M.M. Kumar, J.
1. This petition filed under Article 226 of the Constitution prays for quashing order dated June 7, 2007, passed by the Director of Industries and Commerce, Haryana, communicating the decision of the Higher Level Screening Committee (for brevity, 'the HLSC'), constituted under rule 28C of the Haryana General Sales Tax Rules, 1975 (for brevity, 'the Rules'), taken in its 99th meeting, held on June 7, 2007. The HLSC vide impugned order has withdrawn the benefit of sales tax concession of Rs. 885.15 lacs, granted in favour of the petitioner-company pursuant to the decision of the HLSC that was taken in the 89th meeting, held on December 6, 2004 (P17). A further prayer has also been made for issuance of direction to the respondents to maintain the earlier decision dated December 6, 2004, communicated vide letter dated March 18, 2005 (P 14).
2. Brief facts of the case are that the petitioner-company was set up as a joint venture company with foreign collaborators, namely, M/s. Matthey Finance BV, Netherlands (Finance) and Johnson Matthey PLC, U.K. (Technical) for manufacturing and trading of automobile components, namely, catalytic converters, having its unit at plot No. 12, Sector 3, IMT Manesar, Gurgaon (P 2). On January 9, 1998, an application was filed with the Secretariat of Industrial Assistance (hereinafter referred to as 'the SIA'), Department of Industrial Policy and Promotion, Ministry of Industries, Government of India, New Delhi, for grant of approval of foreign collaboration, which was granted on February 12, 1998 (P 3). In the approval so granted the proposed location of the industrial unit of the petitioner-company was shown as 'Okhla Industrial Area, Phase-I, Delhi'. The petitioner-company filed an application for amendment in SIA approval. Accordingly, the SIA issued amendment letter dated September 29, 1998, stipulating that the proposed unit was to be located at a permissible location as per the locational policy and in view of communication No. 4(l)/98-IIM-I, dated August 4, 1999. The proposed location shown in Clause 5 of approval dated February 12, 1998 was deleted. The petitioner-company was asked to intimate the alternative location (P 4).
3. The petitioner-company decided to set up its manufacturing unit at IMT Manesar, Gurgaon in Haryana. In that regard intimation concerning proposed location was given to the SIA by the petitioner-company and the SIA in turn sent further intimation to the Department of Industries, Government of Haryana. Thereafter, the petitioner-company applied for allotment of an industrial plot in IMT Manesar, Gurgaon for setting up industrial project of autocatalyst. On December 8, 1999, regular letter of allotment in respect of plot No. 12, Sector 3, IMT Manesar, Gurgaon, measuring 11250 sq. mtrs., was issued in favour of the petitioner-company by the Haryana State Industrial Development Corporation ('HSIDC') (annexure P 5). Subsequently, on December 29, 1999 an agreement between the petitioner-company and the HSIDC was also executed. On January 31, 2000, the petitioner-company applied for approval of building plans of their industrial unit, which were duly approved by the HSIDC on February 18, 2000 (P 7 and P 8 respectively). On February 23, 2000, the petitioner-company was also issued a certificate of registration under the Haryana General Sales Tax Act, 1973 for manufacture and trading of auto parts (P 1). The manufacturing unit of the petitioner-company commenced commercial production with effect from September 29, 2000.
4. As per stipulation laid down under the Industries (Development and Regulation) Act, 1951 read with Notification No. 477, dated July 5, 1991, issued by the Department of Industrial Development, Ministry of Industries, Government of India, New Delhi, the petitioner-company after coming into commercial production, filed its Industrial Entrepreneurial Memorandum (IEM) with the SIA, which was duly acknowledged vide acknowledgment dated August 4, 2000 (P 10). It is appropriate to notice that the aforementioned notification was issued under the liberalised industrial policy in the year 1991 whereby industrial units set up for manufacturing a few specified goods were exempted from the requirement of industrial licencing subject to the condition that an IEM in specified format was to be filed by the new industrial unit with the SIA.
