JUDGMENT Rajes Kumar, J.
1. These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 30.9.1999 relating to the assessment year 1992-93 both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act.
2. Applicant had established a new Unit for the manufacturing of Edible Oil. Certificate under SSI Unit was issued by the Director of Industries on 26.12.1988. Production was started on 22.11.1988. Applicant claimed exemption under Section 4-A of the Act on the turnover of manufactured products. Initially, applicant had manufactured only Mustard Oil and its Oil Cake and subsequently with effect from 26.08.1992 also started manufacturing of Sun Flower Oil and its Oil Cake. Applicant Unit was granted exemption for the period 06.12.1988 to 05.12.1993 for Edible Oil. It appears that in the same premises, applicant had established another Unit for manufacturing of Tin Containers and manufacturing of Tin Containers was started from 30.4.1992. Applicant moved an application before the Divisional Level Committee for granting exemption on the turnover of Tin Containers and Sun Flower Oil and its Oil Cake under the Diversification Scheme. Since the condition of Diversification Scheme was not fulfilled, application was rejected by the Divisional Level Committee. Order of the Divisional Level Committee has not been challenged and has become final. During the course of the assessment proceeding for the year in dispute, applicant claimed exemption on the turnover of Sun Flower Oil and its Oil Cake and also on the turnover of Tin Containers. The Assessing Authority allowed the exemption on the turnover of Sun Flower Oil and its Oil Cake on the ground that the exemption was already granted for Edible Oil, but had rejected the exemption on the turnover of Tin Containers on the ground that the Tin Containers was manufactured in a separate Unit and in respect of which, claim under the Diversification Scheme had been rejected. Against the assessment orders, applicant filed appeals before the Deputy Commissioner (Appeals), Trade Tax, Aligarh. The Deputy Commissioner (Appeals) vide order dated 27.7.1998 remanded back the matter to the Assessing Officer. The Deputy Commissioner (Appeals) while remanding back the case to the Assessing Authority has also observed that the applicant was not entitled for exemption on the turnover of Sun Flower and its Oil Cake and Tin Containers because claim of exemption under the Diversification Scheme had been rejected both for the Tin Container and Sun Flower. The Deputy Commissioner (Appeals), Trade Tax. Aligarh has held that the applicant was not entitled for exemption on the turn over of Sun Flower Oil and its Oil Cake and also on Tin Containers. Applicant filed two appeals before the Tribunal. The Tribunal by the impugned order, rejected both the appeals. The Tribunal held that under the Eligibility Certificate, applicant was granted exemption under Section 4-A of the Act with effect from 06.12.1988 to 05.12.1993 and manufacturing of Sun Flower Oil and its Oil Cake and Tin Containers were started after 31.3.1990, hence, in the Eligibility Certificate granted prior to 31.3.1990, and such items could not have added by the Divisional Level Committee and the application under the Diversification Scheme had been rejected by the Divisional Level Committee on 29.1.1997. Thus, the exemption could not be allowed. The Tribunal accordingly up held the order of the First Appellate Authority. The net result of the order of the First Appellate Authority and the Tribunal is that both the Appellate Authorities have held that the applicant was not entitled for exemption on the turnover of Sun Flower Oil and its Oil Cake and also on the manufacturing of Tin Containers during the year under consideration.
3. Heard learned Counsel for the parties.
4. Learned Counsel for the applicant submitted that the new Unit was established prior to 31.3.1990 and as per the Notification No. ST-II-604/X-9(208)/81 U.P. Act 15/48-Order-85, dated 29.1.1985, applicant was entitled for exemption in respect of any goods manufactured in such Unit. He submitted that vide Circular No. 104/85. which is based on the G.O. No. 8528/10-7 (21)/85 dated 23.12.1985, it has been clarified that there was no prohibition in the Act that if in a new Unit, subsequently, manufacturing of another item is started, exemption is not permissible. It is said that the Unit would be entitled for exemption on the turnover of subsequent product also for the period, for which, exemption was granted as per the Eligibility Certificate. Thus, it is, submitted that the Unit was entitled for exemption on the turnover of Sun Flower Oil and its Oil Cake and also on the turnover of Tin Containers. He submitted that it is not necessary that the items, manufacturing of which, started subsequently should be mentioned in the Eligibility Certificate because as per the Notification, exemption was available to all the items manufactured by the Unit. He submitted that under he subsequent Notification in respect of Unit established after 01.04.1990, exemption is available to only those items in respect of which, Eligibility Certificate was issued, but this condition is not applicable to the Unit established prior to 31.3.1990. He further submitted that the rejection of application under the Diversification Scheme has no effect on the claim of exemption on the aforesaid items for the period, for which, the exemption was granted under the Eligibility Certificate. He submitted that if the claim of exemption under the Diversification Scheme would have been accepted then the exemption would have been allowed from the date for production for another period of eight years. He further submitted that in any view of the matter so far as the claim of exemption on the Sun Flower Oil is concerned, it has been rightly allowed by the Assessing Authority on the ground that the exemption was granted for Edible Oil and its Oil Cake and Sun Flower Oil is also Edible Oil. He submitted that there was no justification for the Appellate Authority to dispute the exemption granted on the turnover of Sun Flower Oil and its Oil Cake. Learned Standing Counsel submitted that since the manufacturing of Sun Flower and its Oil Cake was started after 31.3.1990, such item should be mentioned in the Eligibility Certificate and since it was not mentioned in the Eligibility Certificate, applicant was not entitled for exemption even on the turnover of Sun Flower Oil and its Oil Cake. He further submitted that the exemption on the turnover of Tin Containers have rightly been rejected by the Assessing Authority as well as by the Appellate Authority, He submitted that the Tin Containers were manufactured in the separate Unit though established in the same premises and thus, exemption granted to the earlier Unit under the Eligibility Certificate for manufacturing of Edible Oil is not applicable to the Tin Containers, manufacturing of which, had been started in a separate Unit with effect from 13.4.1992.
