9911796707
TMI Blog2002 (10) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... granted by respondent No. 2 under section 26 of the West Bengal Sales Tax Act, 1994 on due enquiry as per law. Plants and machinery required for setting up the new unit were purchased from M/s. Ayan Natural Corporation for Rs. 7,35,300 which was paid by account payee cheque which was duly encashed by the said seller. For inclusion of raw materials, amendment of provisional certificate which was applied for was duly made. The commercial production in the petitioner's small scale industrial unit started on December 1, 1995 and the first sale of manufactured goods took place on February 9, 1996. But petitioner-company's application for registration was allowed only as a re-seller and as such the petitioner being aggrieved challenged the same before this Tribunal by filing RN-81 of 1996. The Tribunal by order dated October 10, 1996 (Enfield Industries Ltd. v. Assistant Commissioner of Commercial Taxes [1998] 109 STC 442) set aside the registration as reseller and sent the matter to respondent No. 2 for fresh decision on full enquiry. In the meantime, permanent registration as a small scale industrial unit was given by Directorate of Cottage and Small Scale Industries. Moreover, vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Tribunal on being moved, by order dated August 6, 1999 in the record of case No. RN-42 of 1999 granted extension by a period of sixteen weeks from the date of that order, i.e., August 3, 1999 for passing of the order. Accordingly respondent No. 1 held further enquiry, got some of the documents and thereafter passed the impugned order dated November 25, 1999 (pages 363 to 392) confirming once again the order of rejection of the application by petitioner for granting eligibility certificate. The petitioner on being aggrieved has come up before this Tribunal again praying for setting aside this revisional order dated November 25, 1999 with the original order of Assistant Commissioner dated September 16, 1997. 2.. It is contended by the respondent that there has been no violation of natural justice and that the facts brought out on enquiry clearly revealed violation of the conditions and restrictions prescribed under rule 98 of the West Bengal Sales Tax Rules, 1995 and the allegation to the contrary as made is not true and therefore the application being not bona fide or being of a speculative nature should be dismissed. 3.. The petitioner filed affidavit-in-reply where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e industrial unit has been defined under Explanation 1 to rule 98. The amount of investment on plant and machinery must not exceed Rs. 35 lakhs. The unit must be registered with the Directorate of Cottage and Small Scale Industries, Government of West Bengal. It must start production for the first time on or after the appointed day and the unit must be established solely with plant and machinery other than the plant or machinery used by another newly set up small scale industrial unit which has earlier availed of the benefit of exemption from tax under this Rule. It must not use the trade mark or brand name of any product of any other industrial unit, etc. How and when an application for certificate of eligibility is to be made has been given in rule 100. Rule 101 empowers the concerned authority to declare such certificate invalid from such date, if satisfied that the dealer has contravened any of the provisions referred to in sub-rule (2) and sub-rule (3) of rule 98. Of course a reasonable opportunity of hearing must be given before passing the final order. 6.. Keeping in view the aforesaid legal provisions we are to consider the facts that have come up on enquiry and also to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this benefit, the petitioner-company on time prayed for granting eligibility certificate. Granting of Registration Certificate implies that the Assistant Commissioner was satisfied on enquiry that the information furnished as regards carrying manufacturing business and other particulars by the petitioner-company in its application for registration were true and correct. It may be mentioned that the application praying for eligibility certificate was rejected by the impugned order dated September 16, 1997 of Sri S. Barui respondent No. 1 Assistant Commissioner. The copy of that order is to be found from page 139 to page 151 of the paper book. Failure to show the original invoice showing purchase of plant and machinery from the Ayan Industrial Corporation due to denial by Ajay Kr. Samui proprietor of Ayan Industrial Corporation about the such sale, among others, led respondent No. 1 to come to such a decision. The tenancy of the factory premises was disbelieved for want of tenancy agreement. For the failure to produce electric bill of CESC, etc., the power consumed could not be verified. That place was used by M/s. Enfield Industries under the proprietorship of S. Santalia one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made in his previous order dated August 30, 1998 on the relevant points on the basis of materials on for the enquiry as directed, on receipt of papers and documents from Excise Authorities and comes to the conclusion that the petitioner failed to prove the payment for plant and machinery allegedly purchased from Ayan Industrial Corporation. The respondent No. 1 agreed with the finding on other points also on fresh enquiry. 