A. K. SENGUPTA, J. ( 1 ) THE petitioner, Swadeshi Fan Industries Pvt. Ltd. , is a Private Limited Company incorporated in December, 1978. It installed a factory for manufacture of electric fans and components at Howrah. The said factory was installed with new plant and machinery. The petitioner has been carrying on the business inter alia, of manufacturing and sale of electric fans and components thereof at the said factory. ( 2 ) THE petitioner was registered as a dealer under the provisions of the West Bengal Sales Tax Act, 1954, read with the West Bengal Sales Tax Rules, 1954. A certificate of registration was issued to the petitioner by the respondent on 2nd September, 1979. ( 3 ) THE petitioner started production at the said factory some time in December, 1978 and the first sale within the State of West Bengal out of the said production took place on or about 14th September, 1979. The petitioner has also registered its unit as a small-scale industrial unit with the Director of Cottage and Small-scale Industries, Government of West Bengal. The certificate of permanent registration as small-scale industrial unit was issued to the petitioner by the District Industries Centre, Howrah, on 17th February, 1979. The petitioner sells fans and components thereof manufactured by it at its said factory to various independent buyers and one of the buyers is Orient General Industries Ltd. (hereinafter referred to as the Orient Industries ). The Orient Industries is the principal buyer of the petitioner's said products. ( 4 ) ON 29th March, 1979, an agreement was entered into by and between the petitioner and the said Orient Industries whereby and whereunder the Orient Industries agreed to purchase from the petitioner 5,000 fans for a term of 3 years on the terms and conditions mentioned in the said agreement. One of the terms and conditions of the said agreement was that before the delivery of the fans would be effected to the Orient Industries by the petitioner, the petitioner shall affix thereon the trade mark of Orient Industries, viz. , "orient". Pursuant to and in terms of the said agreement the petitioner has been selling fans to Orient Industries after affixing trade mark "orient" on the fans so sold. , "orient". Pursuant to and in terms of the said agreement the petitioner has been selling fans to Orient Industries after affixing trade mark "orient" on the fans so sold. ( 5 ) IN or about 1980, the petitioner entered into another agreement with the Orient Industries whereby the Orient Industries agreed to make available to the petitioner the technical know-how and information concerning industrial, commercial and scientific knowledge experience and skill for the manufacture of fans and components thereof, in consideration of the petitioner's paying royalty to the Orient Industries at a rate of 21/2 per cent of the ex-factory price in respect of the product, manufactured, sold or used in terms of the said agreement. ( 6 ) SECTION 4aa was inserted in the West Bengal Sales Tax Act, 1954 from 1st April, 1976. It provides for exemption from tax by a dealer on sales of notified commodity or commodities manufactured, made or processed by the dealer in a newly set up small-scale industrial unit for 3 years from the date of commencement of the first sale subject to the conditions noted in the notification dated 1st April, 1976. The electric fans and components thereof are one of the notified commodities under the said notification. ( 7 ) THE case of the petitioner is that all the conditions mentioned in the said notification were and are being duly satisfied and are complied with by the petitioner. Accordingly no tax was or is payable by the petitioner under the said Act in view of the exemption granted by the said notification for a period of 3 years from the date of commencement of its first sale, i. e. , 14th September, 1979. The sales tax authority allowed the petitioner to avail of the said exemption granted under the said notification. In the return filed under the said Act the petitioner used to claim exemption in respect of the entire turnover under Section 4aa of the said Act and the taxable turnover used to be shown as nil. ( 8 ) ON 1st April, 1980, another notification was issued by the Government of West Bengal whereby certain amendments were made in the said earlier notification dated 1st April, 1976. . ( 8 ) ON 1st April, 1980, another notification was issued by the Government of West Bengal whereby certain amendments were made in the said earlier notification dated 1st April, 1976. . The effect of the said amendment is that the dealer claiming the benefit conferred by the said notification will be eligible only if he possesses a certificate of eligibility in the prescribed form granted by the appropriate Assistant Commissioner in this behalf. After issuance of the said notification the petitioner made an application on 24th April, 1980, before the Assistant Commissioner of Commercial Taxes, the respondent No. 2, for issue of the eligibility certificate. But the said respondent failed and neglected to issue the eligibility certificate to the petitioner. The Assistant Commissioner required the petitioner to produce various certificates, documents and other informations which were produced by the petitioner before him. The Assistant Commissioner also enquired from the petitioner about its relationship with the Orient Industries and all informations were given by the petitioner. Even after production of the relevant documents, paper books, etc. , the respondent No. 2, the Assistant Commissioner, did not issue the eligibility certificate to the petitioner. ( 9 ) WHILE