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PETITIONER: BHARAT GENERAL & TEXTILE INDUSTRIESLTD. & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT19/09/1988

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)

CITATION:  1988 SCR  Supl. (3)  72  JT 1988 (4)   204  1988 SCALE  (2)944

ACT:     Constitution of India, 1950: Articles 14. 19(1) (g)  and 300A-Sections  41 and 41A of Bombay Sales Tax  Act--Validity of--Whether there is conferment of arbitrary power on  State Government to exempt units from sales tax. %     Bombay  Sales Tax Act: Sections 41 and 41A  and  Package Scheme of incentives i979-Whether confers arbitrary power of exemption  on State Government to exempt units from  payment of Purchase Tax, Sales Tax and Central Sales Tax.

HEADNOTE:     By virtue of the notifications issued by the  Government of Maharashtra in exercise of its powers under section 41 of the  Bombay  Sales  Tax Act, the new industries  set  up  in backward areas for the production of edible as well as  non- edible  oils  came to enjoy the benefit  of  exemption  from paying purchase tax/sales tax. Subsequently, the  Government of Maharashtra amended the Act and introduced section 41A by virtue  of  which  the  tax  exemption  facility  originally granted  under  the Package Scheme of  Incentives,  1979  to edible oil units stood withdrawn earlier than stipulated  in the  exemption  notifications.  The withdrawal  of  the  tax exemption  however  did  not  apply  to  units  engaged   in producing non-edible oils.     The  petitioner  in  one  petition  has  challenged  the constitutional validity of section 41, while the petitioners in  the other two writ petitions challenged the validity  of section 41A.     The petitioner in the first petition, who was engaged in the  production  of washed cottonseed oil, in an  old  unit, contends  that (i) the power of exemption can be granted  on any  specified class of sales or purchases from  payment  of tax, and the Government was not entitled to grant  exemption only  in favour of new units set up in backward areas,  (ii) section  41  confers arbitrary powers of  exemption  on  the State Government so as to exempt new units from the  payment of  purchase  tax,  sales tax and central  sales  tax,  thus placing  old units in a very disadvantageous  position,  and                                                    PG NO 72                                                    PG NO 73 (iii)  washed cottonseed oil is also edible oil although  it

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requires  some  processing  for  making  it  fit  for  human consumption,  and  therefore the new washed  cottonseed  oil units  should also be classified as units  producing  edible oils and subjected to purchase tax and sales tax.     The petitioners in the other two petitions contend  that the  Government  was precluded by  Promisory  Estoppel  from going back on the lncentive Scheme before the expiry of  the full term of tax exemption benefit period.     Dismissing the writ petitions, it was,     HELD:  (l)  Section  41 has been provided  in  order  to enable the State (government to grant exemption from payment of  purchase tax/ sales tax on any specified class of  sales or  purchases in public interest. It is not as if the  power has  been  given to the government to act  in  an  arbitrary manner   or  for  conferring  largess  on  any  section   of manufacturers or traders. Section 41 has withstood the  test of  time  and has enabled the government to  promote  public interest,  by  granting  tax  exemption  benefit,   whenever needed. [81A-D]     (2)  The words "exempt any specified class of  sales  or purchases’ could well be construed as applying to the  grant of  exemption  of  the  new  units  because  the  sales  and purchases  effected  by  new  entrants  would  constitute  a specified class by themselves in contra distinction with the class  of  sales  and purchases effected by  the  older  and seasoned units. [82C-D]     (3)  Even  though edible and non-edible  oils  may  fall under   the  general  heading  of  ’oils  they   undoubtedly constitute two separate groups which are capable of distinct classification on intelligible basis. [83A-B]     (4)  The Package Incentives Scheme was only  evolved  to provide  incentive  to entrepreneurs to start new  units  in backward  areas. It could never have been the  intention  or the  object of the Government that the entrepreneurs  should unjustly  enrich  themselves  at  the  cost  of  the  public exchequer  or to be given competing ability with  the  older units to such an extent as to virtually drive the latter out of the business.     (5)  Since the very foundation of the Scheme for  giving tax  exemption benefits is public interest,  the  government                                                    PG NO 74 was  not  only entitled but it was under  an  obligation  to withdraw  the tax exemption benefit when the continuance  of the Scheme was going against public interest.     (6)  As  long  as  the washed  cottonseed  oil  that  is produced  is  sold without further processing, it  will  not constitute edible oil. [82Fl     (7)  The  government had neither acted  arbitrarily  nor practised  any  discrimination  against  edible  oil   units started  newly  or  had interfered with the  rights  of  the owners of the new units in running their business and  trade in any manner when it enacted Section 41A.     (8) Section 41A is fully in accordance with law and  not violative   of  Articles  14,  19(i)(g)  and  300A  of   the Constitution. [83E]     Tapti  Oil Industries v. The State of  Maharashtra.  AIR 1984 Bom. 161     Olympic  Oil  Industries Ltd. W.P. No. 3275 of  1985  in Bombay High Court and S.L.P. (Civil) No. 10144 and 10550  of 1986 in the Supreme Court, referred to.

