JUDGMENT : C.L. Soni, J. 1. The present petition is filed under Article 226 and 227 of the Constitution of India seeking to direct the respondents to grant benefits of exemption from payment of electricity duty from 02.06.2003 to 01.06.2008 for its industrial unit at village Motibhoyan, Tal.Kalol, District: Gandhinagar and to refund the amount of electricity duty paid by the petitioner in excess of the amount arrived at for exemption of duty. 2. The case of the petitioner is that it had started job work activities at village Vatva at District: Ahmedabad ('Vatva unit', for short) in the year 2007 where no production activities were undertaken. However, it started its production/manufacturing unit at village Motibhoyan at District: Gandhinagar ('Motibhoyan unit', for short) on 02.06.2003 where separate meter for recording of the consumption of electricity was installed on 01.08.2003. The unit at Motibhoyan is separate and distinct industrial undertaking and for such industrial undertaking the petitioner applied for exemption from payment of electricity duty and as per Section 3 (2) (vii) (b) of the Bombay Electricity Duty Act, 1958 ('the Act', for short), the petitioner was entitled to exemption from payment of electricity duty for first five years. However, it was granted the benefit of the exemption from 01.08.2003 to 31.08.2007 curtailing the benefit for eleven months. 3. The petition is opposed by affidavit-in-reply mainly on the ground that the petitioner is entitled to benefit of exemption from payment of electricity duty for five years from the date on which its industrial undertaking commences for the first point of time manufacturing or production activities, however, since the petitioner had started a job work activity at its unit at Vatva, from 01.09.2002 the period of exemption has been reduced by nine months as it is the continuous industrial undertaking of the petitioner. It is also stated that the certificate of incorporation and Sales-tax Registration Certificate as also the Sales-tax certificate with Memorandum of Articles of Association of the petitioner revealed that the manufacturing activity of the petitioner at Motibhoyan is the branch of Vatva unit and the description of the machineries installed at Vatva unit and at Motibhoyan unit were shown to comply with the eligibility criteria given under explanation of Section 3(2)(vii)(b) of the Act and thereby the petitioner has intentionally tried to defraud the authority by giving deceptive claim for exemption. It is stated that the Unit at Motibhoyan is not a new industrial undertaking but is a continuous activity of industrial undertaking at Vatva and therefore the petitioner is made entitled to the exemption for the period from the date of commencing Vatva unit. 4. Learned advocate Mr. Pujara for the petitioner submitted that as per the provisions of Section 3(2)(vii)(b) of the Act, the petitioner was entitled to have exemption for full five years for its new industrial undertaking at Motibhoyan, however, new unit of the petitioner at Motibhoyan is being wrongly construed as continuing activity of unit at Vatva. He submitted that any company or any person can have more than one industrial undertaking. Mr. Pujara submitted that the unit at Vatva which is far away from the unit at Motibhoyan was distinct and separate and at unit of Vatva only job-work was carried out whereas at the unit of Motibhoyan the petitioner is undertaking manufacturing/production activities. Mr. Pujara submitted that when the petitioner is considered eligible for statutory exemption from payment of electricity duty for its industrial undertaking at Motibhoyan, the petitioner was entitled to full five years benefits of exemption and it was not open to the respondents to consider the unit at Motibhoyan as continuing industrial undertaking of the unit of Vatva. Mr. Pujara submitted that not only the activities at Vatva were separate and distinct but even it is not the case of the respondents that with same machineries, same plants and with the same kind of activities, the unit at Motibhoyan is started by the petitioner. Mr. Pujara submitted that the petitioner has not claimed any exemption in connection with Vatva unit and its Vatva unit was already closed. Mr. Pujara submitted that since the petitioner has satisfied the criteria as per the provisions of the Act to claim exemption for its new industrial undertaking at Motibhoyan, the Court may accept the petition and grant the relief as prayed for in the petition. 5. Learned Assistant Government Pleader Mr. Rakesh Patel submitted that the Unit at Motibhoyan is an expansion of the unit of the petitioner at Vatva. 5. Learned Assistant Government Pleader Mr. Rakesh Patel submitted that the Unit at Motibhoyan is an expansion of the unit of the petitioner at Vatva. He submitted that the unit at Motibhoyan is not a new industrial undertaking but it is a continuous activity of Vatva unit and therefore for the purpose of granting exemption for five years, the period from the date of starting industrial activity at Vatva unit till the date the petitioner started its industrial activity at Motibhoyan is not considered. Mr. Patel submitted that the legislative intent is to encourage new industry and the date of granting exemption to such new industrial undertaking is from the date it starts manufacturing activity. He submitted that the petitioner is having same sales-tax number, same registration of incorporation of the company and just by describing different machineries for Motibhoyan unit, the petitioner tried to get the benefit of exemption for five years in the name of Motibhoyan unit. He submitted that since the petitioner has commenced the industrial activity since 2002 from its Vatva unit, the petitioner is not entitled to claim benefit for full five years for Motibhoyan unit. He thus urged the Court to dismiss the petition. 