TMI Blog2018 (8) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Nashik Division. Section 41BB of the Bombay Sales Tax Act came to be inserted on 27.03.2001, introducing a provision of proportionate incentives to an eligible unit in certain contingencies which included a provision of making the incentives dependent on the turn over of sales and purchases to be arrived at by applying a ratio prescribed by the State Government to the total turnover of sales and purchases of the said unit in that year. By introduction of the said provision the benefits availed of by an eligible unit in contravention of subsection (1) was deemed to be withdrawn and such unit was liable for payment of tax in respect of turnover of sales and purchases in respect of the turnover and the benefit which was withdrawn was directed to be recovered as a tax. The said provision was introduced with a nonobstante clause, giving effect to it inspite of existence of any provision contained in package Scheme of Incentives. By the Package Scheme of Incentives the State Government has granted a tax concession but there is no embargo to withdraw the said concession under the Package Scheme of Incentives of 1988 and 1993 which were formulated under the provisions of the Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No.2 is an authority under the MVAT Act, 2002 and discharging the duties under the Act and the Rules made thereunder. 3. Before adverting to the controversy involved in the present petition we would delve into the antecedent events which would be necessary to be referred to for an effective adjudication of the present Writ Petition. The existing regime of the Bombay Sales Tax Act, 1959, empowered the State Government under Section 41 to grant Tax exemption either in full or in part in public interest. The Package Scheme of Incentives are a reflection of the exercise of said powers conferred on the State Government. Section 41 read thus : Section 41 Exemptions Subject to such conditions as it may impose, the State Government may, if it is necessary so to do in the public interest, by notification in the Official Gazette, exempt any specified class of sales or purchases from payment of the whole or any part of any tax payable under the provisions of this Act (any notification issued under this section may be issued so as to be retrospective to any date not earlier than the 1st January 1960. The State Government to encourage the dispersal of the industries to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definite connotation under the scheme to include sales tax/additional tax/turnover Tax payable by the eligible unit on the sale of finished products. The Sales Tax incentives under the scheme could be available by way of exemption or by way of deferral which was admissible to a new unit/pioneer unit as also in the case of expansion or diversification of units set up in Groups B,C or D or No Industry Districts. An exemption was available in respect of Sales Tax payable under the Bombay Sales Tax Act, 1959 on the sale of finished products for the eligible unit. The quantum of sales tax incentives was prescribed under the said scheme and for eligible units undertaking expansion or diversification, the quantum was linked to a proportion of fixed capital investment and was limited to a stipulated period. 4. The Package Scheme of Incentives of 1988 was succeeded by a scheme of 1993 and the object of this scheme was to achieve a dispersal of industries outside Bombay Thane Pune belt and attract them to the underdeveloped and developing areas of the State, particularly, regions away from Bombay Thane Pune belt. The coverage of the scheme extended to the eligible units in the industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during residual eligible period provided such acquisition is not less than 25% of the Gross Fixed Capital Investment at the end of the previous financial year of the Eligible Unit. 5. The above paragraph came to be amended by a Government Resolution dated 06.07.1994 and the word proportionate came to be deleted. As a necessary sequel, it was stipulated that an acquisition of new fixed assets outside the project scheme accepted by the implementing agency could be considered for incentives other than special capital incentives, if the acquisition was not less than 25% of the gross fixed capital investment. However, for the purposes of sales tax benefits, quantum of entitlement would be limited to 75% of that which is admissible to a new unit. Existing units were also held entitled for benefits of the said scheme. On 17.01.1998 a circular was issued by the Commissioner of Sales Tax, which stipulated that under the scheme of 1993, incentives would be given in proportion of the expansion capacity to the total capacity or the investment ratio of new fixed capital investment to the total gross fixed capital investment after the expansion/investment and not on the entire product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 88 to whom the incentives are granted under the Package Scheme of Incentives, by way of exemption of payment of Tax. Chapter XIV of the MVAT Act contained provision in regard to the Package Scheme of Incentives and it defines the terms Certificate of Entitlement and Eligibility Certificate . The