8.. A writ court generally does not interfere with the finding of fact arrived by fact-finding authorities. So fact-finding is to be given due weight unless it is found that such a finding is either based upon on evidence or irrelevant evidence or incorrect principles. We have perused minutely the details of the enquiry of the facts, the different documents different reports of different times of the authorities and the various orders or judgments based over the matter in controversy. 9.. On the matter of Attendance Register, that he has every doubt if there is any permanent employee in that concern. He also has doubt on the said register since only "P" was referred for signifying "presence" and "A" as "absence". Since there is no signature in that Attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the issue of payment for hire of generator there are bills and cash receipts showing such payment. Simply because on four occasions amount of more than ten thousand has been disbursed in cash violating income-tax rules such payment cannot be said to have been not made in fact. 11.. On the sale of scraps, it is the observation of respondent No. 1 that it is very likely the lot of rusted iron rods lying at the factory has been waiting for sale as scrap or as raw material. But the scrap as per the petitioner-company was not any raw material but the scrap generated in course of this company's manufacturing process or manufacturing operation. Such allegation was not made by respondent No. 1 earlier in his order. Books and records of the petitioner's company which were examined by excise authorities prove that the allegation of sale of raw material is based on surmise or conjecture and not based of any cogent material. So it does not appear at all that the finding about iron rods as scrap sale and as sale of raw material by the petitioner-company is based on evidence. Separate set of serially numbered sale bills or cash memo is not to be maintained in such case where the dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and M/s. Enfield Industries did not cease to produce at the relevant time. The applicant got its requirement of electricity from the four meters of Santhalia Chemicals on consent of M/s. Santhalia Chemicals and there are evidence of the petitioner-company reimbursing the cost as per the said CESC bills. M/s. Enfield Industries used to occupy a separate portion of the said premises while it was in operation and the said portion is a portion separate from the portion occupied by the petitioner-company. Moreover, due to fault of the electrical contractor the meter No. of M/s. Enfield Industries was noted when petitioner-company applied for separate electric connection in his factory and simply for that without any other cogent and convincing evidence it cannot be concluded that the petitioner-company is nothing but the old M/s. Enfield Industries in new form. So we hold that the said finding has not been made by respondent No. 1 on proper appreciation of evidence. 12.. We next enter on the point of alleged purchase of plant and machinery by the petitioner-company from Ayan Industrial Corporation (AIC). The petitioner admittedly has not been able to produce the original four inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized documents of the petitioner company from the Excise Authorities. He only issued initially a notice upon the Central Excise Authorities for production of the same lying with them since seizure from the petitioner's company. Petitioner wrote several letters requesting the respondent No. 1 to get the documents early. However when the petitioner with the consent of the respondent No. 1 wrote to the Excise Authorities, the Excise Authorities ultimately made over the documents which were produced by petitioner on the next date of hearing before respondent No. 1 in November, 1999. It also appears strange that the respondent No. 1 got the several matters concerning the enquiry-inspected by the Inspectors of Bureau of Investigation who submitted their report as late as on November 10, 1999 and November 15, 1999. Some additional documents were also produced by respondent No. 1 only two days before the final hearing thus giving not enough time to the petitioner to go through the same minutely. The petitioner wanted to examine the books of accounts, sales tax records and bank records of AIC. The petitioner filed application for the same but the respondent No. 1 without paying heed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy decided in favour of the petitioner as discussed hereinbefore. 13.. After setting aside the impugned order we direct respondent No. 1 to call for the books of account, sales tax records and bank accounts of AIC and also other relevant records and documents as applied for by the petitioner-company in writing. He shall allow the petitioner to inspect those records and documents, give copy of all or any of those if applied for and then after due hearing render his finding touching only on this point, namely, if there has been at all any payment made by the petitioner to the AIC for purchase of plant and machinery or, in other words, if the transaction in question is merely a paper transaction. Shashi Bhusan Lodha may also be examined, if he is found fit only to arrive at a just and proper decision. Respondent No. 1 is further directed to render his decision concerning the eligibility certificate within a period of three months from this date. 14.. With this directions the present application is finally disposed of. No order is made as to costs. 15.. D. BHATTACHARYYA (Technical Member).-I agree. Application disposed of accordingly. - - TaxTMI - TMITax - CST, VAT & Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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