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ASSTT. COMMISSIONER SPECIAL CIRLCE v M/S PADMINI GRANITES & MARMO TILES PVT. - CR Case No. 427 of 2006  RD-RJ 2605 (11 May 2007)
S.B. Civil Sales Tax Revision No.427/2006
Assistant Commissioner, Spl. Circle, Bhilwara. vs.
M/s. Padmini Granites & Marmo Tiles Pvt. Ltd.
Date : 11.5.2007
HON'BLE MR. PRAKASH TATIA, J.
Mr.Sangeet Lodha, for the petitioner.
Mr.Dinesh Mehta, for the respondent.
Heard learned counsel for the parties.
The assessing authority held that since the assessee started commercial production from the other machinery before he purchased the machinery vide bill dated 15.6.1993, therefore, the said purchase of machinery could not have been without payment of sales tax. The assessing authority apparently was of the view that it is not a case of setting up of industry but it amounts to expansion of industry.
The order of the assessing authority dated 13.5.1999 was challenged by the assessee by filing appeal before the Dy. Commissioner (Appeals), Udaipur which was allowed vide order dated 21.8.2001.
The revenue preferred appeal to challenge the order of the Dy. Commissioner (Appeals) which was dismissed by the Tax Board, Ajmer vide order dated 14.11.2002. The Tax Board was of the view that in view of the different language used in the notifications dated 25.9.1985 and 27.3.1995, the assessee was entitled to purchase the machinery without payment of tax.
The revenue has preferred this revision petition.
The only substantial question of law involved in this revision is that, "Whether the Tax Board Committed error of law in dismissing the appeal of the revenue without recording any finding about the fact that when the assessee established and completed the unit ?"
We may take help of the judgment of this Court delivered in SB Sales Tax Revision No.387/2000 (ACTO,
Ward-I, Sirohi vs. M/s. Shri Vijaya Industries,
Kesharpura) decided on 23.2.2007 (by me) and earlier judgment of this Court delivered in SB Sales Tax
Revision No.493/2000 (ACTO, Rajsamand vs. M/s. Srinath
Minerals Industries, Nathdwara) decided on 14.11.2005.
The setting up of new industry and expansion of an existing industry are two different situations. This
Court in judgment of M/s.Vijaya Industries (supra) held that in the process of setting up of new industry, time may be required and during that period, some production may be started from some machinery, therefore, mere start of commercial production of some articles of the entire project of the industry cannot be termed to be completely setting up of new industry. Therefore, the very foundation for deciding the matter was what was the project of the assessee and in the light of that project only, it can be decided whether it was a case of setting up of new industry or it is a purchase of machinery for setting up of new industry. That finding is also not in the order of the assessing authority dated 13.5.1999.
In view of the above, this sales tax revision is allowed, the orders dated 14.11.2002, 21.8.2001 and 13.5.1999 passed by the Tax Board, Dy. Commissioner
(Appeals) and the Assessing Authority respectively so far as they relate to the issue referred above are set aside and the matter is remanded to the assessing authority to hold enquiry and decide the issue whether the machinery in question was purchased after setting up of industry or before that, in the light of the observations made above as well as decisions referred above.
(PRAKASH TATIA), J.
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