Judgment Lalit Mohan Sharma, J. 1. The petitioners have impugned the surcharge on electricity under the Notification in Aunexure-2 and the revised rate as mentioned in Annexure-4 levied on account of imposition of Central Excise duty on electricity generation The question whether generation of electricity can be subjected to payment of excise duty was raised in M/s. Tata Yodogawa ltd. V/s. Union of India, 1985 PLJR 673 : 1986 BLJ 451 , and was answered by me in the affirmative and since this decision is challenged as incorrect, the present writ application is being heard by Division Bench. 2. The petitioner-Company runs a factory and is receiving electric energy from the State Electricity Board, respondent No.2 as per the agreement dated the 20th December, 1966, Annexure-1. By Sec.36 of the Finance Act, 1978 a new entry being Item No.11-E was inserted in the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as the Excise act), whereby excise duty at the rate of 2 paise per unit on electricity per kilowatt hour was imposed. As a result thereof the Electricity Board levied the impugned surcharge by the Notification dated 13-5-1978 at the rate of 3 paise per unit on electricity consumption by all categories of services excepting agricultural services The petitioners bills were consequently prepared at the higher rate. By another Notification, Annexure-4, issued in 1979 the rate of electricity was revised and the new rate was fixed by taking into account the excise duty. The petitioners have challenged both these Notifications. 3. Mr. N. K. Prasad, the learned Cousel of the Petitioners, has contended fhat the Parliament is not empowered to levy excise duty on generation of electricity and the insertion of the Item No.11-E in the Schedule to the Excise duty is ultra vires and the consequent enhancement of the electric charges by the Electricity Board must be struck down as illegal and void in the eye of law. Alternatively, it has also been urged that the Electricity Board was not entitled to impose additional burden at the rate of 3 paise per unit when it had to pay excise duty at the rate of 2 paise only. 4. Excise duty is levied under Sec.3 of Excise Act on "excisable goods" which "are produced or manufactured in India. Alternatively, it has also been urged that the Electricity Board was not entitled to impose additional burden at the rate of 3 paise per unit when it had to pay excise duty at the rate of 2 paise only. 4. Excise duty is levied under Sec.3 of Excise Act on "excisable goods" which "are produced or manufactured in India. " The relevant entry in List I of the Seventh Schedule of the Constitution of India, pamely, Entry no.84 has also used the expression "goods manufactured or produced in india. " The main argument of the petitioner is that since electricity is neither goods nor it is manufactured or produced, it cannot be treated as excisable goods so as to attract the provisions of the Excise \ct. Mr. Prasad contended that although the expression "excisable goods has been defined in Sec.2 (d)of the Excise Act as goods specified in the First Schedule, any attempt on the part of the legislature to impose duty on something which cannot be called "goods" and with reference to which the expressions "manufactured"/ and "produced" are in applicable as to be repelled as ultra vires. The appropriate word which can be used in relation to electricity is "generation" and, according to the learned Counsel, it cannot be treated as a synonym either for manufacture or production reliance was placed on the observation in Deputy commissioner V/s. P. Plantation Ltd. , AIR 1969 SC 930 , that the word "produced" means "to bring forth, bring into being or existence to bring (a thing) into existence from its raw materials or elements. "the argument is that the expression "production" necessarily involves a process whereby certain raw materials are converted into something else qualitatively different. Since such a process is not involved in the generation of electricity, it cannot be described to have been manufactured or produced. It is claimed that electric energy is imponderable and invisible and its presence or influence is only known by its effect. It is not tangible. It is not an article or matter which could bj possessed, moved, delivered or stored. Energy, as such, is never created nor destroyed but merely transformed from one form to another. In the generation of electricity there is no transformation of any raw material into electrical energy. 5. It is not tangible. It is not an article or matter which could bj possessed, moved, delivered or stored. Energy, as such, is never created nor destroyed but merely transformed from one form to another. In the generation of electricity there is no transformation of any raw material into electrical energy. 5. Aid is sought to be taken in support of this plea from Entries 53 and 54 of List II of the Seventh Schedule wherein taxes on the sale of "electricity" and goodss have been separately dealt with. The learned Counsel contended that if electricity were goods, a separate entry for it was not required. Reference was also made to Halsburys Laws of England, 3rd Edition, Volume 34 stating that :- "a contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour" ; and it was urged that since electricity cannot be desscribed as chattel, it cannot be goods subject to the law relating to sale. 6 Arguments on behalf of the parties were addressed at considerable length, the other point of view has been presented by Mr. S. B. Sinha, the learned government Advocate, appearing for the Electricity Board and Mr. S. K. Chatto-padhyaya representing the Union of India. The main arguments pressed by mr. Prasad were the same as raised by the petitioner in M/s. Tata Yodogawa ltd. s case and the reasons given for rejecting them have been relied upon on behalf of the respondents. 