expression Package Scheme of Incentives included the 1988 and 1993 schemes. The Section 89 stipulated that where an eligibility certificate has been recommended by the implementing agencies under any Package Scheme of Incentives such eligible unit may apply for grant of entitlement certificate to the Commissioner who was empowered to grant such a certificate. Section 93(1) provided for proportionate incentives to an eligible unit on certain contingencies. Section 93(1) reads thus : 93. Proportionate incentives to an Eligible Unit in certain contingencies: (1) Notwithstanding anything to the contrary contained in any Package Scheme of Incentives, any Eligible Unit to whom the Eligibility Certificate has been granted, shall be eligible to draw the benefits in any year, after the appointed day, only on that part of its turnover of sales or purchases as may be arrived at by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same time Section 93A came to be inserted to provide Section 93 shall apply to all eligible units, to whom eligible certificate and certificates of entitlement have been issued under any of the Package Scheme of Incentives if such certificates have been issued on or before the appointed date i.e. 1.04.2005. The said enactment contained Section 94(2) which provided that notwithstanding anything to the contrary contended in the Act or in the Rules or in any part of the Package Scheme of Incentives, the eligible unit to whom an entitlement certificate has been granted for availing incentives by way of deferment of Sales Tax or Purchase Tax as the case may be, pay in respect of the any of periods during which the certificate is valid, prematurely in the place of amount of tax deferred by it, an amount equal to the net value of the deferred tax and on making such a payment the deferred tax shall be deemed in the public interest to have been paid. According to Section 93, notwithstanding, anything to the contrary contained in any Package Scheme of Incentives, an eligible unit shall be eligible to draw the benefits only that part of turnover of Sales and Purchases as may be arrived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision bench did not find favour with the challenge to the constitutional validity of the Maharashtra Act No.22 of 2009 and arrived at a conclusion that the legislature has not transgressed the limitations on its constitutional powers while enacting the validating legislation. However, as far as sub section (2) of Section 93 enactment was concerned which proposed to include a penalty and interest, it was held to be operating harshly and to that extent it was directed to operate prospectively. Thus, it was in the year 2013 that this Court had already tested the validity of the Maharashtra Value Tax (Levy and Amendment) Act, 2009 and has upheld the same which validated Section 93 with a retrospective effect from 1.04.2005. By virtue of the said provision any eligible unit to whom the eligibility certificate and the entitlement certificate has been granted before the appointed date, he would be entitled to draw the benefits only on that part of its turnover of sales/purchases as may be arrived by applying the provisions of sub section (1) to the total turnover of sales and purchases and the eligible turnover was to be calculated by taking into consideration the turnover in proportion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiling of ₹ 267,16,66,000/ (Rupees Two Hundred Sixty seven Crores Sixteen Lakhs Sixty six Thousand Only) to be deferred during the period from 01.09.1999 to 31.08.2013. The petitioner was also issued an entitlement certificate on 26.08.1999 and according to the paragraph 3 thereof, the petitioner was entitled to defer Sales Tax liability as per returns/assessment pertaining to the validity period mentioned in the certificate. According to the petitioner none of the conditions referred to the production capacity to be maintained or to be enhanced. It is specific case of the petitioner as set out in the petition that it availed incentives, referred in the scheme as the Sales Tax liability, through the returns submitted periodically by deferring the Sales Tax payable on the sale of finished products in terms of the proportion to 78.32% of the total production and discharged liability by making payment for the remaining percentage as was reflected in the return submitted by it. The petitioner has placed on record the details of the amount deferred by it from 1999 2000 and it has submitted a statement which is annexed to the petition. The figures stated therein, according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details of the quantum of amount deferred and confirmed in the respective orders of assessment by annexing a tabular form in support of its submission. The petitioner is aggrieved by the change of mode of availment of the benefits and it is stated in the petition that the Maharashtra Act No.22 of 2009 dated 16.12.2009 introduced an entirely new mechanism of computing the quantum of incentives enjoyed, to the increase in the production capacity, which parameter was introduced for the first time and it is the case of the petitioner that it was never contemplated in the original as well as amended 1993 Package Scheme of Incentives. The grievance