Judgment:
Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. The petitioner challenges the order rejecting his application for rectification for modifying the eligibility certificate by extending the benefit of exemption under the new Incentive Scheme 1989 to the petitioner even under the Rajasthan Sales Tax Act. He has been issued eligibility certificate by the concerned C.T.O. on 24.2.1994 under the decision of District Level Screening Committee (for short 'D.L.S.C.') in respect of the new oil industrial unit started by him, only in respect of Central Sales Tax Act which entitled him to exemption from payment of tax under the Central Sales Tax Act.
3. The facts giving rise to the present case are that after commencement of new Incentive Scheme, 1989 granting exemption from payment of tax to new industrial units vide notification dated 6.7.1989 w.e.f. 5th March, 1987. The edible oil industry was put in the negative list vide notification dt. 7.5.1990 that is to say the list of industries ineligible to avail the benefit of the Scheme under the Rajasthan Sales tax Act. The similar notice withdrawing the examination to oil units under the Incentive Scheme granting exemption from payment under the Central Sales Tax Act was issued on 26th July, 1991. After notification dt. 7.5.1990 putting edible oil industry in the negative list under the Incentive Scheme for Rajasthan Sales Tax Act as well as Central Sales Tax Act by notification dt. 26th July, 1991, the 'edible oil industry* was deleted from list of ineligible industries under the Central Sales Tax Act by withdrawing notification dt. 26.7.1991 and the benefit of exemption was restored to the extent of 75% of the eligible capital investment under the Central Sales Tax Act. The unit of the petitioner has commenced commercial production on 31st March, 1992. As on that date, while the benefit of exemption under the new Incentive Scheme, 1989 stood restored under the C.S.T, Act to the extent of maximum quantum equal to 75% of the eligible capital investment, on that the date the edible oil industry continued to be in the list of ineligible industries to avail the benefit of the incentive under the R.S.T. Act.
4. Accordingly in pursuance of decision of D.L.S.C. the eligibility certificate was issued by the Commercial Taxes Officer on 24.2.1994 in favour of the assessee-petitioner only in respect of Central Sales Tax Act and not in respect of Rajasthan Sales Tax Act.
5. Aggrieved with issue of eligibility certificate by C.T.O. to be only under C.S.T. Act, the petitioner made an application before the Commercial Taxes Officer Under Section 17 of the R.S.T. Act of 1954 for rectifying the eligibility certificate for extending its operation even under the R.S.T. Act. That application was rejected on 22nd March, 1996.
6. A writ petition filed before the Rajasthan Taxation Tribunal challenging that order was dismissed on 27th October, 1997. Hence, this writ petition.
7. Learned Counsel for the petitioner contends that since he has taken steps to establish a new oil, industry on the basis of promise contained in New Incentive Scheme, 1989 prior to its inclusion in the list of ineligible industries he was entitled to avail its benefit on the principles of promissory estoppel, notwithstanding withdrawal of scheme for edible oil industry on 7.5.1990 under R.S.T. Act. According to him this mistake was apparent on the face of record and, therefore, the Commercial Taxes Officer has erred in not rectifying the eligibility certificate issued in his favour restricted its operation under C.S.T. Act only particularly when the D.L.S.C. has not circumscribed its sanction to one or other Act. The same mistake was also committed by the Tribunal.
8. Mr. Lodha, learned Counsel for the respondents, on the other hand contents that it is now no more res integra, and the issue stand settled by the decision of the Supreme Court In State of Rajasthan and Anr. v. Mahaveer Oil Industries and Ors. 115 STC 29, that after withdrawal of the exemption In the case of oil industry under the R.S.T. Act vide notification dt. 7.5.1990, which was in public Interest, no benefit could be availed by oil industries established thereafter on the basis of promissory estoppel and therefore, there was no mistake in the action of the Commercial Taxes Officer In issuing eligibility certificates in respect of C.S.T. only. He also contends that since the Commercial Taxes Officer has only given effect to order passed by the D.L.S.C. no rectification of the eligibility certificate issued by the Commercial Taxes Officer was permissible unless the order of D.L.S.C. was rectified on which it was founded and for any such rectification the Commercial Taxes Officer had no jurisdiction.
9. Having given our thoughful consideration to rival contentions. We are of the opinion that this petition must fail.
10. Firstly, whether the promissory estoppel principles could be applied in a particular case depends on establishing basic facts and cannot be considered to be a case of a mistake apparent on the face of record so as to warrant rectification which could be resorted to only in case there is an apparent error. No error which is required to be discovered by balancing the rival contentions on each sides can be said to be an apparent mistake. Secondly it is apparent that as the petitioner became entitled for claiming exemption from payment of tax In respect of sales of oil manufactured by It at his new industrial unit only on the date the unit commenced commercial production. Definition of new Industrial Unit under the Scheme vouch for our this premise. It defines a new industrial unit to be one which has commenced commercial production during the operative period of the scheme. Thus no Industry becomes eligible to lay claim to exemption under the scheme until it commences commercial production. Mere taking steps for establishing an industry was never promised benefit of scheme. Thus no promise was held out to any Industry to avail benefit prior to commencement of commercial production. The oil industry was already in the list of Ineligible industry for the purpose of availing benefit under the new Incentive Scheme, 1989, when it commenced commercial production in 1992. Therefore, even on the principles of promissory estoppel, the petitioner was not entitled to avail any benefit under the Scheme/as on the date he sent for commercial production, on which date only the scheme would become operative qua such industrial unit. The applicability of scheme will have to, be decided only on the date when the unit came within the ambit of 'New Industrial Unit' as defined under the Scheme and attract its provision.
11. This is apart from the fact that the decision of Supreme Court in Mahaveer Oil Industries case (supra) that is clear on the issue any industrial unit established for manufacture of oil is not entitled to avail the benefit of RST Act under the Incentive Scheme after 7.5.1990, but is entitled to incentive under G.S.T. only.
12. In view of aforesaid discussion, this petition is dismissed with no order as to costs.