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TMI Blog1992 (2) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... up thus: The matter relates to the issue of eligibility certificate under section 4AA of the West Bengal Sales Tax Act, 1954, read with Notification No. 1177-F.T. dated March 31, 1983 to Dr. S.D. Debnath Homeopathic Laboratory (P) Ltd. The firm had prayed for tax holiday with effect from September 4, 1981, for manufacturing Jaborandi hair-oil and Livasol-patent homeopathic medicines. Its prayer was rejected by the sales tax authorities mainly on the ground that its unit manufacturing hairoil and Livasol at No. 2, Sachindra Nath Road, Uttarpara, Hooghly, was a second unit and that it had set up its first unit earlier on April 29, 1979, at Calcutta bus stand, Howrah Sub-way, Howrah-1, for potentisation of homeopathic medicine. According to the Additional Commissioner potentisation was a manufacturing activity and the second unit being an expansion, addition or modification of an earlier existing industrial unit is hit by the embargo contained in clause (iv) of the explanation relating to "newly set-up small-scale industry" in Notification No. 1177-F.T. dated March 31, 1983. The firm claimed that it was merely a reseller of potentised homeopathic medicines during the pre-registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that there are certain mistakes apparent from the record, which need be rectified. They have contended that the firm had been engaged in the business of potentisation of homeopathic medicine since April 29, 1979 and that this fact is undisputed as will be evident from the submission of the applicant in the revisional application. It has further been contended that nowhere in the said revision application the applicant claimed that it was not engaged in potentisation of homeopathic medicine prior to its business in the manufacture of Jaborandi and Livasol. According to the Revenue, therefore, the finding of the Tribunal that potentisation of homeopathic medicine could not have taken place before December 31, 1981, is a mistake apparent from the record. It has been alleged that in view of this fact situation it was necessary for the Tribunal to go into the question whether potentisation of homeopathic medicine amounted to manufacture or processing within the meaning of West Bengal Sales Tax Act, 1954. The fact that the unit engaged in potentisation of homeopathic medicine prior to the starting of the unit for the manufacture of Livasol and Jaborandi was already a small industry r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring No. HL 461M dated March 19, 1981, from the Director of Drug Control, West Bengal, under the Drugs and Cosmetics Rules, 1945 and a certificate of permanent registration dated July 20, 1982, as a SSI unit for manufacturing activity, viz., potentisation of homeopathic medicine, issued by the Directorate of Cottage and Small-scale Industries. He also drew our attention to the dealer's letter dated September 13, 1984 to the Assistant Commissioner annexed to the revision application. He argued that these facts go to show that the dealer had been carrying on the business of potentisation of homeopathic medicine since April 29, 1979, which is contrary to the observation of the Tribunal that the activity of potentisation of homeopathic medicine could not have taken place before December 31, 1981. He further contended that this conclusion of the Tribunal was based on the assessment order passed by the Commercial Tax Officer for the small period from September 4, 1981 to December 31, 1981, and that this assessment order could not be the acid test with regard to the fact whether the dealer was actually engaged in manufacturing business throughout the period as a small-scale industrial uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his liability accrued. The sales tax authorities had ample powers to take action for non-registration and non-payment of tax against the dealer, if they had sufficient evidence that he carried on manufacture with effect from April 29, 1979. Not having done so, they cannot possibly claim now that the dealer had been carrying on manufacture from that date. It is in this context that the order of assessment passed by the Commercial Tax Officer for the pre-registration period assumes importance. This order has reached its finality as it has neither been revised nor appealed against. Nothing prevented the authorities to revise the order suo motu if they had sufficient reasons to do so. The order, therefore, has to be given due importance and recognition and cannot be lightly brushed aside as being for a small period. It has to be viewed in its proper perspective. This order coupled with the fact that there was no assessment for the period prior to September 4, 1981, is indicative of the fact that the activity of potentisation could not have taken place before December 31, 1981. Regard being had to these facts and circumstances we do not consider that there has been any mistake on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly, it has been urged by the applicant that the Commercial Tax Officer being an authority subordinate to the Assistant Commissioner could not take a view contrary to what the Assistant Commissioner had held in his order September 17, 1984, in connection with the disposal of application for eligibility certificate. Shri De observed that the Assistant Commissioner has already expressed the view that the dealer was engaged in potentisation of homeopathic medicine and that the Commercial Tax Officer has no jurisdiction to make any observation, express any opinion or to take any view contrary to that of his superior authority. He further observed that the view taken by the Tribunal in this case is contrary to its earlier view taken in RN-291(T) of 1989 (Sushil Kumar Berlia v. State of West Bengal) in its judgment dated June 30, 1990. 