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition No. 1521 Of 1987

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   (Under Article 32 of the Constitution of India)     Anil  Dev Singh, G.L. Sanghi, Serva Mitter, Miss  Vrinda Grover and T.V.S.N. Chari for the Petitioners.     V.S.  Desai,  A.S. Bhasme and A.M.  Khanwilkar  for  the Respondents .     The Judgment of the Court was delivered by     NATARAJAN,  J. Writ Petition No. 1521 of 1987  has  been filed  under  Article  32 of the Constitution  of  India  to challenge  the constitutional validity of Section 41 of  the Bombay Sales Tax Act (hereinafter referred to as the Act) on the  ground it confers arbitrary powers of exemption on  the State Government so as to exempt all types of new units from the payment of purchase tax, sales tax and central sales tax under the Package Scheme of Incentives, 1979.                                                    PG NO 75     On  notice  being  issued in  the  writ  petitions,  the respondent State of Maharashtra has filed affidavit in reply and the petitioner has filed a rejoinder.     In  order  to exempt in public  interest  any  specified class of sales or purchases from payment of the whole or any part of the tax payable under the ’Act, the State Government gave  to itself powers of exemption under Section 41 of  the Act.  In  exercise  of  its  powers  under  Section  41  the Government  had  been issuing notifications so as  to  grant exemption in appropriate Gases from payment of sales tax  or purchase  tax  or  both, as the case may  be.  One  of  such notifications  issued by the Government under Entry 136  was for  granting  full tax exemption for the purchases  of  the inputs  and the sales of finished goods of new units set  up in  the  backward areas of the State.  The  Government  also issued  notification under Section 85 of the  Central  Sales Tax  Act to the sales of finished goods of such  units  from payment  of Central Sales Tax. These tax exemption  benefits were accorded to the new industries by way of (I) incentives for  development  of  industries  in  backward  areas,   (2) promotion  of  the  dispersion of industries  all  over  the State,  (3) the industrialisation of backward areas and  (4) for creating employment opportunities in the backward areas.     By  virtue of the exemption notifications issued by  the Government  in exercise of its powers under Section 41,  the industries  engaged in the production of edible as  well  as non-edible  oils set up in backward areas came to enjoy  the benefit of exemption from paying purchase tax/sales tax.     Subsequently,  the Government came to realise  that  the sales  tax  exemption  given under  the  Package  Scheme  of Incentives,  1979  for a period ranging from 5  to  9  years without any limit had conferred far more benefits on some of the  industries  concerned than what the Government  had  in mind  when  the notifications granting tax  exemptions  were made and that the exemption facility was not only  adversely affecting the Government’s finances but was also placing the existing  small scale units on a  comparative  disadvantage. The  Government, therefore, passed a Resolution on  July  5, 1982  (No.  IDL-7082/(3559))/ IRD-8) to modify  the  Package Incentives  Scheme and the benefits following  therefrom  in order  to limit the benefit to 1()()% of the  fixed  capital investment  of  the  small scale units.  Since  the  Package Scheme of Incentives, 1979 provided for giving notice of six months  for  any change or modification in the  scheme,  the modified  scheme  dated 5th July, 1982 was  proposed  to  be brought  into  force in respect of small scale  units,  with                                                    PG NO 76 effect  from  10th January, 1983. The  Government,  however, noticed  that  during the intervening period  of  notice,  a number  of  small scale units, particularly the  oil  units,

