JUDGMENT : Rajesh H. Shukla, J. The present petition has been filed by the petitioner - Indian Oil Corporation Ltd. under Articles 12, 14, 19(1)(g) & 226 of the Constitution of India as well as under the Indian Electricity Act, 1910 and also under the Electricity Act, 2003 read with Bombay Electricity Duty Act, 1958 for the prayers: “(A) this Hon'ble Court may be pleased to issue a Writ or Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction, quashing and setting aside the supplementary bill dated 22.2.2005, notice u/s. 24 of the Indian Electricity Act, 1910 dated 15.3.2005 and the order dated 18.3.2005 passed by the respondent no.1; (B) this Hon'ble Court may be pleased to hold and declare that the respondents are not entitled in law and on facts to issue the impugned supplementary bill by treating the petitioner’s undertaking as a “service undertaking” (C) pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to restrain the respondents, their agents, subordinates from effecting any coercive recovery in respect of the supplementary bill dated 22.2.2005 and they may be restrained from dis-connecting the electricity supply to the petitioner’s pump station at Jamnagar bearing Consumer No.27125; (D)..... (E).....” 2. The facts of the case briefly stated are that the petitioner is a Company incorporated under the Companies Act, 1956 and is a Government of India Undertaking. The Petitioner Company is engaged in business of petroleum products and carry petroleum products to various parts of the country, including through pipeline. It is stated that Salaya - Mathura Pipeline is one of such pipeline of the petitioner undertaking. It is the case of the petitioner that an agreement has been entered into between the Respondent no.2-GEB and the petitioner for supply of electrical energy of 350 KVA for the purpose of pump station at Jamnagar and as per the agreement, the petitioner is billed as per tariff schedule applicable to HTP-I. It is the case of the petitioner that though it is an “Industrial Undertaking”, the Respondent No.1 has addressed a letter for charging the electricity duty applicable to “Service Undertaking”. It is stated that the Jamnagar installation is one such boosting station of Salaya - Mathura pipeline and the crude oil is pumped from different points to Mathura refinery, and therefore, the pumping station is a part of the manufacturing unit. However, the Respondent No.2 has addressed a notice for disconnection of electric supply on the ground that the petitioner cannot be treated as “Industrial Undertaking” as defined under Section 2(bb) of the Bombay Electricity Duty Act, and therefore, is liable to make the payment, which has lead to filing of the present petition. 3. Heard learned Senior Counsel Shri. M.R. Bhatt for M/s M.R. Bhatt & Co. for the petitioner and learned AGP Shri. Bipin Bhatt for Respondent No.1 and learned Advocate Shri. M.D. Pandya for Respondent No.2. 4. Learned Senior Counsel Shri. M.R. Bhatt referred to the background of the facts and submitted that the petitioner Company has been given the bills for HTP-I, meaning thereby, as an “Industrial Undertaking”. He further submitted that the supply of the crude oil for carrying in the pipeline from Salaya to Mathura is part of the manufacturing process, and therefore, it would be an “Industrial Undertaking”. He submitted that in fact the petitioner company has been registered under the Factories Act and the license has also been issued. Similarly, he has referred to a license to import and store. He has also referred to the certificate of Gujarat Pollution Control Board, which also referred to the unit as a Industrial Plant. He has also referred to the bills issued by the Respondent No.2 for the purpose of tariff category of HTP-I. Learned Senior Counsel Shri Bhatt therefore submitted that the petitioner is a “Industrial Undertaking” and cannot be termed as “Service Undertaking”. He referred to the correspondence at Annexure-A-2 dated 27.4.2004 addressed by the office of the Collector of Electricity Duty to the petitioner, asking for the clarification with regard to the activity, which has been followed by other letters dated 3.1.2005 and also a letter by Respondent No.2 dated 28.1.2005. The petitioner has, vide communication dated 15.3.2005 replied to the same that the installation has come into operation since 22.8.1997 and one of the boosting station of Salaya - Mathura pipeline. It is also stated that predominantly the installation and pump station are of manufacturing unit. The petitioner has, vide communication dated 15.3.2005 replied to the same that the installation has come into operation since 22.8.1997 and one of the boosting station of Salaya - Mathura pipeline. It is also stated that predominantly the installation and pump station are of manufacturing unit. Learned Senior Counsel Shri. Bhatt referred to the definition of “Industrial