TMI Blog2011 (3) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... cation differently worded but, this cannot govern the earlier notifications and Government Orders which have already been referred to. Admittedly, the unit belonging to the appellant obtained registration from the Industrial Department as a medium scale unit for the manufacture of steel rods and bars on 06.09.1991. The suggestion made by the learned Government Pleader that clauses 2 and 3 should be read together, cannot be countenanced. Clauses 2 and 3 deal with two different situations and there is nothing in common. One is not controlled by the other. Since the petitioner's unit is registered earlier to the date mentioned in the notifications, obviously, he is entitled to the benefit. The petitioner succeeds on this ground also. It is well settled that merely because a wrong has been committed, that does not confer any right on others to claim the very same benefit. However, one needs to notice that the definite allegation of the petitioner in the writ petition is that except the unit belonging to the petitioner on other similarly situated units have been granted exemptions and his unit alone has been singled WA 991/03 & connected cases out. True, merely because a mistake m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The only restriction imposed was that the aggregate of the exemption contemplated under clause 4 of exhibit P2 shall not exceed 100 per cent of the capital investment of the unit. The petitioner's unit commenced production on March 31, 1995. Going by clause 11 of exhibit P2, his unit is entitled to exemption. Subsequent to March 31, 1995, an additional capital investment was made by the petitioner. As on March 31, 1996, the total capital investment of the petitioner's unit was ₹ 3,96,62,211.62. Since the petitioner's unit satisfied all the necessary conditions for exemption as envisaged under exhibit P2, his unit got tax exemption for a period of seven years from March 31, 1995 to March 30, 2002. 4. Initially, the petitioner's unit started production with a high tension capacity of 1500 KVA. Subsequent to the commencement of production and additional capital investments made, for making the unit more efficient and productive, the petitioner needed more power. After commencement of the production on March 31, 1995, the petitioner made an application for exemption from payment of sales tax before the Director of Industries and Commerce. The said authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the Director of Industries and Commerce, the petitioner's unit came to be included in the negative list on account of clause 7 of exhibit P8 which excluded the units whose total power requirement exceeded 2,500 KVA. The petitioner points out that it was without adverting to GO (MS) No. 102/94/ID dated April 19, 1994 that the application for exemption filed by him was kept pending. That Government Order stated that the exemption continued to be available to all such industries, which were provisionally registered before December 31, 1993. The petitioner's unit having been registered on September 6, 1991, was entitled to the benefit. O. P. No. 24212 of 1999 was disposed of with a direction to the Government to furnish the clarification sought for within a prescribed time limit and directing the authorities concerned to take appropriate decision on the basis of the clarification issued by the State. The petitioner had preferred a writ appeal against exhibit P11 judgment. Pursuant to the directions in Ext.P11 judgment, the Director of Industries and Commerce passed an order declining sales tax exemption in respect of the WA 991/03 connected cases capital investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the GO dated 27.11.1993. The Apex Court approved the GO dated 27.11.1993. The Apex Court also held that the GO dated 24.11.1998 had retrospective effect. When the GO dated 19.4.1994 came up for consideration before the Apex Court, it was noticed that the said GO has not been considered by this Court while dealing with the matter. 11. According to the Apex Court, clause 3 of the said GO has considerable impact on the issues involved in the proceedings. The Apex Court also observed that the order dated 21.10.2000 issued by the Director of Industries had also not been considered by this court. It was also observed by the Apex Court that this Court had omitted to consider clause 3 of the GO dated 01.11.1995. The specific contention taken by the State before the Apex WA 991/03 connected cases Court was that this Court ought to have read the word and contained in clause 7 of the said GO as or . The Apex Court said that since this specific issue has not been considered by this court, the matter requires reconsideration by this Court and accordingly, remanded the matter to this court. This is how, the writ appeals have come up before this court again. WP(C) No.19516/09 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminated. That could not be done. The learned counsel for the appellant relied on the decisions in Organo Chemical Industries v. Union of India (1979) 4 SCC 573), Berger Paints India Limited v. Commissioner of Income Tax (2004) 12 SCC 42), R B Falcon (A) Pty. Limited v. Commissioner of Income Tax (2008) 12 SCC WA 991/03 connected cases 466), State of Karnataka v. Balaji Computers (2007) 2 SCC 743), Union of India v. Kaumudini Narayan Dalal (2001) 10 SCC 231) and Indian Oil Corporation Limited v. Collector of Central Tax (2007(13) SCC 803), in support of his contentions. 14. The learned Government Pleader, on the other hand, contends that the word 'and' occurring in the Government order produced as Annexure-8 should be read as 'or' and if that be so, the decision taken by the Revenue, declining exemption to the petitioner, is perfectly justified. In support of his contention, the learned Government Pleader relied on the decision report in Attorney General v. Beauchamp (1920(1) KB 650) and R. v. Oakes (1959) 2 All.E.R. 92). As regards clause 2 relied on by the appellant, it was contended that it should be read along with clause 3 and clause 2 cannot be read in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract load and where cost of power is more than 25% of cost of production of the items manufactured except where the units generate their power requirements in excess of 2500 KVA of contract load by own captive power. 2. All units in the above list provisionally registered on or after 31.12.1993 will not be eligible for the State Investment Subsidy. Provisional registration for the purpose of large and medium units will be taken to mean, the date of S.I.A. registration/filling I.E.M. with Government of India Letter of Intent/submission of application for financial assistance, as the case may be. WA 991/03 connected cases 3. Expansion/modernisation/diversification of existing units in the areas included in the list above shall also not be eligible for any financial assistance/loan/tax exemption from Government unless application has been made by the unit for the purpose and received on or before the cut off date viz. 31.12.1993. 