Page No.# 1/16 GAHC010184862018 2025:GAU-AS:16184 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5771/2018 RIVER VALLEY CEMENT CORPORATION A PARTNERSHIP FIRM REGISTERED UNDER THE PARTNERSHIP ACT, 1932 HAVING ITS REGISTERED OFFICE AT HOUSE NO. 62, 2ND BYE LANE ABC TARUN NAGAR, BHANGAGARH, GUWAHATI- 781005, REP. BY DEEPAK KAYAL, AGE ABOUT 47 YEARS, R/O ZOO ROAD, GUWAHATI. VERSUS THE STATE OF ASSAM AND 5 ORS. REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF INDUSTRIES AND COMMERCE, ASSAM SECRETARIAT, DISPUR, GUWAHATI-781005. 2:THE COMMISSIONER OF INDUSTRIES AND COMMERCE DEPARTMENT OF INDUSTRIES AND COMMERCE GOVT. OF ASSAM UDYOG BHAWAN BAMUNIMAIDAM GUWAHATI - 781021. 3:THE DIRECTOR OF INDUSTRIES AND COMMERCE UDYOG BHAWAN BAMUNIMAIDAN GUWAHATI - 781021. 4:THE ADDITIONAL DIRECTOR OF INDUSTRIES AND COMMERCE Page No.# 2/16 UDYOG BHAWAN BAMUNIMAIDAN GUWAHATI- 781021. 5:THE GENERAL MANAGER DISTRICT INDUSTRIES AND COMMERCE DIST. KAMRUP GUWAHATI -21. 6:THE JOINT DIRECTOR (EXTENSION) O/O THE COMMISSIONER OF INDUSTRIES AND COMMERCE ASSAM GUWAHATI-21 Advocate for the Petitioner : DR. ASHOK SARAF, MR. P BARUAH,MR. Z ISLAM,MR. P DAS Advocate for the Respondent : SC, INDUSTRIES AND COMMERCE, MR. S P SHARMA,DR. B AHMED BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 20/11/2025 Heard Dr. A. Saraf, learned counsel for the petitioner and Mr. S. R. Baruah, learned counsel for the respondents. 2. The petitioner by way of instituting the present proceeding has raised a grievance with regard to the non-disbursal of an amount of Rs.24,49,315/- (Rupees Page No.# 3/16 Twenty Four Lakhs Forty Nine Thousand Three Hundred Fifteen), being the power subsidy, receivable by the establishment of the petitioner under the provisions of the Industrial Policy of Assam, 2003. 3. The petitioner has also presented a challenge to an order dated 20.06.2018, by which the claim of the petitioner firm was rejected, on the ground that the unit of the petitioner firm was not found to be functioning on the date the inspection was made and accordingly, the unit was held to be not contributing towards economic development nor towards employment generation. Basing on the said assumption, the unit of petitioner firm was held to be ineligible for release of Power Subsidy under the Industrial Policy of Assam, 2003. 4. The facts in brief requisite for adjudication of the issues arising in the present proceeding is noticed as under: The petitioner, is a partnership firm registered under the Partnership Act, 1932. The petitioner has a factory at Laxminagar, Sila, Changsari and is engaged in the manufacture of cement. After the proclamation of the Industrial Policy of Assam, 1997, wherein, incentives were provided to existing Industrial Units in the State on their expansion/diversification on or after 01.04.1997 or setting up of new Industrial Units on or after 01.04.1997, which includes sales tax exemption, interest subsidy, state capital investment subsidy, power subsidy, etc, the petitioner undertook steps for establishment of a cement manufacturing plant at Laxminagar, Sila, Changsari. A No Objection Certificate dated 30.08.2006, was issued by the authorities of the Pollution Control Board, Assam, for setting up of the said Industry. A certificate of employment of people of Assam was also issued by the Director of Employment and Craftsmen Training on 12.12.2005 and 31.08.2007. Thereafter, the said unit of the petitioner was sanctioned a load to the tune of 850 KW vide a communication dated 19.11.2003 issued by the Chief Engineer (D), Page No.# 4/16 ASEB, Paltanbazar. The said load as sanctioned was further enhanced vide a communication dated 25.08.2006, wherein, an additional load of 300 KW in addition to the existing 850 KW, totalling 1150 KW came to be authorized to the said unit of the petitioner firm. The petitioner firm, thereafter, commenced its production activities and in course of such production activities, the Unit had also consumed electricity which was being billed by the ASEB/APDCL. The petitioner, vide a communication dated 28.02.2006, was issued with an Eligibility Certificate for the new unit under the Industrial Policy of Assam, 2003 and the Assam Industries (Tax Remission) Scheme, 