S. K. MAL LODHA, J. - (1.) THE unsuccessful petitioner, whose writ petition under Article 226 of the Constitution was dismissed vide judgment dated July 10, 1978, by the learned Single Judge of this Court, has filed this appeal under s. 18 of the Rajasthan High Court Ordinance, 1949.
(2.) THE petitioner - appellant Rampuria Ice Factory ("the Company") is a public limited company under the Companies Act. Its registered office is situated near Power House, Bikaner. THE main object of the Company is to manufacture, produce and process the goods and in doing so, it has to freeze water, milk or other similar goods meaning thereby that the main business of the Company is to manufacture different commodities by freezing and converting water, milk or other such substances into slabs. THE Rajasthan State Electricity Duty Act, 1962, (Raj. Act No. XII of 1962) (for short 'the Act') came into force from May, 21, 1962. S. 3 (3) of the Act empowers the State Govt. to reduce or remit the electricity duty on the energy consumed " (1) by a consumer in any industry in the manufacture, production, processing or repair of goods. " THE State Govt. in exercise of the powers conferred by s. 3 (3) of the Act issued the notification (Annexure - 1) dated March 26, 1962, by virtue of which a consumer engaged in an industry in the manufacture, production, processing or repair of goods processing was exempted from the payment of the electricity duty. THE material part of the notification (Annexure - 1) is as follows: ". . . . . . . . the State Govt. being of the opinion that it is expedient in public interest to do so hereby exempts from tax the energy consumed. (1) by a consumer in any industry in the manufacture, production, processing repair of goods, and. . . " Subsequently, the State Govt. by another notification (Annexure 2) dated November 1, 1965, imposed a duty of 1 paisa per unit even in regard to energy consumed in industries engaged in manufacture, production, processing etc. The Assistant Commissioner Excise and Taxation, ('the A. C. E. T.) Bikaner by virtue of the powers conferred by notification No. 264 (E. Duty) 62/105/dated 1st October 1962 granted the certificate of exemption. It appears that by notification (Annexure-4) dated September, 29, 1962, the State Govt. cleared the prevailing doubts and specifically declared that the Ice factories and Ice candy factories shall be exempted from duty. Certain audit objections were raised and the Rajasthan State Electricity Board ("the R S. E. B") while issuing the bill (Annexure -5 and 5-A) of October, 1974, added, arrears of duty for the years 1972-73 amounting to Rs. 11770. 80 P. and Rs. 2568. 80 P. Thereafter, the Company made the representation (Annexure-6) stating that it is not liable to pay any duty in view of the exemption granted by the State Government under s. 3 (3) of the Act read with the notification dated March 26, 1962, and the notification dated September 29, 1967. Other objections were also taken for opposing the levy of the duty. The Assistant Engineer vide his letter (Annex-ure-7) dated December 2, 1974, informed the Company for the first time that the arrears have been found due against it on account of the fact that it was liable to pay duty at 5 paisa per unit in place of 1 paisa per unit. In view of the dispute between the Assistant Engineer as guided by the Audit Party, the Company approached the Commercial Taxes Officer (C. T. O.) under r. 11 of the Rajasthan Electricity (Duty) Rules, 1970, ("the Rules," herein ). The C. T. O. vide his order (Annx. 9) dated November 23, 1976, held that the exemption could not be granted to the Company as it is also doing the business of storage and freezing of milk in the account of Delhi Milk Scheme, Delhi. He further held that the storage and freezing of the milk did not fall under the category of industry engaged in "manufacture" and as such, the Company is liable to pay 5 paisa duty on the energy consumed. An appeal was filed before the Deputy Commissioner (Appeals) Commercial Taxes. Bikaner, under r. 11 of the Rules. The Deputy Commissioner by his order dated February 28, 1978, dismissed the appeal. It is relevant here to reproduce the following from the appellate order. "in conclusion, it maybe said that as the dealer merely did refrigeration work for freezing the milk given by Delhi Milk Supply Scheme to Rampuria Ice Factory which was not in the nature of a manufacture but primarily refrigeration work and that too not for itself but is only a job work, the concessional rate of electricity duty of 1 paise per unit on electricity consumed laid down as per notification referred to above could not be availed of by the dealer but the same is chargeable at normal rate of electricity duty. " A writ petition was filed by the Company under Article 226 of the Constitution seeking to quash the letter (Annexure-7) dated November 30, 1974, Order (Annexure-9) dated November 25. 1976, of the C. T. O. Bikaner, and the Order (Annex. 11) dated February 28, 1978, of the Deputy Commi. (Appeals ). A direction was sought restraining the respondents from recovering any amount from the Company by way of duty at all or in the alternative anything in excess of 1 paise per unit prescribed in the notification dated November 1, 1965. A declaration was also sought that the Company is not liable to pay any electricity duty under the Act as it is exempted and in the alternative in any case it is not liable to pay more than 1 paisa per unit. The learned Single Judge by his judgment dated July 10, 1978, dismissed the writ petition summarily. Hence this appeal as aforesaid. We have heard Mr. L. R. Mehta, learned counsel for the appellant and Mr. K. C. Bhandari, learned counsel for respondents.
