- (1.) This revision petition has been filed by the assessee being aggrieved by the order of Tax Board dated April 28, 2003, whereby the Tax Board held against the petitioner-assessee that it was not entitled to exemption from tax in respect of two machines purchased by it for setting up of a new industrial unit for manufacture of marble slabs and tiles since the commercial production has been commenced by the petitioner-unit on December 2, 1996, whereas, the two machines in question were purchased on December 21, 1996 and December 28, 1996 about 20 days after the commencement of commercial production by the petitioner-unit. The notification which is required to be interpreted in the present revision petition reads like this: S. No. 972: F.4(11)FDGr.IV/95-53 dated March 27, 1995. S.O. 403.--In exercise of the powers conferred by section 4(2), RST Act, 1954, and in supersession of this deptt. Notification No. F.4(66)FDGr.IV/82-84 dated December 6, 1990 (S. No. 827), the State Government hereby exempts from tax, the sale of all plants and machinery for setting up of a new industry in Rajasthan, on the following conditions:-- 1. that only those units which come into production between March 27, 1995 and March 31, 1997 shall be eligible to avail of this facility. 2. that such plant and machinery is sold to a manufacturer who holds a valid certificate of registration under the RST Act, 1954. 3. that the manufacturer so purchasing the plant and machinery furnishes to the selling dealer, a declaration in writing that the machinery shall be used in the setting up of a new industry in the State. 4. that the selling dealer holds a valid exemption certificate, for which a fixed annual fee of Rs. 100 is payable. 5. that the dealer claiming exemption proves to the satisfaction of the AA that he has neither charged nor demanded any tax on sale of such goods. This notification shall remain in force up to March 31, 1997.
(2.) The learned counsel for the petitioner-assessee submitted that these two machines, namely, block dressing machine and transformer, though were included in the list of plant or machineries in the project report given by the assessee to the concerned authorities and were very much part of the project but mere slight delay in delivery of these machines to the petitioner-assessee, even though orders for the same were placed by the petitioner-assessee on the seller/manufacturer of such machines prior to the commencement of its commercial production, which occurred for reasons beyond the control of the petitioner-assessee, cannot deprive the petitioner-assessee of exemption from sales tax, to which it is otherwise entitled under the aforesaid notification dated March 27, 1995. He submitted that the process of setting up of an industrial unit is a continuous process spread over a period of time and is not like a purchase of any commodity, which transaction is over within no time. He, therefore, submitted that the beneficial legislation in the form of notification dated March 27, 1995 enures to the benefit of new industry and cannot be denied by adopting a pedantic approach as has been taken by the Tax Board in the impugned order. He relied upon the judgments of this court in the case of ACTO, Ward 1, Sirohi v. Shri Vijaya Industries, Kesarpura, Sheoganj,2007 18 TaxupDate 97 and Commercial Taxes Officer, Rajsamand v. Shri Rolex Marbles Pvt. Ltd.,2010 35 VST 417 .
(3.) On the other hand, Mr. V.K. Mathur, the learned counsel appearing for the Revenue, relying upon the decision of the Supreme Court in the case of Tamil Nadu Electricity Board v. Status Spinning Mills Ltd., 2008 AIR(SC) 2838 submitted that the process of setting up of an industry was over as soon as it commenced commercial production on December 2, 1996 and, therefore, any purchase of machinery thereafter would not be eligible for exemption under the said notification dated March 27, 1995.;