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2013 (3) TMI 213

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....has also challenged the order dated September 13, 2000 (P1), passed by the Assessing Authority for Cess-cum-Member Secretary, Haryana State Board for Prevention and Control of Water Pollution, under section 11 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (for brevity, "the Cess Act") raising the demand of Rs. 8,16,851 on account of water cess payable by the petitioner, imposing the penalty of equivalent amount as well as interest of Rs. 7,49,418, total of which comes to Rs. 23,82,120. The order dated March 15, 2011 (P4), passed by the appellate authority, dismissing the appeal preferred by the petitioner-company under section 13 of the Cess Act against the order dated September 13, 2000, has also been challenged. Still ....

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....espondent No. 2, exercising powers under sections 10 and 11 of the Cess Act, raised the total demand of Rs. 23,83,120, which includes water cess, penalty and interest (P1). Feeling aggrieved, the petitioner-company filed an appeal on October 11, 2000 under section 13 of the Cess Act, for setting aside the order dated September 13, 2000. It was specifically highlighted in the appeal that since the petitioner-company has been declared as a sick company by the BIFR on October 4, 1996, therefore, as per section 22 of the SICA no recovery could be effected from it without seeking prior permission from the BIFR. It was further stated that even the assets of the company could not be disposed of or alienated without the permission of the BIFR (P2).....

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...., Shri P.K. Sharma, was present during the proceedings. In paragraph 12 of the order dated January 10, 2007, it has been specifically directed that the various Government and statutory authorities including the Haryana State Pollution Control Board would reassess their demands after taking into account the period for which the petitioner-company had remained closed. 6. In paragraph 13 of the petition, the petitioner-company has given the details of debts/liabilities which have been discharged by it when the proceedings were pending before the BIFR and even thereafter. The respondents, however, did not accept in principle that the rehabilitation scheme prepared by the BIFR was the rehabilitation scheme finalised by the BIFR (P6 colly). The ....

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....2 of the order dated January 10, 2007, the BIFR has specifically issued directions to various Government and statutory authorities including the respondent-Pollution Control Board that they would reassess their demands after taking into account the period for which the petitioner-company had remained closed. In paragraph 7(B)(x) of the rehabilitation scheme, in respect of the dues of the State Government of Haryana and its agencies, the following proposal has been approved by the BIFR : "(x) State Government of Haryana : (a)To declare the company as a 'Relief Undertaking' and grant all benefits and concessions as per the State Government's policy guidelines for sick industrial units. (b)To accept the payment of power charges based on act....

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....heme is not binding on them and there is no provision in the Cess Act for waiving the penalty and interest. 10. Even otherwise once a company is before the BIFR, section 22 of the SICA would come in operation. It would be profitable to reproduce the relevant part of section 22 of the SICA, which reads thus : "22. Suspension of legal proceedings, contracts, etc.-(1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any ....

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....ndustries Ltd. v. P.N.B. Capital Services Ltd. [2000] 101 Comp Cas 284 / 25 SCL 461 . It was held that for successfully invoking the applicability of section 22 of the SICA, it has to be established that a sanctioned scheme is under implementation and it could not be said that despite the aforesaid situation the provisions of section 22 would not be attracted (see paragraph 9). Therefore, it is evident that the BIFR has permitted respondents Nos. 2 and 3 to accept the payment of water cess as based on actual discharge till the company was in operation as per past average. The payment has to be made over a period of 12 months from the date of sanction of the scheme and to waive the entire interest, penalty etc. This aspect has also been high....