Sikkim High Court: In a case wherein the petitioners, Zydus Wellness Products Ltd. and Alkem Laboratories Ltd. filed petitions to consider them under the Budgetary Support Scheme extended by the Central Government in the areas of Sikkim, Bhaskar Raj Pradhan, J.*, agreed with the respondents’ submissions that the petitioners were not ‘eligible units’ as defined under the budgetary scheme. The Court observed that the intention of the Government of India in providing the Budgetary Support Scheme was to support those ‘eligible units’ for the ‘residual period’ of commercial production during which they would have been eligible to avail exemption for the specified goods under exemption notification in recognition of the hardship arising due to its withdrawal. Thus, the Court held that neither Zydus Wellness Products Ltd. nor Alkem Laboratories Ltd. could legally claim that they were entitled to the exemption under Notification No. 20/2007-CE dated 25-04-2007 (‘exemption notification’) as they did not exist earlier.
Background
In the present case, two writ petitions were taken up for consideration, W.P.(C) No. 20 of 2022 was filed by Zydus Wellness Products Ltd., while W.P.(C) No. 27 of 2022 was filed by Alkem Laboratories Ltd. In the case of Zydus Wellness Products Ltd., in February 2019, Zydus Wellness-Sikkim, a Partnership Firm, was converted into Zydus Nutritions Ltd., pursuant to Section 7(2) of the Companies Act, 2013 and Rule 18 of the Companies (Incorporation) Rules, 2014 (‘Rules 2014’). Thereafter in June 2019, Zydus Nutritions Ltd. changed its name to Zydus Wellness Products Ltd., pursuant to Rules 2014. Zydus Wellness Products Ltd seeks budgetary support under the ‘Scheme of Budgetary Support’ for the ‘residual period’ for which Zydus Wellness-Sikkim was entitled to exemption under the exemption notification. Whereas in the case of Alkem Laboratories Ltd., in October 2019, Unit-V was transferred by way of slump sale from Cachet Pharmaceuticals (P) Ltd. The petitioner seeks direction to allocate fresh Unique Identity (UID) for Unit-V of the petitioner and to process the verification and claim applications under the Budgetary Support Scheme for the ‘residual period’ for which Cachet Pharmaceuticals (P) Ltd. was entitled to exemption under the exemption notification.
Analysis, Law, and Decision
The issue for consideration before the Court was “whether the petitioners were entitled to the budgetary support under the Budgetary Support Scheme?”.
The Court observed that “according to the Budgetary Support Scheme, in pursuance of the decision of the Government of India to provide budgetary support to ‘the existing eligible manufacturing units’ operating in Sikkim under different Industrial Promotion Schemes of the Government of India, for a residual period for which each of the ‘units’ was eligible, a new scheme was being introduced. The new scheme was offered, as a measure of good will, only to the ‘units’ which were eligible for drawing benefits under the earlier exercise duty exemption/refund schemes but had otherwise no relation to the erstwhile schemes”.
The Court further observed that “the units which were eligible under the erstwhile schemes and were in operation through exemption notifications issued by the Department of Revenue in the Ministry of Finance would be considered eligible under the Budgetary Support Scheme and the Budgetary Support Scheme was to be limited to the tax which accrued to the Central Government under the Central Goods and Services Tax Act, 2017 (‘CGST Act’) and the Integrated Goods and Services Tax Act, 2017 (‘IGST Act’), after devolution of the Central Tax or the Integrated Tax to the States, in terms of Article 270 of the Constitution.”.
The Court noted that the ‘residual period’ was “the period during which the eligible unit would have been eligible to avail exemption for the ‘specified goods’”. The Court opined that the definition of ‘person’ under Section 2(84) of the CGST Act and the requirement of registration under Section 22 of such ‘persons’ made it clear that Zydus Wellness Products Ltd. and Alkem Laboratories Ltd. were required to be registered under Section 22 of the CGST Act, after the change in ownership. The Court also opined that both the petitioners who were separate and distinct legal entities from the previous ‘persons’, i.e., Zydus Wellness-Sikkim and Cachet Pharmaceuticals (P) Ltd., who were eligible under exemption notification could not have filed the application for budgetary support under the Budgetary Support Scheme.
The Court considered the reference which was made in the matter to determine the entities in question to be considered as ‘eligible unit’, by Department for Promotion of Industry and Internal Trade (‘DIPP’), Ministry of Commerce in consultation with Central Board of Indirect Taxes and Customs (‘CBIC’). It was decided that as per guidelines of the Budgetary Support Scheme, if any unit undergoes relocation, expansion and change of ownership, it will not be eligible under the Budgetary Support Scheme. The CBIC, therefore, opined that Zydus Wellness (P) Ltd was not eligible for Budgetary Support Scheme. Similarly, for Alkem Laboratories Ltd., it was also held that if any unit undergoes relocation, expansion and change of ownership, it would not be eligible under the scheme of budgetary support. Accordingly, the CBIC had also opined that Alkem Laboratories Limited Unit-V was not eligible for Budgetary Support Scheme.
The Court agreed with the respondents’ submissions that the petitioners were not ‘eligible units’ as defined under the budgetary scheme. The Court observed that the intention of the Government of India in providing the Budgetary Support Scheme was to support those ‘eligible units’ for the ‘residual period’ of commercial production during which they would have been eligible to avail exemption for the specified goods under exemption notification in recognition of the hardship arising due to its withdrawal.
The Court opined that clearly, the exemption under exemption notification was to those manufacturers who had made investments in the State of Sikkim. The untimely withdrawal of exemption notifications before the manufacturers could enjoy its benefits for its full term as the new GST regime came in, persuaded the Government of India to provide budgetary support to those ‘eligible units’ and not to those who had not made any investment to be able to enjoy the benefit of the exemption notification for the ‘residual period’.
The Court dismissed both the petitions and held that neither Zydus Wellness Products Ltd. nor Alkem Laboratories Ltd. could legally claim that they were entitled to the exemption under the exemption notification as they did not exist then.
[Zydus Wellness Products Ltd. v. Union of India, 2023 SCC OnLine Sikk 91, decided on 12-09-2023]
*Judgement authored by — Justice Bhaskar Raj Pradhan
Advocates who appeared in this case :
For the Petitioner: Ashok Saraf, Senior Advocate; Mr. Pritam Baruah, Mr. Mayank Jain, Ms Akshita Shetty, Mr. Hissey Gyaltsen, Mr. Vivek Sarin, Mr. Akath Gupta, Advocates
For the Respondents: Ms Sangita Pradhan, Deputy Solicitor General of India; Ms Natasha Pradhan, Advocate
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