M. C. AGARWAL, J. - (1.) This revision petition under section 11 of the U. P. Sales Tax Act, 1948 is directed against an order dated August 16, 1994, passed by the Sales Tax Tribunal, Lucknow, whereby it upheld an order dated March 9, 1993, Passed by the Commissioner of Sales Tax under section 4-A (3) of the U. P. Sales Tax Act cancelling the eligibility certificate granted to the revisionist under section 4-A of the said Act. I have heard the learned counsel for the revisionist and the learned Standing Counsel. Section 4-A of the Act provides for exemption from sales tax in respect of the goods manufactured by new units that obtained eligibility certificate granted by the prescribed authority. The revisionist set up a new unit for the manufacture and sale of detergent cakes and chemicals and applied to the Director of Industries, U. P. , for the grant of an eligibility certificate and an eligibility certificate was, accordingly, granted to the revisionist by the joint Director of Industries, Allahabad, on September 15, 1990, entitling it to exemption from payment of sales tax on sales of goods manufactured by it for a period of three years with effect from August 25, 1987, the date of first sale. One of the conditions for the grant of eligibility certificate was that the unit should be registered under the Factories Act or should have made an application therefor. The registration under the Factories Act was granted to the revisionist with effect from September 1, 1987, and, therefore, the actual period of exemption was restricted to the period from September 1, 1987 to August 24, 1990. Accordingly, the revisionist availed exemption from sales tax for the said period. Sub-section (2) of section 4-A of the Act, as it stood at the relevant time, stood as under : " (2) It shall be lawful for the State Government to specify in the notification under sub-section (1) that the exemption from, or reduction in the rate of tax, shall be admissible - (a) generally in respect of all such goods manufactured subsequent to the date of such notification; or (b) in respect of such of those goods only as are manufactured in a new unit, the date of starting production whereof falls on or after the first day of October, 1982; or (c) only if the manufacturer had not discontinued production of such goods for period exceeding six months at a stretch; and (d) only if the manufacturer furnishes to the assessing authority an eligibility certificate granted by such officer, in accordance with such procedure as may be specified. " Thus, under the authority of the above provision, the Government was authorised to lay down conditions for the grant of exemption and those conditions had to be specified in a notification to be issued under sub-section (1) of section 4-A of the Act. In pursuance of this power, the Government had issued a notification dated December 26, 1985, specifying the conditions for the grant of the eligibility certificate. That notification did not make any provision about the nature of the rights that the owner of the new unit should hold in the land on which or the building in which the unit has been set up. The present dealer had set up its unit in a property that was taken on lease on a monthly rent of Rs. 3,000. An unregistered lease deed for a period of 15 years was drawn on March 6, 1987, i. e. , prior to the date on which the unit otherwise became entitled for exemption, i. e. , the date of first sale. There was an understanding between the revisionist and the owner of the property that the property would be purchased by the revisionist and, accordingly, on September 7, 1987, the revisionist paid an advance of Rs. 20,000 towards the sale consideration of Rs. 3,00,000 and, ultimately, on August 9, 1988, a regular sale deed was executed and registered according to law. Section 4-A of the U. P. Sales Tax Act was amended by the U. P. Sales Tax (Amendment and Validation) Act, 1991, which received the assent of the Government on August 20, 1991. Sub-clause (d) of section 8 of this amending Act substituted a new sub-section (3) in place of the existing sub-section (3) and sub-sections (4), (5) and (6) were the new sub-sections added to section 4-A of the Act. The new sub-section (3), which is relevant for our purposes, is as under : " (3) Where the Commissioner of Sales Tax is of the opinion that the facility of exemption from, or reduction in the rate of tax obtained on the basis of an eligibility certificate referred to in clause (d) of sub-section (20 or on the basis of any eligibility certificate issued under any executive orders of the Government issued before or after September 13, 1985 has been misused in any manner whatsoever or that the new unit has committed breach of any of the conditions, subject to which the facility of exemption from, or reduction in the rate of tax was granted or that the new unit to which the eligibility certificate has been granted in accordance with the provisions of this Act is not entitled to facility under this section or is entitled to such facility for a lesser period or from a different date he may, by order in writing passed before or after the expiration of the period of exemption or reduction, cancel or amend the eligibility certificate from a date specified in the order and such date may be prior to the date of the order so however, that in cases of misuse or