JUDGMENT P. K. JAIN, J. - These two revisions arise out of the order passed by the Full Bench of the Trade Tax Tribunal, Lucknow in Second Appeal No. 73 of 1996 (Kajaria Ceramics Ltd. v. Divisional Level Committee). The appeal was partly allowed and partly dismissed by the Tribunal. Revision No. 700 of 1997 has been filed by the assessee being aggrieved by part dismissal of the appeal. Revision No. 53(L) of 1997 has been filed by the Commissioner of Trade Tax, U.P., Lucknow against the order of partly allowing the appeal. After Revision No. 700 of 1997 was heard by the court, it was pointed out by Sri B. K. Pandey, learned Standing Counsel, that the department has also filed a revision against the impugned order before the Lucknow Bench of this Court and both the revisions deserve to be decided by common judgement. The Commissioner of Trade Tax, U.P., Lucknow moved Civil Misc. Application No. 68823 of 1999 before the honourable Chief Justice with a prayer that the honourable Chief Justice be pleased to direct that Revision No. 700 of 1997 (Kajaria Ceramics Ltd. v. Trade Tax Tribunal) pending in the High Court of Judicature at Allahabad and Trade Tax Revision No. 53(L) of 1997 (Commissioner of Trade Tax v. Kajaria Ceramics Ltd.) pending before the Lucknow Bench of this Court may be heard and decided together. Honourable the Chief Justice passed the following order on September 29, 1999 on the said application : "Heard learned counsel for the parties. The record pertaining to the Trade Tax Revision No. 53(L) of 1997 pending before Lucknow Bench be summoned to this Court immediately and the same be placed before honourable P. K. Jain, J., for hearing. Dated 29-9-99 Sd/- N. K. Mitra." That is how Trade Tax Revision No. 53(L) of 1997 came up for hearing before this Court. The dealer, M/s. Kajaria Ceramics Limited, carries on the business of manufacture and sale of ceramics wall and floor tiles having its factory situated in industrial area, Sikandarabad, district Bulandshahar, Uttar Pradesh. It set up a new unit and its date of first sale was August 16, 1988. The investment in the unit up to August 12, 1988 was Rs. 16,21,54,452. It set up a new unit and its date of first sale was August 16, 1988. The investment in the unit up to August 12, 1988 was Rs. 16,21,54,452. On December 26, 1985, the State of Uttar Pradesh issued Notification No. ST-II-7558/X-9(208)-1981-U.P. Act 15/48-Order-85, dated December 26, 1985, under section 4-A of the then existing U.P. Sales Tax Act with a view to promote development of certain industries in the State of Uttar Pradesh granting exemption from or reduction in rate of tax to new units in certain districts and parts of the districts of Uttar Pradesh. The dealer, M/s. Kajaria Ceramics Limited was granted eligibility certificate for a period of 6 years with effect from August 16, 1988 by order dated May 5, 1990. The fixed capital investment of the unit of dealer was Rs. 16,21,54,852 at the time of commencement of the sale, i.e., August 16, 1988. Thereafter came the notification dated July 27, 1991 being Notification No. ST-II-1093/XI-7(42)-68-U.P. Act XV/48-Order-91 published in the official gazette on July 27, 1991 which provided further exemption from payment of tax in case of units established after first day of April, 1990, and also to already existing units which have undertaken an expansion, diversification or modernisation on or after April 1, 1990 but not later than March 31, 1995. The case of the dealer is that in view of the said notification for further exemption it had undertaken a programme for expansion by making additional fixed capital investment to the tune of Rs. 54,51,03,544 in addition to the original fixed capital investment as on March 31, 1990 which was to the tune Rs. 16,96,27,581 with depreciation. The dealer applied for exemption under the 1991 scheme in the prescribed form for grant of exemption under section 4-A of the U.P. Sales Tax Act, 1948 read with notification dated July 27, 1991. The Divisional Level Committee-respondent No. 2, granted eligibility certificate by its order dated March 7, 1996 to the tune of Rs. 24,15,05,019 and rejected the claim of the dealer in respect of remaining fixed capital investment vide order of the Divisional Level Committee/eligibility certificate dated March 7, 1996. The claim of the revisionist was that it was entitled to exemption on the total investment, i.e., the original fixed capital investment of Rs. 16,21,54,852 - as on August 12, 1988 plus additional investment of Rs. The claim of the revisionist was that it was entitled to exemption on the total investment, i.e., the original fixed capital investment of Rs. 16,21,54,852 - as on August 12, 1988 plus additional investment of Rs. 54,51,03,544 made on expansion between the period April 1, 1990 to March 28, 1994 the total amount being Rs. 76,17,87,532. Aggrieved by the order passed by the Divisional Level Committee, the dealer filed appeal before the Trade Tax Tribunal, Lucknow. The Trade Tax Tribunal by its judgement and order dated April 10, 1997 partly allowed the appeal accepting the claim of the dealer in respect of additional fixed capital investment to the tune of Rs. 54,48,34,341.70 paise, it rejected the claim of dealer with regard to Rs. 16,21,54,852 the original fixed capital investment as on August 12, 1988. By such rejection of claim, the dealer felt aggrieved and filed Trade Tax Revision No. 700 of 1997. The Divisional Level Committee had rejected the claim of the dealer in respect of additional fixed capital investment during the period April 1, 1990 to March 28, 1994 to the tune of Rs. 30,35,98,525.00. But the Tribunal while partly allowing the appeal, accepted the claim of the assessee in respect of additional fixed capital investment to the tune of Rs. 30,33,29,323.70 paise. The revenue feeling aggrieved by such acceptance of the claim of the dealer, has filed Trade Tax Revision No. 53(L) of 1997. Sri Bharat Ji Agrawal, learned Senior Counsel for the revisionist in T.T.R. No. 700 of 1997 and Sri B. K. Pandey, Learned Standing Counsel for the Revenue were heard. Later on Sri Ashok Mehta, who argued T.T.R. No. 53(L) of 1997 was also heard. In T.T.R. No. 53(L) of 1997, Sri Ashok Mehta, Learned Chief Standing Counsel assisted by Sri B. K. Pandey have been heard on behalf of the Revenue and Sri Bharat Ji Agrawal, learned Senior Counsel for the assessee has been heard. Before adverting to the rival arguments and appreciating the same in the light of the material placed before the court it would be relevant to reproduce the relevant provisions of the notifications and and section 4-A of the U.P. Trade Tax Act, 1948 (hereinafter called as "the Act"). "Notification No. ST-II-7558/X-9(208)-1981-U.P. Act XV-48-Order-45 dated December 26, 1985. Before adverting to the rival arguments and appreciating the same in the light of the material placed before the court it would be relevant to reproduce the relevant provisions of the notifications and and section 4-A of the U.P. Trade Tax Act, 1948 (hereinafter called as "the Act"). "Notification No. ST-II-7558/X-9(208)-1981-U.P. Act XV-48-Order-45 dated December 26, 1985. Whereas the State Government is of the opinion that it is necessary so to do for promoting the development of industry in the State generally and in certain districts and parts of districts in