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TMI Blog2007 (11) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr. ARIJIT PASAYAT J.--Leave granted. Challenge in this appeal is to the order passed by a learned single judge of the Allahabad High Court disposing of two revision petitions See [2005] 141 STC 194., i.e., Trade Tax Revision No. 723 of 1996 and Trade Tax Revision No. 724 of 1996 preferred by the respondent (hereinafter referred to as, "the assessee") under section 11 of the U.P. Trade Tax Act, 1948 (in short, "the Act"). The revision petitions related to the assessment year 1992-93 in respect of assessments framed under the Act and the Central Sales Tax Act, 1956 (in short, "the Central Act"). By the impugned order, the High Court held that the turnover of the base production in accordance with clause (6) of the Notification No. 1093 dated July 27, 1991 (hereinafter referred to as, "the notification") has to be taken up for the whole of the assessment year. Stand of the assessee before the High Court was that such turnover has to be taken for the whole of the assessment year and if it is found that the unit undertaking expansion has exceeded the base production turnover in the whole of the assessment year, then the unit shall be entitled to avail the benefit of exemption from pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals before the Deputy Commissioner (Appeals), who vide order dated July 31, 1995 dismissed both the appeals. The Deputy Commissioner (Appeals) held that the exemption cannot be claimed from payment of tax up to the period till the base production turnover has not been achieved. He was of the view that exemption was available only after the date on which base production is achieved, i.e., if the base production is achieved in third month then the applicant would be entitled for exemption from the fourth month. Aggrieved by the orders of the Deputy Commissioner (Appeals), the assessee filed appeals before the Trade Tax Tribunal, Ghaziabad (in short, "the Tribunal") which were partly allowed vide order dated July 23, 1996. Tribunal held that base production has been achieved on September 23, 1992 and, therefore, whatever the sale was made by the applicant up to September 23, 1992 shall not be entitled for exemption and the applicant was entitled for exemption only after September 23, 1992 on the production in excess of the base production. Against Tribunal's order, the assessee moved the High Court in revision. The High Court found substance in the plea of the assessee and as noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first day of October, 1982; or (bb) in respect of those finished goods which are manufactured in a unit which has undertaken backward integration; or (c) in respect of those goods only which are manufactured in a unit which has undertaken expansion, diversification or modernisation on or after April 1, 1990, and which, in case of diversification are different from the goods manufactured before such diversification, and in the case of expansion or modernisation are additional production as a result of such expansion or modernisation; and (d) only if the manufacturer furnishes to the assessing authority an eligibility certificate granted by such officer, in accordance with such procedure, as may be specified; (e) with effect from a date prior to the date of the notification. (5) 'Unit which has undertaken expansion, diversification or modernisation' means an industrial undertaking-- (a) of a dealer who is not a defaulter in payment of any dues under this Act or the Central Sales Tax Act, 1956 or under any loan, scheme administered by the Pradeshiya Industrial and Investment Corporation of Uttar Pradesh regarding trade tax on sale or purchase of goods; (b) whose first date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, diversification or modernisation' on or after April 1, 1990 but not later than March 31, 1995, in the areas mentioned in column 2 of annexure I, no tax shall be payable or, as the case may be, the tax shall be payable at the reduced rates specified in column 4 of annexure I, by the manufacturer thereof for the period in column 3 of the said annexure I, or till the maximum amount of tax relief by such exemption from or reduction in rate of tax as specified in column 5 of annexure I is achieved, whichever is earlier, on the turnover of sales-- (a) of the quantity of goods manufactured in excess of the base production in the case of units undertaking expansion or modernisation; and (b) of goods manufactured by the unit which are of a nature different from those manufactured earlier by such unit in the case of units undertaking diversification. (2) the period of such facility shall be reckoned from the first date of production.-- (i) of goods of a nature different from those manufactured earlier by such unit in case of diversification; and (ii) of goods manufactured in excess of the base production in the case of units undertaking expansion or modernisation. 2.. The facilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment' referred to in sub-clause (d) of clause (5) of the Explanation in case of 'units which have undertaken expansion, diversification or modernisation' the investment in only such land, building, plant, machinery, equipment, apparatus and component or, as the case may be, such additional land, building, plant, machinery, equipment, apparatus and component shall be taken into account as were acquired on or before the relevant date of commencement of the period of facility notified under sub-section (1) of section 4A of the Act. 5.. Base production of a unit undertaking expansion or moderni sation shall be deemed to be-- (a) maximum production achieved during any one of the preceding five consecutive assessment years, or (b) 80 per cent of the installed annual production capacity, which- ever is higher. 6.. (a) Turnover of sale of goods in any assessment year to the extent of the quantity covered by base production of that year and the stock of base production of previous years shall be deemed to be the turnover of base production. (b) Only the turnover of goods in any assessment year in excess of the quantity referred to in clause (a) shall be entitled to the facility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tax.-- (1A) Before submitting the return under sub-section (1) or along with such return, the dealer shall deposit, in such manner as may be prescribed, the amount of tax due on the turnover shown in such return." A similar issue came up for consideration in Commissioner of Trade Tax, U.P. v. Modipan Fibres Company [2006] 6 SCC 577(1). In that case, this court was considering an appeal filed by the present appellant where challenge lay to the decision rendered by the High Court in Modipon Fibres Co. v. Commissioner of Trade Tax [2000] UPTC 319(2). The said case was relied upon by the High Court in support of its conclusions which are challenged in the present appeal. In the said case, this court, inter alia, observed as follows: "Purpose of granting exemption under the notification dated July 27, 1991 was to promote the development of certain industries in the State. By the said notification exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernisation. The units of dealers in all the revisions are units, which had undertaken expansion/modernisation. The units of the de ..... 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