' unit. The Court considered it apposite to
permit the respondent authorities to place such materials to
show the relevant date(s) when the physical inspection was
made and the said unit was found to be non-functioning. On
the other hand, the Sales Tax Department completed the
assessments and raised the demand on the petitioner and
other similarly situated petitioners. The assessment order
clearly reveals that the assessment and the consequential
demand was made after due examination of the books of
accounts. The assessment of tax was made on the turnover of
the unit/industry. Consequently, there appears to be a
contrary stand reflected by the two departments of the
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Government namely, the Industries and the Finance
Department. It is trite to mention here that in the State Level
Committee constituted to examine and issue eligibility
certificates, representatives of both the industries as well as
the Finance and Taxation Department are members and which
fact is not disputed by the respondents. Under such
circumstances, it cannot be understood as to how a unit which
was found to be non-functioning by the industries department
could have reflected the turnover of goods manufacture and
on the basis of which the assessments were carried out and
demands were raised by the Finance and Taxation
Department. If the unit was indeed 'non-functioning' then
there could not have been any turnover leading to an
assessment and consequential demand. If indeed the
assessments were made by the Finance and Taxation
department after proper examination of books and accounts it
reveals that the units was functioning and could therefore
carry on its manufacturing activities and on the basis of the
books and accounts maintained and which were examined by
the Finance and Taxation Department. These assessments
were completed and demands were raised as the petitioners
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units could not furnish its eligibility certificate for claiming
exemption of tax benefits.
62. The Judgments pressed into service by the counsel for the
petitioners needs to be referred to at this Stage.
In Duroply Industries Limited Vs. The Union of
India & 5 Ors [W.P.(C) No. 1603/2021, the learned senior
counsel for the petitioners referred to by a Co-ordinate Bench
of this Court was dealing with the subsidy on the Transport
Subsidy. However, it is seen that in the said case, Transport
Subsidy were not released as the said industrial unit was not
functioning on the date of release of the Transport Subsidy. In
the said case, this Court raised a specific query to the learned
counsel on behalf of the Industries Department as to whether it
is a necessity of the Transport Subsidy Scheme that the
industry concerned has to be functioning as on the date on
which the amount is to be released, or it is necessary to make
verification as to whether such raw materials or finished goods
were actually transported or not. Upon submissions made by
the learned counsel appearing on behalf of the Industries
Department in that matter that though it is the requirement of
the Scheme that the Transport Subsidy is to be released
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without any delay, at the same time it is also required to be
looked into as to whether the raw material and finished
products in respect of which the Transport Subsidy has been
claimed, were actually transported within the framework of the
said Scheme and further that the entitlement of the Petitioner
was to be ascertained on the basis of the materials as to
whether the Petitioner actually transported the raw materials as
well as the finished products, or not. The Co-ordinate Bench on
being satisfied that the unit was duly functioning on the date
when the claims were made. It concluded that the State Level
Committee ought not to have rejected the claims of the
petitioners on the ground that the petitioner was non-
functioning. In paragraph 9 of the said Judgment of Duroply
Industries Limited (Supra), the Co-ordinate Bench of this
Court held that the Petitioner's unit was duly functioning at the
time when the claims for Transport Subsidy were made, and
the said unit has to be closed down subsequently due to the
financial crisis and shortage of raw material and thereby the
State Level Committee ought not to have rejected the claims of
the Petitioner on the ground that with effect from January,
2018 the Petitioner unit was not functioning. Paragraph 8 and 9
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of the said Judgment and Order are relevant and the same are
reproduced herein below:
"8. The affidavit-in-opposition filed by the
respondent Nos. 3, 4, 5 and 6 in both the writ
petitions clearly shows that the claims of the
petitioner were duly verified and due
recommendations were made for payment of the
amount of transport subsidy in favour of the
petitioner. This Court has also raised a specific query
upon the learned counsel appearing on behalf of the
Industries Department as to whether it is the
necessity of the Transport Subsidy Scheme that the
industrial unit concerned has to be functioning as on
the date on which the amount is to be released, or is
it necessary to make verification as to whether such
raw materials or finished goods were actually
transported or not. Learned counsel appearing on
behalf of the Industries Department with all fairness
submitted that though it is the requirement of the
scheme that the transport subsidy is to be released
without any delay, at the same time it is also
required to be looked into as to whether the raw
materials and finished products, in respect of which
the transport subsidy has been claimed, were
actually transported within the framework of the said
scheme. The learned counsel appearing on behalf of
the respondent Industries Department further
submitted with candour that the entitlement of the
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petitioner has to be ascertained on the basis of the
materials as to whether the petitioner actually
transported the raw materials as well as the finished
products, or not.