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tried  to take advantage of the unlimited incentives to  the disadvantage  of the existing units and also caused loss  to the  public exchequer in respect of the revenue  from  sales tax. The small scale units also sought to take advantage  of the  decision  of  the  Bombay  High  Court  in  Tapti   Oil Industries and Anr. v. State of Maharashtra & Ors., [  1984] 56 STC 193 by claiming benefit of tax exemption without  any limit, thereby causing a continuing loss to the revenue.     The  Government, therefore, considered it would  not  be expedient in the public interest to continue the  concession and, that suitable provision must immediately be made in the Act so as to limit the benefit of the exemption from payment of  sales  tax under the Package Incentive  Schemes  to  the extent of 100% of the gross fixed capital investments of the eligible  units  as  approved at the time of  the  grant  of eligibility  certificate or to such other lower  ceiling  of percentage  that  may  have  been  provided  for  under  the eligibility  certificate  issued to the  small  scale  unit. Since  both the Houses of the State Legislature were not  in Session,  the Government passed Ordinance No. 5 of  198  and inter alia introduced Section 41A which read as under:     "41A.  (1) Notwithstanding any things contained in  this Act  or in any judgment, decree or order of any Court  or  T Tribunal  to  the  contrary.  on  and  after  the  date   of commencement of the Bombay Sales Tax (Amendment ) Ordinance. 1985  (hereinafter  in  this  section  referred  to  as  the commencement date’’) the cumulative quantum of benefit drawn or  availed of by any registered dealer of an Eligible  Unit in respect of payment of any tax by virtue of the  exemption granted under the provisions of section 4] shall not  exceed one  hundred per cent of the gross fixed capital  investment of  the  Eligible Unit as approved at the time of  grant  of Eligibility  Certificate,  or such other lower  ceilings  of percentage, if any, as may be provided under the Eligibility Certificate issued in accordance with the provisions of  any Package Scheme of Incentives.     (2)  Where, in the case of any registered dealer  of  an Eligible  Unit the cumulative quantum of benefit availed  of by him, has exceeded the limit laid down in sub-section  (I) on  the commencement date, or exceeds such limit on any  day                                                    PG NO 77 after   the   commencement  date,   then   the   Eligibility Certificate  shall cease to have any effect in  relation  to the  exemption from payment of tax under this Act  or  under the  Central  Sales Tax Act, 1956, and  the  Certificate  of Entitlement  shall  stand  automatically  cancelled  on  the commencement  date or any such day, as the case may be,  and such  registered ’dealer shall not be entitled to claim  any further benefit of exemption from payment of such tax  under the   Eligibility   Certificate  of   the   Certificate   of Entitlement  on or after the commencement date or  any  such day, as the case may be, and the dealer shall surrender  the Certificate of Entitlement together with all the unused Form BC which have been attested by the Sales Tax authorities  to the  Commissioner forthwith and in any case within  15  days from the commencement date or any such day.     (3)  Notwithstanding anything contained  in  subsections (I) and (2), no registered dealer of an Eligible Unit  shall be  entitled to claim any benefit of exemption from  payment of  any  tax beyond the period covered  by  the  Eligibility Certificate and the provisions of sub-section (2)  regarding surrender  of the Certificate of Entitlement  together  with the  unused  Form BC shall mutatis mutandis  apply  to  such registered dealer "     The Ordinance came to be replaced by the Amendment  Act,

