TMI Blog2023 (4) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... the category of Others under excise classifications 4802.90 and 4804.90 by amending Office Memorandum dated 07.01.2003, firstly by bringing out Office Memorandum dated 21.06.2005 and thereafter by way of impugned notification dated 27.06.2008. The fact of the matter is that Office Memorandum dated 07.01.2003 had been followed by notification dated 08.01.2003 extending benefit of subsidy in capital investment and further notifications No.49 and 59 dated 10.06.2003, whereby the benefit of exemption or payment of excise duty was extended. All these notifications had appended or annexed a negative list each with them. These negative lists were in identical terms as Office Memorandum dated 07.01.2003. These notifications were not amended. Similarly, appendice attached to said notifications specifically the negative lists remained the same. Thus, the benefit extended by these notification(s) remained available to all eligible industrial units save and except those mentioned in the negative list - the products manufactured by the petitioner were not mentioned in the negative list(s) annexed with all these notifications. The entire thrust of attack in the petition is on the amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for capital investment subsidy @15% of their investment in plant and machinery, subject to a ceiling of Rs.30 lakh. 3. However, the above noted incentives were not available to the industries mentioned in negative list, (Annexure- III) of Office Memorandum dated 07.01.2003. Pertinently, the eligible industrial units as well as the units in negative list had specific reference to their respective excise classification(s). 4. Respondent No.1 issued another Office Memorandum dated 21.06.2005 and thereby amended Annexure-III of Office Memorandum dated 07.01.2003 in respect of paper industry and included excise classifications 4802.90 and 4804.90 under heads Others . Office Memorandum dated 21.06.2005 was challenged by the petitioner before this Court by way of CWP No. 756 of 2005, which came to be decided by a Division Bench of this Court on 23.04.2008 in following terms:- Heard learned counsel for the parties. The learned counsel for the parties agreed that Office Memorandum can only be enforced when there is notification. It is admitted on behalf of the respondents that there is no notification till date. Accordingly, it is directed that no action be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on so granted. In these notifications also negative list having reference to excise classifications was Annexed. 8. Evidently, the above noted notifications dated 8.1.2003 and 10.6.2003 were independent of O.M. dated 7.1.2003 and carried their individual efficacy. 9. Initially, the petitioner was engaged in production of kraft paper at its industrial unit in District Sirmour. Subsequently, petitioner installed another unit for production of printing and writing paper also at same place. As regards, first unit of petitioner manufacturing kraft paper, it is the case of the petitioner that substantial expansion had been under taken in terms of Office Memorandum dated 07.01.2003, notification dated 08.01.2003 and notifications dated 10.06.2003, making the petitioner eligible for benefits of subsidy in capital investment and exemptions in payment of excise duty. The second unit of petitioner producing printing and writing paper is stated to have been established in the year 2008 during continuance of aforesaid Office Memorandum and notifications. 10. The grievance of the petitioner is with respect to inclusion of the commodities produced by it i.e. kraft paper (4804.90) and pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t(s). As regards paper industry, the products of kraft paper with excise classification 4804.10 was kept in negative list. Similarly, writing or printing paper with excise classification 4802.10 was one of the subjects in the negative list appended and annexed with the aforesaid Office Memorandum or the notifications. Vide Office Memorandum dated 21.06.2005, products with excise classification 4802.90 and 4804.90 were included. It was after passing of order dated 23.04.2008 by the Division Bench of this Court in CWP No. 756 of 2005, titled M/s Ruchira Papers Ltd. vs. Union of India Ors that impugned notification dated 27.06.2008 came to be issued in same terms as contained in Office Memorandum dated 21.06.2005. 15. Petitioner has specifically averred in the petition that its product i.e. kraft paper had specific excise classification as 4804.90 and other product manufactured by petitioner i.e. printing and writing paper fell in excise notification 4802.90. The Kraft paper included in the negative list initially had excise notification 4804.10, which was specifically assigned to kraft paper supplied to a braille press against an indent placed by the National Institute for V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by notification dated 08.01.2003 extending benefit of subsidy in capital investment and further notifications No.49 and 59 dated 10.06.2003, whereby the benefit of exemption or payment of excise duty was extended. All these notifications had appended or annexed a negative list each with them. These negative lists were in identical terms as Office Memorandum dated 07.01.2003. These notifications were not amended. Similarly, appendice attached to said notifications specifically the negative lists remained the same. Thus, the benefit extended by these notification(s) remained available to all eligible industrial units save and except those mentioned in the negative list. As held above, the products manufactured by the petitioner were not mentioned in the negative list(s) annexed with all these notifications. 18. As a necessary corollary to what we have held above, the first part of questions formulated in paragraph 12 supra needs to be answered in affirmative and second part in negative. However, it is not understandable as to on what cause the petitioner has approached this Court for the reliefs as noted hereinabove. As regards first relief, the same will not have any affect eith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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