"9. This Court had also duly perused the Transport
Subsidy Scheme and had also taken note of the fact
that the petitioner unit was duly functioning at the
time when the claims for transport subsidy were
made, and this aspect of the matter would be clear
from the certificate issued by the General Manager,
District Industries and Commerce Centre, Dibrugarh,
stating that the petitioner unit was physically verified
on 17.11.2016 and it was found functioning as on
date. Even the affidavit-in-opposition filed by the
respondents on 16.03.2022 reveal that the petitioner
unit had to be closed down sometime in January, 2018
due to financial crisis and shortage or raw materials.
Under such circumstances, it is the opinion of this
Court that the respondent authorities, more
particularly, the State Level Committee ought not to
have rejected the claims of the petitioner on the
ground that with effect from January, 2018 the
petitioner unit was not functioning."
63. In Sukhamoy Paul Vs. State of Tripura & Ors., 2021
SCC OnLine Tri 273 while dealing with a similar situation with
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regard to the Transport Subsidy Scheme, the Tripura High Court
held as under :
"15. ..........The eligibility period for claiming subsidy
may be 5 years, the scheme nowhere provides that
only if a new industrial unit continues such
manufacturing activity for a period of 5 years that it
can claim the transport subsidy. Therefore, even if, as
pointed out by the respondents, the petitioner at some
later point of time after commencing its production got
engaged into the same activity as a job worker, this
would not amount to breach of any of the eligibility
conditions of the scheme."
64. The aforesaid two judgments of this Hon'ble Court and that
of Tripura High Court are squarely applicable in the present case.
65. It is further seen from the pleadings that there is no dispute
prior to closing down of the industrial unit of the Petitioner, the
Petitioner's industrial Unit was producing the goods and was
making sales of the same and the same will be evident from the
orders of assessment passed by the Assessing Authority which are
subject-matter of challenge in the other Writ Petitions:
66 In the orders of assessments, the Assessing Authority levied
taxes on the sales made by the Petitioner's industrial unit on the
ground that the Petitioner's industrial unit failed to produce the
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eligibility certificate for claiming the remission of the tax as per
the Scheme of 2009. The said orders of assessments clearly
reflects that the industrial unit of the Petitioner was in operation
prior to closing down of the same which was due to non-
availability of coal due to ban by the National Green Tribunal and
the said fact was duly intimated to the Respondent Authorities. If
the industrial unit of the Petitioner was not a operation before
closing down, the question of making sale of the goods by the
said industrial unit prior to its closure does not arise and the very
fact that Central Sales Tax has been levied for the periods prior to
the closing down of the industrial unit on the sales made by the
Petitioner in its industrial unit clearly shows that the industrial unit
of the Petitioner was in operation prior to before its closure. If the
contention of the Industries Department is to be accepted that
the industrial unit of the Petitioner was not in operation at all, the
question of making any sale of the goods produced in the said
industrial unit and levying of the tax of the sale could not have
arisen. If the said contention of the Industries Department is
accepted, then the orders of assessment which have been passed
levying tax on the sales made by the Petitioner on the goods
manufactured to its industrial unit itself shall be illegal, without
jurisdiction as there was no production and the question of sale of
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the said goods produced in the industrial unit would not arise and
thereby the question of levy of tax on such sale on goods
produced in the industrial unit also does not arise.
67. The orders passed by the Assessing Authority levying tax
clearly shows that the industrial unit was fully in operation during
the period before its closure and in the absence of any provisions
to the contrary in the Industrial Policy, closure of the industrial
unit prior to the expiry of the period of the eligibility cannot a
ground for denial of the eligibility certificate to an industrial unit
for the period the industrial unit was in operation.
68 The contention of the Industries Department that the
application for the eligibility certificate has to be made within six
months from the date of its commercial production cannot be
accepted in view of the fact that the Petitioner could not have
applied for the eligibility certificate immediately after the
commencement of the production as an amendment was made
under Section 57(A) in the Assam Value Added Tax Rules
providing that the conversion of coal into coke shall not be
manufacture. It is only after the said Rules were declared ultra-
vires by this Hon'ble Court, the Petitioner submitted its application
for issuance of eligibility certificate. The other submissions
advanced by the learned counsel for the Industry Department are
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not the ground on which the application for issuance of the
eligibility certificate was rejected by the Commissioner of
Industries & Commerce and thereby the same cannot be
considered while examining the validity of the impugned order. It
is a settled law that the validity of an order has to be examined
on the basis of the contents of the said order and the validity of
the same cannot be supported by subsequent affidavits and
submissions.
69 In the case of Commissioner of Police, Bombay Vs.
Gordhandas Bhanji, reported in AIR 1952 SC 16, the Apex
Court in paragraph 9, held as under:
"9. An attempt was made by referring to the
Commissioner's affidavit to show that this was really
an order of cancellation made by him and that the
order was his order and not that of the Government.
We are clear that public orders, publicly made, in
exercise of a statutory authority cannot be construed
in the light of explanations subsequently given by the
officer making the order of what he meant, or of what
was in his mind, or what he intended to do. Public
orders made by public authorities are meant to have
public effect and are intended to affect the acting's
and conduct of those to whom they are addressed and
must be construed objectively with reference to the
language used in the order itself.
