JUDGEMENT 1. The petitioners have filed this petition under Articles 226 and 227 of the Constitution of India praying for a direction quashing and setting aside the action of the respondents in demanding electricity duty at 35% of consumption charges under entry 4[a] of part I of Schedule I treating manufacture of Dal from Dhana as eatables and for directing the respondents to continue to treat the industrial undertaking falling under entry 5[b] chargeable to duty at 10% of consumption charges. The petitioners have also prayed for a declaration that Dal manufactured out of Dhana (Coriander-seeds) cannot be considered as eatable for the purpose of Section 2(bb) of the Bombay Electricity Duty Act, 1958 as amended by Act 17 of 1983 and it cannot be subjected to duty at 35% of consumption charges under Entry 4(a) of Part-1 of Schedule-I to Bombay Electricity Duty Act, 1958. The petitioners have also prayed for other consequential reliefs. 2. The brief facts leading to the case of the present petitioners are that all the petitioners are traders and they are engaged in manufacturing of Dal from Dhana (Coriander-seeds). The petitioners are consumers of low tension electric supply from the Ahmedabad Electricity Company. The petitioners have been carrying on business of manufacturing Dal from Dhana (Coriander-seeds) since last several years. 3. Heard Mr. Manish Bhatt, learned Senior Counsel appearing with Ms.Mauna Bhatt, for the petitioners and Mr.Alkesh Shah, learned A.G.P. for the respondent State and Mr. K.B.Pujara, learned advocate for respondent No.2. 4. Mr.Bhatt, learned Senior Counsel appearing with Ms. Mauna Bhatt, for petitioners submitted that the order dated 11.8.1986 impugned before this Court shows non-application of mind on the part of the Dy. Secretary, inasmuch as the same is a non-speaking order. It is submitted that he has even not referred to the order passed by the Government of Gujarat through its Dy. Secretary in another matter wherein a similar controversy was raised and it was held that the word “eatables” means an article of food or a thing which can be eaten as food. 5. Mr. Bhatt submitted that the Dy. Secretary has not appreciated one sound argument advanced by the petitioners inasmuch as, when there were eight similarly situated parties, there was no justification for the Collector in accepting the case of four and rejecting the case of remaining four. 5. Mr. Bhatt submitted that the Dy. Secretary has not appreciated one sound argument advanced by the petitioners inasmuch as, when there were eight similarly situated parties, there was no justification for the Collector in accepting the case of four and rejecting the case of remaining four. Thus, this shows that the Collector has adopted the pick and choose method. An artificial classification made by the Collector and preferring four parties as against the petitioners is patently unjust, arbitrary and wrong. The Dy. Secretary has not assigned any reason as to why different treatment was given to the petitioners vis-a-vis the other four parties who were before the High Court earlier and whose claim was subsequently accepted by the Collector. 6. Mr. Bhatt further submitted that neither the Collector of Electricity duty nor the State Government has appreciated the controversy in its proper spirit and perspective, inasmuch as what is important is an undertaking and not the party who is engaged in any business. It is a settled law that a person can have separate undertakings in respect of different products or purposes. 7. Learned advocate for the petitioners submitted that both the authorities below have grossly erred in not appreciating that Dhana-Dal cannot be considered to be eatable. The word eatable has to be taken in its proper context and meaning. Everything which is edible is not eatable. Anything which is taken by mouth cannot be considered to be eatable. Because something can be eaten, it cannot be covered under the provisions of the Act. In that context, the word eatable, therefore, has to be read and interpreted to mean something which is fit to be eaten as food or something good to be eaten. Biscuits and breads are eatable, but flour is not eatable. If vegetable ghee is not edible, how can Dhana Dal be considered as eatable. Both the authorities have failed to appreciate that there are several such commodities or articles which are, though eaten by mouth are not considered as eatable. He submitted that both the authorities have failed to appreciate that there are several such commodities or articles which are though eaten by mouth are not considered as eatables for the purpose of the Act. The authorities have failed to appreciate that in common parlance, dhana dal is never treated as eatable, but it is treated as “mukhwas” or as item of “pan masala”. The authorities have failed to appreciate that in common parlance, dhana dal is never treated as eatable, but it is treated as “mukhwas” or as item of “pan masala”. There are various similar commodities like sugar, gur, tobacco, jaggery etc., which are though eaten directly are not considered as eatables for the purpose of Section 2(bb) of the Act. Similarly variyali, drakshawati, ghulkand, hajmola, sopari are all eaten, but they are not treated as eatables under the provisions of the Act. 8. Learned advocate for the petitioners further submitted that both the authorities have failed to appreciate that while the definition of eatables under Section 2(bb) was amended with effect from 11.18.1983, the petitioners were called upon for the first time in September, 1985 to make payment of electricity duty at the higher rate from retrospective effect. If the authorities were not sure as to whether Dhana-Dal is eatable or not and when for the first time a decision was rendered by the Collector on 23.5.1986 it is not appreciated as to how any demand can be made for the past period from October 