THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 26.04.2007 + WP(C) No.14903/2006 PARLE BISCUITS PVT. LTD. (SUGAR DIVISION) ...Petitioner - versus - UNION OF INDIA & OTHERS ...Respondents Advocates who appeared in this case: For the Petitioner : Mr Valmiki Mehta, Sr Advocate with Mr Asheesh Jain and Mr Manmohan Singh For the Respondents : Mr P.P. Malhotra, ASG with Mr Pushkar Sood and Mr Varun Kathuria CORAM:- HON'BLE MR JUSTICE BADAR DURREZ AHMED 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes BADAR DURREZ AHMED, J 1. The petitioner (Parle Biscuits Pvt Ltd) contends that it is a leading biscuit manufacturer having biscuit manufacturing plants in different States and having a total capacity of 4,50,000 MT biscuits per year. The petitioner is aggrieved by the order dated 17.08.2006 passed by the Chief Director (Sugar), Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution, Government of India. The petitioner had represented to the said authority to exempt it from the statutory levy obligation WP(C)14903/06 Page No.1 of 25 of 10% in respect of the sugar manufactured by it. The petitioner had also represented that the operation of the Regulated Release Mechanism of the Government be not made applicable to the petitioner. The first part of the petitioner's request pertains to levy sugar and the second part pertains to non- levy of free-sale sugar. 2. The petitioner seeks the benefit of the Sugar Incentive Scheme, 1997 with regard to its plea of exemption from the stipulation relating to 10% levy sugar. With regard to the free sale sugar or non-levy sugar, the petitioner contends that its sugar unit at village Parsendi, Tehsil Kesarganj, District- Baharaich (U.P.) is entirely for captive consumption and the sugar produced there is not for sale in the market, therefore, it ought to be exempted from the Regulated Release Mechanism of the Government which is operated on the basis of monthly release orders issued under the Essential Commodities Act, 1955 (hereinafter referred to as 'the said Act'). The argument with regard to the non-levy or free-sale sugar is that the provisions of the Regulation pertain to producers of sugar, who, according to the petitioner, are manufacturers who produce sugar for the purpose of selling them in the market and does not cover manufacturers such as the petitioner who produce sugar in their units for the purposes of captive consumption only and not for carrying on the business or trade in sugar. WP(C)14903/06 Page No.2 of 25 3. Earlier, the petitioner had filed a writ petition No.5584/2006 wherein similar prayers, as in the present case, had been made. This court, by an order dated 17.04.2006 passed in the said writ petition directed the respondents to dispose of the representation of the petitioner by a speaking order within four weeks. Thereafter, the petitioner was given an opportunity of hearing. It was contended in their representation and through the submissions before the respondents that the petitioner was a leading biscuit manufacturer in India and that their need for sugar was very high and because of this, they had set up a sugar manufacturing plant at Parsendi for producing sugar to be utilised for their main product-biscuits. It was also represented that they intended to use the entire sugar produced at the said unit at Parsendi for manufacturing biscuits. On the basis of this, it was represented by the petitioner that the petitioner should be exempted from the system of Regulated Release Mechanism being operated by the Central Government. Additionally, it was also represented by the petitioner that the petitioner should be exempted from the statutory levy obligations of 10% also. As noted in the impugned order dated 17.08.2006, the petitioner represented that the following two concessions be granted by the Government:- “i) The petitioner should be exempted from the operation of the Regulated Release Mechanism of the Government; ii) The petitioner should not be subjected to statutory levy obligation of 10%.” WP(C)14903/06 Page No.3 of 25 The first concession was sought on the ground that since the entire production was required for captive consumption for the purposes of manufacturing biscuits, the exemption ought to be granted and the petitioner be allowed to use the sugar so produced by it. The second concession with regard to levy sugar was being claimed on the ground that the petitioner did not fall within the ambit of the provisions of Section 3 (2) (f) of the said Act as the petitioner was not producing sugar for the purposes of selling, but for captive consumption. It was additionally contended that the petitioner was also covered under the Incentive Scheme, 1997 under which sugar mills were exempted from the levy obligation for a period of 5 to 8 years depending upon the location of the sugar mills. 4. With regard to the concession sought in respect of non-levy (free- sale sugar) from the Regulated Release Mechanism, the Chief Director (Sugar), after discussing various provisions of the said Act, came to the conclusion that there is no provision in law enabling him to give exemption to any sugar mill from the Regulated Release Mechanism Policy of the Government and it did not matter as to whether the petitioner sold the non-levy component of the sugar produced by it in the market or used it captively for the production of biscuits. It was observed in the impugned order that the full quota of the monthly sugar released to them could be utilised by the petitioner for its captive consumption WP(C)14903/06 Page No.4 of 25 in the biscuit manufacturing units owned by it or at the option of the petitioner could be sold in the open market. 