Judgment 1. The petitioner before this Court is a company. Its case is that motivated by the State Governments Industrial Policy, 1995 (hereinafter referred to as the Industrial Policy) it set up a cold storage at Lakho in the district of Begusarai. For the cold storage it took from the Bihar State ElectricityBoard (hereinafter referred to as the Board) a high tension electricity connection with the contract demand of 125 K.V.A. The contract for the connection was executed on 15.7.2000 and the electricity line was energised on 25.4.2001. Though the supply of electricity from the Board commenced much later, it is the case of the petitioner that the cold storage had come into commercial production, with the aid of private generator, from 25.8.2000. 2. The petitioner claims that the cold storage is covered by the Industrial Policy and is entitled to exemption from payment of minimum base charges in terms of the Industrial Policy and the Boards circular no. 652, dated 11.10.1996 issued in pursuance of the government policy/direction. The petitioner contends that the Boards demand for A.M.G. charges for the cold storage connection was unauthorised and prays for a direction from this Court, restraining the Board from demanding any Annual Minimum Guarantee Charges from the petitioner for a period of five years from the date when the cold storage came into operation i.e. till 24.8.2005 and a further direction to the Board to withdraw its A.M.G. bill, dated 6.4.2002 (Annexure-4) and not to take any coercive measures against the petitioner for the realisation of the bill. 3. According to the Board, the claim of the petitioner is not tenable. The exemption from payment of minimum base charges was available only to the industrial units that came into production during the period 1.4.1993 to 31.8.2000. The emphasis is on coming into production. What is meant is that the power incentive of exemption from payment of A.M.G. charges was available only to the industries engaged in production. A cold storage is not engaged in production and it does not produce anything. According to the Board, therefore, the cold storage was not covered by the Boards circular, dated 11.10.1996 and the Industrial Policy on the basis of which the circular was issued. A cold storage is not engaged in production and it does not produce anything. According to the Board, therefore, the cold storage was not covered by the Boards circular, dated 11.10.1996 and the Industrial Policy on the basis of which the circular was issued. In the case of the petitioner it is further stated that the cold storage received the supply of electricity from the Board admittedly on 25.4.2001 i.e. after the expiry of the policy period on 31.8.2000. The petitioner was, therefore, in any event not entitled to the exemption and its case that the cold storage had come into operation on 25.8.2000 was not fit to be accepted. 4. Mr. Mrigank Mauli, counsel appearing for the petitioner submitted that it was erroneous to assume and hold that the cold storage was not engaged in production and it did not produce any-thing. He stated that the cold storage produced refrigerated goods. Relying upon a Supreme Court decision in Commissioner of Income Tax, Orissa V/s. M/s N.C. Budharaja & Co. and another, A.I.R. 1993 SC 2529. Mr. M. Mauli submitted that the wad production had a wider meaning than the expression manufacturing of goods. He submitted that the work of the cold storage was also related to production and the produce of the cold storage was the agriculture products with their freshness fully preserved. In support of his submission that the work of the cold storage was related to production, learned counsel relied upon Supreme Court decisions, one in Chrestien Mica Industries Ltd. V/s. The State of Bihar & another, (1961) 12 STC 150 and the other in Delhi Cold Storage Pvt. Limited V/s. Commissioner of Income Tax, New Delhi, A.I.R. 1991 SC 2125. He also relied upon a bench decision of the Rajasthan High Court in Commissioner of Income Tax V/s. Trinity Hospital, (1997) 225 ITR 178. 5. I have carefully considered the submissions made by Mr. M. Mauli and have gone through the decisions cited by him. But it seems to me that in the choice of decisions to support his point learned counsel has not been sufficiently careful and discriminating. The decisions relied upon not only do not support the point but actually seem to disprove the proposition that the cold storage was engaged in production. 6. But it seems to me that in the choice of decisions to support his point learned counsel has not been sufficiently careful and discriminating. The decisions relied upon not only do not support the point but actually seem to disprove the proposition that the cold storage was engaged in production. 