breach, the cancellation of eligibility certificate shall have effect not before the date of such misuse or breach : provided that no order under this sub-section shall be passed without giving the dealers a reasonable opportunity of being heard. " Then, the Explanation to the newly added sub-section (6) defined a "new unit" and sub clause (c) thereof provided that the new unit must be set up by a dealer : " (c) On land or building or both owned or taken on lease for a period of not less than seven years by such dealer or allotted to such dealer by any Government, company or any corporation owned or controlled by the Central or the State Government. " Sub-section (2) of section 1 of the amending Act provided that sub-clauses (a), (b), (c), (d), (e) and (f) of section 8 shall be deemed to have come into force on April 25, 1990, and sub-clause (d) of section 8 stated that the amendments made thereby shall be substituted and deemed to have been substituted on September, 13, 1985. After the aforesaid amendments, the Deputy Commissioner (Executive) wrote to the Commissioner vide letter dated December 12, 1991, that the revisionist's unit was not entitled to exemption by virtue of the amendments as aforesaid, as on the date of the grant of the facility, i. e. , September 1, 1987, it did not exit on land or building or both owned or taken on lease for a period of not less than seven years. The Commissioner issued a notice to the dealer. The dealer filed written submissions contending that right from the beginning, it had the intention to purchase the land on which the unit was established, but the same could not materialise in time, as one of the owners was out of India and the land was ultimately purchased on August 9, 1988. The Commissioner took the view that on August 25, 1987, the date of first sale, the revisionist did not fulfil the conditions of section 4-A of the Act and he, therefore, cancelled the eligibility certificate. The dealer preferred an appeal to the Tribunal. It was contended that at the time when the unit was established and when it became eligible for the exemption, there was no condition requiring that the unit should be established on land owned by the dealer or taken on lease for a period of not less than seven years and that the condition imposed by the aforesaid amending Act was merely directory and the dealer had purchased the property on which the unit was established and had become owner thereof and hence, in such circumstances, the eligibility certificate could not be cancelled. The Tribunal noted that by a Government order dated March 6, 1986, it had been provided that the unit, i. e. , unit which is not established on its own land, should have a lease deed for 15 years or above and by means of an Ordinance No. 10 of 1990 promulgated on April 25, 1990, this condition was brought in Explanation to section 4-A of the Act and the period of lease was reduced from 15 years to seven years and by the amending Act, the Explanation was given retrospective effect from October 12, 1983. The Tribunal held that the condition in relation to the nature of the rights in the land/building was mandatory and since this condition was not fulfilled by the dealer, the eligibility certificate was rightly cancelled. At the hearing before me, the learned counsel for the revisionist contended that at the time when the unit was established, there was no condition that the land/building should be owned by the dealer or should hold on a lease for more than seven years. He referred to the notification dated December 26, 1985, a copy of which has been annexed to the revision petition. The learned Standing Counsel, on the other hand, referred to the Government order dated March 6, 1986. A perusal of the said Government order would show that it was not a notification issued under section 4-A of the Act. It was a mere inter-departmental communication and any instructions contained therein would have no statutory force so that they can be insisted upon the dealer's establishing new units. It is important to remember that neither the Commissioner nor the Tribunal has held that the eligibility certificate was wrongly granted by the Joint Director of Industries. It was not even so contended by the learned Standing Counsel. At the time when the eligibility certificate was granted and for the period thereof, no such condition was prescribed for the grant of the eligibility certificate and that is why the eligibility certificate was issued to the dealer-revisionist. The Commissioner initiated action for the cancellation of the eligibility certificate after the amendments made by U. P. Act 28 of 1991 became effective. Therefore, it is effect of these amendments that has to be considered. The learned counsel for the revisionist contended that the condition prescribed by the Explanation to the newly added sub-section (6) to section 4-A of the Act was directory in nature. According to him, the purpose of grant of exemption under section 4-A of the Act was to advance industrial development and for that end in view, it was envisaged that a newly set up unit should continue uninterrupted for at least seven years and it is for that end in view the condition was prescribed. According to him, a purposive interpretation should be put to the language and the real intention of the unit holder should be seen. According to him, the