2005. In terms of the said Eligibility Certificate, amongst others, the petitioner was eligible for Power Subsidy for 5 (five) years, w.e.f. 08.07.2005 to 07.07.2010. The petitioner was, thereafter, granted a further Eligibility Certificate on 19.03.2010 and amongst other eligibility extended to the petitioner firm, the petitioner firm was made entitled to power subsidy for 5 (five) years, w.e.f. 07.09.2007 to 06.09.2012. The Industrial Policy of Assam, 2003, having mandated the eligible firms to be provided power subsidy, in the manner as laid down in the said policy, the petitioner, herein, periodically submitted the bills paid by it to the ASEB, w.e.f. 08.07.2005 onwards. The said bills of the petitioner were processed in the manner required and a part payment of the power subsidy involved, was made to the petitioner for the period, w.e.f. 08.07.2006 to 01.08.2010. Out of the total amount paid by the petitioner as electricity dues, subsidy for which was permissible, an amount of Rs.24,49,315/- (Rupees Twenty Four Lakhs Forty Nine Thousand Three Hundred Fifteen) remained unpaid. At this stage, it is to be noted that for various factors, the functioning of the Industrial unit of the petitioner firm had to be closed down, w.e.f., 27.01.2016. Page No.# 5/16 The petitioner, not being released its arrears of power subsidy in relation to the electricity consumed by the unit during its existence, had approached the respondent authorities for release of the arrears. The amount involved not being released, the petitioner had approached this Court by way of instituting a writ petition, being WP(C) No. 659/2018. This Court, upon noticing the issues arising in the matter, was pleased vide order dated 23.02.2018, to dispose of the said writ petition, directing the respondents to consider the representation dated 24.03.2017, preferred by the petitioner in the matter, by issuing a reasoned order. The certified copy of the order dated 23.02.2018, was furnished by the petitioner before the Commissioner, Industries & Commerce, Department of Industries & Commerce, Assam vide a communication dated 05.04.2018. Thereafter, the Commissioner, Industries & Commerce, Assam, vide order dated 20.06.2018, on consideration of the claim made by the petitioner, proceeded to reject the same by holding that the unit of the petitioner firm being a “Non- Functioning” unit, neither contributing towards economic development or in employment generation, was ineligible for release of power subsidy under the Industrial Policy of Assam, 2003 and accordingly, the representation of the petitioner came to be rejected. Being aggrieved, the petitioner, herein, has instituted the present proceeding. 5. I have heard the learned counsel for the parties and also perused the materials available on record. 6. The facts noticed, hereinabove, are not in dispute. The petitioner firm was issued with an Eligibility Certificate for setting up of a Page No.# 6/16 new unit under the Industrial Policy of Assam, 2003, vide communication dated 28.02.2006. The said Eligibility Certificate was issued for claiming incentives under the Industrial Policy of Assam, 2003. The Eligibility Certificate, incorporated therein various incentives that were permissible to be claimed by the unit of the petitioner firm, including power subsidy for 5 (five) years, w.e.f. 08.07.2005 to 07.07.2010. A further Eligibility Certificate was issued to the petitioner on 19.03.2010 and therein, the petitioner was also extended with the incentive of claiming power subsidy for 5 (five) years w.e.f., 07.09.2007 to 06.09.2012. The incentive for claiming power subsidy as incorporated in the said Eligibility Certificates, flows from the Industrial Policy of Assam, 2003. The said Industrial Policy of Assam, 2003 for receiving incentives, thereunder defines an eligible unit to be a new unit set up on or after 01.10.2003 and or a unit undertaking expansion/diversification at the same place in the State of Assam on or after 01.10.2003. There is no dispute that the petitioner is covered by the definition of an eligible unit under the Industrial Policy of Assam, 2003 and accordingly, the petitioner was issued with the Eligibility Certificates. The petitioner firm’s unit, being an eligible unit, amongst others, is entitled to power subsidy. 