The court emphasized the presumption of constitutionality in favor of a law unless it is set aside in the manner known to law, and granted liberty to the petitioners to challenge the validating Act in the manner known to law.

Earlier writ petitions filed questioning the levy of electricity tax imposed under Tamil Nadu Act 32 of 1991 as well as Tamil Nadu Tax on Consumption or Sale of Electricity Act, 2003 were dismissed, against which appeals were filed and the same were also dismissed by the Division Bench on 13.07.2006. It was, against the said dismissal order, civil appeals were filed before the Supreme Court and the Supreme Court has partially allowed the appeals by common order dated 15.05.2007 as reported in Southern Petrochemical Industries Co.Ltd., vs. Electricity Inspector and E.T.I.O. [2007 (3) CTC 273 (SC)].

2. The Supreme Court has set aside the impugned common order in so far it relates to demand charges, holding that in respect of demand charges no electricity tax is leviable. Based on the judgement of the Supreme Court, the petitioners have made representations and in spite of the same, the Tamil Nadu Electricity Board has raised electricity bill, levying electricity tax on demand charges also. Some of the petitioners have also demanded refund of the electricity tax paid on demand charges based on the Supreme Court order. In spite of repeated request by the petitioners, the Tamil Nadu Electricity Board has not followed the orders of the Supreme Court under one pretext or the other. In view of the same, present writ petitions are filed for direction to the respondent Electricity Board to give effect to the orders of the Supreme Court in Civil Appeal No.2551 of 2007 etc. Batch dated 15.05.2007, by not levying electricity tax on demand charges and also to pass revised demand of electricity tax, excluding tax on demand charges and corresponding Belated Payment Surcharge (in short "BPSC") for tax on demand charges and also for refund of the electricity tax collected on demand charges with BPSC.

3. The petitioners in these writ petitions have not questioned the payment of consumption charges and their main challenge in these writ petitions is relating to the levy of electricity tax on demand charges. The Supreme Court in the said case, viz., Southern Petrochemical Industries Co.Ltd., vs. Electricity Inspector and E.T.I.O. [2007 (3) CTC 273 (SC)] has clearly held that there exists distinction between actual consumption and maximum demand. The Supreme Court has also held that what is permissible for the purpose of framing a tariff need not necessarily be permissible for levy of tax. Tariff for supply of High Tension energy is on two parts, viz., (i) units consumed and (ii) maximum demand, and ultimately it was held that the maximum demand indicator installed in a factory premises of a consumer of High Tension electrical energy shows the maximum amount of energy drawn during any consecutive 30 minutes in a total month of consumption of electrical energy. The maximum demand charge is fixed on that basis although the connected demand may be much more, and in that view of the matter, the Supreme Court has set aside the judgement of the High Court.

4. While it is the contention of the learned counsel for the petitioners in these cases, including Mr. R. Muthukumarasamy, learned senior counsel appearing for some of the petitioners that once the Supreme Court has categorically held that there cannot be any tax on demand charges, it is the duty of the Board to fllow the same. It is also their submission that when exemption was granted under the old Act from payment of tax, the same is not taken away by the advent of new law, with reference to Entry No.53 of List II of the Constitution of India.

5. While admitting that a new Act has been enacted in Tamil Nadu Act 38 of 2007, viz., Tamil Nadu Tax on Consumption or Sale of Electricity (Amendment) Act, 2007, by which amendments have been incorporated into Act 12 of 2003, viz., Tamil Nadu Tax on Consumption or Sale of Electricity Act, 2003, the learned senior counsel submitted that even after the Amendment Act has been introduced as a validating law, the same is valid only if such law cures