The court established that for the purposes of Section 4-A, goods must be commercially considered as the same or different, and the mere difference in raw material, manufacturing process, and quality does not necessarily make them different goods.

( 1 ) THE present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as act)arising from the order dated 23. 9. 2004 passed by full Bench of Trade Tax Tribunal U. P. Lucknow.

( 2 ) THE brief facts of the case are that the applicant established a new Unit at Rampur Road, moradabad for manufacture and sale of Industrial Oxygen Gas in the year 1994. It was registered under the U. P. Trade Tax Act as well as under the Central Sales Tax Act and also obtained registration under the S. S. I. District Industries Center, Moradabad. The Unit applied for exemption certificate under Section 4-A of the Act in respect of Industrial Gas and it was granted exemption certificate on 1. 1. 1996 for the period of nine years w. e. f. 14. 12. 1994, the date of first sale or 150 per cent of the fixed capital investment of Rs. 38,22,323/- i. e. up to tax amount of Rs. 57,33,384/- which were expires earlier.

( 3 ) APPLICANT subsequently established another Unit as Unit No. 2 in the same premises called as an Air Separation Plant in the year 1998 by making total investment of Rs. 57,41,537. 16 for the manufacture of Air Product Oxygen. Liquid Nitrogen, Gaseous Nitrogen and Medical Oxygen. The Unit applied for S. S. I. Registration Certificate and the same was issued on 9. 8. 1999 for the manufacture of the above named four products. The Unit started production from 22. 12. 1998 and the date of first sale was also 22. 12. 1998. The Unit applied for exemption under Section 4-A of the Act before the District Industries Centre on 21. 6. 1999. This application was allowed and the certificate was issued vide order dated 27. 7. 2000 granting exemption for a period often years from 22. 12. 1998 i. e. date of first sale or 200 per cent of the fixed capital investment of Rs. 57,19,382. 00 or up to Rs. 1,14,38,764/- of the tax amount, which were expired earlier. However, restrictions was imposed in this order that provisions of Section 4-A (5) (d) of the Act would be applicable to the Unit and thus the production of the second Unit should not be less than the base production, the turnover of second Unit and if the production of the first Unit falls short of the base production, the turnover of second Unit to the extent of such shortfall of base production in the first Unit shall be subject to tax. According to the applicant, the aforesaid four products manufactured by the Unit No. 2 in respect of which exemption was sought were different from industrial Oxygen Gas which was being manufactured by Unit No. 1 and in respect of which, exemption certificate was earlier issued.

( 4 ) AGGRIEVED by the aforesaid order, applicant filed Appeal No. 134 of 2000 before the Trade tax Tribunal vide order dated 9. 8. 2001, allowed the appeal and remanded back the matter to the divisional Level Committee for passing afresh order in the light of observations made therein. In the fresh proceeding before the Divisional Level Committee, a Show Cause Notice dated 2. 11. 2001 was issued by the Addl. Director. Industries, Moradabad, raising three points and a detailed reply was given by the applicant stating that all the aforesaid four products manufactured in the new Unit were industrially different from the products manufactured in the existing first Unit, but the Divisional Level Committee without considering the detailed reply, rejected the exemption application of the applicant vide order dated 26. 7. 2002. The Divisional level Committee came to the conclusion that the Air products oxygen was not a different product and the restrictions imposed in the Eligibility Certificate, shall be applicable to the product, whereas, the remaining three products namely Liquid Nitrogen, Medical Oxygen and gaseous Nitrogen shall be exempt.

( 5 ) BEING aggrieved by the order of Divisional Level Committee, applicant filed Appeal No. 99 of 2002 before the Tribunal, which was allowed by the Tribunal vide order dated 30. 12. 2002 and the case was again remanded ba