THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD W.P. Nos. 15939 and 18674 of 2005 and W.P. Nos. 4724 and 4725 of 2006 % 03-02-2010. #M/s. Kalyan Roller Flour Mills Pvt. Ltd. & others ...Petitioner VERSUS $Central Power Distribution Company of A.P. Ltd., Hyderabad & others. ...RESPONDENT < GIST: > HEAD NOTE: !Counsel for petitioners: Sri M/s. C. Kodanda Ram ^Counsel for Respondent: G.P. for Industries & Commerce ? Cases referred: 1. 2006 (6) ALD 442 2. Vol.92 STC 110 THE HON’BLE SRI JUSTICE C.V. RAMULU W.P. Nos. 15939 and 18674 of 2005 and W.P. Nos. 4724 and 4725 of 2006 COMMON ORDER: In all these writ petitions, common questions of fact and law arise for consideration; therefore, they are disposed of by this common order. W.P. No. 4724 of 2006 is filed with prayer as follows: “For the reasons stated in the accompanying affidavit, the petitioners herein pray that this Hon’ble Court may be pleased to issue an order or orders, writ more particularly one in the nature of writ of Mandamus declaring the letter of 1st respondent issued vide Lr.No.1810/A3/2005 dated 16.9.2005 cancelling the eligibility certificate issued to the petitioner for availing power tariff concession/market cess exemption as arbitrary, illegal and in violation of the principles of natural justice and also Art. 14 of the Constitution of India and pass such other order or orders as this Hon’ble Court may deem fit and proper in the interest of justice”. W.P. No. 4725 of 2006 is filed with prayer as follows: Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or orders, writ more particularly one in the nature of writ of mandamus declaring the letter of the 1st respondent issued vide Lr.No.1810/A3/2005 dt.16-9-2005 canceling the eligibility certificate issued to the petitioner for availing power tariff concession/Market Cess exemption as arbitrary, illegal and in violation of the principles of natural justice and also Art.14 of the Constitution of India and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice. W.P. No. 15939 of 2005 is filed with prayer as follows: Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or orders, writ more particularly one in the nature of writ of mandamus declaring the action of the respondents in not extending the benefit of G.O.Ms.No.333, dated 14-11-2003 issued by the Government of A.P. Department of Industries and Commerce to the petitioner company and consequently direct them to allow concessional rate of tariff @ Rs.1.75ps/Unit on the electricity consumed by the petitioner company in terms of the above said G.O and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice. W.P. No. 18674 of 2005 is filed with prayer as follows: Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or orders, writ more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in not extending the benefit of G.O.Ms.No.333 dated 14.11.2003 issued by the Government of A.P. Department of Industries and Commerce to the petitioners and consequently direct them to allow concessional rate of tariff @ Rs. 1.75 Ps/unit on the electricity consumed and exempt from paying market cess on the procurement of raw material to the petitioners in terms of the above said G.O. and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice. For the purpose of convenience, the facts as narrated in W.P. No. 4724 of 2006 may be stated as under: According to the petitioner, it is a Company, incorporated under the provisions of the Companies Act, 1956, inter alia, engaged in the business of decardicating and G.N. Crushing. The petitioner- company got itself registered as a Small Scale Industry vide Registration No.01/02/2613/PMT/SSI on 9.4.1986 with 1st respondent. The petitioner- company applied for electricity supply to the erstwhile APSEB and power connection was given with consumer No.ISC 2632. The petitioner-company comes under the category of Food Processing Industry. The Government of India, Ministry of Food Processing Industries, have announced schemes for accelerating the growth of the Food Processing Sector in the States for resolving the problem of agricultural surplus, wastages and creation of rural job and for better pricing to the farm products. In this process, Government of India gave so many incentives to encourage the Industry and in order to prepare the scheme effectively, the respective State Governments were requested to evolve State policy for Food Processing Industries. Pursuant to the above, the State Government has formulated its policy - “Food Processing Industries” and accordingly issued G.O.Ms.No.333 dated 14.11.2003. In terms of this G.O., various Food Processing Industries were brought within its purview