Bombay High Court
M/S Sai Stone Crusher, Amravati ... vs State Of Maha., Through ... on 18 August, 2023
Bench: Avinash G. Gharote, M. W. Chandwani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.19/2018
PETITIONER : M/S SHRI. BALAJI BUILDICON,
(Partnership firm) The Eligible Industrial
Unit under the package scheme of
Incentives - 2007, situated at Khasra No.146,
PC No.67, at Haladgaon, Tah. Hingna,
District Nagpur, through its Partner
Shri Sanjay Chiranjilal Heliwal,
Aged about 49 years, Occ : Business,
Office at present, 20, Heliwal Sadan, near
Lata Mangeshkar Garden, Surya Nagar,
Bhandara Road, Nagpur - 440035.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai.
3. The Joint Director of Industry, Regional
Office of Industries, Nagpur.
4. The General Manager, District
Industrial Centre, Nagpur, Tah. and
District Nagpur.
WITH
WRIT PETITION NO.2106/2018
PETITIONER : M/S JAY GAJANAN STONE CRUSHER,
The Eligible Industrial Unit under the
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package scheme of incentives- 2007,
situated at Gut No.30, Hingna Kumbhari,
Tah. & District Akola through its Proprietor
Sau Nanda w/o Sureshrao Wankhede,
Aged about 40 years, Occ. Business,
Office at Kinkhed, Tq. Akot, District Akola.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai-32.
3. The Joint Director of Industry, Regional
Office of Industries, Amravati.
4. The General Manager, District
Industrial Centre, Nagpur, Tah. and
District Akola.
WITH
WRIT PETITION NO.2108/2018
PETITIONER : SHRI BIJWE STONE CRUSHER, The
Eligible Industrial Unit under the
package scheme of incentives-2007,
situated at Gut No.130, Sarav, Tah.
Barshitakli, District Akola, (the partnership
firm) through its Partner Shri Abhay S/o
Prabhakar Bijwe, the partner of Shri Bijwe
Stone Crusher, Aged about 46 years, Occ.
Business, Office at Gut. No.130, Sarav,
Tah. Barshitakli, District Akola.
...VERSUS...
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RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai-32.
3. The Joint Director of Industry, Regional
Office of Industries, Amravati.
4. The General Manager, District
Industrial Centre, Akola, Tah. and
District Akola.
WITH
WRIT PETITION NO.2109/2018
PETITIONER : M/s Shri Sai Minerals, The Eligible
Industrial Unit, situated at Survey No. 88/1,
88/2, 88/3, 87, 29, 28/3, 17, 89/2 at Post
Mohada, Tq. Wani, District : Yavatmal,
through its Proprietor Shri Rajesh S/o Nandlal
Biyani, Aged about 39 years, Occ : Business,
Office at "Gokuldham", D.G. Tukum, Tadoba
Road, Chandrapur, Tahsil and District
Chandrapur - 442401.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai-32.
3. The Joint Director of Industry, Regional
Office of Industries, Amravati.
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4. The General Manager, District
Industrial Centre, Yavatmal.
WITH
WRIT PETITION NO.2107/2018
PETITIONER : M/s Shri Sai Minerals, The Eligible
Industrial Unit, situated at Survey No. 88/1,
88/2, 88/3, 87, 29, 28/3, 17, 89/2 at Post
Mohada, Tq. Wani, District : Yavatmal,
through its Proprietor Shri Rajesh S/o Nandlal
Biyani, Aged about 39 years, Occ : Business,
Office at "Gokuldham", D.G. Tukum, Tadoba
Road, Chandrapur, Tahsil and District
Chandrapur - 442401.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai.
3. The Joint Director of Industry, Regional
Office of Industries, Amravati.
4. The General Manager, District
Industrial Centre, Yavatmal.
WITH
WRIT PETITION NO.55/2018
PETITIONER : M/s SAI STONE CRUSHER, The Eligible
Industrial Unit, situated at Survey No.54,
Gut No.292, Pimpala vihar Tal. Amravati,
District Amravati through its Proprietor
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Shri Suresh S/o Lahorimal Khatri,
Aged about 47 years, Occ : Business,
O/at Deshna Nagar, Chatri Talo Road,
Amravati, Tah. and District Amravati.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai.
3. The Joint Director of Industry, Regional
Office of Industries, Amravati.
4. The General Manager, District
Industrial Centre, Amravti Tah. And
District Amravati.