5. In order to attract industrial investment in the respondent-State, the State of Haryana announced sales tax concessions for new units. On July 28, 2000, one such scheme was notified by inserting rule 28C in the Rules. As per the scheme, sales tax concessions were granted to the 'eligible industrial units', which had come into commercial production during the operative period, i.e., from November 15, 1999 to April 30, 2000 or to such units which were in pipeline as on April 30, 2000 (P 11). It is claimed that the industrial unit of the petitioner-company at IMT Manesar, Gurgaon, is qualified as a 'unit in pipeline' as on April 30, 2000 in accordance with the provisions of clause (o) to sub-rule (3) of rule 28C of the Rules, which was inserted subsequently vide notification bearing No. SO No. 161/H.A.20/73/S-64, dated October 15, 2001, with effect from November 15, 1999 (P 17A).
6. Sub-clause (o) to sub-rule (3) of rule 28C of the Rules, reads as under:
28C(3)(o) 'units in pipeline' means an industrial unit which as on the April 30, 2000, fulfils the following conditions:
(i) is registered with the Department of Industries ;
(ii) has arranged land or premises by way of purchase, allotment, lease or rent;
(iii) has applied for finances from a regular financial institution ; and
(iv) would start production within two years, i.e., before the May 1, 2002.
7. As per the provisions of sub-rule (6)(b) of rule 28C of the Rules, applications received from large and medium units for grant of sales tax concession under rule 28C are to be considered by the HLSC, the constitution of which has been provided in sub-rule (3)(h) of rule 28C of the Rules. On February 11, 2002, the petitioner-company applied for grant of sales tax concession under rule 28C of the Rules (P 12).
8. A communication dated September 10, 2004 was received by the petitioner-company from the General Manager, District Industries Centre, Gurgaon-respondent No. 4, requiring it to appear before the HLSC along with documents on the date to be specified later (P13). The observations of the sub-committee dated July 23, 2004 were also communicated to the petitioner-company, which reads as under:
1. IEM for unit at Manesar was obtained on August 4, 2000, i.e., after cut-off date of April 30, 2000.
2. Unit is self-financed.
9. In its 89th meeting held on December 6, 2004, the HLSC approved the case of the petitioner-company declaring its unit eligible under rule 28C of the Rules, for sales tax concession to the tune of Rs. 885.15 lacs for a period of 10 years from the date of issue of entitlement certificate for the manufacture of automobile accessories, namely, catalytic converters. On March 18, 2005, aforementioned decision of the HLSC was conveyed to the petitioner-company by the Director of Industries, Haryana (P 14). Pursuant to the decision of the HLSC, the Deputy Excise and Taxation Commissioner, Gurgaon-respondent No. 3 issued an entitlement certificate to the petitioner-company in form ST 72B, under sub-rule (8)(a) of rule 28C of the Rules, for a period of 10 years, i.e., March 28, 2005 to March 27, 2015 (P 15). Thereafter, the petitioner-company started availing the sales tax concession under rule 28C of the Rules with effect from April 1, 2005.
10. After a lapse of more than one year, the petitioner-company received a notice dated July 13, 2006 from the Member Secretary of the HLSC for withdrawal of the sales tax concession granted to it under rule 28C(13)(a)(iv) of the Rules (P16). Thereafter, the case of the petitioner-company was considered by the HLSC in its 99th meeting held on June 7, 2007 and the benefits were withdrawn. The operative part of the HLSC decision reads thus:. In this case HLSC which as per the minutes of the 89th meeting held on December 6, 2004 was shown to have granted the benefit of tax concession (Rs. 885.15 lacs) to the applicant, M/s. Johnson Mathey India Pvt. Ltd., P. No. 12, Sector 3, IMT, Manesar, Gurgaon (as a new unit) noted at the time of confirmation of the aforesaid minutes in its 90th meeting held on August 10, 2005 that the benefit was in fact not granted on December 6, 2004 to the applicant. The decision on the date was to defer the case for the next meeting in order to have an explanation of the unit as regards its IEM dated February 12, 1998 and IEM dated August 4, 2000. The unit was required to explain whether the IEM dated February 12, 1998 was taken for setting up a unit in Haryana or unit at Okhala. It was also to explain whether the IEM dated August 4, 2000 was intended for the further expansion programme of the unit in Haryana which has applied for tax concession.
