Mewad Sheet Garb v. State of Rajasthan — 1980 DIGILAW 311 (RAJ)

M.C. JAIN, J.—These are three writ petitions raising a common question regarding the applicability of 1965 Notification in connection with recovery of the electricity duty. As all the three writ petitions have been argued together and as the main question is common to all of them, I propose to decide these writ petitions by this common order. 2. The petitioners are carrying on the business in cold storages and the Mewar Sheet Garh is also running an Ice Factory alongwith cold storage, though having two connections, but the supply of electricity is common for both the businesses. The petitioners case is that the State Government under proviso (3) to section 3 of the Rajasthan Electricity (Duty) Act, 1962 (Act No. 12 of 1962) (hereinafter referred to as "the Act"), issued the following Notification:- "Notification No. F. 16 (15) F.D./RT/14 Pt. file dated 1.11.65 published in Rajasthan Gazette Part IV-C, Extraordinary dated 1.11.65 : In exercise of the powers conferred by section 3 of the Rajasthan Electricity (Duty) Act, 1962 (Rajasthan Act 12 of 1962) and in supersession of Govt. Notification No F.9 (2)E &T/62-II dated the 26th March, 1962 and No.F. (6)FD/RT/63 dated the 2nd March, 1963, the State Government being of the opinion that it is expedient in public interest to do so, hereby-fixes, with immediate effect, five paise per unit as the rate at which the electricity duty shall be computed and subject to the conditions laid down in the third proviso to the said section, (a) remits, with immediate effect, the electricity duty on the energy consumed (i) in electrochemical industries, and (ii) in electro furnaces of electro, thermal industries, (b) remits with effect on and from the 1st November, 1964, the electricity duty on energy consumed by or in respect of any Municipal Board or Council or Panchayat or Panchayat Samiti or other authority for the purpose of, or in respect of public street lighting; and (c) reduces with immediate effect such duty on the energy consumed in industries, other than those mentioned in (a) above, in the manufacture, production, processing or repair of goods, to one paisa per unit." 3. According to the petitioners the energy is consumed in their industries for the manufacture, production, processing or repair of goods, so their cases are covered under clause (c) of the aforesaid Notification, so they are liable to be charged electricity duty @ one paisa per unit and they are not liable to be charged @ five paise per unit. The supplier was charging the electricity duty after the aforesaid Notification @ one paisa per unit, but in cases of Messers. Mewar Sheet Garh and Messers. Udaipur Cold Storage. Partapnagar, the audit party of the Commercial Taxes Department gave decision that their cases do not fall within the category of industry under clause (c) of the Notification, so they should be charged at the rate of five paise per unit instead of one paisa per unit. Both these petitioners thereafter were served with notices and bills by the supplier Messrs. Maharana Bhupal Electric Supply Co. Ltd., Udaipur, respondent No. 4, in their cases. Replies to the notices were given to them by the supplier denying the liability for payment of electricity duty at the enhanced rate. It was also stated by them that auditors have no authority in law to give any such directions. The matter can be referred to the Commercial Taxes Officer under rule 11 of the Rajasthan Electricity (Duty) Rules, 1970 (hereinafter referred to as "the Rules"). Despite replies to the notices, the supplier further called upon them to make payment of the arrears of electricity duty and on failure to make payment it was stated that supply of the electricity will be disconnected. These two petitioners referred the dispute under rule 11 of the Rules to the Commer-cial Taxes Officer, Udaipur, and copy of that reference was also sent to the supplier. Despite reference having been made, the supplier served the notice for payment, in default for dis-connection. 4. In the petition by Messrs. Sri Ganganagar Cold Storage (Private) Limited, the supplier is the Rajasthan State Electricity Board (hereinafter refe-rred to as "the RSEB")—Notice for arrears alongwith the bills was sent by the Assistant Engineer, RSEB. When a protest was made, it was stated by the Assistant Engineer that the petitioners industry is not covered by clause (c) of the Notification, as pointed by the Commissioner, Commercial Taxation, Rajasthan. When a protest was made, it was stated by the Assistant Engineer that the petitioners industry is not covered by clause (c) of the Notification, as pointed by the Commissioner, Commercial Taxation, Rajasthan. On 18-8-1973 the final notice was served on the petitioner for payment of electricity duty at the enhanced rate within a period of seven days failing which, it was informed that the power supply to the petitioner would be stopped. The petitioner produced a letter of the Commercial Taxes Officer, Sri Ganganagar, addressed to the Assistant Engineer, RSEB, Sri Ganganagar (Annex 5) a copy thereof was sent to the petitioner Messrs. Sri Ganganagar Cold Storage (Private) Ltd. By this letter the supplier was informed that the correct rate of electricity duty to be charged from the cold storage was at the rate of five paise per unit, which the supplier was asked to recover as arrears of the electricity duty from the cold storage. In this letter reference was made to the communication made by the Commissioner, Commercial Taxes, Rajasthan, Jaipur, No. F. 14(2) Tax/CCT/73/43 dated 20-4-73. In this petition it was stated that in case the supplier or other respondents wanted to charge the electricity duty at the rate of five paise per unit, they ought to have got the dispute decided by the Commercial Taxes Officer, respondent No. 5, and the supplier the respondent No. 4 had no right to demand the arrears unilaterally and should have referred the dispute for decision to respondent No. 5. The peti-tioner in all the writ petitions, thus, have challenged the levy of electricity duty at the enhanced rate. 5. In all the three writ petitions, on behalf of the respondents-non-petitioners, returns have been filed. Their case is that the petitioners are not covered under clause (c) of the Notification and so are liable to be charged electricity duty at the rate of five paise per unit. In the return filed in the petition of Messrs Sri Ganganagar Cold Storage, it is stated that as per direction of the Commissioner, Commercial Taxes, Rajasthan, Jaipur, issued vide No. F. 14(2) Tax/CCT/73/43 dated 20-4-1973 the cold storage business of the petitioner is not an industry connected with manufacturs production, processing or repair of goods as contemplated by clause (c) of the Notification and as such the concessional rate prescribed by the Notification is not applicable to the cold storage. It was stated that the petitioner did not file any application under rule 11 of the Rules. 