WITH
WRIT PETITION NO.242/2018
PETITIONER : PANPALIA METELS, The Eligible
Industrial Unit under the Package
Scheme of of Incentives-2007,
situated at Survey No.47, Gittikhadan, at
Post Kharda, Tah. Seloo, Wardha, Through
its proprietor, Shri Sandeep S/o Nandlalji
Panpalia, aged about 49 years, Occ. Business,
R/o near Pantanjali Shop, Snehal Nagar,
Mahila Ashram, Seva Gram Road, Wardha,
District, Wardha.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
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Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai.
3. The Joint Director of Industry, Regional
Office of Industries, Wardha.
4. The General Manager, District
Industrial Centre, Wardha, Tah. And
District Wardha.
WITH
WRIT PETITION NO.401/2018
PETITIONER : M/s. Shri Govindkrupa Stone Crusher,
The Eligible Industrial Unit, situated at
Gut No.384, at Shevti, Ta. Amravati,
District Amravati (the partnership firm)
through its Partner Shri Rajesh S/o
Ghanshyamji Kasat, Aged about 47 years,
Occ : Business, Office at near Vasant
Talkies, Amravati, Tah. and District Amravati.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra,
Through its Secretary, Department of
Industry, Energy and Labour,
Mantralaya, Mumbai - 440 032.
2. The Director of Industry,
Opposite Mantralaya, Kolaba, Mumbai.
3. The Joint Director of Industry, Regional
Office of Industries, Amravati.
4. The General Manager, District Industrial
Centre, Amravati Tah. And District Amravati.
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Mr. Firdos Mirza & Mr. A.B. Moon, Advocates for petitioners
Mr. M.K. Pathan, AGP for respondent nos.1 to 3/State
----------------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE, AND
M.W. CHANDWANI, JJ.
Date of reserving the order : 10/08/2023
Date of pronouncing the order : 18/08/2023
ORDER (PER : AVINASH G. GHAROTE, J.)
1. Heard Mr. Firdos Mirza, learned counsel for the
petitioners and Mr. M.K. Pathan, learned Assistant Government
Pleader for the respondent nos.1 to 3/State. None appears for the
respondent no.4, though served.
2. All these petitions question the denial of the Package
Scheme of Incentives, 2007 to the petitioners - Industry, who are
admittedly dealing with minor minerals. It is not in dispute that
prior to the subsequent Government Circular dated 17/06/2011, the
petitioners were being granted the incentive without any time- frame
for applying for the same. However, on account of the Government
Circular dated 17/06/2011, the benefit of the scheme is denied to
them on the ground that there has been delay in making the
application in view of clause 4.2 (3) of the Government Circular
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dated 17/06/2011. Clause 4.2 (3) of the said Circular contemplates
that valid claim should be filed with the implementing agency within
six months from the expiry of the financial year and if the claims are
filed after six months, the amount of Royalty Refund will be 90% of
the admissible amount. The claims filed after one year of the expiry
of financial year will not be admissible (pg.88). It is on the basis of
this Clause, the claims filed by the petitioner/s beyond the period of
one year were rejected.
3. It is necessary to note that on an earlier occasion, on
declining to accept the claims, a challenge was raised before this
Court in Writ Petition No.137/2015 (M/s. Prerna Stone Crusher Vs.
The Government of Maharashtra through its Secretary, Ministry of
Industries, Energy and Labour Department, Mantralaya, Mumbai -
32 and others) in which by judgment dated 18/03/2016 it was held
that the petitioners were governed by Clause 5.5 of the Government
Resolution dated 30/03/2007 and therefore, as the said Government
Resolution did not make any difference for refund of royalty
between major or minor minerals, nor prescribed any time period for
applying the petitioners would be entitled to refund. It is consequent
to this judgment the petitioner applied to be considered for refund,
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consequent to which, the claim submitted by the petitioners is
rejected, which is subject matter of challenge in these petitions.
4. Mr. Mirza, learned counsel for the petitioners submits
that the case of M/s. Chinteshwar Steel Private Ltd. and another Vs.
State of Maharashtra through Secretary, Industries, Energy and
Labour Department, Mantralaya, Mumbai - 400 032 and others,
(Writ Petition No.1010/2016 decided on 07/04/2017) has been
decided in the context of factual background that the matter under
consideration therein is in respect of major minerals and not
otherwise. He therefore contends that the petitioner/s would
continue to be governed by 2007 Government Resolution and the
judgment in the case of M/s. Prerna Stone Crusher (supra) and so
also judgment of this court in the case of M/s. Shri Sai Minerals Vs.
