Upper Doab Sugar Mills Limited v. State of Uttar Pradesh
1971-11-26
R.L.GULATI, S.N.DWIVEDI
body1971
DigiLaw.ai
JUDGMENT S. N. Dwivedi, J. - In these petitions, the petitioners complain that the respondents are seeking to make an illegal exaction of various amounts as electricity duty from them. 2. Shri Shanti Bhushan, learned counsel for the petitioner in Writ No. 5878 of 1971, has advanced two arguments :- (i) Sec. 3 (c) of the U.P. Electricity (Duty)(Amendment) Act, 1970, is unconstitutional. (ii) The notification of the State Government dated September 30, 1970, is ineffective in levying the electricity duty on the petitioners. 3. The petitioners consume electricity from their own source of generation. Sec. 2 (d) of the U.P. Electricity (Duty) Act (hereinafter called the Act) defines the word "consumer". It means a person other than a licensee who is supplied with energy by a licensee, by a board, or by a State Government or Central Government. Sec. 2 (f) of the Act defines the word `licensee'. The petitioners will not be licensees within the meaning of the said term. Sec. 3 is the charging provision. It provided for levy of electricity duty on the energy consumed by a consumer. Sec. 3 of the Act was amended by the U.P. Electricity (Duty) (Amendment) Act, 1970. The amending Act substitutes Sec. 3 of the Act in the following manner : "(1) Subject to the provisions hereinafter contained, there shall be levied for and paid to the State Government on the energy- (a) sold to a consumer by a licensee, the Board, the State Government or the Central Government; or (b) consumed by a licensee or the Board in or upon premises used for commercial or residential purposes, or in or upon any other premises except in the construction, maintenance or operation of his or its works; or (c) consumed by any other person from his own source of generation,- a duty (hereinafter referred to as `electricity duty') determined at such rate or rates as may from time to time fixed by the State Government by notification in the Gazette, and such rate may be fixed either as a specified percentage of the rate charged or as a specified sum per unit. (2) In respect of clauses (a) and (b) of sub-sec. (1), the electricity duty shall not exceed twenty five per cent of the rate charged. . . . . . . . . . . . . . . . . . . . . . . .
(2) In respect of clauses (a) and (b) of sub-sec. (1), the electricity duty shall not exceed twenty five per cent of the rate charged. . . . . . . . . . . . . . . . . . . . . . . . . (3) In respect of clause (c) of sub-sec. (1), the electricity duty shall not be less than one paisa or more, than six paisa per unit. . . . . . . . . . . . . . . . . . . . . . . . ." 4. We have reproduced only the material portion of the substituted Sec 3. 5. The first argument is that the subject-matter of clause (c) of sub-sec. (1) of Sec. 3 and sub-sec. (3) is not a law with reference to Entry 53 of List II of the Seventh Schedule to the Constitution. Entry 52 reads :- " Taxes on the consumption or sale of electricity". It is said that the electricity is produced in the petitioner's factory and is thereafter consumed by the petitioner's factory and is thereafter consumed by the petitioner for the purposes of the factory. Such consumption does not fall within the 1. For light and fan. 2. For domestic power. 3. For cinema, theatre and talking picture apparatus. 4. Energy consumed by any other person form his own source of generation as referred to in clause (e) of sub-sec. (1) of Sec. 3 of the Act. meaning of the word "consumption" in Entry 53. 6. In Jiyajeerao Cotton Mills v. State of Madhya Pradesh, A.I.R. 1963 SC 414 a similar provision in the Central Provinces and Berar Electricity Duty Act, 1949 was questioned. The Supreme Court held that the provision was covered by Entry 53. We think that the decision of the Supreme Court is enough to dispose of the arguments advanced before us. No doubt, the specific argument advanced before us was not raised before the Supreme Court but by virtue of Article 141 the law declared by the Supreme Court is binding on us. Moreover, we find it difficult to appreciate the argument. Electricity generated in the factory and consumed in that very factory may be charged electricity duty under Entry 53. Entry 53 is to be given its widest amplitude. 7.