of the petitioner is that by amending Section 93 of the MVAT Act the rights which are vested in the petitioner are snatched away with retrospective effect causing irreparable loss to the petitioner. According to the petitioner it has established his unit in the backward areas based on the representation made by the State Government and complied with the provisions of law before the amendment was effected and the action of the State Government in going back on its representation, as being contrary to the spirit of the scheme under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied scheme has deprived the petitioner of the benefits accruing to its unit in form of the promise given by the State and thus ite alleges that the amendment to the scheme which introduced a completely new mechanism is hit by the principle of promissory estoppel. According to it the impugned action was never contemplated under the scheme floated by the State of Government, which encouraged the petitioner to establish the unit in the remote backward area and subsequently expand the same on an understanding as reflected in the scheme granting benefits of incentives in terms of the said scheme. However, the entire mechanism now stands replaced by making the incentives proportional to the investments made which is contrary to the original scheme. The petitioner would submit that the exercise of power of review by Deputy Commissioner of Sales Tax in recomputing the quantum of deferment is erroneous. As per the petition, the petitioner has claimed deferment of tax for both the units for assessment year 2006 -2007, in accordance with the Package Scheme of Incentives 1993 as amended in 1999 and strictly as monetary ceiling specified in the eligibility certificate and also in the entitlemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with the entitlement certificate. According to the petitioner the financial celling of the quantum got exhausted in March 2008 i.e. much prior to the end of the validity period of the eligibility certificate ending on 31.08.2013. According to the petitioner he complied with all the conditions and the procedure prescribed under the scheme during the operative period of eligible certificate. The scheme which contemplated repayment of the amount deferred, after period of 10 years from the end of operative period by five equal installments which was complied by the petitioner for first three years i.e. 1999- 2000, 2001-2002 as per the amended rule and for rest of the period, the repayment due as per repayment order were made. In the year 2002, the petitioner established a new unit for manufacturing vehicles under the brand name Scorpio for which separate entitlement and eligibility certificates were procured. The said certificate granted validity period to the new unit from 01.10.2002 to 30.09.2016. Unlike the first unit the eligibility certificate for the second units as well as entitlement certificate did not contain any endorsement of the manner to be adopted by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer the collection of tax and pay the same in installments. According to him the unit established by the petitioner, him which was pioneer unit, which was issued the eligibility certificate on 27.07.1999, by which the maximum entitlement of Sales Tax Incentives by deferral was not to exceed to ₹ 267,16,66,000/ (Rupees Two Hundred Sixty seven Crores Sixteen Lakhs Sixty six Thousand Only) and it was valid period of 14 years commencing from 01 -09- 1999 to 31 -08 -2013 and it came into effect from 01- 09 -1999. Mr.Joshi would submit that the eligibility certificate clearly mentioned that it is issued for additional fixed capital investment of ₹ 33395.83 lakhs in the capacity as a pioneer unit. Mr.Joshi would thus submit that since the pioneer unit which the petitioner had established had already availed the benefits in view of the entitlement certificate with effect from 01 -09 -1999, the amended Section 93 do not apply to it. He would submit that it was the SICOM which had the right to carry out full inspection of the eligible unit and for its properties, assets, accounts, records, registers etc., as it deemed fit and therefore it could not have been deprived of the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 which stood at ₹ 92.40 Crores. In terms of provisions of the 1993 Package Schme of Incentives, on the pro rata basis of Investments i.e. Rs.333.95 Crores = Investment in expansion =78.32% Rs.426.35 Crores Total Investment after expansion the production at 78.32% of the total production shall alone be eligible for the benefits of deferral whereas in respect of 21.68 of the total production, the Unit has to discharge the tax liability on proata basis of investment indicated above. This option of investment for prorata basis is claimed by the Unit. 15. Mr. Joshi would place reliance on the judgment of this Court in case of Finolex Cables and Another V/s. State of Maharashtra 2017 (97) VST 349(Bom). He would submit that the Division Bench of this Court, while dealing with Section 41D of the Bombay Sales Tax Act inserted with a retrospective effect by Maharashtra Tax Laws (Levy and Amendment), Act, 1995 has held that once there was no embargo or prohibition on augmentation or increase in the production