Holding

The 1991 Notification confers tax exemption only on the additional fixed capital investment of a unit undertaking expansion, the three capacity‑increase phases constitute three separate expansions, pre‑operative expenses are not part of “fixed capital investment”, and the State may recover tax even if the dealer did not collect it.

Summary

The Commissioner of Trade Tax, U.P. appealed against the eligibility certificate granted to Mis. Kajaria Ceramics Ltd. for exemption from trade tax under the 1991 Notification. The company had expanded its ceramic tile plant in three stages between 1990 and 1994, increasing capacity from 12,000 TPA to 60,000 TPA, and claimed exemption on the total additional fixed capital investment. The issues were whether the exemption should be calculated on the additional investment only, whether the three expansions were separate, whether pre‑operative expenses formed part of “fixed capital investment”, and whether the State could recover tax even if the dealer had not collected it. The Supreme Court held that the 1991 Notification limits the benefit to a percentage of the additional fixed capital investment, that the three expansions were distinct, that pre‑operative expenses are excluded from the definition of fixed capital investment, and that the State is entitled to recover the tax irrespective of collection. Accordingly, the appeals were allowed, setting aside the High Court and Tribunal decisions and affirming the Divisional Level Committee’s order.

Issues considered

Whether a unit undergoing expansion is entitled to exemption on the additional fixed capital investment or on the total fixed capital investment under the 1991 Notification.
Whether the respondent’s claim of a single integrated expansion from 12,000 TPA to 60,000 TPA is sustainable in fact or in law.
Whether certain pre‑operative expenses form part of “fixed capital investment” for the purpose of Section 4A of the U.P. Trade Tax Act and the 1991 Notification.
Whether the respondent, having not collected or realized any tax, is entitled to any relief from recovery of tax.

Legislation cited

Income Tax Act
U.P. Trade Tax Act, 1948s. 15A(1)(qq)(viii), s. 4A

Subjects

trade tax exemptionfixed capital investmentindustrial expansionnotification interpretationpre‑operative expensestax recoveryeligibility certificate

Judgment

COMMISSIONER OF TRADE TAX, U.P. AND ANR. A
v.
MIS. KAJARIA CERAMICS LTD.

JULY 12, 2005

[RUMA PAL AND ARUN KUMAR, JJ.] B

UP. Trade Tax Act, 1948:

Section 4A-Exemption Notification of 1991-Benefit of. from payment
of trade tax, to industrial units undergoing expansion under-Extent of C
benefits available-Held: Benefit of 1991 Notification is limited to a
percentage of the additional fixed. capital investment and not to a percentage
of the aggregate of the original and additional fixed capital.

Section 4A-Exemption Notification of{p91-Benefit of. from payment D
of trade tax, to industri(Jl units undergoing. expansion-Expansion of units
thrice within period of five years-Assessee claiming exemption under 1991
notification that during the peri<fd offive years ther;e ~as. one single expansion
in three phases-Sustainabilit)(of_:.Held: Admitted facts that there were
three separate expansion-EacH:tiime assessee n;Jifi additional investment,
increased its capacity to produ~e and in fact· produced goods there was E
expansion-Whe_n expansion done unit was in PfD_duction for less than three
years-Three separate applications were maintainable and not one composite
application for three years-H~nce,
. ,., finding . of tid Authority
.;:.. ' that
.
there
. ·.
.were
three expansions uphtdd and ·clai11i 1 of assessee not sustainable.
• . •'.
· ·. ··· _
10'"' j.

Section 4A explanation 4-Fixed capital J~vt:stments-Meaning of- F
Preoperative expenses, if includible-Held: Preope;ativf'! expenses like interest
to financial institutions, rights sh~res issue expenses, foreign technician
expenses and foreign travel expenses does not reflect value -0f items forming
part of fixed capital investment for 1991 Notification and the Act-Hence,
not includible under head offixed capiial investment for purpose ·of'fection G
4A-Also cannot be brought within the definition by any principle of statutory
interpretation.

Sections 4A, BA, 15A(l)(qq)-Exemption Notification of 1991-Grant
of eligibility certificate pursuant to Order of High Court-Assessee units not
~7 H
438 SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

A collecting or realising any tax-Also order not stayed by this Court-Unit
finally not entitled to exemption-Relief against recovery of tax-Entitlement
of-Held: Assessee unit is not entitled to any relief-State Government is
entitled to recover tax from the unit-Dealer has to pay tax which it did not
collect ji-om customers even if it was under fear of punishment under section
B l 5A(l)(qq)(viii).

Respondent-Company having obtained industrial licence in 1988 was
engaged in manufacturing anfl selling of ceramic tiles since then. The annual
production capacity ofthe respondent was 12000 tonnes per annum (TPA).
The .respondents obtained six years tax exemption from 1988-1994 in terms
C of the Notification of 1985 issued under section 4A of the U.P. Trade Tax Act,
1948. The annual production capacity of the respondent was increased from
12000 TP A to 26000 TPA, from 26000 TPA to 40000 TPA and from 40000
TPA to 60000 TPA respectively during the period in year 1990, 1991 and
1994. The respondents were granted eligibility certificate. There was total
additional investment in three expansions.. Meanwhile, the Notification of 1991
D was issued and exemption was granted to a new unit and to units which had
undertaken expansion, diversification or modernization. A Circular of 1993
was also issued whereby units which had started production upto 31.3.1990
and which could enjoy unlimited exemption for a fixed period, and which had
undertaken expan.sion, diversification or modernization would get the benefit
E of exemption.

After exemption period from 1988-1994 came to an end, respondent filed
application under 1991 Notification claiming that there was one expansion
during the period from 1988-1994 by which annual production capacity of
the respondent's unit was increased from 12000 TPA to 60000 TPA.
p Meanwhile the 1995 Notification was filed which granted benefits to units
which were either new o.r had undertaken expansion, diversification or
modernization on or after 1.4.1995 but not later on 31.3.2000. Division Level
O;immittee (DLC) ignored the first two expans_ions for achieving the expansion
of 40000 MT and granted an exemption only in respect of the last expansion
of the unit from 40000 TP A to 60000 TPA taking 40038 MT as base·
G' production with the production commencing from 28.3.1994. DLC included
I
the cost of land and site building and plant and machinery in the total fixed
capital investment but excluded expenses such as interest payable to financial
institutions, expenditure incurred for rights_ issue, foreign travel and foreign
'.
technician expenses as claimed by respondents. Thereafter, an eligibility
H certificate was issued. Aggrieved respondent filed an appeal. The Tribunal
COMMR. OF TRADE TAX, U.P. v. KAJA RIA CERAMICS LTD. 439

held that there was only one expansion and that the benefit under the 1991 A
Notificatio~ was to be calculated as a percentage of the additional fixed capital
investment and not as a percentage of the fixed capital investment prior to the_
expansion. It, however, included the expenses on rights issue, foreign
technicians, foreign travel, laboratory equipment, fire fighting equipment and
establishment of water distribution schemes in the value of the fixed capital B
investment Both the appellants and the respondent filed a revision. The High
Court held that the tax benefit would be calculated at the specified percentage
of the original and additional fixed capital investment and struck down the
Circular of 1993 and directed the DLC to issue a revised eligibility certificate.
Hence the present appeals.

The questions which arose for consideration in these appeals are:
c
(i) Whether under the 1991 Notification, unit undergoing expansion is
entitled to the benefit of exemption on the additional fixed capital investment
or the total fixed capital investment?

(ii) Whether the respondents' claim of one integra~ed expansion from D
12000 TPA to 60000 TPA during 1988 to 1994 is sustainable in fact or in
law?

(iii) Whether certain preoperative expenses form part of 'fixed capital
investment"' under section 4A of the Act and the 1991 Notification?
E
(iv) Whether the respondents, allegedly not having collected or realized
any tax after the grant of the eligibility certificate, pursuant to the High
Court's judgment, and which was not stayed by this Court, are entitled to any
relief?

Allowing the appeals, the Court F
HELD: 1.1 The different methods of computation contained in paragraph
4 of the 1991 Notification serve two separate purposes and that is to determine
the two relevant investments for the distinct benefits available to two different
kinds of units viz. new units and established units which have undertaken
expansion etc. Significantly there is no mode prescribed for determination of G
originai fi:~ed ~apital investment as far as the I~tter kind of unit is concerned
/
nor additional fixed capital investment in respect of the former. The High Court
'
did not consider the logical consequences of paragraph 4 of the Notification
providing only for the computation of additional fixed capital investment as
far as'units _undertaking an expansion etc.,were concerned. The High Court H
•
440 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A misread paragraph 4, the only reasonable interpretation of which is that as
far as new units were concerned the 'original fixed capital investment' would
have to be computed and as far as units undertaking' expansion etc. were
concerned 'additional fixed capital investment alone would have, to be computed.
(455-E-G)