6. In the other two writ petitions an objection was raised that the petitioners have presented an applications under rule 11 of the Rules and the applications are fixed for hearing, so the petitions are premature when the matter is already under consideration of the Commercial Taxes Officer, Circle A Udaipur. It is also stated that rule 11 also provides for an appeal against the order of the Commercial Taxes Officer. The petitioners have, therefore, not exhausted all the remedies available to them under the rules. 7. I have heard Messrs. M.L. Garg, and M.C. Bhoot, learned counsel for the petitioners, and Mr. S.C. Bhandari, learned counsel for the non-petitioners. 8. On behalf of the petitioners, principal arguments were advanced by Shri M.L. Garg. He submitted that in cold storages the air is processed to keep the desired temperature through physical and chemical agencies. Temperature and humidity control are maintained, which are essential for the treatment of the commodities kept in the cold storages to give them longer life and protect from deterioration. The petitioners keep potatoes, fruits and other commodities for their own as well as of other persons. The commodities are also graded and sorted out to make them marketable. The petitioners business of cold storages is an industry, where the energy is consumed in processing of goods preserved in the cold storages and so their case is covered under clause (c) of the Notification. Hence they are not liable to payment of enhanced rate of electricity duty. They are only liable to pay electricity duty at the reduced rate. It was urged that under proviso (3) of sec. 3 of the Act, the State Government is empowered to reduce or remit the electricity duty on the energy consumed by a consumer in any industry in the manufacture, production, processing or repair of goods, if it is of opinion that it is necessary or expedient in the public interest. In exercise of the power conferred by proviso (3) to section 3, the State Govern ment issued the aforesaid Notification and remitted the electricity duty in the cases covered by clauses (a) and (b) of the Notification and reduced the electricity duty in Cases covered under clause (c). In exercise of the power conferred by proviso (3) to section 3, the State Govern ment issued the aforesaid Notification and remitted the electricity duty in the cases covered by clauses (a) and (b) of the Notification and reduced the electricity duty in Cases covered under clause (c). The goods preserved under the cold storage, are made available to the community and the same may be made available on cheaper rates, so the State Government considered in the public interest to issue the notification even for industries where energy is consumed in merely processing of goods. In the cotext of the Act and the notification the expression "processing of goods" should be so construed and given meaning so as to include within the ambit of clause(c). cold storage as well. A direct authority has been cited by Shri Garg in support of his contention in support of his contention in Additional Commissioner of Income tax, Kanpur vs. Farrukhabad Cold Storage (P), Ltd.(l). 9. Shri S.C. Bhandari, learned counsel for the Revenue, on the other hand maintained that there in no processing of goods in the cold storages. Processing implies and involves some change in the goods. He submitted that it is true that processing cannot be equated with manufacture. In manufacture there is complete change of identity and a new and different article comes into being as known to the commercial world. Even in processing it is essential that the goods must undergo some change in shape, colour, nature, size etc. In cold storages, the goods are simply kept and taken out and they do not undergo any change. He pointed out that a common man cannot make any distinction between goods preserved in the cold storages and goods not so preserved. if any change takes place in scientific and technical sense, such change should not be noticed in connection with fiscal statutes, as it is well settled that while construing fiscal statues scientific or technical sense has no place and the words should be given their ordinary accepted meaning, as understood by the com-mon man. He urged that the potatoes, fruits and other articles, kept in cold storages, are not in any way processed. They are simply kept in a cold place for prevention of decay and deterioration and for preserving them. According to Mr. Bhandari, even lexicographers meaning may not be given to words while construing taxing statutes. He urged that the potatoes, fruits and other articles, kept in cold storages, are not in any way processed. They are simply kept in a cold place for prevention of decay and deterioration and for preserving them. According to Mr. Bhandari, even lexicographers meaning may not be given to words while construing taxing statutes. He referred to several citations where observations have been made with regard to expression "processing" in relation to goods. I shall be presently referring to the citations and deal with them. 10. Before I proceed to consider the arguments advanced by the learned counsel for the parties, I may make reference to the settled rule of construction for fiscal statutes. It is trite law that ordinary and every day meaning is to be adopted while construing fiscal statutes and such statutes have to be strictly construed. Even when exemption from taxation is provided, then such exemption also must be strictly construed and must not be extended beyond the expressed requirements of the language used. In Inder Singh vs. Sales Tax Officer, City Circle, Jodhpur (2) the Division Bench of this Court was considering the Notification issued under the Rajasthan Sales Tax Act, 1954, wherein handloom cloth was exempted and a question arose whether Durry was intended to be included in the exemption. This court considered that if the words cloth and covering are given their generic import "Durry" would appear to be included in the term. On the contrary, if a narrower interpretation is put, "Durry" would appear to be excluded. The submission of the learned counsel for the assessee to put beneficial construction, was turned down and Lord Halsbury, L.Cs observation in Inland Revenue Commissioner vs. Forrest (3) were referred that all exemptions from taxation increases the burden on other members of the community and should, therefore, be deprecated. Giving hand-loom cloth an ordinary meaning it was held that "Durry" was not intended to be included in the exemption. Giving hand-loom cloth an ordinary meaning it was held that "Durry" was not intended to be included in the exemption. The golden rule is that the words of a statute must prima facie be given their ordinary meaning and reference was made to the following observations of Lord Coleridge in R. vs. Petters (4)— "I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of the words used in Acts of parliament, words should be taken to be used in their ordinary sense, and we are therefore, sent for instruction to these books.