7. The words "goods", "manufactured" "and produced" have been used in the Constitution and the Excise Act in their widest amplitude. The definition article in the Constitution does not attempt to define "goods". A rticle 366 (12) which says that the word includes all materials, commodities and articles, clearly indicates that it should not be given a restricted interpretation and I do not find any reason to limit its meaning and narrow down its scope. The definition article in the Constitution does not attempt to define "goods". A rticle 366 (12) which says that the word includes all materials, commodities and articles, clearly indicates that it should not be given a restricted interpretation and I do not find any reason to limit its meaning and narrow down its scope. Similarly, there is no reason for giving restricted and narrow meanings to the expressions "manufactured" and "produced". That is the approacli adopted by the Supreme Court in Empire Industries Ltd. and others V/s. Union of India, (1985) 3 Supreme Court Cases 314, relied on by Mr. S. B. Sinha. Although the problem arising in that case was different from the one before us, Mr. Sinha was right in referring to that part of the judgment where the word "manu-facuture" was liberally interpreted. Mr. Prasad strenuously contended that the process which is involved in making electricity cannot be described as production or manufacture and the only expression applicable is generatio j. I do not find myself in a position to agree with him. The word "generation" has been defined in Ballentines Law Dictionary as meaning production particularly of electricity. The Calcutta High Court in Associated Power Co. V. Ram Taran Roy, 1973 Cal WN 701, was called upon to decide whether electricity could be included in "goods". The jurisdiction of the Court depended on the meaning of the word "goods" as occurring in the schedule of the City civil Court Act, 1952, The argument that the word goods" in its ordinary and common connotation cannot and should not include something like electricity which is not tangible and is just current or energy, was repelled by Mukharji, J. , by observing that if the distinction that this argument tries to make it between matter and energy, then perhaps the answer to modern Science of Physics will be that matter is energy and energy is matter and, therefore, electricity according to the modern notions of science can very well come within the word "goods". In Paragraph 13 of the judgment, it was also said that the meaning of the word "within the Constitution" was wide enough to include electricity. The learned Judge considered the question from several angles before answerin| the issue in the affirmative and, with respect, I say that his view appears to be correct. The passage from Halsbury relied on by Mr. The learned Judge considered the question from several angles before answerin| the issue in the affirmative and, with respect, I say that his view appears to be correct. The passage from Halsbury relied on by Mr. Prasaa is to my mind not helpful for the present case. Observations quoted above in Paragraph 5 were made with a view to high-light the basic differences between a contract for work and labour, and a contract for sale, and an implied inference therefrom is not permissible to be drawn for resolving the present issue. 8. The argument of Mr. Prasad based on two entries under Items 53 and 54 in List II of the Seventh Schedule of the Constitution also has no merit. The reason for separating electricity from other goods in the List II is to empower the State Legislature to leyy tax on the consumption of electricity, but not on the consumption of other articles. Similar arguments were addressed in M/s. Tata Yodogawa Ltd. s case and were rejected, and although I have reconsidered the matter independent of that decision, I have come to the same conclusion again. However, I do not consider it necessary to repeat everything i have said earlier. 9. The petitioner also challenged the levy of the additional charge at the rate of paise per Unit by the Electricity Board on the ground that additional burden imposed by amendment of the excise law was only to the extent of 2 paise per Unit. Relying on Indian Aluminium Co. V/s. K. S. E. Board, AIR 1975 SC 1967 , Mr. Prasad contended that the provisions of the Electricity supply Act, 1948 do not confer any authority on the Board to ignore the contractual stipulation about the rate between the petitioner and the respondent-Board and the impugned demand should, therefore, be quashed independently on this ground. Mr. S. B. Singh, in the first instance, raised a preliminary objection that there is no basis laid down in the writ petition for this argument. By way of explanation as to why the price of electricity was raised by 3 paise, the learned Counsel relied on Paragraphs 2 to 5 of the counter-affidavit. Similar explanation was offered by the Board in M/s. Tata Yodogawa Ltd. s case which was accepted. Mr. By way of explanation as to why the price of electricity was raised by 3 paise, the learned Counsel relied on Paragraphs 2 to 5 of the counter-affidavit. Similar explanation was offered by the Board in M/s. Tata Yodogawa Ltd. s case which was accepted. Mr. S. B. Sinha further relied upon the decision in m/s. Titagarh Paper Mills Ltd. V/s. Orissa State Electricity Board, (1975) 2 scc 436 where a similar point was pressed on behalf of the petitioner before the Supreme Court. The Board in defence of the demand had relied on Sections 49 and 59 and the Sixth Schedule to the Supply Act, but the plea was rejected. The Court, however, referred to clause 13 of the agreement in that case as authorising the Board to enhance the rates and while so doing observed that if there is one principle more well settled than any other, it is that, when an authority takes action which is within its competence, it cannot be held to be invalid, merely because it purports to be made under a wrong provision, is it can be shown to be within its power under any other provision. Several contentions were raised by the appellant in that case in answer to the plea based on the thirteenth clause of the agreement which were not accepted on the ground that Orissa High Court where the case was originally filed as an application under Article 226 of the Constitution was right in not entertaining the point in view of the arbitration clause in the agreement. The position in the case before me is exactly the same. The provisions relating to arbitration is to be found in the sixteenth clause of the agreement, a copy whereof has been attached to the writ petition as Annexure-1. 10. In the result. I do not find any merit in this writ application which is dismissed, but in the circumstances, without costs.