6. In N.C. Budharaja (supra) it was indeed held by the Supreme Court that the word production has a wider connotation than the word manufacture but this decision does not have any direct bearing on the case in hand. 7. In Chrestien Mica Industries Ltd. (supra) the Supreme Court noted in detail the process by which crude Mica is taken out of the Mines and processed into split mica which is a commercial commodity and held that the process would obviously fall within the dictionary meaning of the word production. This decision too has no bearing on this case. 8. In the case of Trinity Hospital (supra) a bench of the Rajasthan High Court examined whether a X-ray machine, an Ultra Sound Scanner/ Ultra Sonographic Machine, a Foetal Monitor can be said to manufacture or produce an article or a thing for being entitled to the benefit under section 32A of the Income Tax Act, 1961. The decision noted that these machines and equipments produced shadow-pictures, pictures and/or photographs of abdominal organs which were very useful for diagnostic purposes. The decision further held that though the shadow-pictures, pictures and photographs produced by the machine were not articles, those were clearly things within the meaning of section 32A of the Income Tax Act. The ratio of this decision does not seem to have any bearing on the point whether the cold storage was engaged in production. But the learned counsel appears to have overlooked that the Rajasthan decision in Trinity Hospital also takes note of two decisions, one by Madhya Pradesh High Court in Mittal Ice & Cold Storage V/s. Commissioner of Income Tax, (1986) 159 ITR 18 and the other by the Calcutta High Court in S.B. Cold Storage Industries (P) Limited V/s. C.I.T., (1987) 166 ITR 646 . In both these decisions it was held that the claim of investment allowance under section 32A" of the Income Tax Act was not permissible in respect of the Machinery of the cold storage plant because the cold storage was not an industrial undertaking for the purpose of business of manufacture or production of article or thing. 9. Even more surprising is the reliance placed by the counsel for the petitioner in the case of Delhi Cold Storage (supra). In this case, the Supreme Court examined the question whether the cold storage was an industrial company as delined in section 2(7)(c) of the Finance Act, 1973, which was as follows : "Industrial company means a company which is mainly engaged in the business of.......or in the manufacture or processing of goods or......." 10. In paragraphs 6 and 7 of the decision, on which learned counsel heavily relied the Supreme Court referred to a Calcutta decision in Commissioner of Income Tax V/s. Radha Nagar Cold Storage (P) Limited, 126 ITR 66. The Calcutta decision had indeed held that the cold storage was engaged in the act of processing of the goods in terms of the Finance Act. The Supreme Court decision further noted that an Allahabad decision in Additional Commissioner of Income Tax, Kanpur V/s. Farukhabad Cold Storage (P) Ltd., 107 ITR 816 had taken a similar view. It was further observed that the Calcutta and the Allahabad decisions directly supported the case of the assessee in Delhi Cold Storage. But it was then pointed out that a previous Supreme Court decision of a three Judge bench in Chowgule & Co. Pvt. V/s. Union of India, A.I.R. 1981 SC 1014 had examined the true meaning of the two words manufacture and processing and the Supreme Court decision in Chowgule & Co. ran counter to the conclusions reached by the Allahabad and Calcutta High Courts; further, that the view taken by the Allahabad and the Calcutta High Courts did not find favour with the three Judge bench of the Supreme Court in Chowgule & Co. and the decision in Chowgule must be taken to have overruled the view of the Allahabad High Court and the Calcutta High Court. 11. The Supreme Court decision in Delhi Cold Storage expressly held that the cold storage cannot be said to be engaged in any work of processing of goods. and the decision in Chowgule must be taken to have overruled the view of the Allahabad High Court and the Calcutta High Court. 11. The Supreme Court decision in Delhi Cold Storage expressly held that the cold storage cannot be said to be engaged in any work of processing of goods. The decision rejected the appeal filed by the cold storage and affirmed the opinion of the Delhi High Court. The decision of the Supreme Court in Delhi Cold Storage thus concludes the issue that the cold storage is not engaged in any work of processing of goods. 12. In reply to the submissions made on behalf of the petitioner Mr. Mihir Kumar Jha, Standing Counsel for the Board submitted that the cold storage was not engaged in any production. In support of his submissions, he relied upon Supreme Court decisions (i) in the Indian Hotels Co. Ltd. and others V/s. The Income Tax Officer, Mumbai and others, 2000 A.I.R. SCW 2807, (ii) M/s Indian Poultry V/s. Commissioner of Income Tax, 2001 A.I.R. SCW 1235 and (iii) Rajasthan State Electricity Board V/s. Associated Stone Industries and another, 2000 A.I.R. SCW 2482. 