JUDGMENT:- K.J. Sengupta, J.:- By this application the petitioner has impugned the judgment and order of the learned Taxation Tribunal dated 8th January 2010 so far as it relates to refusing to grant remission of tax on the sale of excess production of goods and plastic scraps generated out of manufacturing of the finished product and all other reliefs in accordance with law. In spite of direction given by order dated 26th February 2010 no affidavit-in- opposition has been filed, hence, the application is taken up for hearing finally without any affidavit-in-opposition treating the statements made in application being true and correct. The short fact which culminates in present application is stated hereunder:- The petitioner was a registered dealer under the provision of West Bengal Sales Tax Act, 1994 (in short ‘1994 Act’) (since repealed), and now is a registered dealer under the provision of Value Added Tax Act. Undisputedly, the petitioner was and still is holding valid certificate of registration. The petitioner has been carrying on business of manufacturing of HIPS kitchenware and tableware. On 29th April 2002, the petitioner was granted Exemption Certificate (in short E.C) by the Assistant Commissioner of Commercial Taxes, Special Cell (hereinafter referred to as Commissioner). In terms of the E.C. the petitioner is entitled to enjoy the benefit of remission of tax for a period of 7 years commencing from 30th April 2002 however, actual benefit of exemption was extended initially for a period of one year commencing from 30th April 2002, and subsequently, it was extended up to April 29, 2005. The V.A.T. came into force with effect from 1st April 2005. Since the petitioner had hitherto been enjoying benefit of remission of tax under Section 41 of 1998 Act, it applied for renewal of E.C. for the period from April 30, 2005 to April 29, 2006 and then from 30th April 2006 to 30th April 2007. The said application, was rejected without hearing the petitioner by an order dated 29th February 2008 by the Commissioner. The said applications were then rejected on the ground that the petitioner failed to produce Books of accounts and relevant documents and also failed to explain annual capacity of production. The said order on being challenged before the learned Tribunal, was set aside by an order dated 15th of May 2008. The said applications were then rejected on the ground that the petitioner failed to produce Books of accounts and relevant documents and also failed to explain annual capacity of production. The said order on being challenged before the learned Tribunal, was set aside by an order dated 15th of May 2008. By this order, the learned Tribunal directed the Commissioner to examine the relevant records and documents produced and to pass reasoned order. The Commissioner pursuant to the said order heard the matter afresh and rejected the applications of the petitioner for renewal of E.C. on the ground that the petitioner’s annual production of finished goods has exceeded the limit of 400 Metric Ton as approved by the Director of Industries. The petitioners also made a claim for remission of tax on sales of plastic scraps generated during manufacturing of the finished goods and this claim is also disallowed by the Commissioner on the ground the plastic scraps had not been shown as an item of manufacture in the certificate issued by the Director of Industries. Challenging the second judgment and order of the Commissioner petitioner filed an application under Section 8 of the said Act. Learned Tribunal after hearing at length and considering the laws on this subject both on the point of rejection of the application for a renewal of the E.C. and also extending the benefit of remission of tax of this scrap materials granted part relief setting aside the subsequent order dated 29th February 2008 so far as it relates to rejection of prayer for renewal of eligibility, but the matter was remitted back for fresh hearing on this point and to pass order after giving reasonable opportunity to the petitioner by 31st March 2010. The prayer for granting tax remission in respect of the scrap materials was not allowed. After going through the application and the impugned judgment and order of the learned Tribunal we fail to understand when relief for setting aside of order dated 29th February 2008 was granted, why this action has been brought on the same subject. In this application it is also prayed that the order of the learned Tribunal in so far as it relates to refusal to grant remission of tax on the sale of excess production of the goods should be set aside. In this application it is also prayed that the order of the learned Tribunal in so far as it relates to refusal to grant remission of tax on the sale of excess production of the goods should be set aside. We have seen the Tribunal has granted the relief which the petitioner has asked for. We quote the relevant ordering portion of the learned Tribunal:- “Since we have already held that products in excess of the approved capacity cannot be ground for rejection of renewal of E.C., we set aside the order dated February 29, 2008 of the ACCT (SPC)” and then ultimately learned Tribunal asked the Commissioner to rehear the matter. Though the argument was advanced on this point extensively by Mr. Chakraborty without noticing this portion of the prayer and also the ordering portion of the learned Tribunal, we do not find any reason to examine this portion of the order far less to touch the same as the learned Tribunal has directed to re-hear the matter by 31st March 2010. We only clarify that the learned Commissioner concerned while hearing the matter must take note of the observation of the learned Tribunal. In the Eligibility Certificate the basis for granting remission of tax is the gross value of the fixed capital assets. Therefore, the gross value of the fixed capital assets should be basis not the excess production. The extent of percentage has also been mentioned in the said E.C. Taking note of this document as well as the observation of the learned Tribunal matter will be dealt with. As far as the second point is concerned namely, extending the benefit of remission of tax on the scrap said to have generated in course of manufacturing of the finished goods, we need to consider the same. Mr. Chakraborty has cited decision of the Madras High Court in JMB S. United v. State Industries Promotion Corporation of Tamil Nadu reported in 2007 (VST) 527 and also the Supreme Court decision rendered in case of ITC Vs. State of Andhra Pradesh, reported in 131 STC 276, on the question as to whether the scrap generated in course of manufacturing process of finished goods should be treated as finished goods or not. We have considered the ratio of the aforesaid two judgments so also the learned Tribunal. State of Andhra Pradesh, reported in 131 STC 276, on the question as to whether the scrap generated in course of manufacturing process of finished goods should be treated as finished goods or not. We have considered the ratio of the aforesaid two judgments so also the learned Tribunal. In those two judgments the court held that whatever emerges in the course of manufacturing process this amounts to a product and exemption may be granted as such, even though in reality it is byproduct. The basic principle of law for holding a particular goods being finished product or not has to be understood whether it is a left over raw materials or it has emerged in course of manufacturing process for which the unit was established. The aforesaid test could have been made applicable in this case but the Eligibility Certificate granted initially for the specified product namely, kitchenware and tableware. In view of specific mention of the product the scrap materials though being the byproduct and emerge out of the manufacturing process cannot be treated as finished product so as to extend benefit of remission of tax. The learned Tribunal on this issue has painstakingly analysed the decisions on this subject cited before it and found in this case the same is not applicable. We shall be doing injustice if we touch this portion of order of the learned Tribunal also. We, therefore, hold that the petitioner is not entitled to get any exemption for byproduct. If the matter has not been heard out by the Commissioner by this time, it should be heard out in terms of the direction of the learned Tribunal as early as possible preferably within one month from the date of communication of this order. It would be open to Mr. Chakraborty’s client to place any decision of any court before the Commissioner at the time of fresh hearing. There will be no order as to costs. I agree.