S.N.DEEDWANIA, J. - (1.) THIS writ petition under Article 226 of the Constitution is filed in the following circumstances:
(2.) THE petitioner is a registered partnership firm inter alia carrying on the business of cold storage in the name and style of Rajasthan Ice and Cold Storage with its registered office at Moti Chowk, Jodhpur. The petitioner has one power connection for the supply of electricity vide Account No. 23/1/2 Service No. 8082. Respondent No. 2 is supplier within the definition of Clause (b) of Section 2 of the Rajasthan Electricity (Duty) Act, 1962 and is governed by the said Act and the Rajasthan Electricity (Duty) Rules, 1962 (hereinafter referred to as 'the Act and the Rules' respectively). The following notification No. F.9(2) E and T/62/I dated March 26. 1962 was issued under the Rajasthan Electricity (Duty) Bill, 1962 - - In pursuance of Sub -clause 3 of Clause 3 of the Rajasthan Electricity (Duty) Bill, 1962 read with the declaration inserted therein under Section 3 of the Rajasthan Provisional Collection of Taxes Act 1958 (Rajasthan Act 23 of 1958), the State Government being of the opinion that it is expedient in public interest to do so, hereby exempts from tax the consumed - - (1) by a consumer in any industry, in the manufacture, production: processing of repair of goods; and (2) by or in respect of any mine as defined in the Indian Mines Act, 1923 (Central Act of 1923); Subject, however, to the condition that the exemption hereby granted shall not be applicable to energy consumed in respect of any premises used for commercial or residential purposes, The State Government also issued another notification No. F.9(2) E&T;/62/IT dated March 26, 1962 fixing electricity duty at the rate of 3 n. p. per unit, it reads as under: - In pursuance of Clause 3 of the Rajasthan Electricity (Duty) Bill, 1962 read with the declaration inserted therein under the Rajasthan Provisional Collection of Taxes Act 1958 (Rajasthan Act 23 of 1958) the State Government hereby fixes 3 n. p. per Unit as the rate at which the elecricity duty shall be computed. In superssession of the aforesaid notification, the State Government issued the following notification No. F.9(6) FD (R&T;) 63, dated March 2, 1963 reducing the electricity duty from 3 n. p. per unit - - In exercise of the powers conferred by Sub -section (3) of Section 3 of the Rajasthan Electricity (Duty) Act, 1962 (Rajasthan Act 12 of 1962) and in supersession of Excise and Taxation Department Notification No. F.9(2) E&T;/62/I dated the 26th March, 1962, the State Government being of the opinion that it is expedient in public interest to do so, hereby remits the electricity duty on the energy consumed in Electro -Chemical Industries and in Electric Furnances of Electrothermal Industries and reduces such duty on the energy consumed in other industries in the manufacture production, processing or repair of goods from 3 n. p. per unit to one Naiya Paisa per unit. The petitioner was being charged electricity duty at the rate of 1 n. p. per unit Another notification No. F.16(15) F.D./RT/14 Pt. file dated November 1, 1966 was issued to the following effect: - 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 Government Notification No. F.9(2) E&T;/62/II dated March 26; 1972 and No. 9(6) F.D./RT/63 dated March 2, 1963. the State Government being of the opinion that it is expedient in public interest to do so, hereby fixes with immediate effect, five paisa per unit as the rate at which the electricity duty shall be computed and subject to the conditions laid down in the hethird proviso to t said section - - (a) remits, with immediate affect, the electricity duty on the energy consumed (i) in electro -chemical industries, and (ii) in elecro -furnaces of electrothermal industries. (b) remits with effect on as from the 1st November, 1964, the electricity duty an 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. Respondent No. 4 incharge of the supplies sent a bill dated March 12, 1973 to the petitioner by which he charged arrears to the tune of Rs. 2618.40 for the period 1971 -72 being the difference of electricity duty at the rate of 5 n. p. per unit and one paisa per unit already paid. On query by the petitioner, he was orally informed by respondent No.2 that duty at the rate of 5 n.p. per unit was claimed under instructions of the Commissioner Commercial Taxes, Rajasthan. The petitioner deposited the amount through cheque No, 89510 dated March 27, 1973 drawn on the State Bank of Bikaner and Jaipur. Sojatigate Branch, Jodhpur and also sent a protest letter No. RICS 159/1973 dated March 28, 1973. The petitioner also sent a written representation dated April 1, 1973 to the Executive Engineer (D -III), further representations were made to the Director of Industries, Rajasthan and the Chairman, Rajasthan State Electricity Board and also to the Secretary to the Government, Industries Department, Rajasthan. The petitioner did not receive any reply from the respondents of his various representations. The petitioner received another bill No. 90149 dated November 28, 1973 for Rs. 15490.12 being the difference of arrears of the electricity duty for the period from 1.11.1965 to April 1973. The petitioner again made a representation on 12.12.1973 to the Superintending Engineer, Rajasthan State Electricity Board, Jodhpur. The petitioner received bill No. 027 for the month of December, 1973, which included the arrears of electricity duty charged vide bill dated November 28, 1973 (Ex. III), in this bill, the electricity duty for the month of December, 1973 was charged at the rate of 5 n. p. per unit. It is further alleged that the petitioner is doing the business of Cold Storage where potatoes, fruits and other goods by means of refrigeration are kept at different temparature to preserve them from decay. The cold storage is a process of refrigaration apply to commodities such as perishable fruits, vegetables and milk to prevent their speedy decay.
(3.) THE petitioner is also an industry. The claim of the respondents to charge the electricity duty at the the rate of 5 n. p. per unit is challenged inter alia on the ground that the petitioner is a consumer engaged in an industry in processing to prevent decay of easily perishable commodities like fruits, vegetables and milk. The petitioner, therefore, can not charge electricity duty exceeding at the rate of 1 n. p. per unit. He is entitled to relief provided under Clause (c) of the notification dated November 1, 1969.;