TMI Blog2018 (3) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Gagan Tiwari, learned counsel for the petitioner Shri H.Y. Mehta, learned Government Advocate for the respondent / State of Madhya Pradesh ORDER Per P. K. Jaiswal, J. By this writ petition under Article 226 of the Constitution of India, the petitioner has prayed following relief in paragraph No.7 of the writ petition: - 7. Relief prayed for: The petitioner respectfully prays this Hon ble Court may kindly be pleased to: - 7.1 to hold that the Sanctioned Scheme dated 20.05.2002 is binding under Section 19 of the Sick Industrial Companies (Special Provisions) Act (SICA) on the State Government and the Commercial Tax Department and is saved by virtue of Section 5 of the SICA (Appeal) Act and retains its binding effect and hence exemption under CST shall be available for 9 years w.e.f. 20.05.2002 as envisaged in para 4.7 of the Scheme. 7.2 to hold that the letter dated 04.08.2007 moved on behalf of the Commissioner of Commercial Tax Madhya Pradesh before BIFR to discontinue the benefit of exemption under CST is illegal, void and without any jurisdiction and is contrary to the provisions of SICA Act. 7.3 to quash the demands raised under Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 01.04.2006, the earlier exemption granted vide notification dated 21.04.2003 ceased to have any effect and thus, after 01.04.2006, no benefit can be given to the petitioner company. 5. BIFR in Case No.172/1997 vide order dated 25.03.2008 (Annexure P/7) issued the following directions: - 12. (ii) In view of the above, the Board, hereby, issues the following directions for compliance by the concerned agencies: - (a) As, in terms of para-4.7 (2) (3) of the SS-02, the Commercial Tax Department, GOMP is to exempt the company from sales tax and purchase tax for a total period of nine (9) years. In pursuance to Notification dated 21.04.2003 already issued by GOMP for this purpose, the GOMP / Sales Tax Department of GOMP would not levy the taxes on the company s suppliers in respect of goods purchased up to 31.03.2006, when they produce declaration given by the company to them. As the VAT has been introduced w.e.f. 01.04.2006, the GOMP / Sales Tax Department of GOMP would also exempt the company from VAT in terms of MP VAT Act, 2002 and Central Sales Tax Act, 1956 for a total period of nine (9) years or to the extent of un-utilized amount of gross quantum of sales tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Supreme Court of India. As per the notification No.A-3-24-94-ST-V(108) dated 06.10.1994, the State Government had full power to review the exemption which was accordingly granted with a monetary limit of ₹ 4.10 crores. Para 5 of the said notification states: - 5. (i) Dealer who establishes a 1[ ] new industrial unit in a growth centre developed by Audyogik Kendra Vikas Nigam other than Boral growth centre in Durg District or who undertakes expansion in [ ] existing industrial unit. (ii) Dealer who establishes a [ ] new industrial unit in Boral Growth Centre in Durg District covered by Part-I of the Annexure-I or who undertakes expansion in [ ] existing industrial unit. (iii) Dealer who establishes a [ ] new industrial unit on land within five kilometres of the boundary of a growth centre due to nonavailability of land in the growth centre or who undertakes expansion in [ ] existing industrial unit. For a unit established in a growth centre located in a District specified in, - (i) Part 1 of Annex.I-125%, (ii) In Part-II of Annexure I Category A 150% Category B 200% Category C 250% Of the capital investme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores should have been directed to be refunded to the Sales Tax Department. 19. We are in agreement with the submissions made on behalf of the Commercial Tax Department in this regard as already discussed above that the State Government was fully empowered to impose a limit of ₹ 4.10 crores as per the provisions of para 5 of the notification dated 06.10.1994. So far as the last argument of appellant M/s. Saurabh Metals Pvt. Ltd. is concerned, that any interference with the terms of sanctioned scheme at this belated stage would cause great prejudice to the appellant company and defeat the entire purpose and object of SICA as well as the scheme sanctioned by BIFR , we are of the considered view that relief which the appellant company was not entitled for since beginning or at the time of sanction of the scheme in 1996, cannot be granted against the established State Policy as per notification dated 06.10.1994. We have already held that notification dated 06.10.1986 is not applicable on the appellant company for the reasons already discussed and as per notification dated 06.10.1994, the appellant company is not entitled for the concessions beyond a monetary limit of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board immediately before the commencement of this Act shall stand abated; and as per proviso (i), a company may make a reference under Part-VIA of the Companies Act, 1956 within one hundred and eighty days from the commencement of this Act in accordance with provisions of the Companies Act, 1956. 