JUDGMENT Rajes Kumar, J.
1. These three revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act" ) are directed against the order of Tribunal dated 08.05.1996 in Appeal no.484 of 1995 relates to the proceedings under Section 4-B (4) of the Act,; Appeal no.485 of 1995 for the assessment year 1987-88 arising from the proceedings under Section 3-B of the Act and Appeal no.486 of 1995 relating to the assessment year 1988-89 arising from the proceedings under Section 21 of the Act.
2. Dealer/opposite party was involved in the business of manufacture and sale of bakery products. Recognition certificate under Section 4-B of the Act was granted on 16.05.1986 w.e.f. 02.12.1985 permitting the dealer to purchase Atta, Maida, Suji and packing material availing full exemption and ghee at the concessional rate. Assessing authority amended the aforesaid recognition certificate vide order 28.12.1988 w.e.f 02.12.1985 under Section 4-B (4) of the Act and the exemption granted on packing material and ghee have been withdrawn. Assessing authority was of the view that under the notification no.ST-4519 dated 29.08.1987 full exemption was available on the purchase of atta, maida and suji and not to any other material and, therefore, exemption on the purchase of ghee and packing material have been withdrawn and the dealer was allowed to avail the benefit of full exemption only on the purchase of atta, maida and suji. In consequence to the order passed under Section 4-B (4) of the Act assessing authority also passed the order under Section 3-B of the Act for the assessment year 1987-88 and demanded the amount to the extent of benefit availed on the purchases of packing material and ghee on the ground that Form 3-B issued for the purchases of ghee and packing material were false and wrong. An order under Section 21 of the Act was also passed for the assessment year 1988-89 and lax has Ken assessed and the demand has been raised under Section 3-B of the Act on the ground that Form 3-B issued in making the pun liases of packing material and ghee were wrong and false. Against the orders of the assessing authority dealer filed appeals before the Deputy Commissioner (Appeals). Deputy Commissioner (Appeals) vide order dated 21.11.1995 rejected all the three appeals. Dealer filed Second appeals before the Tribunal. Tribunal by the impugned order flowed all the (sic) appeals and set aside all the three orders passed by the assessing authority. Tribunal has set aside the order passed under Section 4-B (4) of the Act on the ground that condition of Section 4-B (4) of the Act for the amendment of the recognition certificate was not available and, therefore, order was bad in law and accordingly, entire order passed under Section 4-B (4) of the Act has been set aside. Tribunal further held that the order passed under Section 3-B of the Act for the assessment year 1987-88 was barred by limitation. Tribunal treated it as a assessment order and held that the it was passed alter the expiry of four years. So far as order passed under Section 21 of the Act is concerned, Tribunal held that the recognition certificate was earlier amended by the assessing authority on 31.10.1988 under Section 22 of the Act and the facility of the exemption on the purchase of packing material and ghee was withdrawn and the said order was set aside by the Tribunal on 26.09.1989 and, therefore, no amount can be demanded under Section 3-B of the Act for the purchase of packing material and ghee.
3. Heard learned counsel for the parties.
4. Learned Standing Counsel submitted that the order of the Tribunal is patently erroneous. He submitted that under Section 4-B (4) (ii) of the Act, the assessing authority has power to amend the recognition certificate for any "Sufficient reason". He submitted that the assessing authority had amended the recognition certificate on the ground that under the notification dealer was entitled for the benefit of full exemption on the purchase of atta, maida and suji and not on any other matuial and the recognition certificate permitting the dealer to purchase packing material on full exemption and ghee at concessional rate was wrong and hence the order of the Tribunal is vitiated. He further submitted that the Tribunal has wrongly treated the order passed under Section 3-B of the Act as assessment order and held the order barred by limitation. He further submitted that the vide order dated 26.09.1989 Tribunal has set aside the earlier order dated 31.10.1988 passed under Section 22 of the Act on the ground that such withdrawal could not be made under Section 22 of the Act, in as much as there was no mistake apparent on the face of the record. Tribunal has not adjudicated the issue on merit, therefore, said order of the Tribunal was not binding on merit. He submitted that under the notification the dealer was only entitled for the full exemption on atta, maidu and suji and not on any other items, therefore, the amendment of the recognition certificate was justified and the demand under Section 3-B of the Act vas also justified. Learned counsel for the dealer has not disputed that the dealer was only entitled for the benefit of full exemption on the purchase of atta, maid and suji and not on any other items. He has also not disputed that the recognition certificate could be amended under Section 4-B (4) (ii) of the Act as any other sufficient reasons. He submitted that the recognition certificate can only be amended with prospective effect i.e. from 28.12.1988 and not with retrospective effect. In support of his contention he relied upon the Division Bench decision of this Court in the case of Sivalik Limited, Moradabad v. State of U.P. and Ors., reported in 1992 UPTC, 1. He submitted that though the order of the Tribunal setting aside the order passed under Section 3-B of the Act treating it as assessment order as barred by limitation is not correct but the order under Section 3-B of the Act is not sustainable on the ground that during the relevant period ; dealer was holding the recognition certificate and was entitled to purchase packing material and ghee against Form 3-B and these Forms 3-B issued was neither wrong nor false and, therefore, order passed under Section 3-B of the Act for the assessment year 1987-88 is not sustainable. In support of his contention he relied upon the decision of this Court in the case of Gram Udyog Kutir Sabun Utpadan Sadhan Sahkari Samiti Ltd., Farrukahabad v. CST, reported in 1993 UPTC, 502 and in the case of Solur Premises (P) Ltd., Roorkee, Hardwar v. CST, reported in 1996 UPTC, 987.
