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2011 Supreme(Guj) 97
2011(3) GLR 2098
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.J. MUKHOPADHAYA, K.M.THAKER
STATE OF GUJARAT & 2 - Appellant(s)
Versus
VADILAL GASES PVT LTD & 2 - Respondent(s)
LETTERS PATENT APPEAL No. 1751 of 2010 In SPECIAL CIVIL APPLICATION No. 9691 of 2000
Decided on : 25/02/2011
MR PRAKASH JANI GP for Appellant(s) : 1 - 3.
MS. DILBUR CONTRACTOR WITH MR PR NANAVATI for Respondent(s): 1,
MR SP HASURKAR for Respondent(s): 2 - 3.
Headnote:
Bombay Electricity Duty Act, 1958 - Schedule-1 of Part 2 - Gujarat State Electricity Board - Letters Patent Appeal - Appeal has been preferred by the State against the judgment and order passed by the learned Single Judge the said order, learned Single Judge allowed the writ petition preferred by the respondent-company, holding that the petitioner-company being a `manufacturing unit is req pay only 10% of the duty charges and not 60% as demanded by the appellants and set aside the demand order dated 06 issued by the Assessing Officer - Held, This apart even as per the decisions of Supreme Court referred to above, on mixture of two gases, as a change place and a new and distinct commodity known to the consumer and commercial community comes into existence commercial product, we hold that the petitioner-company is a manufacturer and fall within the definition of `in undertaking - Such finding having been given by the learned Single Judge, we find no case made out to interfere with the ju passed by the learned Single Judge - Appeal is dismissed.
S.J. MUKHOPADHAYA
The appeal has been preferred by the State against the judgment and order passed by the learned Single Judge dated 18.11.2 the said order, learned Single Judge allowed the writ petition preferred by the respondent-company, Vadilal Gases Private (hereinafter referred to as `the petitioner-company') holding that the petitioner-company being a `manufacturing unit' is req pay only 10% of the duty charges and not 60% as demanded by the appellants and set aside the demand order dated 06 issued by the Assessing Officer, Officer of Commissioner of Electricity Duty, Gandhinagar.
2. The writ petition was preferred by the petitioner-company claiming that it's unit is manufacturing various kinds of gas m registered as small scale industry unit is with the Department of Industries. Two electric meters, one for industrial purpose a for domestic purpose are installed in the unit. It has already been classified under the category of 10% electricity duty ev 1992.
3. Sometime in the year 1998, the 3rd appellant Assessment Officer visited the said unit and thereafter issued no 12.11.1998 to show cause as to why 60% of electricity duty be not made applicable to the petitioner-compan petitioner-company by its reply informed that it is a manufacturing industry, therefore, it is liable to pay on electricity duty as per law. On 26.11.1998 the 2nd appellant -Collector of Electricity Duty, Gandhinagar, instruc Gujarat State Electricity Board to revert to 10% electricity duty. However, on the basis of a subsequent report su by the officers from Gujarat Electricity Board, 2nd appellant Collector of Electricity Duty again issued a secon cause notice to which petitioner-company replied. It has provided the details of manufacturing of gas made by it.
4. The case of the petitioner-company was that the 2nd appellant -Collector of Electricity Duty once again vis respondent-unit and issued a show cause notice to which petitioner-company replied. Same question was raised notice also. Subsequently, by letter dated 22.07.2000 the 2nd appellant asked for details regarding preparati process of gas mixtures, which was also replied by respondent on 29.07.2000.
5. Finally, the appellant-authority issued final order on 18.08.2000 and raised the bills towards both the electric and the petitioner-company was directed to pay 60% of the electricity duty.
6. Aforesaid order and bills were challenged before the learned Single Judge. The petitioner-company contend they are transporting liquid nitrogen and liquid argon from Reliance Industries Limited, Hazira and GSFC Baroda mobile cryogenic tankers with average temperature of liquids at 196oC. Said tanker is then directly conne displacement pump, which helps it to pass through the Natural Vaporizer and ultimately the end product is proc took specific plea before the learned Single Judge that the petitioner-company is governed by Gas Cylinder Rule and fall within the definition of `manufacture' as defined thereunder.
7. Learned Single Judge noticed the relevant provisions and held that the petitioner-company is manufactur mixture and therefore is required to pay only 10% duty charges and not 60% as demanded by the appellant-Sta order dated 07.06.2000 and the bills were set aside.
8. Learned counsel appearing on behalf of the appellant-State would contend that the petitioner-company manufacturing gas, and therefore do not come within the definition of `industrial undertaking' and it is simply r cylinders and no manufacturing process is undertaken by the petitioner-company.
9. On behalf of the State, learned counsel for the appellant would contend that `manufacturing of goods' would n include the entire process of manufacture. If it brings out a complete transformation for the whole components produce a commercially different article or a commodity then only it may be called manufacturing process, wh learned Single Judge has failed to notice.
10. He would further contend that the definition `manufacture'