for the purpose of entitlement of incentivesconcessions and other benefits. Further, Clause 4(2) of the G.O. deals with incentives and concessions that are provided for these industries like power subsidy, by extending supply at concessional tariff, concession of stamp duty for land registration, exemption from payment of market cess, sales tax benefit etc. The petitioner-company being a manufacturer of wheat products, it comes within the purview of G.O.Ms.No.333, as such, it is entitled to incentives and concessions offered vide G.O.Ms.No.333 dated 14.11.2003. The Government of A.P. intended to extend electricity tariff, at concessional rate of Rs.1.75 ps. per unit, for a period of five years and the differential tariff (between the actual cost as decided by the APERC and the concessional rate fixed by the Government) has to be paid by the concerned DISCOM as subsidy. The petitioner-company being eligible for this concessional rate of tariff, it had accordingly applied for eligibility certificate to 1st respondent for claiming electricity tariff at Rs.1.75ps. per unit for a period of five years under G.O.Ms.No.333 Industries & Comm.(C&EP) Dept., dated 14.11.2003. A certificate to this effect was issued vide E.C.No.1759/A6/2004 dated 10.12.2004. Clauses 5 to 7 of the said G.O. empower Department of Industries to issue eligibility certificates to the concerned Food Processing Industries Units. Further, Clause 8 specifies that all the concessions except capital subsidy provided under the said G.O. shall be extended to the existing Units, treating them as new Units. As such, though the petitioner-Unit is established in 1986, it is entitled for all the concessions. According to the petitioner, this concession was extended for the betterment of the industrial growth in the field of food processing, for the existing as well as future ones. Having obtained eligibility certificate from 1st respondent, the petitioner requested the Superintending Engineer, Central Power Distribution Company of A.P. Ltd. to supply electricity at concessional rate of tariff i.e. Rs.1.75ps. per unit in terms of G.O.Ms.No.333 dated 14.11.2003, for a period of five years. However, the Superintendent Engineer, Central Power Distribution Company of A.P. Ltd., informed the petitioner that as no orders were received from the higher authorities to allow concessional tariff rate at the rate of Rs.1.75ps. per unit, the HT CC bill was asked to be paid, as usual, at normal rate. According to the petitioner, in the present market scenario, Food Processing Industry is facing lot of problems and in order to meet the competition in the global market, but for the schemes, incentives and concessions offered by both the Central and State Governments, it would be very difficult for the local industry to survive any more. The petitioner- company is no exception for this and in fact the Unit is located in the most backward districts of the country and is struggling hard to survive because of severe financial problems. The petitioner-Unit is employing 50 persons and there are about 50 families dependent on it, as such, unless the petitioner-company is supported with all the concessions/incentives for which it is legitimately eligible, running of the Unit would be difficult. In fact, petitioner having no other alternative, filed W.P. No. 18674 of 2005 (one of the writ petitions herein) seeking extension of the benefits under G.O.Ms.No.333 dated 14.11.2003 issued by the Government of A.P. and to direct the respondents to allow concessional rate of tariff. While the matter stood thus, the petitioner received letter No.1810/A3/2005 dated 16.9.2005 cancelling the eligibility certificate issued for power tariff concession/market cess, which is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India. According to the petitioner, 1st respondent is empowered only to issue eligibility certificate under G.O.Ms.No.333 dated 14.11.2003 to those who fulfill the conditions therein and the respondent is not empowered to cancel the same under the said G.O; as such, 1st respondent had acted in haste and beyond the power conferred on him. The respondents are estopped from canceling the eligibility certificate once issued for power tariff concession which is promised for a period of five years i.e. w.e.f. 14.11.2003. Therefore, this writ petition. The respondents have filed counter affidavit denying the allegations made in the writ petition. It is further asserted that the SLC, at its meeting held on 24.6.2004, has decided that the existing units can avail the concession power tariff from the date of issue of orders from the energy department for a period of