- (1.) HEARD Shri Bharatji Agarwal, learned Senior Counsel, for the petitioners, and Sri V. N. Agarwal, learned Standing Counsel, for the respondents. By this petition, the petitioners seek a writ, order or direction in the nature of mandamus commanding the Chairman, New Okhla Industrial Development Authority (NOIDA), Ghaziabad (respondent No. 1), to modify the eligibility certificate dated March 29, 1993 (annexure 4 to the writ petition) issued under section 4-A of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "the Act") in favour of the petitioners exempting the petitioners from payment of sales tax at the rate of 125 per cent instead of 100 per cent. In short, the case of the petitioners is that the petitioners have established an industrial unit at W-32, Sector XI, NOIDA (petitioner No. 1), which is a public limited company, of which petitioner No. 2 is the Managing Director, for manufacturing flexible packing material. Petitioner No. 1 is registered under the U. P. Sales Tax Act as well as under the Central Sales Tax Act. It is contended by Shri Bharatji Agarwal that the petitioner-unit is registered as a small-scale industrial unit with the Directorate of the Industries, Ghaziabad, as the total investment of the petitioners is Rs. 50,63,300. It is also submitted that for establishing such an industrial unit if the total expenditure incurred by the industrialist is less than Rs. 60,00,000, the same unit will come within the purview of small-scale industries and will be entitled for exemption from payment of sales tax at the rate of 125 per cent. The respondents have acted contrary to the provisions of section 4-A of the Act and the Rules framed thereunder as well as contrary to the Government orders issued by the State Government from time to time by granting the exemption at the rate of 100 per cent instead of 125 per cent. Shri Bharatji Agarwal, therefore, submits that the exemption granted to the petitioners at the rate of 100 per cent be modified by granting the same at the rate of 125 per cent in accordance with the provisions of section 4-A of the Act. It is submitted that the same prayer was made before the authority concerned by making an application for review/modification of the order dated March 29, 1993 (annexure 4 to the writ petition) but the same has been rejected by order dated September 7, 1993 (annexure 6 to the writ petition) received by the petitioners on September 13, 1993. The learned counsel further submits that the said order dated September 7, 1993 (annexure 6 to the writ petition) rejecting the review/modification application of the petitioners has been passed in a very cryptic manner without assigning any reason therein and thus the same being not a speaking order deserves to be set aside on this ground alone. Arguing on merits, as to whether the petitioners are entitled to claim exemption at the rate of 125 per cent instead of 100 per cent, Shri Bharatji Agarwal gave references of various Government orders and Rules demonstrating that when the nature of an industry comes within the purview of small-scale industry having incurred less than Rs. 60,00,000 as its total expenditure the same is entitled to exemption from payment of sales tax at the rate of 125 per cent rather than at the rate of 100 per cent and, therefore, the review authority should have taken into consideration this aspect of the manner also and should have passed a speaking order. Controverting the submissions of Shri Bharatji Agarwal, Shri V. N. Agarwal, learned Standing Counsel, submits that in the counter-affidavit it is stated that the registration of the petitioner-unit has already been cancelled by the order dated February 24, 1993 and, therefore, after cancellation of the registration the question of granting exemption under section 4-A of the Act including the prayer for modification of the impugned order dated March 29, 1993 (annexure 4 to the writ petition) does not survive. Although no rejoinder-affidavit is filed, yet Shri Bharatji Agarwal submits that the legal position is well-settled. Once recognition is granted to the petitioner-unit as a small-scale industry, cancellation of registration of the same has no bearing upon it and on the basis the exemption under section 4-A of the Act vis-a-vis granting eligibility certificate as prayed for cannot be denied. Thus his submission with regard to the cancellation of the registration hardly matters to the petitioner-unit in granting the relief under section 4-A of the Act. It is also submitted that the petitioner-unit being established after March 31, 1990, non-registration of the same was not a legal impediment for grant of the eligibility certificate. In this respect it is submitted that the matter in issue was thoroughly investigated by the authority concerned and it was only after satisfying itself that the eligibility certificate (annexure 4 to the writ petition) was issued by the authority concerned certifying that the petitioners have invested Rs. 50,63,300 as the total amount which is less than Rs. 60,00,000 and, therefore, the petitioners are entitled to the relief sought for. Having gone through the impugned order and considering the rival contentions of the learned counsel for the respective parties, this Court is of the opinion that the points in issue canvassed before us require adjudication upon the same and, therefore, this Court in its extraordinary jurisdiction under article 226 of the Constitution does not think it proper to investigate into the facts involved in this case. Therefore, in the considered opinion of this Court the case deserves to be remanded to the authority concerned for adjudication upon the points in issue and passing suitable orders in this regard considering the provisions of section 4-A of the Act and the rules framed thereunder as well as the Government orders issued from time to time in this behalf. Consequently, the impugned order dated September 7, 1993 (annexure 6 to the writ petition) deserves to be set aside. Thus, in view of the aforesaid discussions this Court directs the authority concerned to adjudicate upon the points in issue after affording reasonable opportunity of being heard to the petitioners and taking into consideration the aforesaid relevant rules and Government orders issued from time to time and further in view of the argument advanced by the learned Standing Counsel that the registration of the petitioner-unit is cancelled and also considering whether grant of the relief sought for by the petitioners will create any legal impediment. As a result thereof, the impugned order dated September 7, 1993 (annexure 6 to the writ petition) is quashed and the petition stands allowed to the extent indicated above. It is further directed that the authority concerned shall decide the petitioner's case afresh within three months from the date of producing a certified copy of this order before it in the light of the observations made above. A certified copy of this order be issued to the learned counsel for the petitioners within three days on payment of usual charges. Case remanded. .;