State of Maharashtra and others (Writ Petition No.5220/2016 and
other matters, decided on 07/03/2017).
5. Mr. Pathan, learned Assistant Government Pleader in
reference to M/s Chinteshwar Steel Private Limited (supra) submits
that since it has been held in para 10 thereof that Circular dated
17/06/2011 was in no way subordinate to Government Resolution
dated 30/03/2007 but complimentary to it, the time limit as fixed in
the Circular dated 17/06/2011 was applicable and therefore, denial
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was justified. He further submits that considering what has been
held in the case of M/s. Chinteshwar Steel Private Ltd. (supra), the
relief claimed in prayer clause no. 1 cannot be granted. It is also his
contention that there is no plea in the petition that the 2011 Circular
is restricted only to major minerals.
6. The scheme formulated under the Government
Resolution dated 30/03/2007 by the State entitles an industrial unit
registered as a small scale industry the advantage of a Package
Incentives Scheme, according to which, the industrial unit is entitled
to royalty refund on purchase of minerals from mine owners within
the State of Maharashtra for a period of five years. The relevant
clause in the Government Resolution dated 30/03/2007, namely,
Clause - 5.5 reads as under :
"5.5 Royalty Refund.
All eligible units, new as well as units undertaking
expansion in Vidarbha region will be eligible for refund of
royalty paid on purchase of minerals from mine owners within
the State of Maharashtra for a period of five years from the
date of commencement of commercial production."
7. It is equally evident from perusal of the said
Government Resolution dated 30/03/2007 that the same is of
universal applicability and is applicable to an industrial unit dealing
in minerals. It does not make any distinction between industrial
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units on the basis of they dealing in major or minor minerals. It is
equally an admitted position as conceded by Mr. Pathan, learned
Assistant Government Pleader that under the Government
Resolution dated 30/03/2007 the petitioner industrial units, which
are dealing in minor minerals were granted the royalty refund under
the Package Scheme of Incentives, 2007 and therefore their coverage
under the said Government Resolution cannot be disputed. A perusal
of Clause-5.5. above of the Government Resolution dated
30/03/2007 indicates that it does not provide any time restriction
for claiming the royalty refund.
8. The circular dated 17/06/2011 (pg.82) defines eligible
units to be units established in Virdarbha Region and holding
eligibility certificate under PSI-2007, which are using major minerals
purchased from mine owners from the State including captive mines
and MSSIDC, as raw material required for manufacturing of the
finished products. Clause - 4.2 therein reads as under:
"4.2 Application for sanction of Royalty Refund :
1) An eligible unit shall prefer claim for each financial year
in Annexure-I.
2) A valid claim shall be supported with the following
documents.
a) Certificate from Sr. Deputy Director, Directorate of
Geology & Mining giving details of Royalty paid to the State
Government on major minerals (Annexure-II).
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b) Certified copies of challans/invoices of Royalty paid to
the State Government.
c) Auditor's Certificate with regards to Royalty paid and
major minerals used in production. (Annexure-III).
d) Affidavit in prescribed format. (Annexure-IV)
All the enclosures shall be self certified/duly signed by the
authorized signatory.
3) The valid claim should be filed with the implementing
agency within 6 months from the expiry of the financial year. If
the claims are filled after 6 months, the amount of Royalty
Refund admissible in such cases will be 90% of admissible
amount.
The claims filed after 1 year of the expiry of financial year
of the claim will not be admissible.
4) The units which are granted Eligibility Certificate before
the issue of Royalty Refund modalities GR, shall file all due
claims within 6 months from the date of the GR.
5) However, all due claims shall be filed within 6 months
from the date of Eligibility Certificate, if Eligibility Certificate is
issued after the date of the GR."
9. Since consequent to the circular dated 17/06/2011
there was a denial for the refund of royalty, the same came up for
consideration before this Court in M/s. Prerna Stone Crusher
(supra) in which after considering the circular dated 17/06/2011
and so also the language of the Government Resolution dated
30/03/2007 it has been held that Clause-5.5 of the Government
Resolution dated 30/03/2007 does not restrict the refund of royalty
only for major minerals and therefore as the petitioner therein has
been permitted to start its unit on the basis of package incentive
scheme of 2007 as prescribed by the Government Resolution dated
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30/03/2007, without appropriately modifying that Government
Resolution and that too retrospectively, the benefit of royalty refund
could not be denied. This has been followed subsequently in Writ
Petition No.5220/2016 and connected petitions decided on
07/03/2017.