13. I do not propose to consider in detail the submissions made by Mr. Jha or to examine the decisions cited by him because the proposition advanced on behalf of the petitioner fails on the basis of the very decisions cited in its support. 14. Mr. Mauli next contended that the power incentive of exemption from payment of Annual Minimum Guarantee Charges under the Industrial Policy was not limited to industrial units engaged in production but it was equally admissible to non-production and service based industries. It will be useful here to take a look at the different provisions of the Industrial Policy on the basis of which counsel for the parties made their respective submissions. 15. Paragraph 9.6 of the Industrial Policy that dealt with power incentive is as follows : "9.6 Power Incentive. (a) exemption from payment of minimum granted (sic guarantee) charge for new industrial units having connected load upto 500 KVA; (b) exemption from Electricity Duty for 5 years on captive power generation upto 25 MW for own consumption to new industrial units. (c) loads upto 99 H.P. to be made available on L.T. for new connection to industrial units. (a) exemption from payment of minimum granted (sic guarantee) charge for new industrial units having connected load upto 500 KVA; (b) exemption from Electricity Duty for 5 years on captive power generation upto 25 MW for own consumption to new industrial units. (c) loads upto 99 H.P. to be made available on L.T. for new connection to industrial units. (d) special arrangements for expeditious clearance for rebate for non supply of power to industrial undertakings." Paragraph 15 of the Policy had the marginal title "Identification of Thrust Industries" and paragraph 15.1 is as follows : "15.1 The following industries have been identified as thrust industries for priority development in the State : (i) to (xvi) omitted, not being relevant (xvii) Health Services (xviii) Food & Food Processing, Dairy, Fruits & Vegetable Processing. Tissue Culture products, Seeds and Planting Materials, Bio-Technoiogical Processess & Products, Post Harvest Technologies (xix) xx xx (xx) Tourism 16. The definitions were given at the end of the Policy and clause 1 of the definitions dealing with effective date is as follows : "1. Effective Date.Effective date means the date on which the provision of this Policy come into force i.e. September 1, 1995. This Policy will remain in force for 5 years from September 1, 1995." Clause 2 defined industrial unit/industrial concern which, in so far as relevant for the present, is as follows : "2. Industrial Unit/ Industrial concern Industrial unit/ concern means any unit/concern engaged or to be engaged in manufacturing/ processing/ servicing industry belonging to the following categories : (a) Industries listed under the First Schedule of the Industries (Development and Regulation) Act, 1951 and amended from time to time. (b) Thrust industries listed in para 15 of the Policy Statement. (c) Industries falling within the purview of the following Boards/Agencies: (i) to (vi) omitted, not being relevant (d) Other categories : (i) to (vi) omitted not being relevant Explanations : (i) "For the purposes of concession/benefits relating to sales tax, only such units shall be deemed to be industrial units which carry on the business of manufacturing goods for sale". For the above purposes, "manufacture", with all its grammatical variations and coqnate expression shall have the same meaning as defined in the Bihar Finance Act, 1981." (ii) xx xx (iii) xx xx Clause 4 defined new industrial unit as follows : "4. For the above purposes, "manufacture", with all its grammatical variations and coqnate expression shall have the same meaning as defined in the Bihar Finance Act, 1981." (ii) xx xx (iii) xx xx Clause 4 defined new industrial unit as follows : "4. New Industrial Unit.New Industrial Unit means an industrial unit which has come into production between 1st September, 1995 and 31 August, 2000. And clause 11 defined the date of production as follows : "11. Date of Production.The date of start of production of an industrial unit shall mean the date on which the unit actually starts commercial production of the item for which the unit has been registered. As regards the date of production of a SSI unit, the certificate issued by the respective General Manager, District Industries Centre or Managing Director, Industrial Area Development Authority will be accepted. In case of any dispute in the date of production the decision of the Director of Industries in this regard shall be final." 