6. The Court, having heard learned advocates for both the sides, finds that the exemption certificate granted to the petitioner, copy whereof is placed at Annexure-A, is for its Motibhoyan unit. However, it is not for full five years. Initially the period of exemption mentioned in the certificate was from 15.10.2003 to 31.08.2007. Thereafter by corrigendum it was made from 01.08.2003 to 31.08.2007 i.e. 11 months sort of five years. In the certificate, it is clearly stated that M/s. Ranavsariya Polypack Pvt. Ltd., Motibhoyan is an industrial undertaking entitled to exemption from payment of electricity duty under Clause: (vii) (a) or (b) of sub-section (2) of Section 3 of the Act. But the period of five years is curtailed to four years and one month. The reason for such curtailment, as stated in affidavit-in-reply, and as submitted by learned Assistant Government Pleader Mr. Rakesh Patel is that Motibhoyan unit is expansion of Vatva Unit as the activity of Vatva unit has been continued at Motibhoyan. It is not in dispute that Vatva unit is in different district and at distant place than Motibhoyan unit. The reason for such curtailment, as stated in affidavit-in-reply, and as submitted by learned Assistant Government Pleader Mr. Rakesh Patel is that Motibhoyan unit is expansion of Vatva Unit as the activity of Vatva unit has been continued at Motibhoyan. It is not in dispute that Vatva unit is in different district and at distant place than Motibhoyan unit. It is also not the case of the respondents that the machineries, workers and other materials of Vatva unit are installed or used at Motibhoyan. It is also not the case that the petitioner either claimed or granted any exemption for Vatva unit. 6.1 Section 3(2)(vii)(b) of the Act reads as under: "3. Duty on units of energy consumed:- (1) ... xxx (2)(i) ... (vii) for motive power and lighting in respect of premises used by an industrial undertaking for industrial purpose, until the expiry of the following period, that is to say:- (a) ..... xxx (b) in the case of new industrial undertaking established on or after the commencement date, which does not generate energy for its own use, five years from the commencement date or the date on which industrial undertaking commences for the first time manufacture or production of goods whichever is later]: Provided that no industrial undertaking shall be entitled to exemption from payment of electricity duty under this clause, unless it has obtained a certificate regarding eligibility for such exemption in prescribed form by making an application therefor in prescribed form and within prescribed period to such officer as the State Government may, by notification in the Official Gazette, specify." 6.2 As provided in Section 3(2) (vii) (b) of the Act, in case of new industrial undertaking established on or after the commencement date, which does not generate energy for its own, the electricity duty shall not be leviable on the units of energy consumed for five years from commencing date or the date on which the industrial undertaking commences for the first time manufacture or production of goods whichever is later. Such entitlement is however subject to obtaining certificate regarding eligibility for such exemption in the prescribed form by making application within time limit. In the present case, the eligibility certificate at Annexure-A is given to the petitioner for Motibhoyan unit. 7. The exemption under the above said provision is available to new industrial undertaking. Such entitlement is however subject to obtaining certificate regarding eligibility for such exemption in the prescribed form by making application within time limit. In the present case, the eligibility certificate at Annexure-A is given to the petitioner for Motibhoyan unit. 7. The exemption under the above said provision is available to new industrial undertaking. For the purpose of Clause (vii) of sub-section (2) of Section 3 of the Act, 'a new industrial undertaking' is defined as under: "...... (ii) "a new industrial undertaking" means any-such industrial undertaking which - (a) is not formed by the splitting up or the reconstruction of a business or undertaking already in existence in the State; or (b) is not formed by transfer to a new business or undertaking of a building, machinery or plant previously used in the State for any industrial purpose, of such value in relation to total investments, as the State Government may, by notification in the Official Gazette, specify; or (c) is not an expansion of the existing business or undertaking in the State." 8. As per the above meaning of 'a new industrial undertaking' if any industrial undertaking falls within any of the categories described in Clause (a), (b) or (c), it shall not be considered as new industrial undertaking and that will not be entitled to exemption. However, the industrial undertaking of the petitioner at Motibhoyan is found to be eligible and entitled for exemption from the payment of the electricity duty under sub-section (2) (vii) (b) of Section 3 of the Act. If the unit at Motibhoyan was an expansion of Vatva unit, as submitted by learned Assistant Government Pleader Mr. Patel, it would not have become entitled to benefit of exemption under the above said provision. But the fact that it was considered eligible and entitled for exemption from payment of duty under above said provision would disentitle the respondents from considering the industrial undertaking of the petitioner at Motibhoyan as an expansion of Vatva unit. 9. Any company, a person or a legal entity can have more than one industry. The exemption is available under provisions of sub-section (2) of Section 3 of the Act to an industrial undertaking and not to the company, person or any legal entity. 