M/S. Ultra Tech Cemnet Ltd And Anr vs State Of Rajasthan And Ors
2021 Latest Caselaw 5827 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 6040/2018

1. M/s. Ultra Tech Cement Ltd., Having Its Registered Office At Ahura Centre, 2Nd Floor, B Wing, Mahakali Caves Road, Andheri East, Mumbai- 400093 And Having One Of Its One Manufacturing Unit Unit- Aditya Cement Works-Ii, Sawa Kesarpura Road, Shambhupura, District Chittorgarh, Rajasthan Through Mr. Somabrata Chakrabarti S/o Shri Kalidas Chakrabarti Sr. Vice President- Finance And Commerce

2. Mr. Mandish Baury S/o Late Shri Madan Mohan Baury An Indian National And Share Holder Of The First, Residing At B-12 Acw Staff Colony, Adityapuram, Post - Sawa- Shambhpura, Distt Chittorgarh - 312 622 Rajasthan

----Petitioners Versus

1. State Of Rajasthan, Through, The Secretary Finance, Finance Department, State Secretariat, Jaipur Rajasthan

2. The Additional Chief Secretary- Finance, Finance Department, State Secretariat, Jaipur Rajasthan

3. The Commissioner, Commercial Taxes, Kar Bhawan, Ambedkar Circle, Jaipur, Rajasthan

4. The Assistant Commissioner, Commercial Tax, Special Circle Rajasthan, Jhalana Dungri, Kar Bhawan, Jaipur, Rajasthan

5. The Commissioner Investment And Nri, Board Of Infrastructure Development And Investment Bureau Of Investment Promotion, Rajasthan Udyog Bhawan, Tilak Marg, Jaipur, Rajasthan

6. The State Level Screening Committee, Through Its Member Secretary, The Commissioner Of Industries Udyog Bhavan, Tilak Marg, Jaipur, 302005, Rajasthan

----Respondents

For Petitioner(s) : Mr. Ravi Bhansali, Sr. Advocate assisted by Mr. Ramit Mehta and Mr. Saurabh Maheshwari For Respondent(s) : Mr. Sandeep Shah, AAG assisted by Mr. Akshiti Singhvi.

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                        JUSTICE DINESH MEHTA

                                    Judgment

01/03/2021

1. The matter comes up on an application (I.A. No.01/2020)

under Article 226 of the Constitution of India, seeking amendment

of the writ petition.

2. Mr. Sandeep Shah, learned Additional Advocate General,

appearing for the State, at the outset submitted that the

amendment application is misconceived and the petitioner -

Company has tried to set up an entirely a new case, under the

guise of amendment of the writ petition, and the same is

impermissible in law.

3. He highlighted that the petitioner - Company is trying to

change its stand simply with a view to wriggle out of the

adjudication made by the Division Bench of this Court in case of

petitioner - Company itself, though for a different unit. He cited

order dated 11.01.2019 passed in DB Civil Writ Petition

No.9090/2018 (M/s Ultratech Cement Ltd & Anr. Vs. State of

Rajasthan & Ors.) in this regard and argued that application

deserves to be dismissed.

4. He pointed out that not only in Para - A of the writ petition

even at the time of admission hearing on 03.05.2018, a statement

was given that the petition is identical to DB Civil Writ Petition

No.9090/2018, wherein interim order has been granted and

submitted that now, as the Division Bench has already dismissed

the above writ petition, and appeal thereagainst has also been

dismissed by Hon'ble the Supreme Court, no indulgence be

granted and prayer to amend the writ petition be rejected.

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5. Mr. Ravi Bhansali, learned Senior Advocate, appearing for the

petitioners made submission on the amendment application and

pointed out that the case decided by the Jaipur Bench, relates to

petitioners' Kotputali unit and it was a new unit; whereas present

petition relates to its Unit at Sawa-Shambhupura, which had

claimed benefit of Rajasthan Investment Promotion Scheme -

2013 (RIPS - 2013) under head 'expansion'.

6. It was also contended that the petitioner - Company had

claimed the benefits not only under the RIPS - 2013, but also in

relation to customised package, announced for cement unit, for

the huge investment it had made.

7. Learned Senior Advocate invited Court's attention towards

application dated 08.06.2009 (Annex.P/11) and submitted that

request for customised package was made before the State

Government and merely because one of the two issues has been

decided against the petitioner - Company (under RIPS - 2013)

and reduction of quantum of benefit thereunder from 75% to 50%

has been upheld by the Division Bench and by Hon'ble the

Supreme Court, right of petitioner - Company with respect to

customised package cannot be foreclosed.

8. I have heard learned counsel for the parties on amendment

application so also considered the submissions made on the merit

of the case.

9. In the opinion of this Court, the petitioner - Company is

seeking to set up an entirely new case in relation to its request for

grant of customised package. The petitioner - Company had not

even made any reference so far as customised package for Sawa -

Shambhupura - Industry is concerned.

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10. A look at the communication (Annex.11), so heavily relied

upon by Mr. Bhansali, reveals that only a passing reference of

application for customised package was made in para No.4 of the

communication aforesaid, while pursuing its claim under RIPS -

2013. No application which was filed for customised package has

been placed on record nor any averments in relation thereto have

been made.

