Duncan
Industries Ltd. And Anr Vs. Union of India [2006] Insc 69 (10
February 2006)
H.
K. Sema & B.N. Srikrishna
(arising
out of SLP (C) No. 6297/2004) With Civil Appeal No.1074/2006 @ SLP (C) No.
/2006 @CC No. 12164/2004 SRIKRISHNA, J.
Delay
condoned in the Special Leave Petition arising out of CC No. 12164 of 2004.
Leave granted in both the Special Leave Petitions.
The
question to be answered in this case is: whether the scheme of subsidies (known
as the "Retention Price Scheme") granted by the Respondent-Union of India (hereinafter "the
Government") to fertilizer manufacturers, could be retrospectively
modified to the detriment of these manufacturers. In our view, this question
needs to be answered in the affirmative.
The
Retention Price Scheme M/s Duncan Industries Ltd. (hereinafter "the First
Appellant") is engaged in the business of manufacturing and selling urea
(a fertilizer). In 1993, the First Appellant acquired the urea plant of M/s
Indian Explosives Ltd. (a unit of ICI India Ltd.). The Second Appellant is a
shareholder in the First Appellant-Company (hereinafter, collectively "the
appellants").
In
1957, the Government notified fertilizers (including urea) as an
"essential commodity", under the Essential Commodities Act, 1955
(hereinafter "the EC Act"). The Fertilizer (Control) Order, 1957
(hereinafter "the Fertilizer (Control) Order") was made in exercise
of the powers conferred by Section 3 of the EC Act. The Fertilizer (Control)
Order has been revised from time to time. Through the Fertilizer (Control)
Order, the Government was able to fix the maximum retail price of fertilizers,
which was to be complied with by dealers, manufacturers etc. However, since
this controlled-price mechanism resulted in losses for manufacturers, it was
suggested that the Government provide subsidies to make good the losses.
Accordingly,
the Government constituted a Committee under the Chairmanship of Mr. S.S. Marathe
(hereinafter "the Marathe Committee") to introduce a rational system
for the pricing of fertilizers in the country. The Marathe Committee was to
suggest a mechanism that would ensure a reasonable return on investment to
manufacturers of fertilizer, facilitate the healthy development and growth of
the fertiliser industry, and also ensure that the prices of fertilizer were
kept within reasonable limits. To this effect, the Marathe Committee made a
detailed report suggesting an intricate system of fertilizer subsidies known as
the "Retention Price Scheme" (hereinafter also mentioned as "the
Scheme"). This report was considered in detail by the Government, which
decided to introduce the Retention Price Scheme for units in the nitrogenous
fertilizer industry (with effect from 1.11.1977).
A
brief outline of the Retention Price Scheme is necessary. The Retention Price
Scheme was devised with a view to determine the appropriate subsidy for
fertilizer manufacturers. The subsidy is calculated as the difference between
the "Retention Price" and the maximum retail price fixed for
fertilizers (under the Fertilizer (Control) Order). A detailed formula
prescribed under the Scheme determines the Retention Price for fertilizers.
The
Retention Price was to be worked out by calculating the cost of manufacture of
urea per ton. The cost of manufacturing urea comprises three types of costs:
-
Capital-related
costs
-
Conversion costs
(or Fixed costs) and
-
Variable costs
(or Input costs). Capital-related costs incurred by a manufacturer were the
total amount of capital invested, including loan and equity. Conversion costs
included salaries, overheads, chemicals and consumables, repair and selling
expenses, catalysts etc. Variable costs included the costs of the feedstock
(the feedstock may vary from unit to unit), utilities costs, packaging etc.
Also, this formula of Retention Price provided a post-tax return of 12% on the
net worth. The working of the Scheme provided for a fair ex-factory Retention
Price per ton of urea based upon a capacity utilization of 80% to arrive at the
Variable Cost. In this manner, the Marathe Committee had worked out the
Retention Price for each of the twenty-one urea-manufacturing units. In
summary, the combination of Conversion costs, Variable costs and
Capital-related charges (including the 12% post-tax return) was styled as the
Retention Price.
