Indian Charge Chrome Pvt. Ltd. Vs. Sales Tax Officer and ors. - Court Judgment

I. Mahanty, J.

1. The petitioner M/s. Indian Charge Chrome Limited, a public limited company incorporated under the Indian Companies Act, 1956, (hereinafter referred to as 'ICCL') is carrying on its business in the State of Orissa, by establishing a Charge Chrome factory at Choudwar in the district of Cuttack where it manufactures charge chrome and exports its products and is declared as a 100 per cent Export Oriented Unit (in short 'EOU').

2. A letter of intent was issued on October 22, 1982 to ICCL for setting up a 100 per cent export oriented undertaking at Choudwar, District Cuttack for manufacture and export of 50,000 MTPY of high carbon ferro chrome/charge chrome. The said letter of intent was converted to Industrial licence on July 3, 1989.

3. The present writ petition has been filed by the petitioner-ICCL seeking a direction to the Director of Industries (opposite party No. 5) to rectify/ correct the eligibility certificate for exemption of sales tax indicating the actual 'installed capacity' of the petitioner-company's factory in terms of the Industrial Policy Resolution, 1989 (hereinafter referred to as 'IPR 1989') and as a consequence thereto, to quash the notice issued under Section 12(8) of the Orissa Sales Tax Act, 1947, vide annexure 2.

4. Mr. Ganesh, learned Senior Advocate appearing on behalf of the petitioner-company, advanced the following contentions:

i. The benefit of sales tax exemption under S.R.O. No. 790/1990 is available to 100 per cent Export Oriented Units (E.O.U.) and also to Units which do not make any export at all. In other words, the availability of exemption under S.R.O. No. 790/1990 is not at all dependent on whether the assessee has made exports or not.

ii. The conditions laid down in the E.O.U. resolution issued by the Central Government cannot be imported into or made a part of the sales tax notification (S.R.O. No. 790/1990) issued by the State Government of Orissa.

iii. The benefit of sales tax exemption under S.R.O. No. 790/1990 is available to an assessee in respect of sales of any product covered by the assessee's industrial licence.

iv. The petitioner's industrial licence authorised it to manufacture charge chrome/ferro chrome. The petitioner is therefore entitled to sales tax exemption under S.R.O. No. 790/1990 in respect of its entire production of charge chrome/ferro chrome, without it being subjected to any restriction or limitation whatsoever.

v. The Director of Industries, as the authority issuing the eligibility certificate under S.R.O. No. 790/1990, is only concerned with one limited issue, namely, whether the sales in question are of the products covered by the assessee's industrial licence. If the answer to this query is in the affirmative, the Director of Industries is bound to issue an unqualified eligibility certificate for availing of exemption without incorporating any quantitative or value restriction on the quantum of exemption, which may be availed of by the assessee.

vi. The only authority which is concerned with compliance with and breach of the E.O.U. resolution is the Development Commissioner. The Orissa sales tax authorities are not in any manner concerned with this issue at all.

vii. It is important to note that, in the present case, no allegation has been made against the petitioner right upto day of filing the writ application that the E.O.U. resolution has been violated in any way or that any breach thereof has been committed by the petitioner.

viii. Without prejudice to the above, it is submitted that even assuming without conceding that the petitioner is found to have committed some violation of the terms of the E.O.U. resolution, even then the benefit of sales tax exemption under the S.R.O. No. 790/1990 cannot in law be denied to the petitioner, for the simple reason that this is not at all a relevant criterion or consideration for determining the eligibility and entitlement of an assessee to sales tax exemption under S.R.O. No. 790/1990.