five years and in case of new food processing units, they can avail the concession power tariff for five years from the date of commencement of production or from the date of issue of orders by energy department, whichever is later. As the certificate which was issued to the petitioner was not in tune with the orders issued by the Government as well as the decision taken by the SLC at its meeting held on 24.6.2004, the 2nd respondent vide Memo No.20/1/2003/918 dated 6.5.2005 instructed 1st respondent to cancel the eligibility certificates issued earlier and accordingly the said eligibility certificates have been cancelled by the DLC, chaired by the District Collector, Anantapur. Though the Government of Andhra Pradesh has issued G.O.Ms.No.333 dated 14.11.2003 extending various concessions like power tariff, market-cess exemption to the food processing industries etc., thereafter the State Government issued G.O.Ms.No.179 superseding G.O.Ms.No.333 & 55, as such, the petitioner-Unit is not entitled for any incentives. Further, the petitioner-Unit is not entitled for power tariff concession w.e.f. 14.11.2003 as they are entitled for the same from the date of commencement of production or the orders issued by the Central Power Distribution Company and they have not received any orders from the Government as well as 2nd respondent. As there are no orders passed by the CPDCL, the petitioner is not entitled for any incentives. The writ petition is devoid of merit and the same is liable to be dismissed. Heard both sides. From the above, the only question that arises for consideration in this writ petition is whether G.O.Ms.No.179 dated 22.6.2005 supersedes G.O.Ms.No.333 dated 14.11.2003 with retrospective effect and any benefits extended in favour of the petitioner under G.O.Ms.No.333 dated 14.11.2003 gets obliterated in view of issuance of G.O.Ms.No.179? Admittedly, under G.O. Ms.No.333 dated 14.11.2003, the Government of A.P. has extended certain concessions and incentives for the sustenance of Food Processing Industry and a special provision was also made for Food Processing Industries. Clause 3 (8) of the said G.O. reads as under: “All the concessions (except Capital Subsidy) provided under the State Policy on Food Processing Industries, shall be extended to the existing units treating them as new units”. In view of the same, the petitioner intended to avail concessional rate of tariff at the rate of Rs.1.75ps. per unit for the electricity consumed by the petitioner-company and, accordingly, after having obtained an eligibility certificate as required from the Industries Department on 15.7.2004, applied to the Superintending Engineer, Operation Circle, CPDCL, Ananthapur, asking them to extend the concessional tariff of Rs.1.75ps. per unit from 14.11.2003. However, the respondents have not considered their case and, further, 1st respondent cancelled the eligibility certificate issued to the petitioner, vide proceedings dated 16.9.2005. The contention of the respondents is that the concession extended in G.O.Ms.No.333 dated 14.11.2003 for a period of five years for all the existing units is purported to have been superceded under G.O.Ms.No.179 dated 22.6.2005. The said G.O. reads as under: “G.O.Ms.No.179 Industries & Commerce (FP) Department dated 22.6.2005. 1. G.O.Ms.No.333 Industries & Commerce (C&EP) Department dated 14.11.2003. 2. G.O.Ms.No.55 Industries & Commerce (C&EP) Department, dated 5.3.2004. 3. From the Commissioner of Industries, Andhra Pradesh, Hyderabad Single File No.30/3/2005/0565 dated 20.6.2005. ORDER: In the GO first read above, orders were issued on Food Processing Policy of Andhra Pradesh State and extending various incentives and concessions to the Food Processing Industries in the State. In the G.O. second read above operational guidelines were also issued for implementation of the Food Processing Policy in the State. 2. The Commissioner of Industries, Andhra Pradesh, in the single file third read above has reported that some of the Food Processing Industries in the State have approached the High Court of Andhra Pradesh. Keeping in view of the all consequences in view, the Commissioner of Industries, has requested the Government to consider the earlier policy and issue necessary orders on the Food Processing Policy of the Andhra Pradesh. 3. Government, after careful examination of the matter in detail, have decided to evolve a food processing policy of Andhra Pradesh State by superseding the orders issued in the G.O. first read above and the operational guidelines issued in the GO second read above. 