B 1.2. Form XLVI appended to the UP Trade Tax Rules, 1948 prescribes
the details for an application for exemption from or reduction in rate of tax to
new units the date of starting production whereof fell on or after 1.4.1990 or
to units which have undertaken expansion, diversification or modernization
on or after 1.4.1990 under Section 4A of the U.P. Trade Tax Act. Serial No.
C 6(a) gives the necessary particulars of the fixed capital investment in case of
the latter kind of unit. There are three columns viz., Original investment
(without giving margin for depreciation), additional investment in the
expansion etc on the date of commencement of the period of facility and a
certificate of valuation of the additional fixed capital investment. The
investments contemplated are in (i) land (ii) building and (iii) plant, machinery,
D equipment, apparatus and components. The certificates in respect of items (i)
and (ii) as far as additional fixed capital investment are to be giVen by the
Collector of the District and the evaluator approved by the Income Tax
Department respectively. The valuation of the third item is to be given by a
chartered accountant. The note to Serial No. 6(a) also requires a certificate
E from a chartered accountant of the original fixed capital investment. The
particulars indicate that while fixed capital investment includes original and
additional investments a distinction is made between the two. The purpose is
patently to enable the Department to verify the calculation of the percentage
of increase in the additional investment by reason of the expansion over the
original., It does not mean that in respect of units undertaking expansion the
F percentage is to be calculated on an aggregate of both original and additional
investments. (455-H; 456-A-D)

1.3. The three notifications namely the one issued in 1985, 1991 and
1995 form part ofa pattern. The 1985 notification granted benefit to new units
provided their original investment exceeded Rs. 3 lacs of their entire turnover.
G The 1991 Notification extended the benefit to old units undertaking expansion
and which may have already got the benefit, like the respondent, of the original
investment made under the 1985 Notification subject to the old unit making
a further investment and the benefit was limited to a percentage of that
investment. Similarly the °1995 Notification further extended the benefit to
H units which had undertaken backward integration again limiting the benefit

I
I
COMMR. OF TRADE TAX, U.P. 1-. KAJA RIA CERAMICS LTD. 441

to the investment made. All three notifications were issued under the same A
section and for the same purpose of effecting development and were part of a
chain of progress without any overlapping. Not only would the contents of each
notification derive its meaning from Section 4A as each is derived from and
refers back to the section, but also if a phrase used in one of the notifications
is still ambiguous, then for the purpose resolving the ambiguity the contents B
of the previous or subsequent notifications can be looked into. (456-E-H)

Pappu Sweets and Biscuits v. CIT, UP., (1998) Supp 2 SCR 119, referred
to.

Cape Branch Syndicate v. I.R.C, (1921) 2 KB 403, referred to.
c
1.4. The ambiguity in the 1991 Notification as to the meaning to be put
on the phrase 'fixed capital investment' in Annexure I was removed by the
clarification in Annexure I of the 1995 Notification by its reference to
additional fixed capital investment as far as established units undertaking
expansion etc. were concerned. (457-E-F)
D
1.5. The Circular can be read as a contemporaneous understanding and
exposition of the intention and purport of the Notification. Courts have treated
contemporary official statements as contemporary exposition and used them
as aids to interpret even recent statutes. (458-B)
E
Collector v. Andhra Sugar, (1988) 3 Supp SCR 543 and Karnataka
SSIDCL v. CIT, [2002] Supp 4 SCR 453, referred to.

1.6. The High Court erred in striking down the circular of 1993 by
holding that the circular was contrary to what the High Court thought was
the clear intention behind the notification instead of seeing the circ.ular as p
contemporaneous evidence of such intention. Therefore, the position was
abundantly clear. Old units undertaking expansion, diversification or
modernization would be entitled to get benefit of tax reduction on the additional
fixed capital investment made. The respondent acted on this. (458-E-F)

1.7. The respondent had only claimed in its amended application that it G
should have been given exemption on the additional fixed capital investment
relating to the three expansions before the tribunal. The particulars of the
items of investment including land and buildings claimed related only to this.
It was only the third expansion which should be granted the benefit under the
J991 ·Notification. Thus, there was no issue raised before the Tribunal by the H
442 SUPREME COURT REPORTS [2005] ,SUPP. I S.C.R.

A respondent that the original investment should be included in computing the
tax benefit under the 1991 Notification. Even if the High Court found that the
issue was raised fo the grounds of Appeal, it should not have allowed the
respondent to raise it in revision when clearly it had not been pressed before
the Tribunal. (458-H; 459-A-B] v
\

B 1.8. The appellants' submission that the High Court's interpretation of
the 1991 Notification leads to anomalous results also appears to b~ sound.
The High Court has correctly found that "the object of granting ex~mption
from payment of sales tax has always been for encouraging capital investment
and establishment of industrial units for the purpose of increasing production
of goods and promoting the development of industry in the State". If the
c intention of the State Government, as expressed in Section 4A itself is to
encourage investment, it is unlikely that the investment already made would
entitle an industry to any further benefit again. Yet if th'e respondent's
reasoning is accepted which was affirmed by the High Court, there may be
multiple expansions qualifying for the benefit of the 1991 Notification and
D the original investment would be taken into account every time. Apart from
the fact that a new unit would have to face competition from an old established
unit, a new unit would be additionally handicapped by the greater benefits being
granted to the old established businesses. It is unlikely that any new unit
could be persuaded to set up industries in such adverse circumstances leading
to a situation which was certainly not envisaged either under Section 4A or
E
under any of the notifications issued thereunder. [459~C-F]

1.9. The Notification is merely sought to be construes. Although
consequences cannot and should not alter the statutory language but they may
at least fix its meaning. The benefit of the 1991 Notification with regard to
F the units undertaking expansion etc. like the respondent, is limited to a
percentage of the additional fixed capital investment and not the original and
additional fixed· capital only and not to a percentage of the aggregate of the
original and additional fixed capital. [459-G-H; 460-A]

2.1. Each of the admitted facts show that there were in fact three
G separate expansions. For each of the three expansion~, separate industrial
licences were applied for and obtained from the Central Government. Separate
negotiations for finances were entered into between the respondent and the
financial institutions. The correspondence exchanged shows that the
expansions were separate and the respondent had .made three separate
applications, one for each expansion. The High Court or the Tribunal did not
H ~
COMMR. OF TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. 443

advert to these facts and their conclusion that there was only one expansion A
was perverse. (461-C-E)

2.2. Admittedly the respondent produced goods in excess of what was
its base production as a result of the establishment of its original unit in
1991 when the first expansion was completed. With the production of the first
tile after the first expansion the period of facility under the 1991 Notification B
commenced and the expansion was complete. The years of the first expansion
would then be taken into account for determining the base production for the
second expansion, and the moment this was exceeded as a result of the second
expansion the expansion was complete. The same process would apply to the
third expansion. Therefore, each time the respondent made an additional C
investment, increased its capacity to produce and in fact produced goods there
was an expansion. [464-B-C]

2.3. The respondent cannot in terms of this statutory scheme claim in
one breath that a single expansion commenced from 1988 and was completed
in 1994 and at the same time say that the base production was the figure of D
production in 1992-93 viz. 40038 MT. The base production must statutorily
precede the expansion and cannot be a figure taken while the expansion has
already progressed. The figure of 40038 MT was accepted by the DLC as the
base production. The appellants have similarly accepted this figure. But this
is in keeping with their submission that there were in fact three expansions
and that the figure of 40038 MTs is the base production for the third and last E
expansion. (464-D-E]

2.4. The respondents relied on the second proviso to Explanation 6 of
the Notification 1991 as well as Notifications of 1996 and 1997 that the
notifications permit fixed capital investment even after the commencement of F
facility and was an instance of the clubbing permitted under the second proviso.
The two notifications of 1996 and 1997 declare that new units or old units
making an additional fixed capital investment of fifty crore rupees or more
would be entitled to exemption from tax for a period of three years on or after
specified dates. The clubbing under the second proviso does not relate to the
date of production and the commencement of the facility but to the base G
production. Neither of the notifications refers to the second proviso nor were
they in operation during the relevant period. [464-F; 465-A-BJ

2.5. The High Court relied on Circulars of 1996 and 1997 and concluded
that the respondent could only make one composite application after S years.
H
444 SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

A It should not have done so since the circular was issued subsequent to the
relevant period and after the respondent had filed its revised application for
exemption under section 4A, and the construction put by the circular on the
definition of base production is questionable and has in any event no statutory
force. In any event the definition of base production in Explanation 6 which
B was amended in 1998 w.e. f. 1.4.1990 clearly says that ifthe unit has been in
production for less than five years, the maximum production achieved during
any one of the preceding assessment years would be taken as the base
production. Therefore, the appellants rightly submitted that three separate
applications were maintainable at all material times deSpite the fact that when
such expansions were done the unit was in production for less than 5 years.
C There were in fact and in law three expansions. (465-H; 466-A-D)

3.1. Explanation 4 to section 4A has defined fixed capital investment
saying that it 'means " investment in land and building and such plant,
machinery, equipment apparatus, components, moulds, dyes, jigs and fi~tures
as have not been used or acquired for use in any other factory or workshop in
.. D India". The language of the definition of the phrase in Explanation 4 to Section
4A is sufficiently clear and unambiguous. This coupled with the use of the
word 'mean·s' in the Explanation shows that the definition is exhaustive.
Therefore, apart from what is stated in the definition, no other item of.expense
is includible under the head of fixed capital investment for the purposes of
E section 4A of the Act. (466-F-G)

Feroze N. Dotiwala v. P. M Wadhwani, (2003) 1 SCC 433 and PLD
Corporation Ltd, v. Presiding Officer, (1990] 3 SCR 111, relied on.