* 11. In Commissioner of Income Tax, Kerala vs. Casino (Pvt.) Ltd. (5) the Court was concerned with the ambit of the term "manufacture" or "proces-sing of goods". That term was not defined by the parliament and in that connection it made the following observations: — "The term "manufacture or processing of goods or almost similar terms appear in many statutes where also such terms are not seen defined. However, the scope of these terms has been the subject of discussion in a number of judicial decisions. These decisions are only of limited assistance in the construction of the term with which we are concerned here since ultimately this work depend, to a considerable extent on the context of the enactment. It is now well settled that in construing a term used in a statute its meaning as it understood according to what is ascribed to it in common parlance in preference to its scientific or technical meaning has normally to be accepted. The legislature is supposed to have employed a term in the concerned statute not in its dictionary sense but as is understood by the common man or, in other words, in the "popular sense", meaning the sense in which the people conversant with the subject matter with which the statute is dealing will refer to it. The natural meaning, according to the accepted usages of English speech, must be given to the term. The context or the setting in which the term appears and the nature of the enactment is also of relevance in understanding the meaning of the term. It must be said here, by way of abundant caution, that though this is normally the rule, this need not be taken to be an absolute rule of construction. The context or the setting in which the term appears and the nature of the enactment is also of relevance in understanding the meaning of the term. It must be said here, by way of abundant caution, that though this is normally the rule, this need not be taken to be an absolute rule of construction. It is not difficult to visualise cases where a statute may employ a term to be read, in its peculiar context, according to its literal meaning and not in the popular or commercial sense." 12. It will have to be seen whether the term or expression "processing of goods" technically, literally or popularly or in the context of the enactment convey different senses and which meaning is to be given to this expression in the context of the provision in the Act. The expressions "process" and "processing of goods" have come up for consideration in some judicial decisions. I may first make reference to the direct solitary authority on which reliance has been placed by the learned counsel for the petitioner. In Addl. Commissioner of Income-tax, Kanpur vs. Farrukhabad Cold Storage (P) Ltd. (supra) the question was as to whether the assess-company is an "industrial company" within the meaning of sec. 2(7)(d) of the Finance Acts of 1966 and 1967. The word "industrial company" was defined in the Finance Act as a company which is mainly engaged in the business of generation or distribution of electricity or any other form of power or in the construction of ships or in the manufacture or processing of goods or in mining. In that case the assessee was running three cold storages and was claiming itself to be an industrial company within the meaning of sec. 2(7)(d) of the Finance Act. An argument was advanced on behalf of the Revenue that preservations of goods by cold storage is not processing of goods as is contemplated the Act and it was argued that the word "processing" occuring in the sub-sec. contemplates process which results in a finished article, i.e., it may be of the nature of manufacture. Whether the word "processing" as used in the sub-section means an activity which must result in the manufacture of goods. contemplates process which results in a finished article, i.e., it may be of the nature of manufacture. Whether the word "processing" as used in the sub-section means an activity which must result in the manufacture of goods. Their Lordships considered an English decision in Kilmarnok Equitable Co-operative Society Ltd. vs. Commissioners of Inland Revenue (6) and extracted the passages from the speeches of Lord President Glyde, Lord Guthrie, Lord Migdale and Lord Cameron on the terms "process" and "subjection of goods or material to any process" occuring in sec. 271(1) (c) of the Income Tax Act, 1952. as obtaining there. The learned judges expressed an agreement with the observations made by the four Lords and stated that "processing of goods" as used in sec. 2(7) (d)of the Finance Acts need not be of such a nature as to result in the manufacture of new goods. All that is required is that the goods or the materials must be adapted for a particular use. The various acts performed in respect of the goods or the subjection of the goods to a particular process need not be such as may lead to the production of a new article and the conclusions were fortified by reference to a decision of the Supreme Court in Union of India vs. Delhi Cloth and General Mills Co. Ltd. (7), where their Lordships specifically rejected the contention that processing and manufacture can be equated and the following passage was quoted from the speech of Das Gupta, J.— "To say, this is to equate processing to manufacture and for this we can find no warrant in law. The word manufacture used as a verb is generally understood to mean as bringing into existence a new substance and does not mean merely to produce some change in substance, however minor in consequence the change may be. This distinction is well brought about in a passage thus quoted in permanent edition Words and Phrases Vol. 26, from an American judgment. The passage runs thus: "Manufacture" implies a change, but every change is not a manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use." 13. Shri Bhandari pointed that in Addl. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use." 13. Shri Bhandari pointed that in Addl. Commissioner of Income Tax, Kanpurs case (supra) there was a concession made by the counsel for the Revenue that the potatoes which assessee concern stored were subjected to the process of refrigeration. After having noted the concession made by the counsel for the revenue, the learned Judge considered the meaning of the words "Process" and "processing" and reference was made to some dictionaries for the meaning of the expressions "process" and "processing" and other books were also referred in this connection. Thereafter the learned Judges concluded as under: — "Review of all these authorities clearly indicated that when articles like potatoes, as in the present case, are kept under refrigeration their decay is prevented. The temperature in the cold storages, admittedly, is regulated by use of machinery. Thus, the mere fact that the potatoes themselves, which are kept in the cold storage, do undergo any transformation and remain static, does not by itself mean that they are not subjected to any process of all during the period of storage. We have already held that the processing of goods need not lead to manufacture of new article. Preservation by refrigeration is a well known method for keeping edible things in good condition for temporary periods. But for refrigeration it would not be possible to keep things in edible state for a long period of time. During the period when they are kept in the cold storage they are subjected to the process of refrigeration." 