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The aforesaid judgment of the Apex Court was relied upon
in the case of Mohinder Singh Gill Vs. Chief Election
Commissioner, reported in (1978) 1 SCC 405, wherein the
Apex Court held as under:
"8. The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh
reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the
time it comes to court on account of a challenge, get
validated by additional grounds later brought out. We
may here draw attention to the observations of Bose,
J. in Gordhandas Bhanji [Commr. of Police, Bombay v.
Gordhandas Bhanji, 1951 SCC 1088 : AIR 1952 SC 16]
:
"Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the
light of explanations subsequently given by the
officer making the order of what he meant, or of
what was in his mind, or what he intended to
do. Public orders made by public authorities are
meant to have public effect and are intended to
affect the acting's and conduct of those to
whom they are addressed and must be
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construed objectively with reference to the
language used in the order itself."
Orders are not like old wine becoming better as they
grow older."
Thereby the submissions advanced by the Industry
Department to support the order of rejection of the application for
eligibility certificate were not at all the ground on which the
application for issuance of eligibility certificate was rejected and
thereby the same cannot be considered while examining the validity
of the order dated 05.05.2018.
70. It is further case of the petitioner that the petitioner having
established its industrial unit on the basis of the various incentives
and concessions announced in the Industrial Policy of the
Government of Assam by making huge investments and having
altered its position on the basis of the same, the respondent
authorities cannot be allowed to resile from the promises and the
refusal to grant eligibility certificate in respect of the industrial unit
of the petitioner firm amounts to resiling from the promises made
in the Industrial Policy and on the basis of the Doctrine of
Promissory Estoppel, the respondent authorities are estoppel from
acting contrary to the promises made in the Industrial Policy by
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refusing to grant eligibility certificate to the industrial unit of the
petitioner firm on untenable grounds.
Under the doctrine of promissory estoppels where the
Government has made a promise and the prose relying on the
promise has altered it's position to its detriment the Government is
not exempt from it's liability to carry out the representation made
by it as to its future conduct and it cannot on some undefined and
undisclosed ground of necessity or expediency fail to carry out the
promise solemnly made by it, nor claim to be the judge of its own
obligation to the citizen on an ex parte appraisement of the
circumstances in which the obligation has arisen. The
superstructure of the doctrine with its preconditions, strengths and
limitations has been outlined by the Apex Court in its landmark
judgment of Motilal Padampat Sugar Mills Co. Ltd. v. State of
U.P., (1979) 2 SCC 409. The Apex Court reiterated the well
known pre conditions for the operation of the Doctrine of
Promissory estoppel as under:
(1) a clear and unequivocal promise knowing and intending
that it would be acted upon by the promisee;
(2) such acting upon the promise by the promisee so that
it would be inequitable to allow the promisor to go back
on the promise.
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The Apex Court further observed that that the doctrine was
not limited only to cases where there was some contractual
relationship or other pre-existing legal relationship between the
parties. The principle would be applied even when the promise is
intended to create legal relations or affect a legal relationship
which would arise in future. The Government was held to be
equally susceptible to the operation of the doctrine in whatever
area or field the promise is made -- contractual, administrative or
statutory. In paragraphs 8 and 24 of the said Judgment, the Apex
Court observed as under:
"[E]quity will, in a given case where justice and fairness
demand, prevent a person from insisting on strict legal
rights, even where they arise, not under any contract, but
on his own title deeds or under statute."
"The law may, therefore, now be taken to be settled as
a result of this decision, that where the Government
makes a promise knowing or intending that it would be
acted on by the promisee and, in fact, the promisee,
acting in reliance on it, alters his position, the
Government would be held bound by the promise and the
promise would be enforceable against the Government at
the instance of the promisee, notwithstanding that there
is no consideration for the promise and the promise is not
recorded in the form of a formal contract as required by
Article 299 of the Constitution.
Page 92 of 116
The Apex Court further in the said judgment in paragraph 33
observed as under:
"Whatever be the nature of the function which the
Government is discharging, the Government is subject to
the rule of promissory estoppel and if the essential
ingredients of this rule are satisfied, the Government can
be compelled to carry out the promise made by it."
71. In so far as the limitation of the Doctrine of Promissory
Estoppel is concerned the Apex Court in the said judgment,
Motilal Padampat (Supra), held as under:
"1) Since the doctrine of promissory estoppel is an
equitable doctrine, it must yield when the equity so
requires. But it is only if the Court is satisfied, on proper
and adequate material placed by the Government, that
overriding public interest requires that the Government
should not be held bound by the promise but should be
free to act unfettered by it, that the Court would refuse to
enforce the promise against the Government.
