JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of U.P. Trade Tax Act (hereinafter Tribunal dated 09. 2003.
2. Brief facts of the case are that the applicant had established a unit for the manufacturing of ice with initial capital of Rs. 7,03,872/-. Production was started on 19.07.1.999 and the first sale was made on 23.07.1999. For the claim of exemption under Section 4-A of the Act, an application under Section 4-A of the Act was filed on 23.03.2000 before General Manager, District Industries Centre, Muzaffarnagar. It appears that Joint Director Industries, Saharanpur issued a notice dated 16.09.2000. in which it was stated that the electrical motors for Rs. 45,000/-, was purchased old from a repair workshop, applicant was required to show cause. it is alleged that the reply of the show cause notice was filed on 05.11.2000 in which with regard to the alleged electric motors it was staled that ail the three electric motors were purchased from M/s Anuj Engineering Works. Shamli. Muzaffarnagar against bill No. 34 dated 21.06.1999 on which a sum of Rs. 5,670/-was paid towards tax on 29.08.2000, It has been disputed that the said purchase motors were old. A certificate dated 25.09.2000 issued by M/s Anuj Engineering Works, Shamli was also enclosed, in which it was stated that the three electric motors were sold to M/s Mahavir Ice Factory against bill No. 34 dated 21.06.1999 which were manufactured by them. On which tax of Rs. 5,670 was also charged which was paid on 24.08.2000. Thereafter, on 10.10.2003 a notice was issued by the Additional Director Industries. Saharanpur Range. Saharanpur. in which it was stated that a letter dated 04:07.2000 has been received from the General Manager. District Industries Centre in which it has been raised that on enquiry three old motors for Rs. 45,000/- were being used after purchasing. Hence the unit is not entitled for exemption. Applicant filed reply dated 18.01.2003 to the said notice in which it has been stated that the reply has been given earlier in respect of the alleged discrepancy. Photocopy of the reply has been annexed Divisional Level Committee vide order dated 06.05.2003 rejected the exemption application Against the said order of the Divisional Level Committee applicant filed appeal before the Tribunal. Tribunal by the impugned order rejected the appeal. Tribunal held that the challan in which certificate was given by M/s Anuj Engineering Works, Shamli dated 25.09.2000 shows that apart from doing repairing work, they' were supplying old electric motors. In the certificate it is stated that the tax was deposited on 29.08.2000 while in the bill tax has not been charged, this shows that when the enquiry has been started from Deputy Commissioner (Executive) tax has been deposited. It is farther observed that on enquiry dated 28.08.2000 Shri Ashwini Jain, partner of M/s Anuj Engineering Works. Shamli had accepted that in the sold motors bearing, copper wire, varnish, motor shed and stamping, etc. have been fitted but the body was old and this fact had been accepted by the appellant and still the appellant was claiming the motors to be new. Decisions cited by learned counsel for the applicant were found distinguishable.
3. Heard learned counsel for the parties.
4. Learned counsel for the applicant submitted that a survey was made on 24.05.2000 by the Assistant Commissioner (Assessment) Trade Tax, Muzaffarnagar at the factory and in the said survey report it had been observed that on enquiry machines as per list were found and all the machines were new and are being used for the first time. He submitted that earlier reply, dated 05.11.2000 had not been Considered and adverse inference had been drawn. Learned Standing Counsel relied upon the order of the Tribunal.
5. I do not find any force in the argument of learned counsel for the applicant. Against the order of Divisional Level Committee, it was open to the applicant to file review application under Rule 25 (3) (C) of the Rules or to file appeal before the Tribunal under Section 10 of the Act. Applicant had admittedly not filed any review application under Rule 25 (3) (C) of the Rules and had filed appeal under Section 10 of the Act. Alongwith revision petition, ground of appeal and the written submission have been enclosed as annexure Nos. 7 and 8 to the revision petition. Perusal of grounds of appeal as well as written, submission shows that it has not been disputed that the enquiry was made at the premises of M/s Anju Engineering Works, Shamli on 28.08.2000 and in the statement Sri Ashwini Jain stated that in all the three motors body was old and for its preparation bearing, copper wire, varnish, motor shed, stamping etc. were fitted. Sri Ashwini Jain had also admitted that his main business was of repairing of motors of M/s Triveni Engineering Works, Khatauli, S/S Doaba Sugar Mill, Shamli and S.S. Titavi Sugar Mills, Titayi, Shamli in view of the statement of Sri Ashwini Jain of M/s Anuj Engineering Works which had not been disputed, it is clearly established that all the three motors were old and have been used after repairing. Relevant part of Explanation-II of Section 4-A which defined "New Unit" reads as follows:
"(2) 'new unit', after march 31, 1990, means a factory or workshop set up by a dealer after such date and satisfying the conditions laid down under this Act or Rules or Notifications made thereunder with regard to such factory or workshop and includes an industrial unit manufacturing the same goods at any other place in the State or an industrial unit manufacturing any other goods on, or adjacent to the site of an existing factory or workshop, but does not include-
"(a) any factory or workshop using machinery, plant, equipment, apparatus or components already used or acquired for use in any other factory or workshop in India other than boilers, generators, moulds and dyes and other than any machinery, plant, equipment, apparatus or component sold to it by any Government Company or any Corporation owned or controlled by the Central or State Government; or"
6. Definition of the "new unit" contemplates that machines should not be used or acquired for use in any factory or workshop. Since the aforesaid three motor being old and used which were found installed in the unit, the said unit does not fall within, the purview of "new unit" and not eligible for exemption. Motor is an essential machinery id the manufacturing of ice. It was three in numbers valuing Rs. 45,000/-. Therefore, it can not be said to be a small, minor machinery. For the reasons stated above. I do not find any merit in the revision.
7. Learned counsel for the applicant relied upon the decision of this Court in the case of Kanta Granites (P) Ltd. v. CTT, reported in 2005 TLD, 1. Decision relied upon by the learned counsel for the applicant in the case of Kanta Granites (P) Ltd. v. CTT (Supra) is not applicable to the present case In that case, zip crane was found old which was held machine, not essentially required in the process of manufacturing of cutting, slicing and polishing. While the motors are the essential machinery required in the manufacturing of ice and without the motors other machines can not be operated.
8. In the result, revision fails and is accordingly, dismissed.