Undertaking” as provided in Section 2(bb) of the Bombay Electricity Duty Act, 1958 (hereinafter to as the “Duty Act”). He also referred to Schedule-I and submitted that as provided in item 5 regarding energy consumed by ‘Industrial Undertaking’, the duty would be payable and the petitioner would be liable accordingly. He also referred to the definition of “Service Undertaking” as defined in Section 2(ee) of the Duty Act and submitted that only those activities provided would be falling in the ‘Service Undertaking’ and the petitioner is not falling in any of the category, and therefore, it would be a ‘Industrial Undertaking’. Learned Senior Counsel Shri. Bhatt has referred to and relied upon the judgment of the Division Bench of the High Court reported in 2005 (1) G.L.R. 519 - Hindustan Petroleum Corporation Ltd. v. Gujarat Electricity Board and pointedly referred to the observations made in paragraph 5 and submitted that, in that judgment, it is observed that the establishment of the petitioner-Hindustan Petroleum Corporation Ltd. registered under the Factories Act, and as per Section 2k, manufacturing process means any process for pumping oil. Learned Senior Counsel Shri. Bhatt submitted that the petitioner is also a oil company and what is required to be considered is manufacturing process, which is undertaken by the petitioner. Learned Senior Counsel Shri. Bhatt submitted that while granting the HTP, it has been treated as ‘Industrial Undertaking’ by the Respondent No.2 Board and thereafter the Electricity Duty Inspector cannot be heard to say that for the purpose of tariff/duty, it would not be a ‘Industrial Undertaking’, but it would be a ‘Service Undertaking’. He again referred to and relied upon the judgment of the Division Bench of the High Court reported in 2004 (4) G.L.R. 2815 - Sharma Metal Rolling Mills & Anr. v. State of Gujarat & Ors. and pointedly referred to the observations made in the said judgment, including paragraph 6. He again referred to and relied upon the judgment of the Division Bench of the High Court reported in 2004 (4) G.L.R. 2815 - Sharma Metal Rolling Mills & Anr. v. State of Gujarat & Ors. and pointedly referred to the observations made in the said judgment, including paragraph 6. Learned Senior Counsel Shri Bhatt referred to this judgment to support his submission that the Hon'ble Division Bench had also the occasion to consider the definition of Section 2(bb) - ‘Industrial Undertaking’ and Section 2(ee) - ‘Service Undertaking’ and it has been observed quoting from the earlier judgment: “When we read section 2 (bb), the enactment has made it clear that even if an undertaking is engaged in any job work in manufacturing or production of goods, it will not go out of the purview of industrial undertaking irrespective of the fact that the said undertaking in manufacturing or producing adopts any one of the processes mentioned in Section 2 (ee). This makes it clear that, for categorising an undertaking under Section 2 (ee), it must be a service undertaking pure and simple. An undertaking is said to come under the service undertaking only when that undertaking serves the other party who approaches it for the purpose of services enumerated in Section 2 (ee). If in the process of such service any manufacture or production comes into existence, then also the said undertaking which renders such service will fall under definition of "industrial undertaking" mentioned in section 2 (bb)." 5. Learned Senior Counsel Shri. Bhatt emphasised the observations made in this judgment as regard the test which would be applied for deciding whether an undertaking is an Industrial Undertaking or Service Undertaking. Learned Senior Counsel Shri. M.R.Bhatt therefore submitted that the impugned notice is arbitrary and illegal. He further submitted that for change of such classification, no notice or hearing has been given, and therefore also, as observed in the judgment of the Hon'ble High Court reported in 2005 (1) G.L.R 519 (supra), it would be bad. 6. Learned Senior Counsel Shri. Bhatt has further submitted that the notice, which is said to have been issued is in purported exercise of power under Section 24(2) of the Indian Electricity Act, 1910, which has been repealed. 6. Learned Senior Counsel Shri. Bhatt has further submitted that the notice, which is said to have been issued is in purported exercise of power under Section 24(2) of the Indian Electricity Act, 1910, which has been repealed. He submitted that the Indian Electricity Act of 2003 come into force w.e.f. 2.6.2003, and therefore, any such communication, notice or order, which has been issued in exercise of a statutory provision of the repealed Act would be nullity. He also submitted that Section 185 provide that it will stand repealed. Therefore, learned Senior Counsel Shri. Bhatt submitted that the present petition may be allowed and the impugned order/notice may be quashed and set aside. 