7. Clause 3.3 of the Industrial Policy of Assam, 2003 provides for the manner in which the power subsidy is permissible to be claimed by an eligible unit, the same being relevant, is extracted, hereinbelow:- “3.3 Power Subsidy (PS): Power subsidy will be provided to the eligible industrial units on the power tariff paid against the actual units consumed for a period of 5 (five) years subject to a ceiling shown below: Connected load rate of subsidy Ceiling of subsidy per annum Upto 1.1 MX 50% Rs. 10.0 lakhs Page No.# 7/16 Above 1.1 MW 30% Rs.20.1 lakhs” 8. The petitioner, having set up the said Industrial Unit and during its operation it having consumed electricity, claim for being released, with the subsidy flowing to it, from the provisions of Clause 3.3 of Industrial Policy of Assam, 2003 came to be raised. The petitioner in course of its business had raised the following claims: M/s River Valley CEENT Corporation :: DOCP-08.07.2005 Sl. No. Period of Claim by the Unit Application Date Claim Amount DI & CC Forwarded Dated As per 2003 Assam State Policy Guideline s 30% Above 1MW/50 % Below 1MW Ceiling Limit 1. 08.07.2005 to 31.03.2006 25.09.2006 4803776.00 28.09.2006 30% 10 Lakhs Approved and disbursed 2. 01.04.2006 to 31.03.2007 30.04.2007 8129224.00 15.06.2007 30% and 50% 20 Lakhs Approved 3. 01.04.2007 to 31.03.2007 14.08.2008 16307638.00 30.11.2009 50% 20 Lakhs Approved and disbursed 4. 01.04.2008 to 24.04.2009 17827627.00 30.04.2009 50% 20 Lakhs Approved and Page No.# 8/16 31.03.2009 disbursed 5. 01.04.2009 to 31.03.2010 02.06.2010 20048183.00 21.06.2010 50% 20 Lakhs Approved and disbursed 6. 01.04.2010 to 07.07.2010 20.12.2010 5798584.00 07.05.2011 50% 20 Lakhs Approved Total 72915032.00 9. The petitioner in lieu of the claims made by him in terms of the table set out, hereinabove, was released with the following payments: M/S River Valley Cement Corporation ::: DOCP-08.07.2005 Eligibility certificate valid from 08.07.2005 to 01.08.2010 Sl. No. As per unit As per CI&C Period of claim as per CI&C Application on date by the Unit Eligible amount on which the power subsidy was claimed (Total amount paid to ASEB) in (Rs.) DICC forwarded date to CI&C SLC/&C approved amount Disbursement Amount Remarks 1 a 08.07.2005 to 31.03.2006 25.09.2006 4,803,776 28.09.2006 1,000,000 DD NO- 972698 31.06.2006 DT. 02.06.09 Rs.1000000 2 a 01.04.2006 to 07.07.2006 550,685 SLC held on 22.01.16 Page No.# 9/16 b 08.07.2006 to 24.01.2007 30.04.2007 8,129,224 15.06.2007 Dues 898,630 c 25.01.2007 To 31.03.2007 2,000,000 DD NO. 972698 DT. 02.06.09 Rs. 24422542 3 a 01.04.2007 to 07.07.2007 14.08.2008 16,307,638 30.11.2009 2,000,000 DD NO- 963354 DT. 21.04.12 Rs. 1557458 b 08.07.2007 To 31.03.2008 4 a 01.04.2008 To Page No.# 10/16 07.07.2008 24.04.2009 17,827,627 30.04.2009 b 08.07.2008 To 31.03.2009 5 a b 01.04.2009 To 07.07.2009 02.06.2010 20,048,183 21.06.2010 1,000,000 DD NO- 180550 DT. 08.04.13 Rs.1000000 08.09.2009 To 31.03.2010 6 a 01.04.2010 To 07.07.2010 20.12.2010 5,798,584 07.06.2011 Dues SLC held on 221.16 Page No.# 11/16 1,000,000 Total 72,915,032 8,449,315 60,00,000 10. A perusal of the said two tables, extracted hereinabove, would reveal that the petitioner was paid a part of the claim made towards power subsidy and for the period, w.e.f. 08.07.2006 to 01.08.2010, the petitioner claims an amount of Rs.24,49,315/- (Rupees Twenty Four Lakhs Forty Nine Thousand Three Hundred Fifteen), which remains in arrears as on date. The claim of the petitioner was found to have been duly processed by the respondent authorities in the manner as set out under the Industrial Policy of Assam, 2003, however, the amounts were only partly released to it. The respondent authorities in pursuance to the directions passed by this Court vide order dated 23.02.2018 in WP(C) No. 659/2018, had issued the order dated 20.06.2018, rejecting the claim of the petitioner, herein. The contentions made in the order dated 20.06.2018, being relevant is extracted hereinbelow: No. CI&C (I) HC/899/2018/446 Dated 20th June, 2018 ORDER Perused the order of Hon’ble Gauhati High Court dated 23.02.2017 in WP(C) No. 659/2018 (M/s River Valley Cement Corporation Vs. State of Assam & Ors.) directing the Commissioner of Industries & Commerce (Respondent No. 2) to consider the representation dated 24.03.2017 submitted by the petitioner and dispose of the same by issuing a reasoned order. Page No.