the matter was pending before the Assistant Commissioner for grant of eligibility certificate the Commercial Tax Officer, Howrah Charge, issued a notice dated 14th November, 1980, to the petitioner inter alia to the effect that the petitioner was liable to pay tax under the said Act and the said Commercial Tax Officer proposed to make an assessment under Section 9 (3) of the said Act. The petitioner informed the Commercial Tax Officer that the application for eligibility certificate was pending before the Assistant Commissioner. ( 10 ) ON 20th January, 1981, the respondent No. 2 granted a personal hearing to the petitioner on the question of issuance of certificate of eligibility. By an order dated 28th January, 1981, passed by the respondent No. 2, the prayer of the petitioner for eligibility certificate was rejected. ( 11 ) IN this application the petitioner has challenged the order dated 28th January, 1981, passed by the Assistant Commissioner, Commercial Taxes and the notice issued by the Commercial Tax Officer for making an assessment under Section 9 (3) of the said Act. ( 11 ) IN this application the petitioner has challenged the order dated 28th January, 1981, passed by the Assistant Commissioner, Commercial Taxes and the notice issued by the Commercial Tax Officer for making an assessment under Section 9 (3) of the said Act. ( 12 ) BEFORE I deal with the respective contentions it is necessary to set out the Notification No. 1809-F. T. dated 1st April, 1976, granting exemption. The said notification inter alia provides as follows : in exercise of the power conferred by Section 4aa of the West Bengal Sales Tax Act, 1954 (West Bengal Act IV of 1954) (hereinafter referred to as the said Act), the Governor is pleased hereby to direct that no tax shall be payable by a dealer under the said Act on sales of notified commodity or commodities manufactured, made or processed by him in a newly set up small-scale industrial unit, for three years from the date of commencement of his first sale subject to the conditions noted below : provided that if any such newly set up small-scale industrial unit is purchased by him or transferred to him according to the provisions of Section 15 of the said Act during the said period of three years the benefit of this notification shall be available to him only for the unexpired portion of the said period of three years. CONDITIONS (i) The newly set up small-scale industrial unit is registered with the Cottage and Small-scale Industries Department of the Government of West Bengal. (ii) The investment of the dealer on plants and machinery excluding land and building does not exceed rupees ten lakhs. (iii) The dealer starts production for the first time after 31st March, 1976. (iv) The dealer keeps separate accounts in respect of such newly set up small-scale industrial unit, issues serially numbered cash/credit memos for sales of goods manufactured in such industrial unit, keeps vouchers and other documents for purchases of plants and machinery for establishment of such industrial unit and maintains other records to prove that sales claimed exempt under this clause were of goods manufactured in such an industrial unit set up by him and that no amount by way of tax under the Act has been realised by him in respect of such sales. ( 13 ) THE amendment which was effected in 1980 imposed further conditions as follows : (1) The dealer claiming the benefit of the said notification will be so eligible, if he possesses a certificate of eligibility in the prescribed form granted by the appropriate Assistant Commissioner in this behalf, for such period as mentioned in the said certificate. (2) The certificate of eligibility shall be granted on application and shall be valid for a period not exceeding twelve months from such date as may be specified therein, but may, at the discretion of the authority granting the certificate, be renewed from time to time for a period not exceeding twelve months at a time : provided that the certificate of eligibility shall not be granted or renewed if the dealer changes the constitution of the business, sells any capital assets otherwise than in the ordinary course of business violates any condition or does anything which adversely affects the economic viability of the newly set up industry. (3) The authority granting the certificate of eligibility may, for good and sufficient reasons to be recorded in writing and after giving the holder of such certificate a reasonable opportunity of being heard, declare such certificate invalid from such date as he may specify. (4) A dealer shall apply for a certificate of eligibility or for renewal thereof ordinarily within a month from the date from which such certificate is required to be granted or renewed for the purpose of this notification. ( 14 ) A further condition being condition No. (v) was added to the said notification as follows : (v) The newly set up small-scale industrial unit is not established solely or substantially with the plant or machinery of another newly set up small-scale industrial unit which earlier availed of the exemption under this notification and which is not engaged in the business of manufacturing such plant and machinery. ( 15 ) MR. R. N. Bajoria, learned Advocate, appearing for the petitioner, has submitted that the petitioner has satisfied all the conditions laid down in the notifications dated 1st April, 1976 and 1st April, 1980. Accordingly it was incumbent on the respondents to grant the eligibility certificate. ( 15 ) MR. R. N. Bajoria, learned Advocate, appearing for the petitioner, has submitted that the petitioner has satisfied all