14. Shri Bhandari submitted that in that case arguments on behalf of revenue proceeded on different premises and the matter was viewed in that light. The goods were subjected to the process of refrigeration was not disputed and the matter has not been thoroughly considered in this light that some perceptible change is a must in processing of goods. Where such change does not occur, it will not amount to processing of goods, although a question was posed in that case as to whether the act of subjecting the goods to a particular temperature for a long period of time, as is done is cold storage, amounts to processing of goods. Where such change does not occur, it will not amount to processing of goods, although a question was posed in that case as to whether the act of subjecting the goods to a particular temperature for a long period of time, as is done is cold storage, amounts to processing of goods. It may be pointed out that the learned judges did consider the question of transformation or bringing about of any change in the goods and observed that the mere fact that the potatoes themselves, which are kept in the cold storage, do not undergo any transformation and remain static, does not itself mean that they are not subjected to any process at all during the period of storage. Thus, it appears that this decision is a direct authority on the point involved in the present writ petitions. It is to be seen as to whether the view taken in this decision is correct or not and is to be adopted or not in the petitions in hand. 15. Shri Bhandari referred to a decision of the Supreme Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam vs. Pio Food Packers (8). In that case the question was that when pineapple fruit processed into pineapple slices for the purpose of being sold in sealed cans, whether it involves consumption of the original pineapple fruit 4 for the purpose of manufacture and whether the same falls within sec. 5A (l)(a) of the Kerala General Sales Tax Act, 1963. While dealing with the provision under Sec. 5A(l)(a) of the Act, it was observed that the provision envisages the consumption of a commodity in the manufacture of another commodity. The goods purchased should be consumed, the consumption should be in the process of manufacture, and the result must be the manufacture of other goods. Their Lordships were dealing with the case of manufacture and while dealing with the case observed that although a decree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues in its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it, and it was also observed that "commonly" manufacture is the end of one or more process through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. "With each process suffered, the original commodity experiences a change". It is this observation which has been relied upon by shri Bhandari, although their Lordships further observed that, "But it is only when the change, or a series of changes, take the commodity to the point where commercially, it can no longer be regarded as the original commodity but instead is recognised as a new and district article that a manufacture can be said to take place. Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it must be regarded as still retaining its original identity." 16. It may be pointed out that this question was not there before their Lordships whether any change is a must in processing of goods, though an observation has been made that an original commodity experince a change, when each process suffered. 17. Shri Bhandari then referred to Singh Engineering Works Pvt. Ltd. vs. Commissioner of Income-Tax (9). He invited my attention to the following observation of Satish Chandra, J. , as he then was, in his separate judgment at page 894, while considering the distinction between "manufacture" and "processing":- "The broad distinction between manufacture and processing is that manufacture involves bringing into existence of a new product, a product which is of a different chemical composition or whose integral structure is different from the raw materials. Processing, on the other hand, is doing specific acts to ther aw material in order to change its share or size, etc." 18. In that case the question was as to whether the assessee in dispute is a priority industry, enganged in the manufacture of production of any one or more of the articles or things specified in the list in the sixth Schedule of the Act. The assessee company was engaged in the manufacture of iron bars and rods out on ingots manufactured from scrap in its own electric furnance and also billets purchased from outside. The question before their Lordships was of manufacture or production and not of processing. 19. In Commi. The assessee company was engaged in the manufacture of iron bars and rods out on ingots manufactured from scrap in its own electric furnance and also billets purchased from outside. The question before their Lordships was of manufacture or production and not of processing. 19. In Commi. of Income-Tax, Kerala vs. Casino (Pvt.) Ltd. (supra) their Lordships were examining a question as to whether conversion of raw material into food in hotel amounts to "manufacture or processing of goods", sense a I need not consider the ambit of the word "manufacture". While dealing with the term "processing", it was observed in this case that "processing" has in one a wider meaning that the term "manufacture", as even manufacture may be a process. But in the context of the Act with which we are now dealing, namely the Finance Act, 1968, that does not appear to be the position. The definition of industrial company in Sec. 2(6)(d) of that Act refers to various categories of companies and one of them is that mainly engaged in the manufacture of processing of goods. It is evident from the context in which the word "processing is used that it is complementary to the term "manufacture" and therefore, would not be such as to cover manufacture also. In other words, activities of a nature in regard to goods which may not amount to manufacture but which would result in the doing of something to the goods to change or alter their form may be taken in by the term "processing". But still they did not consider it necessary to go into the scope of the term "processing," as the contention of the assessee is that there has been a material change or alteration in the goods resulting in the production of commercially different article, and if we find that notwithstanding this to be the case, it does not amount to manufacture, naturally the question as to the scope of the term "processing" need not be gone into further. The learned Judge, speaking for the court, further observed that "processing" in such context, would mean something less than the complete loss of identity of the goods which is the case when the food materials are prepared in the hotel. The learned Judge considered that in the popular sense it cannot be said that the assessee manufactures or processes goods in its hotel. The learned Judge considered that in the popular sense it cannot be said that the assessee manufactures or processes goods in its hotel. It would appear that the question had been disposed of in the popular sense. 