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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 ..... hinery was new and not old so, this finding has attained finality It was never contended by department that unit had not been set up in State of Haryana Order of Secretary expressly records that it was not disputed that appellant had purchased part of machinery and that appellant had shifted this machinery to Chennai, which implied therein finding that machinery had been set up in Haryana. Under scheme of Rule 28A, there is clear hierarchy Orders of LLSC are appealable to HLSC and orders of HLSC are appealable to Secretary Order of HLSC in appeal shall be final and in second case order in appeal of Secretary shall be final Orders appealed against merge into orders of appellate authorities It is not open then for HLSC to reopen order of Secretary which had attained finality on another ground HLSC, had no power or jurisdiction to review, modify or set aside order of Secretary Tribunal wrongly held that merely because issue had not been considered in appeal, it was open to HLSC to suo motu reopen case Impugned order of Tribunal and of HLSC set aside Decided in favour of Appellant. - VATAP No.10 of 2013 (O&M) - - - Dated:- 14-8-2015 - MR. S.J. VAZIFDAR, A.C.J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. On a finding that the investment in old moulds and dies was more than 25% of the fixed capital investment, it was held that the company did not qualify to be a new industrial unit in view of rule 28A of the Haryana General Sales Tax Rules, 1975. Accordingly, it was observed that the appellant was not qualified for the grant of an eligibility certificate. By an order dated 29.01.1998, the HLSC held that the appellant was not entitled to be issued the eligibility certificate and rejected the appellant s application which was made in Form S.T.70. What is recorded in the order is important and as follows. The appellant s claim was enquired into by the field authorities and was also scrutinized by the Deputy Excise and Taxation Commissioner and G.M., DIC, Gurgaon. A joint inspection report was put up before the HLSC. The HLSC ordered another joint inspection of the appellant s unit. The appellant was directed to call back the entire machinery which had been sent to Chennai. The appellant, however, informed the district authorities that the machinery could not be called back from Chennai and requested for the inspection of the machinery at Chennai. An officer of the department visi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery had never been installed in Haryana. It is significant that the order notes that a visit was made to the appellant s premises by the DETC, Gurgaon on 22.06.1995 where he was told that the machinery had been sent to Chennai. At that time, it was not even contended that the machinery had not earlier been installed in Gurgaon as is now sought to be contended. The order has commented adversely upon the fact that though the notices were issued in October, 1993, the first visit was made by the DETC to the appellant s premises only in June, 1995. It was conclusively held that the tools and dies were new at the time of purchase and that the HLSC had wrongly concluded otherwise. This finding has attained finality. The Secretary passed the following order which is vital for the purposes of this appeal:- I, therefore, quash the impugned order, accept the appeal direct the HLSC to issue eligibility certificate to the appellant. This order too has attained finality. By the impugned order, the HLSC has sought to reopen the entire matter and to reject the application to a substantial extent now on the ground that the machinery had never been installed in Haryana. It is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity afforded to him in this behalf. b) Applications from small scale units will be considered by the Lower Level Screening Committee and those from Medium/Large scale units by the Higher Level Screening Committee. (c) The General Manager, District Industries Centre shall immediately forward one copy of the application and documents on receipt to the Deputy Excise and Taxation Commissioner incharge of the District who will send his comments within a period of 21 days. In case of medium/Large scale industry, a copy of the comments will also be sent by him to the Commissioner. (d) The General Manager, District Industries Centre will, within 30 days of receipt of the application from the small scale industry, place the proposal before the Lower Level Screening Committee with his report and recommendations alongwith comments, if any of the Deputy Excise and Taxation Commissioner concerned for its decision. (e) The General Manager, District Industries Centre will within 30 days of receipt of the application from the medium/large scale industry, forward his report and recommendations alongwith the comments if any, of the deputy Excise and Taxation Commissioner to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity. The issue as to whether the unit has been set up in the State of Haryana or not was not considered, as the appellant s application for the eligibility certificate was not rejected on that ground. It was never contended by the department that the unit had not been set up in the State of Haryana. This is despite the fact that site visits were made and during those visits, the authorities were fully aware of the fact that the machinery had been shifted to Chennai to the premises of M/s Devi Polymers Limited who were doing job work for the appellant at the premises rented by the appellant. As noted earlier, the order of the Secretary expressly records that it was not disputed that the appellant had purchased a part of the machinery in the year 1993 of the value of ₹ 54.08 lacs and had come into commercial production on 24.06.1993 and that the appellant had shifted this machinery to Chennai. Implied therein is a finding that the machinery had been set up in Haryana. There is an implied if not an express admission to that effect in the order. In any event, it was not contended in the earlier proceedings that the machinery had not been set up in Haryana. 10. To reiterate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the eligibility certificate, as the eligibility certificate ordered to be granted by the order of the Secretary dated 09.05.2003 must be deemed to have been an eligibility certificate issued by the HLSC. 12. Pursuant to the order of the Secretary, the matter was put up before the HLSC. The HLSC examined the matter treating the moulds and tools as new. Indeed, It was bound to do so in view of the order of the Secretary and the findings therein. The HLSC ought to have, in compliance with the order of the Secretary in appeal, granted the eligibility certificate. Instead, in its meeting held on 30.06.2004, it recorded its prima facie finding that the machinery had not been erected at Gurgaon and it was being used in Chennai and that an investment of only ₹ 3.26 lacs could be considered for tax benefits. The HLSC, on the one hand, recorded that nobody had appeared for the appellant at the final meeting and, on the other hand, recorded that it was an undisputed fact that the machinery worth ₹ 54.08 lacs was not erected at the appellant s industrial unit at Gurgaon but was sent to M/s Devi Polymers Limited at Chennai. 13. In fact, as recorded in the order of the Secr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, which passed the impugned order. The Tribunal held that the order in appeal of the Secretary had not mentioned the amount for which the eligibility certificate was to be issued and that the order was passed only on the issue of the machinery being old or new. Had we come to the conclusion that it was open to the HLSC to revisit the matter on another ground, we would have remanded the matter to the Tribunal for there is no satisfactory consideration even on facts as to whether the machinery had been installed in Haryana or not. However, as we are of the view that the HLSC had no jurisdiction to reopen the issue on another ground, we do not consider it necessary to do so. It would be an exercise in futility in view of our finding that the HLSC had no jurisdiction to reopen the issue. The Tribunal wrongly held that merely because an issue had not been considered in the appeal, it was open to the HLSC to suo motu reopen the case. 16. Once an order of the Secretary in appeal against the order of the HLSC attains finality, the HLSC cannot reopen the same case including on a ground which had not either been urged before the Secretary or pressed by the department. It is true, as cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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