The
Retention Price Scheme envisaged a Fertilizer Price Fund Account for the
payment of subsidies. In respect of those units where the Retention Prices were
lower than the maximum retail price, the units were required to credit the
difference to the Fertilizer Price Fund Account.
Conversely,
units whose Retention Prices were higher than the maximum retail price would
receive the difference from the Fertilizer Price Fund Account, as a subsidy.
The
Scheme was to be administered by an inter-ministerial committee, which also had
representatives of the fertilizer industry. This committee was called the
Fertilizer Inter-Coordination Committee (hereinafter "the FIC
Committee"). The FIC Committee was to have an Executive Director and
adequate staff to maintain accounts, make and recover payments, undertake
costing, and collect and analyze production data, cost and other inputs, in
order to work out the Retention Price periodically and make appropriate
adjustments.
The
Operation of the Retention Price Scheme The Government's decision to introduce
the Retention Price Scheme was formally notified on 1.11.1977 in the Official
Gazette. However, even prior thereto, a letter (dated 24.10.1977) was written
by the Government to the Managing Director of M/s Indian Explosives Ltd. (later
acquired by the First Appellant), wherein the details of the Retention Price
Scheme were indicated. It was pointed out in this letter that:
"It
is the intention of the Government to bring the scheme of retention prices in
respect of nitrogenous fertiliser into effect from 1.11.1977 on the basis of
voluntary agreements on the part of individual units to participate in the
scheme" (emphasis supplied) Accordingly, the Government asked for an
undertaking to be signed by a competent authority on behalf of each of the
manufacturers and enclosed a draft of the undertaking to be signed. Finally,
the letter stated:
"your
(M/s Indian Explosives Ltd.) willingness to participate in the retention price
scheme communicated, and undertaking the enclosed form duly executed by a
competent authority on behalf of your company set so as to reach this Ministry
before 29th October, 1977." Ms/ Indian Explosives Ltd. gave such an
undertaking on 10.12.1977, which was incidentally after the specified deadline.
The undertaking, addressed to the President of India, was in the following
terms:
"Whereas
the Government of India (hereinafter called the "Government") have
introduced and are operating, a scheme of plant-wise retention price in respect
of Nitrogenous and Phsophetic (sic) fertilisers, with a view to ensuring that
there is a sustained and healthy development of the feertiliser (sic) industry
in view, particularly, of the statutory prices control exercise (sic) by the
Government over the selling prices of fertilisers.
-
And whereas the
retention price scheme envisages determination of fair retention prices for
each product manufactured by each fertiliser unit taking into account the cost
of production based on norms, return on net-worth, etc. and that the
introduction of this Scheme has been rendered possible by a contribution from
the Government of India by way of removal of excise duty/FPEC, payment of
subsidy and/or otherwise;
-
And whereas the
Government are also being (sic) freight subsidy in respect of the Nitrogenous and
Phsophetic (sic) fertilisers with a view to covering the cost of transport of fertilisers,
as part of the retention price scheme;
-
And whereas the
retention price scheme also provides for periodical revisions in the retention
prices so as to reflect the changes in the cost of raw materials/ inputs, cost
of transportation of raw materials/ inputs, etc.;
-
And whereas
Government have been fixing from time to time a specified amount for tonne
(hereinafter referred to as net realisation) in respect of each product of each
manufacturer based on the prevailing statutory maximum retail selling price,
the rate of distribution margin, etc.;
-
And whereas it
is a feature of the scheme that units whose retention price as fixed under the
scheme is lower than the net realization, shall pay the difference to the Fertiliser
Industry Coordination Committee (hereinafter referred to as the
"Committee"), which has been set up by the Government to administer
the retention price scheme, and that units whose retention price as fixed under
the scheme is higher than the net realisation, will receive the difference as
subsidy from the said Committee;
-
We, IEL Ltd., do
hereby undertake that, in the event of the retention price fixed for our
unit(s)/product(s) being lower than the net realisatin (sic), we shall credit
every month to the Committee in accordance with such instructions and
procedures as the Government/Committee may prescribe from time to time, an
amount calculated at a rate per tonne of the concerned nitrogenous/phosphetic fertiiser
(sic), equivalent to the difference between the net realisation and the
retention price fixed for our unit/product on the quantity of the nitrogenous/phosphetic
fertiliser moved out of the factory every month, within a period of 45 days
from the last day of the month to which the credit relates.