# 12/16 Perused the petition of M/s River Valley Cement Corporation dated 24.03.2017 wherein the unit has requested for release of the Power Subsidy eligible to the unit. Perused the minutes of the State Level Committee meeting under Industrial Policy of Assam held on 22.01.2016, wherein, Power Subsidy amounting to Rs.2449315.00 was approved to the unit by the Committee. Perused the General Manager District Industries & Commerce Centre, Kamrup (Rural) report dated 21.02.2017, wherein, the status of the unit is indicated as “Not functioning”. The objective of the incentives under State Industrial Policy of Assam, 2003 is to promote industrialization and to increase the share of the industrial sector to the State Domestic Product Para 1.1.2 of the policy clearly states that the objective of the policy is to generate more employment opportunities in the state. Chapter 2, para 2.4(c) of the policy further says “the units shall have employment of 90% people of Assam in non-managerial cadres and in managerial cadre 80%, which will subsequently be enhanced to 100% and 90%, respectively within a period of 5 years” as one of the Eligible Criteria. Government provides Fiscal incentives to encourage Industrial Units for their contribution in economic development of the State in general and employment generation in particular. However, a “Non Functioning” unit neither contribute in economic development nor in employment generation. In view of the above, the petitioner M/s River Valley Cement Corporation is found to be ineligible for release of Power Subsidy under Industrial Police of Assam, 2003 and the representation dated 24.03.2017 submitted by the petitioner stands rejected. Commissioner of Industries & Commerce, Assam. Bamunimaidam, Guwahati-21 11. A perusal of the said order dated 20.06.2018 would bring to the forefront that the State Level Committee, empowered to consider such claims of various eligible firms under the Industrial Policy of Assam, 2003, had in its meeting held on 22.01.2016 approved the claim of power subsidy of the petitioner, amounting to Page No.# 13/16 Rs.24,49,315/-(Rupees Twenty Four Lakhs Forty Nine Thousand Three Hundred Fifteen). Accordingly, the claim of the petitioner firm to the arrears of power subsidy is not disputed. 12. The order dated 20.06.2018 further reveals that a report dated 21.02.2017 of the General Manager, District Industries and Commerce Centre, Kamrup, was considered, wherein it was highlighted that the unit of the petitioner firm was not found to be not functioning during the time of inspection and basing on the said premises, the Commissioner of Industries & Commerce, Assam, proceeded to conclude that the Government having provided fiscal incentive to encourage Industrial Units for their contribution towards economic development of the State in general and employment generation in particular, a non-functioning unit neither contributing towards economic development nor towards employment generation, cannot be held to be eligible for release of power subsidy under Industrial Policy of Assam, 2003. Accordingly, the claim of the petitioner for release of the balance power subsidy amount claimed by it under the provisions of Clause 3.3 of the Industrial Policy of Assam, 2003 came to be rejected, although the same was admittedly approved by the constituted State Level Committee. 13. The rejection of the claim, was on the ground that the petitioner unit as on the date of inspection, i.e., in the year 2017, being found to be a non-functioning unit, it was held to be ineligible for being released the amounts claimed by it towards power subsidy. 14. The contentions raised by the petitioner in the writ petition that it had submitted its bills in the manner required and the same were duly processed and a part payment thereof, was released to the petitioner has not been disputed by the respondents in the affidavit filed by them in the matter. The said aspect of the matter has also not been disputed by the Commissioner of Industries & Commerce, Page No.