4. Accordingly, in supersession of the orders issued in GO first read above and consequent operational guidelines issued in GO second read above, approved the fresh State policy on “Food Processing Industries” as detailed below. 1. Coverage: The policy will cover the following activities and areas: HORTICULTURE: Fruit & Vegetable processing Fruit based ready to serve beverages. Tissue culture Laborators/Green houses/Green house nurseries/Mushroom Laboratories/Seed production units based on modern scientific methods to meet industry standards. Wine making. AGRICULTURE: Food grain milling/processing. Using modern technology and equipment (except Rice Mills)Alcohol for blending with fuels. ANIMAL HUSBANDRY. Dairy products. Processing of poultry, eggs, meat and meat products. FISHERIES: Fish processing including shrimps. AGRO FOOD PROCESSING INDUSTRIES: Bread, Oilseed meals (edible), breakfast, foods, biscuits, confectionery, including cocos processing and chocolate, oil expellers and refining, malt extract, protein isolates, high protein foods, weaning foods, extruded/other ready to eat food products and all other processed foods (excluding non-packed food items served in Hotels and Restaurants of all categories) ALLIED INDUSTRIES: Cold Storage unit. Refrigerated Transport vehicles containers; (excluding second hand Refurbished vehicles/contains) Units manufacturing food grade packaging materials for food processing industry. Units engaged in packaging, canning and bottling of process foods. Units manufacturing additives/preservatives/colors/fragrances for the processed food industry. Biotechnology industries. 2. SINCENTIVES AND CONCESSIONS: Reimbursement of cost of power for all eligible units shall be allowed @ Re.1.00 per unit as against Re.0.75 per unit as provided for the other eligible industries under IIPP. 5. The Fresh Food Processing Policy will come into effect from 1.4.2005. The reimbursement of cost of power shall be extended for a period of five years from the date 1.4.2005. The Food Processing units of those, which have gone into commercial production after 14.11.2003, shall be eligible for reimbursement of cost of power. 6. The Commissioner of Industries shall be the Nodal Agency to implement the fresh policy. 7. The State Level Committee of the Industries Department shall decide and finalise all cases relating to the incentives/benefits to the Food Processing Industries in the State. 8. The Commissioner of Industries, Hyderabad shall evolve a separate coding (Bar Coding) procedure for Food Processing Industries in the State. 9. Operational guidelines for the implementation of the fresh Food Processing Policy shall be issued separately”. From a perusal of the above G.O., it is seen that it was issued after reviewing the earlier policy, as the Government of Andhra Pradesh decided to evolve a fresh food processing policy for the State. At para 5, it is stated that the fresh food processing policy will come into effect from 1.4.2005. The reimbursement of cost of power shall be extended for a period of five years from the date 1.4.2005. The Food Processing units, which have gone into commercial production after 14.11.2003, shall be eligible for reimbursement of cost of power. But, a reading of the entire G.O. does not disclose as to what should happen to the eligibility certificates already issued to the existing food processing units in the State of A.P. and whether they stand cancelled or become invalidated etc. When a similar question arose before this Court in G.S. Oils Ltd., Adilabad v. GM, District Industries Centre, Adilabad[1], this Court held: “It is no doubt true that in the light of the clause referred to supra in G.O.Ms.No.55, the learned Judge came to the conclusion that giving eligibility certificate as required under G.O.Ms.No.333 dated 14.11.2003 is essential for getting the incentives. The writ petitioners made applications on 29.5.2004, 24.4.2004 and 6.5.2004 respectively. It is not the case of the respondents that the policy decision promulgated under G.O.Ms.No.179 superseding the prior G.Os would have any retrospective operation. Even otherwise, the applications were made as per G.Os., the petitioners were under the fond hope and expectation that they would be entitled to these incentives and nothing was heard from the side of the respondents side as specified in the respective affidavits filed in support of the writ petitions. In the light of the view expressed by the Apex Court in Commissioner of Central Excise v. M.P.V. & Engineering Industries (2003 (5) SCC 333) and also in the light of the view expressed by the learned Judge of this Court in Writ Petition No.1954 of 2005 dated 30.6.2006 (Sukhjit Starch Mills Limited’s case), which is