particulars; Now, therefore, in exercise of the powers under section 4-A of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), and in supersession of Notification No. ST-II-604/X-9(208)-1981-U.P. Act XV-48 Order-45, dated January 29, 1985 (S. No. 869), the Governor is pleased to declarer that, in respect of any goods manufactured in an industrial unit, which is a new unit as defined in the aforesaid Act of 1948, established in the areas mentioned in column 2 of the Table given below, the date of starting production whereof falls on or after the first day of October, 1982 but not later than the thirty-first day of March, 1990, no tax under the aforesaid Act of 1948 shall be payable by the manufacturer thereof on the turnover of sales of such goods for the period specified in column 3 against each, which shall be reckoned from the date of first sale, if such sale takes place not later than six months from the date of starting production or, in other cases from the date following the expiration of six months from the date of starting production, subject to the following conditions :- (1) ........... (2)(a) to (g) ........... Table ------------------------------------------------------------------------ Period of exemption Sl. Location of -------------------------------------------------------- No. unit In the case of units with In the case of units with capital investment not capital investment exceeding exceeding three lakh rupees. three lakh rupees. ---------------------------------------------------------------------- 1 2 3(a) 3(b) ---------------------------------------------------------------------- (1) ......... Five years Seven years (2) Bulandshahar Four years Six years (3) ........... Three years Five years ---------------------------------------------------------------------- Explanation. - For the purposes of this notification :- (1) ........ (a) and (b) ........ three lakh rupees. ---------------------------------------------------------------------- 1 2 3(a) 3(b) ---------------------------------------------------------------------- (1) ......... Five years Seven years (2) Bulandshahar Four years Six years (3) ........... Three years Five years ---------------------------------------------------------------------- Explanation. - For the purposes of this notification :- (1) ........ (a) and (b) ........ (2) 'Date of starting production' and 'new unit' shall have the meaning assigned to them in the explanation to section 4-A of the Uttar Pradesh Sales Tax Act, 1948; and (3) 'Capital investment' means investment in land, building, plant, machinery, equipment and apparatuses." English translation of Vitta (Bikri-kar) Anubhag-2, Notification No. S.T. 2-1093/XI-7(42)-68-U.P. Act XV-48-Order-90, dated July 27, 1991. Whereas the State Government is of the opinion that for promoting the development of certain industries in the State it is necessary to grant exemption from or reduction in rate of tax to new units and also to units which have undertaken expansion, diversification or modernisation; Now, therefore, in exercise of the powers under section 4-A of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), hereinafter referred to as the Act, the Governor is pleased to declare that - (1-A).......... (1-B) In respect of any goods manufactured in a unit other than the units of the type mentioned in Annexure II, which 'has undertaken expansion, diversification or modernisation' on or after April 1, 1990 but not later than March 31, 1995, in the areas mentioned in column 2 of Annexure I, no tax shall be payable or, as the case may be, the tax shall be payable at the reduced rates specified in column 4 of Annexure I, by the manufacturer thereof for the period specified in column 3 of the said Annexure I, or till the maximum amount of tax relief by such exemption from or reduction in rate of tax as specified in column 5 of Annexure I is achieved, whichever is earlier, on the turnover of sales - (a) of the quantity of goods manufactured in excess of the base production in the case of units undertaking expansion or modernisation; and (b) of goods manufactured by the unit which are of a nature different from those manufactured earlier by such unit in the case of units undertaking diversification. (2) The period of such facility shall be reckoned from the first date of production - (i) of goods of a nature different from those manufactured earlier by such unit in case of diversification; and (ii) of the goods manufactured in excess of the base production in the case of units undertaking expansion or modernisation. 2. ....... (i) to (iv) ....... 3. 'Fixed capital investment' may, unless otherwise established, be determined 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 institution or the bank and in any other case, according to - (a) the value of the land certified by the Collector in accordance with the procedure laid down for determination of the value of land for the purpose of payment of stamp duty under the Indian Stamp Act, 1899; (b) the 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. 4. 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 Explanation in case of 'units which have undertaken expansion, diversification or modernisation' the investment in only such land, building, plant, machinery, equipment, apparatus and component or, as the case may be, such additional land, building, plant, machinery, equipment, apparatus and component shall be taken into account as were acquired on or before the relevant date of commencement of the period of facility notified under sub-section (1) of section 4-A of the Act. 5. ....................... (a) and (b) .............. 6(a) and (b) ............. Annexure I ------------------------------------------------------------------------ No. Position Total Rate of tax applicable Monetary limit of unit period of (denoted as percentage of up to which exemption/ the rate of tax normally exemption from reduction application under the Act or reduction in in the rate to the goods concerned) the rate of tax of tax. -------------------------- is admissible Year In case of In case units with of a fixed other capital units. investment exceeding 50 crores. ----------------------------------------------------------------------- 1. 2. 3. 4. 5. ---------------------------- A B C ------------------------------------------------------------------------ 1 ... Ten ... ... ... -------------------------- is admissible Year In case of In case units with of a fixed other capital units. investment exceeding 50 crores. ----------------------------------------------------------------------- 1. 2. 3. 4. 5. ---------------------------- A B C ------------------------------------------------------------------------ 1 ... Ten ... ... ... 175 per cent of years the fixed capital investment in the case of small-scale units and 150 per cent of the fixed capital investment in case of other units. 2(i) Bulandshahar Nine ... ... ... 150 per cent of years the fixed capital investment in the case of small-scale units and 125 per cent of the fixed capital investment in the case of other units. (ii) & (iii) ........ 