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CASE NO.: Appeal (civil)  5814 of 2006

PETITIONER: M/s. A.P. Steel Re-Rolling Mill Ltd.                    ..      Appellant

RESPONDENT: State of Kerala & Ors.                                          ..      Respondents

DATE OF JUDGMENT: 14/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(C)Nos.7972-7973 of 2005) With CIVIL APPEAL NO.    5816                /2006 (Arising out of S.L.P.(C)No.6809 of 2005) M/s. Victory Papers and Boards India Ltd.                       ..      Appellant Versus State of Kerala & Ors.                                          ..      Respondents

S.B. Sinha, J.

       Leave granted.

       These two appeals, involving common questions of fact and law, were  taken up for hearing together and are being disposed of by this common  judgment.   

       We will, however, notice the fact of the matter from M/s. Victory  Papers and Boards India Ltd.’s case.                    The State of Kerala adopted an industrial policy in the year 1992 and  in the light thereof a notification bearing No.G.O.(MS)No.4/92/PD dated  6.2.1992, was issued, which reads as under :

"ORDER

       In the light of the statement of Industrial Policy  approved for implementation by Government the  following incentives in respect of electricity are ordered :

       1.    New industrial units will be exempted for 5  years from payment of enhanced power tariff which  came into effect on 1.1.92.  This concession will be  available.

i.   to new units from the date of commercial  production, which start such production between 1.1.92  and 31.12.96.

ii.     to manufacturing units only and not to service  and entertainment units.  

iii.  To existing units for substantial expansion/  modernization/diversification the concession in such  cases will be available only for the consumption of the  new machinery and equipments which adds to the capital

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asset, by not less than 25% of the exiting fixed capital  investment excluding land and building, the installation  of which is to be certified by the competent authority.

iv.    for modernization, to industrial units having a  contract demand not exceeding 500 KVA.  In such cases,  new equipments alone will be eligible for the  concession."     

                                The said industrial policy of the State was accepted by the Kerala  State Electricity Board, which is a body constituted and incorporated under  the provisions of the Electricity (Supply) Act, 1948, in respect of which a  notification was issued on 27.3.1992.  By reason of the said notification,  some guidelines were also issued.  The appellant herein contended that  pursuant to or in furtherance of the representation made by the State of  Kerala and/or the  respondent-Board, they altered their position by investing  a huge amount by setting up factories/new units.        

       The State, admittedly, at the district level constituted a ’Green  Channel Clearance Committee’ (GCC).   

       The appellant had applied for grant of electric power allocation to the  extent of 2500 KVA.  It obtained  loan on 19.1.1995.  As the application of  the appellant had not allegedly been processed, GCC issued several  reminders to  the Board.  On or about 17.11.1995, Appellant informed the  Board that the project was at an advanced stage.  It was recorded that despite  recommendations by GCC, sanction for grant of electrical connection had  not been issued,  stating :

"We wish to add at this juncture that the Government is  inviting entrepreneurs to start their industrial units in the  State and are offering Power, Water and other  infrastructural facilities availability so easily.  But on the  contrary the concerned authorities are reluctant to  sanction the necessary infrastructural facilities to the  units.  Our case is one of the examples.  Your goodself  will appreciate that without electric power we cannot  start out production as schedule, which will hamper the  work and finally affect the production of the unit.  The  delay in implementing the project will, finally, escalate  the cost of the project.

Since more than one year has lapsed after submitting our  application to the KSEB, we have so far not received  sanction of Power to our unit.  Hence we request to your  goodself to kind enough to prevail upon the authority to  sanction Electric Power to out unit to the extent of our  requirement."     

       It, allegedly, imported machinery from abroad, which fact was  intimated to the Board by a letter dated 24th June, 1996, stating :

"Under the circumstances, our Bankers are reluctant to  clear term loan because of non-sanctioning of Power to  the Project.  Presently, the total machinery worth Rs.3.5  Crore have already arrived at site and the erection is in  progress.  Any further delay in receiving the power  allocation will affect our total project which will lead to a  financial constraint.  It is really unexpected from the  authorities such a situation by the entrepreneur who is  taking initiative to install a factory in Kerala.           Since we have already invested a huge amount for  land, building and machinery, we do not have other