17. The English version of the policy statement from which the above quotations are taken uses the word production. But the original policy statement is in Hindi in which the word Utpadan is used. Mr. Jha, stated that in the Vidhi Shabdavali, Bharat Sarkar Vidhi Aur Nayayae Mantralaya 1988 Edition, the word Utpadan is defined to mean (i) generation, (ii) production and (iii) Out put. In the Oxford Hindi-English Dictionary 3rd Impression 1998, the word Utpadanls defined as (1) production (2) a (commercial) product. With common consent, therefore, this judgment considers the dispute on the basis of the word production. 18. Mr. Mauli submitted that the nature and character of an industry, that is to say, whether the industry was engaged in manufacture, production, mining, processing or servicing was one issue and when did the industrial unit commence manufacture or production or came into operation was a separate and different issue and it was necessary to consider the two issues separately without mixing one with the other. Learned counsel further submitted that the nature of the industries which were covered by the Industrial Policy was to be judged from clause 2 of the definitions read with para 15.1 of the policy statement enumerating the thrust industries. And clauses 4 and 11 of the definitions related to the date of start of manufacture/production etc. Learned counsel further submitted that the nature of the industries which were covered by the Industrial Policy was to be judged from clause 2 of the definitions read with para 15.1 of the policy statement enumerating the thrust industries. And clauses 4 and 11 of the definitions related to the date of start of manufacture/production etc. by the unit or its coming into operation, as the case may be for judging whether or not the unit fell within the five years period prescribed by the Policy. 19. Mr. M. Mauli submitted that a cold storage was plainly covered by "Post Harvest Technologies" listed at serial no. xviii in paragraph 15.1 of the policy statement. He further submitted that the listing of Health Services at serial no. xvii and Tourism at serial no. (xx) in paragraph 15.1 of the policy statement conclusively indicated that non-production and service based industries were also included as thrust industries. Further, the entire list of thrust industries was specifically included in the definition of industrial unit as provided in clause 2 of the definitions which by express words included servicing industries under the policy statement. 20. He submitted that the definition of Industrial unit in clause 2 having extended the policy to cover service industries, the definitions of new industrial unit or the date of production could not be given a restricted meaning to exclude industries other than those engaged in production. Clause 4 and 11 had got nothing to do with the nature and character of industries covered by the policy. But the provisions of clauses 4 and 11 related to the period prescribed by the policy during which the industrial unit must come into production or operation, as the case may be. Learned counsel submitted that an industrial unit as defined in clause 2 of the definition read with paragraph 15.1 of the "policy statement in order to be covered by the policy must be a new industrial unit, that is to say, it should have come into commercial production/ commercial operation between September 1, 1995 and August 31, 2000. The contention was that the word production was used rather loosely in clauses 4 and 11 and with reference to clause 2 of the definitions read with paragraph 15.1 of the policy statement the expression coming into production must be read to include coming into operation. 21. Mr. The contention was that the word production was used rather loosely in clauses 4 and 11 and with reference to clause 2 of the definitions read with paragraph 15.1 of the policy statement the expression coming into production must be read to include coming into operation. 21. Mr. M. Mauli lastly submitted that in case there was some ambiguity in the policy statement and if two views were possible, the provisions of the policy statement were required to be construed liberally to extend the benefit of the policy to more industrial units in order to subserve the larger goal of encouraging industrial growth in the State. Arguing in support of a liberal construction of the provisions he relied upon two Supreme Court decisions in C.I.T. V/s. Straw Board Manufacturing Co. Limited, 1989 Supp (2) SCC 523 and in Bajaj Tempo Limited, Bombay V/s. C.I.T., (1992) 3 SCC 78 . 