(3.) RAMPURIA Ice Factory is an industry was not disputed by the learned counsel for the Company and that it consumes energy. From the submissions that were advanced before us, the only point that arises for our consideration is whether the Company is engaged in "processing" and so, it is only liable to pay 1 paisa per unit only and nothing in excess of it, can be recovered from it. It will be relevant here to refer the agreement (Annexure-12) dated April 28, 1976, which was executed between the Chairman, Delhi Milk Scheme. New Delhi and the Company. The Delhi Milk Scheme has been described in the agreement as First Party and the Company has been mentioned as second party. By this agreement, the First Party agreed to accept the offer of the Second Party to chill/freeze the milk on the terms and conditions mentioned therein. Clauses 7, 8 and 9 of the Agreement (Annexure - 12) may usefully be quoted. "7. That the first party shall pay the second party for providing the above facilities for chilling of milk @ Rs. 3. 35 per quintal of milk chilled. 8. Whenever it is considered necessary by the First Party to freeze a portion or the entire quantities of milk, the second parly shall freeze milk promptly as before for which the first party shall pay to the Second Party at the following rates: (a) 1st 50 qtls. Rs. 5. 30 per qtl. (b) Next 50 qtls. Rs. 4. 25 per qtl. (c) Above 100 qtls. Rs. 3. 00 per qtl. (d) Minimun guarantee Rs. 9000/- both for chilling and freezing per month. In the event of failure to chill / freeze the milk or provide chilled water at desired tempereture required for chilling all the milk of the 1st party by the second party due to failure of this plant and machineries, power/generator, the second party shall be liable to pay for sourage/curdl-ing of milk at the following rates: (a) Sourage of milk Rs. 10/- @ per qtls. (b) Curdled milk @ Full Price of milk including commission/collection charges as declared by Delhi Milk Scheme from time to time. "that the sourage/curdling of milk was beyond the control of the Second Party, the First Party may in its discration, waive part or full penalties recoverable from the Second Party which shall be binding on the Second Party. " 9. A perusal of the order (Annexure-9) dated November 25, 1976. of the C. T. O. shows that he was influenced by the fact that the storage and freezing of milk do not fall in the category of "manufacture" and, therefore, concessional rate of duty is not permissible. In appeal the Deputy Commissioner (Appeals) opined that the Company did refrigeration work for freezing the milk given by the Delhi Milk: Supply Scheme to Rampuria Ice Factory and so, it was not in the nature of "manufacture". According to him. It was primarily refrigeration work and that too not for itself but only a job work and so the concessional rate of electricity duty of 1 paise per unit on electricity consumed laid down as per notification referred to above could not be availed of by the Dealer (Company ). The learned Single Judge was of the opinion that the process of freezing of milk cannot be said to be one of "manufacture. " and, therefore, concessional rate of one paisa per unit as contemplated by the notification (Annexure-2) cannot be taken advantage of by the Company. In other words, he repelled! the argument that was raised on behalf of the Company that it converts milk into milk slabs just as water is converted into ice in the ice factory by the process of freezing and so it is 'manufacture' of goods. The learned Single Judge agreed withthe Deputy Commissioner (Appeals) that freezing of milk by the Company for the purpose of carriage, it does not undergo any process of "manufacture" like the preparation of ice candy, ice cream or even ice, because after the manufacture of ice-candy, ice-cream or ice, they become commercially different articles from water or milk but the milk which the petitioner freezes on behalf of the Delhi Milk Supply Scheme is not commercially a different article and the freezed milk in still saleable only as milk. In these circumstances, the only question arose was whether the freezing of Milk by the Company for the Delhi Milk Supply Scheme amounted to 'manufacture' of goods and the electric energy supplied to the Company is exempted from payment of duty under s. (3) 3 of the Act. The learned Single Judge opined that the conversion of the milk into milk slabs by process of freezing is not 'manufacture' of goods. ;