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TMI Blog2015 (9) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... d 05.09.2011. 2. In paragraph-27 of the appeal, several questions of law have been raised. We, however, admit the appeal on the following substantial questions of law as framed by us:- i) Whether the Higher Level Screening Committee is entitled to reopen a case on its own where its earlier decision had been overruled by the appellate authority-Secretary in exercise of powers under Rule 28A(5)(g) of the Haryana General Sales Tax Rules, 1975? ii) Whether the Higher Level Screening Committee is entitled to ignore the order of the appellate authority i.e. Secretary passed under Rule 28A(5)(h) and to refuse to comply with the order on the basis that it was doing so on a ground that had not been considered by the appellate authority? We have answered the questions in the negative, in favour of the appellant/assessee. 3. The appellant is engaged in the manufacture of onload changeover switches, switch boards and parts and accessories in relation thereto. The appellant's unit commenced commercial production on 24.06.1993. On 26.06.1993, the appellant applied for an eligibility certificate. The application was pending till the year 1998. 4. On 28.11.1996, the Deputy Excise and Taxatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has attained finality. It has not been challenged before us by the respondents/department. 5. The appellant's first appeal before the Commissioner Industries was dismissed on 26.07.1999. The appellant filed Civil Writ Petition No.11173 of 1999 in this Court challenging this order. This Court by an order dated 26.5.2000 directed the HLSC to hold a fresh enquiry into the question as to whether the moulds and dies were old or new and directed the company to be associated with the enquiry. 6. The HLSC, by an order dated 17.05.2002, once again concluded that the same were old. 7. This brings us to the most crucial aspect of the matter. The appellant filed an appeal before the Financial Commissioner & Secretary Industries, Department of Industries. The appeal was allowed by an order dated 09.05.2003. It is important to note that the Secretary by the said order observed that it was not disputed that the appellant purchased a part of the machinery in question from HPL India Limited in the year 1993 of the value of Rs. 54.08 lacs and commenced commercial production on 26.06.1993 and that the appellant at some point of time shifted this machinery to M/s Devi Polymers Limited at Chennai w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a result of purchase or transfer of old machinery except when purchased in the course of import into the territory of India or when the cost of old machinery does not exceed 25% of the total cost of machinery re-establishment, amalgamation, change of lease, change of ownership, change in constitution, transfer of business, reconstruction or revival of the existing unit; (d), (e) ......... .......... ............. ........ (f) 'eligible industrial unit' means:- (i) a new Industrial Unit of expansion or diversification of the existing unit, which- (I) to (V) & (ii) ......... .......... ............. ........ (g) "fixed capital investment" means investment in- (i)& (ii) ......... .......... ............. ........ (iii) new plant and machinery Including generating set), tools and equipment. ......... .......... ............. ........ 5(a) Every eligible Industrial Unit which is desirous of availing benefit under this rule shall make an application in form S.T.70 in triplicate alongwith attested copies of the documents mentioned therein to the General Manager District Industries Centre within 90 days of the date of its going into commercial production or the date of coming i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below the rank of Additional Director in cases approved by the Higher Level Screening Committee normally within a period of 45 days from the date of receipt of the application in the office of the General Manager, District Industries Centre. The certificate shall be valid from the date of commercial production or from the date of issue of entitlement/exemption certificate as the case may be for a period as laid down under sub-rule(4) unless cancelled or withdrawn. A copy of the eligibility certificate shall also be sent to the Deputy Excise and Taxation Commissioner concerned." 9. The appellant's application would be considered against the provisions of rule 28A(2)(c),(f),(i), (g)(iii). In order to be considered an eligible industrial unit, the enterprise must be a new industrial unit or an extension or diversification of existing unit which fulfills the conditions in clauses (I) to (V) of rule 28A(2)(f)(i). In order to be considered a new industrial unit within the meaning of Section 28A(2)(c), the unit must be one which has been set up in the State of Haryana and has not been or is not formed as a result of purchase or transfer of old machinery except when purchased in the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Director of Industries. The Additional Director of Industries was to place his proposal before the HLSC. What is important for the present purposes is to note that an appeal against the decision of the Lower Level Screening Committee (LLSC) lies to the HLSC and the decision of the HLSC in such appeal shall be final and an appeal from the original decision of the HLSC lies to the Secretary Industries and the decision of the Secretary Industries shall be final. The appellant had challenged the decision of the HLSC dated 29.01.1998 refusing to grant the eligibility certificate before the Secretary and the Secretary had, by the order dated 09.05.2003, expressly directed the HLSC to issue the eligibility certificate to the appellant. This order attained finality in view of rule 28A(5)(g). The HLSC thereafter had nothing to do with the matter. It had passed its order dated 29.01.1998 upon which it became functus officio. Its order was amenable to an appeal under rule 28A(5)(g) whereunder the decision of the Secretary became final which had not been challenged by the respondents. 11. In fact, upon the decision of the Secretary Industries, the HLSC had no jurisdiction to deal with the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The orders of the LLSC are appealable to the HLSC and the orders of the HLSC are appealable to the Secretary. In the first case, the order of the HLSC in appeal shall be final and in the second case the order in appeal of the Secretary shall be final. The orders appealed against merge into the orders of the appellate authorities. It is not open then for the HLSC to reopen the order of the Secretary which had attained finality on another ground. This would be permissible only if the order of the Secretary in appeal had been reviewed, modified or set aside, assuming, of course, that the order could have been reviewed, modified or set aside. The HLSC, in any event, had no power or jurisdiction to review, modify or set aside the order of the Secretary. A view to the contrary would lead to an absurdity. Such a view would entitle the HLSC to refuse to comply with the order of the appellate authority i.e. the Secretary ad infinitum. There would be no end to the proceedings for in that event irrespective of the number of times that the order of the HLSC is overruled and set aside in appeal by the Secretary, it would be open to the HLSC to reconsider the matter on another ground neither u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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