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M/S B.M. CEMENT PRIVATE LTD. versus COMMISSIONER OF TRADE TAX & ANOTHER

High Court of Judicature at Allahabad

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M/S B.M. Cement Private Ltd. v. Commissioner Of Trade Tax & Another - SALES/TRADE TAX REVISION No. 1021 of 2000 [2007] RD-AH 6111 (4 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

COURT NO.22

TRADE TAX REVISION NO.1021 OF 2000

M/s B.M. Cement Private Limited, Meerut.         ....Applicant

Versus

Commissioner of Trade Tax, U.P.,

Lucknow and another      ...Opp. Parties

***************

Hon'ble Rajes Kumar, J.

Present revision under section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 15.07.2000.

Brief facts of the case are that the applicant established a new unit for the manufacturing of cement. Applicant was registered both under the U.P. Trade Tax Act as well as Central Sales Tax Act under the Factories Act and also registered with the Director of Small Scale Industries. First sale was made on 20.09.1995. Applicant moved an application under section 4-A of the Act for the exemption under the notification no.TT-II-780/XI-9(226)/94-U.P. Act-15/48-Order-95, dated 31.03.1995 and TT-781/XI-9(226)/94-Act-74/56-Order-95, dated 31.03.1995  for the period of eight years on 175% of the capital investment. The exemption was denied by the Divisional Level Committee on the ground that as per the requirement of section 4 (1) under the Cement Control Order, 1995 (hereinafter referred to as "Control Order") the manufacturer of the cement was required to obtain licence for use of standard mark and shall not produce the cement till it obtains the standard mark. It appears that the applicant applied for ISI Mark with the Bureau on 27.01.1997. Since the licence for the use of standard mark from the Bureau could not obtained on the date of the first sale, the exemption under section 4-A of the Act was denied. Being aggrieved by the order of Divisional Level Committee applicant filed appeal before the Tribunal. Tribunal by the impugned order allowed the appeal in part. Tribunal held that the applicant is entitled for the exemption from the date of the application, moved for obtaining the licence for the use of standard mark with the Bureau and directed the Divisional Level Committee to grant the eligibility certificate from such date. Being aggrieved by the order, present revision has been filed.

Heard Sri Praveen Kumar Misra, learned counsel for the applicant and Sri B.K.Pandey, learned Standing Counsel.

Learned counsel for the applicant submitted that there is no requirement under section 4-A of the Act and the notification issued thereunder as a condition precedent for grant of exemption to obtain the licence for use of standard mark with the Bureau and, therefore, in the absence of any licence as required under the Control Order the exemption can not be denied. He submitted that under the notification if a unit is registered permanently or otherwise under any provisions of the Act, such unit is eligible for the exemption under section 4-A of the Act. In support of his contention he relied upon the decision of this Court in the case of M/S C.D. Lamps & Tube Industries, Moradabad and another Vs. State of U.P. and others, reported in 1993 UPTC, 875, in which it has been held that under section 4-A of the Act there is no requirement for obtaining the ISI mark. He further relied on the decision of this Court in the case of M/S Aakash Cement Pvt. Ltd., Aligarh Vs. Commissioner of Trade Tax, reported in 2000 UPTC, 298. Learned Standing Counsel submitted that cement is such a product which can not be sold unless it bears ISI mark obtained form the Bureau. He submitted that in case if manufacturing can not be allowed without obtaining the ISI mark, it will be against the public interest to allow exemption in the absence of ISI mark  as required under section 4 (1) of the Control Order. Thus, the exemption has been rightly denied.

Having heard learned counsel for the parties, I have perused the order of the Tribunal and the authorities below and have given my anxious consideration to the rival submission of the parties.

In the case of State Level Committee  and another Vs. M/S Morgardshammar India Ltd., reported in 1996 UPTC, 213, the Apex Court held that the provision of section 4-A of the Act which relates to the exemption are to be strictly interpreted and the exemption is to be considered within the ambit of the provision.

In the case of M/S C.D. Lamps & Tube Industries, Moradabad and another Vs. State of U.P. and others (Supra) and  M/S Aakash Cement Pvt. Ltd., Aligarh Vs. Commissioner of Trade Tax  (Supra) it has been held by this Court that merely because product did not bears ISI mark, the exemption under section 4-A of the Act can not be refused. There is no condition that under section 4-A of the Act  or under the notification issued thereunder which requires obtaining of ISI mark from the Bureau as required under section 4 (1) of the Control Order as condition precedent for grant of exemption under section 4-A of the Act. For the purpose of exemption under section 4-A of the Act, Divisional Level Committee should consider the claim only within the ambit of the requirement and the condition contemplated under section 4-A of the Act and the notification issued thereunder.  For making the production and sale without obtaining the licence from the Bureau for the use of the standard mark, it may amount to violation of the Control Order and the necessary action may be taken against the applicant under the Control Order but in the absence of any condition under section 4-A of the Act and the notification issued thereunder, the exemption under section 4-A of the Act can not be denied. Divisional Level Committee as well as Tribunal have committed an error of law in refusing the exemption under section 4-A of the Act on the ground that the unit could not obtain the licence for the use of standard mark from the Bureau as required under section 4 (1) of Cement Control Order, 1995.

In the result, revision is allowed. Order of the Tribunal is set aside and Divisional Level Committee is directed to issue the eligibility certificate and grant the exemption from the date of first sale.

Dt.04.04.2007

R./


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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