10. M/s Chinteshwar Steel Private Limited (supra)
considers both the policies as laid down in the Government
Resolution dated 30/03/2007 and he subsequent circular dated
17/06/2011 and holds as under :
"10. Government Circular dated 17.06.2011
incorporates the decision of this Committee. This circular deals
with various facets of royalty refund and therefore appears to
be a more comprehensive decision on that subject. Because of
its this nature, it has been issued by order of in the name of the
Governor of Maharashtra. We, therefore, find that this
decision dated 17.06.2011 styled as Government Circular is in
no way subordinate to the Government Resolution dated
30.03.2007. On the contrary, it is complimentary to it and
mandates adherence similarly. In view of this arrangement and
object inherent in 2007 Scheme, the exercise of the committee
dated 17.06.2011, though styles as circular, can contain both
procedural and substantive provisions. The Committee
functioning under Clause 7 has to understand and meet the
problems faced while translating the 2007 Scheme into
practical. It can take all necessary decisions in the public
interest subject only to rider that such decisions must be ratified
by the competent authority. There is no challenge to this
arrangement and it needs to be honoured as it is neither
unconstitutional nor arbitrary.
11. Eligibility certificate of the petitioner dated
22.04.1989, vide its condition 17(iv) obliges it to comply with
all terms, conditions and provisions of 2007 Scheme, all
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stipulations as may be made from time to time as also the
procedure prescribed thereunder and in force from time to time.
Thus, petitioners have already subjected themselves to such
stipulations and procedure or change therein. We have already
found that whether exercise in government circular dated
17.06.2011 is procedural or substantive can not form the bone
of contention in as much as the scheme and later circular stand
at same pedestal as far as the petitioners are concerned. The
circular does not extinguish the right to claim refund but
regulates it in larger public interest by prohibiting the stale
claims. When the refund has to be out of public revenue,
verification of the records and documents at various levels is
must. Similarly, the Government must know the liabilities to be
discharged within reasonable time so as to rule out any
manipulations and other mischief. When the arrangement
and appropriation of the funds is always a problem and
transparency is desired, time bound processing of such cases is
the only solution. Petitioners do not even state why period of
one year or outer limit of one year for filing refund claim is
arbitrary. At the end of production year, raw material consumed
is matter of record. Hence, choice of this period of one year as
period of limitation after expiry of financial year does not seem
to be either arbitrary or unreasonable. Petitioners have not
taken any pains to demonstrate how or why this period is
insufficient. In fact, there are no arguments on these lines.
Legally, we do not see any prejudice caused to any industry by
prescribing this limitation. Contention that benefit of refund of
royalty is being taken away by the government circular dated
17.06.2011 therefore, is, wholly erroneous and misconceived.
We find that said benefit is to be availed by the petitioners as
per 30.03. 2007 Scheme read with government circular dated
17.06.2011.
12. Claim for benefit of royalty refund for year 2011-
2012 ought to have been filed by them by 31.12.2013 but,
it came to be filed on 07.12.2013. In the meanwhile,
petitioners did not challenge the government circular dated
17.06.2011 for about 2 years. The challenge is therefore
belated. We find substance in the contention of Ms. Khan,
learned A.G.P. that this delay has not been explained.
13. The refusal to refund due to expiry of period of
limitation is not questioned by pointing out that some dispute
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about availability of the benefit or about eligibility of raw
material consumed by the petitioners, was then pending and
hence, no refund was claimed. The respondents in reply point
out that refund for years 2009 2010 and 2010-2011 got
delayed due to lack of some documents as quantity of coal
shown as consumed was found excessive. This assertion by the
respondents of alleged noncompliance by the petitioners is not
dealt with and not in dispute before us. Late clearance of refund
proposal by itself can not be a ground for nonsubmission of the
further claims within time. Justification therefor pleaded in
paragraph 8 of the writ petition does not advance the case and
cause of the petitioners. Petitioners having submitted the claims
earlier can not raise any challenge to the prescription of time
limit on 17.06.2011. Claim for year 2011-2012 was to be
submitted within one year from 31.03.2012 i.e., by 31.03.2013.
