TMI Blog2023 (3) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion has resulted in the issuance of the Eligibility Certificate imposing a cap on the period of benefit. The respondents have also established clearly that there has been application of mind to the request of the petitioner as well as to various other aspects of the project including the exemptions - there is nothing perverse in the procedure that has been followed or on the restriction imposed. The petitioner cannot dictate any aspect of the benefit that it seeks and it is a matter of negotiation between the petitioner and the respondents as to the kind of aid that it receives. No doubt, it is always within its discretion to seek a particular benefit and in this case, the petitioner has sought the benefit of 10 years, which has been rejected. The policy and consequential the Government Orders issued reveal that there are several considerations to be taken into account by the State in curating an incentive/aid package to an applicant. In the present case, the fact that the petitioner has failed to achieve the requisite production for 13 years after commencement of production stands as testimony to its ineligibility to the incentive. Incidentally, the cement industry, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om TNEB or generated and consumed captively was extended for all manufacturing units based on employment and investment in eligible fixed assets made within three years. 4. That apart, both new and expansion units were granted electricity tax exemption for five years from date of commercial production. In addition, manufacturing units located within SIPCOT industrial park or SEZ were to be provided an additional 50% capital subsidy over and above eligible limits. 5. An exemption from stamp duty was provided in certain enumerated circumstances, and where the new manufacturing units had set up dedicated Effluent Treatment Plants (ETP) or Hazardous Waste Treatment Storage and Disposal Facilities (HWTSDF), they were granted a special subsidy for this purpose. 6. Special and specific incentives were also extended, sector-wise. This is only to say that the policy covered investment promotion, manufacturing and infrastructure sectors and envisaged different means, measures and methodologies to incentivise and encourage economic activity in the State. 7. One notices differences and an individualistic approach in the manner in which the incentives have been proposed and crafted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects with an investment in eligible fixed assets of less than Rs.250 crores in a period of 3 years from the date of sanction order, Memorandum of Understanding or any other date to be fixed by Government (investment period), will be given a soft loan equivalent to the net output VAT + CST paid to the Government, in the following manner:- Sl. No . Investment within 3 years Soft loan given would be equal to VAT paid in the 1 Rs.50 crores Rs.100 crores First 3 years from commencement of commercial production 2 Rs.100 crores Rs.200 crores First 4 years from commencement of commercial production 3 Rs.200 crores Rs.250 crores First 5 years from commencement of commercial production Expansion projects will mean those projects, which create net additional capacity in the State through the projects located in Southern Districts. The package will be available only for significant capacity addition. The soft loan given in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und 600. 10. The petitioner sought structured assistance for an investment of Rs.572 Crores in eligible fixed assets for setting up of the aforesaid plants. The request came to be considered favourably and on 28.10.2010, G.O.Ms.No.150, specific to the petitioner, came to be issued, granting various benefits upon compliance with the conditions therein. 11. The eligible investment and period of investment was quantified as follows: a) Investment Investment in Green Field Cement Plant at Karikali Village, Dindigul District amounting to 520 crores and a sum of Rs.52 crores (out of Rs.160 crores investment in captive power plant) being 10% of the investment in Eligible Fixed Assets of Rs.520 crores, (i.e 572 crores Rs.520+52 crores) will be taken as eligible investment for sanctioning of structured package of Assistance to M/s.Chettinad Cement Corporation Limited. b) Investment Period Since the proposal for expansion of Karikali Plant was given on 04.06.2009, the investment period for this plant will be three years from 1st July 2009 and end on 30.06.2012. 12. The State offers incentives by way of two modus operandi, one a soft loan based upon the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der stipulated full compliance of the petitioner in regard to the level of investment, creation of capacity and provision of employment within the investment period. 14. By way of analogy one may compare the investment benefit granted to another unit of this petitioner, which is a manufacturing unit at Puliyur village, Karur. On an application made by that unit, G.O.Ms.No.65 dated 01.03.2011 was issued. Aside from various stipulations, conditions and benefits set out, the investment promotion subsidy was itself granted for a period of 10 years from date of commercial production subject to a ceiling of 50% of the eligible investment as defined in that Government Order. The unit in Puliyur opted for the soft loan method for incentive. 