RAJES KUMAR, J. - (1.) THE present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as 'Act') is directed against the order of Full Bench of Tribunal dated 19.09.1998 relating to assessment year 1999 -2000.
(2.) THE brief facts of the case are that the applicant is a Private Limited Company incorporated under the Indian Companies Act. Applicant established a Unit for manufacturing of Laundry Soap and Detergent Powder. The Unit was established in its own land. The total investment towards machines was to the extent of Rs. 3,19,960/ - consisting of one machine named as Pouch Sealing Machine valuing Rs. 24,400/ -. Such machine was required for packing purposes. Admittedly, Pouch Sealing Machine was initially imported by the Finn M/S Gorakhpur Grah Udyog Kendra, Gorakhpur and thereafter, it was transferred to the applicant. Applicant claimed exemption under the Government Order dated 30.9.1982 under Section 4 -A of the Act on the turnover of manufactured goods. The exemption application was processed and thereafter, an Eligibility Certificate was issued on 14.2.1994 granting exemption for the period of five years from 1.9.1983 to 31.8.1988. The Commissioner of Trade Tax issued a notice under Section 4 -A (3) of the Act purporting to cancel the Eligibility Certificate granted on 14.2.1994 on the ground that (a) One Pouch Sealing Machine was acquired by M/S Gorakhpur Grah Udyog Kendra. Gorakhpur and thereafter, transferred to the applicant (b) A capital investment in the Unit is less than Rs. 3 Lacs (c) Land and building were not in the name of Unit (d) Unit has taken electricity connection on 17.11.1983 (e) Unit was not registered under the Indian Factories Act. Applicant filed reply to the notice. After consideration of the reply to the notice. Commissioner of Trade Tax vide order dated 27.3.1993 cancelled the Eligibility Certificate from very beginning on the ground that the Unit was not entitled for exemption under Section 4 -A of the Act. The Eligibility Certificate was cancelled mainly on the ground that the Unit had installed one Pouch Sealing Machine, which had been acquired by M/S Gorakhpur Grah Udyog Kendra, Gorakhpur, and the Unit was not registered under the Indian Factories Act, thus, had not fulfilled the conditions of being new Unit under Section 4 -A of the Act. Being aggrieved by the said order, applicant filed appeal before the Tribunal. The Tribunal by the impugned order, dismissed the appeal. Tribunal held that the production was made during the period 1.9.1983 to 31.8.1988 with the help of Generator acquired by another Unit. The Tribunal has accepted the submissions of the applicant with regard to the use of Generator in the manufacturing and not obtaining the registration under the Indian Factories Act. The Tribunal, however, held that the Unit was not eligible for exemption because it had used Pouch Sealing Machine, which was earlier acquired by M/S Gorakhpur Grah Udyog Kendra, Gorakhpur and the applicant had purchased such machine from the said Company, relying upon the decision of Apex Court in the case of State Level Committee v. Morgardshammar India Ltd. reported in 1996 UPTC page 213. The Tribunal in its order referred a document dated 7.8.1983 available in the file of DLC which is in the form of Certificate issued by Sri R.C. Gupta, Proprietor of M/S Gorakhpur Grah Udyog Kendra, Gorakhpur certifying that the Pouch Sealing Machine was purchased by his Unit from Spark Electronics, Bombay for Rs. 24,440/ - and since it was not much useful for their purposes, hence, lying idle and M/S Chetna Chemicals Pvt. Ltd. was willing to buy the machine, hence, the machine had been transferred in the name of M/S Chetna Chemicals Pvt. Ltd.
(3.) HEARD learned Counsel for the parties.;