TaxTMI 
TaxTMI 
2006 (5) TMI 449
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....t, "the Act") read with Haryana General Sales Tax Rules, 1975 (for short, "the Rules") with effect from April 12, 1993 to April 11, 2000. In the year 1995, the petitioner carried out expansion in Unit II by creating additional capacity for manufacturing of the same product (hereinafter referred to as "the expanded unit"). The expanded unit was also granted exemption from payment of tax for the period January 17, 1996 to January 16, 2003 in terms of the provisions of the Act and the Rules. The petitioner availed of the entire benefit admissible to him for Unit II up to April 11, 2000. In terms of provisions of sub-rule (11) of rule 28-A of the Rules, a unit, after availing the benefit of exemption from payment of tax, is required to continue in production for at least five years thereafter with the same average level of production. The above referred sub-rule extracted below: "Rule 28A . . . (11)(a) The benefit of tax exemption/deferment under this rule shall be subject to the condition that the beneficiary/industrial unit after having availed of the benefit,-- (i) shall continue its production at least for the next five years not below the level of average production for the pre....
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....nover required per year 1997-98 167.94 1998-99 494.78 1999-00 574.02 2000-01 1139.77 2001-02 999.44 3370.95 674.19 1286.31 2002-03 1467.07 2003-04 1643.94 2004-05 1724.83 2005-06 1318.67 (up to 31-12-05) 6154.51 1641.20 1641.20 Total average sale in SON/IV/6540 Unit No. II and SON/IV/7412 Unit No. II (1st Expansion) is Rs. 612.12 and Rs. 674.19 lacs respectively, i.e., total Rs. 1286.31 lacs whereas after exemption and installing new machine in unit No. SON/IV/7412-II (1st Expansion) the average turnover is Rs. 1641.20 lacs. (sic)" Since, in the opinion of the Deputy Excise and Taxation Commissioner, the loss in production of unit II, after it had availed of the benefit of exemption from payment of tax, was in violation of the provisions of sub-rule (11) of rule 28 of the Rules, a show cause notice dated January 15, 2003 was issued to the petitioner. The same was replied to by the petitioner vide his letter dated February 20, 2003, raising the plea that the closure of the unit after the fire broke out in the factory of the petitioner, was for reasons beyond the control of the petitioner. Hence, there was no violation of the provisions of sub-rule (11) of ....
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....ded over some matter, the decision shall be the decision of the majority, if there be a majority, but if the Members are equally divided they shall state the point or points on which they differ, and the case shall be heard by the Full Member Tribunal and such point or points shall be decided according to the decision of majority of the Members of the Tribunal." As is evident from undisputed facts on record, after the Members of the Bench were equally divided on the issue the matter was considered by the third Member of the Tribunal, who vide his separate order dated May 16, 2005 formed an opinion favouring dismissal of the appeals. Thereafter on May 24, 2005, copy annexure P 10, the Full Member Tribunal, keeping in view the majority of opinions, ordered for dismissal of the appeals filed by the petitioner by passing the following order: "Vide order dated September 13, 2004 authorised by me (Chairman), I have ordered the dismissal of these appeals. Vide order dated October 8, 2004 authorised by Shri B. S. Suhag, learned Member, Haryana Tax Tribunal, has differed with me and has ordered the acceptance of these appeals. In this situation, the matter came to be put up before the Ful....
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.... can be done only and only in that manner and other manners of doing the same are impliedly barred. Learned counsel for the State could not dispute the fact that the procedure followed by the Tribunal while hearing the appeals of the petitioner was not strictly in conformity with the provisions of the VAT Act. However, she submitted that the petitioner having not raised this objection at the time of hearing of appeals by the third Member, this amounted to waiver of this plea. Second contention raised by the counsel for the State is that the present petition having been filed nearly after one year from the order of the Tribunal passed on May 24, 2005 should be dismissed on account of delay and laches. She has further submitted that the writ petition could not be entertained at this stage when the petitioner is already in the process of availing remedies available to it under section 42 of the Act seeking reference of question of law arising out of order of the Tribunal. Counsel for the petitioner first adverting to objection of the State regarding delay in filing of writ, submitted that the delay in filing of the petition in the facts and circumstances of the present case is not ....
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....ny effort to revive unit No. 2. Dealer has not shown whether with the amount of compensation given to it by the insurance company, no purchase of any machinery was possible . . . For the reasons given above, it emerges that the Deputy Excise and Taxation Commissioner, Sonepat, was justified in withdrawing the benefit of tax exemption . . . Both these appeals are accordingly dismissed'." (vii) The Second member of the Tribunal who disagreed with the learned Chairman's opinion held in his order dated October 8, 2004 as follows: "We have heard the arguments of both the parties and have also gone through the case law referred to by the counsel for the appellant. It has not been disputed even by both the lower authorities, i.e., Deputy Excise and Taxation Commissioner, Sonepat, and the Joint Excise and Taxation Commissioner (A), Rohtak, that a major fire broke out in the unit and its main machines were totally gutted in the said fire. As per the report of loss assessor of the insurance company, the damage to the machines were beyond repairs and experts in the field were of the opinion that cost of repairs could be more than the cost of new machines and proper functioning of the repair....
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....eard by Full Member Tribunal, it is inbuilt in the provision that such reference order will contain facts of the case in brief and thereafter state the point or points in issue, which are required to be considered by the Full Member Tribunal. This certainly has an object to be achieved in the scheme of the Act. The questions of law arising out of order passed by the Tribunal will be considered by this court only on the facts found by the Tribunal in an order out of which the question of law is referred to this court. If the facts itself are recorded differently in different orders passed by the learned Member constituting Bench, it will not be possible to either frame the question of law properly or to consider the same at the appropriate stage. Further a bare perusal of section 57(1) of the VAT Act shows that the Tribunal can be consisted of three or more odd number of Members including the Chairman, meaning thereby the Tribunal can consist of 3:5:7 . . . numbers of members. Section 57(3) of the VAT Act provides that in case of difference of opinion amongst the members of the Bench, where they are equally divided, the case shall be heard by the Full Member Tribunal on the point o....