(2) No representation can be enforced which is prohibited
by law in the sense that the person or authority making
the representation or promise must have the power to
carry out the promise. If the power is there, then subject
to the preconditions and limitations noted earlier, it must
be exercised. Thus, if the statute does not contain a
provision enabling the Government to grant exemption, it
would not be possible to enforce the representation
against the Government, because the Government cannot
Page 93 of 116
be compelled to act contrary to the statute. But if the
statute confers power on the Government to grant the
exemption, the Government can legitimately be held
bound by its promise to exempt the promisee from
payment of sales tax."
72. The Apex Court again the case of Century Spg. & Mfg. Co.
Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582 :
(1970) 3 SCR 854] emphasized the strengths as defined earlier
by holding as under:
"If the representation is acted upon by another person it
may, unless the statute governing the person making the
representation provides otherwise, result in an agreement
enforceable at law, if the statute requires that the
agreement shall be in a certain form, no contract may
result from the representation and acting thereupon but
the law is not powerless to raise in appropriate cases an
equity against him to compel performance of the
obligation arising out of his representation."
73. The Doctrine of Promissory Estoppel has been repeatedly
applied by the Apex Court in statutory notifications. In Pournami
Oil Mills v. State of Kerala [1986 Supp SCC 728 : 1987 SCC
(Tax) 134] the Government of Kerala by an order dated 11-4-
1979 invited small-scale units to set up their industries in the State
of Kerala and with a view to boost industrialization, exemption
Page 94 of 116
from sales tax and purchase tax was extended as a concession for
a period of five years, which was to run from the date of
commencement of production. By a subsequent notification dated
29-9-1980, published in the gazette on 21-10-1980, the State of
Kerala withdrew the exemption relating to the purchase tax and
confined the exemption from sales tax to the limit specified in the
proviso of the said notification. While quashing the subsequent
notification, it was observed:
"If in response to such an order and in consideration of
the concession made available, promoters of any small-
scale concern have set up their industries within the State
of Kerala, they would certainly be entitled to plead the
rule of estoppel in their favour when the State of Kerala
purports to act differently. Several decisions of this Court
were cited in support of the stand of the appellants that in
similar circumstances the plea of estoppel can be and has
been applied and the leading authority on this point is the
case of M.P. Sugar Mills [Motilal Padampat Sugar Mills Co.
Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax)
144] . On the other hand, reliance has been placed on
behalf of the State on a judgment of this Court in Bakul
Cashew Co. v. STO [(1986) 2 SCC 365 : 1986 SCC (Tax)
385] . In Bakul Cashew Co. case [(1986) 2 SCC 365 :
1986 SCC (Tax) 385] this Court found that there was no
clear material to show any definite or certain promise
which had been made by the Minister to the persons
Page 95 of 116
concerned and there was no clear material also in support
of the stand that the parties had altered their position by
acting upon the representations and suffered any
prejudice. On facts, therefore, no case for raising the plea
of estoppel was held to have been made out. This Court
proceeded on the footing that the notification granting
exemption retrospectively was not in accordance with
Section 10 of the State Sales Tax Act as it then stood, as
there was no power to grant exemption retrospectively.
By an amendment that power has been subsequently
conferred. In these appeals there is no question of
retrospective exemption. We also find that no reference
was made by the High Court to the decision in M.P. Sugar
Mills case [Motilal Padampat Sugar Mills Co. Ltd. v. State
of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] . In our
view, to the facts of the present case, the ratio of M.P.
Sugar Mills case [Motilal Padampat Sugar Mills Co. Ltd. v.
State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144]
directly applies and the plea of estoppel is unanswerable.
... Such exemption would continue for the full period of
five years from the date they started production. New
industries set up after 21-10-1980 obviously would not be
entitled to that benefit as they had notice of the
curtailment in the exemption before they came to set up
their industries."
74. The aforesaid decision was followed by a three-Judge Bench
in State of Bihar v. Usha Martin Industries Ltd. [1987 Supp
Page 96 of 116
SCC 710 : 1988 SCC (Tax) 116] where it was stated that the
matter stands concluded by the decision in Pournami Oil Mills
case. In Shri Bakul Oil Industries v. State of Gujarat [(1987)
1 SCC 31 : 1987 SCC (Tax) 74 : AIR 1987 SC 142] It was
observed in para 11 as under:
"The exemption granted by the Government, as already
stated, was only by way of concession for encouraging
entrepreneurs to start industries in rural and
undeveloped areas and as such it was always open to
the State Government to withdraw or revoke the
concession. We must, however, observe that the power
of revocation or withdrawal would be subject to one
limitation viz. the power cannot be exercised in violation
of the rule of promissory estoppel. In other words, the
Government can withdraw an exemption granted by it
earli11er if such withdrawal could be done without
offending the rule of promissory estoppel and depriving
an industry entitled to claim exemption from payment of
tax under the said rule. If the Government grants
exemption to a new industry and if on the basis of the
representation made by the Government an industry is
established in order to avail the benefit of exemption, it
may then follow that the new industry can legitimately
raise a grievance that the exemption could not be
withdrawn except by means of legislation having regard
Page 97 of 116
to the fact that promissory estoppel cannot be claimed
against a statute."