latter in point of time wherein reliance was placed on the decision of the Division Bench of this Court in P.P.R. Industries v. Commissioner of Industries (1993 APSTJ Volume 17 P.91), this Court is of the considered opinion that the petitioners are entitled to the incentives or benefits as per G.O.Ms.No.333 dated 14.11.2003 and G.O.Ms.No.55 dated 5.3.2004 till the date of issuance of G.O.Ms.No.179 from the respective dates of the applications dated 29.5.2004, 24.4.2004 and 6.5.2004 respectively”. Further, in another reported decision in P.P.P. Industries v. Commissioner of Industries and another[2], it was held: “The petitioners are entitled to “sales tax holiday” for a period of five years subject to a ceiling of Rs.35,00,000 on sales tax during the entire holiday period. We further hold that restriction or reduction of such eligibility to the sum of 100 per cent of the capital investment under clause 6B (ii) of the Manual of Instructions or the eligibility fixed by the District Committee or the orders of assessment are illegal and unenforceable. There will be a consequential direction that the respondents shall give full effect to the eligibility of the petitioners in terms of clause 3 of G.O.No. 498 to the extent mentioned above for the period provided not exceeding five years and that the respondents shall not demand or collect sales tax from the petitioners except after granting the benefits of tax holiday in the amount and within the period as mentioned above”. From the above, it is seen that firstly G.O.Ms.No. 179 dated 22.6.2005 has no retrospective effect and the incentives extended earlier under G.O.Ms.No.333 dated 14.11.2003 do not stand cancelled or become invalidated. Secondly, the tariff, something like tax holiday, which was already extended for the sustenance of the existing food processing units, cannot be said to have been taken away under G.O.Ms.No.179. Further, no invidious discrimination could have been made between the existing and the fresh food processing units in so far as availing the concessions of tariff at the rate of Rs.1.75ps. per unit. In fact, the very concept of extending incentives and concessions was for the sustenance of the industry already existing. The very G.O.Ms.No.333 dated 14.11.2003 was issued after making a study of the existing industries and their plight in facing difficulties in their sustenance and growth as food processing industries. Therefore, it cannot be said that the existing units are not entitled for the incentives and concessions made in G.O.Ms.No.333 dated 14.11.2003 or that the incentives and concessions already extended in favour of the petitioner stand either cancelled or invalidated. Learned standing counsel appearing for respondents 2 and 3 strenuously contended that whether any concession is extended as to the tariff rate to the Food Processing Industry or an eligibility certificate has been issued by the Industries Department, it is not binding on respondents 2 and 3 and respondents 2 and 3 are bound by the orders issued by the Electricity Regulatory Commission and unless and until the said G.O.Ms.No.333 has been approved by the Electricity Regulatory Commission, the petitioners are not entitled for any such concession etc. under Section 65 of the Electricity Act, 2003. This aspect need not be gone into in a writ petition like this. All the instructions issued by the Government are binding on respondents 2 and 3 and it is for the respondents 2 and 3 to go and seek ratification or permission from the Electricity Regulatory Authority in this regard, if necessary. For all the above reasons, the impugned proceedings dated 16.9.2005 are liable to be set aside as arbitrary and illegal and they are accordingly set aside. The writ petition is allowed. No order as to costs. W.P. No.4725 of 2006: In view of the discussion made and the reasons stated in W.P. No. 4724 of 2006, the impugned proceedings dated 16.9.2005 herein are also required to be set aside as arbitrary and illegal and they are accordingly set aside. The writ petition is thus allowed. No order as to costs. W.P. Nos. 15939 and 18674 of 2005: In view of the discussion made and the reasons stated in W.P. No. 4724 of 2006, the respondents are directed to extend the benefit of G.O.Ms.No. 333 dated 14.11.2003 to the petitioners herein and to allow concessional rate of tariff at Rs.1.75ps. per Unit on the electricity consumer by the petitioners/companies, in terms of G.O.Ms.No.333 dated 14.11.2003. The writ petitions are accordingly allowed. No order as to costs. JUSTICE C.V. RAMULU. Date:03-02-2010. NOTE: L.R. COPY BE MARKED. (BO) MVB. [1] 2006 (6) ALD 442 [2] Vol.92 STC 110