P.K.MISRA, J.

1. In these writ petitions, the primary challenge is to the validity of the provisions contained in Section 3(1) of the Bihar Electricity Duty Act, 1948 (hereinafter referred to as the Act) and also regarding the validity of the notification issued by the State Government fixing the rate of duty payable by the various sugar mills and other organizations generating electricity in their own power plants.

The Act was enacted for the levy of duty on the sale and consumption of electrical energy in the State of Bihar. Its validity was once challenged in the Patna High Court mainly on the ground of lack of legislative competence. In decision reported in Indian Aluminium Co. and another V/s. State of Bihar (1992(1) PLJR 55), the validity of Section 3(2) of the Act was upheld by observing that the electricity duty imposed was a "tax" and a "fee" and the State had the necessary legislative competence.

1.1. The present challenge is on account of amendment to Section 3(1) and the consequential issuance of notifications under such amended provisions. To appreciate the contentions now raised by the parties it is necessary to notice the relevant provision of the Act and the notifications as amended from time to time.

1.2. Section 3(1) of the Act, as it originally stood, is extracted below: "3. Incidence of duty.(1) Subject to the provision of sub section (2), there shall be levied and paid to the State Government on the units of energy consumed or sold, excluding losses of energy in transmission and transformation a duty at the rate or rates specified in the Schedule."

1.3. Sections 4 and 5, which have remained unaltered, to the extent relevant, are extracted hereunder: "4. Payment of duty. (1) Every licensee or any person other than licensee who is liable to pay duty shall pay every month to the State Government, at the time and in the manner prescribed, the proper duty payable under section 3 and section 3A on the units of energy consumed or sold by him.

(2) xx xx xx xx

(3) xx xx xx xx

(4) Every person including any department of the State Government, other than a licensee, who generates energy for his own use or for the use of his employees, or partly for such use and partly for sale, shall pay every month at the time and in the manner prescribed the proper duty payable under section 3, on the units of energy consumed by him or his employees or sold by him.

(4a) Every person other than a licensee who obtains, for sale or partly for his own use and partly for sale, bulk supply of energy generated by a licensee or other person shall pay every month to the State Government at the time and in the manner prescribed, the duty payable under section 3 of the units of energy so obtained and sold or partly sold and partly consumed by him.

(5) The licensee or other person who is liable to pay duty under this Act shall, subject to the prescribed conditions, be entitled to a rebate of such percentage as may be prescribed on the amount of duty paid by him within the prescribed time."

5. Obligation to keep books of account and to submit returns.Every licensee, and every other person, who is liable to pay duty under sub-section (4) or (4a) of section 4, shall (a) keep books of account in the prescribed forms: and

(b) submit returns in such form and at such times and to such officers as may be prescribed."

1.4. The schedule, which was specified in the original Act, was subsequently amended by virtue of the Bihar Electricity Duty (Amendment) Act, 1993 (Act 15 of 1993). The said schedule, as amended, is extracted hereinder:

The Schedule

(See Section 3)

Serial No. Premises Rate of duty

1 2 3

1. For agricultural, irrigational and industrial purposes save in respect of its premises used for residential or office purposes. 2 paise per unit of energy.

2. For domestic purposes in all premises not falling under SI. No. 1 8 paise per unit of energy.

3. For mining purposes in all premises where total load does not exceed 100 B.H