1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4450 OF 2003 M/s. Technocraft Industries (India) Limited & Anr. ..... Petitioners. V/s State of Maharashtra & Ors. ..... Respondents. ------ Mr. R.D. Dhanuka i/b Ms. A.R. Dhanuka for the petitioners. Mr. A. Patel, AGP for Respondent Nos. 1 and 2. ------- CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATE : 28th February, 2008. P.C.: 1. By this Petition, the petitioners challenge the communication dated 08/01/2002 from the Assistant General Manager of Respondent No.2, informing the Petitioners that the Petitioners are not entitled to refund of electricity duty under the 1993 Package Scheme of Incentives because though the Petitioner No.1 is 100% Export Oriented Unit, it is not a new industrial unit set up in the Taluka and, therefore, Petitioners are not entitled to refund of Electricity Duty under para 5.4 of the 1993 Scheme. 2. We have heard the learned Counsel for both sides. Perusal of the communication dated 08/01/2002 shows that. for rejecting the benefits of the incentives to the Petitioners, the Respondent No.2 has 2 relied on para 5.4 of the 1993 Scheme. One more aspect is clear from the reading of the communication dated 08/01/2002 that it is not in dispute that the Petitioner No.1 is 100% Export Oriented Unit. Paragraph 5.4, which is relevant for the present purpose and which has been relied on, reads as under:- "5.4 REFUND OF ELECTRICITY DUTY. An Eligible New Electronic Hardware Technology Park (EHTP) Unit and a 100% EOU will be entitled to refund of Electricity Duty in the form of a grant for a period of 5 years in A/B/C areas. In respect of an Eligible New Unit in D/D+ areas and prestigious Unit, however, the period will be 7 years and 10 years respectively." Thus, it is clear from the perusal of paragraph 5.4 that the Eligible New Electronic Hardware Technology Park (EHTP) Unit and a 100% EOU is entitled to refund of Electricity Duty. The Government, by Resolution dated 06/07/1994, amended the 1993 Package Scheme of Incentives. One of the amendments was, addition of explanation below paragraph 5.4. That explanation reads as under:- "Explanation: An existing 100% EOU will also be entitled for benefits under this clause, in such cases, the eligibility period will commence from 1st October, 1993." 3 3. Perusal of the above quoted explanation shows that the existing 100% Export Oriented Unit is entitled to the benefits of the Scheme for the period commencing from 01/10/1993. Thus, it appears that even if a Unit is not a new Unit but is already in existence, then also, it may be entitled to the benefits of the Scheme. Perusal of the Petition shows that this contention has been specifically raised by the Petitioners in para 21 of the Petition. Affidavit-in-reply has been filed on behalf of the respondents but that reply shows that there is no reply given to what is contained in paragraph 21 of the Petition. In the affidavit, a stand has been taken that, as, in terms of the provisions of paragraph 3.10, the Petitioner No.1 cannot be termed as a new Unit, though it may be 100% Export Oriented Unit, it is not entitled to the incentives of the 1993 Scheme. In our opinion, the explanation that is added in 1994 below clause 5.4 was relevant for deciding the application of the Petitioner for refund of the Electricity Duty under the 1993 Scheme and that explanation has been totally excluded from consideration while rejecting the application of the Petitioners. In, our opinion, therefore, the application of the Petitioners deserves to be reconsidered in the light of relevant Government Resolutions and the Scheme. The learned Counsel appearing on behalf of Respondent Nos. 1 and 2, however, stated that, now, the application of the Petitioners can be reconsidered only by the Joint Director of Industries. In this view of the matter, therefore, in our opinion, the following order would meet the ends of justice:- 4 O R D E R (i) The communication dated 08/01/2002 challenged in the Petition, rejecting the application of the Petitioner for refund of the Electricity Duty under the 1993 Package Scheme of Incentives, is set aside. (ii) The Joint Director of Industries, Maharashtra State is directed to reconsider the application submitted by the Petitioners in accordance with various Government Resolutions and policy decisions as also material that the Petitioner may place before the said authority. For that purpose, the Petitioners shall appear before the Joint Director on 17/03/2008 with a copy of this order and whatever material that the Petitioners want the Joint Director to consider in support of their case that the Petitioners are entitled to refund of the Electricity Duty under the 1993 Package Scheme of Incentives. (iii) The Joint Director shall, thereafter, decide the application of the Petitioners in accordance 5 with law, after granting the Petitioners an opportunity of being heard. (iv) The Joint Director shall pass a speaking order (order giving reasons for the conclusion that the Joint Director may reach). (v) The Joint Director shall pass the order within a period of 12 weeks from 17/03/2008. Rule is made absolute accordingly with no order as to costs. (D.K. DESHMUKH, J.) (V.M. KANADE, J.) 6