5. So far as the order passed under Section 21 of the Act for the assessment year 1988-89 is concerned he submitted that the demand could be raised only for the period after 28.12.1988, the date on which recognition certificate was attended under Section 4-B (4) of the Act.
6. Having heard learned counsel for the parties. I have perused the order of the Tribunal and the authorities below.
Section 4-B (4) of the Act reads as follows:
"(i) Where the assessing authority is satisfied that the dealer in whose favour the recognition certificate in respect of any goods was granted under sub-section (2)
(a) has discontinued the manufacturing business for the purpose whereof the recognition certificate was granted; or
(b) has made a breach of any condition of the recognition certificate; or (bb) has failed to pay , penalty or other dues payable under this Act within a period of three months from the date such tax, penalty or other dues became payable; or
(c) has failed to furnish the security required under Section 8-C; or
(d) is a firm, association or a joint Hindu family which, within the meaning of the explanation to Sub-section (1) of Section 18, is deemed to have discontinued Its business, such authority, may, cither of its own motion or on the application of the dealer, cancel the recognition certificate with effect from such date as it may specify."
(ii) The assessing authority may amend a recognition certificate granted under sub-section (2) either of its own motion or on the application of the dealer, where the dealer has changed the name or place of his business or has closed down any branch or has opened a branch or for any other sufficient reason:
Provided that no recognition certificate shall be cancelled or amended by Assessing Authority of its own motion except after reasonable opportunity of being heard has been given to the dealer.
7. Section 4-B (ii) contemplates that the order can be amended for any other "sufficient reasons". Thus if dealer was not entitled for the benefit of the exemption on the purchase of packing material and ghee, the recognition certificate could be validly amended. Under the notification no. ST-4519, dated 29.08.1987 bakery product has been treated as notified goods as per Annexure-II to the notification and full exemption was available on the purchase of atta, tnaida and suji. Under the notification partial exemption was available to all other raw material required for manufacturing of "all other goods" means goods other than mentioned in Annexure-1 & II of the notification and therefore, partial exemption was not available to any other item. However, it appears that vide notification no.2346 dated 01.12.1990 partial exemption has again been given to all other raw material, which were required in bakery product. It is settled principle of law that the recognition certificate can not be amended with retrospective effect. Reliance is placed on the Division Bench decision of this Court in the case of Sivalik Limited Moradabad v. State of U.P. and Ors.(Supra), therefore, recognition certificate be only treated to have been amended w.e.f. 18.12.1988. In this view of the matter order of the Tribunal in appeal no.484 of 1995 is liable to be set aside. It is held that the order passed under Section 4-B (4) of the Act of the assessing authority is justified but amendment would operate only prospcctively from 28.12.1988 and not retrospectively.
8. Since the order under Section 4-B (4) of the Act amending recognition certificate has been held to operate w.e.f. 28.12.1988 it is held that the dealer was holding valid recognition certificate during the assessment year 1987-88 and was entitled to purchase the packing material without any tax and ghee at concessional rate and. therefore. Form 3-B issued for the assessment year 1987-88 can not be held to be false or wrong and accordingly, the demand made under Section 3-B of the Act was not justified. In the circumstances, order of the Tribunal allowing the appeal for the assessment year 1987-88 is upheld on a different ground stated above.
9. So far as order of the Tribunal passed in appeal no. 486 of 1995 under Section 21 of the Act for the assessment year 1988-89 is concerned, is not sustainable and liable to be set aside. In view of the order passed in Sales Tax Revision No.893 of 1996 arising from the order under Section 4-B (4) of the Act in which the amendment made by the assessing authority under Section 4-B (4) of the Act has been held valid but it has been made effective from prospectively from 28.12.1988, dealer was not liable for any demand for the period upto 28.12.1988 and is only liable for the demand after 28.12.1988 under Section 3-B of the Act. Tribunal is direct (sic) to decide the appeal afresh in the light of the observations made above.
10. In the result, revision no. 894 of 1996 is dismissed. Revision No 393 of 1996 is allowed in part and revision no.892 of 1996 is allowed in part. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal no.486 of 1995 afresh in the light of the observations made above.