9. Any company, a person or a legal entity can have more than one industry. The exemption is available under provisions of sub-section (2) of Section 3 of the Act to an industrial undertaking and not to the company, person or any legal entity. Therefore, simply because the petitioner company has its one unit at Vatva, which was stated to be later on closed, the establishment of industrial undertaking at Motibhoyan would not relate back to the date of establishment of unit at Vatva for the purpose of considering the period of exemption to be granted to the industrial undertaking of the petitioner at Motibhoyan. Once the petitioner is granted eligibility certificate for its Motibhoyan unit, which as stated in the certificate is found to be entitled to exemption, the period of exemption could not have been curtailed just on the ground that it is an extended business of the Vatva unit. 10. Learned Assistant Government Pleader Mr. Patel, however, would rely on the decision of Hon'ble the Supreme Court of India in the case of State of Gujarat vs. Saurashtra Cement and Chemical Industries Ltd. reported in 2003 (2) GLR 1275. In the said decision, the Apex Court, in paras: 7, 8, 9 and 10, has held and observed as under. "7. Crucial question for consideration before us is whether it is a case of expansion of an existing unit. The case of expansion of an industrial undertaking would qualify for exemption under Sec. 15C of the Income-Tax Act while in view of sub-clause (ii) (c) of Explanation 1 contained in the Bombay Electricity Duty Act, 1958, an existing business undertaking would not qualify for exemption from electricity duty. Para 18 of the judgment in Textile Machinery Corpn. (supra) throws considerable light on the controversy before us. Para 18 reads as below: "18. The assessee continues to be the same for the purpose of assessment. It has its existing business already liable to tax. It produced in the two concerned undertakings commodities different from those which he has been manufacturing or producing in its existing business. Manufacture or production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under Sec. 15C Sub-sec. Manufacture or production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under Sec. 15C Sub-sec. (6) of the Section also points to the same effect, namely, production of articles. The answer, in every particular case depends upon the peculiar facts and conditions of the new industrial undertaking on account of which the assessee, claims exemption under Sec. 15C No hard-and-fast rule can be laid down. Trade and industry do not run in earmarked channels and particularly so in view of manifold scientific and technological developments. There is great scope for expansion of trade and industry. The fact that an assessee by establishment of a new industrial undertaking expands his existing business, which he certainly does, would not, on the score, deprive him of the benefit under Sec. 15C. Every new creation in business is some kind of expansion and advancement. The true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee, but whether it is all the same a new and identifiable undertaking, separate and distinct from the existing business. No particular decision in one case lay down an inexorable test to determine whether a given case comes under Sec. 15C or not. In order that the new undertaking can be said to be not formed out of the already-existing business, there must be a new emergence of a physically separate industrial unit which may exist on its own as a viable unit. An undertaking is formed out of the existing business if the physical identity with the old unit is preserved. This has not happened here in the case of the two undertakings which are separate and distinct." 8. It will be seen from the facts on record in the present case that the so-called new unit/undertaking is not totally independent of the assets of the existing unit. Admittedly, certain assets, to which reference has already been made, are being utilized in the manufacturing activity carried on by the new unit. It cannot be said that the new unit is completely independent or that the new unit could do without the assets of the existing unit. If use of the old plant and machinery etc. Admittedly, certain assets, to which reference has already been made, are being utilized in the manufacturing activity carried on by the new unit. It cannot be said that the new unit is completely independent or that the new unit could do without the assets of the existing unit. If use of the old plant and machinery etc. was necessary to complete the manufacturing process the process of manufacture of cement on its own as a viable unit. The new unit is dependent on the existing assets. A physical identity with the old unit is preserved. In view of the exception carved out in the definition of a new industrial unit contained in the Act, it cannot be said that the respondent is entitled to exemption from electricity duty. 9. To appreciate the exception contained in Explanation 1 to sub-clause (ii)(c) of Sec. 3(2)(vii)(b), it is necessary to understand the meaning of the word "expansion". The words "expansion" is a noun derived from the word "expand", which is a verb. The word "expand" means to become greater or bigger in size, to spread out. As per the New Shorter Oxford Dictionary, the word "expand" means : 1. v.t. Spread or stretch (a thing) out. 2. Become extended; spread out, unfold. 