5. The Chief Director (Sugar) repelled the arguments with regard to levy sugar by observing that the “status” required under Section 3 (2) (f) of the said Act is that a person should be a producer of sugar or should be holding stocks in sugar or in the business of buying or selling of sugar. If he is one such person, then the obligation with regard to levy sugar would have to be met. It was further observed that it is nowhere stipulated that levy sugar can be requisitioned from a producer of sugar only when he is engaged in the business of selling the sugar. It was further held that the petitioner was a producer of sugar within the meaning of explanation given below sub-section (3E) of section 3 of the said Act. 6. With regard to the second submission in respect of levy sugar, it was observed in the impugned order that the petitioner did not fall within the Incentive Scheme, 1997. It was observed that on 26.02.1997, the Central Government announced the Incentive Scheme under the title “Incentive Scheme for the New Sugar Factories and the Exports Projects licenced / to be licenced after 31.03.1994” so as to provide incentives to help entrepreneurs in setting up new and additional capacity for the manufacturing of sugar, expeditiously, on the basis of Letters of Intent / licence issued after 31.03.1994. The incentives WP(C)14903/06 Page No.5 of 25 were to be for a period of 5 or 8 years depending upon the location of the sugar mills. In the impugned order, it is observed that “to be eligible under the Incentive Scheme, a new sugar factory must hold a Letter of Intent / licence issued after 31.03.1994”. With reference to clause 2 (a) of the scheme, it was observed in the impugned order that “new sugar factory” means a sugar factory established for the first time by erection of a new standard sugar plant in accordance with the Letter of Intent / Industrial Licence issued by the Government of India, Ministry of Industries under Section 11 (1) of the Industrial (Development and Regulation) Act, 1951. It was observed that the petitioner did not hold a Letter of Intent / Industrial Licence issued under Section 11 (1) of the Industrial (Development and Regulation) Act, 1951 and as such, it was not covered under the Incentive Scheme of 1997. It was also observed that the Incentive Scheme of 1997 was not applicable to sugar mills which had come up after the delicencing of the sugar industry in August, 1998. The Incentive Scheme, 1997 was, according to the respondents, operational only during the licencing period and did not extend to sugar units / mills which were established, after the delicencing of the sugar industry, upon filing of Industrial Entrepreneur Memoranda (IEM). The petitioner fell in the latter category, being a unit established after the delicencing of the sugar industry in August, 1998. Accordingly, it was held in the impugned order that the petitioner was not covered under the Incentive Scheme of 1997 and, therefore, the petitioner could not be granted exemption from the statutory levy obligation WP(C)14903/06 Page No.6 of 25 and the petitioner was required to sell 10% of its sugar production to the Government at the notified levy sugar price for sale by the Government under its Public Distribution System (PDS). 7. Mr Valmiki Mehta, the learned senior counsel appearing on behalf of the petitioner, made submissions with regard to the concessions / exemptions sought by it in respect of both non-levy sugar as well as levy sugar. With regard to non-levy sugar, he drew my attention straightway to the provisions of sub-section (3E) of section 3 of the said Act. The said provision reads as under:- “(3E) The Central Government may, from time to time, by general or special order, direct any producer or importer or exporter or recognised dealer or any class of producers or recognised dealers, to take action regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar in the manner specified in the direction. Explanation.—For the purposes of sub-section (3D) and this sub-section,— (a) “producer” means a person carrying on the business of manufacturing sugar; (b) “recognised dealer” means a person carrying on the business of purchasing, selling or distributing sugar; (c) “sugar” includes plantation white sugar, raw sugar and refined sugar, whether indigenously produced or imported.” WP(C)14903/06 Page No.7 of 25 8. Mr Mehta submitted that a plain reading of the aforesaid provision would indicate that the Central Government may, from time to time, by general or special order, inter alia, direct any “producer” to take action regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar in the market. He submitted that such directions could be issued only to producers. In this context, he referred to the explanation appended to section 3 (3E) of the said Act which defined “producer” to mean a person carrying on the business of manufacturing sugar. He submitted that the Central Government has been issuing directions purportedly under this provision each month with regard to the stocks that are required to be maintained by producers. These directions are referred to as monthly release orders. He referred to the Release Order dated 01.06.2006 by way of sample to indicate the nature of these release orders. An examination of the Release Order dated 01.06.2006 shows that a large number of sugar units have been listed. The petitioner's unit finds mention at Serial Number 89. It appears that the production of sugar from 01.01.2006 to 15.05.2006 by the petitioner at its unit at Parsendi came to 7276 tonnes. Out of this, the entitlement for free-sale sugar came to 6548.4 tonnes. The entitlement is calculated after deducting 10% of the levy sugar from the total production of 7276.0 tonnes. Out of this entitlement, the petitioner was given a free-sale allocation of 893.5 tonnes and the petitioner was required to maintain a balance of 5654.9 tonnes. Similar release orders are issued month to month. Mr Mehta WP(C)14903/06 Page No.8 of 25 submitted that though the petitioner was left with 6548.4 tonnes, after deducting the levy sugar amount, the petitioner was given a free-sale allocation of only 893.5 tonnes and it had to maintain stocks of 5654.9 tonnes. The outcome of this, according to Mr Mehta, was that the petitioner could only utilise 893.5 tonnes of sugar for its captive consumption in its biscuit manufacturing units and had to purchase the balance requirement of sugar from the open market at higher prices even though it had stocks of 5654.9 tonnes of sugar available with it. He submitted that this is an ongoing process and the amount of stocks has accumulated. He submitted that as of February/March, 2007, the petitioner had accumulated a stock of 1,54,556 bags of 100 kilograms each of sugar which it could not use because of the monthly release orders. 