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alternative other than to complete the project and start  production at the earliest.          We have informed these facts and figures to the  previous Ministry vide our letter dated 22nd February,  1996, addressed to Hon’ble Minister of Electricity.  We  are sorry to inform you that so far we have not received  any favourable decision.         According to our schedule, we are planning to start  production in the month of August, 1996.  Of the huge  investment of Rs.12.5 crore, 75% of the total cost of the  project has already been invested and any more delay in  power allocation will effect our project very seriously.         To avoid unnecessary delay in starting the  production, we need the sanction of power allocation  urgently.         We understand that our file is pending with the  Chief Engineer, World Bank Projects, Vaiduthy  Bhavanam, Thiruananthapuram and with the Secretary,  Kerala State Electricity Board, Trivandrum vide No.  TSI/PA/Victory Paper/95-96/3019 dated 7.8.1995."                                                           [Emphasis supplied]         The response of the Board thereto is to be found in the letter dated  11.2.1997, whereby sanction for power allocation was sought for by the  Deputy Chief Engineer from the Chief Engineer of the Board.  Having  regard to the fact that there was no adequate transformer capacity at  Kanjiokode Sub Station, the allocation could not be granted, as was  informed to the appellant by the Board in terms of its letter dated 21.4.1997.   Electrical energy was allocated for six months on trial-run basis on  24.12.1997 and a final sanction was granted on 21.12.1998.  Appellant  started commercial production on 10.3.1999.  It  evidently denied the benefit  of the said incentive scheme dated 6.2.1992.  A writ petition was filed by the  appellant, which has been dismissed by reason of the impugned judgment of  the High Court, inter alia, stating :

".....The only question to be considered is whether the  Petitioner had satisfied the various terms and conditions  laid down in the order dated 6.2.1992.  Facts would  eloquently show that Petitioner had not satisfied the  various conditions laid down in the order.  Petitioner  might have submitted an application during the year  1994.  Mere submission of application would not be  sufficient to hold that Petitioner had complied with all the  terms and conditions.  Power allocation was issued by the  fourth Respondent on 24.12.1997 with specific condition  that the connection would be effected only after  providing a separate 22 KV feeder with outlet from the  substation to the factory under OYEC scheme.   Respondent could start the work of drawing at 2.8 km of  22 KV line only after the Petitioner remitting the OYEC  amount.  Even though allocation was given on  24.12.1997 Petitioner took his own time to remit the  amount.  Petitioner has taken considerable time to  complete the work and was not ready for availing power  supply.  Petitioner has produced energization sanction  order under Rule 63 of the Indian Electricity Rules 1956  from the Chief Electrical Inspector only during  December 1998 even though power allocation was  sanctioned on 24.12.1997.  Petitioner had executed the  H.T. agreement only on 22.1.1999 and the unit was  energised on 10.3.1999, by the time period fixed for  concessional tariff was already over.  We are of the view,  ext. P1 order of the apex court would not apply to the  facts of this case where power allocation was made from  the year 1991 but the power could not be supplied.  

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Hence commercial production could not be started by  31.12.1996.  Hence Petitioner had not complied with the  formalities so as to get the benefit of the concession  orders.  The principle of promissory estoppel in the facts  and circumstances of the case cannot be put against the  Board.  Above being the factual situation, we are of the  view Petitioner is not entitled to get concessional tariff."     

       So far as case of M/s. A.P. Steel Re-Rolling Mill Ltd. is concerned,   we need not go into the factual aspect of the matter.  Suffice it to notice that  its writ petition was permitted to withdrawn by the High Court by an order  dated 24th November, 2003.  A review application filed by the said appellant  was also dismissed by an order dated 25th May, 2004.  We may, however,  note that an application for grant of electrical connection was filed by it in  November, 1995 and actual commercial production started in or about  October, 1998.  

       The principal contentions which have been raised by Mr. Ranjit  Kumar and Mr. Venkatararamani, learned Senior counsel appearing on  behalf of the appellants, are : -         i)               Appellants having altered their position pursuant to or in  furtherance of the representation made by the State of Kerala as also the  Board, the doctrine of promissory estoppel would squarely apply in the  instant cases;

       ii)     The High Court committed a manifest error in proceeding on  the premise that the appellants were not entitled to grant of such exemption  as they had started commercial production after the period envisaged in the  said notification;

       iii)    The Board was statutorily obligated to supply electrical energy  to the appellant within a reasonable time.   

(iv)    Had electrical energy been supplied to the appellants within a  reasonable time, they would have been able to obtain the benefit of the said  exemption.   

