TMI Blog2019 (3) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... urring capital expenditure. More importantly, there is no material to indicate that the subsidy would be used for capital investment as originally envisaged that the same would result in the petitioner meeting the criteria of capital investment (NPV of ₹ 1000 crores). The decision of the respondents to refuse disbursement of subsidy on the ground that the petitioner’s viability in question also cannot be faulted. Plainly, the object of the Scheme was to support eligible projects. In the given set of facts where the viability of the petitioner’s project is itself under serious question, the respondent cannot be expected to disburse any subsidy – which was envisioned for long term benefits. The opening paragraph of the Scheme indicated that the same was in expectation of return by way of contribution to the GDP of the country. Petitioner could not dispute that even if the NPV was calculated on the basis as accepted in Indosolar (supra), the NPV of the petitioner’s capital investment would not exceed the threshold of ₹ 1000 crores if the outstanding lease rentals and the capital expenditure amounting to ₹ 96.95 crores was excluded from such calculation. - Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by one of the petitioner company s financial creditors. 6. It is stated that the resolution professional so appointed approached the respondent on various occasions between March, 2018 and September, 2018 seeking disbursement of the subsidy. However, the respondent did not disburse the same. 7. Aggrieved, the petitioner preferred an application before the NCLT seeking directions be issued to the respondent herein to disburse the subsidy. However, the NCLT dismissed the application observing that the relief as prayed for is beyond its jurisdiction. 8. Thereafter, the petitioner preferred a writ petition before this court captioned Moser Baer Solar Limited v. Ministry of Electronics and Information Technology: W.P. (C) 10696 of 2018 , which was disposed of by this court on 21.01.2019, directing the respondents to communicate its decision regarding the issue of subsidy to the petitioner within a period of one week. In compliance with this order, the respondent issued the impugned letter rejecting the petitioner s claim for subsidy. 9. Aggrieved by the same, the petitioner has filed the present petition. 10. The learned counsel appearing for the petitioner c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that there would be any bid of a significant amount acceptable to the creditors. The respondent is of the view that even with the provision of the subsidy, the petitioner will remain unviable and, therefore, it would not be prudent to release the same. 13. In view of the above, the first and foremost question to be addressed is whether the petitioner has made requisite capital investment for grant of subsidy. In this regard it would be relevant to refer to the Scheme, notified on 21.03.2007 14. The relevant extract of the Notification dated 21.03.2007, which indicates the Special Incentive Package (the Scheme) offered by the respondents is set out below:- The Special Incentive Package is as under: 2.1 The investment will be for the manufacturer of all semi-conductors and eco-system units, namely displays including Liquid Crystal Displays (LCD), Organic Light Emitting Diodes (OLED), Plasma Display Panels (PDP), any other emerging displays; storage devices; solar cells; photovoltaics; other advanced micro and nano technology products; assembly and test of all the above products. 2.2 The Special Incentive Package, shall be for state of the art technology. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner that the lease rentals are liable to be paid over a period of 20 years. In view of this submission, this Court had pointedly asked the learned counsel for the petitioner whether there was any default on the part of the petitioner in payment of the lease rentals. He could not respond in the negative. The impugned order indicates that the lease rentals of ₹ 350.70 crores and ₹ 35.22 crores were outstanding since more than ten years. Since there appears to be no dispute that the petitioner had defaulted in payment of liabilities towards lease rentals related to the assets, which are capitalized as investment, the decision that the petitioner has not made the requisite investment cannot be faulted. 18. It is also not disputed that the auditors appointed had submitted a report indicating that the investment to the extent of ₹ 96.95 crores could not be verified. It was contended on behalf of the petitioner that the said investment was duly reflected in the books and its accounts had been audited earlier and, therefore, the said investment could not be questioned, is unpersuasive. The respondents were entitled to verify the capital investments made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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