5. Apart from the aforesaid contentions Mr. Ganesh, learned Senior Advocate on behalf of the petitioner relied upon the Industrial Policy of Orissa, 1989 and in particular on the following:

Para 2.18 -- Continuing Units of 1980 Policy' means any Indus-trial unit, where fixed capital investmentcommenced on or after 1.8.1980 and prior to1.4.1986 and the unit has gone or goes intocommercial production (on or) after 1.4.1986.(Date of first investment made by ICCL being19.6.1985 and commercial production commencedwith effect from 19.12.92, ICCL is covered by thisPolicy).Para 7 -- Sales Tax IncentivesPara 7. 1 -- Sales Tax Incentive under Part-1...Para 7.1.5. -- Deferment/exemption of sales tax on finished prod-ucts of medium and large scale industrial units--New medium and large industrial units will beallowed to defer payment of sales tax collected ontheir finished products for a period of 7 years inZones 'B' and 'C and 9 years in zone 'A' from thedate of commercial production. Deferred amount inrespect of each year will be repaid in full after theexpiry of the period of deferment annually. In lieu ofdeferment, new medium and large scale industrialunits can opt for exemption of sales tax on finishedproducts for a period of 5 years if the unit is locatedin Zones 'B' and 'C and 7 years in Zone 'A'.(Cuttack being included in Zone 'C', ICCL iscovered under Zone 'C')Para 7.3 -- Sales Tax Incentive under Part IIIPara 7.3.1 -- EligibilityThe incentive under this part shall be applicable to'continuing units of 1980 policy'.Para 7.3.2 -- Exemption/deferment on sales tax on finishedproducts:The sales tax incentive on finished products as isapplicable to new industrial units under Part 1 shallbe applicable to continuing units of 1980 Policy,after the effective date, provided that sales tax loan,if any, availed of under the Orissa Sales Tax LoanScheme Rules, 1980 is surrendered within the time-limit prescribed in the operational guidelines/instructions.

6. Mr. Ashok Mohanty, learned Senior Standing Counsel on behalf of the Sales Tax Department and the Department of Industries on the other hand, opposed the main prayer of the petitioner seeking a direction to the Director of Industries (opposite party No. 5) to rectify/correct the certificate of eligibility for sales tax exemption indicating the actual 'installed capacity'. He submits that the deciding criterion for determination of the quantum/ extent of exemption as stipulated in the notification is limited to only the transaction of sales of goods by an assessee under the Orissa Sales Tax Act. Therefore, no exemption is available nor can be claimed in respect of transactions, which are not so admitted. He submits that the petitioner-company has already availed exemption in respect of transactions, which have been admitted by it as sales under the Orissa Sales Tax Act, 1947 (in short 'OST') or the Central Sales Tax Act, 1956 (in short 'CST'). He further submits that although the main prayer is for issuing amended eligibility certificate by the Director of industries, the petitioner actually seeks exemption for transactions which the petitioner has not admitted to be OST transactions in its returns filed before the assessing authorities and therefore, exemption in respect thereof is not admissible.

7. Learned Counsel for the opposite parties submits that under the 1990 IPR, exemption is not available simpliciter of the goods up to 'installed or licensed capacity' or 'goods the petitioner is licensed to manufacture or has manufactured' or 'sales of any product covered by assessee's industrial licence' or 'the goods that can be produced against installed capacity', but exemption of 'tax liability' in respect of admitted transactions, under the Act, on sales of goods from out of the actual production, against installed capacity or licensed capacity. The exemption is inextricably linked to or inseparable from the admitted intra-State sales under the O.S.T. Act or inter-State sales under the C.S.T. Act or taken together sales within the country or in the Domestic Tariff Area (DTA) as called in the Exim Policy. He submits that sales outside the country or sales in course of export are outside the power of taxation under the O.S.T. Act or the C.S.T. Act in accordance with the provisions of the Constitution under Article 286(1) of the constitution of India. Therefore, those sales, not being liable to tax under the said Acts, there is no case for any exemption of admitted liability to tax in case of such sales in course of export. Consequently, those sales are outside the scheme of exemption under the S.R.O. Thus, all sales outside the DTA are outside the scope of exemption under the S.R.O. and incentive of exemption for the admitted sales in the DTA are within the scope of exemption.