7. Learned AGP Shri. Bipin Bhatt has submitted that for the purpose of deciding whether the petitioner is a ‘Industrial Undertaking’ or a ‘Service Undertaking’, what is the activity carried on by the petitioner, is required to be considered. Learned AGP Shri. Bhatt strenuously submitted that there is no production and no manufacture of new item, and therefore, it could not be covered under the definition of ‘Industrial Undertaking’ as provided in Section 2(bb). He further submitted that there is no mention of any product or the goods which are manufactured. He also referred to and relied upon the notification dated 10.4.1991 to support his submission. Learned AGP Shri. Bhatt has also submitted that for the tariff, Schedule-I Item-7 provide a residuary clause, and in fact, the petitioner would fall under that category. He therefore submitted that the present petition may not be allowed. He submitted that the judgment of the Hon'ble High Court reported in 2005 (1) G.L.R. 519 (supra) is on a different context. 8. In view of this rival submissions, it is required to be considered whether the present petition can be allowed or not. 9. The real crux of the matter is whether the petitioner unit can be covered in the definition of ‘Industrial Undertaking’ as provided in Section 2(bb) of the Electricity Duty Act or it would be a ‘Service Undertaking’ as defined in Section 2(ee) of the Electricity Duty Act. The activity undertaken by the petitioner company is regarding pumping the crude oil with some force and process, by which it helps in transportation of the crude oil through the pipeline from different stages till the Mathura refinery. The activity undertaken by the petitioner company is regarding pumping the crude oil with some force and process, by which it helps in transportation of the crude oil through the pipeline from different stages till the Mathura refinery. It is required to be mentioned that though it could be termed as pumping station, it has some process, by which it is pushed forcibly in the manner that it reaches the next stage so that it could be transported to the refinery. The definition of ‘Service Undertaking’ is very clear and the activities of the petitioner would not fall in any of the categories provided in ‘Service Undertaking’. Therefore, by necessary implication, it has to be treated as a ‘Industrial Undertaking’, more particularly when the observations have been made by the Hon'ble Division Bench in a judgment reported in 2000 (4) G.L.R. 2815 (supra) dealing with the same provision of the law, i.e. the definition of ‘Industrial Undertaking’ and ‘Service Undertaking’ under the Electricity Duty Act for the purpose of electricity duty. The Division Bench was considering the amendment of the ordinance which was sought to be brought in by the State for the object stated thereunder in order to consider the applicability of the definition in a ‘Industrial Undertaking’ those units doing the job work. Further, the notification, which has been referred to by the learned AGP, also, on the contrary, provide clearly that the amendment is sought to be made for the purpose of removing certain category of units manufacturing eatable, soft drink products from the definition of ‘Service Undertaking’ The said notification clearly provide that most of the units would be covered under the definition of ‘Industrial Undertaking’ and a list of such undertaking was also prepared stating that it is illustrative and not exhaustive. At srl. no. 46, petrochemicals is also provided. It is also required to be mentioned that some of the units like those engaged in cutting, polishing of the items using marble and diamond etc. were also included in the definition of ‘Industrial Undertaking’. Therefore, what could be the test, which could be applied for the purpose of considering the unit as a ‘Industrial Undertaking’ or a ‘Service Undertaking’. It is also required to be mentioned that some of the units like those engaged in cutting, polishing of the items using marble and diamond etc. were also included in the definition of ‘Industrial Undertaking’. Therefore, what could be the test, which could be applied for the purpose of considering the unit as a ‘Industrial Undertaking’ or a ‘Service Undertaking’. As could be seen from the record as well as the rival submissions, the definition of ‘Industrial Undertaking’ has been on the contrary widen so as to cover even the units which were doing the job work, which has been discussed in the judgment of the Hon'ble Division Bench of the High Court reported in 2000(4) G.L.R. 2815 (supra). The Hon'ble Division Bench had also referred to the earlier judgment of the other Division Bench reported in 1988 (1) G.L.H 414 - Gujarat Re-Rolling Mills’ Association and others v. State of Gujarat and others. It appears that in a communication by the Respondent