11, 1983. This Court has rightly recorded, while disposing of Special Civil Application No.697 of 1986, that there was no decision taken by the Collector and hence the petitioners were required to make a reference to the Collector and obtain appropriate decision. The decision was obtained only in May, 1986. This decision cannot operate with retrospective date. There are specific provisions under the Act and the Rules that if there are two units, a separate record of consumption is required to be maintained by the electricity company or by the Government and separate meter is required to be installed. For consumption of electricity duty of not exceeding 5% on the roasting process, petitioners cannot be called upon to pay duty at the higher rate for the entire process. As per the Collector’s own decision out of two units in respect of the process in first unit viz. making Dal out of Dhana there is no process of manufacturing of eatables but only in the second unit when roasting is done only eatables are manufactured. On this basis, both the units are required to be segregated and if at all duty is to be levied, that is in respect of the process involved in the second unit. 9. making Dal out of Dhana there is no process of manufacturing of eatables but only in the second unit when roasting is done only eatables are manufactured. On this basis, both the units are required to be segregated and if at all duty is to be levied, that is in respect of the process involved in the second unit. 9. Mr.Alkesh Shah, learned AGP appearing for the respondent State submitted that the dispute in the present petition relates to classification of the product in question under Entry No.4(a) as “eatables and drinks” or under Entry No.5 as “industrial undertaking” of Schedule-I to the said Act of 1958. He submitted that main parameter to decide whether the product in question falls within the category of “eatables and drinks” is whether the same can be eaten directly or not. He submitted that the petitioners have relied on the order passed by the State Government in M/s.Madhusudan Vegetable Products Ltd., in Appeal vide No.ELD-1184-5710-K dated 6.8.1984 and has submitted that the issue involved being of similar nature the State Government should have passed similar orders in the present case. He submitted that the case in Madhusudan Vegetable Products Ltd., deals with Vegetable Ghee, the said product cannot be used as “eatable and drink”, as the said product cannot be eaten directly. In other words “eatable” means which can be fit to be eaten directly. 10. Learned AGP further submitted that Section 2(bb) of the said Act mainly deals with the definition of “Industrial Undertaking” and Sub-section (i) of Section 2(bb) states that, “Industrial Undertaking” means an undertaking engaged predominantly in the manufacturing or production of goods (other than eatables or drinks). He submitted that the said definition read with Entry 4(a) of Schedule-I to the said Act makes it very clear that the unit of the petitioners is not an industrial undertaking and thus duty is to be levied at the rate of 35%. He submitted that Entry-5 of Schedule-I only applies to those items to which Entry 2 and 4 does not apply, here the present case falls under Entry 4(a). He submitted that Entry-5 of Schedule-I only applies to those items to which Entry 2 and 4 does not apply, here the present case falls under Entry 4(a). He submitted that the claim of the petitioners that they are using low tension energy and thus they are entitled to pay duty at the rate of 10% is not correct as Entry No.4(a) of Schedule-I to the Act nowhere stipulates such categorization, the said categorization as claimed for by the petitioners only applies to those cases who falls under Entry-5 of Schedule-I to the said Act. 11. Learned AGP further submitted that the claim of the petitioners that they are entitled to pay duty at the rate of 10% was considered by the authorities after the Amendment of 1991, whereby the definition of Industrial Undertaking being Section 2(bb), sub-section (i) came to be deleted and so was Entry No.4(a) of Schedule-I to the said Act. He submitted that after amendment of 1991 which came into force on 1.4.1991 the unit of the petitioner is considered as an “Industrial Undertaking”, as specified in Entry-5(a) and 5(b), thus duty is levied accordingly as specified in Entry-5 of Schedule-I to the said Act. 12. Mr.K.B.Pujara, learned advocate for respondent No.2 has supported the submissions advanced by the learned Assistant Government Pleader and and has submitted that the impugned orders have rightly been passed by the Competent Authority. It is submitted that the Collector of Electricity Duty, Ahmedabad, directed the respondent No.2 to levy duty at the rate of 35% under Schedule 1 Part I Entry 4(a) instead of 10% consumption charge under Entry 5(b) and to effect recoveries from 11.10.1983. It is submitted that the duty collected by respondent No.2 is passed on in full to the State Government and respondent No.2 acts as a collecting agent. 