Sh. Kedar Sharma, Advocate and Sh. Naveen Kumar, Finance Officer of the company appeared before the committee. They contended that the IEM dated February 12, 1998 related to the company and wanted the committee to believe that IEM dated February 12, 1998 was meant for the present expansion as well. The learned-Advocate was not able to satisfy the committee about the IEM dated August 4, 2000. The committee observed that this registration which is undoubtedly after the cut-off date (April 30,2000) pertains to the present expansion for which tax benefit has been sought.
In the midst of review proceedings, legal position with regard to mandatory conditions of a unit in pipeline was clarified by the Excise and Taxation Department. It was pointed out that all the conditions specified under sub-rule (3)(o) of rule 28C are required to be completed on the cut-off date (April 30, 2000). No departure from or relaxation of the conditions is permissible under the strict interpretation principle applicable to exemptions/exceptions.
Accordingly, the explanation submitted is untenable and the benefit already granted is hereby ordered to be withdrawn. DETC, Gurgaon, shall proceed to implement the above order immediately.
(emphasis here italicised added)
11. The aforementioned decision of the HLSC has been communicated to the petitioner-company vide letter dated July 5, 2007 (P 17) by the Director of Industries and Commerce, Haryana, which is subject-matter of challenge in the instant petition.
12. In the written statement filed on behalf of the respondents though factual position as pleaded by the petitioner-company in the petition has not been denied however, a preliminary objection has been raised asserting that the incentives/exemption/concession, etc., are in the nature of concession and do not confer any legally enforceable right upon the petitioner-company and it is not entitled to invoke the extraordinary writ jurisdiction. It has further been pointed out that a conference of Chief Ministers on Sales Tax Reforms was held on June 22, 2000 wherein it was decided that all the States would furnish a list of cases in pipeline as on cut-off date regarding discontinuation of tax incentives. In most of the States the cut-off date was January 1, 2000 whereas in Haryana the same has been taken as April 30, 2000. Thereafter, it was decided that following norms should be adopted for determining 'cases in pipeline':
(a) The unit is registered with the department ;
(b) Has been allotted land for the factory ;
(c) The industry has applied for finances from a regular financial institution ; and
(d) Would start production within two years.
13. After issuance of a public notice dated July 4, 2000 in the leading newspapers by the Director of Industries, Haryana, mentioning the criteria for considering the cases of units in pipeline, rule 28C was inserted in Chapter IV C of the Rules, vide notification dated July 28, 2000, with effect from November 15, 1999 (P 11). After referring to provisions of sub-rule (3)(b) and (3)(c)(vi) of rule 28C of the Rules, it has been asserted by the respondents that operative period means the period starting from November 15, 1999 and ending on April 30, 2000 except for the units in pipeline as on April 30, 2000 or any other later date notified by the Government. It has been admitted that notification regarding the unit in pipeline was issued on October 15, 2001 by the Excise and Taxation Department. It has further been admitted that the case of the petitioner-company was considered by the HLSC in its 89th meeting held on December 6, 2004 and benefit of sales tax concession, amounting to Rs. 885.15 lacs for a period of 10 years from the date of issue of entitlement certificate was approved. It has, however, been clarified that at the time of 90th meeting of the HLSC, held on August 10, 2005, the Department of Excise and Taxation filed a review application raising objection about the earlier decision concerning the case of the petitioner-company (R 4) that the decision was not recorded as per the discussion held in the 89th meeting of the HLSC. Accordingly, the HLSC decided that the case of the petitioner-company alongwith some other cases be put up again before it in the next meeting. Eventually, the case of the petitioner-company was again considered by the HLSC and in its 93rd meeting, held on May 9, 2006, the following decision was taken:
Sh. Rajinder Arora, Manager (Taxation) and Sh. Mohit Malik, Advocate, appeared before the committee on behalf of the unit. This is a case of unit in pipeline. The committee took a decision in 89th meeting for calling for the supporting documents to establish that first SLA approval dated February 12, 1998 was taken for setting up unit in Haryana. The committee also asked the applicant to prove that the IEM obtained on August 4, 2000 has been taken for further expansion programme of the unit in Haryana. The committee decided to issue notice to the unit to show cause as to why its earlier decision be not reviewed.
14. Thereafter, after due notice dated July 13, 2006, the HLSC in its 99th meeting held on June 7, 2007, decided to withdraw the sales tax concession. It has been asserted that the petitioner unit did not fulfill the first condition of unit in pipeline as prescribed under sub-rule (3)(o) of rule 28C of the Rules. Therefore, the case of the petitioner-company has rightly been declined by the HLSC.