15. The petitioner proceeded to set up a unit and has, admittedly, commenced commercial production on 29.09.2010. Also admittedly, there has been, till date, notwithstanding the elapse of 13 years from date of first commercial production, no application from the petitioner seeking refund of VAT paid. Evidently, this is for the reason that the petitioner has, admittedly, been unable to achieve any production above the base production volume of 65 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quests that the period of benefit be capped to a minimum period of 10 years. Thus, without prejudice to its main demand of a permanent largesse from the State, the petitioner pursues the alternate argument that it be granted the benefit for a period of 10 years. To be noted, that even the period of ten years as sought for alternatively expired as on date, leaving one to suspect that that is perhaps the reason why the primary argument was at all being advanced. 21. The submission of Mr. Ramanlal, learned Additional Advocate General assisted by Mr.B.Vijay, learned Additional Government Pleader for the State/R1 and Mr.Silambanan, learned Additional Advocate General assisted by Mr.V.S.Rajaram, learned counsel for SIPCOT/R2 is that the 2007 Industrial Policy is a document that sets out the aims, intentions and objects of the State in regard to the economic benefits that it proposes to grant to eligible units in certain identified and specified sectors upon their complying with prescribed conditions. The details of the packages are not set out therein and in fact the policy is itself clear in stating that the packages shall be customised to suit a unit once an application is found eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taste. If at all, the State were confident in its stand, it ought to have rested content with the documentation, as available. Thus, and being of the view that the clarification is irrelevant, I eschew the same in deciding this matter. 28. The counters filed on behalf of both the State and SIPCOT, and their stand, in one voice, is that the incentive package has been crafted taking note of the specifics of the petitioner s case. Being a matter of policy, and one that empowers the respondents to customise the same, including the duration thereof, no fault can be attributed to the time limit fixed. 29. They also point out that it is the petitioner that had itself, sought a ten year minimum period for the benefit. Though that period was not accepted under the impugned order, even that period has worked itself out as on date. Thus, even if the respondents had granted the period as per the request of the petitioner, nothing would have turned on that as of now, as the issue is merely academic. 30. The State has filed a compilation dated Nil, filed on 06.12.2022 containing letter dated 10.08.2015, which is an internal communication between the Additional Secretary to Government, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its discretion to seek a particular benefit and in this case, the petitioner has sought the benefit of 10 years, which has been rejected. The policy and consequential the Government Orders issued reveal that there are several considerations to be taken into account by the State in curating an incentive/aid package to an applicant. 35. Interference in such a decision would, in my view, fall outside the realm of judicial review, unless the applicants were to establish conclusively and unambiguously that the decision taken, and the customisation offered, is perverse. In the present case, the petitioner has utterly failed to do so. 36. The last ditch of argument is that it would be impossible for it to ever achieve a production of 65 lakhs MT and thus the question of exceeding that capacity will simply not arise. However, the petitioner has not challenged the fixation of base volume and the entirety of the thrust of its challenge is only as against the fixation of time limit. 37. The fixation of base volume has itself been done in line with the policy which stipulates that there shall be a comparison of the production volume proposed to be achieved by the new unit as compare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is judgment is of no avail to the petitioner. 45. In the other judgments relied upon, the respective State Governments are seen to have issued Notifications subsequently modifying the terms and conditions of the original Notifications. In such circumstances, the Courts have held that those Notifications would militate against the principles of legitimate expectation and promissory estoppel. 46. In the present case, there is no modification as such to the terms and conditions barring the cap in post on the tenure of benefit under the Notification. To my mind, this would not constitute an amendment of the original terms, as the petitioner has revealed its hand by way of its own letter that a proper period for the currency of the investment benefit would be a minimum of ten years. Even on this score, the petitioner has failed since even today, after the expiry of 13 years, the petitioner accedes to the position that it has been unable to achieve the requisite production. 47. On the basis of the detailed reasons adduced, challenge to Eligibility Certificate dated 31.12.2015 is repelled. This Writ Petition and the Connected Miscellaneous Petitions are dismissed. No costs. - ..... 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