TMI Blog1995 (4) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. The factory of the petitioner is in the State of Gujarat at A1-3502, GIDC, Sachin, District Surat. The company manufactures corrugated boxes for packing and selling them. It is also a dealer registered under the Act. According to the petitioners, the company tempted to establish a small-scale industry in a backward area at Sachin, District Surat by investing huge amount on account of being informed by resolutions, dated August 27, 1980 and March 18, 1982 issued by the Industries, Mines and Power Department and Finance Department respectively of the first respondent-State. A scheme of the sales tax incentive from June 1, 1980 was introduced for a period of five years by which sales tax exemption incentives had been granted vide entry No. 118 as per notification dated February 5, 1981 issued under sub-section (2) of section 49 of the Act. The petitioner took steps to obtain factory shed of Gujarat Industrial Development Corporation, a Government of Gujarat undertaking at Sachin by obtaining possession thereof and by incurring expenses of Rs. 1,71,145. Thereafter it invested huge amount of more than Rs. 15 lacs. According to the petitioner, it started production from February 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat question now does not survive. 4.. On merits, Mr. Pathak submitted that on the basis of the notification issued in exercise of power under section 49(2) of the Act, the petitioner is entitled to get tax exemption to the extent of 50 per cent. Initially, it was granted and the order was passed in his favour. That action was in consonance with law. The respondent-authorities had no power, authority or jurisdiction to cancel or modify or withdraw the said benefit. Now, the notification issued under section 49(2) of the Act, inter alia, provides for grant for tax exemption benefit by amending earlier notification dated April 29, 1970. The notification on which reliance is placed by Mr. Pathak was issued on February 5, 1981 and in the Schedule, after entry No. 117, entry No. 118 was added. Entry No. 118(3) stipulates that benefit will be given to those new industries and manufacturers who have obtained eligibility certificates from Industries Commissioner or General Manager of the District Industries stating therein that new industry has been commissioned on the date specified therein, being any date during the period commencing on June 1, 1980 and ending on May 31, 1985 in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption envisaged in the Government resolution dated August 27, 1980 and in exercise of the power under section 49(2), it was inserted vide notification dated April 29, 1970. One of the conditions specified in the said entry No. 118 was that the specified manufacturer claiming benefit of exemption must have obtained an eligibility certificate from the Commissioner of Industries or General Manager of District Industries Centre. In para (B), it is stated as under: (B) At this stage, it would be pertinent to note that for the purpose of determining eligibility for incentive, and the extent thereof, what is material is the distance of growth centre from the municipal limits of certain specified cities (generally known as the banned distance) and not that of the concerned unit. In the case of Surat, such banned distance is 10 kms. In para (1), the deponent has stated that the question had arisen as regards the extent of incentives which an industrial unit located in a growth centre which falls partly within and partly outside the banned distance, would be entitled to. By a letter dated June 15, 1982 addressed to the Industries Commissioner, the Government clarified even if a portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment notification under the Act. The real question, therefore, is as to whether the respondent-authorities are right in depriving the petitioner of that benefit available under the statutory notification on the ground that Sachin is situated within 10 kms. from Surat and, hence the petitioner is not entitled to the benefit of the notification. In our opinion, the submission of the learned counsel for the petitioner is well-founded that the relevant query is not as to whether or not Sachin situated within 10 kms from Surat but as to where the unit of the petitioner is located. It is not even the case of the respondent-authorities that other conditions under notification have not been fulfilled by the petitioner. In our view under the notification what is required to be seen for getting benefits under the notification is whether new industry has been commissioned in any of the designated areas . The notification makes it clear that as to what designated area means. It defined designated area as an area beyond 10 kms. from the city of Surat. It is the case of the petitioners which is not disputed and really there is sufficient evidence on record including the certificate issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in our opinion, is not open to them. 8.. There is one more reason also on which the petition should be allowed. Admittedly, the notification A/3 is statutory in character. That statutory notification defined designated area as an area beyond 10 kms. from the city of Surat. The said definition must hold the field and should be given effect until it is clarified, modified or amended by issuing a similar notification under section 49(2) of the Act. It is not open to the Government by a letter (executive fiat) to clarify the expression designated area when it has been defined statutorily. The so-called clarification of the Government in view of the settled legal position cannot override statutory definition and the case must be decided on the basis of notification of February 5, 1981. It is pertinent to note in this connection that according to the respondents that the definition of designated area under the scheme was understood by all concerned in the same way as discussed above and in fact benefit thereof was allowed to all concerned who had, taken effective steps to set up a new industrial unit before June 15, 1982, as per clarificatory letter, dated May 16, 1982, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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