20. In Omprakash Gupta v. The Commercial Tax Officer(l0) the question was whether the purchase of camphor granules and resale after converting into damphor cubes amounts to processing. It was observed that the term process should be interpreted in its ordinary and general sense. The activity contemplated by the word "process" is of general character requiring only continuous or regular action or succession of actions leading to the accomplishment of some results but it is not one of the requisite that the activity should involve some operation on some material in order to convert the same to some other stuff. It was held that the Appellant processed camphor for the purpose of celling it locally and, as such, was a dealer. It may be pointed out that the meaning of the word "process" has been considered in the light of the facts of that case and has not been examined in relation to preservations of goods in a cold storage. 21. In Nilgiri Ceylon Tea Supplying Co. vs. The State of Bombay(ll) the following observations of Shah, J., were referred to by Shri Bhandari:— "In our view, the quantities of tea purchased by the assessees cannot since the date of the purchase be regarded as processed within the meaning of the proviso to clause (a) of sec. 8 of the Act. There is not even application of mechanical force so as to subject the commodity to a process, manufacture, development, or preparation. The commodity has remained in the same condition. It is true that in the preparation of the tea mixture which is marketed, there may be some skill involved. But that, in our judgment, cannot be regarded as processing within the meaning of the proviso." 22. In that case there was a manual application of energy to a different quantities of tea purchased by the assessees in certain proportions so as to evolve a mixture of tea which was sold as tea mixture of the assessees. In that connection the above observations were made. 23. In that case there was a manual application of energy to a different quantities of tea purchased by the assessees in certain proportions so as to evolve a mixture of tea which was sold as tea mixture of the assessees. In that connection the above observations were made. 23. In Chandrawar Singh vs. State of Assam(12) their Lordships were examining the contention of the petitioner that openion cannot be said to be processed inasmuch as it is not subjected to any mechanical process after it has been removed from the earth, After referring to Webster, Chamber, Oxford and Websters New International Dictionaries, the learned judges considered the process involved and stated that it is common knowledge that onion has its roots under the earth with coats of bulbs also and its leaves sprout on the surface of the earth. It is removed alongwith foot, the leaves are dried up, and the main part which may be called dulbis exposed in the sunshine and after the leaves have dried up and have been removed from the bulb, the bulb, i.e., the edible round article is taken to the market for sale. From this it will be clear that the commodity is subjected to a treatment or process. 24. The cases cited by Shri Bhandari, no doubt, to some extent support his point of view that in order to construe, "processing of good" something is required to be done to goods and some sort of change must be brought about, though it may be very slight, minor or insignificant and he submitted that the ratio of Kilmarnock Equitable Co-operative Society, Ltd. vs. Commissioner of Inland Revenue (Supra) is different and this case cannot be pressed into service for the point involved in the present cases, as in that case the coal was subjected to process inasmuch as dross was removed from it and coal was packeted in packets of 28 lbs. Coal did undergo change on account of removal of dross. Thus, according to Shri Bhandari, the correctness of the view taken in Additional Commissioner of Income-Tax, Kanpurs case (supra) should be examined in the light of the general observations made in the authorities cited by him. 25. Coal did undergo change on account of removal of dross. Thus, according to Shri Bhandari, the correctness of the view taken in Additional Commissioner of Income-Tax, Kanpurs case (supra) should be examined in the light of the general observations made in the authorities cited by him. 25. Before examining the question as to what meaning is to be given to the expression "processing of goods" occuring under section 3, proviso (3) of the Act and in clause (c) of the Notification, it would be useful to refer to the meaning given to the word "process" or processing" by the lexicographers and in other treaties. 26. "According to Websters Dictionary process means "to subject to some special process or treatment, to subject (especially raw material) to a process of manufacture, development or preparation for the market, etc., to convert into marketable from, as livestock by slaughtering, grain by milling, cotton by spinning milk, by pasteurising, fruits and vegetables by sorting and repacking". 27. In Websters New International Dictionary, Vol. II besides other things, process has been defined to mean "a course of procedure, something that occurs in the series of action." 28. According to Chambers Twentieth Century Dictionary, "process", inter alia, means to prepare (e.g., agricultural product) for marketing. In the Oxford English Dictionary, Vol. VIII, "Process" has been defined to mean besides other thing, "to preserve fruit, vegetable, etc., by some process". 29. In Words and Phrases Permanent Edition 33 A, (at page 50) the following passage from American judgment, is relevant :— "The word "preserving" as used in the statement of the nature of an invention, setting out that it consists in a method of preserving fish and other articles by placing them within a chamber and cooling the latter by means of a freezing mixture, refers to the process to which the article is subjected in such chamber. Piper vs. Moon C.C.N.Y. 19 Fed. Cas. 72. 726." 30. In the same book in Vol. 34 a detailed examination has been made of the word "process" from pages 25 onwards. It would be proper to refer some of the connotations stated therein. In general— A "process" is a made, method, or operation, whereby a result or effect is produced. Kelley vs. Coe, 99F 2d 435, 441, 69 App. D.C.202. In the same book in Vol. 34 a detailed examination has been made of the word "process" from pages 25 onwards. It would be proper to refer some of the connotations stated therein. In general— A "process" is a made, method, or operation, whereby a result or effect is produced. Kelley vs. Coe, 99F 2d 435, 441, 69 App. D.C.202. (page 225)." "process" means to subject to or treat by a special process; to prepare by an artificial or of special process; to preserve fruit, fish, flesh, etc. by some process. Buron Fish C. V. Clander, 67 N.E.2d 546,. 