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TMI Blog2003 (7) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a new industrial unit was set up by the petitioner in 1998 with expanded capacity at that very place for manufacturing a product identical with the old one. For the said new industrial unit, fresh registration certificate from Director of Industries was obtained. The West Bengal Industrial Development Corporation Ltd., Government of West Bengal also issued E.C. under the West Bengal Incentive Scheme, 1993, for this newly formed industrial unit. It has been specifically mentioned there that the petitioner is to get incentive by way of remission of sales tax. In the new unit, capacity of solvent extracted rice bran oil was increased from 2,280 tons to 4,845 tons and capacity of de-oiled rice bran oil was increased to 20,400 tons in place of existing capacity of 9,600 tons. The applicant fulfilled all the terms and conditions of Explanation (a) under section 40(12) of the West Bengal Sales Tax Act, 1994. The applicant's manufacturing unit was a newly set up industrial unit in terms of the aforesaid provision and so tax on the sale of its product was liable to be remitted. The applicant's unit was a newly set up unit which started manufacturing goods on or after the appointed day, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xisting industrial unit. Accordingly, the impugned orders cannot but be sustained. 3.. The only point for consideration is whether the petitioner's manufacturing unit for production of rice bran oil and de-oiled rice bran is a newly set up industrial unit or not or in the alternative if the same unit is an expanded portion of an existing industrial unit or in other words whether the decision of the Revenue authority holding that the unit of the petitioner is neither a newly set up industrial unit nor an expanded portion of existing industrial unit can be sustained. 4.. A valid certificate of eligibility is required to be obtained by registered dealer for claiming remission of tax under section 41 of the West Bengal Sales Tax Act, 1994. For getting such a certificate of eligibility as per rule 147 of the Rules, 1995, the registered dealer has to submit an application in form 23 duly filled in and signed to the concerned Assistant Commissioner or Deputy Commissioner within a period of time mentioned in that rule. As per rule 148, the concerned Assistant Commissioner or Deputy Commissioner has to be satisfied about furnishing of correct information in the application by the register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial unit has fixed capital assets exceeding 10 lakhs rupees. It is also admitted that the petitioner used to manufacture rice bran oil and de-oiled rice bran oil since 1990. Admittedly that manufacturing unit of the petitioner-dealer has been demolished in 1997. Admittedly on the same premises, the petitioner-dealer set up another unit to manufacture identical product like the earlier one with higher capacity in 1998 and for that the petitioner-dealer got registration certificate from Director of Industries, Government of West Bengal, on May 20, 1998. It is the submission of the learned advocate for the petitioner that the industrial unit having been established in 1998 (i.e., after the appointed day) and having been duly registered with the Director of Industries and having received already E.C. from the West Bengal Industrial Development Corporation and the capital assets having admittedly been over 10 lakhs, the manufacturing unit of the applicant is a newly set up industrial unit in terms of section 41 read with Explanation (a) to sub-section (12) of section 40 of the Act of 1994. It is his submission that the factory of the petitioner started manufacturing goods on or aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2) of section 42 or sub-section (3) of section 43 of the Act of 1994. He also refers to the inspection report dated August 29, 2000 of the concerned Assistant Commissioner (annexure C, page 26). The old unit as per that report had been producing rice bran oil and de-oiled rice bran oil at the same site up to September, 1997. By adopting advanced technology, this industrial unit has been set up at the same site after demolition of the old one. The installed capacity has increased. This unit started production from 7th October, 1998. In the registration certificate issued by the Director of Industries, there is endorsement about production of additional capacity, obviously meaning thereby that it is not a new unit. Expansion of annual capacity is due to adoption of advanced technology. The expression "deemed to be a newly set up industrial unit" refers to sections 42 and 43, which is related to only "closed unit" and "sick unit". But to get benefit under those sections, relevant certificates and order from the concerned Governmental authority is required. The petitioner here having projected before the Director of Industries only about enhancement of production over existin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been mentioned "newly set up industrial unit" has been cut through. The petitioner's first sale took place on and from October 7, 1998 as per inspection report. Against serial 3k where the petitioner is asked to report whether among others serially numbered bills, cash memos in respect of sale of goods manufactured in newly set up industrial unit/expanded portion of the existing industrial unit are maintained "NA", i.e., "not applicable" has been mentioned by the petitioner. So, it appears that the petitioner was not sure as to the unit for which he has been applying for E.C. The petitioner does not know whether it is for his "newly set up industrial unit" or "expanded portion of an existing industrial unit" or for a unit deemed to be a newly set up industrial unit in West Bengal. That becomes evident as we look to the grounds of revision before Deputy Commissioner at page 38. It is stated there "that your petitioner's case falls within the meaning of section 43 of the Act and rules 98, 99, 100 and 101 of the Rules and hence he was entitled to have an E.C. even if the original plant and machineries were replaced and the unit was modernised by using latest technology ". The petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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