3.2. This principle of statutory interpretation is reinforced not only by
the particulars itemized in form XLVI of the Rules but also by the procedures
F for determination of ~xed capital investment specified in paragraphs 3 and 4
of the 1991 Notification, all of which underscore the definition's restrictive
nature. There is and indeed could be no reference either in the for:m or in the
1991 Notification to any item outside the definition in Explanation 4 to Section
4A. (467-E] ·,

G 3.3. Th-e items of expenditure-Interest paid on loans by financial
institutions, expenses in connection with a rights issue of shares, expenses
on foreign technicians or foreign travel do not reflect the value of the items
forming part of the fixed capital investment for the purposes of the Act or
1991 Notification and cannot by any principle of statutory interpretation be
brought within the definition of the phrase in Explanation 4 to section 4A.
H (468-B-C)
COMMR. OF TRADE TAX, UP. ,.. KAJARIA CERAMICS LTD. 445

3.4. The underlying object of the scheme of exemption under Section A
4A of the Act, is to grant benefit by way of a quid pro quo for the actual value
of assets brought into the State. The determination of such value would
necessarily have to be an objective exercise. For the purposes of the Income
Tax Act, a tax on income may allow the valuation of an asset taking into
consideration circumstances which may be entirely personal to the assessee
under which the asset is purchased subject to certain permissible limits. B
Therefore, the perspective of the two statutes is different. The Tribunal and
the High Court failed to construe these statutory provisions and relied upon
judgments delivered in connection with the Income Tax Act, the provisions
and purpose of which could hardly be said to be in pari materia with the
provisions of the UP Act and the 1991 Notification. [467-F-G; 468-A[ C
Challapalli Sugars Ltd. v. CIT. (1975) 98 !TR 167; Commissioner of
Income Tax v. Motor Industries Co. Ltd., (1988) 173 !TR 374 and CIT v.
Polychem Ltd. (1975) 98 ITR 574, referred to.

4.1. The State Government is entitled to recover the sales tax from the D
assessJe companies irrespective of the fact that the assessee companies may
have lost the chance of passing on their liability to pay sales tax to their
purchasers. The Act itself envisages a situation where a dealer may be called
upon to pay the tax which it may not have collected from its customers. Further,
even if the dealer is under the fear of punishment under section 15A (qq)
(viii) does not realise amount by way of tax on the sale of its goods in E
compliance with the provisions of section SA (2) during the period it is exempt
from paying tax, it would still have to pay the tax under sub section (4) of
section 4A if it is found that it was not entitled to such exemption. The
overriding nature of this consequence follows not only from the use of the
imperative word 'shall' in sub section (4) but also from the non obstante clause F
with which section 4A opens. [470-G-H]

State ofRajasthan v. J. K. Udaipur Udyog Limited, [2004[ 7 SCC 673,
relied on.

4.2. The Circulars may be of varying kinds. The circulars relied on G
were merely official communications to the subordinate officers directing
compliance with the decision of the High Court. They were not clarifications
of statutory provisions that they would represent the official understanding
of those statutory provisions and would be binding on the taxing authority.
Nor was there any statutory provision in the UP Act which makes circulars
issued thereunder binding on the authorities. Respondent's objection to the H
•
446 SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

A recovery of the tax that the appellants had accepted the decision orthe High
Court and Circulars had been issued even prior to the refusal to stay the
impugn.ed judgment by this Court cannot be accepted. In absence ofanyorder
of stay by this Court, the appellants were bound to comply with the impugned .
decision. Such compliance by itself cannot destroy the appellants rights to
B press their appeals before this Court. (468-F-H; 469-A)

Collector of Central Excise, Vadodra v. Dhiren Chemical Industries,
(2002) 2 SCC 127 and Commissioner of Sales Tax, UP. v. Indra Industries,
(2000) 9 sec 66, referred to.

5. The High Court has found that the respondent had taken the benefit
C of the increased capacity of the unit which came about by reason of the first
two expansions in the sense that the exemption on entire sales turnover
relatable to such increased capacity had been enjoyed by the respondent under
the 1985 Notification. The DLC had also granted tax benefit to the respondent
only in respect of the third expansion excluding the preoperative expenses.
D Even though for other reasons, having regard to the decision on the various
is,ues against the respondent, this is the highest relief that the respondent
could claim and which the appellants concede would be the most equitable.
' . (471-B-C)

CIVIL APPELLATE JURISDICTION:
. / Civil Appeal No. 4601 of2000.
-- .;
. '

E
From the Judgment and Order dated. 13.1.2000 of the Allahabad High ·
Court in T.T.R. No. 700of1997. · · ·.
_,,,_
~.. .
WITH
C.A. No. 4602 of2000. . '--._
F
G.K. Banerjee, Punit Dutt Tyagi, S. Aggarwal and Mukesh Verma with /
him for the Appellants. ·

Gopal Subrarnanium, Bharatji Aggarwal, Dhruv Agarwal, Praveen _Kumar,
Umesh Khaitan and Nishant Menon with them for the Respondent.
G
The Judgment of the Court was delivered by

RUMA PAL, J. The issue in these appeals is the extent of the entitlement
of the. .respondent to. the benefit of exemption from payment of trade tax ..
granted under a notification dated 27th July, 1991 issued under Section4A ··
H of the U.P. Trade Tax Act, 1948 (hereinafter referred to as '.the Act')
-~ -- ..
COMMR. OFJRADE TAX, UP. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.l 447

. The respondent manufactures and sells ceramic tiles in its ·factory at A
Sikandarabad, District Btilandshahar in the State of Uttar Pradesh since 1988
having received an industrial licence from the Government of India to do so .
. The an;{ual production capacity of the respondent was 12000 TPA (tonnes .
per annum). The total investment made in the unit upto 12th August, 1988
was Rs.16,21,54,452 and thefirst sale was effected on 16th August, 1988.
B
A notification issued on 26th December, 1985 (referred to as the 1985
Notification) under Section 4-A of.th.e Act granted a six-years' tax exemption
in re~pect of new units having an investment in excess of 3 lakhs starting
production on or after the first date of October, 1982 but not later than the
first day of March, 1990. Admittedly the respondent's unit fulfilled the C
conditions mentioned in the notification and, siilce its inv.estments exceeded
Rs. 3 lakhs, it was granted ex.emption for six years which was reckoned from
the date of first sale i.e. from 16th August, ·]988 to 15th August, 1994.

. During the period 1st April, 1990 to 15th August, 1990 the capacity of
the respondent's unit was increased from 12000 to 26000 tonnes per annum . .- D
A!further fixed capital investment of Rs. I I, 14,95,641 was made and the eligibility
. certificate which had been granted was suitably revised on I Ith April, 1991
noting the increased production capacity of the unit to 26000 TPA. Again
between 16th August, 1990 to 28th December, 1991, the respondent made an
additional fixed capital investment of Rs.12,50,66,080 and increased the units
. capacity from 26000 to 40000 TPA. Finally the capacity was increased to 60000 E
TPA by making a further llivestment of Rs. 29,95,20,778 by 28th March, 1994.
Th_e total additional inv~stment in the three expansions was Rs. 54,51,03;544.

. In the meanwhile a notification dated 27th July, 1991 (referred to as the
1991 Notification) had been issued granting an exemption from tax to a new p·
. ·unit and also to units which had undertaken expansion, diversification or
modernization. It provided similar reHef from payment of tax under the Act to
new units excluding units mentioned in Annexure II to the second Notification
as well as to goods manufactured in units other than units of the type
mentioned in Annexure II which had undertaken expansion, diversification or
modernization on or after !st April, 1990 but not laterti!~~ 3 lst March, 1995 G
r in specified areas. Under paragraph l(B) (I) (a) no tax was payable or, as the
case may be the tax was payable at reduced raies specified in Column IV of
Annexure I on the turnover of sales by such units in respect of inter a/ia
"the quantity of goods manufactured in excess of ihe base production in the
case of units undertaking expansion or modernization". Paragraph I B (2) (ii) H
·-·
448 SUPREME COURT REPORTS (2005) SUPP. 1 S.C.R.

A provided that in the case of units undertaking expansion or modernization the
period of such facility was to be reckoned from the first date of production
of goods manufactured in excess of the base production. The benefits under
the Notification were available only on production of an eligibility certificate
. granted by the named authority to the assessing authority. Annexure I provided _,
B __for the rates of tax applicable in respect of such units situated in different
districts named in that Annexure. The rate of exemption of tax applicable was
fixed on the basis of the investment and varied according to the location of
the unit as specified in Annexure 1 to the Notification. The respondent's unit
was covered by Serial No. 2( i ) of Annexure I to the notification which
covered the district of Bulandshahr within which the respondent'~ factory is
C situated. The relief was granted for 9 years and was fixed at 'nil' in case of
units with a fixed capital investment exceeding 50 crores and in the case of
other units at different percentages subject to 150 per cent of the fixed capital
investment in the case of small scale units and 125 per cent of the fixed capital
investment in the case of medium and large scale units.

D On 30th June, 1993, a Circular was issued by the Commissioner of Sales
' Tax clarifying that units which had started production upto 31st March, 1990
and which could enjoy unlimited exemption for a fixed period, and whichJiad
undertaken expansion, diversification or modernization would get the benefit
of exemption ofreduction from the specified dates confined to 100% to 150%
E of the additional fixed capital investment.
When the 1991 Notification came into force, the respondent was still
enjoying the benefit of the 1985 notification. After that period of exemption
came to an end on 15th August, 1994, on 16th September, 1994, the respondent
made three separate applications under cover of a letter dated 15th September,
F 1994 to the General Manager, District Industries Centre for recommendation
to the Divisional Level Committee stating that the respondent company had
started its production on 12th August, 1988 with an installed capacity of
12000 TPA and that it had "undertaken three successive expansions during
1990 to 1994. First it increased the capacity from 12000 MT to 26000 in
August, 1990 and raised it to 40000 MT in December, 1991and60000 MT in
G March, 1994".