       Mr. Venkataramani added :

(v)     A concession made by the Counsel on a question of law being not  binding on the client, the High Court should have allowed the application for  review of its earlier order permitting to withdraw its writ petition.                   Mr. M.T. George, learned Counsel appearing on behalf of the Board,  on the other hand, would urge that the appellants themselves were guilty of  serious delay and latches on their part in complying with the statutory  requirements and thus, it is idle to put the blame on the Board. It was  submitted that the language of the notification dated 6.2.1992 being clear  and explicit, the same does not envisage grant of any benefit beyond  31.12.1996.

       Before adverting to the rival contentions raised on behalf of the  parties, we may notice that construction of the notification in question came  up for consideration before a Bench of this Court in Hitech Electrothermics  & Hydropower Ltd. vs. State of Kerala & Ors. [(2003) 2 SCC 716],  wherein this Court opined :

       "On a perusal of the industrial policy of the  government, unequivocally indicting that concessional  tariff rate would be given as well as the order of the  Electricity Board adopting the same, it can be safely held  that such concession could be availed of by the industrial  units for a period of five years from the date, they start  such production between 1.1.1992 and 31.12.1996. In  this context the stand of the Board as well as the State

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Government cannot be held to be devoid of any  substance when admittedly the commercial production of  the appellant’s unit did not start till 31.12.1996. But the  question for consideration is when the government has  itself come forward alluring industrial units to set up their  industries and when under the provisions of the  Electricity Act, every consumer has the right to get the  supply of power and in the case in hand, when power  allocation has been made in favour of the appellant as  early as in 1995, and yet the same power could not be  supplied for such non-supply of power, the commercial  production could not start by 31.12.1996, would it at all  be equitable to deny the relief to the appellant by giving a  literal interpretation to the incentive scheme of the  government as adopted by the Board? Our answer to this  question must be in the negative. There are several  documents on record, which were produced before us to  indicate that the appellant has been communicating with  the Board, seeking power connection at an early date so  that it would be able to start commercial production by  31.12.1996. In making such communication, the  appellant has been bringing it to the notice of the Board  but for supply, the appellant has made all other  arrangements to set the production, but yet there has been  inaction on the part of the Board in providing power to  the appellant. Mr. Rohatgi, appearing for the Board no  doubt brought to our notice a letter from the appellant to  the Board and contended that it could not have been  possible for the appellant to start production by 31.12.96  but we are unable to accept this submission nor are we  making deeper probe into the matter. Suffice it to say that  the appellant has been denied power supply by the Board  in appropriate time, which has prevented the appellant  from starting the commercial production by 31.12.1996.  This being the position, and having regard to the gamut  of the circumstances, starting from the government  policy resolution and culminating in setting up of the  factory by the appellant in Kerala and commencing the  production of ferro alloys, though not by 31.12.1996, we  are of the considered opinion that granting the  concessional tariff for a period of three years instead of  five years, as indicated in the policy resolution would  meet the ends of justice and we, accordingly, so direct."

       A review application filed by the Kerala State Electricity Board, in the  said matter again fell for consideration of this Court in Kerala State  Electricity Board vs. Hitech Electrothermics & Hydropower Ltd. &  Ors. [(2005) 6 SCC 651].  The said review application was dismissed,  stating :

       "This Court has referred to several documents on  record and also considered the documentary evidence  brought on record.  This Court on a consideration of the  evidence on record concluded that the respondent had  been denied power supply by the Board in appropriate  time which prevented the respondent from starting the  commercial production by 31.12.1996.  This is a finding  of fact recorded by this Court on the basis of the  appreciation of evidence produced before the Court.  In a  review petition it is not open to this Court to re- appreciate the evidence and reach a different conclusion,  even if that is possible.  Learned counsel for the Board at  best sought to impress us that the correspondence  exchanged between the parties did not support the  conclusion reached by this Court.  We are afraid such a

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submission cannot be permitted to be advanced in a  review petition.  The appreciation of evidence on record  is fully within the domain of the appellate court.  If on  appreciation of the evidence produced, the Court records  a finding of fact and reaches a conclusion, that  conclusion cannot be assailed in a review petition unless  it is shown that there is an error apparent on the face of  the record or for some reason akin thereto.  It has not  been contended before us that there is any error apparent  on the face of the record. To permit the review petitioner  to argue on a question of appreciation of evidence would  amount to converting a review petition into an appeal in  disguise."  