capacity and the expansion has been sanctioned then the impugned notice proposing to revise the order of assessment in totally disregard to the same cannot be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e utility vehicles like Scorpio and Bolero, Cars, Electric Vehicles, Picks up and Commercial vehicles. According to Shri.Sonpal the Maharashtra Act No.XXII of 2009 which substituted sub section (1) of Section 93 granted the effect of deemed substitution with effect from 01.04.2005. According to him by virtue of sub section (1) of Section 93 which was inserted with a non obstante clause, any eligible unit to whom the Eligibility Certificate and certificate of Entitlement have been granted on account of the increase in production capacity or acquisition of new fixed assets, shall be entitled to draw the benefit only on that part of its turnover if turnover of sales or purchases as may be arrived at by applying the provisions of sub section (1A) of section 93. Clause (a) of sub section (1A) of Section 93 provides for a contingency where separate accounts of sales and purchases are maintained and the unit is able to identify the sales and purchases pertaining to the increase in production capacity or the said eligible investment, then, the portion of the turnover, eligible for benefits is to be decided solely on the basis of such identification. 17. According to Mr.Sonpal, in case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e challenge to the constitutional validity of the said Act has been turned down and it has been held that the legislature has not transgressed the limitations on its constitutional power while enacting the validating legislation. Thus, except for setting aside the penalty with a retrospective effect, the retrospective effect given to Section 93 has been upheld. Further he would submit that this Hon'ble Court in case of Pee Vee Textile had clearly noted that the legislative intent embodied in Section 41BB of the Bombay Sales Tax Act, 1959 which could not be effectuated in absence of rule framed by the government prescribing the ratio of grant of proportionate incentives. However, it is this anomaly which is sought to be corrected by the enactment of the Maharashtra Act 22 of 2009. He would submit that if the legislature has determined that the purpose of the Package Schemes of Incentives should or would be achieved by allowing incentives to be computed on proportionate basis, then the legislative intent cannot be regarded as unconstitutional. 19. Shri.Sonpal would submit that the principle of promissory estoppel as sought to be invoked by the learned counsel for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax Incentives by way of deferral was slabbed at ₹ 2671.66 Lakhs (Rupees Two Hundred Sixty Seven Crores Sixteen Lakhs Sixty Six Thousand). The validity period from the entitlement certificate was slated to be 14 years from 1.09.1999 to 31.08.2013. The eligibility certificate was subject to review/monitoring every year and was issued for additional fixed capital investment of ₹ 3395.83 (Rupees Three Hundred Thirty Three Crores Ninety Five Lakhs Eighty three Thousand). The said certificate mentioned that the period of eligibility certificate shall be automatically curtailed : (i) From the point of time when the total Sales Tax Incentives admissible under the Scheme/Sales Tax Incentives as per the entitlement under the Scheme availed on/drawn exceeds the limit laid down in para 95 of the Package Incentive Scheme notified under the Government Resolution dated 07.05.1993 namely 80% of the gross value of fixed capital investment actually made subject to ceiling of 80% of ₹ 3395.83 lakhs (Rupees Three Hundred Thirty Three Crores Ninety Five Lakhs Eighty Three Thousand) i.e. ₹ 267,16,66,000/ (Rupees Two Hundred Sixty seven Crores Sixteen Lakhs Sixty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility unit for the period from 1.09.1991 to 31.08.2013. It was also stipulated that the petitioner shall pay the entire amount as per the order to be passed under Section 33, 35, 55, 57 or 62 of the Bombay Sales Tax Act and under Section 9 of the Central Sales Tax Act for a period not exceeding in total 10 years as computed from the last date prescribed for publishing the last return for the period of each of the assessment order passed. After that the holder of the certificate shall pay the entire amount, in equal annual installment not exceeding five such installments on expiry of tenth year. The entitlement certificate also stipulated maintenance of separate books of account by the eligible unit. The monetary ceiling permissible to the petitioner was already mentioned in the entitlement certificate and the certificate was held to be automatically cancelled on happening of any of the events namely : (a) The period from 01 -09 -1999 to 31 -08- 2013 expires or; (b) Monetary ceiling of benefits at ₹ 267,16,66,000/ (Rupees Two Hundred Sixty seven Crores Sixteen Lakhs Sixty six Thousand Only) gets exhausted. The certificate was thus held valid for the benefits maxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of the gross value of fixed capital investment actually made subject to ceiling of 130% of ₹ 67730.63 Lakhs i.e. ₹ 880,49,94,000/ or; (b) From the date the certificate of entitlement issued by the Commissioner of Sales Tax is cancelled or revoked, whichever events occurred earlier. 