-
We further
undertake that if the aforesaid amount is not credited by us in the time limit
specified above, we shall pay interest @ 2.5% above the ruling bank rate for
working capital loans as now prescribed, or at such rate as may be prescribed
from time to time, by the Government (Ministry of Chemicals and Fertilisers).
-
We also
undertake and promise to abide by the decision of the Committee, which is final
and binding on all matters relating to the determination of retention price,
net realisation, equated freight, etc.
-
We also agree to make available to
the Government, or any person nominated for the purpose of inspection, all our
books of accounts and other records connected thereto. We also agree to follow
the procedure for submission of bills/ recoveries in respect of Nitrogenous and
Phsophetic (sic) fertilisers under the retention price scheme as prescribed by
the Government of India, Ministry of Chemicals and Fertilisers from time to
time." (emphasis added) Accordingly, the Retention Price Scheme was
brought into operation.
The
Retention Price fixed initially, was to be operative for the period 1.11.1977
to 31.3.1979. Thereafter, it was fixed for a period of three years from
1.4.1979 to 31.3.1982. From time to time, the Retention Prices for five pricing
periods up to 31.3.1991 were notified. Since the calculation of the Retention
Prices and its approval by the Government involved administrative delays, the
approval of the policy and the computation of the Retention Prices, though made
subsequently, were made effective from the beginning of the pricing period. The
Sixth pricing period was to commence from 1.4.1991 and remain in force up to
31.3.1994. However, the Retention Price for this price period was actually
approved in the Sixty-sixth meeting of the FIC Committee on 16.12.1994, but
made operative from 1.4.1991. It is important to note that until the Retention
Price fixed for this pricing period was brought into force, the Retention Price
that was fixed for the previous year continued to operate. However, once the
Retention Price for the Sixth pricing period was notified, it was brought into
effect from 1.4.1991. The Retention Price fixed, which was to be operative only
up to 31.3.1994, was actually continued beyond that date. It was initially
extended up to 31.3.1997, and finally to 30.6.1997 (hereinafter "the Six-A
pricing period"). The details of the policy parameters relating to the
Sixth pricing period (1.4.1991 to 31.3.1994) and the Six-A pricing period
(1.4.1994 to 30.6.1997) were notified on 24.7.1997/ 5.8.1997. During the
extended period of the Sixth pricing period that is from 1.4.1994 to 30.6.1997
(i.e. the Six-A period), the Retention Price and the subsidy amount were worked
out on the basis of the Sixth pricing period and payments made and recoveries
effected. All of these transactions were consistent with a continuing practice,
namely, that the Retention Price would be approved after the expiry of the
pricing period, but recoveries and payments would be done, and accounts settled
from the commencement of the pricing period.
During
the continuance of the Seventh (1.7.1997 to 31.3.2000) and the Eighth (1.4.2000
to 31.3.2003) pricing periods, the Retention Price for each of the manufacturers
was revised on account of changes, as well as, variations in the different cost
factors, the base year being the last year of the previous pricing period.
In
2000-2001, complaints were voiced that fertilizer manufacturers were misusing
the Retention Price Scheme. For instance, it was alleged that fertilizer
manufacturers were actually consuming much lower quantities of naphtha/furnace
oil but were actually being compensated for higher consumption, resulting in
undue gains for them. The Government constituted a committee chaired by Dr.