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1985  under  the Amending Act the  Government  made  certain modifications  and directed that the withdrawal of  the  tax exemption  benefit  will stand confined to  the  edible  oil units  only. Section 41A, as introduced in the main  Act  by the Amending Act No. XV of 1985 reads as follows:     "41A. Notwithstanding anything contained in this Act  or in any judgment, decree or order of any Court or Tribunal to the  contrary, on and after the date of commencement of  the Bombay Sales Tax (Amendment) Act, 1985 (hereinafter in  this section  referred  to  as  "the  commencement  date"),   the Eligibility Certificate granted to any Registered dealer  of an Edible Oil unit in accordance with the provisions of  any Package Scheme of Incentives shall cease to have any  effect in relation to the exemption from payment of tax under  this Act  or  under  the Central Sales Tax  Act,  1956,  and  the Certificate   of  Entitlement  issued  in  favour  of   such                                                    PG NO 78 Registered dealer by the Commissioner under entry 136 of the Schedule  to the notification issued under section 41  shall stand  automatically cancelled on the commencement date  and such  Registered dealer shall not be entitled to  claim  any further benefit of exemption from payment of such tax  under the   Eligibility   Certificate  or   the   Certificate   of Entitlement on and after the commencement date, and he shall surrender the Certificate of Entitlement with all the unused Form   BC  which  have  been  attested  by  the  Sales   Tax authorities to the Commissioner forthwith and in any case on or  before  the  31st day of August,  1985,  unless  he  has already surrendered the same earlier."     Section 8 of the Amendment Act which repealed  Ordinance V of 1985 further provided as follows:     "8.(2)  It  is  hereby  declared  that   notwithstanding anything  contained  in  section 7  of  the  Bombay  General Clauses   Act,   1904,  on  such   repeal,   the   following consequences shall ensue:     (a)  The Eligibility Certificate and the Certificate  of Entitlement issued to any Registered dealer of the  Eligible Unit  other  than the Registered dealer of Edible  Oil  Unit shall not be deemed to have been cancelled; and     (b) Where the Certificate of Entitlement and the  unused Form  BC  are surrendered by any Registered  dealer  of  the Eligible  Unit  other than Registered dealer of  Edible  Oil Unit,  the same shall be restored to the Registered  dealer, who has surrendered the same;     (c)  The  Registered dealer of the Eligible  Unit  other than  the  Registered  dealer of Edible Oil  Unit  shall  be deemed  to have been entitled to claim the same benefits  of exemption  of sales tax to which he was entitled before  the commencement of the said Ordinance;     (d) Any Sales Tax on sale of finished goods recovered by any  Registered dealer of the Eligible Unit other  than  the Registered dealer of Edible Oil Units during the period from the commencement of the said Ordinance till the  publication of  this  Act in the Official Gazette, shall  be  paid  into                                                    PG NO 79 Government Treasury alongwith the return and the tax so paid shall stand forfeited to the State Government and  thereupon the  provisions  of  sub-section (6)  of  Section  38  shall mutatis mutandis apply to the tax so forfeited."     Thus  it may be seen that by reason of Act XV  of  1985, the  sales tax exemption facility originally  granted  under the  Package  Scheme of Incentives 1979 to all  small  scale units newly started stood withdrawn only in so far as edible oil  units  are  concerned, and not  to  small  scale  units engaged in producing non-edible oils.