75. Answering the question as to whether the Board can be
restrained from withdrawing the rebate prematurely before the
completion of three/five years' period by virtue of the doctrine of
promissory estoppel, the Apex Court in Pawan Alloys & Casting
(P) Ltd. v. U.P. SEB [(1997) 7 SCC 251] held in paragraphs
10 & 24 as under:
"10. It is now well settled by a series of decisions of this
Court that the State authorities as well as its limbs like
the Board covered by the sweep of Article 12 of the
Constitution of India being treated as 'State' within the
meaning of the said article, can be made subject to the
equitable doctrine of promissory estoppel in cases where
because of their representation the party claiming
estoppel has changed its position and if such an estoppel
does not fly in the face of any statutory prohibition,
absence of power and authority of the promisor and is
otherwise not opposed to public interest, and also when
equity in favour of the promisee does not outweigh
equity in favour of the promisor entitling the latter to
legally get out of the promise.
***
24. ... We, therefore, agree with the finding of the High Court on Issue 1 that by these notifications the Board had clearly held out a promise to these new industries and as Page 98 of 116 these new industries had admittedly got established in the region where the Board was operating, acting on such promise, the same in equity would bind the Board. Such a promise was not contrary to any statutory provision but on the contrary was in compliance with the directions issued under Section 78-A of the Act. These new industries which got attracted to this region relying upon the promise had altered their position irretrievably. They had spent large amounts of money for establishing the infrastructure, had entered into agreements with the Board for supply of electricity and, therefore, had necessarily altered their position relying on these representations thinking that they would be assured of at least three years' period guaranteeing rebate of 10% on the total bill of electricity to be consumed by them as infancy benefit so that they could effectively compete with the old industries operating in the field and their products could effectively compete with their products. On these well-established facts the Board can certainly be pinned down to its promise on the doctrine of promissory estoppel."
76. In Mahabir Vegetable Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC 620, the Apex Court observed that "it is beyond any cavil that the doctrine of promissory estoppel operates even in the legislative field". This was in connection with a statutory notification under the Haryana General Sales Tax Act. Page 99 of 116
77. A survey of the earlier decisions has also been made by the Apex Court in State of Punjab v. Nestle India Ltd., (2004) 6 SCC 465, wherein the law has been stated in the following terms:
"25. In other words, promissory estoppel long recognised as a legitimate defence in equity was held to found a cause of action against the Government, even when, and this needs to be emphasised, the representation sought to be enforced was legally invalid in the sense that it was made in a manner which was not in conformity with the procedure prescribed by statute."
78. Referring to its judgment in Motilal Padampat (Supra), the Apex Court in Nestle India Ltd (Supra) observed as under:
"29. As for its strengths it was said: that the doctrine was not limited only to cases where there was some contractual relationship or other pre-existing legal relationship between the parties. The principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. The Government was held to be equally susceptible to the operation of the doctrine in whatever area or field the promise is made -- contractual, administrative or statutory. To put it in the words of the Court:Page 100 of 116
'The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution.
*** [E]quity will, in a given case where justice and fairness demand, prevent a person from insisting on strict legal rights, even where they arise, not under any contract, but on his own title deeds or under statute.
*** Whatever be the nature of the function which the Government is discharging, the Government is subject to the rule of promissory estoppel and if the essential ingredients of this rule are satisfied, the Government can be compelled to carry out the promise made by it. "
79. The Apex Court distinguished its earlier decision in Kasinka Trading v. Union of India, (1995) 1 SCC 274, by holding as under:
Page 101 of 116
"40. The case of Kasinka Trading v. Union of India [(1995) 1 SCC 274] cited by the appellant is an authority for the proposition that the mere issuance of an exemption notification under a provision in a fiscal statute such as Section 25 of the Customs Act, 1962, could not create any promissory estoppel because such an exemption by its very nature is susceptible to being revoked or modified or subjected to other conditions. In other words, there is no unequivocal representation. The seeds of equivocation are inherent in the power to grant exemption. Therefore, an exemption notification can be revoked without falling foul of the principle of promissory estoppel. It would not, in the circumstances, be necessary for the Government to establish an overriding equity in its favour to defeat the petitioner's plea of promissory estoppel. The Court also held that the Government of India had justified the withdrawal of exemption notification on relevant reasons in the public interest. Incidentally, the Court also noticed the lack of established prejudice to the promises when it said:
'The burden of customs duty, etc. is passed on to the consumer and therefore the question of the appellants being put to a huge loss is not understandable.'"
80. In MRF Ltd. v. Asstt. CST, (2006) 8 SCC 702, the judgment in Kasinka Trading (Supra) was also held to be inapplicable. In the said judgment, it was held that the doctrine of promissory estoppel will also apply to statutory notifications. Page 102 of 116
81. The law relating to promissory estoppel was again reiterated and crystallized by the Apex Court in its latest judgment, State of Jharkhand vs. Brahmaputra Metallics Ltd., (2023) 10 SCC
634.