8. In so far as the petitioner's obligation as an EOU is concerned, he submits that the S.R.O. stands on its own, in allowing exemption in respect of sales of goods within the country or the DTA by itself and not because of anything said in the EOU resolution. There is no question of importing the various stipulation of the EOU resolution into the S.R.O. or saying that the exemption under the S.R.O. is dependent on anything stated in the EOU resolution. Both stand on their own respective schemes and explicit provisions without any instruction into the other or aid of the other.

9. Consequently, he submits that when it is said that a 100 per cent EOU unit is entitled to exemption in respect of sales of goods within the Country or the DTA or the units is not entitled to any exemption in respect of sales in course of export, it is only and exclusively on the basis of the provisions of the S.R.O., as submitted above. The fact that the quantity of the goods covered under the transactions of sale exempt under the S.R.O. is the quantity permitted to be sold in the DTA in terms of the EOU resolution is only incidental. The Director of Industries in declining to issue the certificate of eligibility based on licensed capacity in his letter No. 2439 dated 15/22 February, 1996 is in total conformity with the S.R.O. The opposite parties further submit that the petitioner in its applications submitted from time to time admitting the transactions of sales to be made referred to the letter of permission or the quantity permitted to be sold within the DTA does not, at all in law, supply any connection to the issue of the certificate of eligibility to exemption under the S.R.O. A reference to the permission granted under the EOU Resolution, in the context of the quantity of goods, is only incidental.

10. The opposite parties submit that in respect of the petitioner contention that the benefit of sales tax exemption are available to 100 per cent export oriented units and also to units which do not make any export at all, the availability of exemption under S.R.O. No. 790/1990 is not at all dependent on whether the assessee has made exports or not. The contention of the petitioner assumes that the non-availability of the exemption arises because the industrial unit is a 100 per cent EOU. The real reason is that it is because of non-compliance of the main condition of exemption as stated above. If the transactions are claimed as sales in course of export and are not admitted as transactions liable to tax under the OST Act, the exemption is not admissible because of stipulations of Sub-clause (b) in the preamble of S.R.O. No. 790/1990.

11. In response to the contention of the petitioner's that when an eligibility certificate is issued it has to be for the 'installed capacity' the opposite parties submit that such contention ignores the conditions and exceptions subject to which the exception is available under the S.R.O. No. 790/90 and the provisions of the IPR and the operational guideline issued by the State Government, in this regard, the learned Counsel for the opposite parties submits as follows:

(a) Exemption is subject to exercise of the option in form D specified in the S.R.O. This form stipulates submission of two certificates from the Director of Industries who issues only two certificates--(1) certificate in form E and (2) the certificate of eligibility in form III is a statutory requirement and could not be done away with or it can be claimed that the certificate in form E is enough. Form E is one which enumerates the particulars of eligible industrial unit for the purpose of guidance. It does not certify the extent of exemption. Only the certificate in form III is referred to as the 'certificate of eligibility' and specifies the extent of exemption to which an industrial unit is entitled to in the given facts of its case.

(b) The application in form I, for issue of form III requires the applicant to state the required particulars including quantity of the sales of finished products in respect of which the exemption is applied for although against serial 10, the products as per 100 per cent installed capacity per annum is also required to be stated. This shows that in pith and substance, the exemption is not applied for 100 per cent installed capacity or the licensed capacity. It is only in respect of quantity which when sold would be liable to tax, only when entitlement to exemption arises. It does not cover transactions of sales, which have no tax liability and, therefore, require no exemption.

(c) The stipulation in form III is that 'maximum quantity that can be produced by the industrial unit as per installed capacity' is to be stated. It is not always the case that full production is always possible of being made Generally, the actual production is less than the installed capacity. The aforesaid stipulation serves the vital purpose in administering the incentives in its proper perspective and preventing abuse of the incentives allowed at substantial cost to the public revenue and thus is most important for successful implementation of the policy.

(d) Besides, the case of the petitioner is that although its installed capacity is 50,000 metric tonnes, the actual production as stated in its application dated the 20th January, 1996 in the years 1992-93 to 1994-95 is much less. In the face of these facts, the application seek certification for entitlement to exemption for the installed capacity of 50,000 metric tonnes. Assuming for the sake of argument, that the petitioner is entitled to exemption in respect of actual production, the certification of the exemption in respect of sales of goods of the quantity equal to total installed capacity would be certifying something, which is not a fact.