present dealer had the intention of acquiring the land permanently so that its industrial unit is firmly established for all times to come and it was in furtherance of that intention that if negotiated the purchase and initially took the land on rent as the sale could not materialise because of the absence of some of the owners from India. It was also contended that at least from August 9, 1988, when the dealer became the owner of the land on which the unit was established, the dealer became entitled to the eligibility certificate and, therefore, even on the coming into force of the aforesaid amendment, the eligibility certificate could not be cancelled. The learned Standing Counsel, on the other hand, contended that the conditions prescribed by the Explanation to sub-section (6) of section 4-A of the Act were mandatory and a unit claiming exemption under section 4-A of the Act must satisfy all the conditions required to make it a new unit. Reliance was placed by either side on a judgment of a Division Bench of this court in P. P. S. Electronics Industries, Kanpur v. State of U. P. 1993 UPTC 853. That was a case in which initially an unregistered lease deed for eight years beginning from May 1, 1989, was executed, but before the expiry of one year, a registered lease deed for the same period of eight years was executed and it was held that this duly satisfied the requirements of law. There is nothing in this case to show whether the condition of owning the land/building or having the same for a period of at least years was mandatory or merely directory. Reliance was place by the learned counsel for the revisionist on another Division Bench Judgment of this Court in Sahu Stone Crushing Industries v. Divisional Level Committee, Jhansi [1995] 98 STC 66 (ALL.); 1994 UPTC 1. That was a case in which the condition regarding registration under the Factories Act was held to be directory. This judgment, therefore, is not strictly to the point. Whether the conditions are directory or mandatory for the purpose of grant of an eligibility certificate is one thing and whether on the particular facts and circumstances of a case, the eligibility certificate granted by the prescribed authority should be cancelled is another. Under the Act, eligibility certificates are granted by a Committee constituted of the Sales Tax Department, Industries Department and executive departments of the State. The Act has not given any power to the Commissioner to act as an appellate or a revisional authority over the judgment of the Committee that grants the eligibility certificate. Sub-section (3) of section 4-A of the Act, as it stood prior to the amendment by U. P. Act No. 28 of 1991, stood as under : " (3) Where the Commissioner of Sales Tax is of the opinion that facility of exemption from, or reduction in the rate of, tax obtained on the basis of an eligibility certificate referred to in clause (d) of sub-section (2) has been misused in any manner whatsoever, he may, by order in writing, cancel the eligibility certificate from such date, whether before or after the date of such order, as may be specified therein. " The above provision would show that the power to cancel an eligibility certificate was given only in cases of misuse of the same by a dealer. No provision was made for cancellation of an eligibility certificate on the ground that it was wrongly issued by the prescribed authority. The amended sub-section (3) cannot be assumed to give the Commissioner the power of revising the decision of the prescribed authority, i. e. , the Divisional Level Committee in this case. No such legislative intention is evident from the language used and the frame and setting of sub-section (3 ). Powers of revision have been conferred on the Commissioner by section 10-B of the Act which authorises him to satisfy himself as to the legality or propriety of an order passed by an officer subordinate to him. Section 4-A (3) of the Act does not say that the Commissioner can call for the record to satisfy himself as to the legality or propriety of an eligibility certificate granted by the specified authority. Earlier, section 4-A (3) of the Act could be invoked by the Commissioner if the facility of exemption has been misused. The scope of this power has now been expanded by the amendment to cover cases where the unit has violated the conditions subject to which the facility or exemption was granted or "that the unit to which the eligibility certificate has been granted is not entitled to such facility. . . ". This power has to be exercised taking the grant of eligibility certificate to be valid and does not entitle the Commissioner to question the certificate itself. The third circumstance, i. e. , "is not entitled to such facility" is ejusdem generis to the preceding two, i. e. , misuse and violation of conditions. Therefore, the disentitlement (not entitled to) must arise out of an act of omission or commission by the unit holder. A legal or factual error made by the authority granting the eligibility certificate would not be a cause to bring the unit holder within the words "not entitled to". It is not difficult to conceive cases which may not come within the scope of misuse or breach of conditions of grant and yet need withdrawal or modification of the eligibility certificate. An eligibility certificate might have been procured by