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TMI Blog1997 (5) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... ate under Notification No. 1177-F.T. dated March 31, 1983. This application was rejected by the Assistant Commissioner of Commercial Taxes, Calcutta North Circle, by an order dated October 3, 1989. Against the said order, the applicant filed an appeal before the Additional Commissioner, Commercial Taxes, West Bengal meeting all the points raised by the Assistant Commissioner. Five years after this appeal was filed, the applicant received on November 15, 1994 an order dated August 5, 1994 of the Additional Commissioner of Commercial Taxes, West Bengal. Being aggrieved by this order dated August 5, 1994 of the Additional Commissioner, the applicant has approached this Tribunal. 3.. The respondent No. 1 in his affidavit-in-opposition on behalf of the respondents has pointed out a number of alleged discrepancies in the contentions of the applicant and has categorically asserted that the application for issuance of eligibility certificate was rejected on merit by the respondent No. 3 as would be clear from the impugned order dated October 3, 1989. He has also affirmed that there was no unreasonable delay in the disposal of the revision application by the respondent No. 1 and has furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Golden Electronics. 6.. None of these items, Mr. Mookerji submitted, could be considered to be machines by any stretch of imagination. In this connection, he referred to entries in special report on machine given in 1992 Science Year, page 176 where a machine has been defined to be a device that does work. Mr. Mookerji stated that from the literature submitted to the Tribunal it would be clear that a machine produces force and controls the direction and the motion of force but it cannot create energy. It only transforms one kind of energy, such as electrical energy and passes it along as mechanical energy. The lever, the wheel and axle, the pulley, the inclined plane, the wedge and the screw are the six types of basic machines. It is therefore clear that the items whose purchase vouchers could not be produced by the applicant could not be considered to be machines in any way. They are nothing but instruments and they are mostly scientific instruments. He referred to the publication World Book Encyclopaedia where oscilloscope has been shown to be a graphic instrument. In view of this, Mr. Mookerji argued, there was no reason to hold that the items about which discrepancy ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as he had not come with clean hands. The order of the A.C., Commercial Taxes as well as the revisional order of the Additional Commissioner shows categorically that fictitious accounts were produced before the respondents and that these documents were fictitious has been convincingly established in the order of the Assistant Commissioner. Naturally, such a detailed investigation with various persons and banks to be contacted had required a lot of time and hence there was no reason to hold that there was any undue delay. The fictitiousness of the documents produced would be clear from the application itself. Thus at page 7 of the application the Honda generator is shown as having been purchased from Capital Electronics V.I.P. at a cost of Rs. 19,500 although, he submitted, there is an admission from the applicant contained in page 44 of the application which is a part of the ground of appeal submitted before the Additional Commissioner, that the said generator was received by the applicant on credit from Capital Electronics V.I.P. Again some intra-State purchases for which detailed purchase bills were submitted were found to be not genuine on detailed enquiry. In one case the ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n demand. 10.. In respect of inter-State purchases, Mr. Goswami submitted, the records show clearly that in respect of the three purchase bills referred to by Mr. Mookerji, false statements were made and false evidence was produced before the Assistant Commissioner. It was submitted that the items have been purchased from dealers outside West Bengal and the supporting bills showed not only sellers from outside the State but they also showed that Central sales tax has been charged. Payments to the parties were shown to have been made by cheques. On scrutiny none of the cheques were found to have been issued to the alleged suppliers outside West Bengal. On the contrary, all the cheques mentioned above were issued to parties other than those from whom machineries were shown to have been purchased. A cross-checking with the place of business of the parties in whose favour the cheques were actually issued showed that these cheques had actually been received by them against their sales to the applicant s unit. It is, therefore, clear that the cheques shown to have been issued to suppliers of the machineries outside West Bengal were actually issued to the suppliers of components within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Private) Ltd. case [1995] 96 STC 251 and submitted that such intentional imitation of the brand name amounted to violation of the conditions of the scheme. 14.. Mr. Goswami further argued that the details of the capital investment in the firm as well as the presence of a number of equipments of the earlier unit, viz., Capital Electronics (Mfg. Divn.) showed that the new entity was nothing but a dummy of the earlier company and was hence rightly denied the eligibility certificate. In reply, Mr. Mookerji argued that the concept of dummy unit as arrived at by the respondents in this case was a perverse decision as there was practically no evidence to show that the earlier unit and the present applicant had any organic linkage in any way. 15.. Mr. Goswami submitted that the order of the Assistant Commissioner, Commercial Taxes as well as the order of the Additional Commissioner, Commercial Taxes were detailed ones and all the important questions of fact have been duly examined by them. In view of this there cannot be any reason to hold that these findings were not based on any evidence whatsoever or were perverse. In the circumstances, Mr. Goswami argued, the Tribunal should not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that in view of the fact that the applicant produced false purchase bills in respect of his plants and machinery in a large number of cases, the applicant could not raise the question of prejudice caused to him because he should have been aware that by producing such false purchase bills, etc., he had been violating important conditions of the relevant notification. 18.. Mr. Mookerji s argument in respect of the three purchases whose value amounted to 27 per cent of the total investment in plant and machinery of the applicant s unit is that these items do not form any part of the plant and machinery of the applicant s unit as they are not machines but scientific instruments. This is a contention that cannot be accepted as reasonable. The term plant and machinery has not been defined in the statute and therefore has to be interpreted in a popular sense and not in a technical sense. These words have been used in the notification in a generic sense and covers every instrument, apparatus and equipment which is necessary for the manufacturing process. This is the common parlance meaning of the term plant and machinery which is accepted in the commercial world. The applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Avenue, has also been admitted by the applicant. It would, therefore, be clear that sizeable proportion of the purchase bills produced before the A.C., C.T., by the applicant were not genuine and therefore we have to hold that the applicant did not keep vouchers and other documents for purchases of plant and machinery for establishment of such industry. If the purchases made and the purchase vouchers produced are not genuine then the sales tax authorities are prevented from ascertaining compliance of the provisions of clause (v) of the explanation. The applicant, therefore, violated the first proviso of the Notification No. 1177-F.T. dated March 31, 1983 and also clause (v) of the explanation to Notification No. 1177-F.T. dated March 31, 1983. The applicant is, therefore, not eligible on these grounds alone to exemption of tax under the said notification. This being the situation, we need not go into the question whether the applicant violated clause (vi) of the explanation given in the said notification. We also hold that in the circumstances of the case, the applicant is not entitled to raise the question of prejudice caused to him due to delay in disposal of his applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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