3. ................". ---------------------------------------------------------------------- TT-2-780/XI-9(226)/94-U.P. Act 15-48-Order-95, dated March 31, 1995 Gazette dated March 31, 1995. "Whereas, the State Government is of the opinion that for promoting the development of certain industries in the State, it is necessary to grant exemption from or reduction in rate of tax to a new units and also to units which have undertaken expansion, diversification, modernisation or backward integration; Now, therefore, in exercise of the powers under section 4-A of the Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No. XV of 1948), hereinafter referred to the Act, the Governor is pleased to declare that : 1(A) ............. 1(B) in respect of any goods manufactured in a unit, other than the units of the type mentioned in Annexure II, which has undertaken 'expansion, diversification or modernisation' on or after April 1, 1995 but not later than March 31, 2000 in the areas mentioned in column 2 of Annexure I, no tax shall be payable or, as the case may be, the tax shall be payable at the reduced rates specified in column 4 of Annexure I, by the manufacturer thereof for the period specified in column 3 of the Annexure I, or till the maximum amount of tax relief by such exemption from or reduction in rate of tax as specified in column 5 of Annexure I is achieved, whichever is earlier, on the turnover of sales : (a) of the quantity of goods manufactured in excess of the base production in the case of units undertaking expansion or modernisation; and (b) of goods manufactured by the unit which are of a nature different from those manufactured earlier by such unit in the case of units undertaking diversification. 1(C) ................. 2. ................... 3. ................... 4. ................... 5. ................... 1(C) ................. 2. ................... 3. ................... 4. ................... 5. ................... 6. ................... 7. ................... Annexure I ------------------------------------------------------------------------ S. Location Total Exemption from or Monetary limit No. of unit period of reduction in the rate of up to which the exemption/ tax (denoted as percentage benefit of reduction of the rate of exemption from in the tax normally applicable or reduction in rate of under the Act to the the rate of tax tax. goods concerned) which, under the Act on any transaction of together with sale, shall not exceed the benefit of five per cent of the sale exemption from price. or reduction in -------------------------- the rate of tax Year In case of In case under the unit with a of Central Sales fixed other Tax Act, 1956 capital units. is admissible investment exceeding 50 crores. ------------------------------------------------------------------------ 1 2 3 4 5 ------------------------------------------------------------------------ A B C ------------------------- 1 ... Twelve ... ... ... years 250 per cent of the fixed capital investment or, as the case may be, the additional fixed capital investment 2.(i) Buland- Ten ... ... ... 200 per cent of shahar years the fixed capital investment or as the case may be, additional fixed capital investment. (ii) .......... (iii) .......... (iv) .......... 3. ............. ---------------------------------------------------------------------- Section 4-A(1) of the Act as was applicable for the relvant period reads as follows : "4-A. Exemption from trade tax in certain cases. ... ... 200 per cent of shahar years the fixed capital investment or as the case may be, additional fixed capital investment. (ii) .......... (iii) .......... (iv) .......... 3. ............. ---------------------------------------------------------------------- Section 4-A(1) of the Act as was applicable for the relvant period reads as follows : "4-A. Exemption from trade tax in certain cases. - (1) Notwithstanding anything contained in this Act, where the State Government is of the opinion that it is necessary so to do for increasing the production of any goods or for promoting the development of any industry in the State generally or in any districts or parts of districts in particular, it may on application or otherwise, in any particular case or generally, by notification, declare that the turnover of sales in respect of such goods by the manufacturer thereof shall, during such period not exceeding twelve years from such date on or after the date of starting production as may be specified by the State Government in such notification, which may be the date of the notification or a date prior or subsequent to the date of such notification, and where no date is so specified from the date of first sale by such manufacturer, if such sale takes place within six months from the date of starting production and in any other case from the date following the expiration of six months from the date of starting production, and subject to such condition as may be specified, be exempt from trade tax on sale of goods whether wholly or partly or be liable to tax at such reduced rate as it may fix. Provided ............." Explanation 4 to section 4-A of the Act defines "Fixed capital investment" and provides the procedure for determining the fixed capital investment which read as follows : "(4) 'Fixed capital investment' 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 for use in any other factory or workshop in India; Provided that - (a) for the purposes of determining investment in land and building only the following shall be taken into account, - (i) investment in only such portion of land and building as is necessary for the establishment or running of the factory or workshop of the unit; (ii) expenses incurred in registration of land and building under the provisions of the Registration Act, 1908 and in development of land as development charges payable to any statutory body; (iii) the value of land or building already owned and given by the proprietor, partner, managing director, promoter, director, or holding company as his or its share in the capital in case the unit is established in such land or building; (iv) the amount or proportionate amount paid or payable as premium for the period for which exemption under section 4-A is granted on account of lease and the expenses incurred on registration of the lease deed under the Registration Act, 1908 in case the unit is established in land or building taken on lease; (v) the investment in land or building which is necessary for establishing or running the unit under some statutory obligation. (b) for the purposes of determining investment in plant, machinery, equipment, apparatus, components, moulds, dyes, jigs and fixtures only the following shall be taken into account : (i) investment whether by means of purchase, hire or lease in such plant, equipment, apparatus, components and machinery as is necessary for the establishment or running of the factory or workshop; (ii) investment as is necessary under some statutory obligation; and (iii) expenses incurred in erection and installation of such plant and machinery and bringing it to the site. (c) the State Government may, by notified order specify the procedure for determining fixed capital investment." Explanation 5 to section 4-A of the Act provides for eligibility of units for availing facility of exemption on ground of undertaking expansion, diversification or modernization which reads as follows : "5. (c) the State Government may, by notified order specify the procedure for determining fixed capital investment." Explanation 5 to section 4-A of the Act provides for eligibility of units for availing facility of exemption on ground of undertaking expansion, diversification or modernization which reads as follows : "5. 