Y.K. Alagh (hereinafter "the Alagh Committee") for the purpose of
reassessing the production capacity of such fertilizer units.
The
Retention Prices were also reduced with effect from 1.4.2000, on an interim
basis. When the final statement of accounts of payments/ recoveries arising
from the implementation of the Seventh and Eighth pricing policies were drawn,
it was seen that an amount of Rs. 2303 crores had to be paid while recoveries
to the tune of Rs. 923 crores could be made.
In the
process of finalizing the Seventh and Eighth pricing period, there were
detailed discussions held in a meeting between the Government's officials and
authorized representatives of the fertilizer manufacturing units.
As far
as the First Appellant was concerned, one such meeting was held on 7.8.2002 at 2:30 PM, which was attended by the Managing Director and
General Manager (Finance) of the First Appellant-Company. The Minutes of this
meeting show that the Executive Director of the FIC Committee broadly explained
the aspects on which the Retention Price had been worked out for the Seventh
and Eighth pricing periods to the representatives of the First
Appellant-Company. It was also pointed out in the meeting that Retention Price
fixation was subject to the reports of the committees that had been constituted
to examine certain pending issues. It was further pointed out that the
Retention Prices determined for the Seventh and Eighth pricing periods were
subject to further scrutiny of the repairs and maintenance charges and capital
additions allowed in the Retention Price. Thereafter, the representatives of
the First Appellant-Company were informed that based upon information received
by the FIC Committee, certain items of expenditure were disallowed while
finalizing the Retention Price for the Seventh and Eighth pricing periods, as
these were not related to urea activity.
On
8.8.2002, the First Appellant addressed a letter to the FIC Committee, giving
particulars as to the repairs and maintenance charges incurred for the years
1997-98 to 2000-01. It also raised the issue with regard to disallowance of the
bank charges for Base Years 1997-98 and 1999-2000. Apart from this, no other
issue was raised in the said letter.
The
Litigation A Civil Miscellaneous Writ Petition No. 43934/2001 was moved by the
appellants in the High Court of Judicature at Allahabad to challenge the interim revision of Retention Price made
on 5.11.2001 and the consequent demand raised upon the First Appellant on
13.11.2001 for recovery of Rs.184.01 crores under the Scheme. Although, the
appellants had filed the Writ Petition sometime in 2001, it was actually moved
in 2002, by which time the Government had recovered Rs. 127.21 crores by way of
adjustments, leaving a balance of Rs. 56.80 crores.
A
Civil Miscellaneous Application No. 40383/2002 was taken out by the appellants
for interim relief, which was disposed of by an agreed order.
A
perusal of the agreed order made on 3.4.2002 does not indicate that there was
any challenge to the manner of computation of the Retention Price, but only
suggested that the recovery of the balance amount of Rs. 56.80 crores be made
in 10 monthly instalments, subject to disposal of a representation made by the
appellants. On the question of payment of subsidy for the month of January
2002, it was stated in the order itself that it would be subject to the
Government's power of revision, review and recovery of excess payment, if
exercised, in the future.
The
appellants challenged the working of the Retention Price Scheme by Civil
Miscellaneous Writ Petition No. 43042/2002. This Writ Petition was dismissed by
the High Court through the impugned judgment dated 7.11.2003. By another order
dated 7.11.2003, following the impugned judgment, the High Court also dismissed
Civil Miscellaneous Writ Petition No. 43934/2001.
The
Contentions The appellants impugn the judgment of the High Court under appeal,
on the following grounds:
Firstly,
Dr. Rajeev Dhavan, learned Senior Counsel for the appellants, contends that the
Retention Price Scheme was a statutory scheme made under the provisions of the
EC Act read with the Fertiliser (Control) Order.