       Applicability of doctrine of promissory estoppel in a case where  entrepreneur alters his position pursuant to or in furtherance of a promise  made by the State to grant exemption from payment of charges on the basis  of current tariff is not in dispute.  The State made its policy decision.  The  said policy decision could be made by the State in exercise of its power  under Section 78A of the Electricity (Supply) Act, 1948.  The Electricity  Board framed tariff for supply of electrical energy in terms of Sections 46  and 49 of the 1948 Act.  While framing its tariff, the Board could take into  consideration the policy decision of the State.   

       It was, therefore, permissible both for the State to issue a policy  decision and for the Board to adopt the same in exercise of their respective  statutory powers under the 1948 Act.         When a beneficent scheme is made by the State, the doctrine of  promissory estoppel would undoubtedly apply.     

       In Union of India & Ors. vs. M/s. Indo-Afgan Agencies Ltd.  [(1968) 2 SCR 366], this Court opined :

       "We hold that the claim of the respondents is  appropriately founded upon the equity which arises in  their favour    as a result of the representation made on  behalf of the Union of India in the Export Promotion  Scheme, and the action taken by the respondents acting  upon    that representation under the belief that the  Government would carry out the representation made by  it.  On the facts proved in this case, no ground has been  suggested before the Court for exempting the  Government from the equity arising out of the acts done  by the exporters to their prejudice relying upon the  representation\005"  

       In M/s. Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar  Pradesh & Ors. [(1979) 2 SCC 409], this Court rejected the plea of the  State to the effect that in the absence of any notification issued under Section  4-A of the U.P. Sales Tax Act, the State was entitled to enforce the liability  to sales tax imposed on the petitioners thereof under the provisions of the  Sales Tax Act and there could be no promissory estoppel against the State so  as to inhibit it from formulating and implementing its policy in public  interest.

       The question came up for consideration before this Court also in   Pournami Oil Mills & Ors. vs. State of Kerala & Anr. [1986 (Supp) SCC  728], wherein it was held:

"Under the order dated April 11, 1979, new small scale  units were invited to set up their industries in the State of  Kerala and with a view to boosting of industrialisation,  exemption from sales tax and purchase tax for a period of  five years was extended as a concession and the five-year  period was to run from the date of commencement of

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production. If in response to such an order and in  consideration of the concession made available,  promoters of any small scale concern have set up their  industries within the State of Kerala, they would certainly  be entitled to plead the rule of estoppel in their favour  when the State of Kerala purports to act differently.  Several decisions of this Court were cited in support of  the stand of the appellants that in similar circumstances  the plea of estoppel can be and has been applied and the  leading authority on this point is the case of M.P. Sugar  Mills. On the other hand, reliance has been placed on  behalf of the State on a judgment of this Court in Bakul  Cashew Co. v. STO. In Bakul Cashew Co. case this  Court found that there was no clear material to show any  definite or certain promise had been made by the  Minister to the concerned persons and there was no clear  material also in support of the stand that the parties had  altered their position by acting upon the representations  and suffered any prejudice. On facts, therefore, no case  for raising the plea of estoppel was held to have been  made out. This Court proceeded on the footing that the  notification granting exemption retrospectively was not  in accordance with Section 10 of the State Sales Tax Act  as it then stood, as there was no power to grant  exemption retrospectively. By an amendment that power  has been subsequently conferred. In these appeals there is  no question of retrospective exemption. We also find that  no reference was made by the High Court to the decision  in M.P. Sugar Mills’ case. In our view, to the facts of the  present case, the ratio of M.P. Sugar Mills’ case directly  applies and the plea of estoppel is unanswerable."

       Yet again in Assistant Commissioner of Commercial Taxes (Asst.)  Dharwar & Ors. vs. Dharmendra Trading Company & Ors. [(1988) 3  SCC 570], this Court, on the factual matrix obtaining therein, rejected the  contention of the State that any misuse of the concessions granted was  committed by the respondent therein and thus the State cannot go back on its  promise.  

       It was further observed:  

"The next submission of learned counsel for the  appellants was that the concessions granted by the said  order dated 30-6-1969 were of no legal effect as there is  no statutory provision under which such concessions  could be granted and the order of 30-6-1969 was ultra  vires and bad in law. We totally fail to see how an  Assistant Commissioner or Deputy Commissioner of  Sales Tax who are functionaries of a State can say that a  concession granted by the State itself was beyond the  powers of the State or how the State can say so either.  Moreover, if the said argument of learned counsel is  correct, the result would be that even the second order of  12-1-1977 would be equally invalid as it also grants  concessions by way of refunds, although in a more  limited manner and that is not even the case of the  appellants."