24. This certificate was also subjected to certain terms and conditions. This was followed by a certificate of entitlement issued by the Deputy Commissioner of Sales Tax, Maharashtra State on 09.10.2002. By the said certificate the petitioner was permitted to defer the Sales Tax liability as per the returns/assessment pertaining to the period from 1.10.2002 to 30.09.2016 (14 years). This also contemplated the petitioner assessee to pay the entire amount of Sales Tax liability in equal installments not exceeding five such installments on expiry of tenth year. The said certificate was liable to be automatically cancelled on expiry of the period or on reaching the monetary ceiling of benefits whichever occurred earlier and the maximum benefits were fixed at ₹ 880,49,94,000/ . 25. The petitioner was thus entitled to utilize the benefits available under the 1993 Package Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to new unit. The eligible unit however is required to obtain a separate eligibility/entitlement certificate from SICOM/Sales Tax Authorities with the quantum of incentives which the existing unit is entitled to and the period within which these incentives could be availed. Thus neither para 3.8(I)(i)(c) nor any other provision under 1993 Scheme or any provision contained in BST/CST Act provided for the utilization of the incentives in each year proportionate to the finished products attributable to the fixed assets newly acquired by the existing unit. The question which the High Court was called upon to decide was whether the Sales Tax Authorities after determining the quantum of incentives and the period during which the incentives could be availed was justified in imposing a ceiling on the utilization of the incentives per year and whether it was permissible to restrict the availment of incentives proportionately to the production of the finished products attributable to the new acquired fixed assets. 27. The Hon'ble Division Bench of this Court in case of Commissioner of Sales Tax Maharashtra State Mumbai V/s. Pee Vee Textiles Ltd., in Sales Tax Application N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be arrived at by applying a ratio prescribed by the State Government to the total turnover of sales and purchases of the said unit in that year. By introduction of the said provision the benefits availed of by an eligible unit in contravention of subsection (1) was deemed to be withdrawn and such unit was liable for payment of tax in respect of turnover of sales and purchases in respect of the turnover and the benefit which was withdrawn was directed to be recovered as a tax. The said provision was introduced with a non obstante clause, giving effect to it inspite of existence of any provision contained in package Scheme of Incentives. The MVAT Act, 2002 which came into force from 01.04.2005 also contained a similar provision in form of section 93 which came to be amended retrospectively, thereby directing recovery of the benefits which were availed by any unit in contravention to the Scheme of the enactment and such benefits shall be deemed to have been withdrawn, making the unit liable to pay tax including penalty and interest in respect of the turnover of sales and purchases in respect of the turnover arrived at under the old scheme. 29. The issue as regards the retrospec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration since Section 93(1) stood amended with retrospective effect and by the validating Act, it has been held to be on the statute book from 1.04.2005. The contention of the petitioner that there was a promise contained in Package Scheme of Incentives and it could be carved out from its various terms and condition and therefore, it could not have been curtailed in the manner in which it has sought to be done also is not a sustainable argument. By the Package Scheme of Incentives the State Government has granted a tax concession but there is no embargo to withdraw the said concession under the Package Scheme of Incentives of 1988 and 1993 which were formulated under the provisions of the Bombay Sales Tax Act. On introduction of the MVAT Act, the Package Scheme of Incentives came to be recognized as the schemes introduced and amended from time to time. Section 93 of the said enactment came to be amended by Maharashtra Act No.22 of 2009 with a retrospective effect introducing the scheme of proportionate incentives to an eligible unit in certain contingencies. Since the benefits granted to the petitioner under the scheme formulated under a statue came to be withdrawn and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions enjoyed by industries to 'Tourism' which was accorded the status of an industry, in order to give a boost to tourism sector by attracting higher investment in the areas with tourism potential and to generate employment opportunities. The scheme promised incentives in the form of Tax holiday of 5 10 years in respect of exemptions from Sales Tax, Turnover Tax, Electricity Duty, Luxury Tax and Entertainment Tax etc. It also promised an initial period of specified years for going operational in the first instance, extendable by further for a further period subject