'Unit which has undertaken expansion, diversification or modernisation' means an industrial undertaking - (a) of a dealer who is not a defaulter in payment of any dues under 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, - (i) of a nature different from those manufactured earlier by such undertaking in case of units undertaking diversification; and (ii) manufactured in excess of base production in such undertaking in case of units undertaking expansion or modernisation, falls at any time after March 31, 1990. (c) the production capacity whereof has increased by at least twenty-five per cent as a result of expansion or modernisation or wherein goods of a nature different from those manufactured earlier are manufactured after diversification; (d) wherein an additional fixed capital investment of at least twenty-five per cent of such original fixed capital investment (without providing for depreciation) is made; (e) which has been established within the same district in which the existing industrial unit is established." Since in both the revisions questions involved are different it would be convenient to deal with them separately. Hence they are being dealt with separately. Trade Tax Revision No. 700 of 1997 The submission of Sri Bharat Ji Agarwal, Learned Senior Counsel appearing for the revisionist, is that the revisionist had applied for exemption from payment of sales tax in view of the notification dated July 27, 1991 extract of which has been reproduced above. His submission is that since the revisionist had undertaken expansion of his unit between April 1, 1990 to March 28, 1994, the unit was entitled to exemption on the total fixed capital investment as it existed prior to the date of the making of the application or the total fixed capital investment which included the fixed capital investment prior to April 1, 1990 and additional fixed capital investment made between the period from April 1, 1990 to March 28, 1994. He further submits that the Tribunal has committed error in not granting the benefit claimed by the revisionist by adverting to the provisions of subsequent notification dated March 31, 1995 extract of which has been reproduction above. His submission is that when the revisionist was granted eligibility certificate in view of the notification of 1985 as reproduced above, the exemption from payment of tax was on the total turnover of sales and was not relatable to the fixed capital investment by the dealer. By notification dated July 27, 1991 the benefit in exempting the dealer from payment of sales tax was curtailed by making it relatable to the fixed capital investment which in the case of new units means the capital investment made after April 1, 1990 and not later than 31st day of March, 1995 whereas in the case of existing units which had undertaken expansion, diversification or modernisation on or before April 1, 1990 but not later date of March 31, 1995 it meant total fixed capital investment, i.e., original fixed capital investment plus additional fixed capital investment. The benefit granted was curtailed 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 other units so far as the district Bulandshahar was concerned. He further points out that by notification dated March 31, 1995 the exemption from payment of tax under section 4-A of the Act was further curtailed by making the distinction between fixed capital investment and additional fixed capital investment. In the case of new units the exemption was to the extent of 200 per cent of the fixed capital investment and in other cases, i.e., in cases where already existing units had undertaken expansion, diversification and modernisation after April 1, 1995 but not later than March 31, 2000 the benefit of exemption from payment of sales tax was curtailed to the amount of additional fixed capital investment. Similarly under notification dated December 26, 1985, the period of exemption to be enjoyed by the unit situated in district Bulandshahar having fixed capital investment exceeding Rs. 3 lakhs was six years whereas under notification dated July 27, 1991 it was for nine years in respect of industries/units with fixed capital investment exceeding Rs. 50 crores. Similarly under notification dated December 26, 1985, the period of exemption to be enjoyed by the unit situated in district Bulandshahar having fixed capital investment exceeding Rs. 3 lakhs was six years whereas under notification dated July 27, 1991 it was for nine years in respect of industries/units with fixed capital investment exceeding Rs. 50 crores. By notification dated March 31, 1995 the benefit of exemption to be enjoyed was to the extent of 10 years in cases of units with a fixed capital investment exceeding Rs. 50 crores which were situated in district Bulandshahar or in other districts as described in the Schedule appended to the notification. It is submitted that the Tribunal had committed error in making a distinction between the fixed capital investment and the additional fixed capital investment by adverting to the provisions of notification dated March 31, 1995 which has nothing to do in the case of the revisionist. Shri B. K. Pandey, learned Standing Counsel, appearing for the respondents has submitted that the revisionist had never applied for exemption in respect of original investment of Rs. 16,21,54,852. He has also submitted that even before the Tribunal also no claim for relief in respect of original fixed capital investment to the tune of Rs. 16,21,54,852 was made which is evident from the reading of the opening paragraph of the judgment of the Tribunal. It is also submitted that in the grounds of appeal before the Tribunal several issues might have been raised but if the revisionist did not opt to press the grounds in question relating to the fixed capital investment of Rs. 16,21,54,852 at the time of arguments before the Tribunal it cannot be permitted to raise those grounds in this revision before this Court. In case the point was pressed and canvassed before the Tribunal and the Tribunal omitted to notice the same, the revisionist ought to have approached the Tribunal. It is also submitted that the letter dated January 24, 1997 by the convener of the Divisional Level Committee addressed to the applicant also reiterates that the revisionist had disagreed with treating the capital investment of Rs. 24 crores 15 lakhs and odd as fixed capital investment as the revisionist had claimed exemption in respect of Rs. 54.51 crores as fixed capital investment and the revisionist's own case is that he was claiming exemption on the basis of Rs. 24 crores 15 lakhs and odd as fixed capital investment as the revisionist had claimed exemption in respect of Rs. 54.51 crores as fixed capital investment and the revisionist's own case is that he was claiming exemption on the basis of Rs. 54.51 crores as fixed capital investment. It is next submitted that otherwise also the revisionist is not entitled to claim benefit of investment of Rs. 16,21,54,852. It is submitted that a new unit after March 31, 1990 is defined in explanation (2) of section 4-A of the Act whereas a unit which has undertaken expansion, diversification and modernisation is defined in explanation (5) to section 4-A of the Act. He has submitted that the fixed capital investment defined in explanation (4) to section 4-A of the Act is relatable to a new unit as also to the unit which has undertaken expansion, modernisation and diversification and the same has to be suitably read in case of new unit or in the case of expanded unit. In the case of the unit undertaking expansion, etc., the fixed capital investment should be taken as fixed capital investment made in expansion, diversification and modernisation. Since the notification dated July 27, 1991 deals with a new unit as also the unit which has undertaken expansion, diversification and modernisation, the expression "fixed capital investment" in the case of units undertaking expansion, diversification and modernisation should be treated to mean the capital investment made in respect of such modernisation, expansion or diversification and not the total investment including the investment as it stood before undertaking expansion, modernisation or diversification, etc. It is submitted that the words "by the manufacturers thereof" either in sub-clause (1-A) and sub-clause (1-B) of the notification dated July 27, 1991 clearly refer to the goods manufactured by the new unit or the goods manufactured by the expanded unit and in the case of expansion the facility will commence when the goods are manufactured in excess of the base production. In nutshell the submission of Shri B. K. Pandey, learned Standing Counsel and Shri Ashok Mehta, learned Chief Standing Counsel is that fixed capital investment in the case of expanded unit is additional fixed capital investment and not total fixed capital investment and the facility of exemption is to be granted only in respect of the goods manufactured by the expanded units and not by the existing units. A reference has also been made to a circular dated June 30, 1993 being circular No. New Delhi, Sa.Ka.Mu.-18(93-94)/467/Bikrikar Karyalaya Ayukta Bikrikar Uttar Pradesh (Nai Ikai Anubhag), Lucknow, and it is argued that exemption under the scheme of expansion shall be limited to additional fixed capital investment only. In reply Sri Bharat Ji Agrawal, learned Senior Counsel, has submitted that the application for exemption under section 4-A of the Act copy whereof is appended to the revision application as annexure 1 is in statutory pro forma. Para 6 of the said application relates to giving of particulars of the fixed capital investment, production capacity, production in the last five consecutive assessment years and dues, if any, payable by the unit under the U.P. Trade Tax Act and the Central Sales Tax Act, etc. It is submitted that under heading "a" fixed capital investment four columns are provided, one relates to particulars, the other relates to original investment without giving margin for depreciation on August 12, 1988, third relates to additional investment in expansion, etc., on the date of commencement of the period of facility and the fourth column relates to certificate of valuation of additional fixed capital investment. It is submitted that there is no column in the statutory pro forma for making an application as to in respect of how much amount the exemption is claimed. The exemption is to be granted in accordance with the provisions contained in the Act or as notified by the relevant notification which in the present case (notification dated July 27, 1991), speaks of fixed capital investment and not of additional fixed capital investment whereas a distinction was made by the subsequent notification dated March 31, 1995 in fixed capital investment and additional fixed capital investment. It is further submitted by him that in the memo of appeal filed before the Tribunal a specific ground being ground No. 1 of the appeal the appellant had stated that the fixed capital investment of the appellant unit is Rs. 7,617.87 lakhs and in ground No. 3 of the grounds of appeal it was specifically stated that the appellant had given the details of each and every investment made under the head fixed capital investment as defined under section 4-A of the Act. Hence the Divisional Level Committee ought to have mentioned the fixed capital investment as Rs. 7,617.87 lakhs and in ground No. 3 of the grounds of appeal it was specifically stated that the appellant had given the details of each and every investment made under the head fixed capital investment as defined under section 4-A of the Act. Hence the Divisional Level Committee ought to have mentioned the fixed capital investment as Rs. 7,617.87 lakhs which includes original fixed capital investment and additional fixed capital investment. It is submitted that original fixed capital investment includes both original investment as well as additional investment and both are part and parcel of the fixed capital investment of the entire unit and the benefit of exemption in the notification dated July 27, 1991 was to the monetary limit to the extent of entire fixed capital investment of the industrial unit. As to the second leg of argument of the learned Chief Standing Counsel the submission of Sri Bharat Ji Agrawal is that clause (4) of the notification dated July 27, 1991 only provides that in determining the additional fixed capital investment referred to in sub-clause (d) of clause (5) of the explanation in the case of units which have undertaken expansion, etc., investment up to the date of commencement of the period of facility that shall be taken into account. This clause (d) is only for the purposes of determining the field of eligibility of 25 per cent investment as mentioned in sub-clause (4) of the explanation to section 4-A of the Act and not for the purposes of determining the fixed capital investment to the extent of which the benefit is to be granted to a new unit. As to the reference of the circular Shri Bharat Ji Agrawal has submitted that the circular issued by the department is contrary to the notification dated July 27, 1991. In view of the decision of the Division Bench of this Court in the case of Hindustan Reprographics Limited v. State of Uttar Pradesh [1989] 72 STC 424; 1988 UPTC 1232 the statutory notification cannot be overridden by clause (2) of circular dated June 13, 1993. As already pointed out above, the preliminary objection taken on behalf of the Revenue is that the revisionist had applied for exemption in respect of the original investment of Rs. 16,21,54,852. As already pointed out above, the preliminary objection taken on behalf of the Revenue is that the revisionist had applied for exemption in respect of the original investment of Rs. 16,21,54,852. In support of this submission reference has been made to the application as contained in annexure 1 to the revision application, letter by Joint Director of Industries, Western Region, Meerut, as contained in annexure 3 to the revision application and to the order of the Tribunal. It is submitted that in the application it is nowhere stated that the exemption was being claimed in respect of total fixed capital investment of Rs. 76,17,87,532. It is not disputed that application as contained in annexure 1 to the revision application is in statutory form provided under the Rules. Column No. (6) of the application relates to furnishing of details of - (a) fixed capital investment, (b) production capacity, (c) production of last five consecutive