(e) Issue of form III, stating the installed capacity pre-supposes that the industrial unit is capable of achieving hundred per cent installed capacity in actual production. There is no room for such an assumption. The certificate is required to be given on actual scrutiny and verification.

12. It is submitted on behalf of the opposite parties that the certificate of eligibility in form III and the certificate in form E are statutory requirements and are to be annexed to form D as specified in S.R.O. No. 790/90. The essential facts are that the petitioner seeks a certificate of eligibility in form III from the Director of Industries specifying the installed capacity as the quantity of goods for sales of which the exemption is available. The certificate is issued under the guidelines issued by the State Government for supplementing IPR, 1989. Both the IPR and the operational guidelines are issued by the State Government in Industries Department and are decisions of Government taken by the competent authority as per Rules of Business of the State Government. Therefore, the claims for issue of a certificate of eligibility to exemption in form III need to be in accordance with the IPR, 1989 and the operational guidelines issued by the State Government.

13. Mr. Ganesh, learned Counsel for the petitioner-company vehemently rebuts the contentions raised by the learned Counsel on behalf of the State and submits that the interpretation advanced by the learned Counsel for the opposite parties does not find any support on a plain reading of the Industrial Policy Resolution, 1989. In this aspect, he submits that the IPR 1989 is abundantly clear in so far as. its application to the petitioner-company is concerned. Placing any limitation on the said IPR, would amount to legislation by way of averments in a counter-affidavit. The learned Counsel further submits that even in terms of 'operational guidelines' issued under the IPR 1989 an industry is required to submit an application in the prescribed form to the Director of Industries, who in turn, on receipt of such application and on scrutiny thereof is required to issue certificate for such exemption to the applicant in appropriate form. In the present case, form III is for the purpose of exemption of OST.

14. Accordingly, the petitioner-company had submitted its application in the prescribed form. Apart from the 'operational guidelines' the learned Counsel for the petitioner-company, placed reliance on the 'instructions' issued by the Director of Industries dated May 5, 1988, regarding capacity of assessment of Industrial Unit and in terms of such instructions, it would be clear that the statutory form for capacity assessment does not provide for any distinction between the 'domestic sales' and 'export sales'. On the contrary the 'capacity assessment' has to be made basing on the 'installed capacity' of an industrial unit. The certificate regarding quantum of exemption has been essentially stipulated obviously with an object to prevent the misuse of the exemption and to ensure that the industrial unit claiming and seeking such incentives alone gets the benefit. In other words he submits that such 'capacity assessment' was required to certify the extent of raw materials/finished products to which the industry would be entitled for exemption.

15. Learned Counsel on behalf of the petitioner-company further placed reliance upon a judgment rendered by the Orissa High Court in the case of Rourkela Roller Flour Mills v. State of Orissa in O.J.C. No. 974 of 1987 decided on September 7, 1987, wherein the Orissa High Court while dealing with Industrial Policy Resolution, 1980 come to hold that the declaration form appended to the said resolution 'no where' authorised the Director of Industries to give a certificate in respect of the 'installed capacity' of the unit in question. Mr. Ganesh further submitted that the circular issued by the Director of Industries dated May 5, 1988 was issued subsequent to the aforesaid judgment of the Orissa High Court and therefore the intent and purpose of such 'assessment capacity' was also clearly spelt out in the said Circular as well, as guidelines for assessment of capacity of industrial units by the Technical Officer of the District Industries Centers which inter alia, direct that the raw materials utilised capacity should be the basis of sales tax exemption and further that the installed capacity should be determined on a verification of the products manufactured and the capacity to use raw materials and the amount/quantity of finished goods.

