M. C. JAIN, J. - (1.) THIS revision is directed against the order of the Tribunal dated 31st July, 1985, whereby the Tribunal dismissed the appeal of the Revenue filed against the appellate judgment of the Deputy Commissioner (Appeals) dated 16th June, 1978. The assessing authority found that Agrawal Oil Mills, Dausa, is nothing but an extension of existing factory Shankar Oil Mills and is not a new unit. The assessee went in appeal before the appellate authority and the appellate authority accepted the appeal. Dissatisfied with the order second appeal was preferred before the Tribunal. The Tribunal found that Agrawal Oil Mills is a new unit and as such is entitled to remission of tax. The finding arrived at by the Assistant Commercial Taxes Officer was reversed.
(2.) SHRI G. S. Bapna, learned counsel for the petitioner submitted that the material which had come on record before the Assistant Commercial Taxes Officer has not been properly considered by the Tribunal. The relevant facts in order to arrive at the finding as to whether the unit is a new unit and whether is covered under the Notification F. 5 (15)FDCT/70-25 dated 1st July, 1970, applies to the claim of new unit or not, were not taken into consideration by the Tribunal and the Tribunal proceeded to hold that Agrawal Oil Mills is a new unit on considerations which are not germane and relevant. According to the Tribunal a new unit can be established even in the premises of an existing factory provided the existing factory is not a producing unit and the Tribunal also expressed that the fact that in the immediate neighborhood a unit belonging to another partnership pre-existed and some facilities were commonly used for sometime, would not make a difference in law. It is only fair to the whole scheme of this provision that an understanding and liberal view be taken in favour of the assessee unless both as a unit of production and unit of ownership, no two views are possible. It may be mentioned that the following note is appended to the notification in order to treat a particular new unit a notified industry : " Note.- For the purpose of this notification 'new unit' means factory or workshop using machinery or substantial parts thereof not already used or acquired for use in any other factory or workshop in Rajasthan, but does not include any factory or workshop established on the site of an existing factory or workshop manufacturing the same goods or any addition to or extension of an existing factory or workshop for manufacturing the same goods. " It appears that this note has not gone into consideration of the Tribunal and that apart the fact of use of machinery and other facts which were taken into consideration by the assessing authority were not examined by the Tribunal. In such circumstances, in my opinion, it would be proper that the matter may be sent back to the Tribunal to examine the question as to whether M/s. Agrawal Oil Mills is a new unit or not in the light of the notification as well as in the light of the factors which were taken into account by the assessing authority. This revision is, therefore, allowed and the order of the Tribunal is set aside and the case is sent back to the Tribunal for decision in accordance with law and in the light of the observations made above. Revision petition allowed. .;