146 Chio St. 631. (Page 226)." "Employers" activities in iding refrigerator cars which carried strawberries in interstate commerce during straberry season were exempt from overtime employment provisions of fair labour Standars Act an "processing". Cordon vs. Paducah Ice Mfg. Co., D.C. Ky., 41F Supp. 980, 987 (page261). " "The "sharp freezing" of meat, butter, and eggs, and ageing of "green" cheese constituted "processing." within purview of sales and use tax exemption, and electricity sold to freezing plant operator for use in Processing such foodstuffs for ultimate sale at retail was not subject to tax, even though operator did not own food thus processed; but electricity sold for use in storing such products was subject to tax. I.C.A. (page 263)." 31. In Encyclopaedia Britannica, Volume 9, pages 543 and 545, various preservation processes for food are described:— "There are several major processes for food preservation The growth or Microorganisms (and enzyme activity) in foods may be retarded by celling or almost entirely prevented freezing. Since water is necessary for the growth of microorganisms, dried (dehydrated) food will keep for long periods. Or the enzymes and microorganisms present in foods may be completely or almost completely destroyed by the applications of heat as in thermal processing (canning). In canned food reinfestation by microorganisms must be prevented, hence the need for hermetically sealed containers. Finally, both enzyme action and microbial growth can be prevented by the addition of certain chemicals or through chemicals produced in fermentations." "Cold Storage - The only method by which fresh foods may be preserved for a considerable period in the raw state is by subjecting them to as how a temperature as possible without causing damage by freezing. Storage at temperatures above freezing, in the neighbourhood of 35** F (2**C), is known as cold storage. Storage at temperatures above freezing, in the neighbourhood of 35** F (2**C), is known as cold storage. Storage at such temperatures make possible the holding in good condition of many fresh foods for considerable periods, and their shipment to distant markets and consumers. This has helped immeasurably to improve the variety and quality of foods in the markets of many parts of the world, notably in Europe and the Americas. Some cold storage is accomplished by means of ice which, in most cases, is produced artifically in ice-making plants; The great majority of cold storage is accomplished by the direct use of refrigerates in one or another of the mechanical or chemical refrigerating cycles, as in household refrigerators. Cold storage equipment ranges from the smallest of home refrigerators to marine, rail or motor truck refrigerated transportation and commercial warehouses." 32. According to Blacks Law Dictionary, Fourth Edition (at page 1369) "process" means "A series of actions, motions, or occurrences; progressive act or transaction; continous operation; method, mode or operation, whereby a result or effect is produced." 33. It will also be useful to refer to the Dictionary "Words and Phrases Legally defined, Volume 4, 1969 Edition, wherein the word "processing" is defined as under :— PROCESSING "processing" (in relation to fish) includes preserving or preparing fish, or producing any substance or article from fish, by any method for human or animal consumption (Sea Fish) (conservation) Act. 1969, s. 22 (I). "A process which is incidental to a manufacturing process is not necessary itself a manufacturing process. In Foyce vs. Boots Cash Chemists (Southern), Ltd. (1950) 2 All E.R. 719), Slad, J, said. following a Scottish decision that a process was an activity. Powley vs. Brist Siddeley Engines, Ltd., (1955) 3 All E.R. 612, per Megaw, J., at p.617." 34. It will also be useful to refer to the relevant observations made by Lord Migdale in (1966) 42 TC 675, at p. 683: "Now I am unable to find any warrant in the sub-section for requiring that the nature or size of the material must be altered before one can say that it has been subjected to a process. In my opinion, when the coal was cleaned and then packed into containers of a convenient size it was subjected to a process. Subject to means that it went through a process and process means some course of operation. In my opinion, when the coal was cleaned and then packed into containers of a convenient size it was subjected to a process. Subject to means that it went through a process and process means some course of operation. Lord Cameron also expressed as under:-- "The word process in its ordinary connotation seems to me to means no more than the application of a method of manufacture or adaption of goods or materials towards a particular use, purpose or and, while to subject means no more than to treat in some manner or other." 35. Having regard to the meaning given by the authorities as stated above,tne matter appears to be clear that if any article undergoes a particular process, though no change occurs in it still it cannot be denied that the article has not been processed. Not only in the scientific sense it may be true that when any foodstuff is preserved in cold storage, it is processed under the refrigeration system and even according to dictionary meaning the same result will follow, that is when any article is given the treatment of cooling process or Submitted to the cooling process in cold storage, it can be said that the article has been processed. Thus, in the Lexicogrphers as wel1 as in scientific and technical sense, there does not appear to be any difference. In the popular sense as well processing of goods will mean the same thing. Normally it is the dictionary sense or Lexicographers sense, which is invoked in common parlance and in the same sense the legislature normally uses the expression, though some- times it may not be so. That is why the golden rule or interpretation is to adopt the literal meaning of a word or expression. Lord Camerson in the above English case stated that "the words of Sec. 271 (1) (c) are perfectly plain, and if interpreted according to that ordinary or every day meaning are in my opinion apt to cover what was done by the Appellants" and further observed that "If the words of the Sub-section are given their ordinary and every day meaning then the Appellants necessarily succeed in their contention." The meaning of the expression "processing of goods* in my opinion, cannot be different in common parlance than is ordinary literal meaning and it is that meaning which appears to be accepted even by the common man. Even if in common parlance it is understood that "processing of goods" means goods whereby some change is brought about by subjecting it to some process, still the words have to be given meaning in the context of the legislative intent, as found expressed in the notification as well as in proviso(3) to sec. 3 of the Act. It is significant to note that electricity duty has been reduced where energy is consumed in any industry in the manufacture, production, and even in repairs of goods and admittedly also where goods have been processed bringing about some change. The question is where in any industry any process is adopted for preservation of goods and energy is consumed in that process, is that excluded from the purview of the proviso (3) of sec. 3 of the Act and consequently from the purview of the Notification. In my humble opinion such cannot be the intendment of the proviso (3) to section 3 and the Notification. It is the public interest which is the consideration for issuance of Notification by the State Government and is the public interest, which weighed with the legislature empowering the State Government to issue Notification. It is in the public interest that the foodstuffs may be preserved and may be made available to the community at Cheaper rates. In this context, in my opinion, it can be said that proviso (3) to sec. 3 of the Act covers cases where goods do not undergo any change and still have been subjected to process. 