16. Learned Counsel for the petitioner further relied upon a judgment of the honourable Supreme Court in the case of Parle Biscuits (P) Ltd. v. State of Bihar : 2005(192)ELT23(SC) , wherein the honourable Supreme Court placed reliance on an earlier judgment of the Supreme Court in the case of Hansraj Gordhandas v. H.H. Dave Assistant Collector of Central Excise and Customs : [1969]2SCR253 . In that case the honourable apex court came to hold as follows (para 5 of AIR):.It was contended on behalf of the respondent that the object of granting exemption was to encourage the formation of co-operative societies which not only produced cotton fabrics but which also consisted of members, not only owning but having actually operated not more than four power looms during the three years immediately, preceding their having joined the society. The policy was that instead of each such member operating his looms on his own, he should combine with others by forming a society which, through the cooperative effort should produce cloth. The intention was that the goods produced for which exemption could be claimed must be goods produced on its own behalf by the society. We are unable to accept the contention put forward on behalf of the respondents as correct. On a true construction of the language of the notifications dated July 31,1959 and April 30,1960 it is clear that all that is required for claiming exemption is that the cotton fabrics must be produced on power-looms owned by the co-operative society. There is no further requirement under the two notifications that the cotton fabrics must be produced by the co-operative society on the power looms for itself. It is well-established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different but that is not the case here. Their Lordships refer to the observations of Lord Watson in Salomon v. Salomon and Co. 1897 AC 22 at page 38:

Intention of the Legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.

(Here italicised).

17. Learned Counsel for the petitioner placed reliance on the aforesaid judgment and submitted that, the availability of tax exemption under S.R.O. No. 790/1990 (IPR 1989) is not at all dependent on whether the goods manufactured are sold in the domestic market or exported and the reliance placed by the Revenue on the obligation of export by the petitioner, in terms of the Export and Import Act of the Central Government is wholly not permissible and the conditions laid down under the Export and Import Act cannot be incorporated or made a party liable under the Sales Tax Act/Rules. Therefore he submits that the petitioner-company is entitled to the benefit of the incentive in respect of all sale irrespective of the fact whether the goods were sold domestically or exported. The only condition being that the goods must have been manufactured by the petitioner and such quantity should be within the 'installed capacity' of the petitioner industrial unit. The question whether the petitioner-company complied with its obligation to the Government of India for abiding by its export obligation is not germane for determining the eligibility of the petitioner-company to claim for benefits under the IPR 1989.

18. On consideration of the rival contentions advanced by the learned Counsel for both the parties, the essential issue to be resolved in the present case is:

Whether the 'deciding criterion' for determination of the quantum/ extent of exemption in terms of 1989 IPR is to be limited only to the transaction of sale of goods by an assessee under the Orissa Sales Tax Act and/ or whether the quantum of exported goods ought not to be taken into consideration while stipulating the quantum/extent of exemption

19. In the present writ application we are essentially dealing with a question whether or nor the eligibility certificate granted to the petitioner by the Director of Industries at annexures 4 and 4/A should be suitably rectified/ corrected in terms of the submissions advanced by the petitioner-company and the opposite parties. In this respect it would be imperative to consider the stipulation contained in IPR 1989 itself.

20. The contention raised by the State is that the exemption contemplated under IPR 1989 is inextricably linked to or inseparable from sales under the O.S.T. Act or under the C.S.T. Act or taken together sales within the country or in the Domestic Tariff Area (DTA) requires serious consideration. It is further averred that sales outside the country or sales in course of export are outside the power of taxation under the O.S.T. Act or the C.S.T. Act in accordance with the provisions of the Constitution under Article 286(1) of the Constitution of India. The aforesaid contention require to be considered in the light of Article 286:

286. Restrictions as to imposition of tax on the sale or purchase of goods.--(1) No law of a State shall impose or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place-

(a) outside the State; or

(b) in the course of the import of the goods into, or export of the goods out of, the territory of India.

(2) Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in Clause (1).