82. After elaborate discussions of the law on Promissory Estoppel as laid down by the Apex Court, it is seen that the State authorities as well as its limbs covered under the sweep of Article 12 of the Constitution of India being treated as 'State' within the meaning of the said article, can be made subject to the equitable doctrine of promissory estoppel in cases where because of their representation the party claiming estoppel has changed its position and if such an estoppel does not fall under any statutory prohibition, absence of power and authority of the promisor and/or is otherwise not opposed to public interest, and also when equity in favour of the promisee does not outweigh equity in favour of the promisor entitling the latter to legally get out of the promise.
83. Having examined the peculiar facts and circumstances enumerated before this Court by the parties, it is seen that the petitioner Industries in respect of W.P.(C) No. 5133/2018; W.P.(C) No. 5139/2018; W.P(C) No. 5141/2018; W.P.(C) No. 5143/2018 and W.P.(C) No. 5136/2018 has established their units within the period Page 103 of 116 concerned and pursuant Judgment and order dated 12.05.2015 passed in W.P.(C) No. 2899/2011 and other bunch of writ petitions setting aside the Rule 57A of the Assam Value Added Tax (Third Amendment) Rules 2009 as ultra vires provisions of the definition "manufacture" as prescribed under the Assam Value Added Tax Act, 2003, applications as necessary were duly made for grant of eligibility certificate. There being no material placed before the Court by the respondents to the effect that the units of the Industries concerned never commenced commercial production or were never established in terms of the provisions of the Industrial Policy, in the face of the assessments conducted by the Finance Department and levy of demand of sales tax on the sales made by these units/industries and these assessments having been made on the basis of due examination of the books of accounts of the said industries, it has to be held that these industries did establish their units in terms of the Industrial Policy and had commenced its productions. But for the insertion of Rule 57A in the Assam Value Added Tax (Third Amendment) Rules which did not consider conversion of Coal to Coke carried out by these units, the eligibility certificate could not be applied for as the production carried on by the unit/industry was excluded from the definition of 'manufacture'. However, pursuant to the said Rule 57 being set aside, the steps Page 104 of 116 were taken by the petitioner industries to submit the required applications for their respective eligibility certificates. Perusal of the Industrial Policy available before this Court does not reveal that anywhere in the Industrial Policy there is any mandate prescribed that the concerned industries setup must continue to be in existence throughout the tenure of the policy. From the pleadings, in so far as the Shiva Coke Industries is concerned, it is seen that the industry was setup and a provisional registration was granted on 31.12.2004 which was valid for five (5) years. The Pollution Control Board had granted its provisional consent on 04.04.2009 and thereafter granted the consent to operate the business for the period 2009-10, 2010-11 and 2011-12, the licence by the Chief Inspector of Factories was granted on 18.02.2009. The Entrepreneurs Memorandum available in the pleadings, containing the details of the industry to be set up including the date of commercial production reflects that the date of commercial production is shown to be 24.06.2009 and the acknowledgement to that was issued by the Office of the General Manager, DIC Centre. As such, it clearly established that the industry was set up and the various departments had granted their consent and No Objection Certificates. Therefore without proper materials being placed before the Court, a mere statement or a certificate given by the General Manager of the Industries Department that the Page 105 of 116 unit is non-functional would be contrary to the established procedure prescribed under the Industrial Policy and the steps taken by the petitioner industry duly acknowledged by the concerned departments. The industry department was permitted opportunities to produce the relevant records on the basis of which the General Manager had issued the certificate that the industry was non- functioning on the date it went for physical verification. However, no such records were placed before the Court.
84. Under such circumstances, both the conclusions arrived at by the industries department as well as the Finance and Taxation Department run contrary to each other and cannot be accepted to be correct at the same time. If the conclusions arrived at by the Industries department that the industry was non-functioning is to be accepted, then the assessments made by the Finance Department and the consequential demand will have to be illegal and arbitrary as the industries department have held that the industry was non- functioning and therefore could not have generated any production and consequent sales. However, a perusal of the assessment order by the Finance and Taxation Department reveals that the said order was passed upon due verification of books of accounts and other relevant documents. The assessments were made treating the Page 106 of 116 petitioners to be regular registered dealer in the absence of the eligibility certificate produced by the petitioners. The benefit of exemption was not granted as the eligibility certificate was not produced. Since the orders of assessment and the subsequent demands were stated to be passed by the Finance Department after due examination of the books of accounts and other relevant documents, such findings by a quasi-judicial authority strongly suggests that the industry was in existence at the time when the assessments were completed for the relevant years. In the face of such conclusion by the quasi-judicial authority, the certificate of the General Manager that the industry was non-functional cannot be accepted.