assessment years and (d) dues, if any, payable by the unit under the U.P. Trade Tax Act or Central Sales Tax Act or under the Sales Tax Loan Scheme administered by Pradeshiya Industrial and Investment Corporation of Uttar Pradesh. A perusal of this form would show that it does not provide any column wherein the applicant is required to make mention of the total amount with regard to which the exemption is claimed. Under sub-cluse (a), i.e., fixed capital investment of para 6 of the application four column are given. The first column refers to the investment in land, investment in building and investment in plant and machinery, etc. Second column related to the amount of original investment as on August 12, 1988. Third column relates to additional investment in expansion, diversification or modernisation on the date of commencement of the period of facility which in the case of applicant is March 28, 1994 and column No. 4 relates to certificate of valuation of additional fixed capital investment. There is nothing in the application from which it can be inferred that the revisionist had applied for grant of facility of exemption under section 4-A in respect of additional fixed capital investment on modernisation only. The other document, annexure 3, is copy of a letter written by the Joint Director of Industries which is addressed to the revisionist. There is nothing in the application from which it can be inferred that the revisionist had applied for grant of facility of exemption under section 4-A in respect of additional fixed capital investment on modernisation only. The other document, annexure 3, is copy of a letter written by the Joint Director of Industries which is addressed to the revisionist. This cannot be said to be an admission of revisionist although it is stated that by the said application the revisionist had requested for grant of eligibility certificate in respect of Rs. 54,51,03,544. Copy of the said application has not been filed by the respondents nor any reference to the said application was made during arguments. It is true that in the opening para of the judgement the Full Bench of the Tribunal had made a reference that the claim of the dealer is that his unit should have been granted exemption from payment of tax with regard to Rs. 54,51,03,544 on account of expansion of unit taken by him. But it has been rightly pointed out by Shri Bharat Ji Agrawal that this was not correctly stated by the Tribunal. He has drawn attention of the court to the memo of appeal, copy of which has been filed with supplementary affidavit dated September 23, 1999. The first prayer made in the said memo of appeal was that the order passed by the Divisional Level Committee be modified and the fixed capital investment of the unit be mentioned as Rs. 7617.87 lakhs in place of Rs. 24,15.05 lakhs in the eligibility certificate issued under section 4-A of the Act. Perusal of grounds Nos. 3 and 4 also shows that the revisionist had claimed before the Tribunal that he was entitled to benefit of additional fixed capital investment as defined under section 4-A of the Act and the Divisional Level Committee ought to have mentioned the fixed capital investment of Rs. 76,17.87 lakhs which includes the original fixed capital investment. It appears that the Tribunal has misread the prayer of the revisionist in the memo of appeal and has wrongly stated in para first of the order that the appellant claimed exemption in respect of Rs. 54,51,03,544 only. 76,17.87 lakhs which includes the original fixed capital investment. It appears that the Tribunal has misread the prayer of the revisionist in the memo of appeal and has wrongly stated in para first of the order that the appellant claimed exemption in respect of Rs. 54,51,03,544 only. It may further be seen that the Tribunal was under the wrong impression that the revisionist was entitled to apply for exemption only in respect of fixed capital investment/additional fixed capital investment and in concluding para of the judgment the Tribunal having made a reference to notification dated March 31, 1995 wrongly observed that under the said scheme fixed capital investment or additional fixed capital investment both have been included in respect of units having capital investment of more than Rs. 50 crores and both the exemptions to the scheme are similar. It held that since in the case of the appellant a sum of more than Rs. 50 crores have been invested under the expansion scheme, a unit was entitled to benefit of additional fixed capital investment only in both the schemes. It appears that the Tribunal has confused that the schemes of July 27, 1991 and March 31, 1995 were similar schemes and the same benefit was available in both the schemes. Extracts of the three schemes dated December 26, 1985, July 27, 1991 and March 31, 1995 have been reproduced above. A perusal of the December 26, 1985 scheme would show that the exemption from payment of tax for the period specified in column 3(b) in respect of units with capital investment exceeding three lakh rupees was 6 years which were situated within the local limits of district Bulandshahar. There was no limit of exemption and the exemption was in respect of total tax liability for the said period. There was no co-relation between the benefit granted and the fixed capital investment except that the fixed capital investment should have been exceeding Rs. 3 lakhs. In the second scheme dated July 27, 1991 the benefit of exemption granted under the earlier scheme of 1985 was curtailed to some extent. A distinction was made between the new units and the already existing units which have undertaken expansion, diversification and modernisation on or after April 1, 1990 but not later than March 31, 1995. The benefit of exemption was available to certain percentage of the fixed capital investment. A distinction was made between the new units and the already existing units which have undertaken expansion, diversification and modernisation on or after April 1, 1990 but not later than March 31, 1995. The benefit of exemption was available to certain percentage of the fixed capital investment. So far as the units situated in district Bulandshahar were concerned, the exemption was to the extent of 150 per cent of the fixed capital investment in the case of small-scale units and 125 per cent fixed capital investment in the case of other units. In the third scheme dated March 31, 1995 the benefit of exemption was further curtailed. It also made distinction between the new units and the units which have undertaken expansion, diversification and modernisation on or after April 1, 1995 but not later than March 31, 2000. From perusal of annexure 1 to the said scheme it would be evident that a distinction was made between the fixed capital investment and additional fixed capital investment. In the case of new units the exemption was to the extent of 250 per cent or 200 per cent of the fixed capital investment whereas in the case of units undertaking expansion, diversification or modernisation the benefit was only to the extent of additional fixed capital investment. Therefore, observation of the Tribunal that similar benefit was granted under the two schemes of 1991 and 1995 is apparently erroneous and based upon wrong assumption of facts. It is clear from the comparison of the two schemes that benefit of