21. It would be clear from the above that Article 286(1) of the Constitution clearly restricts a State from imposing or authorising the imposition of, a tax on the sale or purchase of goods which takes place outside the State or in the course of import or export. Clause (2) of Article 286 of the Constitution has vested in the Union Parliament the power and authority to legislate and lay down law formulating principles for determining when sale or purchase of goods takes place in course of inter-State trade or in course of import and export. It is in exercise of its power vested under Article 286(2) that Union Parliament has in fact promulgated the CST Act, and by such enactment all sale or purchase of goods in course inter-State trade as well as in course of export and import stand covered under such legislation. Parliament while defining 'inter-State sale or purchase' has also defined 'import and export' as well as created by way of legislation provided for 'deemed' exports and imports. Therefore, if a transaction of sale or purchase is an intra-State transaction, the same would be governed by OST Act and if transaction of sale or purchase is an inter-State transaction and/or sale, purchase in course of import/export, such transaction would be governed by Union legislation CST Act. It would be relevant to point out herein that once a transaction of sale or purchase is governed either under the State statute, i.e., the Orissa Sales Tax Act or under the Central Sales Tax Act, claim for exemption thereunder and the grant of that claim would depend upon an assessee satisfying the statutory authorities the basis of its claim for exemption and not otherwise.

22. In the present case there is no dispute that the petitioner-company is a 'continuing unit of 1980 policy' and as such is entitled to the benefits of the Industrial Policy Resolution, 1989. There is also no dispute that the petitioner's industry is located under Zone C, and is entitled to seek exemption/deferment of sales tax on finished product. There is also no dispute that the petitioner-company has not availed any sales tax loan under the Orissa Sales Tax Loan Scheme Rules, 1980. Therefore, in terms of IPR 1989 the petitioner-company would be entitled to claim sales tax incentive under the IPR 1989, which includes thereunder, the right for deferment/exemption of sales tax on finished product for a stipulated period. Nowhere in the IPR 1989 any distinction is sought to be made on the basis/manner of sale of such manufactured product. There apparently exists no stipulation as to whether the sale on which exemption is sought has to be within the State of Orissa or in course inter-State or in the course of import or export.

23. After the issuance of IPR 1989, an 'operational guideline' has been issued by the State declaring therein that sales tax benefit available under the said IPR, would be available to those which are 'eligible units' on the basis of a 'certificate granted' to them by the Director of Industries. Under the said 'operational guidelines' all eligible units are required to submit application in statutory forms to the Director of Industries for issue of necessary eligibility certificate. The operational guidelines do not contain any stipulation nor does the form in which certificate is granted, contain any stipulation as to the manner of sale of the manufactured product. We have also perused the 'instructions' contained in letter of the Director of Industries dated May 5,1988, and the 'guidelines for assessment of capacity of industrial units' and at no place do we find any mention or reference to the 'manner of sale' being determinative for the claim of the exemption. In other words, on a perusal of the IPR 1989, the operational guidelines issued, as well as the instructions issued by the Director of Industries for the assessment of capacity of the industrial units, do we find any stipulation imposing any limitation of entitlement on the basis of the manner of sale of manufactured product. In other words, there exists no stipulation that 'exemption' would only be allowed to a manufacturer who produces and sells the goods in any particular manner.

24. In the case at hand, on a perusal of the annexures 4 and 4A to the writ petition it is clear that the authorities who have granted such 'exemption certificate' have indicated the tonnage of production for exemption, limiting the same on the basis of a letter of the Government of India which purported to permit the petitioner-company to sell scrap in the domestic tariff area (the heading in the availability certificate). The essential contents of the said certificate noted here:

Sl. Name of the finished Maximum quantity that can be produced by the industrialNo. products units as per installed capacity.1. High carbon ferro 1506.8 tonnes (Fifteen hundred six point eightchrome/charge tonnes) only charge chrome (rejects) for DTA sale aschrome per L. No. 2 (4)/1/93/2009 dt. 28.9.93 of Govt. of India,Ministry of Commerce (copy enclosed) subject topayment of appropriate duty leviable by custom.Sl. Name of the finished Maximum quantity that can be produced by the industrialNo. products units as per installed capacity.1. High carbon ferro 2338.4 tonnes (Two thousand three hundred thirtychrome/charge eight point four tonnes) for DTA sale or chargechrome chrome (rejects) subject to fulfilment of the terms andconditions as in Lt. No. 2(4)/I-l/93/2768 dt. 30.11.94and No. 2(4)/I-l/93/2009 dt. 28.9.93 (copy enclosed).

