BALIA, J. - (1.) THESE two writ petitions arise out of the same judgment passed by the Rajasthan Taxation Tribunal, Bench at Jodhpur. D. B. Writ Petition No. 2391/97 is filed by the Commissioner Commercial Taxes, Rajasthan Jaipur, to the extent that the Tribunal has held that the Assessee M/s Vikas WSP Limited, Sri Ganganagar unit is entitled to the benefit of Notification dated 13. 6. 1994 in respect of new unit established on plot No. B-86 for manufacturing Gwar Gum Powder with installed capacity of 28 MT Guar Gum Powder is wholly Export Oriented unit which is duly registered with Central Government as Export Oriented Unit. The D. B. C. Writ Petition No. 3223/97 has been preferred by Assessee M/s. Vikas WSP Limited to the extent it was dissatisfied by the order of the Tribunal that it is not entitled to benefit of notification in respect of plant installed at Plot No. B-87, Udyog Vihar, Sri Ganganagar with a capacity of 14 MT production of Gwar Gum Powder per day, which was not a new manufacturing undertaking.
(2.) THE brief facts necessary for the purpose of present controversy needs to be noticed. A Gwar Gum Powder unit was set up on 22. 6. 88 by M/s. Vikas Chem. (P) Ltd. at plot No. B/87. It started its commercial production on 18. 2. 89. At that time its production of Gwar Gum Powder capacity was 7 MT per day. On 29th Sept. 1990 on the same Plot No. B/87 another unit was set up with the capacity of 7 MT production per day. THE second new plant went in production in June 1992 and total capacity of two plants situated at Plot No. B/87 cumulatively became 14 MT Gwar Gum Powder production per day. Thereafter M/s Vikas Chem. (P) Ltd. under went the change and it was converted into public limited, under the name and style of M/s Vikas WSP Ltd. , it is that company which is now Assessee in this case. In September 1992 vide application dated 8th Sept. , 1992, said company applied for registration before the Directorate of Ministry of Industries, Government of India, to establish a 100 % Export Oriented Unit (in short EOU) with the production capacity of 42 MT Gwar Gum Powder per day. To reach this capacity, a new plant with the capacity of production of 28 MT production per day was set up at Plot. No. B-86. According to the Assessee after the private limited company was converted into a public limited company, the old units were closed and production was stopped. Thereafter, again commercial production in all units started from 24th June 1994 only after its registration as 100% E. S. U. and first raw material was purchased on 29th June 1994. However, prior to that date, Notification dated 13th June 1994 has been issued by the State Govt. in exercise of its powers under section 4 (2) of the Rajasthan Sales Tax Act, 1954, providing exemption from tax the sale to or purchase by a 100% export oriented new manufacturing unit, of raw material required by such unit for use in the manufacturing of other goods to the extent indicated in the scale mentioned in schedule appended to the notification. For the present purposes, reference to the schedule is not relevant. The claim of the Assessee to exemption on all purchases of raw material made by the assessee after commencement of the said notification dated 13. 6. 94 was accepted by the Assessing Officer in respect of in all the three units with production capacity totaling to 42 MT of Gwar Gum Powder per day. However, the Commissioner in exercise of his revisional powers held that exemption allowed to the Assessee is erroneous and prejudicial to the interest of Revenue. This order was made on 19. 2. 97. This order was subjected to appeal before Rajasthan Taxation Tribunal at Jodhpur, Bench Jodhpur. The Tribunal by its order dated 21. 03. 1997 found that so far as new plant set up on Plot No. B-86 with the capacity of production of Gwar Gum Powder of 28 MT per day must be held to be a new 100% export oriented manufacturing unit and on the purchases made in respect of said unit must be held entitled to exemption under notification dated 13. 6. 94. However, the Tribunal said that 2 units set up on Plot No. B-87 prior to the application made by the Assessee for registration of its unit as 100% Export Oriented Unit, the petitioner cannot be held to be entitled to avail the said tax benefit as the said Units were not initially set up for the purpose of elevating exports. The Tribunal noticed that the company was converted into a public limited company and it applied to the Department of Industries, Government of India, for permission to set up a 100% EOU which was granted to it on 30. 10. 92. The existing unit did produce 14 MT Guawar Gum Powder. Later it had the capacity to produce 42 MTD including 14 tones per day capacity it had earlier. Its industrial units are situated at Plot Nos. 86 and 87 at Sri Ganganagar and it has been registered as a 100% ESU with the Department of Industries, Government of India. On these premises, the Tribunal reached its conclusion that installation of plants on Plot No. B-86 with the capacity to produce 28 MT per day was set up after application for registration as 100% EOU was made therefore, is the new Industrial Unit which is eligible for all benefits under Notification dated 13. 6. 94 whereas units producing 14 MT Gwar Gum Powder were existing, prior to making of the application for the registration of the Units as 100% EOU, they cannot be considered be new manufacturing unit within the meaning of said Notification. On these findings, the Tribunal held that industrial unit set up on B-86 with 28 MT capacity shall be treated to be a new manufacturing unit for the purposes of notification dated 13. 6. 94. It has an existing plaint of 14 MT production per day. To raise total production to 42 MT, a new manufacturing unit with installed capacity of 28 MT Gwar Gum Powder was set up at Plot No. B/86 and on that basis it would have claimed exception from tax on sale to or purchase by it of the raw material for the manufacture of goods and tax exemption to be apportioned accordingly.
(3.) IT is against this order dated 21. 03. 1997 passed in O. A. No. 64/1997, these two writ petitions are before us. The contention of the counsel for the Revenue is that under Notification the benefit is extended only to a new manufacturing unit and not to existing unit, therefore, the Assessee being existing manufacturer, it is not entitled to benefit under the Notification dated 13. 6. 94. On the other hand, it is contended by the Assessee that the undertaking has been registered as new industrial unit with the Government of India under the Export Oriented Units (EOUs) and Units in Export Processing Zone (EPZ) 1992-97 as provided thereunder. It is 100% EOU registered with the Government of India. This is the only condition. The fact that partially its production capacity was existing prior to its registration would not alter the situation. The requirement is not that the Unit should be set up after the commencement of Notification. The requirement is that it should be registered as 100% EOU with the Government of India which the Assessee is. ;