PRAKASH KRISHNA, J. - (1.) THE applicant is a new unit within the meaning of Section 4A of the U.P. Trade Tax Act, 1948 which was established in the year 1985 and was granted 'eligibility certificate' under Section 4A of the Act for the period up to June 29, 1991. The unit was subsequently expanded and it applied for further exemption on account of its expansion. The 'eligibility certificate' was granted on March 16, 1994 granting exemption from July 7, 1991 to July 6, 1999 for the amount of Rs. 1,06,73,783.88. In the 'eligibility certificate', 'base production' was determined at 3,403.95 metric tons equivalent to 34,03,350 kilograms. Indisputably, the exemption was available in each year on the turnover of goods over and above the 'base production'. The assessment year involved herein is 1992 -93 (U.P.). During the assessment proceedings, the contention of the dealer -applicant was that it is entitled to exemption over and above the 'base production' for the assessment year under consideration. The said contention was not found favour with by the assessing authority. He was of the view that the dealer -applicant was not justified in claiming exemption from the very opening months of the assessment year in question. He took the view that the 'base production' was achieved on November 25, 1992 and as such, the dealer -applicant was liable to pay tax on the production made up to that date, i.e., November 25, 1992, vide order dated November 22, 1995. The said order was challenged in appeal before the first appellate authority successfully. The first appellate authority took the view that the dealer -applicant is liable to pay the tax on 'base production', i.e., 34,03,350 kilograms and the dealer -applicant has paid the tax on 37,22,664 kilograms, therefore, the assessment order is not sound, vide order dated April 9, 1996. The order of the first appellate authority has been set aside and the assessment order has been restored by the Tribunal in second appeal filed by the Department by the order under revision.
(2.) IN the memo of revision, the following questions of law have been sought to be raised: (i) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in allowing the appeal of the Commissioner of Sales Tax, setting aside the order of the Deputy Commissioner (Appeals) and restoring the order of the assessing authority? (ii) Whether the view of the Tribunal in calculating/granting exemption under Section 4A is legally correct and justified? (iii) Whether in view of the fact that under Section 4A, the applicant was liable to pay tax only on the quantity of base production, i.e., on 34,03,350 kilograms and was entitled for exemption on the quantity over and above 34,03,350 kgs inasmuch as the applicant has wrongly admitted the tax on the quantity of 37,22,664 kilograms, is the Tribunal still justified in disallowing the claim of exemption and estimating taxable turnover at Rs. 11,71,906 in place of Rs. 9,40,767.93? The learned Counsel for the dealer -applicant submits that the dealer is entitled to avail of the exemption on the basis of the turnover of sale of goods in the assessment year, minus the base production. The learned Standing Counsel, on the other hand, submits that a dealer is required to achieve the base production first. The goods produced over and above the base production are entitled for exemption from trade tax. Unless and until the said stage of achieving the base production is arrived at, a dealer is liable to pay trade tax on the goods so produced till it achieves the base production.
(3.) CONSIDERED the respective submissions of the learned Counsel for the parties and perused the record.;