15. Mr. Akshay Bhan, learned Counsel for the petitioner has argued that the case of the petitioner-company is covered by clause (o) of sub-rule (3) of rule 28C of the Rules, which deals with 'units in pipeline'. According to the learned Counsel this clause requires fulfilment of four conditions before the tax concession as envisaged by rule 28C of the Rules, are extended to an eligible unit, namely, the unit is required to be registered with the Department of Industries on or before April 30, 2000. The aforementioned condition stands fulfilled by the petitioner-company as it was registered with the Department of Industries on February 12, 1998/August 4, 2000. He has made a reference to para 4 of the written statement to point out that receipt of memorandum is acknowledged by the SIA and a reference number is given, which is treated as registration as per press note No. 9 (1991 series). Learned Counsel has also made reference to the admission made in para 6 that the case of the petitioner unit falls under the operative period of rule 28C and it was covered under the definition of 'unit in pipeline' fulfilling the four conditions. The second condition that the unit has arranged the land or premises by way of purchase, allotment, lease or rent also stand satisfied as the land was allotted to the petitioner-company on December 8, 1999 by the HSIDC at plot No. 12, Sector 3, IMT Manesar, Gurgaon (P 5). Learned Counsel has maintained that the third condition is also fulfilled as the unit had arranged finances from their own sources much before April 30, 2000. The fourth condition that the unit was to start production within two years, i.e., before May 1, 2002 is also complied with as the commercial production commenced from September 29, 2000. Learned Counsel has emphasised that application for sales tax concession was made on February 11, 2002, which is within 120 days of the issuance of notification dated October 15, 2001. The notification with regard to 'unit in pipeline' was published on October 15, 2001 and the aforementioned condition was accepted by the Committee in its decision dated December 6, 2004, taken in its 89th meeting (P 14).
16. Mr. Bhan, learned Counsel then submitted that the impugned decision of the HLSC, dated June 7, 2007 (P 17) is wholly without jurisdiction as the HLSC does not enjoy any power of review. He has submitted that in any case power of review cannot be exercised on the premise that the decision under review was erroneous on merit and that review has a limited purpose. He has maintained that power of review cannot be exercised by treating the same as an appeal in disguise. In that regard he has placed reliance on the judgments of the honourable Supreme Court in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma : (1979)4SCC389 , Parsion Devi v. Sumitri Devi : (1997)8SCC715 and Haridas v. Usha Rani Banik : AIR2006SC1634 . Exploring the argument that the power of review could be exercised only to correct an error apparent on the face of record, he has urged that such a power cannot be used for any other purpose. He has placed reliance on the judgments of the honourable Supreme Court in the cases of Smt. Meera Bhanja v. Nirmala Kumari Choudhury : AIR1995SC455 , Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale : [1960]1SCR890 and Thungabhadra Industries Ltd. v. Government of Andhra Pradesh : [1964]5SCR174 . He has further pointed out that the HLSC acts as a quasi-judicial authority and it has to follow the principles of natural justice by passing a detailed reasoned order. In that regard he has placed reliance on a judgment of this Court in the case of Haryana Tubes Private Limited v. State of Haryana . Mr. Bhan has further submitted that all the concessions given to the petitioner-company has since been utilised, the same cannot be rolled back. He has pointed out that the concessions were given for a period of 10 years commencing from March 28, 2005, as is evident from the entitlement certificate dated March 28, 2005 (P 15), the benefits so granted were utilised before passing of the impugned order on June 7, 2007.