       Mangalore Chemicals and Fertilisers Limited vs. Deputy  Commissioner of Commercial Taxes & Ors. [1992 Supp (1) SCC 21] is a  case where this Court had the occasion to consider as to whether subsequent  change  in the eligibility criteria can undo the eligibility for the condition  stipulated in the earlier notification and answered the same in the negative.

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       This Court reaffirmed the legal position in Pawan Alloys & Casting  Pvt. Ltd., Meerut vs. U.P. State Electricity Board & Ors. [(1997) 7 SCC  251], holding:

"As a result of the aforesaid discussion on these points  the conclusion becomes inevitable that the appellants are  entitled to succeed. It must be held that the impugned  notification of 31-7-1986 will have no adverse effect on  the right of the appellant-new industries to get the  development rebate of 10% for the unexpired period of  three years from the respective dates of commencement  of electricity supply at their units from the Board with  effect from 1-8-1986 onwards till the entire three years’  period for each of them got exhausted. This result  logically follows for the appellants who have admittedly  entered into supply agreements with the Board as new  industries prior to 1-8-1986."  

       The question yet again came up for consideration before this Court  recently in State of Punjab vs. Nestle India Ltd. & Anr. [(2004) 6 SCC  465], wherein this Court surveyed the growth of the said doctrine and held  the doctrine to be applicable to legislative action also.

       In Jai Narain Parasurampuria (Dead) & Ors vs. Pushpa Devi  Saraf & Ors. [(2006) 7 SCC 756], this Court held :

       "The doctrine of estoppel by acquiescence was not  restricted to cases where the representor was aware both  of what his strict rights were and that the representee was  acting on the belief that those rights would not be  enforced against him.  Instead, the court was required to  ascertain whether in the particular circumstances, it  would be unconscionable for a party to be permitted to  deny that which, knowingly or unknowingly, he had  allowed or encouraged another to assume to his  detriment.  Accordingly, the principle would apply if at  the time the expectation was encouraged\005"         In Shrijee Sales Corporation & Anr. vs. Union of India [(1997) 3  SCC 398], this Court referring to Motilal Padampat (supra), it was stated :

       "Two propositions follow from the above analysis:

       (1) The determination of applicability of  promissory estoppel against public authority/Government  hinges upon balance of equity or "public interest".         (2) It is the Court which has to determine whether  the Government should be held exempt from the liability  of the "promise" or "representation".

In the present case, the first Notification exempting the  customs duty on PVC itself recites "....Central  Government being satisfied that it is necessary in public  interest to do so...".  In the Notification issued later  which gave rise to the present cause of action, the same  recitation is present."

       An exemption notification, however, can be withdrawn only if it is  permissible to do so in public interest.   

       Yet again, in Dr. Ashok Kumar Maheshwari vs. State of U.P. &  Anr. [(1998) 2 SCC 502], it was held :

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       "There are many aspects of "Promissory Estoppel",  but in the instant case we are concerned only with one  aspect which is to the effect that if any "promise" has  been made contrary to law, can it still be enforced by  invoking this rule.

       The basic principle is that the plea of estoppel  cannot be raised to defeat the provisions of a Statute.  (See: G.H.C. Ariff v. Jadunath Majumdar Bahadur;  Mathra Parshad & Sons v. State of Punjab and Ors.;  Rishabh Kumar & Sons v. State of U.P.)

       This principle was reiterated in Union of India v.  R.C. D’Souza, where a retired army officer was recruited  as Assistant Commandant on temporary basis and was  called upon to exercise his option for regularisation  contrary to the statutory rules. It was held that it would  not amount to estoppel against the Department.

       Whether a Promissory Estoppel, which is based on  a ’promise’ contrary to law can be invoked has already  been considered by this Court in Kasinka Trading and  Anr. v. Union of India and Ors., as also in Shabi  Construction Co. Ltd v. City & Industrial Development  Corporation and Anr. wherein it is laid down that the  Rule of "Promissory Estoppel" cannot be invoked for the  enforcement of a "promise" or a "declaration" which is  contrary to law or outside the authority or power of the  Government or the person making that promise."

