The main legal point established in the judgment is that the transaction of supplying electricity to the occupants of the commercial complex is a service exigible to Service Tax under the Finance Act, 1994.

JUDGMENT :

1. The petitioner has sought a declaration that, supply of electricity by the petitioner to the occupiers of "Galaxy Mall", a commercial complex, is not a service exigible to tax under the Finance Act, 1994.

2. Learned Advocate appearing for the petitioner has submitted that, the petitioner has a commercial complex developed and operated under the name and style of "Galaxy Mall" lying and situated at Asansol. The Commercial Complex has various occupants. In order to effect electric supply to the commercial complex, the petitioner entered into an agreement on October 26, 2010 with DPSC Ltd. (now known as Indian Power Corporation Ltd.). Such licensee provides electric supply through an 11KV substation installed at the commercial premises. The licensee raises a single consolidated electricity bill upon the petitioner. The petitioner on receipt of electric supply redistributes the same to the occupiers of the commercial complex. The petitioner has installed sub- meters for the respective occupiers. Based on the readings of such sub-meters, the petitioner raises bills upon such occupiers. The petitioner initially collected Service Tax. However, upon objections being raised by the some of the occupiers, the petitioner consulted the Superintendent of Service Tax, ST II Commissionerate for determining whether such redistribution of electricity was exigible to Service Tax under the Act of 1994 or not. The Superintendent of Service Tax held the view that, such a service is exigible to tax. The petitioner had obtained legal advice which was of a contrary view than the Superintendent of Service Tax. Thereafter, the petitioner by its letter dated January 30, 2015 intimated the respondent no. 3 that, it was not liable to pay Service Tax. The Assistant Commissioner of Service Tax, by a letter dated March 27, 2015, held the view that, the redistribution of electricity by the petitioner was eligible to Service Tax.

3. Learned Advocate for the petitioner has submitted that, the action of redistribution of electricity is a sale/trading activity. It cannot be termed as a service. Absence of any licence under the Electricity Act, 2003 does not mean that, the petitioner is not selling or trading in electric supply. According to him, electricity is a 'goods'. He has referred to Chapter 27 of the Central Excise Tariff Act, 1985 and submitted that, it incorporates electrical energy under the heading 271160000 thereof as a 'good'. The West Bengal Value Added Tax Act, 2003 includes electrical agency as a 'good' capable of being bought and sold and exempt the same from any levy thereunder. He has referred to Section 21 of the West Bengal Value Added Tax Act, 2003. He has also relied upon the definition of 'electricity' under the Electricity Act, 2003, particularly Section 2(15), 2(23), 2(70) and 2(71) thereof. He has also referred to Regulation 4.2.3 of the West Bengal Electricity Regulatory Commission (Recovery of Expenditure for Providing New Actions) Regulation, 2013.

4. Relying upon (State of Andhra Pradesh v. National Thermal Power Corpn. Ltd., 2002 (5) SCC 3) learned Advocate for the petitioner has submitted that, electricity is a 'good' and is capable of being traded. He has relied upon (Aluminium Co. v. State of Kerala, (1996) 7 SCC 637) for the proposition that, electricity or electrical energy can be sold. Moreover, the entire transaction of supplying electricity from the point of its generation to the point of its consumption is treated as being part of a sale of goods. According to him, the absence of any authorisation to supply electricity does not change the nature and character of the sale. He has submitted that, at best, unauthorised supply of electricity may invite penalties under the Electricity Act, 2003. However, even if such penalties are imposed, the transaction will not loose the character of a sale. He has submitted that, redistribution of electricity such as that undertaken by the petitioner falls within the scope of sale/