Dismissed

Sukhamoy Paul v. State of Tripura and 2 Ors.

Tripura HC30 Jun 2017WP(C)/78/2010

Case brief

AI extract

What is this about?

In this writ petition, the petitioner claimed transport subsidies for stone crushing activity under the Central Transport Subsidy Scheme, 1971. The Court held that the condition precedent for the subsidy is that raw materials must be brought into the State of Tripura from other selected areas. Since the petitioner extracted boulder stones within Tripura, the petition was dismissed.

What did the court decide?

Writ petition dismissed with no order as to costs.

Sukhamoy Paul Vs State of Tripura and 2 Ors. — Contract and Commercial Disputes | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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W.P. (C) NO.78 OF 2010

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Sri Sukhamoy Paul,

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Son of Late Sudhangshu Ranjan Paul, Sole proprietor of M/s Paul Enterprise, Near Railway Station, Kumarghat, Resident of Station Road, Tarapur, Silchar – 788 003, District – Cachar, Assam.

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…. Petitioner

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-: Versus :-

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1. The State of Tripura, Represented by the Secretary to the Government of Tripura, Department of Industries & Commerce, Agartala.

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2. The Director of Industries & Commerce, Government of Tripura, Pandit Nehru Complex, Kunjaban, Agartala.

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3. The General Manager, District Industries Centre, Kailashahar, North Tripura.

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4. The Union of India, Represented by the Secretary, Ministry of Commerce & Industry, Department of Industrial Policy and Promotion, Nirman Bhavan, New Delhi – 110001.

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….. Respondents

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B E F O R E

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THE HON‟BLE THE CHIEF JUSTICE

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Counsel for the petitioner : Mr. S.M. Chakraborty, Sr. Advocate, Mr. K. Roy, Advocate.

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Counsel for the respondents : Ms. A.S. Lodh, Addl. GA. Mr. Bidyut Majumder, CGC.

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Date of hearing : 09.06.2017.

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Date of Judgment & Order : 30-6-2017

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JUDGMENT & ORDER

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The sole question which falls for consideration in this writ petition is whether stone crushing activity amounts to manufacturing activity so as to

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W.P. (C) NO.78 OF 2010 Page 1 of 9

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enable the petitioner to avail of the benefits extended under the Central Transport Subsidy Scheme, 1971.

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The facts of the case lie on a narrow compass. The petitioner carries on the business under the name and style of “M/S Paul Enterprise near Railway Station, Kumarghat, North Tripura” and is engaged in stone crushing activity. The petitioner‟s unit has been registered as a small scale industry under the Directorate of Industries vides Registration No. 160401738, which was issued on 30-3-2002. According to the petitioner, it had installed up-to-date machineries by investing a huge amount of money. The petitioner‟s unit started its production on 16-9-2002 as certified by the General Manager, District Industries Centre, Kailasahar, North Tripura on 21-2-2003.

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Under the said Transport Subsidy Scheme launched by the Ministry of Industries, Government of India, it was held out that various schemes would be provided to manufacturing and industrial units in the category of small scale industries in the North East Region and that it was declared therein, inter alia, that all new industrial units located in the selected areas would be eligible for transport subsidy equivalent to 50% of the transport cost of both raw materials as well as finished goods. It was further declared by the Notification dated 29-9-2005 that the Government of India might provide for appropriate arrangement for payment of the transport subsidy directly to the units after a single stage as directed by the State Level Committee with the representation of the Central Government, particularly, from the Department of Expenditures. However, by the Notification dated 28-7-1993, the earlier period for granting the subsidy was reduced from 10 years to 5 years from the date of commencement and this arrangement came into force with effect from 1-9-1993. Under the same Scheme, there is also a provision for granting Central Interest Subsidy to the extent of 3% on the working capital advanced to them by the Schedule Banks or Central

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W.P. (C) NO.78 OF 2010 Page 2 of 9

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Financial Institutions for a maximum period of 10 years from the date of commencement of production. However, no arguments were advanced on the entitlement of the petitioner to Central Interest Subsidy and Central Investment Subsidy. Therefore, I refrain from deciding these two issues.

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It is the case of the petitioner that acting upon the promise of the State respondents under the said Scheme that such subsidy would be granted, it set up the stone crushing unit by altering its position. According to the petitioner, after commencement of the production, it has been striving to get those subsidies as the appropriate authority duly declared its unit to be eligible for such subsidy by granting pre-registration certificate, namely, industrial unit eligible for claiming Central Transport Subsidy on 21-2-2003. The petitioner duly submitted its claim for the transport subsidy for the period commencing from September, 2002 to March, 2003 up to the period commencing from 1-1-2004 to 31-3-2004 to the respondent No. 3 (General Manager, District Industries Centre, Kailasahar). To cut the story short, the applications of the petitioner were never acceded to whereupon this writ petition has been filed for appropriate directions.