{See also M/s. Ashoka Smokeless Coal Ind. P. Ltd. & Ors. vs. Union of  India & Ors. [Civil Appeal No.5302 of 2006 @ SLP(C)No.20471 of 2005  and batch, disposed of on 1st December, 2006].}

       We may notice that a somewhat different view viz. strict construction  of such notification was advocated in the case of State Level Committee &  Anr. vs. Morgardshammar India Ltd. [(1996) 1 SCC 108], wherein, B.P.  Jeevan Reddy, J., referring to CCE vs. Parle Exports (P) Ltd. [(1989) 1  SCC 345], opined :

       "We agree with the above statement of law except  insofar as it states that where two views of the exemption  notification are possible, it should be construed in favour  of the subject since it is contrary to the decisions afore- mentioned including the three-Judge Bench decision in  Novopan India Ltd.  It may be noted that this decision  was referred to in Mangalore Chemicals and Fertilizers  and yet a slightly different principle enunciated. So far as  decision in Hindustan Aluminium Corporation (referred  to in Parle Export), rendered by a Bench comprising  Tulzapurkar and R.S. Pathak, JJ., is concerned, it only  holds that the expression "metal" occurring in a  notification issued under U.P. Sales Tax Act should be  understood in its primary sense, i.e., in the form in which  it is marketable as a primary commodity. The learned  Judges held that the subsequent forms evolved from the  primary form constituted distinct commodities  marketable as such and must be regarded as new  commercial commodities and not included within the  four corners of the notification. This decision cannot  therefor be understood as supporting the proposition  enunciated in Parle Exports with which we have  disagreed. Be that as it may, the occasion for applying  the said proposition arises only where there is "real  difficulty, in ascertaining the meaning of a particular

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enactment" (statement in Parle Exports). In the case  before us, there is neither any ambiguity in the language  nor does the clause in question present a real difficulty in  ascertaining its meaning."

       We may, however, also notice that in Southern Ispat Ltd. vs. State  of Kerala & Ors. [(2004) 4 SCC 68], this Court took somewhat different  view then Hitech Electrothermics & Hydropower Ltd. vs. State of  Kerala & Ors. [(2003) 2 SCC 716], stating :

       "As the Division Bench rightly pointed out, the  question to be decided in this case is essentially a  question of fact, namely, whether the appellant had  started ’commercial production’ between 1.1.1992 and  31.12.1996 so as to be entitled to power supply at  concessional tariff rates. As a rule, it is not the practice of  this Court to interfere with factual findings which have  been concurrently recorded by two courts below. Both  the learned single Judge and Division Bench have  concurrently answered all factual findings against the  appellant. On that ground itself the appellant must fail.  Nonetheless, as the appeal was argued with some  seriousness, we propose to deal with the facts and  examine the factual findings only from the point of view  of interference under our special jurisdiction under  Article 136.

       The Division Bench of the High Court rightly  pointed out that though the policy of granting  concessional tariff was announced by the State  Government on 6.2.1992; followed by the KSEB order  dated 27.3.1992, the appellant did nothing till or about  June 1995. It is only in June 1995 that the appellant  company was incorporated and an application for power  allocation was made on 17.7.1995. The appellant’s  factory had yet to be constructed and machinery to be  transported and installed after the construction of the  factory building. Undoubtedly, the application was  moved on 17.7.1995 in anticipation. The material on  record suggests that there was acute shortage of  electricity as a result of which even domestic power  connections were being refused. The high tension power  supply required by the appellant had to be specially  arranged by drawing the electrical lines on OYEC basis  by construction of PSC polls along the line at the  Appellant’s cost. This amount was deposited on   11.12.1996, only a few days before the concession was  about to lapse. Having examined the correspondence on  record, we are not in a position to accept the contention  of the appellant that the respondents had acted with  undue tardiness or lethargy. Further, the remittances of  Rs.8,54,700/- and Rs.3,45,200/- made by way of security  deposit for executing the power supply agreement were  actually made on 1.2.1997 and 4.2.1997, after the expiry  of the period of concession."

       The general principles with regard to construction of exemption  notification are not of much dispute.  Generally, an exemption notification is  to be construed strictly, but once it is found that the entrepreneur fulfils the  conditions laid down therein, liberal construction would be made.

