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2010 (1) TMI 1127 - HC - VAT and Sales TaxWhether in a large beverages manufacturing unit having high speed automatic machines and manufacturing aerated beverages or marketing in consumer convenient glass bottles, running of the factory or workshop is impossible unless such glass bottles and shells are used simultaneously in the machine itself for filling the beverages and under the circumstances whether the Tribunal was justified in overlooking this important aspect of the word 'fixed capital investment' under section 4A of the U.P. Trade Tax Act by merely relying upon the decision under the Bihar Act, namely, Bihar Deferment Rules, where the definition of 'fixed capital investment' is not identical and is restricted to 'fixed assets'? Held that:- The manufacture of soft drink, the bottles and crates are essential apparatus especially in a captive industry where the liquid which is prepared and collected by way of a continuous process in the bottles and thereafter kept it in crates and therefore they (bottles and crates) are to be accepted as "apparatus" within the meaning of Explanation (4)(b)(i) to section 4A of the U.P. Trade Tax Act. Thus the questions in respect of it being treated as "fixed capital investment" are to be answered in favour of the assessee and against the Department. The order passed by the Tribunal enveloping that part of the order passed by the Divisional Level Committee also is bad as there is no discussion why the review order on this point has been set aside, especially in view of the fact that the Department when it went in appeal had made no prayer that the period of exemption should be cut down from 15 years as granted in the review to any other period. Therefore this part of the order in appeal is also bad and is set aside. However the exemptions granted for 15 years will continue.
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