exemption under section 4-A under the scheme of 1991 was in respect of fixed capital investment whereas under the scheme of 1995 the exemption to the units undertaking expansion, modernisation or diversification, the limit of exemption was only to the extent of additional fixed capital investment. The submission of Sri Bharat Ji Agrawal, learned counsel for the revisionist is that since the notification dated July 27, 1991 grants exemption in respect of fixed capital investment and does not make only distinction between the fixed capital investment and the additional fixed capital investment, the revisionist was entitled to exemption on total fixed capital investment which includes the fixed capital investment as on August 16, 1988 and additional fixed capital investment made by the revisionist between April 1, 1990 till March 28, 1994. On the other hand, the submission of Sri B. K. Pandey, learned Standing Counsel and Shri Ashok Mehta, learned Chief Standing Counsel is that fixed capital investment in the case of expanded unit is additional fixed capital investment and not the total fixed capital investment and the facility of exemption is to be granted only in respect of additional fixed capital investment. In support of their submissions reference is made to explanation (2) and explanation (5) of section 4-A which define and explain "new unit" after March 31, 1990 and unit which has undertaken expansion, diversification or modernisation. They have also referred to definition of "fixed capital investment" as given in explanation (4) to section 4-A of the Act. It is also submitted that the department had also issued a circular dated June 30, 1993 referred to above and it is argued that according to the circular exemption under the scheme shall be limited to fixed capital investment. The controversy is whether the words "fixed capital investment" employed in column 5 of Annexure 1 to notification dated July 27, 1991 should be interpreted to mean the total fixed capital investment, viz., investment as on August 16, 1988 plus additional fixed capital investment from April 1, 1990 to March 28, 1994 by a unit which has undertaken modernisation or in case of such unit it should be interpreted to mean only additional fixed capital investment made by the unit from April 1, 1990 to March 28, 1994. Section 4-A of the Act has made distinction between a new units during the period ending with March 31, 1990 and new unit after March 31, 1990 but to my mind, that does not have any bearing on the controversy in hand. Similarly explanation (5) of section 4-A explains what would be meant by the expression "the unit which has undertaken expansion, diversification or modernisation". Learned Chief Standing Counsel has drawn the attention of the court to sub-clause (d) of the aforesaid explanation which provides that such a unit means wherein an additional fixed capital investment of at least twenty five per cent of such original fixed capital investment (without providing for depreciation) is made. Learned Chief Standing Counsel has drawn the attention of the court to sub-clause (d) of the aforesaid explanation which provides that such a unit means wherein an additional fixed capital investment of at least twenty five per cent of such original fixed capital investment (without providing for depreciation) is made. On the strength of the above provision it is argued that sub-clause (d) of explanation (5) clearly provides that additional fixed capital investment in case of a unit undertaking modernisation should be at least 25 per cent of such original fixed capital investment. Shri Bharat Ji Agrawal, learned counsel for the revisionist, has rightly pointed out that the explanation as aforesaid provides only with regard to the field of eligibility. By explaining as to what would be meant by a unit which has undertaken expansion, etc., the explanation provides as to which unit shall be eligible for facility of exemption under section 4-A of the Act. In my view also sub-clause (d) of explanation (5) has nothing to do with the extent of benefit of exemption which can be granted to a unit undertaking modernisation, expansion or diversification. Then learned Standing Counsel and the learned Chief Standing Counsel have made a reference to explanation (4) of section 4-A of the Act and have pointed out that the expression "fixed capital investment" is relatable to a new unit as also to the new unit which has undertaken expansion. Therefore, fixed capital investment should be suitably read in the case of new unit and in the case of unit undertaking expansion to mean total fixed capital investment in the case of new unit and additional fixed capital investment in the case of unit undertaking expansion. Explanation (4) to section 4-A of the Act has been reproduced above. In first part of it explanation (4) provides that what would be meant by the fixed capital investment. According to the explanation it means that the investment in land, building and such 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. Second part of the explanation provides how the fixed capital investment may be computed or determined. Clause (c) of explanation (4), however, provides that the State Government may, by notified order, specify the procedure for determining the fixed capital investment. Second part of the explanation provides how the fixed capital investment may be computed or determined. Clause (c) of explanation (4), however, provides that the State Government may, by notified order, specify the procedure for determining the fixed capital investment. The notification dated July 27, 1991 has provided as to how the fixed capital investment as defined in clause (4) of the explanation in the case of new units or in the case of additional fixed capital investment referred to sub-clause (d) of explanation (5) is to be computed. It provides that in determining the fixed capital investment the investment in only such land, building, plant, machinery, equipment, apparatus, components or as the case may be such additional land, building, plant, machinery, equipment, apparatus and components shall be taken into account as were acquired on or before the relevant date of commencement of the period of facility notified under sub-section (1) of section 4-A of the Act. This clause (4) of the notification thus provides only as to how the fixed capital investment in the case of new unit and additional fixed capital investment are to be computed. It does not provide that in the case of unit undertaking modernisation, expansion or diversification only additional fixed capital investment shall be considered and the limit of exemption as provided in column 5 of annexure 1 shall be the limit to the extent of additional fixed capital investment in the case of unit undertaking modernisation, diversification or expansion. It may be seen here that such a distinction was made in the subsequent notification dated March 31, 1995 where the benefit of exemption in payment of tax in the case of unit undertaking modernisation, expansion or diversification was relatable to additional fixed capital investment. Column 5 of annexure 1 to the notification dated March 31, 1995 provided the monetary limit up to which exemption from or reduction in the rate of tax is admissible. It provides the monetary limit of 200 per cent of the fixed capital