9911796707
TMI Blog1990 (4) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... y be briefly stated as follows: The applicant No. 1 is a small-scale industrial unit registered with the Directorate of Cottage and Small Scale Industries Department, manufacturing "silicon release paper". It started production on April 4, 1988 and effected its first sale of manufactured goods on May 11, 1988. It was granted a provisional certificate for exemption from sales tax on purchases of raw materials, plants and machinery, etc. The company was registered as a dealer under the Bengal Finance (Sales Tax) Act, 1941, on May 25, 1988. The company thereafter made an application as a newly set-up industrial unit for grant of eligibility certificate on June 23, 1988 to the Assistant Commissioner of Commercial Taxes, Dharamtolla Circle, under rule 3(66a) of the Rules. The said application was rejected by the Assistant Commissioner by his order dated June 30, 1989, on certain grounds. Being aggrieved by the said order the company filed an application for revision before the Additional Commissioner of Commercial Taxes on August 4, 1989. This Tribunal by an order dated August 29, 1989 disposed of the applicants' revision case being RN-378 of 1989, with direction to the Additional Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were used by other industrial units, who have enjoyed the benefit of tax-holiday. It has, however, been admitted by the applicants that two stirrers valued at Rs. 1,199 belonging to a sister concern, namely, M/s. Petro Chem (India) were taken on loan and used by the company. The three directors of the applicant-company are also the partners of the said firm, namely, M/s. Petro Chem (India) which availed of the benefit of tax-holiday. The applicants' case is that these two stirrers are of very small value compared to the total investment made in plant and machinery and is actually less than .058 per cent of such investment. It has, therefore, been contended by the learned advocate for the applicants that it could not be held that the unit has been established solely or substantially with the plant and machinery of another newly set-up small-scale industry, which earlier availed of tax-holiday. He affirmed that the applicants did not violate the condition laid down in Explanation (v) of the relevant Rules. 6.. As regards the Flexo printing machine and the baby boiler, though purchase vouchers were produced by the applicants, the sellers could not produce certain documents asked f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the responsibility of the company to keep vouchers and other documents to establish purchase of plant and machinery and also to prove that the industry was established with such plant and machinery. Needless to say that the vouchers should represent actual purchase and should be genuine. The fact that purchases were made and that the industry was established with such plant and machinery is not disputed. Nor is it the case that the sellers are non-existent. What is alleged is that the sellers could not produce the corresponding records and such other particulars as were demanded by the respondents to enable them to ascertain whether the plant and machinery in question were used in any other industry having enjoyed tax-holiday. In the circumstances indicated above, where the applicants purchased the plant and machinery from sellers, who have been identified and who have admittedly not used these in any of their units, which had enjoyed tax-holiday, it is for the respondents to prove that these have been so used in any other unit, which earlier availed of the benefit of exemption. Since there is no evidence to show that these have been used earlier in any other unit, it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Rules. It has also been claimed by the applicants that the relevant bills were duly adjusted in the books of accounts of the company against the respective share application made by Shri P.K. Bhattacharyya and his associates. 10.. It appears that the alleged irregularities and the audited accounts relate to the period ending March 31, 1988 and the prayer for eligibility certificate is for the period May 11, 1988 to March 31, 1989. Each such period in respect of eligibility certificate has to be considered separately. Any irregularity allegedly found in the earlier period cannot possibly be brought into the picture while considering grant of eligibility certificate for a subsequent period. The learned advocate for the applicants in this connection cited two reported cases, viz., Paramount Trading Corporation v. Commissioner of Sales Tax, U.P. [1976] 38 STC 389 (All.) and Dwarkesh Engineering Works v. Assistant Commissioner, Commercial Taxes [1987] 65 STC 37 (Cal). According to these decisions, each year is a self-contained unit and the issue has to be considered in relation to each year. We accept this view in its application to the present issue. 11.. Proper maintenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those of the petitioner. These products bear distinguishing marks 'Geva' at one corner indicating the name of the manufacturer in abbreviation......... Investigation further reveals that M/s. Geva Printing Coating Industries and M/s. Geva Print and Packaging are manufacturers who had marketed their products with the above pictorial prints long before the petitioner under report came into operation. These facts were admitted by the petitioner." It has been further observed by the Additional Commissioner that the company applied unregistered trade mark to goods in a manner likely to cause deception or confusion as to their trade origin. 13.. The learned advocate for the applicants, however, contended that these are not actually trade marks but designs used by at least three companies, two in Bombay and one in West Bengal and that the disqualification contained in Explanation (vi) to rule 3(66a) will not apply to the case. He further argued that registration of a mark is not compulsory under the Trade and Merchandise Marks Act, 1958 and a person can use an unregistered mark but unless the mark is registered it cannot be said that the particular mark is "of an existing industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrument of enforcement of the provisions of the trade mark laws. The incorporation of the clause with regard to trade mark or brand name in rule 3(66a) has a different purpose. The intention is to remedy a situation where a unit having the backing of an established trade mark or brand name lays a claim on financial concessions from Government which it does not need. 18.. Admittedly, the objective of the tax-holiday scheme is to encourage new entrepreneurs, who need financial incentives, to set-up small-scale industries in the State. Government need not give such assistance to others, who masquerading as newly set-up units take advantage of trade mark or brand name of established industry. They can stand on their own without such support from the Government and the limited resources of the State could be profitably utilized for boosting comparatively weaker entrepreneurs. 19.. It appears, therefore, that the embargo in the relevant rule, though applicable to authorised as well as unauthorised use of trade mark or brand name, is primarily intended to check its legitimate or authorised use made by agreed arrangement with its proprietor for obtaining the benefit of tax exemption. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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