Swastik Fertilizers & Chemicals ... vs Union Of India (Uoi) And Anr.
1999 Latest Caselaw 445 Del

JUDGMENT

C.M. Nayar, J.

1. This petition has been filed by the petitioners for issuance of directions to the respondents to fix. the rate of payment of subsidy in respect of the fertilisers as already supplied by the petitioners.

2. The petitioners allegedly submitted an application for registration with respondent No. 2 for payment of subsidy along with basic documents on August 24, 1990 and September 15, 1990 respectively. Respondent No. 2 vide letter dated October 22,1990 sought certain clarifications with regard to setting up a new SSP Unit in the small scale sector and on December 8, 1990 the petitioners replied in detail to the letter of the respondents dated October 22, 1990 and the petitioners submitted detailed information sought for by respondent No. 2. The basic grievance of the petitioners in this petition is that there has been delay in fixation of subsidy and in payment of the subsidy amount and the Unit of the petitioners had to remain closed and intimation of such closure was sent to respondents on March 1, 1991.

3. The respondents have filed counter affidavit wherein the following pleas have been taken:

"The unit/petitioner submitted first preliminary data since commencement of commercial production. The petitioner was advised vide letter dated 22.10.1990 to furnish requisite data/full information with documents for processing the case. In fact, the petitioner unit in itself took nearly one year and four months to submit this preliminary data after it commenced its commercial production on 5.1.1990. Complete information relating to data for variable cost inputs was not submitted by the petitioner unit till January, 1994. (Copies of letters written to the petitioner unit in this connection are enclosed as Annexure -I to Annexure XIII).

However, according to the scheme the petitioner's unit was first inspected jointly with the State Government in July, 1992. At that time it was found that the unit's plant was not functioning. It was also decided to have a technical inspection to ascertain the units capability on technical parameters, technical inspection of unit was done during 30.9.1993 to 1.10.1993. However, as the plant was still closed the inspection could not be made purposeful since no test run could be taken at the site for capacity assessment. Even the electricity and water line during the inspection period was in disconnected condition and the health of the plant and machinery had been deteriorated condition.

Along-with other documents required as a part of technical inspection, unit was asked to furnish the guarantee test Run (GTR) report also. Despite various reminders the petitioner unit did not furnish GTR till 28.12.1994. The unit could not satisfactorily explain the reason for the delay in submission of a basic documents. In the absence of relevant documents and certain contradiction in the data, it was not possible to fix the ex-works price and subsidy payable in the case of the petitioner unit and the case was treated as closed after numerous opportunities had been given to the unit. There has been no evidence of the plant being in regular operation, in the past before the decontrol. The government agencies which have undertaken the plant inspection have not confirmed to having physically witnessed the regular plant operation.

During August 1994, the Unit informed that their plant has been recommissioned in February, 1994 after shut-down from March, 1.991. Performance Test Run Certificate by a Chartered Engineer dated 5.8.1994 has been furnished. However, the operation of the plant during February 1994 does not in any way prove that the plant had remained in operation in the past before decontrol for which period subsidy would become payable to the unit."

4. On the above basis it is reiterated that the petitioners' unit has not been able to show evidence with regard to the production of SSP and mere calculation of ex-works price and subsidy on the basis of data for variable cost of inputs furnished by the unit would not make the unit eligible for subsidy. The unit could not satisfactorily explain that how sale could precede despatch and why GTR report was not available with them. It may also be relevant to refer to the following paragraphs in the counter affidavit:

" Under the fertilizer Retention Price Scheme, the Unit would become due for subsidy when the fertilizer was despatched from the factory. After despatch the fertilizer may be sold immediately or sold after a time gap. Despatch of fertilizer would, however, precede its sale. From the Certificates submitted by the petitioner Units it was seen that the Unit sold some quantity of SSP on 15.2.1990 but the same was despatched in September, 1990 which would indicate that the sale had preceded despatch of SSP. The petitioner unit in its clarification stated that although the SSP was sold on 15.2.1990, it was withheld till September, 1990 at the request of the parly. From the explanation it was not clear why such an unusual transaction had taken place, hence the same could not be accepted."

5. The respondents have next validly submitted that the case of the petitioners could not be finalised as the Unit was not able to satisfactorily establish the production capacity of its plant. Lastly, the case of the petitioners was closed for want of full particulars which were not supplied and the circumstances as staled above, would indicate that the petitioners have not been able to make out a case for grant of subsidy. The petition raises disputed questions of fact and it will not be open for this Court to reappraise the material and evidence to arrive at contrary conclusions as have been satisfactorily stated and explained in the counter affidavit filed by the respondents.

6. In view of the above, the petition is dismissed. There will be no order as to costs.