However, on 21st November, 1994 the respondent ~ithdrew all three
applications and on 17th July, 1995, filed a revised application claiming that
there was one expansion from 12th August, 1988 to 28th March, 1994 by
H which the annual production capacity of the respondent's unit was increased
COMMR. OF TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.] 449

from 12000 TPA to 60000 TPA by making an additional fixed capital investment A
of Rs. 54,51,03,549.

Before the revised application under the 1991 Notification was filed by
the respondent a third notification was.issued on 31st March, 1995 (referred
to as the 1995 Notification) granting benefits to units which were either new
or had undertaken expansion, diversification or modernization on or after· l st B
April, 1995 but not later on 31st March, 2000. The difference in this notification
with the earlier notifications is not only with regard to the period but also in
the allowance of the benefit to any finished goods manufactured in such a
unit which had undertaken "backward integration" during the same period.
The limits to which exemption was granted has been mentioned in Annexure C
I. Units where the fixed capital investment exceeded Rs. 50 crores would, like
the earlier notification, be wholly exempted from payment of tax. Where the
investment was not Rs. SO crores, the benefit was granted at reducing
percentages - the maximum (at least as far as certain districts including
Bulandshahar were concerned) being 200% of the fixed capital investment or,
as the case may be, additional fixed capital investment. D
On the basis of the revised application and in accordance with the
procedure prescribed, an inquiry was made and a report submitted by the
Trade Tax Officer to the Divisional Level Committee (DLC ). The DLC by its
decision dated 7th July, 1996 granted an exemption only in respect of the
expansion of the unit from 40000 TPA to 60000 TPA. The base production was E
taken at 40038 MT. The benefit in respect of the first and second expansions
for achieving the expansion of 40000 MT was not granted. The production
· was also taken to have commenced from 28th March, 1994 as a result of
expansion. The total figure of investment accepted by the DLC included the
cost of land and site building and plant & machinery. Other expenses claimed F
by the respondent such as interest payable to financial institutions, expenditure
incurred for rights issue, foreign travel and foreign technical expenses were
not included. An eligibility certificate based on the decision of the DLC was
accordingly issued. ·

Aggrieved by the DLC's decision, the respondent filed an appeal under G
Section 10 of the Act to the Trade Tax Tribunal. The Tribunal accepted the
respondent's claim except to the extent that the exemption was limited to a
percentage of the additional fixed capital investment of Rs. 54,51,03,544. In
other words, the Tribunal held that there was only one expansion and not
three and that the benefit under the 1991 notification was not to be calculated H
450 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A as a percentage of the fixed capital investment prior to the expansion but as
a percentage of the additional fixed capital investment. However the expenses
on rights issue, foreign technicians, foreign travel, laboratory equipment, fire
fighting equipment and establishment of water distribution schemes were
included in the value of the fixed capital investment.

B The appellants filed a trade tax revision before the High Court. The
respondent also filed a trade tax revision before the High Court challenging
the limitation of the grant of exemption to the additional fixed capital investment.
By the impugnedjudgmen, the High Court allowed the respondent's application
and dismissed .the State's application holding that the respondent's unit was
C entitled to include the fixed capital investment ofRs.16,21,54,452/- as on 12th
August, 1988 in the fixed capital investment under the 1991 notification and
that the tax benefit would be calculated at the specified percentage of the
original and additional fixed capital investment. The Circular dated 30th June
1993 was struck down and the DLC was directed to issue a revised eligibility
certificate to the respondent in accordance with the finding.
D
Two appeals have been preferred from both these decisions by the
Trade Tax Authorities, both of which are being disposed of by this judgment.
As no stay was granted by us at the time of the admission of the appeals,
tax relief was granted to the respondent by the appellants as directed by the
High Court.
E
According to the appellants the 1985 Notification granted tax relief only
to new units and did not extend to units undergoing expansion, diversification
or modernization. The 1991 Notification expanded the category of units to the
latter category for the first time. As far as the fixed capital investments were
F concerned it is submitted that Explanations 1,2,4 and 5 to Section 4A of the
Act showed that there was a distinction between original and additional fixed
capital investment
..!:, .
and that contextually, the phrase "fixed capital investment"
used in the notification when read in the case of a new unit should mean
'original fixed capital investment' and in the case of a unit undertaking
expansion, diversification or modernization to mean 'additional fixed capital
G investment resulting in such expansion, diversification or modernization. It is
submitted that that was how the respondent had understood the matter
initially. Any other construction, according to the respondents, would lead to
absurd consequences not only by granting benefits to older units at the
expense of new units but also by granting double benefit in respect of the
H same investment. Multiple expansions would also allow the same original
COMMR. OF TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.) 451

investment to be counted for each expansion and an expansion by only 25% A
of the original investment would mean that the unit would have a tax benefit
including the 100% earlier invested. This, according to the appellants was not
the object of the notification. The appellants contend that the ambiguity in·
the 1991 Notification was clarified by the 1995 Notification which explicitly
says that tax benefits would be on the additio.nal fixed capital investment in B
the case of expansion, diversification or modernization. According to the
Appellants the High Court should not have struck down the Circular issued
in 1993 which had earlier clarified the issue. In any event it is submitted, the
fixed capital investment could not, in the light of explanation 4 to Section 4A
be construed to include any item apart from the items specified therein. On
the question whether there was one or three separate expansions, the C
Appellants contended that there was no evidence whatsoever to show that
the three expansions were part of one integrated scheme. They say that
treating the expansion as one would be contrary to the statute. Finally it is
submitted that if at all the respondent had not collected any tax on the
strength of the eligibility certificate issued by the authorities consequent to
the High Courts judgment ( which was disputed ) that did not, according to D
the appellants, debar the State Government from recovering its dues from the
respondent. It is said that the respondent had the option of collecting the tax
from the customers and applying for a refund.

Countering these submissions, the respondent has submitted that E
Section 4A fixed the eligibility criteria for the grant of benefits under the Act
and the actual grant of the benefit was effected by the notification and in
tenns thereof. Thus the 1991 notification linked the extent of the benefit to
the fixed capital investment in contrast to the additional fixed capital investment
provided in the 1995 notification. There was a conscious decision to grant
older units the benefit in respect of the additional production by linking the F
same to the original and the additional fixed capital investment. The distinct!on
was deliberate and unambiguous. If, as a result, older units underta~ing
expansion, diversification or modernization were in a better position than new
units, this would not, according to the respondent, make the grant
discriminatory or arbitrary, nor was there any warrant in law not to give effect G
to the language used. It was then submitted that there was no bar under the
1991 Notification against claiming exemption in three phases of expansion at
the end of the third phase nor was there any time limit to do so .... It was
contended that the Tribunal had correctly allowed the preoperative expenses
M. f)art of the value of the plant and machinery which was includible in the
respondent's fixed capital investment. It is said that to limit the phrase 'fixed H
452 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A capital investment' as excluding the expenses for setting up and commissioning '
the expanded unit would lead to an anomalous result as all the expenses
incurred in connection with such fabrication, installation and commissioning
forms part of the value of this plant. This was an accepted principle of
accountancy and the respondent had only taken such amounts which it had
paid on the plant before the commencement of the production as a result of
B such expenses. It was next submitted that the decision of the High Court had
been accepted by the appellants and circulars had been issued by the
authorities to this effect even prior to the refusal of stay by this Court, and
it was not open to the State to re-agitate the issue. Besides, according to the
respondent, it had not availed of even 50% of the benefit which it could have
C claimed under the I 99 I Notification in terms of the High Court's judgment.
Finally the submission is that the respondent had not realised any tax during
the period nor could it have done so under Section 8A (2) read with Section
I 5A (l) (qq) of the Act. In the circumstances even if the appeal were to be
allowed the tax should not be directed to be recovered as this would lead to
a closure of the respondent's unit.
D
The issues which have arisen for the decision in this appeal and which
have been formulated fairly by the appellants are :

l Whether a. unit undergoing expansion is entitled unden 'the
notification dated 27. 07. I 99 I to the benefit of exemption on the
E additional f1Xed capital investment as a result of such expansion,
or the total f1Xed capital investment (being the aggregate of the
original as well as the additional fixed capital investment ) ?
ll Whether the Respondents' claim of one integrated expansion
from I 2000 TPA to 60000 TPA during the period I 2.8.88 t<f
F 28.3.94 is sustainable in fact or in law ?
Ill Whether or not certain preoperative expenses form part of "Fixed
Capital Investment" for the purpose of Section 4A of the UP.
Trade Tax Act and the notification dated 27.07.1991 ?
IV. Whether the Respondents, ( allegedly ) not having collected or
G realized any tax on the strength of the eligibility certificate,
granted pursuant to the High Court's judgment, and which was
not stayed by this Hon 'ble Court, are entitled to any relief ?
. '
ISSUE - I
H Section 4A of the Act was introduced in the Act for the stated purposes
COMMR. OF TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.] 453

of increasing the production of goods or for promoting the development of A
· industry in the State or any of the districts. Under Section 4-A sub-section
(I) the State Government may by notification, declare that the turnover of
sales is exempt from trade tax for a period not exceeding 12 years subject to
such conditions as may be specified in the notification. The 1991 Notification
cannot therefore be read in isolation but in the context and within the parameters B
of Section 4A of the Act under which it was issued. As we have noticed at
the outset, the varying amounts of the benefit available under the 1991
Notification have been tabulated in Annexure I thereto. The b;isis of the
exemption or reduction on tax is the fixed capital investment the quantum of
relief being a percentage of such. investment. The phrase "fixed capital
investment" will have to be read harmoniously not only with the other C
provisions of the Notification itself but also in the light of section 4A.

