TMI Blog2010 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... Gas Cylinder is evidently a process of manufacture and, therefore, the petitioners are Industrial Undertakings consuming high tension energy as provided by Section-3(1) and Clause 5(a) of the Schedule to the Act and as such the respondents had initially correctly levied duty at 20% of the consumption charges. Appeal allowed. - 373, 6220 of 2001 - - - Dated:- 6-5-2010 - MR. K. A. PUJ, J. For the Petitioner: MR GN SHAH and MS MINOO A SHAH For the Respondent: MR PREMAL R JOSHI JUDGMENT 1. The Special Civil Application No.373 of 2001 is filed by Bharat Petroleum Corporation Ltd., praying for quashing and setting aside the communications dated 16.1.1999 and 9.3.1999 as well as the order passed by the respondent No.4 on 3.1.2001. The petitioner has also prayed for declaration that the determination by the respondent No.2 that the Industrial Undertaking of the petitioner at Hariyala is liable to be assessed at 60% of the consumption charges of electricity and for which no reason have been given and hence the said determination is void, illegal and have no legal effect. 2. The brief facts of the case are that the petitioner established (Liquid Petroleum Gas) LPG Bottlin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for quashing and setting aside the communication dated 23.11.1998 and directing the respondent to refund the differential amount of electricity duty illegally collected from the petitioner. 7. The brief facts of the case are that the petitioner has established its LPG Bottling Plat at Village : Piludra, Taluka : Ankleshwar, Dist. Bharuch and the petitioner was paying electricity charges and electricity duty at 20% of the consumption charges. The petitioner made an application to the respondents for exemption from payment of electricity duty on 29.4.1998. The petitioner provided all necessary details on 7.5.1998 regarding various processes carried out by the petitioner at the plant. The petitioner has also provided information on 15.5.1998 regarding manufacturing process of LPG Bottling Plant sought by the respondents. On 10.7.1998 further details regarding the manufacturing process carried out by the petitioner were provided. Despite this fact, in November, 1998 the petitioner was informed by respondent No.1 that electricity duty at 60% of the electricity consumed would be charged as the activities undertaken at the plant fall under the residuary clause. On 23.11.1998, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and also opposed to principle of natural justice. Even otherwise, the Assessing Officer cannot change the classification with retrospective effect, once the classification has already been made and electricity duty has been paid and collected accordingly. 11. Ms. Shah has further made an alternative submission without prejudice to her main submission that the plant of the petitioner is an Industrial Undertaking, that the activities carried out at the plat of the petitioners would fall under the activities of a service undertaking' as defined in Section 2(bb)(a) of the Act. The plant can be deemed to be a service undertaking as the activity of the plant includes reconditioning, restoring, reserving or cleaning LPG received in bulk at the plant and subsequently producing LPG filled cylinders by using carousel type auto filling system after reconditioning, repairing, restoring etc., for making it usable for domestic, commercial or industrial purposes and prior to such activities the petitioner is preserving LPG Gas in bulk at storage tanks till the aforesaid processes are carried out. She has, therefore, submitted that the action of the respondent authorities demanding the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturing activities. The only activity carried out by the petitioners is simply refilling of the LPG. The said activity is nothing else but simply refilling of the LPG which is required to be viewed accordingly. Since no predominant manufacturing activities are carried out by the petitioner and LPG manufacturing activity is carried out by the petitioner and LPG manufacturing activity is carried out by other public sector undertaking, namely, ONGC, Ankleshwar and ONGC, Hazira ad only refilling is done by the petitioner, they cannot claim the benefit of being an industrial undertaking. He has, therefore, submitted that the respondent authorities have rightly demanded the electricity duty at the rate of 60% from the petitioners. 15. Mr.Joshi further submitted that the definition of Industrial Undertaking in the present case is required to be applied under the Bombay Electricity Duty Act, 1958 only. The definitions of Industrial Undertaking under other Acts i.e. Factories Act, 1948 or the Indian Explosives Act, 1948 has no relevance. The important factor for levy of electricity duty is based on the nature of consumption defined under Part-I of Schedule-I to the Bombay Electricity D ..... 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