to satisfactory progress to be found by the State Level Committee. When the State Government sought to constrict the said benefits in favour of the Petitioner, who had resumed construction work in furtherance of the promise made by the State Government and the said action of the State Government was upheld by the High Court, that the matter was taken to the Hon'ble Supreme Court which observed thus: 19. Coming to the facts of the present case, we find that the Scheme definitely promised incentives in the form of Tax holiday of 5 10 years in respect of exemptions from Sales Tax, Turnover Tax, Electricit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the public interest and taxation is the sovereign power of the legislature and raising revenue of the State is in the public interest and therefore, it cannot be a restriction on trade or business and cannot be said to be violative of Article 19(1)(g). 31. The existing regime in view of Bombay Sales Tax Act 1959 contained a provision for exemption and it was to be found in Section 41. It is stipulated that the State Government may, if it is necessary to do so in the public interest, exempt any specified class of sales or purchases from payment of the whole or any part of any tax payable under the provisions of this Act, subject to the conditions which it may impose. It is permissible for the Government to grant such exemption with retrospective effect not earlier than 1st January 1960. The Bombay Sales Tax Act, 1959 itself contemplated the Package Scheme of Incentives which came to be introduced by way of a notification issued under Section 41 and included by way of Entry 136 which came to be inserted with effect from 01.10.1995. It contemplated issuance of a certificate of entitlement to be granted by the Commissioner and in order to determine where the cumulative quantum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w unit. The exemption accorded to new manufacturing or production units set up in backward areas by way of incentives for development of industries in backward areas, promotion of dispersion of industries all over the State, and for industrialisation of and creating employment opportunities in the backward areas, has a sound economic and public policy underlying it. The tax exemption was granted so as to encourage the new industrial units to be set up in the backward areas. The package scheme of incentives therefore provided the manner in which such incentives could be enjoyed by making it subject to certain conditions. The Legislature by inserting Section 41BB in the Bombay Sales Tax Act, 1959 made the eligibility of the benefits dependant on that part of its turnover of sales or purchase as may be arrived at by applying the ratios stipulated by the State Government to the total turn over of sales and purchases of the unit in that year. Section 93 inserted in the MVAT with retrospective effect also restricted the benefits to be drawn by making it proportionate only to that part of its turnover of sales or purchases as may be arrived at by applying the provisions of sub section 1A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 with retrospective effect, the Petitioner would fall within the purview of the said Section and which has been given effect from 1.4.2005. Once the validity of Section 93 has been upheld, the Petitioner cannot be permitted to argue that he was entitled to enjoy the benefits in terms of its eligibility and entitlement certificate. The attempt of Mr.Joshi by urging that the petitioner reached the ceiling limit in 2008, hence, the amended cannot be applied to it is futile for if that contention is upheld the sweep of the Non obstante clause is diluted. The Package Scheme may be of 1993 but it was in force in 2005 when the MVAT regime came in. It was then governed by this regime and was subjected to it. 33. The reliance on the judgment of the Apex Court in case of Shri.Bakul Oil Industries and Another V/s. State of Gujarat and Another (1987) 1 SSC 31 squeraly covers the stand of the state Government. In the said case the appellant had commissioned an oil mill on the basis of the notification issued by the Government committing itself to grant exemption from payment of Sales Tax and Purchase Tax to the notified industries commissioned any time after 1.04.1970 before 31.03.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rural and under developed areas and it was always open to the State Government to withdraw or revoke the concession, by means of a legislation. The principle of promissory estoppel cannot be stressed against the statue. That being so in the given case and it was sought to be done by way of notification, the appellants were held entitled to the benefit of tax exemption for a limited period during which the concession was offered by the Government. 35. The reliance is also placed by the Petitioner on the case of Prasad Power Control Pvt. Ltd. Anr. (supra) to press into service the principle of promissory estoppel and it would submit that the basic principle of promissory estoppel being that a person who by some statement or representation of fact causes another to act to his detriment in reliance of such representation of it is not allowed to deny it later, even though it is wrong and the said principle is based on equity. We have considered the arguments of the learned counsel and examined the issue in the backdrop as to whether it is permissible for the Petitioner to invoke the doctrine of promissory estoppel. It is settled position that principle of estoppel does not op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year in which the order passed by the subordinate officer has been served on the dealer. 