DEBANGSU BASAK, J - (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;