Dr. Dhavan
contends that this being a delegated legislation could not have been given
retrospective effect to the detriment of the appellants. Next, Dr. Dhavan
contended that the High Court had misunderstood the operation of the Retention
Price Scheme as being entirely ad hoc.
According
to him, what was ad hoc was the periodic revision of the subsidies payable or
receivable on account of input particulars, but the pricing policy determined
for the pricing periods would remain constant. Dr. Dhavan has thus, sought to
differentiate the process for determining the policy norms from the actual
process of computing the Retention Price.
Third,
learned counsel contends that there was a promise made out to the manufacturers
that there would be assured post-tax returns of 12%, which has allegedly not
been fulfilled as a result of the revision of the pricing norms. Hence,
according to Dr. Dhavan, the Government was estopped from implementing any
revision of the Retention Price Scheme, which would take away the "vested
right" of 12% post-tax returns.
Finally,
Dr. Dhavan argued that the retrospective and adverse revision of the pricing
norms by the Government is "arbitrary", "unreasonable" and violative
of Article 14 of the Constitution, especially since the Government fixes the
maximum retail price of fertilizer.
The
learned Additional Solicitor General, by reference to the voluminous record,
contended that the High Court was fully justified in its conclusion, and that
there was no substance in the Writ Petition.
The
Nature of the Retention Price Scheme The first contention of Dr. Dhavan is that
the Retention Price Scheme is a statutory scheme, and he accordingly contends
that a delegated legislation could not be retrospectively validated. This
argument needs consideration only if the Retention Price Scheme can be said to
have statutory flavour.
In our
view, the High Court's finding that the Retention Price Scheme is nothing but
an administrative order, is correct. Evidently, there is nothing in the EC Act
that deals with Retention Prices. Indeed, Clause 3 of the Fertiliser (Control)
Order merely provides that it is open to the Government to fix the maximum
retail price of fertilizers. Therefore, fertilizer manufacturers cannot sell
fertilizer at a price exceeding the maximum price fixed under the said clause.
On the
other hand, there is no provision that deals with the grant of subsidies for
producing fertilizers. We repeatedly asked Dr. Dhavan as to under which law the
Government was obliged to make available subsidies to fertilizer manufacturers.
He fairly admitted that there was no such obligation on the Government, and
stated that if the Government decided to withdraw the Scheme, it would only
have to comply with the requirements of Article
-
Indeed, it must be remembered that
the Retention Price Scheme is a result of the Report of the Marathe Committee.
It was intended to serve as a measure of alleviation to fertilizer
manufacturers, so that they were not hit by the rising prices of inputs,
especially since the retail price of the fertilizer was itself controlled.
Thus, it is evident that the Retention Price Scheme is not linked to any
statute in any manner whatsoever, but is a mere administrative order.
Our
conclusions are fortified by a judgment of this Court in Neyveli Lignite
Corporation Ltd. v. Commercial Tax Officer where the nature of this very Scheme
came to be considered, albeit in the context of a sales tax case.
This
Court held that the Retention Price Scheme is: "clearly an administrative
decision of the Government of India. It has been issued pursuant to the
Ministry's resolution and it enables a factory (sic)to receive subsidy from the
Government in case the retention price is more than the price fixed under
clause 3 of the Fertiliser (Control) Order." The first contention of Dr. Dhavan
must, therefore, fail since the Retention Price Scheme is a mere administrative
scheme without any statutory flavour.
Retrospectivity
in the Scheme At the outset, we must note that the Retention Price Scheme, both
conceptually and in its actual operation, has always had an element of retrospectivity
built-in. Indeed, the correspondence between the parties indicates that the
Retention Price was always fixed and made applicable ex post facto from the
beginning of the pricing period with adjustments to be made towards payments
and recoveries. However, Dr. Dhavan seeks to differentiate the process for
determining the policy norms from the actual process of computing the Retention
Price. According to learned counsel, what was ad hoc and could be
retrospectively changed were the subsidies payable or recoverable in line with actuals.
