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TMI Blog2007 (10) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Grossav Industries, Noida was printed inadvertently cannot be overruled.There is no material on record that the impugned goods was not the manufactured goods of the applicant and was the manufactured goods of M/s. Grossav Industries, Noida.The entire allegation is merely based on surmises, conjuncture and suspicion. Revision allowed. In favour of assessee. - - - - - Dated:- 29-10-2007 - RAJES KUMAR , J. RAJES KUMAR J. Present revision under section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, the Act ) is directed against the order of the Tribunal dated October 13, 1999 arising from the proceeding under section 4A(3) of the Act. The applicant is a private limited company incorporated under the Indian Companies Act, 1956 having its registered office at B-2/28, Ashok Vihar, Phase-II, Delhi. The applicant claimed to have established a new industrial unit at C-15, Sector 7, Noida for the manufacturing of tube light fittings. Claimed to be a new unit, the applicant applied for exemption on the turnover of manufactured product under section 4A of the Act. Divisional Level Committee examined the application and issued an eligibility certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only inadvertent mistake and on the basis of which it cannot be inferred that the eligibility certificate has been misused. 2.. That the survey dated March 23, 1991 was in existence at the time of the issue of eligibility certificate dated May 21, 1991. 3.. If the inspection of the Sales Tax Officer, Mobile Squad would be a relevant consideration, eligibility certificate should not have been issued. 4.. M/s. Grossav Industries, Noida manufactures their product in the brand name of Solar while it is admitted that no brand name was found on the goods. 5.. The inspected goods were cleared from the factory against Excise Gate pass No. 222 dated March 19, 1991 on which the excise duty had also been paid. This establishes that the goods found loaded in the vehicle were the goods manufactured in the unit of the applicant. 6.. The total tax on such transaction was petty and for which no one can imagine to evade the tax. 7.. The initiation of the proceeding is highly belated and therefore, not justified. 8.. The department should have chosen to challenge the eligibility certificate. 9.. The seizure of the goods on the ground that the unit was found evading the tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Grossav Industries, Noida has only confirmed that they are purchasing the packing material from M/s. Kriti Crafts, New Delhi. Nothing has been stated about the brand name of anything else. He submitted that on the facts of the case, it is absolutely clear that the applicant was found selling the goods manufactured by M/s. Grossav Industries, Noida against its bill with the view to claim exemption on the strength of the eligibility certificate issued to the unit. Present is the clear case of misuse of eligibility certificate. He further submitted that if the transactions would not have been examined on March 23, 1991 the applicant would have successfully claimed the exemption on the goods manufactured by M/s. Grossav Industries, Noida. Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below and also perused the documents filed along with the revision petition and the supplementary affidavit filed by the learned Standing Counsel and the supplementary affidavit filed by the applicant. In my opinion, on the facts and circumstances, the order of the Tribunal is not sustainable for the reasons stated below. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance has been referred. The applicant was never found selling the product manufactured by M/s. Grossav Industries, Noida prior to March 21, 1991 or after March 21, 1991. The value of such goods which was checked on March 23, 1991 was hardly of Rs. 9,851 on which the tax liability at the rate of 15 per cent comes to Rs. 656. To save the aforesaid petty amount, no one could take such risk. When the certificate was issued on May 21, 1991 the inspection dated March 23, 1991 was in existence. The eligibility certificate was issued on May 21, 1991 granting exemption for the period from March 12, 1990 to March 11, 1996, the order under section 4A(3) of the Act withdrawing the exemption from March 19, 1991 was passed on September 17, 1996 after the expiry of period of exemption after the long period. When the inspection was made on March 23, 1991 and the alleged discrepancy was found then there was no justification why the proceeding for the withdrawal of the exemption was not initiated immediately. The notice was issued on July 29, 1995 and the exemption was withdrawn vide order dated September 17, 1996. The possibility of mistake in supplying the packing material printed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the packing material showing both the aforesaid companies as the manufacturer of goods was found at the premises of Bird paints. That would show that bird paints might be selling the goods manufactured by it but the packed in the packing material showing the present revisionist as the manufacturer. Bird paints could not claim any exemption on such sales. No material was discovered at any of the surveys to show that any goods manufactured by bird paints were actually sold in the name of the present revisionist. During the survey, no bill, books, etc., or other material was found which could indicate that bird paints was the actual manufacturer and sells the goods in the name of the present revisionist and such sales are or were likely to be shown as sales of the present revisionist. The provision of sub-section (3) of section 4A requires that actual misuse of the eligibility certificate by its holder should be reasonably established. A mere likelihood of its misuse will not be a ground for cancellation. In the case of Birla Jute and Industries Ltd. v. State of M.P. reported in [2000] 119 STC 14, the eligibility certificate was issued for the period October 21, 1982 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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