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Resisting the writ petition, the State-respondents in their affidavit state that though the petitioner started its unit as production unit, yet it shifted its industry from manufacturing activity to job work activity, which activity is not eligible for availing any benefits under the Transport Subsidy Scheme. It is submitted by the answering respondents that the Scheme clearly indicates that the unit availing of the subsidy cannot discontinue its production within five years from the date of commencement of commercial production, but the activity of the unit was shifted from manufacturing activity to job work activity, which is impermissible. When it was confirmed that the unit was doing only job work, it lost its industrial character as manufacturing activity. It is further submitted by the answering respondents that the petitioner submitted its claims for the period prior to

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W.P. (C) NO.78 OF 2010 Page 3 of 9

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the production stage of the unit. It is also pointed out that on official visit on the site on 7-12-2006, the unit was found to be indulging in job work. The State Level Committee in the meeting held on 19-12-2007 recommended the transport subsidy in favor of the unit of the petitioner with respect to Agarbati Bamboo stick manufacturing, but not for its unit engaging in stone crushing activity. The petitioner is, therefore, not entitled to the benefit under the Transport Subsidy Scheme. These are the sum and substance of the case of the answering respondents.

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At the outset, it may be noted that the learned counsel for the rival parties are not at issue on the meaning of the expression “job-work activity” referred to by the respondent authorities in their counter-affidavit and I, therefore, take it that the expression is “job-work activity” used to mean and include “stone crushing activity” of the unit of the petitioner. Coming now to the meat of the matter, by the Notification dated 23-7-1971, the Central Government in the Ministry of Industries launched the scheme known as “The Transport Subsidy Scheme, 1971” (“the Scheme” for short) for the grant of subsidy on the transport of raw materials and finished goods to and from certain selected areas with a view to promoting the growth of industries in the selected areas including the North Eastern States. The Scheme is made applicable to all industrial units (barring plantations, refineries and power generating units) both in the public and the private sectors irrespective of their sizes in the selected areas (A) (B) (C) and (D). As per Clause (4)(a), the term “industrial unit” means an industrial unit where a manufacturing programme is carried on. Clause (b) defines “New Industrial Unit” to mean an industrial unit which has set up manufacturing capacity and comes into production on or after the date of commencement of the scheme. Clause (c) defines “Existing Industrial Unit” to mean an industrial unit which set up manufacturing capacity and commenced production before the date of commencement of the Scheme. The term “selected areas (A) means the State of Jammu and Kashmir and

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W.P. (C) NO.78 OF 2010 Page 4 of 9

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the North Eastern region comprising of the States of Assam, Meghalaya, Manipur, Nagaland, Tripura, etc. We are not concerned with the other selected areas, which can be ignored by us. The term “raw materials” is defined by Clause (h) to mean any raw material actually required and used by an industrial unit in its manufacturing programmes approved by the Government of India/Union Territories in which the industrial unit is located or by the Govt. of the State. The term “finished goods” is defined by Clause(j) to mean the goods actually produced by an industrial unit in accordance with the manufacturing programme approved by the Govt. of India and or the Govt. of the State/Union Territory in which the industrial unit is located. Clause 6(i), (ii) and (iv) of the Scheme are important for our purpose and the same read thus:

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“6. Details of the scheme:- (i) A transport subsidy will be given to the industrial units located in the selected areas in respect of raw materials which are brought into and finished goods which are taken out of such areas. (ii) Industrial units will not be eligible for the transport subsidy for internal movement of raw material and finished goods within the state of Jammu and Kashmir, the North Eastern region, the State of Himachal Pradesh, the Hilly areas of Uttar Pradesh, the Union Territories and Andaman Nicobar Island and Lakshadweep and the state of Sikkim. (iii) * * * (iv) In the case of North Eastern Region comprising of the states of Assam, Meghalaya, Nagaland, Manipur, Tripura and the Union Territories of Arunachal Pradesh and Mizoram, the transport subsidy be given on the transport costs between Siliguri and the location of the industrial units in this State/Union Territories. While calculating the transport costs of raw materials, the cost of movement by railway from Siliguri to the railway station nearest to the location of industrial unit and thereafter the cost of movement by road to the location of industrial unit will be taken into account. Similarly, while calculating the

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W.P. (C) NO.78 OF 2010 Page 5 of 9

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transport costs of finished goods, the costs of movements by road from the location of industrial unit to the nearest railway station and thereafter the costs of movement by rail to Siliguri will be taken into account. In case of North Eastern Region, for raw materials moving entirely by road or other mode of transport, the transport costs will be limited to the amount which the industrial unit might have paid had the raw materials moved from Siliguri by rails up to the railway station nearest to the location of the industrial unit and thereafter by road.

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Similarly, in the case of movement of finished goods moving entirely by road or other mode of transport in the north eastern region, the transport costs will be limited to the amount which the industrial unit might have paid, had the finished goods moved from the location of the industrial units to the nearest railway station by the road and thereafter by rail to Siliguri.”