'Fixed Capital Investment' has been defined in paragraph 3 of the 1991
Notification as being determinable in the case of an industrial undertaking
financed by a term loan advanced by a public financial institution or a
Scheduled Bank according to the certificate to that effect issued by such D
institution or a bank and in any other case according to (a) value of the land
certified by the Collector; (b) value of building certified by an evaluator
approved by the Income Tax Department for the purpose. ( c ) the value of
plant, machinery, equipment, apparatus and components certified by a Chartered
Accountant.
E
Paragraph 4 provided:

"In determining the fixed capital investment as defined in clause (4)
of the Explanation in case of 'New units' or 'Additional Fixed Capital
Investment' referred to in sub-clause (d) of clause (5) of the F
Explanation in case of 'unit which have undertaken expansion,
diversification or modernization' the investment in only such land,
building, plant, machinery, equipment, apparatus and component or,
as the case may be, such additiona/'land, bm1ding, plant, machinery,
equipment apparatus and component shall be taken into account as
were acquired on or before the relevant date of commencement ofthe G
period offacility notified under s.ub-section (I) of Section 4-A of the
Act."

(Emphasis supplied).

This paragraph therefore links original fixed capital investments to new H
454 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A units and additional fixed capital investments to already established units
undertaking expansion, modernization etc. for the purposes of Clauses (4) and
clause (5) (d) of the Explanation. There appears to be no clause (4) or (5) to
any Explanation in the. 1991 Notification. Clearly the reference is to the
'
>
Explanation in Section 4A of the Act which has defined "fixed capital
B investment" and "unit which has undertaken expansion diversification or
modernization" in clauses (4) and (5) respectively. The relevant extracts of
these clauses read as follows :-

"(4) 'Fixed capital inv.estment' means investment in land and building
and such plant, machinery, equipment apparatus, components,
moulds, dyes, jigs and fixtures as have not been used or acquired
c for use in any other factory or workshop in India:
(5) 'unit which has undertaken expansion, diversification or
modernization' means an industrial undertaking
(a) of a dealer who is not a defaulter in payment of any due under
D this Act, or the Central Sales Tax Act, 1956 or under any loan
scheme administered by the Pradeshiya Industrial and Investment
Corporation of Uttar Pradesh regarding trade tax on sale or
purchase, of goods;

(b) whose first date of production of goods,
E (i) Of a nature different from those manufactured earlier by such
undertaking in case of units undertaking diversification, and (or)
(ii) Manufactured in excess of base production, in such undertaking
in case of units undertaking expansion or modernization, falls at
any time after March 31, 1990.
F
(c) the production capacity whereof has increased by at least twenty
five percent as a result of expansion of modernization or wherein
goods of a nature different from these manufactured earlier are
manufactured after diversification;
G. (d) Wherein an additional fixed capital investment of at least twenty
five percent, of such original fixed capital investment (without
providing for depreciation ) is made.

What is of significance is that a distinction is made between 'additional'
and 'original' fixed capital investment' not only in clause (d) of clause (5) to
H the Explanation in Section 4A of the Act but in the body of the entire clause
COMMR. OFTRADE TAX, U,P. v. KAJARIA CERAMICS LID. [RUMA PAL, J.] 455
the first relating to old units undertaking expansion etc. and the second to A
new units.

Paragraph 4 of the Notification also refers only to the additional fixed
capital investment in determining the fixed capital investment as far as units
which have undertaken expansion, diversification or modernization are
concerned. The emphasised portions of the paragraph as quoted earlier indicate B
the mode of determination of additional fixed capital investment as far as units
which have undertaken expansion etc. and original fixed capital investment as
far as new units are concerned.

The High Court held that sub clause ( d) of Explanation 5 to Section 4A
had nothing to do with the extent of benefit of exemption which could be C
granted to a unit undertaking modernization, expansion for diversification but
referred to _the field of eligibility. As far as paragraph 4 of the 1991 notification
was concerned, according to the High Court, it merely provided how the fixed
capital investment as defined in Explanation-4 in the case of new units or in
the case of additional fixed capital investment referred to in sub clause (d) of D .
Explanation 5 was to be computed. It did not provide that in the case of a
unit undertaking modernization expansion or diversification only additional
fixed capital investment shall be considered.

We disagree. The different methods of computation contained in
paragraph 4 of the 1991 Notification serve two separate purposes and that is E
to determine the two relevant investments for the distinct benefits available
to two different kinds of units viz. new units and established units which have
undertaken expansion etc. Significantly there is no mode prescribed for
determination of original fixed capital investment as far as the latter kind of
unit is concerned nor additional fixed capital investment in respect of the F
former. The High Court did not consider the logical consequences of paragraph
4 of the notification providing only for the computation of additional fixed
capital investment as far as units undertaking an expansion etc. were concerned.
In our opinion the High Court misread paragraph 4 of the notification, the
only reasonable interpretation of which is that as far as new units were
concerned the 'original fixed capital investment' would have to be computed G
and as far as units undertaking expansion etc. were concerned 'additional
fixed capital investment alone would have to be computed.

Form XLVI appended to the UP Trade Tax Rules, 1948 ( referred to
hereafter as the Rules) prescribes the details for an application for exemption
H
456 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A from or reduction in rate of tax to new units the date of starting production
whereof fell on or after I st April, 1990 or to units which have undertaken
expansion, diversification or modernization on or after 1st April, 1990 under
Section 4A of the Act. Serial No. 6{a) gives the necessary particulars of the
fixed capital investment in case of the latter kind of unit. There are three
B columns viz., Original investment {without giving margin for depreciation),
Additional investment in the expansion etc on the date of commencement of
the period of facilitY and a certificate of valuation of the additional fixed
capital investment. The investments contemplated are in ( 1) land (ii) building
and (iii) plant, machinery, equipment, apparatus and components. The
certificates in respect of items (1) and {ii) as far as additional fixed capital
C investment are to be given by the Collector of the District and the evaluator
approved by the rncome Tax Department respectively. The valuation of the
third item is to be given by a chartered accountant. The note to Serial No.
6(a) also requires a certificate from a chartered accountant of the original fixed
capital investment. The particulars indicate that while fixed capital investment
D includes original anq additional investments a distinction is made between the
two. The purpose is patently to enable the Department to verify the calculation
of the ·percentage of increase in the additional investment by reason of the
expansion over the original. It does not mean that in respect of units
undertaking expansion the percentage is to be calculated on an aggregate of
both original and additional investments.
E The three notifications namely the one issued in 1985, 1991 and 1995
fonn part of a pattern. The 1985 notification granted benefit to new units
provided their original investment exceeded Rs. 3 lacs of their entire turnover.
The 1991 Notification extended the benefit to old units undertaking expansion
and which may have already got the benefit, like the respondent, of the
F original investment made under the 1985 Notification subject to the old unit
making a further investment and the benefit was limited to a percentage of
that investment. Similarly the 1995 Notification further extended the benefit to
units which had undertaken backward integration again limiting the be~etit to
the investment made. All three notifications were issued under the same
section and for the same purpose of effecting development and were part of
G a chain of progress without any overlapping. Not only would the contents
of each notification derive its meaning from Section 4A as each is derived
from and refers back to the section, but also if a phrase used in one o( the
notifications is still ambiguous, then for the purpose resolving the ambiguity
the contents of the previous or subsequent notifications can be looked into.
H Indeed that is what the High Court did. It relied upon the 1995 notification
COMMR. Of .TRADE TAX, U.P. ,._ KAJARIA CERAMICS LTD. [RUMA PAL, J.] 457

fqr cppstrqing ~he 1991 notification, an exercise which was recognised as A
per1T1issible in P'1ppu Sweets and Biscuits v. CIT, U.P., (1998] Supp 2 ·scR 119.
~\!se the 1995 !lotification explicitly states in Annexure I to that notification
tflat t~e e,ce1pptioq is calculatable on the fixed capital investment or as the
case may be 'additional fixed capital investment', the High Court was of the
view that wtten th~ 1991 notification only used the words 'fixed capital B
in,vestmenf in Annexure I as the basis of calculation of benefit without
makipg apy such distinction, all units whether new or old were entitled to the
'· :
of
~'1efil the 'originill and the additional fixed capital investment.
. .