Moreover, we find it difficult to appreciate the argument. Electricity generated in the factory and consumed in that very factory may be charged electricity duty under Entry 53. Entry 53 is to be given its widest amplitude. 7. Coming to the second against, the State Government issued three notifications under substituted Sec. 3. The first Notification is not material for our purpose. It was issued on August 25, 1970. The Second notification was issued on August 29, 1970. It is material for our purpose. It reads materially : "In exercise of the power under sub-sec. (1), sub-sec. (2) and sub-sec. (3) of Sec. 3 of the U, P. Electricity (Duty) Act, 1952 . . . . . . . . . . . . . . The Governor is pleased to order that with effect from September 1, 1970, electricity duty on the energy consumed by the consumer will be levied at the following rates : 25 per cent of the rate charged. 25 per cent of the rate charged. 25 per cent of the rate charged. 1 paisa per unit." 8. The third notification was issued on September 30, 1970. It reads materially : "In exercise of the powers under Sec. 3 of the U.P. Electricity (Duty) Act, 1952 and in amplification of Government Notification . . . . . . . . . . . . dated August 26, and August 29, 1970, the Governor is pleased to order that with effect from September 1, 1970, electricity duty on the energy sold to the consumers Will be levied at the following rates : (A) On energy sold to a consumer by a licensee, the Board, the State Government or the Central Government, or consumed by a licensee or the Board in or upon premises used for commercial or residential purposes or in or upon other premises- (i) for industrial or motive power purposes, at medium, high or extra high voltage 1 Paisa per unit. (ii) for all purposes other than those mentioned in item (i) above 25 per cent of the rate charged. (B) On energy consumed from his own source of generation by person other than a licensee or appointed authority . . . . . . . . 1 Paisa per unit.
(ii) for all purposes other than those mentioned in item (i) above 25 per cent of the rate charged. (B) On energy consumed from his own source of generation by person other than a licensee or appointed authority . . . . . . . . 1 Paisa per unit. The Governor is further pleased to order that energy consumed in the process of generation of electricity by a person from his own source of general shall be exempt from the levy of Electricity Duty." 9. The argument is that the main part of the third notification imposes electricity duty on `the energy sold to consumers' and that sub-clause (B) and clause 2 of the notification are redundant and should be ignored. If that is so done then no electricity duty will he chargeable from the petitioners. We are wholly unable to accept this argument for various reasons. Firstly, Sec. 3, which is the charging section, levies duty on energy sold to a consumer by a licensee, the Board, the State Government or the Central Government or consumed by a licensee or the Board or consumed by any other person from this own source of generation. The fixation of rates of duty under clause (a), (b) and (c) of Sec. 3 is left to be determined by the State Government. The maximum of the rates for these charges is prescribed under sub-sec. (2) and (3) of Sec. 2. It is clear from the language of Sec. 3 that the notification which a State Government is entitled to issue under Sec. 3 is only in respect of rates. The notification cannot deal with the imposition of electricity duty. It is already imposed under Sec. 3. Accordingly, we are unable to attribute any significance to the phrase "energy sold to the consumers" in the notification. Secondly, the third notification expressly states that it was being issued in amplification of the notification dated August 29, 1970. The August notification expressly states that it was being issued under sub-sec. (1), (2) and (3) of Sec. 3. When we read the two notifications conjointly, it is plain that the Governor was fixing rates for the purposes of clauses (a), (b) and (c) in the notification. Thirdly, the third notification expressly prescribes rates for energy consumed by a licensee or the Board.
(1), (2) and (3) of Sec. 3. When we read the two notifications conjointly, it is plain that the Governor was fixing rates for the purposes of clauses (a), (b) and (c) in the notification. Thirdly, the third notification expressly prescribes rates for energy consumed by a licensee or the Board. Similarly, it expressly provides a rate for energy consumed by a person from his own source of generation. Clause (2) of the third notification also supports our view that the rates have been prescribed for various kinds of cases covered by Sec. 3. Lastly, the argument requires us to hold that the second part of sub-clause (A) sub-clause (3) and clause 2 of the third notification are redundant. Ordinarily, redundency is to be attributed in the last resort. If a provision of law can be read sensibly without rendering any part of it redundant, that interpretation is to be preferred to the one which makes a part of it redundant. 10. It is said that as the notification charges tax, it should be strictly construed. A taxing provision is no doubt strictly construed. But what is the meaning of strict construction. We think that where two constructions of the provision are fairly possible, then the strict construction principle requires us to accept the one which. favours in assessee and to reject the other which disfavours it. But where a provision of law is capable of one and only one construction, there is no room for play of the principle of strict construction. In this case, we are satisfied that when the third notification is read in the background of Sec. 3 of the earlier notification of August 29, it becomes plain beyond doubt that the Governor has prescribed the rate of electricity duty for electricity consumed by a person from his own source of generation. Accordingly, we find no force in the second argument. 11. Therefore, the writ petitions, fail and are dismissed, with costs.