misrepresentation or concealment of material facts. Such misrepresentation or concealment, if discovered later, can authorise the Commissioner to act under section 4-A (3) of the Act. A change in the law is not a circumstance which would entitle the Commissioner to invoke his authority under section 4-A (3) of the Act. The U. P. Sales Tax Act has been amended by U. P. Ordinance No. 21 of 1994 issued by the Governor of Utter Pradesh on September 28, 1994, by which section 10 has been amended to the effect that an order granting or refusing to grant an eligibility certificate within the meaning of clause (d) of sub-section (2) of section 4-A of the Act has been made appealable to the Trade Tax Tribunal. The result is that even the Commissioner of Sales Tax, now known as the Commissioner of Trade Tax, can file an appeal to the Tribunal against the grant of an eligibility certificate. The Tribunal is a superior authority than the Commissioner of Trade Tax. In an appeal by the Commissioner, the Tribunal may uphold the grant of an eligibility certificate and in an appeal by the dealer, the Tribunal may direct the grant of such certificate. The Ordinance has not made any consequential amendment in sub-section (3) of section 4-A of the Act which would be necessary if this provision is assumed to confer a power of review or revision of the eligibility certificate on the Commissioner. It is inconceivable that the Commissioner can interfere with an eligibility certificate granted to a dealer under the orders of the Trade Tax Tribunal by saying that the Tribunal was wrong in granting a certificate and that the dealer was not entitled to the exemption or that having lost an appeal before the Trade Tax Tribunal, the Commissioner can still upset the Tribunal's order. In my view, therefore, the Commissioner of Sales Tax had no jurisdiction to cancel the eligibility certificate because of the subsequent amendments. Then the question arises whether in a case like the present one, is the Commissioner justified in cancelling the eligibility certificate. The power conferred under section 4-A (3) of the Act is discretionary. The legislature has used the word "may", clearly indicating that the power should be exercised only where the default is substantial. It would not be permissible for the Commissioner to deny the dealer the benefit of exemption on account of trivial lapses or for circumstances not of the dealer's own making. The present is a case in which the eligibility certificate was lawfully granted to the dealer-revisionist. It has availed of the exemption and, consequently, not charged sales tax from its customers which it would have otherwise done. The period of exemption expired on August 24, 1990. The law was amended on August 21, 1991, with retrospective effect from September 13, 1985. The dealer conducted himself according to the legislative assurance. The amended provisions do not indicate that the purpose of amendment was to remedy any mischief and do not make any provisions declaring eligibility certificates granted in terns of erstwhile law as invalid or obliging the Commissioner to take corrective action in all such matters. Cancellation of eligibility certificate at such belated stage would cause undue hardship to the revisionist and compel him to meet a financial liability which was not anticipated and about the absence of which it had a legal and administrative assurance. Such an assurance should not be broken by the exercise of a power which the Legislature had not made obligatory and has left it to the discretion and good conscience of the Commissioner. Dealing with the levy of penalty under the Orissa Sales Tax Act, the honorable Supreme Court observed that, "penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard to its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose penalty would be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statue". (See Hindustan Steel Ltd. v. State of Orissa (1970) 25 STC 211 (SC); [1972] 83 ITR 26 (SC ). ] These principles can appropriately be applied to a case like the present one where an unexpected liability is sought to be fastened on a trader who was legislatively assured that there would not be any such liability; who conducted his business affairs acting on that assurance and the law gives the authority concerned the discretion to act fairly and judiciously. It has to be borne in mind that much before the concerned amendment and the initiation of action under section 4-A (3) of the Act, the dealer had become the owner of the land/building. In my view, therefore, even if the Commissioner of Sales Tax had, in law, the authority to act as he did, judiciousness and fairness in exercise of this discretionary power required him to refuse to exercise the power to cancel the eligibility certificate. For the above reasons, I hold that the Commissioner was not justified in cancelling the eligibility certificate granted to the revisionist and the Tribunal erred in law in affirming such cancellation. The revision petition is, accordingly, allowed. The impugned order dated August 16, 1994, is set aside and it is ordered that the revisionist's appeal No. 6 of 1993 against the order under section 4-A (3) of the Act stands allowed and the Commissioner's order dated March 9, 1993, cancelling the eligibility certificate is quashed. Costs on parties. Petition allowed. .;