No.1 that there is no production on manufacturing of a new item, and therefore, it is not covered under the ‘Industrial Undertaking’, has been under some misconception inasmuch as it is not only the production or the manufacture, which is required to be considered, but the manufacturing process as provided in definition like Factories Act or even under the Central Excise Act etc. will have to be considered. The Hon'ble Division Bench in the judgment reported in 1988 (1) G.L.H 414 (supra) has made the observation, which has also been referred and quoted in subsequent judgment of the Hon'ble Division Bench reported in 2000(4) G.L.R. 2815 (supra): “When we read section 2 (bb), the enactment has made it clear that even if an undertaking is engaged in any job work in manufacturing or production of goods, it will not go out of the purview of industrial undertaking irrespective of the fact that the said undertaking in manufacturing or producing adopts any one of the processes mentioned in Section 2 (ee).” 10. Therefore, while deciding the issue, the Hon'ble Division Bench has observed that there was no justification for inclusion of re-rolling mills in ‘Service Undertaking’, and it is also observed that the word ‘Industrial Undertaking’ would include the job work. In the facts of the present case, the same analogy could be applied. 11. Therefore, while deciding the issue, the Hon'ble Division Bench has observed that there was no justification for inclusion of re-rolling mills in ‘Service Undertaking’, and it is also observed that the word ‘Industrial Undertaking’ would include the job work. In the facts of the present case, the same analogy could be applied. 11. The judgment of the Hon'ble Apex Court in Civil Appeal No. 5840 of 2004 referred to by the learned Senior Counsel Shri. M.R. Bhatt would also support the contention inasmuch as the word ‘Manufacturing Process’ referred to pumping oil, has been discussed, and it has been specifically stated that it may have a different meaning in different statutes like Factories Act and Central Excise Act. However, it is observed that Section 2(k) of the Factories Act, 1948, pumping oil is a manufacturing process, and therefore, once it is held to be a manufacturing process, it would be covered in the definition of ‘Industrial Undertaking’ as provided in Section 2(bb) of the Electricity Duty Act, and therefore, the present petition deserves to be allowed. 12. In view of the discussions made herein above with regard to the main controversy, the elaborate discussion on the another discussion of the argument made by learned Senior Counsel Shri. Bhatt that the notice is under the Repealed Act, which is sought to be issued, and therefore is nullity, does not require any further elaboration. It goes without saying that once the Act has been repealed, it will cease to have any force except as provided in the saving clause or this express provision in the substituted new legislature like Electricity Duty Act of 2003. Again, for the purpose of saving any action or the steps taken there, it has to be when the earlier Act was in force. In the facts of the present case, the notice impugned has been issued after the new Electricity Act of 2003 has come into force and the erstwhile Act has been repealed though the notice is issued in purported exercise of powers under Section 24 of the erstwhile repealed Act, 1910. Therefore, on that count also the submissions are well founded, and as stated, does not require any further elaboration in view of the findings and the reasonings with regard to the ‘Industrial Undertaking’ as defined in Section 2(bb) of the Electricity Duty Act. 13. Therefore, the present petition deserves to be allowed. Therefore, on that count also the submissions are well founded, and as stated, does not require any further elaboration in view of the findings and the reasonings with regard to the ‘Industrial Undertaking’ as defined in Section 2(bb) of the Electricity Duty Act. 13. Therefore, the present petition deserves to be allowed. The prayer in terms of paragraph 16(A) deserves to be granted. The impugned supplementary bill dated 22.2.2005 and notice under Section 24 of the Electricity Duty Act, 1910 dated 15.3.2005 and also the order passed by the Respondent No.1 dated 18.3.2005 are hereby quashed and set aside. The Respondent is restrained from disconnecting the supply for the recovery of the supplementary bill dated 22.2.2005. However, it will be open for the Respondent authorities to claim the amount of energy as per the rate charged on ‘Industrial Undertaking’. Rule is made absolute. FURTHER ORDER: After the order was pronounced, learned AGP Shri. Bhatt has requested that the operation of the order may be stayed to enable him to take recourse before the higher forum. Permission as prayed for is granted. Operation of this order is stayed up to 26th August 2013. Petition allowed.