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2023 (4) TMI 259 - HIMACHAL PRADESH HIGH COURTArea Based Exemption - Inclusion of the commodities produced by it i.e. kraft paper (4804.90) and printing and writing paper (4802.90) in negative list vide Notification dated 27.6.2008 - whether the products manufactured by petitioner were included in the negative list right from the inception and if not so, whether the benefits of fiscal incentives could be denied to the petitioner by giving retrospective effect to notification dated 27.06.2008 issued by respondent No.1? - entire thrust of attack in the petition is on the amendment carried in the negative list by respondent No.1 by way of amending notification dated 27.06.2008. HELD THAT:- The negative list made specific inclusion of products by their excise classifications. The products of kraft paper and printing and writing paper included in negative list had their particular species, which definitely did not include product as manufactured by the petitioner. This action becomes evident from the fact that respondent No.1 had to include the remaining types of kraft papers as well as printing and writing paper in the category of “Others” under excise classifications 4802.90 and 4804.90 by amending Office Memorandum dated 07.01.2003, firstly by bringing out Office Memorandum dated 21.06.2005 and thereafter by way of impugned notification dated 27.06.2008. The fact of the matter is that Office Memorandum dated 07.01.2003 had been followed by notification dated 08.01.2003 extending benefit of subsidy in capital investment and further notifications No.49 and 59 dated 10.06.2003, whereby the benefit of exemption or payment of excise duty was extended. All these notifications had appended or annexed a negative list each with them. These negative lists were in identical terms as Office Memorandum dated 07.01.2003. These notifications were not amended. Similarly, appendice attached to said notifications specifically the negative lists remained the same. Thus, the benefit extended by these notification(s) remained available to all eligible industrial units save and except those mentioned in the negative list - the products manufactured by the petitioner were not mentioned in the negative list(s) annexed with all these notifications. The entire thrust of attack in the petition is on the amendment carried in the negative list by respondent No.1 by way of amending notification dated 27.06.2008. There is not even a whisper that petitioner had ever made any claim to the respondents under the notifications dated 08.01.2003 and 10.06.2003 and the respondents had denied such claim(s). In the absence of such averments, the petitioner cannot be held to have made out a case for itself to seek indulgence of this Court. This petition is disposed off by holding that the petitioner has failed to make out any cause of action for seeking reliefs as prayed by way of instant petition.
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