17. The next GO that may have relevance is Annexure-10 GO dated 19.04.1994. So far as the cases on hand are concerned, the relevant portion is clause 3, which reads as follows : 3. Government wish to clarify that the financial assistance/loan/tax ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by own captive power, are entitled to the benefit. 20. On a plain reading of the provision, it is clear that in the latter portion, in order to go outside the ambit of the benefits of tax exemption, the unit has to satisfy both the requirements i.e., it has to have the power requirement which exceeds 2500 KVA of contract load and the cost of power is more than 25% of the cost of production of the items manufactured. 21. The State, on the other hand, wants 'and' to be read as 'or'. For the said purpose, the learned Government Pleader relies on the decisions already made mention of. It is true that under certain circumstances, 'and' could be read as 'or' or vice versa in order to avoid resulting absurdity. 22. In the Principles of Statutory Interpretation by Justice G.P.Singh at page 250, this aspect is dealt with. It is stated that the word 'or' is normally WA 991/03 connected cases distinctive and 'and' is normally conjunctive, but at times, they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. Usually, according to the author, a distinction can be made betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 'or' as 'and' in a statute..........But you do not do it unless you are obliged, because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. (Green v. Premier Glynrhonwy Slate Co. KB at p.568). WA 991/03 connected cases 44. As pointed out by Lord Halsbury, the reading of 'or' as 'and' is not to b resorted to, 'unless some other part of the same statute or the clear intention of it requires that to be done'. (Mersey Docks and Harbour Board v. Henderson Bros, AC at p.603). The Court adopted with approval Lord Halsbury's principle and in fact, went further by cautioning against substitution of conjunctions in MCD v. Tek Chand Bhatia, where the Court held as under (SCC p.163, para 11). '11. .....As Lord Halsbury L.C. observed in Mersey Docks Harbour Board v. Henderson Bros. (AC at P.603) the reading of 'or' as 'and' is not to be resorted to 'unless some other part of the same statute or the clear intention of it requires that to be done'. The substitution of conjunctions, however, has been sometimes made without sufficient reasons, and it has been W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... units generating their power requirements in excess of 2500 KVA of contract load by own captive power. But, this cannot govern the earlier notifications and Government Orders which have already been referred to. Point No.2 :This point looks equally formidable as the first one. It is clear from the various notifications and orders referred to that in order to be excluded from the category of units which are entitled to exemption, the units will be such that were registered on or after 31.12.1993. Obviously, it means that units provisionally registered WA 991/03 connected cases before the said date can continue to enjoy the benefits. Admittedly, the unit belonging to the appellant obtained registration from the Industrial Department as a medium scale unit for the manufacture of steel rods and bars on 06.09.1991. The suggestion made by the learned Government Pleader that clauses 2 and 3 should be read together, cannot be countenanced. Clauses 2 and 3 deal with two different situations and there is nothing in common. One is not controlled by the other. Since the petitioner's unit is registered earlier to the date mentioned in the notifications, obviously, he is entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it.... I do not suggest for a moment that such interpretation has by any means a controlling effect upon the courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a court would without hesitation refuse to follow such construction. Of course, even without the aid of these two documents which contain a contemporaneous exposition of the Government's intention, we have come to the conclusion that on a plain construction of the notification, the proviso permitted the closing out or liquidation of all outstanding transactions by entering into a forward contract in accordance with the rules, bye-laws and regulations of the respondent. 26. In the decision reported in Indian Oil Corporation Limited v. Collector of Central Excise (2007) 13 SCC 803), it was held as follows : 9. Since the point involved in the present case is identical to the point involved in Hindustan Petroleum Corpn. Ltd. and the Department having accepted the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment in the writ appeal and in accordance with law. 5) WP(C) No.19516/09 is allowed, the impugned order is set aside and the respondents are directed to reconsider the claim made by the petitioner in the light of this judgment. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE 3. The petitioner's unit obtained provisional registration as a medium scale industrial unit for the manufacture of steel rods and bars, on 06.09.1991. The unit started production in 1995. The petitioner is a registered dealer under the Kerala General Sales Tax Act (hereinafter referred to as 'the KGST Act'). Annexure-2 notification was issued by the State Government, granting certain concessions and subsidies to the industries made mention of therein. The said notification issued under Section 10 of the KGST Act was published on 04.11.1993. Different types of industries mentioned in the said notification were given different periods of exemption from payment of sales tax. Various other concessions were also given as per the said notification. The concessions were to be availed of from the date of starting production by the respective units. 4. The petitioner's unit fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected. The petitioner challenged the same in OP No.20154/98 before this court. That OP was allowed. The impugned order was set aside and the State Level committee was directed to reconsider the matter. The said order is produced as Annexure-6 in WA No.991/03. In pursuance of Annexure-6 order, Annexure-7 was filed by the petitioner before the State Level Committee. Since there was no response from the said authority, the petitioner was constrained to move this court by filing OP No.24212/99. That resulted in Annexure-11 judgment, whereby this court directed the authority concerned to dispose of the matter within a period of three months from the date of receipt of a copy of the judgment. In compliance with Annexure-11 judgment, the State Level Committee passed Annexure-12 order rejecting the exemption claimed by the petitioner. His claim for exemption for the period 01.07.1995 to 31.03.1997 was rejected on the ground that the petitioner had connected a load of more than 2500 KVA, though the cost of power was less than 25% of the cost of production. It was made known to the petitioner that the industry of the nature run by him had been included in the negative list. The said order, c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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