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Madhya Pradesh High Court · body

1995 DIGILAW 67 (MP)

Rewa Gases (Pvt. ) Ltd. v. M. P. E. B.

1995-01-12

S.K.DUBEY

body1995
JUDGMENT By this petition under Article 226 of the Constitution of India, the petitioner Company is seeking refund of excess electricity duty to the tune of Rs. 41,196/-. The petitioner Company is the manufacturer of Oxygen and Acetylene Gases, whose factory is situated at Industrial Estate, Waidhan District Sidhi for which a Factory Licence was granted on 2nd January, 1984 prior to grant of factory licence, the petitioner Company commenced its production from 26.5.1983 for which a certificate for commencement was issued by the General Manager, District Industries Centre, Sidhi. The petitioner claimed that electricity duty ought to have been charged at the rate of 3 paise per unit, while the respondents have charged at the rate of 8, 10 and 12 paise per unit and thus an excess amount of Rs. 41,000/- has been charged of which the petitioner is entitled to get the refund from the respondents. The case of the respondents is that the respondents are only collecting agents of the electricity duty which is being realised in view of the provisions of the Madhya Pradesh Electricity Duty Act, 1949 which was amended by the Madhya Pradesh Electricity Duty (Amendment and Validation) Act, 1984 (Act, No. 146 of 1984) which has amended the rates of duty prescribed under the Principal Act. Note to section 3 is relevant which reads thus: - "For the purpose of this section, the date of issue of the Factory Licence or the date of commencement of production as certified by the District of Industries or his authorised representative, whichever is later, shall be deemed to be the date from which Factory is registered." Therefore, it was submitted on behalf of the respondents that though the petitioner Company commenced the production by 26.5.83 the factory was registered and the licence was granted under the Factory Act, 1948 on 3.1.1984 and, therefore, the duty was rightly charged. After the registration of the Factory which is a later date, the petitioner is being charged at the rate of 3 paisa per unit. After the registration of the Factory which is a later date, the petitioner is being charged at the rate of 3 paisa per unit. Shri Madan Datt, learned counsel for the petitioner contended that as the petitioner applied for licence on 14.7.83 and in view of the circular of the State Government (Annexure-6) dated 23.11.1984 and the certificate issued by the Director, Industrial Health and Safety (Annexure-I) the Factory will be deemed to be registered on 26.5.1983 or in any case from the date of making an application on 14.7.1983. Therefore, the petitioner is entitled to the benefit of concessional rate of the electricity duty at the rate of 3 paisa per unit. After hearing the learned counsel for the parties I am of the opinion that the note appended to section 3 of the Principal Act is very clear, unambiguous which does not call for any other interpretation. The definition of 'factory' given in Explanation (c) of the Act requires a factory to be registered under the Factories Act, 1948 and for the purpose of section 3, the date of issue of the factory licence or the date of commencement of production as certified by the Director of Industries or his authorised representative, whichever is later, shall be deemed to be the date from which the factory is registered. It means that for the purpose of section 3 of the Act, a factory registered under the Factories Act shall be deemed to be a 'factory' only from the date of issue of the factory licence or from the date of commencement of production as certified by the Director of Industries or his authorised representative whichever is later. Unless this definition of 'factory' given in Explanation (c) is satisfied, the benefit of concessional rates of duty available to a 'factory' under item (2) of the table of rates of duty given in section 3 of the Act, cannot be claimed by the consumer merely because the factory is registered under the Factory Act, that is the view taken by a Division Bench of this Court in Birla Jute Industries Ltd. and another v. The State of M.P. and others (1986 JLJ p. 259). In view of the fact that the note appended to section 3 is clear in terms and this Court has dealt with the question specifically on the point, this petition is devoid of any merit and is liable to be dismissed. Accordingly, it is dismissed with no order as to costs. The outstandings amount of security, if any, shall be refunded to the petitioner.