i\p11r1 fmm being contrary to the language of paragraph 4 of the 1991
N~~ifica~ion, the decision in Pappu Sweets, on which the High Court founded C
its reasoning does not support the conclusion of the High Court. In Pappu
Sw,ets, the very same notifications namely the 1991 and 1995 Notifications
w~re considered. Tl)e question was whether the word 'Sweetmeats" under the
t991 Not{fi~iltion could be read as including 'toffees'. A Bench of 3 Judges
of"1is Cm1rt held that the 1995 Notification could be looked into for clarifying
the-1\mbiguity in the 1991 Notification. The 1995 Notification did not use the D
wont 1Sweetmea*5'. at all but mentioned different kinds of condiments but did
n~t m~nth>n toffees. 011 the principle enunciated in Cape Branch Syndicate
v. /.R.C,'(1921) 2 f<P 403 to the effect that "if there be any ambiguity in the
e~rUer legislatioll, then the subsequent legislation may fix the proper
ipt~'llreta~h:m wtiic~ is to be put upon the earlier Act" , it was held that the E
word !Sweetme!lts' :in the 1991 Notification did not include toffees. Therefore
the t99$ Notification was seen as clarificatory of the 1991 Notification.
ApPlying tfle same reaS(lning we hold that the ambiguity in the 1991 Notification
~ to lfle meapi.ng tQ be put on the phrase 'fixed capital investment' in
ApneXl!fe l W!lS removed by the clarification in Annexure I of the 1995
Notifl~a,tiPn py its reference to additional fixed capital investment as far as F
es~blished µnits l!odertaking expansion etc. were concerned.
•
Jn fact even before the issuance of the 1995 Notification a ci_rcular had
beell issued by the pepartment in 1993 inter alia to the following effect-"

(4)1 - Urrits starting production on or after 1.4.90 if undertake G
exparrsion tfiversification or modernization in accordance with clause
S of explanqtion to Sec. 4A than such unit shall be entitled to facility
'exemption!red1~ction in rate of tax on the production in excess ·of
base prpducts or on the manufacture of new product for a period of
8,9,/0 years from the date ofexpansion diversification modernization H
458 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A and shall be limited to the extent of 100% to 150% of additional
fixed capital investment".

The Circular can be read as a contemporaneous understanding and
exposition of the intention and purport of the Notification. Courts have
treated contemporary official statements as contemporary exposition and used
B them as aids' to interpret even recent statutes.

Thus in Collector v. Andhra Sugar, [I 988] 3 Supp [SCR] 543 Mukharji,
J (as His Lordship then was ) said

"It is well settled that the meaning ascribed by the authority issuing
c the Notification, is a good guide of a contemporaneous exposition
of the position of law. Reference may be made to the observations of
this Court in K.P. Varghese v. The Income Tax Officer, Ernakulam
(1982] 1 SCR 629. It is a well settled principle of interpretation that
courts in construing a Statute will give much weight to the
interpretation put upon it at the time of its enactment and since, by
D those whose duty has been to construe, execute and apply the same
enactment. "

(See also in Karnataka SSIDCL v. CIT, [2002] Supp 4 SCR 453, 460.)

E The High Court therefore erred in striking down the circular by holding
that the circular was contrary to what the High Court thought was the clear
intention behind the notification instead of seeing the circular as
contemporaneous evidence of such intention.

The position was therefore abundantly clear. Old units undertaking
F expansion, diversification or modernization would be entitled to get benefit of
tax reduction on the additional fixed capital investment made. The respondent
acted on this and in its application dated 27th October, I 995 for grant of
Eligibility Certificate for expansion of its capacity addressed to the Chairman,
Committee of Sales Tax Exemption & Commissioner said

G "According to rules the Company is entitled to get full exemption from
Trade Tax for a period of nine years subject to monetary limit of 125%
of additional fixed capital investment with effect from the first date
of production in excess of base production."

Before the Tribunal too, the respondent had only claimed in its amended
H application that it should have been given exemption on the capital investment
COMMR. OF TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.) 459

of Rs. 54,51,03,544 namely the additional fixed capital investment relating to A
, the three expansions. The particulars of the items of investment including
land and buildings claimed related only to this. The appellants contention
before the Tribunal was that only the third expansion should be granted the
benefit under the 1991 Notification. There was thus no issue raised before the
Tribunal by the respondent that the original investment should be included B
in computing the tax benefit under the 1991 Notification. Even if the High
Court found that the issue was raised in the grounds of Appeal, it should not
have allowed the respondent to raise it in revision when clearly it had not
been pressed before the Tribunal.

Furthermore the appellants' submission that the High Court's C
interpretation of the 1991 Notification leads to anomalous results also appears
to be sound. The High Court has correctly found that "the object of granting
exemption from payment of sales tax has always been for encouraging capital
investment and establishment of industrial units for the purpose of increasing
production of goods and promoting the development of industry in the
State". If the intention of the State Government, as expressed in Section 4A D
itself is to encourage investment, it is unlikely that the investment already
made would entitle an industry to any further benefit again. Yet if we accept
the respondent's reasoning (which was affirmed by the High Court), there
may be multiple expansions qualifying for the benefit of the 1991 Notification
and the original investment would be taken into account every time. Apart E
from the fact that a new unit would have to face competition from an old
established unit, a new unit would be additionally handicapped by the greater
benefits being granted to the old established businesses. It is unlikely that
any new unit could be persuaded to set up industries in such adverse
circumstances leading to a situation which was certainly not envisaged either
under Section 4A or under any of the notifications issued thereunder. F
The respondent may be correct in contending that if as a result of the
notifications new units lose market or face tough composition the same
cannot be said to be arbitrary or discriminatory. The contention would have
been apposite if there were a challenge to the constitutionality of the
notification. There is no such challenge. We are merely seeking to construe G
the notification and although consequences cannot and should not alter the
statutory language but they may at least fix its meaning.

It is patent to us therefore that the benefit of the 1991 Notification as
far as units undertaking expansion etc. like the respondent are concerned is H
460 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A limited to a percentage of the additional fixed capital investment and not the
original and additional fixed capital only and not to a percentage of the
aggregate of the original and additional fixed capital.

ISSUE NO. 2

B Were there three separate expansions of the respondent's unit as claimed
by the appellants or only one as asserted by the respondent and affirmed by
both the Tribunal and the High Court?. The issue is a mixed question of law
and fact. Were it only a question of fact no doubt we would have stayed our
hands and let the matter rest there unless ofcourse the concurrent conclusion
C of both fora could be said to be perverse. However the appellants' contention
is that the decision is factually perverse and erroneous in law.

The DLC had taken the last expansion as the only expansion and
granted relief to the respondent on that basis. The first two expansions were
ignored. The Tribunal held that the three expansions were phases of a single
D scheme of expansion. It is not very clear what persuaded the Tribunal to hold
so. The High Court held that the Tribunal's finding was a conclusion of fact
and could not be reversed except on the ground of perversity. It also
independently came to the same conclusion on the grounds 1) that the DLC
had categorically observed that the dealer had made the expansion in phases ~

and that the respondents pleading that there was one scheme for expansion
E prepa~ed earlier was not disputed by it; 2) the Enquiry report submitted by
the Trade Tax Officer did not observe that there were three separate schemes
of expansion. The High Court also relied on a circular dated 26th September,
1996 in support of its finding. Whether it could have done so is a question
of law and will be addressed after the factual reasons are assessed.

F The High Court was right in saying that the·question is essentially one
of fact but it has lost right of the basic principle that the onus to prove a fact
is on the person asserting it. Since it was the respondent's case that there
was a single scheme of expansion which was implemented in three phases the
onus was on the respondent which it has not discharged. A scheme of
G expansion would necessarily warrant estimates, plans, drawings and all ·the
other steps which go into the process of formulating a scheme. There is not
a single piece of evidence to this effect. Merely because the DLC uses the
phrase "phase" would not do. Apart from the fact that there is a dispute as
to the correct translation of the relevant Hindi word which has been translated
as 'phase', the appellants have consistently though unsuccessfully reiterated
H their stand of there being three expansions. A mere plea before the DLC by
COMMR. Of TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.] 461

the respondent cannot cure this very crucial lacuna in the respondent's case. A
As far as the Trade Tax Officer's Report is concerned, the terms or the
scope of the enquiry have not been shown to us. Was he called upon to
determine whether there was one expansion or three ? The report is prepared
in a set proforma. It gives a picture of the various investments made and when
they were made. That is all. It does not in any way support the respondent's B
submission on this issue.

Although not strictly speaking necessary, we may now consider on the
other hand the admitted facts each of which go to show that there were in
fact three separate expansions. For each of the three expansions, separate
industrial licences were applied for and obtained from the Central Government. C
Separate negotiations for finances were entered into between the respondent
and the financial institutions. The correspondence exchanged shows that the
expansions were separate. For example, a Jetter dated 17th July, 1989 written
by the IFCI to the respondent in connection with the first expansion refers
to "your (the respondents) expansion scheme envisaging increase in the D
installed capacity for the manufacture of ceramic wall and floor tiles from
12000 TPA to 26000 TPA at Sikanderabad". Finally as noticed earlier, the
respondent had itself made three separate applications, one for each expansion.
In the covering letter it was said that the respondent had undertaken three
successive expansions". These facts were not adverted to either by the High
Court or the Tribunal and their conclusion that there was only one expansion E
was perverse.

This brings us to the law. Sub-Section (2) of Section 4A provides for
the conditions which may be imposed in the notification in order to obtain
an exemption or reduction in the rate of tax. Two of such conditions are : F
"(c) in respect of those goods only which are manufactured in a unit
which has undertaken expansion, diversification or
modernization on or after April 1, 1990, and which, in case of
diversification, are different from the goods manufactured before
such diversification, and in the case of expansion of G
modernization are additional production as a result of such
expansion or modernization; and
(d) only if the manufacturer furnishes to ·the assessing authority an
Eligibility Certificate granted by such Officer, in accordance
with such procedure, as may be specified. "
H
462 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A Paragraph I (B) I of the 1991 Notification accordingly specified inter
alia that the benefit of tax exemption or reduction would be available on the
turnover of sales of the goods manufactured in certain industries which had
undertaken expansion, diversification or modernization between !st April,
1990 and 31st March, 1995.