85. This certificate of the General Manager cannot be accepted on another ground also. The eligibility certificate in respect of the writ petitioner was rejected by the State Level Committee in which the representatives of both the industries as well as the Finance Department are members. Where one component of the State Level Committee returned the finding that the industry conducted sales of its products and accordingly they were assessed to tax and demands were raised, another component of the same State Level Committee namely the Industries Department cannot come to a conclusion that Page 107 of 116 the unit was non-functional. The State Level Committee in its turn could not have rejected the eligibility certificate of the writ petitioners, without due consideration of the fact that they have also been assessed to tax by the Finance Department who is also a part of the State Level Committee. It is a trite law that the Government must speak in one voice. The Industrial Policy having been announced by the Government of Assam, the various components of the State Level Committee comprising of Industries, Finance etc. must ensure that the benefits required to be given to the various industries if found to be eligible must be duly conferred and in the event any of these industries are found to be ineligible then any orders rejecting such claims must be issued by the State Level Committee upon due consideration of the views of all the respective departments. In the facts of the present case, the State Level Committee rejected the claims of the eligibility certificate by the petitioner on the basis of the certificate issued by the General Manager that the industry was non-functioning. From the pleadings and the materials placed before the Court, it is seen that State Level Committee did not consider the assessments made by the Finance Department and the demand raised in respect of the said industry before concluding that the industry was non-functional and consequently rejected its eligibility certificate. Page 108 of 116
86. It is also clear from the pleadings that pursuant to the promises offered by the Government by way of the Industrial Policy, the petitioners altered their position to their detriment and made substantial investments. If these industries were indeed non- functioning then their registrations etc under the Industrial Policy also should have been cancelled and appropriate proceedings as per law should have been initiated against them by the Government. No such steps were initiated or even shown to be contemplated. Under such circumstances the state cannot be permitted to resile from its promise made without any justified reasons. Any such denial of the benefits under the Industrial Policy, if permitted, will be in total violation of the Doctrine of promissory Estoppel.
87. As have been discussed above, the State Level Committee comprises of representatives of various Government Departments including the Industries and Taxation. If the State Level Committee had indeed examined the claims of the petitioner for grant of eligibility certificates on relevant documents and materials, it would have been known to the State Level Committee that the Finance and Taxation Department have proceeded to make assessments on the concerned unit or industry for the relevant assessment years and therefore, the report of the General Manager, Industries on the other Page 109 of 116 hand that the unit or the industries were non-functioning ought to have called for a detailed examination requiring re-verification of the contrary views of both the departments. It is necessary to hold here that the State Government although comprises of several departments, that the voice of the Government must be One. Where the Government has announced the Industrial Policy inviting the Industrialists to set up their industries and held out a promise to give them all benefits all notified under the Industrial Policy, then the respective departments of the Government must work in tandem to ensure that the promise held out by the Government in the Industrial Policy is properly implemented in terms of the promise held out. The departments cannot be to have contrary views in respect of the functioning of an Industry as the same will be contrary to the scheme of the Industrial Policy itself. In this context, a reference to the Judgment of the Apex Court rendered in Vadilal Chemicals Ltd. Vs. State of A.P. and ors, reported in (2005) 6 SCC 292 is required to be referred to.
88. In that case, before the Supreme Court, the activity undertaken by the said industry was not held to be "manufacture" although the industry had its eligibility certificate by the concerned committee in terms of the Government order issued by the State of Andhra Page 110 of 116 Pradesh granting benefits and exemptions to the industries such as the petitioner therein. The Apex Court in that case held that the grant of eligibility certificates was not the outcome of an unconsidered decision based on extraneous consideration and the matter was considered in-depth and sanctioned by the District Level Committee of which the department of Taxation was a part. No malafides were attributed against the industry therein nor was it a case of the industry taking unfair advantage of the Government Notification. The Apex Court therefore held that State which is represented by the Departments can only speak in one voice.
89. In the context of the present case proceedings also the application for eligibility was duly submitted to the Industries Department and which was received by none other than in the Office of the General Manager, Industries. The various other departments from whom the clearance was required to be obtained like the Pollution Control Board, the Inspector of Factories etc were also duly obtained. Subsequently, the Finance Department came to initiate the assessment proceedings in respect of the unit for the industry concerned as registered dealer under the Assam Vat Act 2003 and the Rules thereunder and declined to grant the relevant exemptions Page 111 of 116 as the eligibility certificate could not be produced at the time of filing the returns by the said units or industries.
