- (1.) THIS is a revision under Section 11 of the U.P. Trade Tax Act against the order dated 22nd of December, 2000 passed by the Trade Tax Tribunal in appeal No.78 of 1997 -1998. The present revision arises out of the proceedings under section 4 - A of the U.P. Trade Tax Act (hereinafter referred to as the Act). The applicant, a registered dealer, engaged in the activity of manufacture and sale of welding electrodes, MS Wires and Flex Cables applied for grant of eligibility certificate under section 4 -A of the Act for exemption from trade tax for a period of eight years commencing from 21st November, 1991. The said application for grant of eligibility certificate under section 4 -A of the Act was filed on April 10, 1992. The Divisional Level committee partly accepted the said application and granted the exemption for a period of 10 months from 26th November, 1991 to 29th of September, 1992. The eligibility certificate for the remaining period was refused by it on the ground that in the survey dated 20th Septem ber, 1992, the Surveying Officer found five old wire drawing machines which were in stalled. Being dissatisfied by the order of the Divisional Level Committee an application for review, as permissible under law was filed which also met with the same fate by the or der dated 3rd of March, 1997. These two or ders were challenged by way of appeal before the Trade Tax Tribunal which came up for consideration before a three Member Bench as provided for under section 10 of the Act. The tribunal decided the said appeal by pass ing an order dated 21 -1 -2000 remanding the matter to the Divisional Level Committee to record a finding as to whether these five ma chines (wire drawing machines) were used by the dealer or not. The said order was sub ject matter of challenge at the instance of the assessee in T.T.R. No.446 of 2000 before the High Court. The High Court by the judgment and order dated 1st of August, 2000 set aside the order of remand passed by the tribunal and directed it to decide the appeal itself in the light of the observations made in the judgment. After remand, by the order under revision the tribunal has dismissed the appeal. Hence the present revision.
(2.) IN the memo of the revision the follow ing questions of law have been sought to be raised: - (i) Whether, the finding of the Tribunal that the applicant was found using the five old machines during survey dated 23 -7 -1994, is in the teeth of the judgment of this Court dated 1 -8 -2000. (ii) Whether, the finding of the Tribunal that the applicant had used the five machines in question in its manufacturing activity is per verse. There is no material on record, which may establish this fact. (iii) Whether, the finding of the Tribunal that the judgment in the case of Mansarover Bottling does not apply to the present case, is perverse and wholly illegal. (iv) Whether, even otherwise, the judgment and order of the Tribunal is liable to be set aside and the applicant is entitled to full ex emption. Shri S. D. Singh, learned counsel for the applicant submits that in view of the earlier judgment of this Court, the tribunal was not justified in holding that these five old machines were used by the dealer in the manufacturing process. Elaborating the argument, he submits that even in the survey dated 23.7.1994 the applicant was not found actually using these machines. Submission is that these five ma chines were purchased by the applicant from M/s. Nahata Cosmetics and Chemicals Lim ited and that no manufacturing activity by the dealer has been carried out with the use of five drawing machines. In the alternative, it was submitted that the applicant has not claimed exemption under section 4 -A of the Act by including cost price of these machines and the exemption application should be con sidered on its own merit notwithstanding the fact that after filing of the said application, the applicant has made additions or alterations in the unit by installing five old machines. Strong reliance was placed on a judgment of this Court in M/s. Mansarovar Bottling Company Lim ited v. Commissioner, Trade Tax U.P. 1999 UPTC 864 (para 8). Learned standing counsel, on the other hand, supports the impugned orders and sub mits that on a plain language of section 4 -A (6) (2) (a) of the Act, the unit of the dealer cannot be treated as a 'new unit'. The said provision defines 'new unit' established after 31.3.1990. Any factory or workshop using machinery, plant, equipment, apparatus or components already used or required to be used in any other factory or workshop in India ex cept the boiler etc., is not included in the defi nition of 'new unit'. The tribunal which is a last fact finding authority, has found that the applicant has purchased five machines which on its own showing were not 'new'; they were second hand machines as they were earlier purchased by M/s. Nahata Cosmetics Pvt. Ltd., admittedly, and were sold after 20 months to the applicant.
(3.) CONSIDERED the respective submissions of the learned counsel for the parties and perused the record. The fact that the applicant has purchased five old wire drawing machines which were found in the survey dated 30th September, 1992 in the applicant's premises, is not in dispute. These machines were pur chased from M/s. Nahata Cosmetics Pvt. Ltd. M/s. Nahata Cosmetics Pvt. Ltd. had pur chased these machines for their own purposes, but according to the applicant they were not put to use for some reasons or the other and were sold to the applicant after about 20 months. The submission of the learned coun sel for the applicant is that even in the said survey, Surveying Officer has not reported that these machineries were actually found in use by the dealer, therefore, the applicant's unit is a 'new unit' within the meaning of sec tion 4 -A of the Act. The relevant statutory provision for the sake of convenience is reproduced hereinaf ter. The Explanation given in Section 4 -A of the Act defines a 'new unit', established after 31st of March, 1990. It reads as below: - Explanation. - For the purposes of this Section - (1) 'new unit' during the period ending with March 31, 1990, means an industrial under taking set -up by a dealer on or after October 1, 1982 but not later than March 31, 1990 - (a) to (e).................................... xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx (2) 'newunit', after March 31, 1990, means a factory or workshop set -up by a dealer after such date and satisfying the conditions laid down under this Act or Rules or Notifications made thereunder with regard to such factory or workshop and includes an industrial unit manufacturing the same goods at any other place in the State or an industrial unit manu facturing any other goods on, or adjacent to the site of an existing factory or workshop, but does not include - (a) any factory or workshop using machin ery, plant, equipment, apparatus or compo nents already used or acquired for use in any other factory or workshop in India other than [boilers, generators, moulds and dyes] and other than any machinery, plant, equipment, apparatus or component sold to it by any Government Company or any Corporation owned or controlled by the Central or State Government]; or (b) any factory or workshop manufactur ing the same goods established by a person on or adjacent to the site of an existing factory or workshop manufacturing the same goods wherein such dealer has interest as proprietor or partner or agent or managing director or promoter, director or as holding company or subsidiary company [if such existing factory or workshop is closed]; (c) any addition to or extension of an exist ing factory or workshop not being an exten sion, diversification or modernization within the meaning of Clause (5) of this Explanation.;