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TMI Blog1995 (3) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and has a factory at C-17/18, Industrial Area, Bulandshahar Road, Ghaziabad, where it is engaged in the business of manufacture and sale of blowing agent and processing of aluminium silicate. On an application made by the petitioner No. 1, it was granted an eligibility certificate on December 5, 1984 by the Joint Director of Industries, Western Region, Meerut, for grant of exemption from payment of sales tax under section 4-A of the Act. The said eligibility certificate (annexure 1 to the writ petition) was valid for a period of 5 years with effect from April 1, 1983 to March 31, 1988. However, a notice dated August 18, 1987 (annexure 2 to the writ petition) under section 4-A(3) of the Act was issued to the petitioner by the Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before it from proceedings under the Act to examine the constitutionality of the statute and its provisions, set aside the order of this Court and remitted the writ petition to the High Court for disposal in accordance with law. However, the apex Court made it clear that the High Court can, of course, deal with the question of constitutionality in judicial review of legislation under article 226. This is how this petition came to be listed now before this Court. 6.. Sri Bharat Ji Agarwal, learned counsel for the petitioner, submitted that the Commissioner of Sales Tax, U.P., has no jurisdiction whatsoever to cancel or modify the eligibility certificate once granted to a new unit as the certificate is granted by the committee consisting of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that since the provisions by which power to cancel the eligibility certificate has been conferred on the Commissioner, have not been given retrospective effect before or prior to September 13, 1985 and since in the instant case petitioner was granted eligibility certificate on December 5, 1984, i.e., prior to commencement of the provisions of sub-section (3) of section 4-A of the Act, hence Commissioner has no jurisdiction whatsoever to cancel or modify the eligibility certificate granted to the petitioner. 8.. Learned counsel also contended that the Commissioner of Sales Tax, U.P., is only a member of Divisional Level Committee for considering grant of eligibility certificate and in the event of any difference of opinion between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be prior to the date of the order, so however, that in cases of misuse or breach, the cancellation of eligibility certificate shall have effect not before the date of such misuse or breach: Provided that no order under this sub-section shall be passed without giving the dealers a reasonable opportunity of being heard. 10.. Thus from the abovequoted provision it is clear that if in the opinion of Commissioner of Sales Tax, facility of exemption, obtained on the basis of an eligibility certificate, has been misused in any manner whatsoever or that the new unit has committed breach of any other condition subject to which the facility of exemption from tax was granted, he may, by order in writing, cancel or amend the eligibility certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from September 13, 1985; it means that before September 13, 1985, Commissioner was not in a position to pass order cancelling eligibility certificate but after September 13, 1985 he came in a position to pass such order and in the instant case Commissioner has passed the order cancelling eligibility certificate on February 27, 1988, i.e., after September 13, 1985. The U.P. Act No. 25 of 1985 which conferred power to cancel on the Commissioner with effect from September 13, 1985 itself empowers the Commissioner to cancel the eligibility certificate from such date whether before or after the date of such order as may be specified therein. It means that the Commissioner is empowered to cancel eligibility certificates which were granted even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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