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   By  a  trade  circular  No.  DED  1485/2591ADM-3   dated 15.10.1986.  it was clarified that an edible oil unit  under the Act XV of 1985 would mean a unit engaged in     (i) delinting, decorticating or processing of groundnuts or other oilseeds’     (ii)  crushing  of  groundnuts  or  other  oilseeds  and manufacture of edible oil;     (iii) refining of edible oil; or     (iv) hydrogenation of edible oil.     It  was  also  clarified  that  the  Act  would  not  be applicable  to "units producing and selling non edible  oils and that units manufacturing and selling "washed  cottonseed oil",: Soyabean raw oil (Grade l)" and "un-refined sunflower cake  oil"  would  not  fall under  the  category  of  units manufacturing  edible  oil and as such those units  will  be entitled  to avail of the tax benefits even after  1.8.1985, provided that the eligibility certificate specifically  made mention  of  the  particular oil  as  the  finished  product produced and sold by the concerned eligible unit. The  trade circular  stated  that  the clarification  was  being  given "after obtaining the opinion of the concerned department  of the Government of India about what constitute edible oil and non edible oils".     Notwithstanding  the  Amended  Sections  and  the  trade circular the petitioners who are engaged in producing washed cottonseed oil tried to contend before the authorities  that washed  cottonseed  oil would also fall in the  category  of edible oil and that several technical authorities have given their  opinion to that effect and as such the  extension  of                                                    PG NO 80 sales  tax  exemption  facility  to  units  engaged  in  the production  of non edible oils was against law and  was  not only depriving the government of its legitimate revenue  but was  also detrimentally affecting the interests of  the  old units which were engaged in producing washed cottonseed  oil etc.  These  contentions  were not  accepted  by  the  State Government  with the result that the withdrawal of  the  tax exemption  provision  remained confined only  to  the  units engaged in producing edible oils and not to units engaged in producing non edible oils.     Aggrieved  by  this position the petitioners  have  come forward   with  this  petition  under  Article  32  of   the Constitution.  Two contentions were advanced by the  learned counsel for the petitioner to assail Section 41 of the  Act. It  is  apposite to mention here that in  his  petition  the petitioner  has  not impugned the validity  of  Section  41A which  disentitles only the units producing edible oil  from having  the continued benefit of tax exemption. This  factor by  itself  weakens in the attack of the petitioner  on  the constitutional  validity of Section 41. Leaving  aside  this aspect  of  the matter, we will now  consider  the  specific grounds on which Section 41 is assailed.     In  the  first  place  it  is  stated  that  while   the government  realised. at the time of passing  the  Ordinance that  the lax exemption scheme granted in favour of all  the newly  started  eligible units had  conferred  tax  benefits transcending by far the limits of assistance contemplated by the  government  and that the tax  exemption  benefits  were adversely affecting the public exchequer as well as the  old units and had, therefore, made Section 41A introduced by the Ordinance  applicable to all eligible units which  had  been given the benefit of tax exemption. the revised Section  41A introduced  by Act XV of 1985 had restricted the  withdrawal provision only to the units engaged in producing edible  oil and  has  allowed the other eligible units to  continued  to

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have  the  unfair advantage of tax  exemption  benefit.  The second  argument was that washed cottonseed oil is  also  an item of edible oil although it required some processing  for making  it fit for human consumption and therefore, the  new units  which were engaged in producing washed cotton    seed oil should also be classified as units producing edible oils so  that those new units, should also pay purchase  tax  and sales  tax in the same manner the petitioner was paying.  By way of extension to the second contention it was pointed Out that while the old units had to pay purchase tax, sales tax, turn over tax etc. totaling Rs.1,650 per metricton, the  new units  producing  the same washed cottonseed  oil  got  away scot-free without paying any tax and they stood placed in  a very advantageous position.                                                    PG NO 81     On  an  examination  of the  contentions  we  find  that neither  of them has any merit. Section 41 has been  in  the statute  book  eversince the Act was enacted.  It  has  been provided  in order to enable the State Government  to  grant exemption from payment of purchase tax and sales tax of  any specified  class  of  sales or purchases if  such  grant  of exemption  was felt justified. It is open to the  Government to  give  the benefit of tax exemption either  to  the  full extent or to a partial extent The Section itself states that the power of exemption is being conferred on the  government in order to enable it to act in public interest. It is  not, therefore  as if power. has been given to the government  to act in an arbitrary manner or for conferring largess on  any section  of  manufacturers or traders. In  exercise  of  its powers  under  Section 41 the government has  been  granting exemption  by  means of several notifications in  favour  of various trades and industries as and when the  circumstances warranted  the granting of exemption in public interest.  It can,  therefore,  be safely taken that Section 41  has  with stood  the  test of time and has enabled the  government  to promote public interest, by granting tax exemption  benefit, whenever needed. One of the contentions advanced by the petitioner’s  counsel was that while the power of exemption can be granted on  any specified  class of sales or purchases from payment of  tax, the  government was not entitled to grant exemption only  in favour  of  new  units set up in  backward  areas  from  the payment of purchase tax, sales tax and central sales tax. In other  words the argument was that if the Government  wanted to  grant  exemption  in  favour of  such  units,  then  the government should have granted the benefit of tax  exemption to all the units in backward area  which were engaged in the production  of he same type of goods as the new  units  were engaged in. We are unable to accept this contention  because the exemption granted in favour of the of the new units  has a sound  economic and public policy underling it. The policy has  been set out by he government in he  counter  affidavit filed b it in W.P. No. 1527of 1987 in the following  manner.     "I submit that these benefits are in accordance with the policy  of the Government to give Sales Tax incentives to he new Units in backward a areas in order to achieve dispersion of  industries, industrialisation of back wad areas as  also of  he purposes of creating employment opportunities  in  he backward areas and as such exemption is granted in he  large public  interest  in  order  to  enable  the  new  units   o successfully  compete  with the older. Units in  he  initial yeas of production in order to  occasion sufficient foothold                                                    PG NO 82 in  an  established  industry. I further  submit  that  this classification  is reasonable in all respects and is not  at