3. v.t. Give full expression to. 4. v.t. Widen the boundaries of, increase the area, scope etc., of; enlarge, dilate, 5. v. t. Become greater in area, bulk, capacity etc; become larger; increase the scope of one's activity or the scale of operations of something; take in or go into a new area of activity. 10. This meaning is to be applied to the facts on record. The respondent - Company when it initially started had a production capacity of 660 metric tons which was subsequently increased to 1,000 metric tons. In 1969-70 by setting up the alleged new unit, production capacity of the Company more than doubled. But as already seen this unit is not self-contained. It is not an independently viable unit. It is dependent on various items of plant and machinery and mills of the existing unit. Further, the respondent was having two kilns and a third is added. This leads to the inevitable conclusion that the new unit is an expansion of an existing undertaking in the State. It is not an independently viable unit. It is dependent on various items of plant and machinery and mills of the existing unit. Further, the respondent was having two kilns and a third is added. This leads to the inevitable conclusion that the new unit is an expansion of an existing undertaking in the State. Once, it is held to be a case of expansion, the claim for exemption from electricity duty, set up by the respondent, completely falls to the ground. In the facts and circumstances of the case, we are clearly of the view that the respondent is not entitled to exemption from electricity duty. The High Court failed to apply the real test which emerges from the judgment of this Court in Textile Machinery Corpn. (supra) which was affirmed in a subsequent decision in Bajaj Tempo Ltd. v. C.I.T., Bombay, 1992 (3) SCC 78 : AIR 1992 SC 1622 . Accordingly, this appeal is allowed. The judgment of the High Court under appeal is set aside. The respondent is held not entitled to exemption from electricity duty." However, said decision shall have no applicability to the facts of the case as in the said case it was found, as a matter of fact, that the respondent was making use of existing mills, crushers, belts, cranes, packing plants etc. and it was found that so-called new unit/undertaking was not totally independent of the assets of existing unit. 11. In the case on hand, it is not the case of the respondents that the petitioner has made use of its existing unit at Vatva for the purpose of activity at its Motibhoyan unit by using any machinery, plants, etc. of the Vatva unit. It is also not the case that Motibhoyan unit is, in any manner, dependent on the assets of the unit at Vatva. As stated above, the Vatva unit was far away in different district than the unit at Motibhoyan. In such view of the matter, the industrial undertaking of the petitioner at Motibhoyan could not be said to have been covered by any of the categories mentioned above in clause-(a), (b) or (c). As stated above, the Vatva unit was far away in different district than the unit at Motibhoyan. In such view of the matter, the industrial undertaking of the petitioner at Motibhoyan could not be said to have been covered by any of the categories mentioned above in clause-(a), (b) or (c). In any case, it is considered to be an industrial undertaking eligible and entitled for the exemption from duty and once it is found to be eligible for exemption, it was to be granted exemption from the payment of duty under the above said provision for full five years, especially when the petitioner never claimed any benefit of exemption for its Veraval unit and also the benefit of curtailed period of eleven months is not assigned for Vatva unit. This period of eleven months is just deducted without any lawful reason which resulted into a denial of the benefits of exemption to the petitioner for full five years for its industrial undertaking at Motibhoyan unit. Such denial to the petitioner is contrary to the statutory right of exemption from the payment of electricity duty available to the petitioner and in arbitrary way. However, the benefit of exemption would not be available to the petitioner from 02.06.2003 as claimed in the petition because it is the case of the petitioner that it got meter established at Motibhoyan on 01.08.2003. It would be thus taken that the petitioner started its activity in its industrial undertaking at Motibhoyan on and from 01.08.2003. The petitioner could be thus made entitled to benefit of exemption for the period from 01.08.2003 to 31.07.2008. 12. In view of the above, this petition is allowed in part. The petitioner is held entitled to benefit of exemption under Section 3(2)(vii)(b) of the Act for its industrial undertaking at Motibhoyan for the period from 01.08.2003 to 31.07.2008. The respondents are directed to refund the amount of electricity duty recovered from the petitioner for the period of nine months i.e. the period curtailed from the period of exemption available to the petitioner, within a period of two months from the date of receipt of this order. 13. Rule made absolute to the aforesaid extent. Petition Partly Allowed