the conditions laid down in the notifications dated 1st April, 1976 and 1st April, 1980. Accordingly it was incumbent on the respondents to grant the eligibility certificate. The Assistant Commissioner in his order dated 28th January, 1981, has imported facts and circumstances which are not at all relevant for the purpose of determining whether any eligibility certificate should be issued or not. ( 16 ) THE ground on which the petitioner's application was rejected is that the petitioner's unit is nothing but an expansion of the established manufacturing unit of Orient Industries. It has been contended by the respondents that the petitioner's concern using the patent-right of Orient Industries is in fact an extension or branch or ancillary concern of Orient Industries. In the affidavit-in-opposition filed on behalf of the respondents, it has been stated that the agreements with Orient General Industries Ltd. , which is an old and reputed concern, points out that the productions of the petitioner are to a great extent controlled by the Orient General Industries Limited. Besides, in course of investigation, it has been found that the petitioner sells "orient" fans manufactured by it to parties even other than Orient General Industries Limited. "orient" trade mark belonging to M/s. Orient General Industries Limited, cannot be used by the petitioner for manufacturing and selling "orient" fans to others, if the petitioner was not a branch or extension or ancillary concern to M/s. Orient General Industries Ltd. Besides, the patent is a capital asset. If the petitioner is an extension or branch or ancillary concern, using capital asset of M/s. Orient General Industries Limited, the petitioner cannot be said to be a newly set up small-scale industrial unit under Notification No. 1809-F. T. dated 1st April, 1976. The facts and circumstances of the case revealed that the entire process of manufacturing of the fans and component parts thereof, was controlled by Orient General Industries Ltd. and that it was evident that the petitioner-concern was nothing but a joint -venture of the said Orient General Industries Limited. Although M/s. Orient General Industries Ltd. had the patent-right in respect of "orient" fan, the said fan was sold in huge quantities by the petitioner not only to the said M/s. Orient General Industries Ltd. but also to others. Although M/s. Orient General Industries Ltd. had the patent-right in respect of "orient" fan, the said fan was sold in huge quantities by the petitioner not only to the said M/s. Orient General Industries Ltd. but also to others. On the plea of newly set up small-scale industrial unit the huge sales of Orient fans are made without realising sales tax and it is apparent that for the purpose of this evasion of tax, the petitioner-company is being used as a canalising agent of M/s. Orient General Industries Ltd. which was never the intention of the Government in the matter of subsidising newly set up industrial unit. ( 17 ) IT is necessary to set out the order of the Assistant Commissioner which has been challenged in this application. I have made a test check of the cash book of the dealer's business for the first year and have observed that this business is a private limited concern but the promoters application money for purchase of equity shares of the company. It is very interesting to note that the petitioner-company took a loan of Rs. 1,00,000 from one Sri Baijnath Saboo and also a loan of Rs. 10,000 from M/s. Onkarmal Sashi Kumar and Co. for securing working capital of the business. The particulars of the money-lenders are not available to me and no evidences are produced today regarding terms and conditions of the loans taken by the company. The Advocate prays for one day's time for furnishing the full details but I refrain from granting any more time to avoid further dragging of the case. It is unlikely of a S. S. I. enterprise to take such a huge loan from private source instead of raising funds from some nationalised bank on term loan and cash credit basis. Besides, it is no denying a fact that the dealer is manufacturing 'fans' by using the long-standing established brand name 'orient' which is a renewed emblem of M/s. Orient General Industries Ltd. by virtue of an agreement with the latter company. On careful perusal of the conditions as laid down in the agreement, it can be well understood that the dealer's business falls under the expressions of the existing industrial unit (M/s. Orient General Industries Ltd.) under the garb of a newly set up industry. On careful perusal of the conditions as laid down in the agreement, it can be well understood that the dealer's business falls under the expressions of the existing industrial unit (M/s. Orient General Industries Ltd.) under the garb of a newly set up industry. In my opinion, it is quite apparent that this business is set up for diversification of sales of 'orient' fans manufactured by long-standing established concern M/s. Orient General Industries Ltd. only to avoid payment of sales tax for 3 years from the date of sales of manufactured fans under the trade name of 'orient' by taking shelter under Section 4aa of the West Bengal Sales Tax Act, 1954 by the principal company M/s. Orient General Industries Ltd. I have kept a copy of the agreement for use of the trade name and for receiving technical know-how dated 8th April, 1980, between the dealer and M/s. Orient General Industries Ltd. in the records. As I am satisfied that this concern is nothing but an expansion of the established manufacturing industrial unit M/s. Orient General Industries Ltd. , I reject the application