90. As have been discussed, the assessment orders itself reflects that the books of accounts etc were examined and pursuant to which the assessment orders and the consequential demands were raised. Therefore, in the facts of the present case, besides the other departments which had the occasion to examine the papers submitted for establishment of the industry as well as assessment order and the consequential demands raised by the Finance Department, the fact remains that there is no malafide alleged against the industry or unit by the respondent authorities. There is also no allegation that undue advantage has been sought to be taken by the industries in respect of Industrial Policy concerned. Under such circumstances, the department of Finance as well as the Industries Department, being representatives of different department but a part of the same Government and a constituent members of the State Level Committee,- the State Level Committee being the mouth piece of the Government in so far as the Industrial Policy is concerned they must speak in one voice by taking into various views and evaluations undertaken by each of the constituent members. Page 112 of 116
91. The conclusions have been arrived at by this Court are on the basis of the facts in W.P(C) No. 5133/2018 (Sheo Shakti Coke). As have been discussed above, in all the other writ petitions namely, W.P.(C) No. 5139/2018 (Shiva Coke Industries); W.P.(C) No. 5141/2018 (Raj Coke Industries); W.P.(C) No. 5143/2018 ( Jai Coke Industries) and W.P.(C) No. 5136/2018 (Sethi Coke Industries), the facts and circumstances are similar. Therefore, the conclusions arrived at by this Court are also applicable to the other writ petitions in W.P.(C) No. 5139/2018; W.P.(C) No. 5141/2018; W.P.(C) No. 5143/2018 and W.P.(C) No. 5136/2018. These writ petitions are therefore, allowed. The impugned orders or communications issued by the State Level Committee rejecting the eligibility of these writ petitioners vide orders dated 05.05.2018 are all set aside. The matters are remanded back to the authorities more particularly the State Level Committee to pass appropriate orders in respect of the eligibility of each of the industries or units granting them eligibility under the Industrial Policy. The industries shall be granted their respective eligibility certificates and their claims shall not be denied on the ground that the units/industries subsequently closed it's operations and/or did not operate for the entire period of the Industrial Policy and/or continued production.
Page 113 of 116
92. In so far as the W.P.(C) No. 1828/2019; W.P(C) No. 2138/2019; W.P(C) No. 5954/2018; W.P(C) No. 5937/2018; W.P.(C) No. 5957/2018; W.P.(C) No. 2111/2019; W.P.(C) No. 1843/2019; W.P(C) No. 2096/2019; W.P(C) No. 6027/2018; W.P(C) No. 5960/2018; W.P(C) No. 5917/2018; W.P(C) No. 1860/2019; W.P(C) NO. 5980/2018; W.P(C) No. 5932/2018 and W.P(C) No. 5931/2019, it is seen that these writ petitions have been filed putting to challenge the assessments made by the assessing authority namely the Finance and Taxation Department for the relevant years in questions and the consequential demands raised. The sole ground for assailing the assessment orders in these writ petitions is that the Finance Department ought not to have proceeded with the assessments in question as the relevant applications for grant of eligibility certificates in respect of the industries or units were pending before the appropriate authority under the relevant Industrial Policy. As a consequence thereof, the benefit of exemptions by the petitioners could not be availed off as the returns could not be filed on the online mode supported by the eligibility certificate as is required under the procedure. These returns were filed in the physical mode with due representations that the claims for eligibility are under consideration and the department is required to await the grant of eligibility certificate by the Industries Page 114 of 116 Department. No other ground is urged in these writ petitions. The industrial policy having been carefully examined does not provide for any exemptions for the period during which the eligibility certificate is under consideration. Even under the Assam Industries (Tax) Remission Scheme, 2005 which was announced to grant exemption from taxation under the Industrial Policy, there was no provision for grant of any benefits unless the eligibility certificate is granted to the unit concerned. No benefit is contemplated during the period under which the application for grant of eligibility certificate is under consideration. Since the only ground urged for assailing the assessments and the consequential demands raised is the refusal of the Finance and Taxation Department to await for the grant of eligibility certificate which was under consideration at the relevant point in time, in the absence of any provisions prescribed under the Act, Rules or the Scheme or the Industrial Policy being referred to, no infirmity is found in the assessments made by the department. These writ petitions are found to be devoid of merits and the prayers made in these writ petitions for interference of the relevant assessment orders and the demands made are therefore rejected.
93. However, in view of the directions herein above in respect of W.P.(C) No. 5133/2018; W.P.(C) No. 5139/2018; W.P(C) No. Page 115 of 116 5141/2018; W.P.(C) No. 5143/2018 and W.P.(C) No. 5136/2018 which are remanded to the authorities for grant of the eligibility certificates once the eligibility certificate is granted then the consequential benefits of exemptions in respect of the taxes to be paid under the Assam Vat Act, 2003 read with the Rules made thereunder read together with the provisions of the Assam Industries (Tax Remission) Scheme, 2005 will also be granted to the writ petitioners for the relevant assessment years. Once the eligibility certificate as such is granted as directed, the relevant authorities will ensure that the benefits applicable to the petitioners are not denied and the same are granted to the petitioners by giving them necessary refund or the benefit of adjustments towards the future taxes to be paid.
94. The writ petitions are accordingly disposed of in terms of the above. No order as to costs. Interim order stands merged with the final order. Pending I.As, if any, are also disposed of.
JUDGE Comparing Assistant Page 116 of 116