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all  arbitrary as established Units have several  advantages over  new Units in as much as the overhead assets  are  less and hence no fundamental right is infringed in any manner of the old Units . "     It  cannot, therefore, be contended that the  old  units should also have been granted the same benefit as new  units since  both the units are engaged in the manufacture of  the same type of products. Infact such a policy, if followed  by the government, would not only fail to provide incentive  to the  new industries but would also place the new units at  a comparative  disadvantage  in  being  made  to  face   stiff competition with older units which have been established  at lesser  cost  and which have stabilised  themselves  in  the field  by  successfully running the units for  a  number  of years. The words in Section 41 exempt any specified class of sales  or purchases" could well be construed as applying  to the  grant of exemption to the new units because  the  sales and  purchases effected by new entrants would  constitute  a specified class by themselves in contra distinction with the class  of  sales  and purchases effected by  the  older  and seasoned units.     In  so far as the second contention is  concerned,  viz. that  washed cottonseed oil would also fall in the  category of  edible  oils  inspite of  the fact that  it  has  to  be processed  still  further  for  being  made  fit  for  human consumption.  we find that the contention is not  a  tenable one. The petitioner had contended before the government that washed cottonseed oil is also one type of edible oil but the government have rejected this contention stating that  since washed cottonseed oil cannot be made use of without  further processing for direct human  consumption, it would not  fall in  the  category  of  edible  oil.  This  position  is  not controverted  by the petitioners and, therefore, as long  as the  washed cottonseed oil that is produced is sold  without further  processing it will not constitute edible  oil.  The government  therefore.  are  well  within  their  powers  in refusing  to accept the petitioner’s contention that  washed cottonseed oil is also edible oil and, therefore all the new units  which  are  engaged  in  the  manufacture  of  washed cottonseed  oil  should  also be  rendered  ineligible  from enjoying  the benefit of tax exemption as has been  done  in the case of units producing edible oil.     Yet  another contention of the petitioner’s counsel  was that  the   term ‘oil’ would include edible as well  as  non                                                    PG NO 83 edible   oil   and  therefore,  there  was  no   reason   or justification for the government to have removed the benefit of tax exemption to units manufacturing edible oil alone and allow the continuance of the benefit of tax exemption to new units  producing  non edible oil. Even  this  contention  is devoid  of  substance  because even though  edible  and  non edible  oils  may fall under the general heading  of  ‘Oils’ they  undoubtedly constitute two seperate groups  which  are capable of distinct classification on intelligible basis.     Lastly, coming to the argument that new units engaged in producing non edible oil derive a huge benefit by way of tax exemption while the older units stand penalised and  getting crushed  out of existence, the government have examined  the matter  fully  and found that the new units engaged  in  the production of edible oil alone have derived undue  advantage by reason of the tax exemption, and that the other  eligible units engaged in the manufacture of other products including non  edible oils have not derived benefit to such an  extent as to justify revocation of the tax exemption benefit.  This assessment  exercise falls purely within the domain  of  the

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Executive  and it is not for the Court to see whether  other edible   units  also  derive  huge  benefits  and  as   such government  ought to have revoked the tax exemption  benefit in their cases as well. As already stated the classification between  units  engaged  in producing edible  oils  and  non edible oils is on an intelligible and sustainable basis  and as  such  the Court cannot hold that the  government  should treat both kinds of units alike and direct the withdrawal of the  tax  exemption benefit in the case of  non  edible  oil producing units also.     For  all  these reasons we hold that Section 41  of  the Bombay Sales Tax Act is not violative of Articles 14, 19 and 21 of the Constitution as alleged by the petitioner in  W.P. No. 1521 of 1987.     In  the  result  W.P.  No.  1521  of  1987  will   stand dismissed. There will he no order as to costs. R.S.S.                                   Petition dismissed.