17. Mr. Ritu Bahri, learned State Counsel has argued that rule 28C of the Rules is in the nature of concessions, which cannot be claimed as a right. She has then referred to the power of review as per sub-rule (15) of rule 28C of the Rules. According to the learned Counsel the petitioner's unit did not fulfil the first condition of 'unit in pipeline' as per the requirement of clause (o) of sub-rule (3) of rule 28C of the Rules and, therefore, the HLSC has lawfully rejected the case of the petitioner-company. She has pointed out that the SIA was issued to the petitioner-company at the address of M/s. Mathey Finance, B.V. Netherlands, C/o S.S. Kothari and Company, 9 A, Atma Ram House, 1, Tolstoy Marg, New Delhi (P 2), proposing the location at Okhla Industrial Estate, Phase I, Delhi. She has further submitted that the Industrial Entrepreneur Memorandum (for short, 'the IEM') for establishing the proposed unit in Haryana was finalised on August 4, 2000 which is subsequent to the cut-off date postulated by rule 28C, namely, April 30, 2000. She has also submitted that no unit has been given the benefit of sales tax concession, who do not fulfil the conditions of 'unit in pipeline' as per the requirement of rule 28C of the Rules or has been granted any benefit of sales tax concession, which was not registered with the Department of Industries on or before April 30, 2000. In that regard she has placed reliance on a judgment of the honourable Supreme Court in the case of Commissioner of Trade Tax, U.P. v. Kajaria Ceramics Ltd. [2005] 141 STC 406, holding that a dealer claiming the benefit of exemption, who is not even collecting sales tax not found entitled to exemption, has to pay tax to the department. She has further submitted that there is no estoppel against a statute and that once the petitioner-company is found to be wanting in fulfilment of four conditions envisaged by clause (o) of sub-rule (3) of rule 28C of the Rules, there is no escape from the conclusion that the same cannot be enforced by issuance of a writ of mandamus.
18. After hearing learned Counsel for the parties at great length and perusing the numerous documents on record, we consider it appropriate to first read the relevant parts of rule 28C, which are as under:
(d) 'entitlement certificate' means a certificate granted in form S.T. 72-B by the concerned Deputy Excise and Taxation Commissioner ;
(e) 'existing unit' means an industrial unit which had come into commercial production before coming into force of this rule ;
(f) 'expansion' means an industrial capacity set up or installed during the operative period which creates additional production facilities for manufacture of the same product(s) as of the unit before expansion in which the additional fixed capital investment in plant and machinery made [within two years immediately preceding the date of commercial production of diversified capacity], exceeds 25 per cent of the fixed capital investment (gross block) of the unit before expansion at the same or new location ;.
(l) 'operative period' means the period starting from November 15, 1999 and ending on April 30, 2000 except for the units in pipeline as on April 30, 2000 or any other later date notified by the Government;
(o) 'units in pipeline' means an industrial unit which as on the 30th April, 2000, fulfils the following conditions:
(i) is registered with the Department of Industries, (ii) has arranged land or premises by way of purchase, allotment, lease or rent;
(iii) has applied for finances from a regular financial institution ; and
(iv) would start production within two years, i.e., before the May 1, 2002
(12) (a) The entitlement certificate granted to an eligible industrial unit shall be liable to be withdrawn by Higher Level Screening Committee/Lower Level Screening Committee if it is established that it has been obtained by fraud, deceit, misrepresentation, mis-statement, concealment of material facts or if it is found that the unit was otherwise not eligible for tax benefit:
Provided that no order of withdrawal of the entitlement certificate shall be passed without affording a reasonable opportunity of being heard to the affected unit.
(b) For sufficient reasons to be recorded in writing, if the Deputy Excise and Taxation Commissioner of the district comes to the conclusion that a unit is misusing the benefit or contravening any condition imposed by this rule or in the entitlement certificate, he may suspend the entitlement certificate for a period of ninety days after affording an opportunity of being heard to the unit, but shall immediately send a report to Higher Level Screening Committee/Lower Level Screening Committee and the same shall be taken up for consideration by the concerned committee within thirty days. On suspension of the entitlement certificate, the affected unit shall be liable to pay full amount of tax along with tax returns without any tax concession prospectively. The entitlement certificate under suspension may be withdrawn or restored by the screening committee concerned after affording an opportunity of being heard to the affected unit.
(13) (a) The entitlement certificate granted to an industrial unit under this rule shall, in the following circumstances, be liable to be cancelled at any time by the Higher Level Screening Committee/Lower Level Screening Committee concerned--
(i) disposal or transfer of any of the fixed assets of the unit adversely affecting its manufacturing or production capacity ;
(ii) failure to furnish security as required under clause (b) of sub-rule (10) of this rule ;
(iii) discontinuance of its business by the unit or closing down of its business for a continuous period exceeding 6 months except in case of fire, flood, other natural calamities, riots, strike or lockout which in the opinion of the committee concerned is beyond the control of the unit;
(iv) violation of any of the conditions of this rule ;
(v) for any other sufficient reason to be recorded in writing:
Provided that no order of cancellation of the entitlement certificate shall be passed without affording a reasonable opportunity of being heard to the affected unit.