of the dealer dated 26th April, 1986, for issue of eligibility certificate under Section 4aa of the West Bengal Sales Tax Act, 1954. ( 18 ) IN the impugned order, the first ground given is that the petitioner obtained loan from private sources to the extent of Rs. one lakh ten thousand. According to the Assistant Commissioner it is unlikely that such huge loan would be taken from private sources instead of raising funds from some nationalised bank on term loan and cash credit. This view is not supported by any authority nor such condition is imposed by the notification. Where the legislature intends that loan should not be obtained from private sources it makes provision therefor. As for example Rule 19a of the Income-tax Rules, 1962, provided that for the purpose of computation of capital in industrial undertaking money borrowed from approved sources only would get the benefit of the said rules. The approved source has also been defined as Government or Industrial Finance Corporation of India or Industrial Credit and Investment Corporation Limited or any Banking Institution. When there is no prohibition from obtaining loan from private sources under the notification, the Assistant Commissioner was not justified in holding that obtaining loan from private sources would disentitle the dealer from claiming exemption. When there is no prohibition from obtaining loan from private sources under the notification, the Assistant Commissioner was not justified in holding that obtaining loan from private sources would disentitle the dealer from claiming exemption. One of the conditions is that investment of the dealer on plant and machinery excluding land and building would not exceed Rs. ten lacs. This condition admittedly has been fulfilled. There is no allegation either in the order of the Assistant Commissioner or in the affidavit-in-opposition that the condition of investment has not been complied with. ( 19 ) THE second ground of rejection as appearing from the impugned order and the affidavit-in-opposition is that it is not a newly set up small-scale industrial unit. It is only the expansion of the established manufacturing industrial unit of Orient Industries. This view is based on two reasons; firstly the petitioner used trade name "orient" for the fans manufactured by it. Secondly, the petitioner was set up for diversification of sales of Orient fans manufactured by Orient Industries. The contention in substance is that the manufacturing business of the petitioner and Orient Industries is one and the same business. There is no basis for such inference by the respondents on the facts that the business of the petitioner is in fact expansion of the business of the Orient Industries. There are well-settled tests to determine whether two businesses are separate businesses or constitute the same business. One test is whether there is an interconnection, an interlacing, an interdependence between and a unity, embracing the businesses. The interdependence may be financial, the unity may be unity of management and control. There is no such finding in this case. The view is only based on the fact that the petitioner used the trade name of "orient". If under an agreement with the Orient Industries the petitioner is allowed to use the trade name "orient" on the fans manufactured by it, it cannot be said that the petitioner is manufacturing on behalf of Orient Industries and its manufacturing unit is an expansion of the unit of the Orient Industries. The petitioner is liable to tax on the goods manufactured by it. The petitioner is liable to tax on the goods manufactured by it. If the contention of respondents is correct in that event the liability to pay sales tax would be on Orient Industries and not on the petitioner because if the petitioner manufactured on behalf of the Orient Industries then there cannot be any sale by the petitioner to Orient Industries. The respondents are treating the sales by the petitioner to Orient Industries of the goods manufactured by it as sales within the meaning of the West Bengal Sales Tax Act, 1954. Therefore it cannot be contended by the respondents that product is manufactured on behalf of the Orient Industries. ( 20 ) IN the case of Hind Lamps Ltd. v. Union of India reported in 1978 ELT 78, the Allahabad High Court was of the view that the manufacturing of goods with customer's brand names cannot be said to be manufacturing the goods on behalf of the customer as he pays income-tax on income derived from their sales and also pays sales tax on their sale. In that case, the Hind Lamps Ltd. under agreements with six companies were manufacturing bulbs and tubes, etc. , with the trade mark like "philips", "osaram", Mazda", "crompton", "bajaj" and "kleerton". Hind Lamps Ltd. sells those goods under their brand names to what it calls is customer companies. The customer companies in turn sell the goods to the public. The Allahabad High Court observed : since its very inception the petitioner-company has long terms agreement with the customer companies for the sale of its entire manufactured product. When the petitioner-company has selling agents who take off its entire production, it may be said that it was manufacturing goods for being sold to the customer companies. But that would not lead to the conclusion that the petitioner is a dummy company or that the petitioner is not the manufacturer. Ever since the company's very inception the department has been treating the petitioner-company as the manufacturer which sell its goods to those customer companies only. But that would not lead to the conclusion that the petitioner is a dummy company or