5. Having heard learned Counsel for the parties and have perused the order of Tribunal and the authorities below.
6. In my opinion, order of the Tribunal and the First Appellate Authority denying the exemption on the turnover of Sun Flower Oil and its Oil Cake are not sustainable,
7. The relevant part of the Notification No. ST-II-604/X-9(208)/81 U.P. Act 15/48-Order-85, dated 29.1.1985 reads as follows:
Where as the State Government is of the opinion that it is necessary so to do for promoting the development of industry in the State generally and in certain districts and parts of districts in particular.
Now, therefore, in exercise of the powers under Section 4-A of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), and in supersession of Notification No. ST-II 6468/X-9(208)-1981-U.P. Act-XV-48-Order-84 dated August 27, 1984, the Governor is pleased to declare that in respect of any goods manufactured in an industrial unit, which is a new unit as defined in the aforesaid Act of 1948 established in the areas mentioned in column 2 of the Table below, the date of starting production whereof falls on or after the first day of October, 1982 but not later than the thirty first day of March, 1990, no tax under the aforesaid Act of 1948 shall be payable by the manufacturer thereof on the turnover of sales of such goods for the period specified in column 3 against each, which shall be reckoned from the date of first sale, if such sale takes place not later than six months from the date of starting production, or in other cases, from the date following the expiration of six months from the date of starting production subject to the condition that the said industrial unit has not discontinued production of such goods for a period exceeding six months at a stretch in any assessment year.
TABLE
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
(1) 'Industrial Unit' means an industrial unit holding permanent registration with the Directorate of Industries, Uttar Pradesh as a small, handloom or handcraft industry or an industrial license granted by the Iron and Steel Controller of the Textile Commissioner or the or the Director, Sugar or the Director of Technical Development or the Government of India; and
(a) registered under the Indian Factories Act, 1948 or established after obtaining a Term Loan from the U.P. Financial Corporation or a Scheduled Commercial Bank, in the case of Units with a capital investment not exceeding three lakh rupees; or
(b) registered under the Indian Factories Act, 1948 or having applied for registration under the said Act and deposited the required fee for the purpose, in the case of units other than those referred to above.
(2) 'Date of starting production' and 'New Unit' shall have the same meaning as assigned to them in the Explanation to Section 4-A of the U.P. Sales Tax Act, 1948; and (3) 'Capital investment' means investment in land, building, plant, machinery, equipments and apparatuses.
8. The relevant part of the Circular No. 104/1985 issued on the basis of the Government letter No. 8528/10-7(21)-85, dated 23.12.1985 reads as follows:
(1)...
9. From the perusal of Notification dated 29.1.1985, it is clear that the exemption was available to all the goods manufactured by the Unit. The aforesaid Circular/letter clarified that there was no prohibition in granting the exemption on the turnover of product manufactured subsequently. It has been said that the exemption is permissible to the products manufactured subsequently for the period for which, exemption was initially granted. Admittedly, Eligibility Certificate was issued for Edible Oil, and its Oil Cake. Sun Flower Oil is also one of the Edible Oil, therefore, even as per the Eligibility Certificate, turnover of Sun Flower Oil and its Oil Cake were entitled for the exemption. Learned Standing Counsel is not able to show any provision that in case of a Unit established prior to 31.3.1990, the product in respect of which, exemption is sought, should be mentioned in the Eligibility Certificate. In my mind, in respect of Unit established prior to 31.3.1990, turnover of all the products manufactured in the new Unit were eligible for the exemption whether they were mentioned in the Eligibility Certificate or not. Thus, the view of the appellate authority and the Tribunal disputing the exemption on the turnover of Sun Flower Oil and its Oil Cake for the assessment year in dispute, is wholly unjustified. Order of the Assessing Authority is accordingly up held.
10. So far as, claim of exemption on the turnover of Tin Containers are concerned, it has been rightly rejected on the ground that they had been manufactured in a separate Unit, for which, Eligibility Certificate was not issued. Thus, on the basis of Eligibility Certificate issued in respect of new Unit for manufacturing of Edible Oil, exemption can not be allowed to the Tin Containers manufactured in a separate Unit. Thus, the orders of the Assessing Authority as well as the orders of First Appellate Authority and the Tribunal are up held.
11. In the result, the above two revisions are allowed in part. Order of the Tribunal and the First Appellate Authority are set aside and the orders of the Assessing Authority are up held.