9. Mr Mehta then submitted that the said Act was amended by the Essential Commodities (Amendment) Act, 2003 (Act 37 of 2003). He referred to the Statement of Objects and Reasons of the Amendment Act, 2003. It was indicated therein that the said Act of 1955, inter alia, provided for maintaining or increasing supplies of essential commodities or for securing their equitable distribution and availability at fair prices and for this purpose, the Government could issue orders, regulating or prohibiting the production, supply and distribution of each of the essential commodities and trade and commerce therein so as to achieve the objectives of the Act. The Statement of Objects and Reasons further indicated that the Government had been following a policy of WP(C)14903/06 Page No.9 of 25 partial control of sugar since 1966 and requisitioning a portion of the sugar as levy sugar for the PDS. It was also noted that the Central Government had adopted a Regulated Release Mechanism for release of levy-free sugar (free- sale sugar) by issuing orders under the Sugar (Control) Order, 1966. It was further noted that challenges to the Regulated Release Mechanism in the courts had led to difficulties in its operation resulting in “a decline in sugar prices”, which in turn, had affected the capacity of the producers of sugar to pay cane price to the sugarcane growers. It was further mentioned in the Statement of Objects and Reasons that in order to safeguard the interests of the sugarcane growers, producers of sugar and the general public, to re-stabilise the “market price of sugar” and to overcome the difficulties arising on the said challenge, it had become necessary to incorporate provisions in the Essential Commodities Act, 1955, enabling the Central Government to issue orders or directions to implement the Regulated Release Mechanism Policy of the Government effectively. It is pursuant to these objects and reasons that sub-section (3D) and sub-section (3E) were inserted in Section 3 of the Essential Commodities Act, 1955. It is consequent upon the aforesaid amendments that the monthly release orders are being issued in exercise of powers conferred under Section 3 (3E) of the said Act. In the context of the above-mentioned Statement of Objects and Reasons, Mr Mehta submitted that the object of introducing sub-sections (3D) and (3E) in Section 3 of the said Act must not be lost sight of. The object being that the decline in sugar prices needed to be arrested and the market price of WP(C)14903/06 Page No.10 of 25 sugar required to be re-stabilised keeping in mind the interests of the sugarcane growers, producers of sugar and the general public. It was, therefore, contended by Mr Mehta that the object of the entire operations conducted through the modicum of monthly release orders was the regulation of the price of sugar in the market. He submits that the petitioner produces sugar at its unit at Parsendi only for the purposes of its own use for the manufacture of biscuits at its various units. The sugar produced by it is not intended for the market at all and, therefore, would not enter the market. This being the case, its production of sugar would have no bearing on the price of sugar in the market. He submitted that in essence the fact that the petitioner's production was to be entirely captively consumed meant that the sugar produced by the petitioner would bypass the market system and, therefore, have no effect on the price either way. He submitted that it is because of this also that the petitioner ought to be exempted from the operation of the monthly release Mechanism. 10. Mr Mehta referred to the decision of the Supreme Court in the case of State of Punjab v. Guno Majra Cooperative Agriculture Service Society Ltd: 2000 (9) SCC 210. In that case, the question that arose before the Supreme Court was whether the Agriculture Society was “a dealer” within the meaning of clause 2 (f) of the Fertilizer (Control) Order, 1985 for the purposes of clause 7 of the said Order. Clause 2 (f) defined “dealer” as, inter alia, meaning a person carrying on the business of selling fertilizers and including a WP(C)14903/06 Page No.11 of 25 manufacturer “carrying on such business”. Clause 7 of the order imposed the restriction on persons, including manufacturers, from offering for sale or carrying on the business of fertilizers except in accordance with the terms and conditions of a certificate of registration granted under clause 9. It was not disputed that the Agriculture Service Society was not permitted, under its bye- laws, to sell fertilizers in the open market or to anybody else other than its members. In this context, the Supreme Court held as under:- “3. ... From the aforesaid function of the Society it is apparent that there is no commercial or business activity involved when the Society distributes and supplies fertilisers to its members. The purpose for which the Society has been formed is to help its members in the matter of cultivation. In fact, fertilisers purchased by the Society are for supply and distribution to its members and not for any commercial or business activity. In the absence of any business activity, the respondent Society could not be said to be a “dealer” within the meaning of clause 2 (f) of the Order and, therefore, they were not required to take licence under clause 7 of the Order. We are in agreement with the views taken by the High Court.” 