B Reading the quoted provisions of Section 4A with paragraph I (B) (1)
(a) of the Notification it is clear that the benefit under the notification must
be limited to those goods which are additionally produced as a result of
expansion or modernization. In other words the benefit was relatable to the
expansion. We then come to Explanation (5) to Section 4A of the Act. It has
C been quoted verbatim earlier on. To recapitulate briefly: Explanation 5 defines
a "unit which has undertaken expansion, diversification or modernization". It
contains four clauses which provide the conditions of the definition. Clause
(a) requires that the dealer should not be a defaulter. Clause (b) defines "first
date of production of goods". Clause ( c ) refers to the minimum extension
of capacity, namely 25% as a result of expansion. Clause (d) requires a
D minimum additional fixed capital investment of25%.

Explanation 6 defines the expression "base production". (the. original
definition has been replaced in 1998 with retrospective effect from 1.4.90 ) as:-

"(a) eighty percent of the installed annual production capacity; or
E
(d) maximum production achieved during any one of the preceding
five consecutive assessment years or if the unit were in production
for less than jive years, the maximum production achieved during
any one of the preceding assessment years, whichever is higher"

F These definitions are reflected in the 1991 Notification. Base production
of unit undertaking expansion or modernization has been provided for under
paragraph 5 according to which it shall be deemed to be :

(a) maximum production achieved during any one of the preceding
five consecutive assessment year, or
G (b) 80 per cent of the installed annual production capacity, wlrichever
is higher".

Determination of base production has been provided also in paragraph
6 as follows :-

H (a) Turnover of sale of goods in any assessment year to the extent
COMMR. OF TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.) 463

of the quantity covered by base production of that year and the A
stock of base production of previous years shall be deemed to
be the turnover of base production.
(b) Only the turnover of goods in any assessment year in excess of
the quantity referred to in clause (a) shall be entitled to the
facility of exemption from or reduction in the rate of tax. B
Base production therefore refers to the pre additional investment stage
or the maximum production in the already installed pre-expanded unit. The
excess production as a result of the expansion is entitled to the benefit of
exemption or reduction of tax.

The commencement of the facility according to Section· 4A (I) would be
c
the date declared in the 199 r Notificaiion. Paragraph l (B) (2) (ii) says that
the period of facility shall be reckoned from the first date of production of
goods manufactured in excess of the base production.

So with the commencement of an additional investment which must D
overtake the original investment by at least 25% the expansion commences.
Ofcourse the ultimate expansion must result in an increased capacity of at
least 25%. Then the first excess production over the base production brought
about by such increased capacity and ultimately by the additional investment
would be the 'first date of production' and the expansion would be completed E
and the period of facility would commence.

Section 4A (5) (a) provides that a manufacturer shall be entitled to the
facility of exemption from, or reduction in, the rate of tax notified under
subsection ( l)

"'3.) If he applies for such facility within six months from the relevant F
date of commencement of the period of facility referred to in that
Sub-Section or by 30th September, 1992, whichever expires later, for
the entire period notified under that Sub-Section".

Now a dealer may, for whatever reason apply for the facility of exemption G
later. This would not mean that the facility starts from the date of application
but that the dealer is entitled to the facility from the date of the application
till the period of the operation of Notification is over. This is clear from clause
(b) of sub-section (5) of Section 4A which provides :

(b) If he applies for such facility later than the date specified in H
')

464 SUPREME COURT REPORTS [200Sj $Ul1P. i S.C.R,

A Clause (a) only for part of the period notified under Sub•Sectlon (/)
which shall be computed from the date of applicatiqn tilt the end of ·
the period of the facility". ·

Admittedly the respondent produced goods in excess of what was its
base production as a result of the ~stablishment of its original unit hi 1991
B when the first expansion was completed. With the productloli of the first tile
after the first expansion the period of facility under the 199 i NdHfitatioit -~

commenced and the expansion was complete.

The years of the first expansion would then be takeii Uito·.llcc~uiit for
determining the base production for the second expansion·; ahd:the. tn~ifiel\t
C this was exceeded as ·a result of the second expansion the expallslbtt WllS
complete. The same process would ai::ply to th.e third expansio~ •. therefore
each time the respondent made an additional investment, increas~ Its c:d~acit)'
to produce and in fact produced goods there was an expansion.
. '

D The respondent cannot in t~rnts of this statutory scheme ci~I~,, i~ orie
breath that a single expansion commenced from 1988 and was completed ht
1994 and at the same time say that the base production wa~ ·ttte figure of
production in 1992-93 viz. 40038 MT. The base production ~s we ha\i_e seen
must statutorily precede the expansion and cannot be a figure takelt w~lle the
expansion has already progressed. The figure of 40038 MT was accepted by
E the DLC as the base production as it had rejected the respondebt's. claim
relating to the first two expansions and limited it to the third ~xparisioh. the
appellants have similarly accepted this figure of 40038 MTs. but this is in
keeping with their contention that there were in fact three expansions iUtd that
the figure of 40038 MTs is the base production for the third and last expahsion.

F The respondent has however relied on the second proviso to Explanation
6 of the Notification as well as Notifications dated 19th July, 1996 and 21st
February, 1997 in support of its contention that there was one expansion. To
quote the language of the second proviso to Explanation 6 as it. originally
stood:
G "Provided further that where investment made during certain period
is clubbed together for the purpose of determining the ftX<!d capital
investment, the production immediately prior to the da(e an which
such investment was first started to be made in NSpect of expansion
or modernization shall be taken into account for determining ihe
H base produetion."
COMMR. OF TRADE TAX, U.P. v. KAJARIA CERAMICS LTD. [RUMA PAL, J.J 465

The clubbing under the second proviso does not relate to the date of A
production and the commencement of the facility but to the base production.

The two notifications referred to declare that new units or old units
making an additional fixed capital investment of fifty crore rupees or more
would be entitled to exemption from tax for a period of three years on or after
specified dates. According to the respondent the notifications permit fixed B
capital investment even after the commencement of facility and was an instance
of the clubbing permitted under the second proviso. Neither of the notifications
refer to the second proviso nor were they in operation during the relevant
period.

The circular dated 26th September, 1996 was relied on by the High Court C
presumably to overcome the effect of Section 4A (5) (a) & (b) quoted earlier.
Although the circular itself does not attempt to explain or clarify these
provisions. It purports to construe the provisions relating to base production
and reads :

"Reference was made to the government in respect of grant of
D
exemption on the goods produced by new industrial units as defined
u/s. 4A(2) of Uttar Pradesh Trade Tax Act, having undertaken
diversification or modernization as to whether a unit which has
undertaken diversification/ modernization after establishment but
before completion of 5 years, would be entitled to benefit of E
rr
diversification/ modernization or not ? such unit is granted benefit
under the said policy than how the calculation of base production
in accordance with sub section (5) of Section 4A shall be made ?

In the matter under reference, the government vide its letter No. TT-
1167/Eleven-9(101)196 dtd 41611996 have informed that according F
to the present provisions base production shall be deemed to be
maximum production achieved during any one of the preceding five .
consecutive assessment years or 80 percent of the installed annual
production capacity, which ever is higher. If any unit undertakes
diversification, modernization before five years from its establishment G
than the aforesaid provisions shall be applicable even thereafter
meaning thereby that it shall not be entitled to exemption unless
there is production in the preceding five consecutive assessment
years.

The High Court therefore concluded that the respondent could only H
466 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A make one composite application after five years. It should no have done so.
For one, the circular was issued subsequent to the relevant period and
after the respondent had filed its revised application for exemption under
Section 4A. For another, the construction put by the circular on the definition
of base production is questionable and has in any event no statutory force.
B In any event the definition of base production in Explanation 6 which was
amended in 1998 with effect from 1st April, 1990 (quoted earlier) clearly says
that if the unit has been in production for less than five years, the maximum
production achieved during any one of the preceding assessment years
would be taken as the base production. The appellants are therefore right in
C contending that three separate applications were maintainable at all material
times despite the fact that when such expansions were done the unit was in
production for less than five ye_ars.

We accordingly hold that there were in fact and in law three expansions
and decide the issue in favour of the appellants.
D
ISSUE NO. 3

The respondent had claimed preoperative expenses as part of the fixed
capital investment which included interest to financial institutions, rights
shares issue expenses, foreign technician expenses and foreign travel expenses.
E The Tribunal allowed the claim relying on Chal/apalli Sugars Ltd v. CIT,
(1975) 98 ITR 167, Commissioner ofIncome Tax v. Motor Industries Co. Ltd.,
(1988) 173 ITR 374 and CITv. Polychem Ltd, (1975) 98 ITR 574 on the ground
that the expenses were necessary to undertake the expapsion scheme. The
view was affirmed by the High Court, in our opinion, wrongly.

F We have already noted in connection with Issue I that Explanation 4 to
section 4A has defined fixed capital investment saying that it "means
"investment in land and building and su~h plant, machinery, equipment
apparatus, components, moulds, dyes, jigs and fixtures as have not been used
or acquired for use in any other factory or workshop in India" .