22. In reply Mr. Jha submitted that the Board was not bound by the Industrial Policy per se; in fact the Board had no concern with the policy until the State Government gave it a direction in that regard under section 78A of the Electricity Supply Act, 1948. Mr. Jha stated that with regard to the Policy the State Government had issued necessary directions to the Board under section 78A of the Electric Supply Act vide its resolution no. 3493, dated 3.9.1996 (Annexure-B). In paragraph 1 of the resolution it was stated that it was decided by the State Government that such of the industrial units that came into production between 1.4.1993 (1.4.1993 instead of 1.9.1995 was stated in order to cover the previous Industrial Policy of the year 1993) to 31.8.2000 and such defined industrial units that undertook expansion or diversification and the connected load of which was upto 500 KVA would be allowed exemption from payment of annual minimum guarantee charges. 23. Mr. Jha further stated that in pursuance of the direction issued by the State Government the Board took its resolution no. 6917, dated 23.9.1996 following which circular letter no. 652, dated 11.10.1996 was issued. In the Boards circular too it was stated that industrial units coming into production between 1.4.1993 to 31.8.2000 and defined industrial units undertaking expansion/ diversification will be given exemption from payment of minimum base charges, provided the connected load of the industrial unit was upto 500 KVA. 24. Mr. 652, dated 11.10.1996 was issued. In the Boards circular too it was stated that industrial units coming into production between 1.4.1993 to 31.8.2000 and defined industrial units undertaking expansion/ diversification will be given exemption from payment of minimum base charges, provided the connected load of the industrial unit was upto 500 KVA. 24. Mr. Jha contended that the petitioners claim for exemption from payment of minimum base charges was against the Board and, therefore, in order to judge the claim it was not required to advert to the provisions of the Industrial Policy with which the Board did not have any concern and the claim of the petitioner could be judged only on the basis of the Government resolution and the Boards circular, in both of which the exemption from payment of minimum base charges was extended to intones engaged in production. In short, the submission of Mr. Jha was that the word Utpadan used in the Government resolution, dated 3.9.1996 (Annexure-B) and the Boards notification, dated 11.10.1996 (Annexure-1) must be understood on its own and not in the light of the meaning that may be assigned to the word in the Industrial Policy. 25. I am unable to accept the submission. Any attempt to view the Government resolution, dated 3.9.1996 in isolation and dehors the Industrial Policy would be destructive of the very object and purpose of the policy, for the implementation of which the resolution was made. I am, therefore, of the considered opinion that the word Utpadan(production) used in the Government policy and the Boards circular must take its colour from the Industrial Policy and must receive the same meaning as given to the word in the Industrial Policy. 26. Coming then to the Industrial Policy, Mr. Jha submitted that the policy allowed different incentives to different kinds of industries. He cited in particular the sales tax incentive and making a reference to explanation 1 of clause 2 of the definitions he pointed out that the concessions/benefits relating to sales tax were admissible only to industrial units which carried on the business of manufacturing goods for sale. Learned counsel submitted that exemption from A.M.G. charges was similarly admissible only to industries engaged in production and service based industries could claim power incentives other than exemption from A.M.G. charges, namely, those enumerated at clauses (b), (c) and (d) of paragraph 9.6 of the policy statement. 27. Learned counsel submitted that exemption from A.M.G. charges was similarly admissible only to industries engaged in production and service based industries could claim power incentives other than exemption from A.M.G. charges, namely, those enumerated at clauses (b), (c) and (d) of paragraph 9.6 of the policy statement. 27. The submission of Mr. Jha appears to be highly laboured and it does not appeal to me. If non-production and service based industries were intended to be excluded from the exemption from payment of A.M.G. charges and the only sops available to them were those enumerated at clauses (b) to (d) of paragraph 9.6 then that could have been said simply and straightly in paragraph 9.6 of the policy statement itself or in clause 2 of the definitions, as in the case of sales tax incentive. The exclusion of non-production industries from exemption from payment of A.M.G. charges by using the woid production in the definitions of new industrial unit (clause 4) and the date of production (clause 11) appears to be highly far-fetched, to say the least. 