36. Shri Garg, learned counsel for the petitioners, pointed out that in the Factories Act, 1948. in sec. 2 clause (k) defining expression "manufacturing process" there has been an addition of sub clause (vi) by Act No. 94 of 1974 (w.ef. 26-10-1976) whereby the expression "manufacturing process" has been extended to "any process for preserving or storing any article in cold storage." this also lends support to some extent to the petitioner. Shri Bhandari pointed out, and rightly so, that the definition given in other enactments, should not be taken help of, as the definition sometimes, are inclusive or exclusive. The definitions are limited to a particular enactment. 37. Shri Bhandari pointed out, and rightly so, that the definition given in other enactments, should not be taken help of, as the definition sometimes, are inclusive or exclusive. The definitions are limited to a particular enactment. 37. Thus, viewed from all angles, namely scientific or technical sense, literal or dictionary sense, popular sense as well as in the sense of the context of the law, the petitioners cases are covered under proviso(3) to sec. 3 of the Act and under clause (c) of the Notification and when goods are preserved in the cold storages, it can be said that the energy is consumed in cold storage industry in processing of the goods and I am in respectful agreement with the view taken in the Division Bench of Allahabad High Court relied upon by the petitioners. The same view has been taken by a Divisional Bench of the Calcutta High Court in Commissioner of Income Tax vs. Radha Nagar Storage(P)Ltd.(13). In that case the question arose whether the assessee company is an industrial company within meaning of sec. 2(7) (d) of the Finance Act, 1968. "Industrial company" was defined inter alia as a company which is mainly engaged in the manufacture or processing of goods. It was held that the activity carried on by a cold storage does not imply a transformation or an alteration of goods, thereby does not involve manufacture, but the act of preservation whereby the goods are prevented from decaying in normal course amount to processing, so the cold storage constitutes an industrial company. 38. Shri Bhandari next contended, though only faintly, that cold storage is not an industry. It may be stated that this argument has been advanced only for the sake of argument. Shri Bhandari submitted that cold storage is only a storing house and the petitioners also do job work by storing goods of others and the labour employed at the cold storage is also less. These factors, in my opinion, would not in any case was effect to consider a cold storage as industry. The word "industry" in its ordinary sense, is a word of wide connotation and it includes any trade or business. It is not necessary to deal with this point any further, as much arguments were not advanced on this point. 39. These factors, in my opinion, would not in any case was effect to consider a cold storage as industry. The word "industry" in its ordinary sense, is a word of wide connotation and it includes any trade or business. It is not necessary to deal with this point any further, as much arguments were not advanced on this point. 39. Shri Bhandari next contended that the petitioners had an alternative remedy as provided under rull 11 of the Rules to refer the dispute to the Commercial Taxes Officer and his order is appealable to the Deputy Commissioner, Commercial Taxes (Appeals). The first two petitioner did make reference of the dispute to the Commercial Taxes Officer. Shri Bhandari urged that it is a settled rule of practice and policy that when an alternative remedy is available in a statute or rules made thereunder, then the High Court should not exercise its extra ordinary jurisdiction. It is only when constitutionality or vires of law is challenged, the remedy under Art. 226 of the Constitution, can be availed. Shri Bhandari referred to C.A. Abraham vs. Income Tax Officer Kottayam(14), Sales Tax Officer, Jodhpur vs. Shiv Ratan G. Mohatta(l5), M/s. Jaipur Hosiery Mills Pvt. Ltd. vs. The State of Rajasthan(16), M/s Hindustan Sugar Mills Ltd. Udaipur vs. The State of Rajasthan(17V Bhopal Sugar Industries Ltd. Madhaya Pradesh vs. D. P. Dube, Sales Tax Officer, Bhopal Region, Bhopal: No. 2 (18) and Firm Rasulji Buxji Kathawala vs. Commissioner of Income Tax Delhi (19). 40. Messrs M L. Garg and M.C. Bhoot, learned counsel for the petitioners, on the other hand, submitted that the writ petitions are pending for the last more than seven years and only question as to the interpretation of proviso (3) to sec. 3 of the Act and clause (c) of the Notification, is involved, and it would not be proper to drive the petitioners to avail the alternative remedy, more particularly when the matter has been heard at great length on merits. It was also pointed out by them that the remedy before the Commercial Taxes Officer and the Deputy Commissioner Taxes (Appeals) is not an adequate and effica-fcious remedy. It was also pointed out by them that the remedy before the Commercial Taxes Officer and the Deputy Commissioner Taxes (Appeals) is not an adequate and effica-fcious remedy. In view of the circumstances that the recovery proceedings of the arrears of electricity duty, have been initiated at the instance of the Commis-sioner, Commercial Taxes, who has expressed the view that the cold storages are not covered under the Notification and further the petitioners, were threatened, of discontinuance of supply of energy on non-payment of the alleged arrears of electricity duty, the petitioners were apprehensive of the discontinuance of the supply of energy on account of non-payment of arrears and there is no provision under the Rules for the stay of recovery of by the Commercial Taxes Officer, so in the situation in which the petitioners were placed, the only appropriate remedy for them was to invoke the extra ordinary jurisdiction of this court. In support of their contention the learned counsel for the petitioners placed reliance on L. Hirday Narain vs. Income Tax Officer, Barelly (20) M/s. Allied Motors Private Ltd. vs. The New Delhi Municipal Committee (21), State of U.P. vs. M/s. Indian Hume Pipe Co. Ltd. (22), Union of India vs. Hariram Shamji Thekkar (24),M/s. Indian Hume Pipe Co. Ltd Aish Bagh, Luckhow vs. The State of Uttar Pradesh(24) and Zila Parishad Meradabad vs. M/s.Kundan Sugar Mills, Amroha(25). 