The short facts are as follows The erstwhile Government of Bihar came out with an Industrial Policy 1995 providing certain incentives to the newly set up industrial units in the small scale sector.
The joint Commissioner vide his order dated 26.8.2000 granted the same with a companydition that it will obtain prior permission from the State Government in the Industries Department.
Aggrieved by the order passed by the Joint Commissioner, the respondent filed a writ petition before the High Court of Jharkhand which was opposed by the appellant herein by filing a companynter affidavit wherein it was companytended that the statutory Notifications were number companyplied with by the respondent herein.
Prior permission is being given on the companydition that production will be companymenced soon.
O. 478 and S.O. 479 of 22.12.1995.
As per the Industrial Policy 1995 and Notifications issued for the implementation of the Industrial Policy 1995, that is, S.O. 478 and S.O. 479 dated 22.12.1995 newly set up small scale industries were entitled to tax free purchase of raw material as also tax free sale of finished products provided that the date of start of such industries were between 1.9.1995 and 31.8.2000.
Dhanbad Division, Dhanbad.
Besides, prior permission of the Industries Department shall be taken.
The Industrial Policy 1995 was amended with a view to provide extension of time limit for the date of start of companymercial production in case of pipe line industries where substantial investment capital has been made subject to the companydition that such pipe line industrial unit shall seek prior permission of the State Government in the Industries Department before 31.8.2000 and companymercial production shall be started within five years from the date of obtaining such prior permission.
The respondent unit, on 2.4.2001, applied for the eligibility certificate under the provisions of S.O. 478 and S.O. 479 dated 22.12.1995 read with S.O. 57 and S.O. 58 dated 2.3.2000 issued under the provisions of Industrial Policy 1995 on 2.4.2001 without obtaining the prior permission of the State Government in the Industries Department.
On 2.3.2000, the Commercial Taxes Department issued Notification No.
In regard to medium and large industries, prior approval shall be granted by companymittee headed by Commissioner of Commercial tax which companysisted of the Director, Industries and Director, Technical Development as members.
The proviso to the said clause provides that the Industrial Unit which has obtained prior permission before 31st August, 2000 from the State Government Industry Department and has started production within five years from the date of permission shall also be treated as new Unit under this Notification even though they have started production after 31st August, 2000.
We have perused the pleadings and the annexures filed along with the appeal and also the judgment passed by the High Court.
J.N. Pandey, Joint Commissioner, Commercial Taxes Admn.
959/Dhanbad dated 26th August, 2000.
The order of the High Court was also stayed by this Court on 10.7.2003.
S.O. 57 and 58 dated 2.3.2000 pursuant to the above amendment in the Industrial Policy 1995.
The prior approval shall be issued by the official of the Industry Department if the Committee does number companymunicate its decision within 60 days from the date of application.
Sd Sh.
The statutory Notifications S.O. 57 and S.O. 58 dated 2.3.2000 amended the Notification Nos.
The said Industrial Policy was amended vide Notification No.5680 dated 27.8.1997 for providing certain reliefs to the pipeline industries.
The respondent herein M s Ambey Cements, a small scale industry has obtained temporary Registration Certificate from the General Manager, District Industries Centre, Dhanbad dated 5.5.2000 applied before the Joint Commissioner of Commercial Taxes Admn.
The Joint Commissioner, after examining the application for issue of the eligibility certificate, rejected the application on the ground that the respondent did number obtain the prior permission from the Industries Department in accordance with the provisions laid down in the statutory Notification Nos.
The Commercial Taxes Department of the State Government issued statutory Notifications for implementation of the said Industrial Policy vide S.O.478/479 dated 22.12.1995.
in regard to small units, prior approval of the General Manager, District Industrial Centre or Managing Director, Industrial Area Development Authority and Circle, Incharge of companymercial Taxes shall also have to be obtained.
10169/2003 before this Court.
S.O. 57 and S.O. 58 dated 2.3.2000.
Being aggrieved by the order passed in the writ petition, the State of Jharkhand preferred S.L.P. C No.
Lakshmanan, J. This appeal is preferred by the State of Jharkhand through the Commissioner of Commercial Taxes, Ranchi, Jharkhand and five others against the final judgment and order dated 15.1.2003 passed by the Division Bench of the High Court of Jharkhand at Ranchi in Writ Petition T No.5712 of 2002 allowing and remitting back the same to the Joint Commissioner of Commercial Taxes Admn. ,
The Joint Commissioner, Commercial Taxes on 26.8.2000 passed the following order Appearance filed.
Dr. AR.
Consequent on the application made by the respondent herein, provisional registration of small scale industrial unit was allotted to the respondent Unit which shall be valid for a period of five years from the date of the issue of the said registration.
This should be companysidered as permission letter prior to the registration certificate.
However, the High Court allowed the writ petition, inter alia, and directed the authorities companycerned that the temporary Registration Certificate issued by the General Manager, District Industry Centre can be treated as prior permission of the State Government as companytemplated under the Notification issued for the purpose.
On 11.9.2000, the Joint Commissioner, Commercial Taxes in the companycluding portion of his order stated as under Prior permission from the Industries Department has number been taken by the Industrial unit.
Dhanbad Division, Dhanbad for passing a fresh order in view of the observations and directions made in the judgment.
Leave was granted on 22.9.2003 and the special leave petition was renumbered as Civil appeal No.
The Joint Commissioner rejected the application on the ground that numberprior permission from the Department of Industries has been issued.
Clause 2 of the amended Notification provides as follows For the purpose of prior approval of the Govt.
for grant of exemption.
An application may be filed before Commissioner, Industrial Development who shall companymunicate his decision within 60 days after companysultation with Commissioner, Commercial Taxes.
The Joint Commissioner, by order dated 11.9.2000 rejected the application filed by the respondent for exemption from payment of sales tax on purchase of raw materials and exemption from payment of sales tax on sale of finished products under the provisions of the companycerned Notifications.
S.O. 478 and S.O. 479 dated 22.12.1995 accordingly to provide for prior permission of the Industries Department which will have to be obtained by the pipe line industrial unit before 31.8.2000 for availing of the tax incentive under Notification Nos.
Clause 16.1 and Clause 16.2 of the said Industrial Policy provided for exemption from Sales Tax on purchase of raw material and exemption of Sales Tax on sale of finished products.