28. On a careful consideration of the entire matter I find myself in agreement with the submission of Mr. M. Mauli that the nature and kind of industries to which the power incentive of exemption from payment of A.M.G. charges is extended is to be judged on the basis of clause 2 of the definitions read with paragraph 15.1 of the policy statement and clauses 4 and 11 of the definitions relate to the period of time for udging whether the industrial unit came within the period fixed by the Industrial Policy. In clauses 4 and 11 the expression gone into production and starts commercial production are used also to mean going into operation and starting commercial operation, in the case of non-production, service based industrial units. 29. On the basis of the discussions made above, I come to the conclusion that the cold storage is also covered by the Industrial Policy and consequently by the Government resolution, dated 3.9.1996 and the Boards circular, dated 11.10.1996. 30. Then comes the question whether or not the cold storage of the petitioner came into operation, as claimed, on 25.8.2000. 29. On the basis of the discussions made above, I come to the conclusion that the cold storage is also covered by the Industrial Policy and consequently by the Government resolution, dated 3.9.1996 and the Boards circular, dated 11.10.1996. 30. Then comes the question whether or not the cold storage of the petitioner came into operation, as claimed, on 25.8.2000. On behalf of the Board it was stated that the electricity line of the cold storage was admittedly energised on 25.4.2001 and hence, there is no question of the cold storage coming into operation from a date prior to 31.8.2000, the outer limit prescribed by the Industrial Policy. Mr. M. Mauli submitted that the date of first production was not dependent upon the date when electricity connection was given by the Board and in support of the submission he relied upon a Supreme Court decision in M/s Vijay Enterprises & Ors. V/s. Sales Tax Officer & Ors., A.I.R. 1992 SC 760. He brought to my notice a number of documents in support of the case that the cold storage had come into operation from 25.8.2000. Mr. Jha tried to pick many holes in the documents relied upon by the petitioner. 31. The question whether the cold storage came into commercial operation from 25.8.2000 is a question of fact which is required to be determined on the basis of relevant materials. I, therefore, leave this issue to be decided by some competent authority in the Board. The petitioner is directed to appear before the Member Finance (Revenue) of the Board within a fortnight from today and to produce before him all materials in support of his claim that the cold storage had come into commercial operation from 25.8.2000. The Member Finance will examine the materials produced by the petitioner and the Board and after hearing both the sides pass an order recording the finding whether or not the cold storage came into commercial operation from 25.8.2000. The petitioners claim for exemption from payment of A.M.G. charges shall abide by the decision of the Member Finance. It is expected that the Member Finance will pass a final order within three months from the date of appearance of the petitioner before him. 32. In the result, this writ petition is allowed partly and to the extent indicated above. There will be no order as to costs. Order dated 5.12.2002. It is expected that the Member Finance will pass a final order within three months from the date of appearance of the petitioner before him. 32. In the result, this writ petition is allowed partly and to the extent indicated above. There will be no order as to costs. Order dated 5.12.2002. This case has been brought under the heading "To Be Mentioned" at the instance of petitioner. The name of the petitioner is M/s Keshav Sheet Girh Pvt. Ltd. In the Judgment and order dated 30.10.2002 due to inadvertance the word Sheet has been written as Steel. That is an error. Let that be corrected to read as Keshav Sheet Grih Pvt. Ltd.. Let correction be also made in the certified copies of the order, if any has been issued. By that judgment the matter has been remitted to the Member Finance (Revenue) of the Bihar State Electricity Board for enquiry and decision on certain issues involved in the case. The Court is informed that the post of Member Finance (Revenue) remains vacant for the past some months and the matter may be delayed inordinately till that post is filled up. In this circumstances, Mr. Mohit Kumar Shah, counsel appearing for the Board and Mr. Mrigank Mauli, counsel for the petitioner agree that the issue may be remitted to the Financial Controller No. 1. The petitioner is accordingly directed to appear before the Financial Controller No. 1, who will examine the matter and pass the order as directed in the judgment.