11. Referring to the above, Mr Mehta submitted that since the Supreme Court found that there is no commercial or business activity involved when the society distributed and supplied fertilizers to its members, the Supreme Court came to the conclusion that the society could not be said to be “a dealer”. Similarly, he contended that the entire production of the petitioner at its unit at Parsendi is not meant to be taken to the open market, but is meant only for its own consumption and, therefore, the petitioner cannot be construed as being a WP(C)14903/06 Page No.12 of 25 person “carrying on the business of manufacturing sugar”. Consequently, the petitioner cannot be regarded as a “producer” within the meaning of Section 3 (3E) of the said Act. 12. I am unable to agree with this contention of Mr Mehta because there is clear distinction between the definition of “dealer” as appearing in the case before the Supreme Court and the definition of “producer” as appearing in Section 3 (3E) of the said Act. The word “dealer” had reference to a person carrying on the business of selling fertilizers. The stress was on the business of selling, whereas the word “producer” as appearing in Section 3 (3E) of the said Act has reference to a person “carrying on the business of manufacturing sugar”. The business of selling and the business of manufacturing are entirely different and distinct. A person carrying on the business of selling may have nothing to do with production or manufacture, a person carrying on the business of manufacturing may, likewise, have nothing to do with the business of selling. Insofar as the business of selling is concerned, the activity of sale in the open market is relevant to indicate as to whether any person is engaged in such business or not, but in the case of the business of manufacturing, the activity of selling is not relevant. What is relevant is the activity of manufacture, of bringing into existence a new product. Whether the same is captively consumed or it is sold in the open market would have no bearing on the fact that it has been produced because of a manufacturing activity. It is, WP(C)14903/06 Page No.13 of 25 therefore, clear that the decision in the case of State of Punjab v. Guno Majra (supra) has no application to the present case. 13. Mr Mehta then referred to the decision of the Supreme Court in the case of State of U.P. and another v. Gulshan Sugar & Chemicals Ltd: 1995 (4) SCC 529. In that case, the definition of dealer, as appearing in the Uttar Pradesh Coal Control Order, 1977 came up for consideration. The definition of “dealer” included a person carrying on the business of import, purchase or storage for sale and sale of coal in wholesale. Gulshan Sugar and Chemicals Limited consumed coal for running its factory. Sometimes the quality of the coal supplied was not of the kind required by the said company. The same was, therefore, rejected. Furthermore, a huge quantity of coal dust was also collected during storage, loading and unloading of coal. The coal dust is also produced when coal is broken into pieces of required size. The rejected coal and coal dust being of no use to the said Gulshan Chemicals Ltd was disposed of by it without obtaining any licence under the Uttar Pradesh Coal Control Order, 1977. The question was as to whether the said company was “a dealer” or not? The High Court, in that case, held the said company not to be a “dealer”, inter alia, because it did not carry on the business of sale or storage for sale. The Supreme Court in this context observed as under:- “8. The High Court, in taking the view it did, has referred to the decision of this Court in Manipur Admn. v. M. Nila Chandra Singh: AIR 1964 SC 1533, in which while WP(C)14903/06 Page No.14 of 25 interpreting the meaning of the word business as finding place in Manipur Foodgrains Dealer Licencing Order, it was held that mere selling of articles or storing of the same would not make it a business, as this concept postulates continuity of transaction. It was stated that a casual solitary transaction would not make a person a dealer. There being nothing on record to show if there was continuity in transactions of sale of coal dust or rejected coal by the respondent, we agree with the High Court that the respondent was not in the business of sale or storage for sale of coal. What has been stated in the concluding part of the definition of 'dealer' also lends assurance to the view taken by the High Court.” 14. Mr Mehta, referring to the above extract, submitted that any business requires continuity of transactions and casual or solitary transactions of selling the rejected coal, in the above case, was not considered to be business by the Supreme Court. Similarly, he submitted that the petitioner was not involved in the sale of sugar at all and, therefore, there was no question of the petitioner being involved in the business of manufacturing sugar. 15. This submission of Mr Mehta is also not tenable. The decision in the case of State of U.P. and Another v. Gulshan Sugar (supra) only indicates that before it can be said that a person is involved in the business of sale of any particular article, it must be established that there is a continuity of transactions of sales by the said person. Solitary or casual sales made by such a person would not mean that the person is involved