TMI Blog2022 (4) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... was carried further by the very same complainant before the Ombudsman of the Gujarat Electricity Regulatory Commission. The Ombudsman of the Commission has passed an order dated 20.12.2021 taking the view that as the Electricity Act, 2003 does not provide or empower the company to obtain such undertaking, it is not permissible for the writ applicant to obtain such undertaking from the consumers. In other words, the Ombudsman is of the view that the writ applicant as a generation, transmission and distribution of electricity company cannot compel the consumers to furnish such undertaking. If the consumer on its own free will and volition agrees to furnish such undertaking then there should not be any problem. Let Notice be issued to the respondents, returnable on 06.07.2022. - R/SPECIAL CIVIL APPLICATION NO. 6724 of 2022 - - - Dated:- 6-4-2022 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE Appearance: UCHIT N SHETH (7336) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,3,4 ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. We have heard Mr. Uchit N. Sheth, the learned counsel appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the circular dated 7th December, 2010, the reason for saying that supply of electricity meters for hire to consumers is covered by the exemption notification is that such service is an essential activity having direct and close nexus with transmission and distribution of electricity. This circular only provides an interpretation of when a service would stand included in another service, namely, when such service is an essential activity having direct and close nexus with the exempted activity. Therefore, the fact that the exemption notifications came to be rescinded has no relevance inasmuch as all that the circular clarifies is what according to the Government of India would stand included in another service. Such interpretation would not change merely because such exemption is now granted under some other provision. - The meaning of transmission and distribution of electricity does not change either for the negative list regime or the GST regime. Accordingly, the services which stood included within the ambit of transmission and distribution of electricity during the pre-negative list regime cannot now be sought be excluded by merely issuing a clarificatory circular, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the relevant notifications. Therefore, all the services related to transmission and distribution of electricity are naturally bundled in the ordinary course of business of the petitioner and are required to be treated as provision of the single service of transmission and distribution of electricity which gives the bundle its essential character. - The term taxability means liability to taxation. Thus, the term taxability would take within its sweep not being taxable also inasmuch as liability to taxation would also mean not being liable to any tax. Thus, the liability to tax of a bundled service has to be determined in the manner provided under sub-section (3) of section 66F of the Finance Act. If the services are naturally bundled in the ordinary course of business, the bundle of services shall be treated as provision of the single service which gives the bundle its essential character and where the services are not naturally bundled in the ordinary course of business, the same is required to be treated as provision of the single service which results in highest liability of service tax. Accordingly, where the services are naturally bundled in the ordinary course of busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ applicant as of abundant caution started obtaining undertaking from the consumers as regards the service tax and GST. The writ applicant is of the view that in the event, if the Union succeeds before the Supreme Court then it will have to deduct service tax and/or GST and pay the same to the Government. One of the consumers objected to this action on the part of the writ applicant in obtaining such undertaking. The matter was carried before the Consumer Grievance Redressal Forum, Ahmedabad. The Consumer Grievance Redressal Forum passed an order dated 30.04.2021 below the Complaint No.18 of 2021 holding that it is permissible for the writ applicant to obtain such undertaking from its consumers. 7. We quote paragraph 4.6 of the order passed by the Forum as under: (true translation) 4.6 This forum has taken into consideration further submission made by the complainant on 30/03/2021 against the reply dated 26/03/2021 of the respondent. As stated by the respondent, the appeal has been preferred before the Hon ble Supreme Court against the order not to recover the amount of GST, it appears as of now that the Hon ble Gujarat High Court has ordered not to recover the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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