41. The argument advanced regarding availability of alternative remedy or exhaustion of remedy under the rules need not detain me much. It is well settled that ordinarily this court should not invoke its extra-ordinary jurisdiction under Art. 226 of the Constitution where an alternative remedy is available to the petitioner. It is a self imposed rule based on policy. The remedy under Art. 226 of the Constitution is a discretionary remedy. When the matter can be pursued before the competent statutory authority, generally it is considered proper that before exhaustion of remedy, this court should not exercise its discretion. It would all depend on the facts and circumstances of each case as to how the discretion is to be exercised. The rule of exhaustion of remedy is not a right and inflexible rule and the rule is not one of jurisdiction. I do not want to encumber the judgment by dealing with authorities cited by both the sides. It would all depend on the facts and circumstances of each case as to how the discretion is to be exercised. The rule of exhaustion of remedy is not a right and inflexible rule and the rule is not one of jurisdiction. I do not want to encumber the judgment by dealing with authorities cited by both the sides. The question is whether in the circumstances of the present cases, would it be proper to exercise the discretion in favour of the petitioners. In my opinion, it is so. I am inclined to exercise the discretion in favour of the petitioners on account of the fact that more than seven years have been passed. It would be highly unjust to drive the petitioners to avail the alternative remedy and to give the matter further lease of life. It would be fair and just that the controversy was be settled by this court and controversy is only with regard to the interpretation of the expression "processing of goods." On facts, there is no dispute between the parties that the goods are preserved in the cold storages by the petitioners. 42. In L. Hirday Narain vs. Income Tax Officer, Bareily (supra) their Lordships of the Supreme Court stated that when the High Court has entertained the petition and has given hearing on merits, the petition cannot be rejected on the ground that the statutory remedy was not availed of. 43. In M/s Allid Motors Private Ltd. vs. The New Delhi Municipal Committee (supra) a question was posed, "would it be proper to dismiss the petition ten years after its admission on the ground of alternative remedy?" The question was answered in the negative and it was observed that" if today the petitioners are directed to seek the alternative remedy by way of appeal, it would take considerable time before the matter could be finally settled. In the circumstances I am of the opinion that it would be appropriate to dispose of the writ petitions on merits so that the petitioners know the real position in regard to the contentions raised by them." 44. In the circumstances I am of the opinion that it would be appropriate to dispose of the writ petitions on merits so that the petitioners know the real position in regard to the contentions raised by them." 44. In Bhopal Sugar Industries Ltd., Madhya Pradesh V. D.P. Dube, Sales Tax Officer, Bhopal Region, Bhopal, No.2 (supra) it was observed that the jurisdiction of the High Court under Article 226 is extensive and it has jurisdiction to decide even where the taxing authority threatens to recover tax on an interpretation of the statute which erroneous. 45. In State of U.P. vs. M/s Indian Hume Pipe Co. Ltd. (Supra) the question about the true connotation of the words "Sanitary fittings" in item No. 18 as well as the tax Notification. It was observed that whether the hume pipes manufactured and sold were sanitary fittings within the meaning of that expression was a question of law. Their Lordships of the Supreme Court observed that, "since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed out in one and only one direction, namely that the hume pipes were not sanitary fitting and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settled practice of the Supreme Court not to interfere with the exercise of discretion by the High Court". 46. In Union of India vs. Hariram Shamji Thakkar (supra) their Lord-ships observed as under:— "Recourse to the High Court for an appropriate writ is not always barred because the order is capable of being rectified in appeal to the depart-mental authorities. If there exists an adequate alternative remedy the High Court may leave the party aggrieved to seek relief before the Tribunal of appeal. But the rule is not inexorable. Existance of a right of appeal does not bar the jurisdiction of the High Court to entertain a writ petition at the instance of an aggrieved party. If there exists an adequate alternative remedy the High Court may leave the party aggrieved to seek relief before the Tribunal of appeal. But the rule is not inexorable. Existance of a right of appeal does not bar the jurisdiction of the High Court to entertain a writ petition at the instance of an aggrieved party. If the alternative remedy is onerous or may not be equally efficacious or for other sufficient reason, the High Court may examine the validity of acts done by official bodies, alternative remedy notwithstanding the question is one of discretion and not of jurisdiction." 47. It is also pertinent to note that in the instant case, the petitioners were threatened by the supplier that their supplies will be discontinued in case of nonpayment of bills of arrears of electricity duty and the petitioners; were apprehensive of the fact that they may not be able to obtain the relief firstly against the threat of recovery and ultimately even on merits in view of the Commissioners directions. The peculiar circumstances of these cases, in my opinion, further justified the exercise of discretionary powers of this Court. 48. Besides that the petitioners have prayed for issuance of writ of prohibition or restraint order against the non-petitioners from recovering the electricity duty from the petitioners at the rate of five paise per unit for the past as well as in future. The objection regarding alternative remedy in view of this prayer, has no validity and force. 49. In the light of the forgoing discussion of the legal position as well as the circumstances of these cases I am not inclined to accept the contention of Shri Bhandari, The contention is, therefore, over-ruled. 50. In view of what I have found on merits, as discussed above, these writ petitions must succeed. 51. In the result, the writ petitions are allowed, in the manner that the petitioners would not be liable to pay enhanced electricity duty in respect of the energy consumed by them in the processing of goods & to that extent the demands raised against the petitioners in respect of enhanced electricity duty, are quashed and to that extent the respondents are restrained from recovering electricity duty at the rate of five paise per unit from the petitioners. In the circumstances of the case, the parties shall bear their own costs of these writ petitions.