Though their claim has been declined by the reasoned orders,
petitioners do not plead or point out any difficulty or inability
for their failure to submit it within time. They do not care to
explain why it could not be filed before 31.03.2013 or before
07.12.2013."
11. What is material to note is that M/s Chinteshwar Steel
Private Limited (supra) was a case in which a claim for refund of
royalty for the year 2011-12 under the package scheme of incentive
2007 by ignoring the condition prescribing the limitation for raising
it as contained in the circular dated 17/06/2011 was raised and a
relief was sought that the limitation provided for the first time vide
circular dated 17/06/2011 should be quashed or it be declared that
it cannot apply to the case of the petitioner therein as their eligibility
certificate was dated 22/04/2009. A reading of the fact position in
M/s Chinteshwar Steel Private Limited (supra) does not reveal that
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what was being considered as a claim for refund of royalty was in
respect of a minor minerals. As indicated above, it was held that the
claim for benefit of royalty refund for the year 2011-12 ought to
have been filed by 31/12/2013. It is however material to note, that
M/s Chinteshwar Steel Private Limited (supra) does not take into
consideration that the circular dated 17/6/2011 in clause - I which
speaks about eligible units defines eligible units to mean units
established to vidarbha region and holding eligibility certificate
under PSI - 2007 which are using major minerals. This would clearly
indicate that the circular dated 17/6/2011, was clearly meant for
units using major minerals purchased from mine owners as raw
material for manufacturing of the finished products. This is further
substantiated from the language of clause 4.2 of the said circular
which in relation to a valid claim to be submitted by an eligible unit,
requires a certificate from the senior deputy director, directorate of
geology and mining giving details to royalty paid to the State on
major minerals and so also an auditor's certificate in that regard, as
contemplated by Clause 4.2 (2-a) and (2-c). Thus, though M/s
Chinteshwar Steel Private Limited (supra) holds that the
Government circular dated 17/06/2011 is complementary to the
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Government Resolution dated 30/03/2007 it has to be read in the
contextual background of the circular dated 17/06/2011 creating an
exception for refund of royalty vis-a-vis units using major minerals,
on the basis of an application for the same being filed within the
time prescribed therein, the rest of the policy remaining the same.
Had it been the intention of the State to provide a uniform time-lime
for industrial units to apply for refund of royalty, irrespective of
whether they were using minor or major minerals for manufacturing
purposes, nothing prevented the State to say so in the circular dated
17/06/2011. By the very fact that the circular dated 17/06/2011
speaks about units using major minerals for manufacturing of
finished products and does not include units using minor minerals,
indicates the intention of the State, not to apply the time-frame as
contained in the Government circular dated 17/06/2011 to units
using minor minerals. The language therefore as used in clause -1
and clause 4 of the circular dated 17/06/2011 did not fell for
consideration by the learned Court in M/s Chinteshwar Steel Private
Limited (supra) as is evident from a perusal thereof.
12. The setting up of an Industry based upon a policy
prevailing at that point of time providing incentives, would indicate
that the incentives are built into the financial complications of the
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Industry and denial would lead to a disarray in the financial health
of the Industry. When the policy is for promotion of Industry,
denying such incentive, merely on account of delay in applying for it
would be a retrograde step in implementation of the policy,
specifically so when the exception carved out later is for a particular
category of Industry, based upon the nature of raw material used,
and the Industry claiming such benefit does not fall in such
exception.
13. It is not disputed by learned Assistant Government
Pleader Mr. Pathan, that except for the delay in filing an application
for refund of royalty in view of Clause-4.2 of the Government
Circular dated 17/06/2011 the petitioners/units are otherwise
eligible for refund of royalty. In that view of the matter, we do not
see any reason why the said benefit should not be granted to them
specifically when no time-limit is fixed in Clause -5.5 of the
Government Resolution dated 30/03/2007 and the Government
Circular dated 17/06/2011 is made applicable only to units using
major minerals for the purpose of manufacturing finished products.
14. In view of the above discussion, the writ petitions are
allowed. The respondents are directed to refund the royalty in terms
of Clause 5.5. of the Government Resolution dated 30/03/2007 to
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the petitioners, if they are otherwise so entitled, irrespective of the
date on which the application was made. Any refund would not
carry any interest, whatsoever.
(M.W. CHANDWANI, J.) (AVINASH G. GHAROTE, J.)
Wadkar