25. The third column of the aforesaid certificate reads 'maximum quantity that can be produced by industrial units as per installed capacity'. The installed capacity of the petitioner-company is claimed to be 50,000 metric tonnes as would be evident from the application filed by the petitioner-company. In this view of the matter, the eligibility certificate issued while claiming to be indicating the 'installed capacity', has not done so and instead 1506.8 metric tonnes/and 2338.4 M.T. has been indicated under the said heading, purportedly on the basis of the Government of India letter referred to therein. We fail to understand as to how the aforesaid tonnage indicated in the certificate under the heading, 'maximum quantity that can be produced by the industrial unit' as per the 'installed capacity' can be described as such. The 'capacity assessment' ought to have been carried out by the appropriate authority on the basis of the circular of the Director of Industries dated May 5, 1988 and the guidelines for assessment of capacity of the industrial unit. No such 'capacity assessment' has been brought on record by either party to the proceeding.

26. On the basis of our findings arrived at herein above we are of the view that the principles of law laid down by the honourable Supreme Court in Hansraj Gordhandas's case AIR 1970 SC 755 are fully applicable to the facts of the present case and we are further of the view that from a construction of the language of the exemption notification, i.e., S.R.O. No. 790/1990 (1989 IPR) it is clear that all that is required for claiming exemption is that the goods must be manufactured by the industry claiming exemption within the limits of its 'installed capacity' as may be determined by the Director of Industries. There is no other requirement under the aforesaid notification that the goods manufactured by such industrial undertaking claiming exemption must be sold in the domestic market and not exported. We, therefore, place reliance on the judgment of the honourable Supreme Court and similarly reiterate that it is well-established principle of rule of law that in taxing statute there is no room for any intendment and regard must be had to the clear meaning of the words and therefore, the exemption has to be determined on the basis of language of the notification itself and if a tax-payer is within the plain term of the exemption, it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. In view of the above, we are constrained to note that accepting the contentions advanced by the learned Counsel for the opposite parties would in effect tantamount to reading into the aforesaid notification a 'supposed intention' of the exempting authority, which is clearly impermissible in law laid down by the honourable Supreme Court.

27. In view of our conclusion noted hereinabove, we dispose of the writ application with the following direction:

(a) It is therefore, imperative that capacity assessment, in terms of the guidelines/instructions of the Director of Industries have to be carried out and upon such determination the actual 'installed capacity' should be indicated in the eligibility certificate under the heading 'maximum quantity that can be produced by installed capacity'. In other words, 'installed capacity' has to be determined in the manner contemplated under the guidelines and upon such determination the capacity must be indicated in the appropriate column. While it is a fact that the petitioner claims that its factory has an installed capacity of 50,000 metric tonnes, but in the absence of any available documents in the present proceeding, establishing such a fact, we are of the considered opinion that the 'capacity assessment' needs to be undertaken by the appropriate authorities for such purpose.

(b) Upon the 'capacity assessment' being determined, we direct that the 'eligibility certificate' for sales tax exemption under IPR 1989 be issued on the basis of such determination and in the manner contemplated under the circular as well as guidelines for assessment of capacity of industrial unit issued by the Director of Industries.

(c) The exercise of determination of 'installed capacity' be completed within a period of two months and as a consequence thereof the 'eligibility certificate' for sales tax exemption be issued within one month therefrom.

(d) The connected sales tax proceedings may remain in abeyance for a period of four months for compliance with the direction made hereinabove and shall thereafter be disposed of by the appropriate authorities in terms of the certification that will be issued by the Director of Industries in compliance the directions contained hereinabove.

(e) No order as to costs.

A.K. Ganguly, J.

28. I agree.