11. Petitioner's present application is nothing but an endeavour

to resurrect its claim qua customised package, which was not

seriously pursued by the petitioner - company so far. Present

petition was filed essentially against the State's action of

withdrawing 25% benefits, as against total 75% subsidy which

was allowed under RIPS and later confined to 50%. Entire writ

petition hovers around the order dated 12.03.2018 passed by the

Additional Chief Secretary (Finance) and revision of entitlement

certificate dated 02.04.2018.

12. All the facts, and relevant documents were available with the

petitioner - Company, but it has chosen not to raise any grievance

with respect to its rights under customised package promulgated

for cement industries. Petitioner's purported request under the

customised package was turned down in the year 2018 itself.

13. The amendment prayed for is not only belated but also an

after-thought, to say the least. Amendment if allowed, would

change the nature of the writ petition altogether. Such prayer

cannot be entertained at this stage, when all the pleadings are

complete and the matter is ripe for hearing. That apart, issue as

raised has already been decided by Division Bench of this Court

and Hon'ble the Supreme Court.

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14. This Court is firmly of the view that the amendment

application, which has been filed after dismissal of the appeal vide

judgment dated 17.07.2020 by Hon'ble the Supreme Court is not

only highly belated but the same is misconceived and an attempt

to sidetrack the issue and prolong the disposal of the writ petition.

15. The application seeking amendment is, therefore, rejected.

16. Adverting to the merit of the case, the petitioner's contention

that the case of the present Unit (at Sawa- Sambhupura) is that of

expansion, whereas the case before Division Bench was for its

Kotputali unit which is the 'New Unit' is nothing more than a

cosmetic difference. Heart and soul of the controversy is same,

rather common. Such minor factual difference has no bearing

upon merit of the case. The basic dispute revolves around

reduction of the benefit from 75% to 50% in light of the

notification dated 28.04.2006, whereby amendment brought vide

notification dated 28.07.2003 was withdrawn and sub-clause (vi)

and (vii) of Clause 7 were deleted.

17. A perusal of the order dated 12.03.2018 passed by the

Additional Chief Secretary (Finance), in exercise of revisional

power under the RIPS shows that he has basically relied upon the

deletion of sub-clause (vi) and (vii) of Clause 7, while passing an

order of reduction of quantum to 50%.

18. Since the basic dispute, as to whether the Additional Chief

Secretary (Finance) was legally correct in passing the impugned

order dated 12.03.2018 and confining the quantum of benefit

from 75% to 50% in light of notification dated 28.04.2006, has

been decided by the Division Bench of this Court; the fact that the

case of the present petitioner - Company in the instant writ

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petition relates to expansion, in considered opinion of this Court,

is hardly relevant.

19. A perusal of the Division Bench judgment dated 10.01.2019

and Apex Court judgment dated 17.07.2020 leaves no room for

ambiguity that almost all possible grounds available to the

petitioner - Company have been canvassed; dealt with and

decided.

20. Hon'ble the Supreme Court vide its judgment dated

17.07.2020 (Ultratech Cement Ltd & Anr. Vs. State of Rajasthan &

Ors : Civil Appeal No.2773/2020), has upheld the Division Bench

judgment except for reducing rate of interest from 18% to 12%.

21. The case at hands is covered by the adjudication aforesaid

made by the Division Bench and Hon'ble the Supreme Court on all

fours. The petitioner - Company itself has not only pleaded but

also placed reliance upon the interim order passed by Division

Bench at Jaipur. Despite opportunity being granted, learned Senior

Counsel could not point out any significant distinguishing feature,

for which the present case deserves different treatment.

22. As an upshot of above discussions, the present writ petition

is dismissed in light of Division Bench judgment dated 11.01.2019

in the case of Ultratech Cement Ltd. (supra).

23. While raising the demand, interest shall be levied @ 12%

from the date of availing/paying excess subsidy (25%) until the

recovery, as has been held by Hon'ble the Supreme Court in

petitioner's own case in Ultratech Cement Ltd. (supra), decided on

17.07.2020.

24. Mr. Ravi Bhansali, learned Senior Advocate, at this stage

apprehended that a huge demand on account of not only

reduction of amount of subsidy, but also on account of interest is

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likely to be raised against the petitioner - Company, as a

consequence of dismissal of the present writ petition, and thus

requested the Court to issue a direction to the respondents to

waive/reduce interest.

25. When such prayer was refused, a liberty was sought that the

petitioner - company be allowed to make a representation before

the competent authority of the State Government for reduction or

waiver of the interest.

26. Liberty to apply for waiver/reduction of interest is granted.

27. Though the matter has been decided by Hon'ble the

Supreme Court, but if the State deems it expedient to reduce or

waive the interest, it shall be free to do so, in accordance with

law.

28. All interlocutory applications, including stay vacation

application filed under Article 226 (3) of the Constitution of India

stand disposed of in terms of above order.

(DINESH MEHTA),J.

85-A.Arora/-

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