M.C. JAIN, J. - (1.) THESE are three writ petitions raising a common question regarding the applicability of 1965 Notification in connection with recovery of the electricity duty. As all the three writ petitions have been argued together and as the main question is common to all of them, I propose to decide these writ petitions by this common order.
(2.) THE petitioners are carrying on the business in cold storages and the Mewar Sheet Garh is also running an Ice Factory alongwith cold storage, though having two connections, but the supply of electricity is common for both the businesses. THE petitioners' case is that the State Government under proviso (3) to section 3 of the Rajasthan Electricity (Duty) Act, 1962 (Act No. 12 of 1962) (hereinafter referred to as "the Act"), issued the following Notification:- "Notification No. F. 16 (15) F.D./RT/14 Pt. file dated 1.11.65 published in Rajasthan Gazette Part IV-C, Extraordinary dated 1.11.65 : In exercise of the powers conferred by section 3 of the Rajasthan Electricity (Duty) Act, 1962 (Rajasthan Act 12 of 1962) and in supersession of Govt. Notification No F.9 (2)E &T/62-II dated the 26th March, 1962 and No.F. (6)FD/RT/63 dated the 2nd March, 1963, the State Government being of the opinion that it is expedient in public interest to do so, hereby-fixes, with immediate effect, five paise per unit as the rate at which the electricity duty shall be computed and subject to the conditions laid down in the third proviso to the said section, (a) remits, with immediate effect, the electricity duty on the energy consumed (i) in electrochemical industries, and (ii) in electro furnaces of electro, thermal industries, (b) remits with effect on and from the 1st November, 1964, the electricity duty on energy consumed by or in respect of any Municipal Board or Council or Panchayat or Panchayat Samiti or other authority for the purpose of, or in respect of public street lighting; and (c) reduces with immediate effect such duty on the energy consumed in industries, other than those mentioned in (a) above, in the manufacture, production, processing or repair of goods, to one paisa per unit." According to the petitioners the energy is consumed in their industries for the manufacture, production, processing or repair of goods, so their cases are covered under clause (c) of the aforesaid Notification, so they are liable to be charged electricity duty @ one paisa per unit and they are not liable to be charged @ five paise per unit. The supplier was charging the electricity duty after the aforesaid Notification @ one paisa per unit, but in cases of Messers. Mewar Sheet Garh and Messers. Udaipur Cold Storage. Partapnagar, the audit party of the Commercial Taxes Department gave decision that their cases do not fall within the category of industry under clause (c) of the Notification, so they should be charged at the rate of five paise per unit instead of one paisa per unit. Both these petitioners thereafter were served with notices and bills by the supplier Messrs. Maharana Bhupal Electric Supply Co. Ltd., Udaipur, respondent No. 4, in their cases. Replies to the notices were given to them by the supplier denying the liability for payment of electricity duty at the enhanced rate. It was also stated by them that auditors have no authority in law to give any such directions. The matter can be referred to the Commercial Taxes Officer under rule 11 of the Rajasthan Electricity (Duty) Rules, 1970 (hereinafter referred to as "the Rules"). Despite replies to the notices, the supplier further called upon them to make payment of the arrears of electricity duty and on failure to make payment it was stated that supply of the electricity will be disconnected. These two petitioners referred the dispute under rule 11 of the Rules to the Commer-cial Taxes Officer, Udaipur, and copy of that reference was also sent to the supplier. Despite reference having been made, the supplier served the notice for payment, in default for dis-connection. In the petition by Messrs. Sri Ganganagar Cold Storage (Private) Limited, the supplier is the Rajasthan State Electricity Board (hereinafter refe-rred to as "the RSEB") - Notice for arrears alongwith the bills was sent by the Assistant Engineer, RSEB. When a protest was made, it was stated by the Assistant Engineer that the petitioner's industry is not covered by clause (c) of the Notification, as pointed by the Commissioner, Commercial Taxation, Rajasthan. On 18-8-1973 the final notice was served on the petitioner for payment of electricity duty at the enhanced rate within a period of seven days failing which, it was informed that the power supply to the petitioner would be stopped. The petitioner produced a letter of the Commercial Taxes Officer, Sri Ganganagar, addressed to the Assistant Engineer, RSEB, Sri Ganganagar (Annex 5) a copy thereof was sent to the petitioner Messrs. Sri Ganganagar Cold Storage (Private) Ltd. By this letter the supplier was informed that the correct rate of electricity duty to be charged from the cold storage was at the rate of five paise per unit, which the supplier was asked to recover as arrears of the electricity duty from the cold storage. In this letter reference was made to the communication made by the Commissioner, Commercial Taxes, Rajasthan, Jaipur, No. F. 14(2) Tax/CCT/73/43 dated 20-4-73. In this petition it was stated that in case the supplier or other respondents wanted to charge the electricity duty at the rate of five paise per unit, they ought to have got the dispute decided by the Commercial Taxes Officer, respondent No. 5, and the supplier