# 14/16 Assam in the order dated 20.06.2018. Both in the affidavit filed before this Court in the present proceeding by the respondents as well as in the order dated 20.06.2018, the petitioner has been contended to have been denied the balance amount claimed by it towards power subsidy only on the ground that the Industrial Unit of the petitioner was not a functioning unit as on 2017. It is also not disputed that the Industrial Unit of the petitioner firm on account of various factors was closed down, w.e.f. 27.01.2016. 15. Having noticed the ground on which the petitioner was denied its dues, this Court has examined the Industrial Policy of Assam, 2003. 16. On a reading of the said policy, this Court has not found any precondition to have been incorporated, therein, requiring an industry to be in operation in perpetuity for being extended with the incentive flowing there from. The petitioner’s unit from the electricity consumed by it, as evident from the bills issued to it by the ASEB, is found to have been functioning during the period for which it had claimed power subsidy. This aspect of the matter is not disputed by the respondents. 17. The petitioner’s unit being a functional Industrial Unit, during the period for which it had claimed the power subsidy in the considered view of this Court, the subsequent closure of the Unit which happened much after the period for which the petitioner had claimed power subsidy, cannot in any manner prevent the petitioner’s firm from receiving the balance of the power subsidy amount involved, which has already been approved by the constituted State Level Committee. 18. The High Court of Tripura in the case of Sukhamoy Paul Vs. State of Tripura, reported in 2021 SCC OnLine Tri 273 had held that the eligibility period for claiming subsidy may be of 5 (five) years, the scheme, however, nowhere provides that only Page No.# 15/16 if a new industrial unit continues such manufacturing activity for a period of 5 (five) years, then only it can claim the transport subsidy. This Court is in respectful agreement with the conclusions drawn by the Division Bench of the High Court of Tripura and holds that the petitioner, herein, had functioned for a period of more than 5 (five) years, since its inception and was closed down only in the year 2016. The petitioner could not have been denied its due incentive in the form of power subsidy which has flown to it from the provisions of Clause 3.3 of the Industrial Policy of Assam, 2003. This Court reiterates that the policy of 2003, nowhere mandates that eligible Industrial Unit set up under it would be mandated to continue its manufacturing activities for 5 (five) years and/or for any other specified period of time. 19. In view of the above conclusions, this Court is of the considered view that the rejection of the claim of the petitioner firm for being released the balance amount against its claim for power subsidy for the period w.e.f. 08.07.2006 to 01.08.2010 vide the order dated 20.06.2018 is clearly arbitrary and illegal and accordingly, the order dated 20.06.2018 stands set aside. 20. The respondent authorities, more particularly, the Commissioner and Secretary, Government of Assam, Department of Industries & Commerce, Assam (respondent No. 1) and the Commissioner of Industries & Commerce, Department of Industries and Commerce, (respondent No. 2) shall forthwith process the remaining claim of the petitioner as approved by the State Level Committee in its meeting held on 22.01.2016 and release the amount of Rs.24,49,315/- (Rupees Twenty Four Lakhs Forty Nine Thousand Three Hundred Fifteen) involved to the petitioner firm within a period of 3 (three) months from the date of receipt of a certified copy of this order. In the event the said amount is not released within the said stipulated period of 3 (three) months, the amount involved would carry Page No.# 16/16 interest @6% from the date of completion of 3 (three) months w.e.f. the date of receipt of a certified copy by the respondents, till the date of actual payment. 21. With the above observation and direction, the present writ petition stands disposed of. JUDGE Comparing Assistant