On the other hand, according to him, the pricing norms (the formula for
calculating Retention Prices) could not be retrospectively changed. We cannot,
however, accept this distinction.
At the
outset, the First Appellant had voluntarily entered into the undertaking dated
10.12.1977, where it promised inter alia:
"to
abide by the decision of the Committee, which is final and binding on all
matters relating to the determination of retention price, net realization,
equated freight, etc." (emphasis supplied) Firstly, neither the
above-mentioned undertaking, nor the evidence on record, appears to indicate
that there exists any distinction on the lines suggested by Dr. Dhavan.
Secondly, in our view, "all matters relating to the determination of
retention price" unambiguously includes the power to determine the norms
and policy that would be used for computing the Retention Price. Also, as we
have already mentioned, from its inception, the Retention Price Scheme has
always had an element of retrospectivity built- in. Therefore, the undertaking
entered into by the manufacturers clearly allows the Government to
retrospectively revise the pricing norms/policy for the Retention Price Scheme.
Further, as we shall see, the First Appellant was at all stages fully aware of
and party to the deliberations that went into determining the norms for
calculating the Retention Prices. Hence, in our view, the distinction sought to
be made between the norms for determining Retention Price and the actual
computation of the Retention Price is not tenable.
Assured
Returns It is next contended by Dr. Dhavan that the Government is estopped from
formulating a scheme under which the Retention Price fixed would deny the First
Appellant the assured 12% post-tax returns. We do not agree. At the outset, we
notice that the Scheme was not the result of any unilateral action on the part
of the Government. Although the result of an administrative decision, it was
grounded in an agreement reached between the Government and certain fertilizer
manufacturers. Indeed, it was open to the manufacturers to decline to enter
into such arrangement. This is evident from the letter of the Government dated
24.10.1977, which put forward the Scheme. As discussed earlier, this letter
requested M/s Indian Explosives Ltd. (later acquired by the First Appellant) to
enter into the Scheme as suggested, so that it may get the subsidy. The
subsidies were, of course, subject to the provisions of the Retention Price
Scheme, and subject to the undertaking to be given. In response to the letter
of 24.10.1977, M/s Indian Explosives Ltd. gave a categorical undertaking dated
10.12.1977 in the terms that we have already extracted. It is of significance
that M/s Indian Explosives Ltd., undertook and promised inter alia:
"to
abide by the decision of the Committee, which is final and binding on all
matters relating to the determination of retention price, net realization,
equated freight, etc." (emphasis supplied).
In the
face of this undertaking, we are unable to accept the contention of Dr. Dhavan
that the Retention Price Scheme was something that was compulsorily imposed on
fertilizer manufacturers. Indeed, it is not as if the manufacturers are
challenging the maximum retail price fixed under the Fertiliser (Control)
Order. They are merely challenging the manner in which the Retention Price,
which determines the subsidy payable under an agreed arrangement, is
determined. In fact, when we read the undertaking which was extracted above, it
appears to us that the manufacturers had agreed to abide by the decision of the
FIC Committee, on all matters relating to determination of the Retention Price
as being "final and binding" upon them.
In the
light of this, the argument of estoppel is actually the boot on the other foot.
Moreover,
even if we were to assume for a moment that certain returns have been assured,
and that this assurance is binding on the Government, we are not satisfied that
this assurance has actually been breached. We agree with the High Court that
there are too many imponderables and too many disputed questions of fact for an
effective decision in a writ proceeding on this issue. In our view, therefore,
this contention of the learned counsel for the appellants must also fail.
Reasonableness
and Legitimate Expectation Dr. Dhavan next contended that the retrospective
application of the new policy parameters by the FIC Committee is 'arbitrary',
'unreasonable' and against the Doctrine of Legitimate Expectation. Learned
counsel contends that since the Government controls the retail price of
fertilizer, it would be 'unfair', 'unreasonable' and violative of Article 14
for them to revise the scheme of subsidies, so that there would be losses
caused to fertilizer manufacturers. In our view, this contention has no merit
for both the facts and the applicable legal principles indicate that there is
nothing arbitrary or unreasonable in what the FIC Committee has done.