(b) A report made under rules 12(a) or 13(a) shall be taken up for consideration and decided within sixty days of its having been received by the member-secretary of the committee concerned. In case of delay, the entitlement certificate may be suspended by the Deputy Excise and Taxation Commissioner concerned, after hearing the unit concerned, for a period not exceeding ninety days during which the committee may ratify the suspension. On suspension of the entitlement certificate, the affected unit shall be liable to pay full amount of tax disclosed in its returns without any tax concession prospectively. The entitlement certificate under suspension may be cancelled or restored by the Committee concerned after affording opportunity of being heard to the affected unit.
(c) On cancellation/withdrawal of entitlement certificate, the unit shall be liable to make payment of the tax concession availed of by it within a period of one year in equal monthly instalments, failing which the unit shall be liable to pay interest at the rate of two per cent per month on the amount due up to the date of payment.
(d) Upon withdrawal or cancellation of entitlement certificate a unit shall have no right to avail of tax concession under this rule notwithstanding that any appeal or review is pending against such withdrawal or cancellation.
19. A perusal of aforementioned provisions of rule 28C shows that a unit in pipeline as per the language of sub-rule (3)(o) of rule 28C would be that industrial unit which fulfils the following conditions on April 30, 2000:
(i) it is registered with the Department of Industries.
(ii) it has arranged land or premises by way of purchase, allotment, lease or rent ;
(iii) it has applied for finances from a regular financial institution; and
(iv) it is to start production within two years, i.e., before May 1, 2002.
20. The HLSC after taking into account the aforementioned conditions appears to have issued and approved the case of the petitioner-industrial unit as a new industrial unit eligible for sales tax concession to the rune of Rs. 885.15 lacs which is 100 per cent of total FCI for a period of 10 years from the date of issue of entitlement certificate for manufacturing of automobile accessories namely : catalytic of manufacture converters falling under NIC Board manufacture of parts and accessories NEC for transport equipment NEC. A perusal of letter dated March 18, 2005 (annexure P 14) further shows that the aforementioned decision was taken by HLSC in its 89th meeting held on December 6, 2004. The following paras of the decision would show that the petitioner fulfilled all the four conditions envisaged by sub-rule (3)(o) of rule 28C.
The unit has submitted two copies of IEM, the first SIA approval was granted to the industrial unit on dated February 12, 1998, wherein the proposed site for setting up of their industrial unit is at New Delhi, Okhla Industrial Estate. But the representative appearing before the committee stated that the foreign collaboration was approved by the SIA and on that date they had no site to write down in the SIA approval. This approval was sent to their commercial office and the proposed site was also inadvertently shown on the office address. They further pleaded before the committee that it makes no difference they are registered with the competent authority before April 30, 2000. The representative of the unit stated before the committee that every approval was taken at the office address because they had no location for manufacturing in 1998. The second IEM obtained by the unit on date August 4, 2000 is relating to the acknowledgment made to the SIA after coming into the production. Though the unit came into commercial production after a month after filing of this IEM dated August 4, 2000.
The Joint Director Industries apprised the committee that the SIA approval for foreign collaboration was also forwarded to the State of Haryana in the Directorate of Industries on dated April 1, 1999, which was confirmed by the Director of Industries (small and medium entrepreneurs section). As per policy the IEM issued by the SIA and approved foreign collaboration was forwarded to the concerned State and to the concerned GM, DIC. Therefore, the unit has requested the SIA to forward the approval to State of Haryana in the Department of Industries for taking further necessary action for setting up the unit. This shows that the unit was registered with the Department of Industries much before April 30, 2000.
The land was allotted on January 14, 2000 by the HSIDC, at plot No. 12, Sector 3, IMT-Manesar, Gurgaon, therefore, second condition of the unit is also complied with. The third condition is also fulfilled that they have arranged finances from their own sources, i.e., self financed. The investment has been made prior to April 30, 2000 by the unit. The third condition is also fulfilled by the unit. The date of commercial production of the industrial unit is September 29, 2000. This condition is also fulfilled because the unit came into commercial production before May 1, 2002.
