K.S. Radhakrishnan, J.

The question posed in all these cases is whether cashew packing units would fall under LT-IV industrial tariff or under LT-VII-A commercial tariff.

2. Earlier original petition No.31706 of 2002 was filed before this court which was disposed of by a learned single Judge of this court directing the fourth respondent therein, the Deputy Chief Engineer, to take a decision on the petitioner’s representation. Following that direction, it is seen, on the basis of the note submitted by the Deputy Chief Engineer, Kottayam, Kerala State Electricity Board issued Circular dated 19.04.2003 which clarified that cashew packing units may be charged under commercial tariff, legality of which is challenged in these writ petitions.

3. Kerala State Electricity Board has issued a Circular in the wake of the direction of the learned single judge to dispose of the representation. Petitioners questioned the power of the Board to fix the tariff for cashew packing units placing them under LT VII-A commercial tariff. Petitioners contend that packing of cashew kernels is the last stage of cashew manufacturing process. Petitioners in all these cases are cashew exporters. They manufacture cashew kernel from raw cashew nuts by roasting the cashew nuts and removal of the shell and recovery of cashew kernel is done in the cashew factories. A few of the petitioners have got their own attached factories and certain others elsewhere. Petitioners submit that cashew packing units are integrally connected with the manufacturing process, being part of the industry and hence falls under LT IV industrial and not under LT VII-A commercial.

4. Petitioners submit as per the Conditions of Supply of Electrical Energy, energy supplied to an industry has to be charged at LT-IV rates as per the Tariff Revision Order, 2001. The activities carried on in the petitioners’ packing unit are part of cashew processing, which according to them, is an industrial activity and cannot be separated from it. Further they also carry on pooling, packing, gas infusion and sealing mechanically using electrical power and that is the final stage of cashew processing. Further it is stated that packing units cannot be divorced from the industrial activity of cashew processing., Referring to Section 2(k) of the Factories Act they contended that the “manufacturing process” includes packing with a view to its use, sale, transport, delivery or disposal. They have referred to the definition of “manufacturing process”. Reference was also made to the decision of the apex court in V.P. Gopala Rao v. Public Prosecutor (1969 (1) SCC 704) and submitted that manufacturing process in Section 2(k) (i) is widely worded and includes the processes of “making, altering, repairing ornamenting, furnishing, packing, oiling, washing, cleaning, demolishing or otherwise treating, breaking up, adaptation and packing of the tobacco leaves” done with a view to its use, sale, transportation, delivery or disposal. Reference was also made to the Division Bench decision of the Andhra Pradesh High Court in Kotecha v. Regional Inspector of Factories 1960 (1) LLJ 55).

5. Standing Counsel appearing for the Board on the other hand contended that the meaning of the expression that we get in the Factories Act or in the Kerala Shops & Commercial Establishments Act cannot be imported in the matter of fixation of tariff under the Electricity Act. Further counsel submitted that it was on the basis of the direction of this court the Board has issued circular which has been made uniformly applicable to all the packing units. Counsel for petitioners submitted that packing is an essential part of the manufacturing process and the activity carried on in the units is an industrial activity and cannot be considered as part of commercial activity. Hence cashew packing units can be charged only under industrial tariff. Learned Single Judge repelled the contention raised by the petitioners in the case Kailas Cashew Expo