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TMI Blog2000 (10) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause notice dated 8-2-1990 .was issued to the above effect. 1.2 On adjudication, the said amount of duty was confirmed by the original authority. The appellants did not succeed before the lower appellate authority. Hence this appeal before us. 2. Ld. consultant, Shri D.K. Saha for the appellants has urged that no doubt the appellants were issued registration certificate by the concerned authorities on 27-10-1989, but the certificate should be deemed to have been issued from 5-9-1989 since they had applied for registration to S.S.I. authorities on that date. For this proposition, ld. consultant relies upon Apex Court s ruling in the case of State of U.P. v. Haji Ismail Noor Mohd. Co. [(1988) 3 SCC 398]. He, therefore, prays that the appeal be allowed with consequential relief to the appellants. 3.1 Ld. JDR, Shri R.K. Roy, on the other hand, re-iterates the findings of the two authorities below. He submits that para 4 of Notification 175/86-C.E. is very clear that nothing contained in the said Notification would apply unless the unit is registered with the specified authorities mentioned therein, as a SSI Unit. Relaxation, relevant to this case, from the aforesaid prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst purchases made only after December 5, 1969, i.e. the date of issue of the certificate and the relief in respect of the turnover prior to that date was refused on the basis of the condition in sub-rule (5) of Rule 25A which provided that such certificate shall take effect from the date of its issue . 9. Respondent, in its writ petition before the High Court contended that this clause in sub-rule (5) of Rule 25A is at cross purposes with and did not carry out the objects of Section 4B and is ultra vires Section 4B. The High Court, by majority opinion, has accepted this contention. 3.4 Relevant extracts from provisions of U.P. Sales Tax Act under which the controversy arose in that case also may be reproduced at this stage:- 10. The provisions of Section 4B and Rule 25A(5) may now be noticed: 4B. Special relief to certain manufacturers - (1) Notwithstanding anything contained in Sections 3, 3A, 3AA and 3D - (a) where any goods liable to tax under Section 3D are purchased by a dealer who is liable to tax on the turnover of his first purchase un der that section and the dealer holds a recognition certificate issued under sub-section (2) in respect thereof, he shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognition certificate at the time of the assessment of the turnover in question. The High Court has held that the requirement of the section are substantially complied with if the certifi cate is available to the dealer at the time the liability to tax of the turnover in question is sought to be determined, subject to the requirement that the turnover is after the date of the application filed by the dealer for issue of a certificate. According to the High Court, the date of actual issue of the cer tificate should not be held to be material and that the benefit for the conces sional rate of tax should be available to the dealer if the dealer, at the time of the assessment, holds a recognition certificate in respect thereof . According to the High Court the language of Section 4B does support the extreme construction that the recognition certificate should be held at the time of the purchases themselves. 18. On a consideration of the matter we are persuaded to the view that the construction placed on the provision by the High Court is an eminently plausible one. There is nothing basically wrong in the approach of the High Court that the statutory language does not insist upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be required to pay duty on clearances of excisable goods before 5-9-1989. Appeal cannot, therefore, be allowed as contended by the appellants. 4.2 In view of the foregoing, appeal is dismissed. Sd/-(P.C. Jain) Member (Technical) 5. [Order per : Archana Wadhwa, Member (J)]. - I have gone through the Order proposed by my Learned Brother, Shri P.C. Jain, Member (Technical). 6. I find that a similar issue had earlier come up before us in the case of Foundry Chemical Industries Pvt. Ltd. vide Order No. M-111 dated 6-3-1998. I have recorded a separate Order. It has been observed by me that the Honourable Supreme Court s decision in the case of State of U.P. v. Haji Ismail Noor Mohammad also referred in the Order of the Member (Technical), applies to the issue involved in the instant case. I find that in that case, the provisions of Rule 25A(5) specifically provided that the certificate issued under Sec. 4B of the U.P. Sales Tax Rules, 1948 shall take effect from the date of its issuance. In spite of that provision, the Supreme Court held that denial of benefit during the intervening period i.e. between the date of application and the date of grant of recognition certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the appeal is liable to be rejected by denying the benefit of Notification No. 175/86-C.E. as held by Member (Technical) or the benefit of the said Notification is to be extended and appeal allowed, as held by Member (Judicial). 11. As the facts of the case and the issue involved have already been clearly spelt out in the orders recorded by the said Members, I refrain from repeating or reiterating the same so as to avoid prolixity. 12. Arguing on behalf of the appellants, Shri D.K. Saha, learned Consultant, contends that the appellants are entitled to benefit of the said Notification from the date of application (5-9-1989) for registration of their factory as a small scale unit. In support of his contention, he relies on the judgement of Hon ble Supreme Court in State of U.P. and Another v. Haji Ismail Noor Mohammad Co.: (1988) 3 Supreme Court Cases 398, and also the judgement of Hon ble High Court of Orissa in the case of Bhanja Bhander v. State of Orissa: 1975 (37) STC 169. Apart from the said two judgements, the learned Consultant relies upon he order of the Tribunal in the case of M/s Melvin Powell Vanaspati Engineering Industries v. C.C.E., Calcutta-I reported in 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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