Further, the Joint Director (FA) apprised the committee that the application for grant of sales tax concession was made on February 11, 2002. The application is to be submitted within 120 days from the date of commercial production or within 120 days from the publication of the rule 28C whichever is later. This is a case of 'unit in pipeline' and the relevant notification was issued on October 15, 2001. If this date of publication 'unit in pipeline' is taken then the application is made within the stipulated period. The committee deliberated over this issue and observed that since the relevant notification of unit in pipeline was issued on October 15, 2001 from that date the period may be taken for filing the application. Therefore, the application of the unit is filed within the limitation period.
21. It is thus, evident that HLSC duly noticed that the IEM and the first Secretariat for Industrial Assistance (for short, 'the SIA') approval was granted to the petitioner unit on February 12, 1998 and the mistake of referring Okhla Industrial Estate was later corrected. It has further been noticed that such a mistake was not to make any difference because the petitioner unit was registered with the competent authority before April 30, 2000, i.e., on February 23, 2000. The HLSC also noticed the second IEM obtained by the unit on August 4, 2000, which is acknowledgment made to the SLA. The second condition that the unit has arranged its land or premises by way of purchase, allotment, lease or rent also stands fulfilled as plot No. 12, Sector 13, IMT Manesar, Gurgaon was allotted to the petitioner as self financing unit and all finances were duly arranged by the promoters of the unit with their own sources much before April 30, 2000 which fulfilled the third condition. And the last condition that the unit was to start production has also been fulfilled as commercial production commenced from September 29, 2000. Therefore, we are of the considered opinion that the unit was fully eligible for grant of concession as 'unit in pipeline' within the meaning of, clause (o) sub-rule (3) of rule 28C.
22. Some controversy has been raised before the HLSC as also before this Court with regard to the fulfilment of first condition namely that the unit was not registered with the department. It has come on record of the HLSC when it decided the case of the petitioner on December 6, 2004 that this unit has submitted two copies of IEM and first SLA approval was granted on February 12, 1998. It has become further clear that the statement made by the petitioner unit before the HLSC that the foreign collaboration was approved by the SLA and there was no site available with the unit to be disclosed in the SLA approval which was given on February 20, 1998 and HLSC was also conscious of the fact that the petitioner unit had sent the approval to their commercial office and the proposed site of Okhla Industrial Estate inadvertently shown on the office address and that it was not to make any difference because the unit was registered with the competent authority before April 30, 2000, i.e., on February 23, 2000. In other words, the HLSC in its 89th meeting held on December 6, 2004 has resolved the controversy that the unit was registered with the Department of Industries for SLA and IEM before the cut-off date. With regard to other three conditions, there was no controversy as all other three conditions were duly fulfilled.
23. After issuance of order on March 18, 2005 (annexure P 14) communicating the decision of HLSC dated December 6, 2004, the petitioner unit was issued entitlement certificate postulating that the certificate was to be valid for the period from August 23, 2005 to March 27, 2015 and the quantum of tax concession available to the petitioner unit would be Rs. 885.15 lacs. Thereafter, even a revised entitlement certificate in proper form BAT-G-15 under rule 69(2) was also issued on March 28, 2005. The petitioner has claimed that unit has utilised total benefits available under the entitlement certificate.
24. The language of the show-cause notice for withdrawing the benefits given by HLSC makes an interesting reading. It has been pointed out in the show-cause notice dated July 13, 2006 (annexure P 16) that the HLSC in fact had taken the decision for calling the supportive documents in its 89th meeting held on September 16, 2004 from the petitioner unit to prove that first SIA approval on February 12, 1998 was taken for setting up unit in Haryana and unit in pipeline and that IEM obtained on August 4, 2000 was taken for further extension programme of the unit in Haryana. In other words, the decision dated December 6, 2004 as conveyed by the Director of Industries, Haryana on March 18, 2005 was erroneously conveyed. In other words, it would mean that no such decision by the HLSC was ever taken on December 6, 2004 and consequently, the Director of Industries could not have communicated any such decision to the petitioner. There is nothing on the record for us to believe and accept the aforementioned stand of the respondent. In fact in para 7 of the written statement, the factum of granting benefit to the petitioner unit by HLSC on December 6, 2004 in 89th meeting and its communication vide letter dated March 18, 2005 by the Director of Industries has been accepted. It has further been pleaded in the written statement that the benefit was wrongly given. There is world of difference between the claim that the petitioner unit on December 6, 2004 was only asked to prove that the IEM was issued for the State of Haryana on February 12, 1998 and no decision was taken and to claim that the decision was wrongly taken. In fact, this inherent conflict between the stand taken by the committee as reproduced in the impugned order (annexure P 17) clearly shows that irrelevant consideration has influenced the mind of the HLSC for withdrawing the benefits.