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(Italics mine)

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Sub-clause (i) of Clause 6 of the Scheme stipulates that a transport subsidy will be given to the industrial units located in the selected areas in respect of raw materials which are brought into and finished goods which are taken out of such areas . As already noticed, selected areas, in the context, can only mean those areas referred to in Clause (4)(f) of the Scheme, namely, the North Eastern Region comprising of the States of Assam, Meghalaya, Manipur, Nagaland and Tripura and the erstwhile Union Territory of Arunachal Pradesh. Thus, the sine qua non for availing of the benefits of the Transport Subsidy Scheme is that the raw materials must be brought into the selected areas, that is, in our case, into the State of Tripura . If the raw materials are not brought into the State of Tripura and they are available in the State, the industrial units will not be eligible for the subsidy even if they are used for manufacturing activity. In other words, even the transport costs of raw materials, which were brought into the State of Tripura from the other sister States such as Assam or Meghalaya or the transport costs of finished

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W.P. (C) NO.78 OF 2010 Page 6 of 9

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goods taken out of Tripura to other sister States were not entitled to the transport subsidy earlier in terms of this Notification. As long as the raw materials were brought into the State of Tripura from other States including its sister States of the North East Region and the finished goods were taken out of the State of Tripura to other States including the sister States of the North Eastern Region, such industrial units engaged in manufacturing activities will not be entitled to the transport subsidy in respect of such raw materials and finished good. The view taken by me here is fortified by the subsequent liberalization of the Scheme in its applicability to the North Eastern Region contained in the latter No. 11/1/85-DBA-II, dated 17-31987 of Central Government in the Ministry of Industries, the relevant part whereof reads thus:

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„No. 11/1/85-DBA-II GOVERNMENT OF INDIA Ministry of Industries Deptt. of Industrial Development

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New Delhi, the 17^th March, 1987

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The Secretary, Industries Department

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Government of __________

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Sub: Transport Subsidy Scheme, 1971 – Applicability to North Eastern Region – Liberalisation thereof.

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Sir,

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There has been a request that the Transport Subsidy Scheme should further be liberalised to give fillup for the development of Industries in the North Eastern Region. Accordingly, it has been decided to make the following further liberalization in the Transport Subsidy Scheme applicable to North Eastern Region only comprising the States of Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh:-

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W.P. (C) NO.78 OF 2010 Page 7 of 9

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(i) Transport Subsidy @ 90% would now also be admissible on the movement of “raw materials” from one State to another within the North Eastern Region. Transport subsidy would, however, not be admissible for movement of „finished goods‟ within the States of North Eastern Region. The Transport Subsidy on „finished goods‟ would, however, continue to be admissible on their movement **outside the North Eastern Region. (ii) * * * 2. * * ***

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Yours faithfully,

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Sd/- G. Venkataramanan

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Joint Secretary to the Government of India.”

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Simply put, the Liberalized Transport Subsidy Scheme extracted above stipulates that transport subsidy @ 90% would become admissible on the movement of “Raw materials” from one State to another within the North Eastern Region and that the Transport Subsidy would, however, not be admissible for movement of „finished goods‟ even within the States of North Eastern Region. This plainly makes it clear that only the movements by train or road of those raw materials which are brought into the State of Tripura from the selected areas or otherwise are entitled to avail of the benefits under the Scheme. However, in the case of movement of “finished goods” within the North Eastern Region, the liberalized Scheme is not applicable. In other words, the transportation costs of raw materials which are available in the State of Tripura and which are not brought into the State of Tripura are not entitled to the benefit of the transport subsidy under the Scheme.

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W.P. (C) NO.78 OF 2010 Page 8 of 9

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Coming now to the facts of the instant case, it is not the case of the petitioner that the raw materials for the stone crushing activity, assuming without admitting that this forms a part of manufacturing activity, were brought into the State of Tripura from the non-selected areas or even from the North Eastern Region; the raw materials for the stone crushing activity i.e. boulder stones, etc. were apparently extracted from within the State of Tripura itself. In other words, no transportation of such raw materials from non-selected areas or selected areas ever took place; this is never the case of the petitioner either. That being the indisputable fact, irrespective of whether the boulder stones used by the petitioner for the stone crushing activity are raw materials or not, or whether the stone crushing activity of its unit is a manufacturing activity or not, the condition precedent for availing of the benefits of transport subsidy, namely, the raw materials used in the stone crushing activity must be brought into the State of Tripura from selected areas or otherwise, is not satisfied by the petitioner. Once it is held that there is no evidence to show that the raw materials used for the stone crushing activity of the unit of the petitioner were not brought into the State of Tripura, the petitioner cannot be held entitled to the benefits of Transport Subsidy Scheme. The respondent authorities have rightly rejected its application. No other issue survives for consideration.

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For what has been stated on the foregoing, this writ petition is devoid of merit and is, therefore, dismissed. However, there shall be no order as to costs.

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CHIEF JUSTICE

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W.P. (C) NO.78 OF 2010 Page 9 of 9

Sukhamoy Paul v. State of Tripura and 2 Ors.

Case brief

What is this about?

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Sukhamoy Paul v. State of Tripura and 2 Ors.

Case brief

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