13. The contention of Shri Sumit Nema, learned Senior Counsel for the petitioner is that Sanctioned Scheme dated 20.05.2002 is saved by virtue of Section 5 of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 and retains its binding effect; and hence, exemption under the Central Sales Tax Act, 1956 shall be available for nine years with effect from 20.05.2002, as envisaged in para 4.7 of the Scheme. He further submitted that letter dated 04.08.2007 issued by the Commissioner, Commercial Tax, Madhya Pradesh to discontinue benefit of exemption under CST is illegal, void and without jurisdiction and is also contrary to the provisions of SICA; and prayed that the demands raised under the Central Sales Tax Act, 1956 for the periods 2007-08, 2008-09 and 2010-11 be quashed. 14. Per contra, Shri H.Y. Mehta, learned Government Advocate for the respondent / State of Madhya P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 21.04.2003 (Annexure P/4) issued pursuant to the directions of the Board has not been continued. It is also not in dispute that the application of the Commercial Tax Department was decided by the BIFR vide order dated 05.11.2007 (Annexure P/2) and against the aforesaid order, Commercial Tax Department has preferred Appeal No.46/2008 before the AAIFR, which was decided by order dated 16.08.2010 (Annexure P/8) and allowed in part. The aforesaid order had remained pending till the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 came into force. After coming into froce of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, all proceeding pending before the BIFR stand abated and interim order passed in favour of the petitioner stands automatically vacated by operation of law. 17. Special Leave Petition against order dated 20.04.2009 passed in Writ Petition No.1318/2008 by a Division Bench of this Court at Principal Seat Jabalpur in the case of Commissioner, Commercial Tax, MP v. Saurabh Metals Private Limited reported in [2009] 24 VST 520 (MP) was filed by the State of Madhya Pradesh before the Apex Court. The Hon ble Supreme Court by order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and perused the impugned order as well as records of the BIFR and have also considered the rival contentions of the ld. counsels for the parties. In this appeal, we have only considered the question whether any opportunity of hearing was provided to the appellant department, while passing the impugned order dated 5.11.07 and whether the impugned order was passed ex parte. Shri R.D. Makheeja, Advocate has submitted that no notice was given to the appellant for the hearing dated 5.11.07 nor was the appellant heard on its letter/application dated 4.8.07 which was filed by the appellant Department for review of the orders sanctioning the rehabilitation scheme (SS-02). In this connection, we have perused the impugned order. In the impugned order, presence of any Counsel or representative of Commissioner, Commercial Tax Department, Government of Madhya Pradesh has not been marked which shows that nobody was present on behalf of the appellant Department when the BIFR was considering the letter dated 4.8.07 filed by the appellant before the BIFR. In para 9 of the impugned order, the BIFR has clearly mentioned that it has considered the submissions made by the concerned agencies 'pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the respondent no.3 on his objections. The objections of the respondent no.3 may have a bearing on the reliefs, which have been granted to the petitioner in the said order. 10. That apart we also do not find any jurisdictional error or illegality in the exercise of jurisdiction by the AAIFR requiring interference by this Court under Article 227 of the Constitution of India. The Writ Petition is accordingly dismissed in limine. 20. The order dated 16.08.2010 passed by the AAIFR is affirmed by the learned Writ Court on 07.05.2011 in Writ Petition No.13289/2010. 21. After coming into force of SICA Repeal Act, 2003, as per notification dated 25.11.2016 (Annexure R/1), the proceedings pending before BIFR stands abated and interim order passed in favour of the petitioner stands automatically vacated by operation of law. The order dated 05.11.2007 passed by the BIFR was set aside by the AAIFR on 16.08.2010. 22. On due consideration of the aforesaid, we are of the view that the petitioner is not entitled to get any relief as well as interim relief. 23. For the above mentioned reasons, Writ Petition No.1450/2017 filed by the petitioner has no merit and is accordingly di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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