.G The language of the definition of the phrase in Explanation 4 to Section
4A is sufficiently clear and unambiguous. This coupled with the use of the
word "means" in the Explanation shows that the definition is exhaustive. As
has been observed in Feroze N. Dotiwala v. P. M Wadhwani, [2003] l SCC
433, 442:
H
COMMR. OFTRADE TAX, U.P. v. KAJARIACERAMICS LTD. [RUMA PAL,J.] 467
"Generally, when the definition of a word begins with "means" it is A
indicative of the fact that the meaning ofthe word has been restricted;
that is to say, it would not mean anything else but what has been
indicated in the definition itself

Therefore, unless there is any vagueness of ambiguity, no occasion
will arise to interpret the term in a manner which may add something B
to the meaning of the word which ordinarily does not so mean by
the definition itself, more particularly, where it is a restrictive
definition. "

According to the Constitution Bench in PLD Corporation Ltd, v.
Presiding Officer, [1990) 3 SCR 111, 150 when the statute says that a word C
or phrase shall mean certain things it is a "hard and fast definition, and no
other meaning can be assigned to the expression than is put down. A definition
is an explicit statement of the full connotation of a term".

Therefore apart from the actual investment in or cost of the specific
items of lartd, building, plant, machinery, equipment apparatus, components D
moulds dyes, jigs and fixtures, no other item of expense is includible under ·
the head of fixed capital inv~stment for the purposes of section 4A of the Act.

This principle of statutory interpretation is reinforced not only by the
particulars itemized in form XLVI of the Rules but also by the procedures for E
determination of fixed capital investment specified in paragraphs 3 and 4 of·
the 1991 notification, all of which underscore the definition's restrictive nature.
There is and indeed could be no reference either in the form or in the 1991
notification to any item outside the definition in Explanation 4 to Section 4A.

Besides the underlying object of the scheme of exemption under Section F
4A of the Act, is to grant benefit by way of a quid pro quo for the actual
value of assets brought into the State. The determination of such value would
necessarily have to be an objective exercise. For the purposes of the Income
Tax Act on the other hand, a tax on income may allow the valuation of an
asset taking into consideration circumstances which may be entirely personal
to the assessee under which the asset is purchased subject to certain G
permissible limits. The perspective of the two statutes is therefore different
and everything that may go into the cost of an asset for the purpose of the
Income Tax Act may not be relevant for an objective determination of its value
under the U.P. Act. It is also noteworthy that the definition of 'fixed capital
investment' in Explanation 4 talks of investment in land, building, plant, H
468 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A machinery etc. and not investment in relation to or in connection with them.
The Tribunal and the High Court failed to construe these statutory provisions
and relied upon judgments delivered in connection with the Income Tax Act,
the provisions and purpose of which could hardly be said to be in pari
materia with the provisions of the UP Act and the 1991 Notification.

B The four items of expenditure which the High Court accepted viz.
Interest paid on loans by financial institutions, expenses in connection with
a rights issue of shares, expenses on foreign technicians or foreign travel do
not reflect the value of the items forming part of the fixed capital investment·
for the purposes of this Act or 1991 Notification and cannot by any principle
C of statutory interpretation be brought within the definition of the phrase in
Explanation 4 to Section 4A. The issue is thus decided against the respondent
and in favour of the appellants.

ISSUE - 4

D The respondent's objection to the recovery of the tax is that the
appellants by Circulars dated 31st October, 2000 and 14th November, 2000 had
accepted the judgment of the High Court even prior to the refusal to stay the
impugned judgment by this Court. It is submitted that circulars issued by the
Department are binding upon them and that this was laid down in Collector
of Central Excise, Vadodra v. Dhiren Chemical Industries, [2002] 2 SCC 127
E and Commissioner of Sales Tax, V.P. v. Indra Industries, [2000] 9 SCC 66.

The objection is misconceived. Circulars may be of varying kinds. The
circulars relied on we;·e merely official communications to the subordinate
officers directing compliance with the decision of the High Court. They were
not clarifications of statutory provisions in which event, as was held in CST
F v. Indra (supra), they would represent the official understanding of those
statutory provisions and would be binding on the taxing authority. Nor was
there any statutory provision in the UP Act corresponding to Section 37B of
the Central Excise Act, 1944 by the Central Board of Excise and Customs
which make circulars issued there under binding on the authorities as was
G held in CCE v. Dhiren Chemicals (supra). The appellants' appeals before this
Court were filed before any action was taken on the High Court's decision.
We granted leave to appeal on 11th August, 2000 and issued notice on the
interim relief claimed by the appellants. Stay was finally refused on contest
on 4th January, 2001. In the absence of any order of stay by this Court, the
appellants were bound to comply with the impugned decision. Such compliance
H
COMMR. OFTRADETAX, U.P. v. KAJARIACERAMICS LTD. [RUMA PAL,J.) 469

by itself cannot destroy the appellants rights to press their appeals before A
this Court.

The preliminary objection is accordingly rejected.

The respondent then submitted that it has not availed of even 50% of
the total benefit under the notification in terms of the impugned judgment and B
it has not and could not in law have realised any tax during the period of the
facility which expired on 3 lst March, 2003. Reference has been made to
Section SA (2) read with Section 15A (I) (qq) to contend that the prohibition
on the collection of tax from consumers by a dealer which is itself not liable
to pay tax is backed by severe penalties. It is said that the recovery of the
tax would lead to the ultimate closure of the Respondent's unit which would C
be contrary to the very concept, object and intention of the exemption
provision and policy of the state.

The appellants on the other hand have relied on the State of Rajasthan
v. J. K. Udaipur Udyog Limited, [2004] 7 SCC 673 to contend that even ifthe D
respondent had not passed on its liability to and collected tax from its
consumers, it was bound to pay the tax which it could and should have paid
on the tiles sold by it during the period of facility. The factual basis of the
respondent's claim that it had not collected tax from its customers is also
disputed. It is said that the respondent had the option of collecting the tax
and applying for refund under Section 29A of the Act in tenns of paragraph E
II of the Industrial Policy.

A similar contention was considered by us in State of Rajasthan v. J.
K. Udaipur Udyog Ltd., (supra) where after considering the authorities on the
issue we held :
F
"The mere circumstance that the respondent Companies having
availed of the Exemption Scheme were prohibited from collecting the
tax from their customers or that they had not collected the sales tax
from their customers (which assertion is strongly disputed by the
appellants), is of no consequence. The primary liability to pay the G
sales tax is on the seller. The seller may or may not be entitled to
recover the same from the purchaser. The State Government is entitled
to recover the same from the respondent Companies irrespective of
the fact that the respondent Companies may have lost the chance of
passing on their liability to pay sales tax to their purchasers".
H
470 SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

A We see no reason to differ from this view. Indeed the Act itself envisages
a situation where a dealer may be called upon to pay the tax which it may
not have collected from its customers. We have seen earlier that sub section
(2) of section 4A of the Act provides for the conditions which may be
imposed in an exemption notification. Apart from the conditions already noted
B by us, paragraph 2 of the 1991 notification stated that the facility of exemption
from or reduction in the rate of tax shall be subject to the condition :

"(iv) that the said unit furnishes to the assessing authority concerned
an eligibility certificate granted in this behalf by the General
Manager, District Industries centre, Area Development Officer
(Industry) of the concerned Industrial Development Authority,
c Additional or Joint Director of Industries of the range or
Additional or Joint Director Industries of the concerned
Industrial Development Authority, as the case may be".

In our narration of facts in an earlier part of this judgment we have seen
D how the respondent had with the completion of each of the expansions,
applied for and obtained an amendment of the eligibility certificate granted to
it on 5th May, 1990 in respect of the original unit.

Sub section (3) of Section 4A however allows the Commissioner by
order to cancel or amend the eligibility certificate before or after the expiration
E of the period of exemption under certain circumstances. In such event the
dealer is liable to pay the tax which ought to have been paid under sub
section (4) which provides:

"(4) For the removal of doubts, it is hereby declared that where an
Eligibility Certificate has been cancelled or amended under sub-
F section (3), the dealer shall be liable to pay tax on his turnover of
the period during which the facility of exemption or reduction under
this Section is not admissible to him."

Therefore even if the dealer under the fear of punishment under section
ISA (qq) (viii) does not realise amount by ~ay of tax on the sale of its goods
G in. compliance with the provisions of section SA (2) during the period it is
exempt from paying tax, it would still have to pay the tax under sub section
(4) of section 4A if it is found that it was not entitled to such exemption. The
overriding nature of this consequence follows not only from the use of the
imperative word "shall" in sub section (4) but also from the non obstante
H clause with which section 4A opens. Given the clear language, it is not
COMMR. OF TRADE TAX, U.P. v. KAJARIACERAMICS LTD. [RUMA PAL,J.] 47·1

necessary for us to express any view on section 29A of the Act or the A
industrial policy underlying section 4A or the 1991 Notification.

The High Court has found that the respondent had taken the benefit
of the increased capacity of the unit which came about by reason of the first
two expansions in the sense that the exemption on entire sales turnover
relatable to such increased capacity had been enjoyed by the respondent B
under the 1985 Notification. The DLC had also granted iax benefit to the
respondent only in respect of the third expansion excluding the preoperative
expenses. Albeit for other reasons, in our opinion, having regard to our
decision on the various issues against the respondent, this is the highest
relief that the respondent could claim and which the appellants concede C
would be the most equitable.

The appeals are accordingly allowed. The decisions of High Court and
Tribunal are set aside and the decision of the Divisi.onal Level Committee is
affirmed. There will be no order as to costs.
D
N.J . Appeals allowed.

./