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TMI Blog2005 (1) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... ly established another unit as unit No. 2 in the same premises called an air separation plant in the year 1998 by making total investment of Rs. 57,41,537.16 for the manufacture of air product oxygen, liquid nitrogen, gaseous nitrogen and medical oxygen. The unit applied for S. S. I. registration certificate and the same was issued on August 9, 1999 for the manufacture of the above-named four products. The unit started production from December 22, 1998 and the date of first sale was also December 22, 1998. The unit applied for exemption under section 4-A of the Act before the District Industries Centre on June 21, 1999. This application was allowed and the certificate was issued vide order dated July 27, 2000 granting exemption for a period of ten years from December 22, 1998, i.e., date of first sale or 200 per cent of the fixed capital investment of Rs. 57,19,382, i.e., up to tax amount of Rs. 1,14,38,764, which were expired earlier. However, restrictions were imposed in this order that provisions of section 4-A(5)(d) of the Act would be applicable to the unit and thus the production of the second unit should not be less than the base production, the turnover of second unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant, same three queries which were raised in earlier notice dated November 2, 2001 were reiterated in his submissions made earlier in the reply to notice dated November 2, 2001 but the Divisional Level Committee had not complied with the directions given by the Tribunal and again rejected the exemption application only on the basis of the report submitted by the Joint Commissioner (Executive), Trade Tax, Moradabad. Being aggrieved by the said order, the applicant filed appeal before the Tribunal. Tribunal vide order dated July 3, 2004 again remanded back the matter to the Divisional Level Committee with the direction to reconsider the matter, inasmuch as, the Divisional Level Committee has not considered the ruling and circulars filed by the applicant. The applicant filed revision No. 1426 of 2004 in this court. This court vide order dated July 23, 2004 allowed the revision and set aside the order of the Tribunal and directed the Tribunal to decide the appeal on merit and the remand of the case to the Divisional Level Committee was held unjustified. As a result of order passed by this court, the Tribunal decided the appeal by the impugned order. The Tribunal held that so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or workshop, but does not include (a) any factory or workshop using machinery, plant, equipment, apparatus, or components already used or acquired for use in other factory or workshop in India other than boilers and generators and other than any machinery, plant, equipment, apparatus or components sold to it by any Government company or any Corporation owned or controlled by the Central or State Government; or (b) any factory or workshop manufacturing the same goods established by a person on or adjacent to the site of an existing factory or workshop manufacturing the same goods wherein such person has interest as proprietor or partner or agent or managing director or promoter-director or as holding company or subsidiary company if such existing factory or workshop is closed; or (c) any addition to or extension of an existing factory or workshop not being an extension, diversification or modernisation within the meaning of clause (5) of this Explanation. Section 4-A(5)(d). In relation to a new unit manufacturing same goods established on or adjacent to the site of an existing factory or workshop by a person who has interest in the existing factory or workshop as pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only difference is that for manufacturing of industrial oxygen, liquid oxygen was purchased and in the present case for manufacturing of air product oxygen from atmosphere air liquid oxygen is manufactured. Tribunal held that merely because raw material is different, production cannot be said to be different, inasmuch as both are oxygen. Tribunal further held that merely because air product oxygen is a little purer and can also be used for medical purposes it cannot be said to be different from industrial oxygen, inasmuch as, both are oxygen. Tribunal has further held that both air product oxygen and industrial oxygen are commercially the same goods. Learned counsel for the applicant submitted that the Tribunal has erred in treating both air product oxygen and industrial oxygen as the same product. He submitted that both the products have to be considered as to whether they are commercially same or different. He submitted that commercially air product oxygen and industrial oxygen are known differently. He submitted that air product oxygen is pure oxygen which is mainly used for deep welding while industrial oxygen is only used for normal welding and cannot be used for medical pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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