R.C.LAHOTI, J. -
(1.)THE High Court of Andhra Pradesh at Hyderabad, has, by its impugned judgment dated 11/04/1990, allowed the writ petition filed by the respondent National THErmal Power Corporation Ltd. (hereinafter 'NTPCL', for short) and declared that the levy of duty by the State of Andhra Pradesh on the sales of electrical energy generated by the Corporation-respondent No.1 at its thermal power station set up at Ramagundam, within the State of Andhra Pradesh and sold to the Electricity Boards of Karnataka, Kerala, Tamil Nadu and the State of Goa in pursuance of contracts of sales occasioning inter-State movement of electricity in incompetent and outside the power of State Legislature. Consequently, the tax levied and collected has also been held to be without authority of law, hence liable to be refunded in accordance with law. On a prayer made by the learned Advocate General on behalf of the State of Andhra Pradesh, the High Court certified that the case involves a substantial question of law as to the interpretation of Constitution under Article 132. THE appeal has been filed pursuant to the certificate so granted by the High Court. On 4-10-1991, a bench of two learned Judges directed the appeal to be placed for hearing before a Constitution Bench, as required by Clause (3) of Article 145 of the Constitution.
(2.)AT a point of time when this Court was seized of the appeal filed by the State of Andhra Pradesh, NTPCL moved a petition under Article 139A of the Constitution seeking withdrawal of Writ Petition No. 1941 of 1996 NTPCL v. State of Madhya Pradesh and others pending in the High Court of Madhya Pradesh at Jabalpur to this Court. The prayer was allowed vide order dated 13-10-1997 and on receipt of the records from High Court of Madhya Pradesh the same has been registered here as T-C-3/1998.
The State of Madhya Pradesh and newly formed State of Chhattisgarh with effect from 1-11-2000, during the pendency of the petition were noticed and the parties thereto have been heard analogously with the hearing in C.A. No. 3112/1990. However, for convenience sake we will refer to States of Madhya Pradesh and Chhattisgarh as State of M.P. only as admittedly until the formation of new State the two power stations in question were situated therein only.
Andhra Pradesh Electricity Duty Act, 1939 provides for levy of duty on certain sales and consumption of electricity by licensees in the State of Andhra Pradesh. The definition of the term 'licensee' specifically includes the National Thermal Power Corporation (Respondent No.1) or any other Corporation engaged in the business of supplying energy. Section 3 of the Act is the charging section, the relevant part whereof reads as under:-
"3. Levy of a duty in certain sales of electrical energy.- (1) Save as otherwise provided in sub-section (2), every licensee in the State of Andhra Pradesh shall pay every month to the State Government in the prescribed manner, a duty calculated at the rate of four paise per units of energy, on and in respect of all sales of energy except sales to the Government of India for consumption by that Government or sales to the Government of India or a railway company operating any railway for consumption in the construction, maintenance or operation of that railway effected by the licensee during the previous month, at a price of more than twelve paise per unit and on and in respect of all energy which was consumed by the licensee during the previous month for purposes other than those connected with the construction, maintenance and operation of his electrical undertaking and which, if sold to a private consumer under like conditions, would have fetched a price of more than twelve paise per unit.
Provided that no duty under this sub-section shall be payable on and in respect of sale of energy effected:-
(a) by the Andhra Pradesh State Electricity Board to any other licensee;
(b) by the National Thermal Power Corporation to the Andhra Pradesh State Electricity Board".
(3.)A bare reading of the provision shows that duty is leviable at the prescribed rate on 'all sales of energy' effected by the licensee during the previous months at a price of more than 12 paise per unit. Duty is also leviable on all energy consumed by the licensee. There are certain categories of sales and consumption saved and excluded from what would otherwise have been dutiable. However, in the present case, we are not concerned with those exclusions, nor with levy of duty on consumption. The limited question arising for our consideration is - whether sales of energy by NTPCL, the respondent No.1, to several Electricity Boards situated outside the State of Andhra Pradesh and to the State of Goa, attract the incidence of taxation under Section 3 of the Act.
According to the facts found by the High Court, NTPCL, a Government Company, wholly owned by the Government of India, has set up several super thermal power stations in different parts of the country normally located near coal-pit heads. One such super thermal power station is set up in Ramagundam in Karimnagar District of the State of Andhra Pradesh. There are various transmission lines and sub-stations through which the power generated at Ramagundam station is transmitted to the purchasers. The power generated is fed into the southern grid and is made available to the several State Electricity Boards and the State of Goa. These facts are not in controversy and sufficient to be taken note of for the purpose of this appeal. During the course of hearing, by reference to certain documents, it was sought to be pointed out where the meters are located - within the State of M.P. or within the territories of buyer States or at both the places, by reference to reading whereof the quantum of energy sold, exported or imported is fixed and the price calculated. We do not propose to state the facts and contending submissions in that regard in details as it is unnecessary.