At the
outset, the material placed on record clearly demonstrates that the
representatives of the First Appellant were party to the deliberations before
the FIC Committee, who explained the material particulars regarding the manner
of working out the Retention Price for the Seventh and Eighth pricing periods.
The minutes of the said discussions, read with the correspondence between the
parties pertaining to the Retention Price fixation for the Seventh and Eighth
pricing periods, leave no doubt that the First Appellant was party to what was
being done. Further, at no point, during the discussions or in the subsequent
correspondence, did the First Appellant question the validity or correctness of
the manner of fixation of the Retention Price (except on some minor issue like
bank interest charges).
Dr. Dhavan
cited a number of authorities to support his argument.
However,
these cases pertain to situations where tax exemptions, which were already
granted and pursuant to which transactions had been held, were retrospectively
withdrawn. Other authorities also pertained to setting up of industries in
backward areas on promises of rebate/ concessions. In our view, none of these
authorities is of any assistance for resolving the issue before us, which is
purely a consensual working arrangement between the Government and fertilizer
manufacturers. The argument of 'legitimate expectation', in our view, cannot
have application to the present case. As we have said, the Scheme was a
voluntary one, and having agreed to abide by the decision of the Government,
there is no question of the appellant's 'legitimate expectations' being belied.
Turning
to the Article 14 argument, we emphatically reiterate the now-accepted position
that Article 14 does not require this Court to examine the intricacies of an
economic scheme or pricing policy for its merits or its correctness, for that
is in the domain of the executive or the legislative branches of the
Government. Indeed, even if the Scheme, as revised, is "unwise" or
even "unjust", there is no recourse before us for, as Justice Holmes
elegantly put it:
"We
fully understandthe very powerful argument that can be made against the wisdom
of the legislation, but on that point we have nothing to say, as it is not our
concern." We are broadly in concurrence with the reasoning of the High
Court that in matters of administrative discretion it is not open to the courts
to interfere in minute details, except on grounds of mala fides or extreme
arbitrariness. Interference should be only within very narrow limits, such as,
where there is a clear violation of a statute or a constitutional provision, or
extreme arbitrariness in the Wednesbury sense. Neither the High Court nor we
have found any of these vitiating factors in the administration of the
Retention Price Scheme and the consequent payments/ recoveries of the subsidy
amounts. Thus, in our view, the action of the FIC Committee to adversely modify
the subsidies framework, cannot be questioned on its merits.
The
Case of M/s Nagarjuna Fertilizers The learned Additional Solicitor General
brought to our notice that, out of all the concerned fertilizer manufacturing
units, only two units have challenged the Retention Price Scheme for the
relevant periods. One of these is the First Appellant and the other was M/s Nagarjuna
Fertilisers and Chemicals Ltd. (hereinafter "Nagarjuna Fertilizers").
Nagarjuna Fertilizers had filed SLP (Civil) No. 20721/2003 against the judgment
of the High Court of Andhra Pradesh dismissing its Writ Petition No. 18242/2002
(dated 25.7.2003). This SLP was, however, summarily dismissed by this Court
through order dated 17.11.2003. Although, we have carefully applied our mind to
the case of the First Appellant, independent of the outcome in the case of Nagarjuna
Fertilizers, we find that the two cases are actually indistinguishable on facts
and the present case should have also been similarly dismissed. In any event,
after a detailed examination, we have arrived at the same result.
The
Final Findings Despite the bulky material and lengthy arguments presented to
us, we find that this is a case full of sound and fury, signifying nothing.
Indeed, we have found against the appellants on every point that they have
chosen to impugn the judgment of the High Court. In the result, these appeals
must fail and are hereby dismissed with no order as to costs.
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