12.. In the abovementioned case the Tribunal had decided that where eligibility certificate with regard to exemption of tax covering the period of assessment is subsisting, the assessing officer cannot take a contrary view. In other words, in the course of assessment where eligibility certificate is in force for the period of such assessment, the Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivered by the court will not be reconsidered except where glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility [Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 (SC)]. As no case is made out indicating such an error, the present review application is liable to be dismissed. 16.. In the premises, the application for review is dismissed on merit. There will be no order for costs. L.N. RAY (Judicial Member).-I have read the judgment prepared by honourable Mr. P.C. Banerji, learned Technical Member. But, with respect, I hold a different view. In my opinion, in the instant case a review is called for. 18.. The power of review and extent of that power are stated in section 16 of the West Bengal Taxation Tribunal Act, 1987, the relevant portion of which is extracted below: "The Tribunal may,..........., review an order passed by it under this Act with a view to rectifying any mistake apparent from the record and amend its earlier order." 19.. Thus, it will appear that a mistake which can be rectified through a review may be of any nature, but it must be "apparent from the record". It is true that hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of April, 1979, with the nature of business of potentisation and trading of homeo medicine as a small-scale unit registered under S.S.I. under the Government of West Bengal at Howrah unit. Later on I planned to manufacture hair-oil and Livasol (homeo medicine) along with the potentisation of homeo medicine. But due to *See [1991] 83 STC 515. shortage of space at Calcutta bus stand, Howrah sub-way, Howrah, one 2nd unit at 2, Sachindra Nath Road, Uttarpara, Hooghly, started where hair-oil and Livasol are being manufactured since September, 1981, under the same trade name and an application filed to S.S.I. office at Howrah to include the 2nd unit in S.S.I. registration certificate. In reply Howrah S.S.I. office requested Chinsurah Hooghly, S.S.I. office to cause an enquiry and to report about the 2nd unit at Uttarpara, Hooghly, which is the jurisdiction of Chinsurah, Hooghly office vide Howrah office Memo No. 3266/SSI/82-83 dated November 8, 1982, with a copy to us." "The honourable General Manager, District Industries Centre, Hooghly, completed the report as on July 31, 1984, with a copy to us and our 2nd unit included in the permanent S.S.I. Registration certificate as on August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation was admittedly done from April, 1979 or March 3, 1980. By potentisation, a homeopathic medicine is altered into different strengths, suitable for treatment of different diseases or a disease at different stages. When a physician prescribes a medicine, he does so by indicating the strength, like mother tincture 30, 200 and so on, as may be appropriate for the patient at that stage. So, a purchaser of a medicine, will ask for nux vomica 30, if he needs that very medicine of that strength or variety. He will never ask for simply nux vomica without mentioning the strength. Even if he does so, the seller must ask the purchaser what strength he wants, otherwise he cannot supply the medicine. That being the position, there can be no doubt that a medicine in the unpotentised form and its varieties after potentisation are clearly different commercial commodities and a new commercial commodity emerges from potentisation. 24.. Therefore, in my opinion, the applicant was carrying on manufacturing business in its unit at Calcutta bus stand, Howrah sub-way from April, 1979 or March 3, 1980. The 2nd unit at Uttarpara, Hooghly, was really a second one for the manufacturing business. We, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , viz., hair-oil and Livasol at its factory at premises No. 2, Sachindra Nath Road, Uttarpara, Hooghly and that during the period from April 29, 1979 to September 3, 1981 it was only a reseller of potentised homeopathic medicines, which were not taxable and that its liability to pay tax arose on and from September 4, 1981, when it effected the first sale of hair-oil. The respondents contended that the applicant had been engaged in potentisation of homeopathic medicines, which were manufacturing activities, at its first place of business at Calcutta bus stand, Howrah subway, Howrah. The important issue for decision in that case was whether potentisation of homeopathic medicine amounted to manufacture so as to disentitle the applicant to get any eligibility certificate under the provisions of the West Bengal Sales Tax Act, 1954 (hereinafter called "the Act of 1954"). This disentitlement arose from the provision in clause (iv) below the explanation in Notification No. 1177-F.T. dated March 31, 1983, read with section 4AA of the Act of 1954. A new industrial unit, in order to get tax holiday under the provisions of this notification, should not include any expansion, addition or modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "the Act of 1987", for the sake of brevity). 29.. Though generally an application for review is heard by the Judge or Judges delivering the judgment against which the application for review is made, there is no provision in the Act of 1987, alike the provision in order 47, rule 5 of the Code of Civil Procedure, 1908, so that the application for review cannot also be heard by me. There is also no provision in section 16 of the Act of 1987, alike the provisions in order 47, rule 8 of the Code of Civil Procedure under which, when an application for review is granted, the court may at once rehear the case or make such order in regard to the rehearing as it thinks fit. Under the provisions of section 16 of the Act of 1987, there can be review of an order with a view to rectify any mistake apparent from the record and the earlier order can be amended. As such, there is no necessity for fixing the case for rehearing, after allowing the prayer for review on the ground of failure of this Tribunal to decide the aforesaid important question, as to whether potentisation of homeopathic medicines amounts to manufacture which is a mistake apparent from the record. The judgment delivered in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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