25. In the aforementioned facts and circumstances, we are to consider as to whether respondent could have exercised the power of review as envisaged by sub-rule (15) of rule 28C which reads as under:
Any person considering himself aggrieved by an order of the Tribunal or the Higher Level Screening Committee and who from the discovery of any new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when such order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the order made against him, may apply for a review of such order to the Tribunal or the Higher Level Screening Committee, as the case may be. Review can be filed within one hundred eighty days of the date of order. Condonation of delay in filing review shall not be permissible. The Tribunal or the Higher Level Screening Committee of its own accord at any time, or on basis of an application, after giving notice to the party, review any order made by it.
26. A perusal of the aforementioned provision makes it evident that HLSC could review its earlier decision, which may be shown to be erroneous from the discovery of any new and important matter/evidence which was not considered earlier or there is a mistake apparent on the face of record or for any other sufficient reasons. The only reason for reviewing its earlier decision of HLSC given in the impugned order is that IEM dated February 12, 1998 did not relate to the expansion of the company and the same was issued only after the cut-off date on August 4, 2000. The aforementioned issue, has already been adjudicated upon by HLSC in its 89th meeting held on December 6, 2004 by recording the conclusion in favour of the petitioner. The question for consideration is whether an issue which has been adjudicated upon, would fall within the four corners of sub-rule (15) that there was an error apparent on the face of record. The issue is no longer res integra. The honourable Supreme Court in the case of Aribam Tuleshwar Sharma's case [1979] 4 SCC 389 has held as under:
It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found ; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merit. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of error committed by the Subordinate court.
27. The aforementioned proposition that the review cannot replace the area occupied by the appellate court has again been accepted by the honourable Supreme Court in the case of Parsion Devi's case : (1997)8SCC715 .
28. Therefore, it has to be held that a review is by no means an appeal as disguised whereby an erroneous decision is reheard and corrected. Review lies only for a patent error as apparent from the face of record. Therefore, we find that the HLSC has admittedly made an attempt to correct erroneous decision particularly the issue, which has been adjudicated upon, therefore, the impugned order dated June 7, 2007 (annexure P 17) is liable to be set aside.
29. The argument of the learned Counsel based on the judgment of the honourable Supreme Court in Kajaria Ceramics Ltd. [2005] 141 STC 406 is wholly inapplicable to the facts of the present case. In that case, the honourable Supreme Court was considering as to whether the entrepreneur was entitled to assume exemption from payment of tax to its unit on the basis of the judgment delivered in this case when the appeal was pending before the honourable Supreme Court. The honourable Supreme Court eventually decided the matter against the entrepreneur holding that no exemption from payment of tax was available. In these circumstances, it was held that non-charging of sales tax from customers was no excuse by the entrepreneur to make its payment to the State. However, in the present case, exemption has been granted by HLSC by taking into account all the relevant considerations and that decision is sought to be reviewed. The question before the honourable Supreme Court in Kajaria Ceramics Ltd. [2005] 141 STC 406 is entirely different than the one presented in the instant case. Therefore, we do not find any parallel between the case in hand and the judgment of the honourable Supreme Court in Kajaria Ceramics Ltd. [2005] 141 STC 406 and the argument is hereby rejected.
30. For the reasons aforementioned, this petition succeeds. Order dated June 7, 2007 (annexure P 17) passed by HLSC in its 99th meeting is hereby quashed and the order dated December 6, 2004 taken by HLSC in its 89th meeting is restored. In the facts and circumstances of the case, we make no order as to costs.