13. I have heard learned advocates for the respective parties and have gone through the averments made in the petition. The contention of the petitioners is that they are running an “Industrial Undertaking” consuming law tension energy and, therefore, they are liable to pay only 10% of the consumption charges as duty under item 5(b) of Part-I of the said Schedule-I. Therefore, the controversy or the dispute involved in this petition is as to which item in the Schedule is applicable to the petitioners for the purpose of assessing duty payable to them. Answer to this question depends upon whether the undertakings of the petitioners are industrial undertaking within the meaning of Section 2(bb) of the Act. 14. Now, Part-II of Schedule-I to the Act provides that where any dispute arises (i) whether any undertaking is an industrial undertaking or a new industrial undertaking or a service undertaking; (ii) whether any premises are used by an industrial undertaking for residential purpose or any other purpose; (iii) as to the item in the schedule under which any consumption of energy falls; and (iv) where energy is consumed for different purpose, as to what portion is consumed for a particular purpose, the same shall be referred for decision to such authority as the State Government may, by notification in the Official Gazette, specify and different authorities may be specified for different areas of the State. The authority concerned shall, after such inquiry, as it deems fit, record its decision. As pointed out above, petitioners have raised two disputes, namely (i) whether their undertaking is industrial undertaking, and (ii) which is the item in the Schedule under which the consumption of energy by them falls. In my opinion, these disputes which are raised by the petitioners would be covered by Part-II of Schedule I to the Act. In my opinion disputes raised by the petitioners squarely fall under Part-II of the Schedule, instead of going into the merits of the questions raised in the petition. The proper course to adopt is to resolve the dispute as provided in Part-II. 15. Section 2(bb) of the Act as well as in the Entry-4 to the Schedule-I the word used is “eatables” i.e. plural is used for eatables and drinks. The various dictionaries define “eatables” in different manner. The Reader’s Digest and Encyclopedia Dictionary Volume (1964 Edn.) defines eatables as “articles of food” which is a noun and which is used normally in plural form. (Page 281 of the dictionary) as per the dictionary, singular eatable is normally used as adjective while the plural form “eatables” is normally used as a noun. The Oxford Advanced Learners Dictionary on Current English defines eatables as adjective “as a thing fit to be eaten”. It also define as “good to eat”. However, this dictionary does not define “eatables” as noun (page 225 of the dictionary 1974 edition). The Oxford Advanced Learners Dictionary on Current English defines eatables as adjective “as a thing fit to be eaten”. It also define as “good to eat”. However, this dictionary does not define “eatables” as noun (page 225 of the dictionary 1974 edition). The Concise Oxford Dictionary - 6th Edition (1976) does not clearly define as eatable but says that it can be used as either adjective or noun and noun is used usually in plural. The first point which strikes is that in Section 2(bb) as well as in Entry-4 the word “eatables” is used and, therefore, it can easily be concluded that the word eatable is used as in Section 2(bb) as well as in Entry-4 of the Schedule-I to the Act. Therefore, the question to be determined is whether Dhana-Dal is “eatables”, the word eatables being used as noun. It is very clear that everything which is edible is not eatables e.g. salt is edible but is not eatable. Similarly, many other items or ingredients which are used in making an article of good are edible but are not eatable by themselves. Even the colour used in preparation of ice-cream and other good item is edible but it is not eatable. Biscuits and breads are eatable but flour from which biscuits and breads are made are not eatable. Similarly, groundnut, coconut, tils., etc are edible. 16. So far as Dal manufactured out of Dhana (Coriander-seeds) is concerned, it is used as “Mukhvas” after breakfast, lunch and dinner. This use is common to all sections of people in the State of Gujarat and in India as a whole. Normally people do not prefer to eat Dhana-Dal as breakfast, lunch and dinner. In my view Dhana-Dal itself does not become an article of food. 17. An article of food is normally a complete article by itself which can be consumed as a dish. Dhana-Dal is hardly listed as a dish in menu of any restaurant or hotel and housewives do not prepare Dhana-Dal as a dish. Dhana-Dal by itself is hardly eatable as “food” as defined in Oxford Advanced Learners Dictionary. In my view Dhana-Dal does not fall within the definition of the word “eatables” within the meaning of Section 2(2) and Entry-4(a) of the Schedule-I to the Act. Dhana-Dal by itself is hardly eatable as “food” as defined in Oxford Advanced Learners Dictionary. In my view Dhana-Dal does not fall within the definition of the word “eatables” within the meaning of Section 2(2) and Entry-4(a) of the Schedule-I to the Act. Therefore, Dhana-Dal is outside the ambit of Entry-4(1) of the Schedule-I to the Act and, therefore, falls within the ambit of Entry-5 of the Schedule-I to the Act. 18. It may also be noted that there is no manufacturing process involved in the making of Dal from Dhana. Even otherwise, it is not in dispute that in the undertakings of the petitioners, there are two units. In one unit Dhana Dal is made and in another, the Dal is roasted. In the process of roasting coal is used and consumption of electricity is negligible and during the course of this process, a roaster is used. It is therefore clear that substantial activity of the petitioners in manufacturing Dhana Dal does not result in manufacturing of eatables and therefore, higher rate of duty is not justified. 19. From the above discussion, it clearly emerges that respondents cannot be permitted to demand electricity duty from the petitioners at the rate of 35% of the consumption charges under Entry 4(a) of Part I of Schedule I. It is also apparent from a close scrutiny of the relevant provisions of law that `Dal manufactured from Dhana is not `eatables as discussed above. 20. In view of the above discussion, the orders impugned in the petition cannot be allowed to stand. The petition is, therefore, allowed. The orders impugned in the petition are quashed and set aside. Rule is made absolute to the aforesaid extent. There shall be no orders as to costs. (DRD) (No order as to costs)