37. A perusal of the said provision would reveal that the superior officer of the Rank of Commissioner, may on the information received or on his own motion call for the record of an order including an order passed under Section 25 itself or any order in appeal passed under the Act, rules or notification by any officer subordinating to him and he would then examine whether any turnover of sales and purchases has not been brought to tax or has been brought to tax at a lower rate or has been incorrectly classified or any claim is incorrectly granted or the liability of tax is under stated. Another ground which empowers the Commissioner to invoke the power conferred on him is when it is noticed by him that the order passed by the subordinate officer is erroneous, insofar as it is prejudicial to the interest of revenue. The assessment orders in case of the petitioner unit where passed by the Assistant Commissioner of Sales Tax and the impugned order has been passed by the Deputy Commissioner. The contention of the petitioner that the order could not have been passed by the Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act No.22 of 2009 but was found to be covered by Clause (b)(1) on the basis of the increase in production capacity and therefore the provisions of sub section (2) and Section (3) were attracted. By virtue of the said provision the benefits if any availed by an eligible unit in contravention to subsection (1) shall be deemed to have been withdrawn and the unit is held liable to pay tax including penalty and interest, if any, in respect of the turnover of sales and purchases in excess of the turnover arrived at sub section (1) and the benefit so availed are to be recovered as arrears of tax. 38. Reliance place by learned counsel for the petitioner Shri.Joshi of Vadilal Chemicals Ltd V/s. State of Andhra Pradesh and Ors 2005(SC) Vol 142., reveals a complete and distinct set of facts involved. In the said case before the Hon'ble Apex Court the tax holiday for specific period on products manufacturing in new unit came to be granted and the final eligibility certificate was granted by the departmental industries. In light of the procedure evolved for availing the benefits which included a State level and District level committee which was to scrutinized and sanctioned the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of that case the Hon'ble Apex Court has observed that there was no justification for reviewing the said certificate after the term had expired and long after the benefit thereunder was availed by the appellant. However, in the present facts and circumstance the review is in exercise of statutory power conferred on the authority and specifically when the statue contained a provision for recovery of the said amount. 39. In this backdrop since the revenue was found to be at stake, the petitioner was issued with a show cause notice enlisting the details of the figures of assessment and the cumulative quantum of benefits was directed to be worked out later on but the assessee was held liable for the amount to be recovered to the tune of ₹ 193,14,59,638/ (One Hundred Ninety Three Crores Fourteen Lakhs Fifty Nine Thousand Six Hundred Thirty Eight) on recomputation. By the said impugned order the assessment orders passed on 29.03.2011 by the Assistant Commissioner of Sales Tax in case of the petitioner unit for utility division and Scorpio division stands reviewed and the Assistant Commissioner of Sales Tax has been directed to recover the said sum from the petitioner. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e essence of inquiry in the review proceedings is not about the parts used in the assembly of utility vehicle or Scorpio but from what material these parts are produced and whether the basic raw material is interchangeable or not. It is further observed by the authority that it vehicle specific steel is ordered, then, it is not capable of being used for different model or vehicle and if it is not the case then the steel ordered for production of utility vehicle can be and may be used for Scorpio or vice versa. The accounting software used for the entire business of the petitioner does not show any inter division transfer of the goods within Scorpio and utility division vehicles. It was thus found by the Reviewing Authority that the Assessing officer had committed an error and since the provision of law which has been brought by amendment Act 2009 is to be implemented with retrospective effect, the Deputy Commissioner of Sales Tax has exercised the power of review and passed the impugned order. The exercise of the said power is in the larger interest of the revenue and hence cannot be said to be without jurisdiction or mala fide. 40. We do not find merit in the said submission ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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