investment in case of new units and the limit of additional fixed capital investment in the case of units undertaking modernisation, diversification and expansion. This is with respect to industries or units situated in district Bulandshahar or other areas of the like category. It provides the monetary limit of 200 per cent of the fixed capital investment in case of new units and the limit of additional fixed capital investment in the case of units undertaking modernisation, diversification and expansion. This is with respect to industries or units situated in district Bulandshahar or other areas of the like category. It is argued on behalf of the opposite parties that subsequent notification cannot be taken into consideration for construing the provisions of the notification under which the benefit of exemption is being claimed. In reply Shri Bharat Ji Agrawal has made a reference to a decision of the honourable Supreme Court in Pappu Sweets and Biscuits v. Commissioner of Trade Tax, U.P., reported in [1998] 111 STC 425; 1998 UPTC 1086 and has submitted that in case of doubt subsequent notification can be looked into to interpret the notification dated July 27, 1991. He has also submitted that the object of the notification providing for exemption is to increase industrial activities and encourage new unit or the units undertaking modernisation, diversification or expansion. It is submitted that the notification should be construed in a reasonable and purposive manner so as to advance the objective of the provisions. In support of his submission Shri Agrawal has referred to the decision of the honourable Supreme Court in Commissioner of Sales Tax v. Industrial Coal Enterprises [1999] 114 STC 365; 1999 UPTC 250 . In the first case of M/s. Pappu Sweets and Biscuits [1998] 111 STC 425; 1998 UPTC 1086 , the honourable Supreme Court was considering whether toffee is sweetmeat or a commodity, of a like nature and therefore, the appellant's industrial units making toffees, though newly set-up, were not entitled to the benefit of exemption from payment of sales tax under notification dated July 27, 1991, issued by the State of Uttar Pradesh. Annexure II provided list of the industries not entitled to the facility of exemption from or reduction in rate of tax and entry 18 of the said annexure II included unit making sweetmeat, namkin, reori, gazak and commodities of like nature and restaurants. Similar annexure II is the notification dated March 31, 1995 which contained list of units not entitled to facility of exemption. Similar annexure II is the notification dated March 31, 1995 which contained list of units not entitled to facility of exemption. Entry 8 in the said notification included making sweetmeats, namkin, reori, gazak (but excluding such confectionery manufacturing units as are registered under the Factories Act, 1948) and restaurant. While arguing before the honourable Supreme Court that sweetmeats does not include confectionery items like toffee a reference was made to the subsequent notification. It was observed by the honourable Supreme Court in para 13 of the judgment (para 12 in STC) that : "learned counsel submitted that subsequent legislation can be looked at in order to see what is the proper interpretation to be put upon the earlier legislation when the earlier legislation is found to be obscure or ambiguous or capable of more than one interpretation. In support of his contention, he relied upon the decisions of this Court in State of Bihar v. S. K. Boy [1996] Supp. SCR 259 and Jogendra Nath Naskar v. Commissioner of Income-tax, Calcutta [1969] 3 SCR 742. In Naskar's case [1969] 3 SCR 742, this Court quoted with approval the following observations made in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 2 KB 403 : 'I think it is clearly established in Attorney-General v. Clarkson (1900) 1 QB 156 at pages 163, 164 that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier Act'." Thus the honourable Supreme Court took the view that subsequent legislation may be looked into in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. Therefore, subsequent notification can be looked into for interpreting the true meaning of expression "fixed capital investment" as employed in column 5 of annexure I to the notification dated July 27, 1991. Therefore, subsequent notification can be looked into for interpreting the true meaning of expression "fixed capital investment" as employed in column 5 of annexure I to the notification dated July 27, 1991. It has already been found above that earlier under the notification of 1985 the exemption was unlimited and was not related to fixed capital investment except that the period of exemption in case of units with capital investment not exceeding three lakhs rupees was different than the units with capital investment exceeding Rs. 3 lakhs. The notification dated July 27, 1991 curtailed the monetary limit to certain percentage of fixed capital investment as provided in column 5 of the annexure I. The notification dated March 31, 1995 further curtailed the monetary limit by making a distinction between fixed capital investment and the additional fixed capital investment. The benefit to new units was available to the monetary limit of certain percentage of fixed capital investment as provided in column 5 of annexure I whereas in the case of unit undertaking modernisation, expansion or diversification the monetary limit of exemption available was to the extent of additional fixed capital investment only. Thus under notification dated July 27, 1991 the intention of the Government appeared to be to grant exemption with regard to fixed capital investment which included in the case of the revisionist fixed capital investment as on August 16, 1988 and additional fixed capital investment between April 1, 1990 to March 28, 1994. Shri Bharat Ji Agrawal, learned counsel for the revisionist has rightly pointed out that the provisions for exemption are meant for the purposes of increasing the production of the goods and promoting the development of the industries in the State. Such provisions though to be construed strictly but should be construed in reasonable and purposive manner so as to advance the objective of the provision. The honourable Supreme Court in the case of Commissioner of Sales Tax v. Industrial Coal Enterprises [1999] 114 STC 365; 1999 UPTC 250 made the following observations in paras 6, 11 and 12 of the judgment : "6. Admittedly the provisions for exemption from sales tax have been introduced in the Act for the purpose of increasing the production of goods and for promoting the development of industries in the State. Admittedly the provisions for exemption from sales tax have been introduced in the Act for the purpose of increasing the production of goods and for promoting the development of industries in the State. In fact, when the scheme called 'Grant of Sales Tax Exemption Scheme, 1982 to industrial units under section 4-A of the Sales Tax Act' was originally framed, it was expressly stated that the Government granted the facility of exemption in order to encourage the capital investment and establishment of industrial units in the State. The scheme contained various rules for grant of such exemption. The section itself has referred to the purpose for which the Government could grant such exemption. ..........