the respondent No. 4 had no right to demand the arrears unilaterally and should have referred the dispute for decision to respondent No. 5. The peti-tioner in all the writ petitions, thus, have challenged the levy of electricity duty at the enhanced rate. In all the three writ petitions, on behalf of the respondents-non-petitioners, returns have been filed. Their case is that the petitioners are not covered under clause (c) of the Notification and so are liable to be charged electricity duty at the rate of five paise per unit. In the return filed in the petition of Messrs Sri Ganganagar Cold Storage, it is stated that as per direction of the Commissioner, Commercial Taxes, Rajasthan, Jaipur, issued vide No. F. 14(2) Tax/CCT/73/43 dated 20-4-1973 the cold storage business of the petitioner is not an industry connected with manufactur's production, processing or repair of goods as contemplated by clause (c) of the Notification and as such the concessional rate prescribed by the Notification is not applicable to the cold storage. It was stated that the petitioner did not file any application under rule 11 of the Rules. In the other two writ petitions an objection was raised that the petitioners have presented an applications under rule 11 of the Rules and the applications are fixed for hearing, so the petitions are premature when the matter is already under consideration of the Commercial Taxes Officer, Circle 'A' Udaipur. It is also stated that rule 11 also provides for an appeal against the order of the Commercial Taxes Officer. The petitioners have, therefore, not exhausted all the remedies available to them under the rules.
(3.) I have heard Messrs. M.L. Garg, and M.C. Bhoot, learned counsel for the petitioners, and Mr. S.C. Bhandari, learned counsel for the non-petitioners. On behalf of the petitioners, principal arguments were advanced by Shri M.L. Garg. He submitted that in cold storages the air is processed to keep the desired temperature through physical and chemical agencies. Temperature and humidity control are maintained, which are essential for the treatment of the commodities kept in the cold storages to give them longer life and protect from deterioration. The petitioners keep potatoes, fruits and other commodities for their own as well as of other persons. The commodities are also graded and sorted out to make them marketable. The petitioner's business of cold storages is an industry, where the energy is consumed in processing of goods preserved in the cold storages and so their case is covered under clause (c) of the Notification. Hence they are not liable to payment of enhanced rate of electricity duty. They are only liable to pay electricity duty at the reduced rate. It was urged that under proviso (3) of sec. 3 of the Act, the State Government is empowered to reduce or remit the electricity duty on the energy consumed by a consumer in any industry in the manufacture, production, processing or repair of goods, if it is of opinion that it is necessary or expedient in the public interest. In exercise of the power conferred by proviso (3) to section 3, the State Govern ment issued the aforesaid Notification and remitted the electricity duty in the cases covered by clauses (a) and (b) of the Notification and reduced the electricity duty in Cases covered under clause (c). The goods preserved under the cold storage, are made available to the community and the same may be made available on cheaper rates, so the State Government considered in the public interest to issue the notification even for industries where energy is consumed in merely processing of goods. In the cotext of the Act and the notification the expression "processing of goods" should be so construed and given meaning so as to include within the ambit of clause(c). cold storage as well. A direct authority has been cited by Shri Garg in support of his contention in support of his contention in Additional Commissioner of Income tax, Kanpur vs. Farrukhabad Cold Storage (P), Ltd.(l). Shri S.C. Bhandari, learned counsel for the Revenue, on the other hand maintained that there in no processing of goods in the cold storages. Processing implies and involves some change in the goods. He submitted that it is true that processing cannot be equated with manufacture. In manufacture there is complete change of identity and a new and different article comes into being as known to the commercial world. Even in processing it is essential that the goods must undergo some change in shape, colour, nature, size etc. In cold storages, the goods are simply kept and taken out and they do not undergo any change. He pointed out that a common man cannot make any distinction between goods preserved in the cold storages and goods not so preserved. if any change takes place in scientific and technical sense, such change should not be noticed in connection with fiscal statutes, as it is well settled that while construing fiscal statues scientific or technical sense has no place and the words should be given their ordinary accepted meaning, as understood by the com-mon man. He urged that the potatoes, fruits and other articles, kept in cold storages, are not in any way processed. They are simply kept in a cold place for prevention of decay and deterioration and for preserving them. According to Mr. Bhandari, even lexicographer's meaning may not be given to words while construing taxing statutes. He referred to several citations where observations have been made with regard to expression "processing" in relation to goods. I shall be presently referring to the citations and deal with them. ;