Rajes Kumar, J. - (1.) The present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as 'Act') arising from the order dated 23.9.2004 passed by full Bench of Trade Tax Tribunal U.P. Lucknow.
(2.) The brief facts of the case are that the applicant established a new Unit at Rampur Road, Moradabad for manufacture and sale of Industrial Oxygen Gas in the year 1994. It was registered under the U.P. Trade Tax Act as well as under the Central Sales Tax Act and also obtained registration under the S.S.I. District Industries Center, Moradabad. The Unit applied for exemption certificate under Section 4-A of the Act in respect of Industrial Gas and it was granted exemption certificate on 1.1.1996 for the period of nine years w.e.f. 14.12.1994, the date of first sale or 150 per cent of the fixed capital investment of Rs. 38,22,323/- i.e. up to tax amount of Rs. 57,33,384/- which were expires earlier.
(3.) Applicant subsequently established another Unit as Unit No. 2 in the same premises called as an Air Separation Plant in the year 1998 by making total investment of Rs. 57,41,537.16 for the manufacture of Air Product Oxygen. Liquid Nitrogen, Gaseous Nitrogen and Medical Oxygen. The Unit applied for S.S. I. Registration Certificate and the same was issued on 9.8.1999 for the manufacture of the above named four products. The Unit started production from 22.12.1998 and the date of first sale was also 22.12.1998. The Unit applied for exemption under Section 4-A of the Act before the District Industries Centre on 21.6.1999. This application was allowed and the Certificate was issued vide order dated 27.7.2000 granting exemption for a period often years from 22.12.1998 i.e. date of first sale or 200 per cent of the fixed capital investment of Rs. 57,19,382.00 or up to Rs. 1,14,38,764/- of the tax amount, which were expired earlier. However, restrictions was imposed in this order that provisions of Section 4-A (5) (d) of the Act would be applicable to the Unit and thus the production of the second Unit should not be less than the base production, the turnover of second Unit and if the production of the first Unit falls short of the base production, the turnover of second Unit to the extent of such shortfall of base production in the first Unit shall be subject to tax. According to the applicant, the aforesaid four products manufactured by the Unit No. 2 in respect of which exemption was sought were different from Industrial Oxygen Gas which was being manufactured by Unit No. 1 and in respect of which, exemption certificate was earlier issued.;