       In M/s. O.N.G.C. Ltd. vs. Commnr. Of Customs, Mumbai [(2006)  8 SCALE 551], this Court held :

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       "This Court, times without number, has construed  such exemption notifications in liberal manner.  [See  Commissioner of Customs (Imports), Mumbai v. Tullow  India Operations Ltd., (2005) 13 SCC 789, [See Tata  Iron & Steel Co. Ltd. v. State of Jharkhand and Others,  (2005) 4 SCC 272, Government of India and Ors. v.  Indian Tobacco Association, (2005) 7 SCC 396,  Commnr. Of Central Excise, Raipur v. Hira Cement, JT  2006 (2) SC 369. and P.R. Prabhakar v. Commnr. Of  Income Tax, Coimbatore, 2006 (7) SCALE 191].  If,  thus, the Appellant was entitled to the same, it should not  be denied the benefits thereof.  It is directed  accordingly."

       A question as to whether, in a given situation, an entrepreneur was  entitled to the benefit under an exemption notification or not, thus, would  depend upon the fact of each case.  A bare perusal of the notification dated  6.2.1992 issued by the 1st respondent would show that the purport and object  thereof was to grant benefit of a concessional power tariff which came into  force on and from 1.1.1992.  The phraseology used in the said notification  postulates that the benefit was to be granted in regard to the ’enhanced  power tariff’.  Thus, where the new units had started production between  1.1.1992 and 31.12.1992, such exemption was available to the entrepreneurs.                  Evidently, except in a situation as might have been existing in Hitech  Electrothermics (supra) that any application filed by the entrepreneur had  not been processed within a reasonable time, in which case benefit might not  be denied on equitable ground; in cases where there has been a substantial  failure on the part of the industrial unit to obtain such benefit owing to acts  of omission and commission on its part, in our opinion, no such benefit can  be given.   

       The High Court has arrived at a finding of fact that the appellant  herein had failed and/or neglected to comply with the terms and conditions  of the scheme or contributed to a large extent in not being able to obtain  such sanction within a reasonable time.   

       The appellant applied for grant of electrical connection on 9.11.1994.   It, however, on its own showing did not receive any sanction till 17.11.1995.   But even on that date the project was not complete.  It was only at an  advanced stage.   

       From the appellant’s letter dated 24th June, 1996, as noticed supra, it  would appear that it merely had been complaining of about non-grant of  sanction, but then, evidently, it was not ready for commencing commercial  production.  Machineries were obtained by it only on 4.6.1996.  How much  time was taken for installation of machinery and completion of  the project,  is not known.   

       Sanction, evidently, had been allocated on 24.2.1997.  It accepted the  same without any demur.    It had been making payments in terms of the new  tariff.  It filed the writ petition only in the year 2003, i.e., only after this  Court rendered its decision in Hitech Electrothermics (supra) on 17th  December, 2002.

       The benefit of a judgment is not extended to a case automatically.   While granting relief in a writ petition, the High Court is entitled to consider  the fact situation obtaining in each case including the conduct of the  petitioner.  In doing so, the Court is entitled to take into consideration the  fact as to whether the writ petitioner had chosen to sit over the matter and  then wake up after the decision of this Court.  If it is found that the appellant  approached the Court after a long delay, the same may disentitle him to  obtain a discretionary relief.   {See Chairman, U.P. Jal Nigam & Anr. vs.

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Jaswant Singh & Anr. [2006 (12) SCALE 347].}   

       We are, thus,  of the opinion that the principle of promissory estoppel  will apply where an entrepreneur has altered its position pursuant to a  promise made by the State, but the application thereof would depend upon  the facts and circumstances of each case.  Having regard to the findings of  fact arrived at by the High Court, we are of the opinion that it cannot be said  to have committed any illegality in passing the impugned judgment.   

       So far as the case of M/s. A.P. Steel Re-Rolling Mill Ltd. is  concerned, evidently the question involved therein was a disputed question  of fact.  Although, the High Court could have entertained a writ petition, as  has been done in the case of M/s. Victory Papers and Boards India Ltd., but  as M/s. A.P. Steel Re-Rolling Mill Ltd. withdrew its writ application, in our  our opinion, no case has been made out for interference with the impugned  judgment.  As the appellant has still its remedies open, it may avail the same.

       For the reasons aforementioned, there is no merit in these appeals  which are dismissed accordingly.  However, in the facts and circumstances  of the case, there shall be no order as to costs.