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TMI Blog2023 (4) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, vide Office Memorandum dated 07.01.2003 had promised certain fiscal incentives for industries in the States of Uttaranchal (now Uttarakhand) and Himachal Pradesh. According to the said Office Memorandum new industrial units and existing industrial units on their substantial expansion were promised the following incentives :- (a) 100% out right excise duty exemption for a period of 10 years from the date of commencement of commercial production; (b) 100% income tax exemption for initial period of five years and thereafter 30% for companies and 25% for other than companies for a further period of five years for the entire states of Uttaranchal and Himachal Pradesh from the date of commencement of commercial production. (c) Eligibility 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of subsidy on capital investment was capped at Rs.30 lakh. Industrial units not entitled for benefit of the capital investment subsidy scheme were detailed in Annexure-III appended to the said scheme. 7. Respondent No.1 further issued notifications Nos. 49 of 2003 and 50 of 2003, dated 10.06.2003, whereby eligible industries were exempted from payment of excise or additional duty of excise for a period of 10 years. The industries which had commenced their commercial production on or after 07.01.2003 and industrial units existing before 07.01.2003, which had under taken substantial expansion by way of increase in installed capacity by not less than 25% on or after 07.01.2003 were made eligible for the benefit of exemption 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised its second unit within the period of continuance of incentive period. 12. We have heard learned counsel for the parties and have also gone through the entire record carefully. 13. In view of the pleadings of the parties, the question that arises for determination is whether the products manufactured by petitioner were included in the negative list right from the inception and if not so, whether the benefits of fiscal incentives could be denied to the petitioner by giving retrospective effect to notification dated 27.06.2008 issued by respondent No.1? 14. It is not in dispute that inclusion and exclusion of eligible or negative industries were made with reference to excise classifications of the product(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remaining types of kraft papers as well as printing and writing paper in 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. 17. Noticeably, what has been amended by way of impugned notification dated 27.06.2008 is Annexure-III of Office Memorandum dated 07.01.2003. As also observed by a Division Bench of this Court while deciding CWP No. 756 of 2005, Office Memorandum can only be enforced when there is a notification. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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