that the petitioner is not the manufacturer. Ever since the company's very inception the department has been treating the petitioner-company as the manufacturer which sell its goods to those customer companies only. The fact that the petitioner-company has been paying sales tax on sales effected by it to the customer companies coupled with the fact that the petitioner-company is being held liable for income-tax on the profits earned by it on these transactions of sales, prima facie show that the agreements of sale with the customer companies were ordinary commercial transactions entered into in the usual course of business. If the department's case was that the customer because of extra-commercial considerations, the burden was upon it to establish facts which may lead to that inference. But the appellate order is singularly silent upon this aspect. It does not give any findings which may go to indicate any extra-commercial consideration entering into the fixing of ex-factory price by the petitioner-company. ( 21 ) THESE principles will equally apply to the facts of this case. There is no allegation that the agreement between the petitioner-company and Orient Industries is not a genuine commercial transaction. The petitioner manufactures the goods with the trade name of "orient" and pays sales tax on its sales to the Orient Industries. This cannot lead to the conclusion that it is a diversification of the sales of Orient fans manufactured by Orient Industries. It has not been disputed nor can it be disputed that it is the petitioner who manufactured fans at its industrial unit by its own plant and machinery. Fans are manufactured and at the time of sale the trade name "orient" is offered. Then it cannot be a manufacture by Orient Industries in any event. It has not been disputed nor can it be disputed that it is the petitioner who manufactured fans at its industrial unit by its own plant and machinery. Fans are manufactured and at the time of sale the trade name "orient" is offered. Then it cannot be a manufacture by Orient Industries in any event. The Allahabad High Court in the case of Philips India Limited v. Union of India reported in 1980 ELT 263 held: but if a person simply places order with a company for getting certain goods manufactured according to his specifications, details and trade mark, without incurring any financial involvement needed for manufacturing or producing the goods or without having any control or supervision over the manufacturing process, such person cannot be treated as a manufacturer for those goods because in such cases the transaction is on principal to principal basis in the ordinary course of business. In such cases it can be said that actual manufacturer was engaged in the manufacturing activity 'on his own', as he manufactures goods according to his own schedule, budget, capacity, availability of raw materials. Moreover, if buyer is also to be treated as a manufacturer, the same would result in making two persons as manufacturer of the same commodity whereas under the law there cannot be more than one. ( 22 ) IT was further held : a trade mark is only a sign, device or mark by which the articles produced are dealt with by a particular person or organisation. Thus use of a trade mark does not necessarily mean or as a matter of law import that the articles on which it is used are manufactured by the trade mark owner even if such goods are manufactured for him and may pass through his hands in the course of the trade and that he gives them the benefit of its reputation or of his name. This legal position would not change even if the name of actual manufacturers is not shown on the product. The trade mark and manufacture of goods are two different concepts and cannot be intermixed, therefore, a person cannot be treated as a 'manufacturer' under Section 2 (f) merely because his trade mark is used on the goods produced by others. This legal position would not change even if the name of actual manufacturers is not shown on the product. The trade mark and manufacture of goods are two different concepts and cannot be intermixed, therefore, a person cannot be treated as a 'manufacturer' under Section 2 (f) merely because his trade mark is used on the goods produced by others. ( 23 ) SIMILAR view was taken by the Bombay High Court in the case Parle Beverages (P.) Ltd. v. Union of India reported in 1982 ELT 142. There the Bombay High Court was of the view that mere affixation of a trade name on the products would not mean that the product was manufactured for and on behalf of the person having the registered trade name. ( 24 ) UNLESS it can be established that Orient Industries in fact has got control over the manner and working of the plant which belongs to the petitioner exclusively, merely because one trade name "orient" is affixed to the fans manufactured by the petitioner cannot lead to the conclusion that it is Orient Industries who in fact are the manufacturer of the fan. This contention has no substance. ( 25 ) IN Union of India v. Cibatul Limited reported in 1985 ELT 302 (SC), Cibatul Ltd. (seller/manufacturer) entered into an agreement with Ciba Geigy India Ltd. (buyer/customer ). According to the said agreement between the buyer/customer and the seller/manufacturer the goods were to be produced by seller in accordance with a manufacturing programme drawn up jointly and goods were to be manufactured in accordance with the restrictions and specifications constituting the buyer's standard. The goods were to be supplied at prices agreed upon between the seller and buyer from time to time. Further buyer was entitled to test a sample