TMI Blog2011 (6) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ve list, no fault can be found with the notification issued by the State including liquor in the negative list with retrospective effect, petition which is accordingly rejected - CWP No. 3704 of 2010 - - - Dated:- 13-6-2011 - Deepak Gupta, J. M.M. Khanna, Sr. Adv. with Vayur Gautam for the Petitioner Vivek Singh Thakur, Addl. Adv.-General for the Respondent JUDGEMENT Deepak Gupta, J:- By means of this petition, the petitioner which is a company engaged in the manufacture of liquor, has prayed that the letter dated June 24, 2009 whereby the benefit of deferment of tax under H. P. General Sales Tax (Deferment of Tax) Scheme, 2005 granted to it was withdrawn be quashed and the State be directed to restore the benefit of deferment to the petitioner. Briefly stated the facts of the case are that the State of Himachal Pradesh framed a scheme where the industries which were set up or substantially expanded would be given benefit of deferment of tax. As per this scheme, eligible industrial units other than those specified in the negative list which came into commercial production before January 7, 2003 and which had undertaken substantial expansion after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Khanna, learned senior advocate appearing on behalf of the petitioner, contends that no retrospective operation, can be given to such subordinate legislation especially where a party has changed its stand and has invested huge amount of money for expansion of its unit. Sh. Khanna has placed reliance on the judgment of the apex court in Mahabir Vegetable Oils Pvt. Ltd. v. State of Haryana [2006] 145 STC 350 (SC) ; [2006] 6 RC 417 ; [2006] 3 SCC 620 wherein the apex court held as follows (paras 21-23 at pages 378 and 379 in 145 STC):- "22. It is not in dispute that when the appellants herein started making investments, rule 28A was operative. Representation indisputably was made in terms of the said Rules. The State, as noticed hereinbefore, made a long term industrial policy. From time to time it makes changes in the policy keeping in view the situational change. 23. The State intended, inter alia, to grant incentive to include industrial units by way of waiver and/or deferment of payment of sales tax wherefor rule 28A was made. The sales tax laws enacted by the State, as noticed hereinbefore, contain a provision empowering the State to grant such exemption. 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the four corners thereof. 42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. See West v. Gwynne [1911] 2 Ch. 1. 43. A retrospective effect to an amendment by way of a delegated legislation could be given, thus, only after coming into force of subsection (2A) of section 64 of the Act and not prior thereto. 44. By reason of Note 2, certain rights were conferred. Although there lies a distinction between vested rights and accrued rights as by reason of a delegated legislation, a right cannot be taken away. The amendments carried out in 1996 as also the subsequent amendments made prior to 2001, could not, thus, have taken away the rights of the appellant with retrospective effect." Reliance has also been placed on the judgment of the apex court in State of U. P. v. Vam Organic Chemicals Limited [2010] 29 VST 1 (SC) ; [2010] 6 SCC 222, wherein the apex court held as follows (para 15 at page 9 in 29 VST):- "26. . . .When a recognition certificate is issued, a benefit of concessional rate of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Sales Tax Act, 1968 (Act No. 24 of 1968), the Governor of Himachal Pradesh is pleased to direct that no tax shall be levied under section 6 of the aforesaid Act on the sale of goods [other than those manufactured by breweries/distilleries, non-fruit/vegetable based wineries and bottling plants (both of country liquor and Indian made foreign liquor)] manufactured by the dealers running any new industrial units and or existing industrial units as on January 7, 2003 located in the tax-free industrial zone, for a period of 10 years from the date of commencement of commercial production or from the date of this notification, whichever is later." On the same date, i.e., March 30, 2005, another scheme was also framed in which the benefit of deferred payment of tax was given to entrepreneurs setting up new industrial units in the State of H. P. This scheme was applicable to the units set up in areas not falling under the purview of the first scheme. All units were eligible except those included in the negative list. The negative list which is annexure 1 of the Scheme included items such as tobacco and tobacco products, thermal power plants, coal washeries, inorganic chemicals, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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