of each batch of these goods and goods were to be supplied only after approval. Seller was authorised to affix buyers trade mark on the goods produced under the agreement. Customers refrained from using such trade mark on other goods. ( 26 ) THE Supreme Court observed : the entire question before us is whether the goods are manufactured by the seller or are manufactured by the seller on behalf of the buyer. Seller was authorised to affix buyers trade mark on the goods produced under the agreement. Customers refrained from using such trade mark on other goods. ( 26 ) THE Supreme Court observed : the entire question before us is whether the goods are manufactured by the seller or are manufactured by the seller on behalf of the buyer. The relevant provisions of the agreements and the other material on the record show that the manufacturing programme is drawn up jointly by the buyer and the seller and not merely by the buyer and that the buyer is obliged to purchase the manufactured product from the seller only if it conforms to the buyer's standard. For this purpose the buyer is entitled to test a sample of each batch of the manufactured product and it is only on approval by him that the product is released for sale by the seller to the buyer. In other words, the buyer has the right to reject the goods if he does not approve of them. If the manufactured goods are not in accordance with the buyer's standard, they are either reprocessed to bring them up to the requisite quality, or if that is not possible the goods are sold to the buyer for a different purpose if they are compatible with the specifications of some other product and provided that the buyer has a need for that product, or the goods are sold to others in the market as sub-standard goods at a lower price or the goods are destroyed. It is significant to note that the buyer is not obliged to purchase the goods manufactured by the seller regardless of their quality and that in the event of rejection by the buyer the alternatives present before the seller extend to the sale of the manufactured goods to others or even to the very destruction of the goods. It is apparent that the seller cannot be said to manufacture the goods on behalf of the buyer. The appellant relies also on the circumstance that under the agreements the seller is required to affix the trade marks of the buyer on the manufactured goods and, it is said, that indicates that the goods belong to the buyer. It is apparent that the seller cannot be said to manufacture the goods on behalf of the buyer. The appellant relies also on the circumstance that under the agreements the seller is required to affix the trade marks of the buyer on the manufactured goods and, it is said, that indicates that the goods belong to the buyer. It seems to us clear from the record that the trade marks of the buyer are to be affixed on those goods only which are found to conform to the specifications or standards stipulated by the buyer. All goods not approved by the buyer cannot bear those trade marks and are disposed of by the sellers without the advantage of those trade marks. The trade marks are affixed only after the goods have been approved by the buyer for sale by the seller to the buyer. The seller owns the plant and machinery, the raw material and the labour and manufactures the goods and under the agreements, affixes the trade marks on the goods. The goods are manufactured by the seller on its own account and the seller sells the goods with the trade marks affixed on them to the buyer. ( 27 ) THUS the contention of the respondents that "orient" trade mark cannot be used by the petitioner for manufacturing and selling orient fans to others, if the petitioner was not a branch or extension or ancillary concern of "orient Industries" has no substance at all. The petitioner was given the technical know-how and the fans to be sold and delivered by the petitioner shall be in accordance with the sample approved by the Orient Industries. The excise duty is payable by the petitioner, so also the sales tax. On the facts of this case simply because the trade mark of "orient" a capital asset belonging to Orient Industries is used by the petitioner cannot mean that the petitioner was producing the goods not on its own account but on behalf of Orient Industries. What is capital asset in the hands of Orient Industries is a trading asset in the hands of the petitioner. ( 28 ) IN the premises aforesaid it is evident that the Assistant Commissioner failed in error in holding that the petitioner's business is one of the existing industrial unit of Orient Industries and it is meant for diversification of sale of Orient fans. ( 28 ) IN the premises aforesaid it is evident that the Assistant Commissioner failed in error in holding that the petitioner's business is one of the existing industrial unit of Orient Industries and it is meant for diversification of sale of Orient fans. No material has been placed before this Court to substantiate the claims so made. This claim being so unfounded and so unsound that it cannot stand a moment's scrutiny, has to be rejected. ( 29 ) FOR the reasons aforesaid this application succeeds. ( 30 ) THE rule is made absolute. The order dated 28th January, 1981 and the notice dated 14th November, 1980, are set aside. Let appropriate writs be issued. The respondent No. 2 is directed to issue eligibility certificate to the pettioner in terms of the notification dated 1st April, 1976, as amended by the notification dated 1st April, 1980, within two weeks from the date of communication of the operative part of this judgment. There will be no order as to costs.