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TMI Blog2022 (12) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... cial years on the ground that the demand made in all these writ applications are absolutely unlawful and has been raised by the respondents without jurisdiction as this court, in the case of M/s Anjaney Ferro Alloys Ltd. vs. State of Jharkhand & Ors., reported in 2012 SCC Online Jhar 426 has declared that Section 5 of the Jharkhand Electricity Duty(Amendment) Act, 2011 as ultra vires and the State Government has no right to recover the electricity duty from the consumers. 3. Brief facts of the case as it emerge from the averments made in the writ application is that the petitioner is a private limited company and is engaged in the business of operating a hotel in the name of M/s. Capitol Hill at Main Road, Ranchi. It is a consumer of electricity supplied by the Licensee namely Jharkhand State Electricity Board (JSEB) or Jharkhand Bijli Vitran Nigam Limited (JBVNL).The specific case of the petitioner is that it is only a consumer of electricity supply and is not the Licensee of the electricity supply. The Licensee of electricity supply in the present case is JSEB or JBVNL. Further, the petitioner is not an industrial or mining consumer but is only a commercial consumer of electrici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r existing in the said Act. It is submitted that the said assessment order relied on Section 3 of the said Amendment Act, by incorrectly stating that Section 3 of the said Amendment Act provides for pay ability of the electricity duty. It is submitted that Section 3 of the said Amendment Act only provides for insertion of various definitions in the main Act and it does not provide for any pay ability of electricity duty as has been incorrectly stated in the assessment orders. The said assessment orders has further been based on Section 4 and Section 4 (a) of the said Amendment Act, however Section 4 (a) does not exist at all in the said Amendment Act and Section 4 of the said Amendment Act only provides for deletion of Section 3A of the main Act i.e. the Bihar Electricity Duty Act, 1948. It is further submitted that this Court in the aforesaid judgment has also declared that the Amendment made in Section 4 of the Electricity Duty Act, which gave power to the State Government to choose and pick either the Sellers or Consumers of the Electricity for payment of Electricity Duty to be ultra vires and illegal. Mr. Mittal lastly submits that the issue involved in this case has already b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendments as mentioned above has never been under challenge, thus the assessing officer had rightly assessed the petitioner for the electricity duty in accordance with law. 6. Having considered submissions of learned counsel for the parties, the pleadings, relevant documents placed on record and the judgments cited, it appears that the whole and sole basis, on which the electricity duty has been imposed on the petitioner under the impugned Assessment Orders, all dated 15.02.2020, is that the petitioner is a High Tension ('HT') connection consumer of electricity and therefore the petitioner is liable to get assessed and pay electricity duty directly to the State Government. It further appears that the said basis of the respondent authorities has no support of any legal provisions of the Bihar Electricity Duty Act, 1948, as adopted by the State of Jharkhand, or the rules made thereunder. 7. Further, as can be seen from the impugned Assessment Order as well as the assessment proceedings, the genesis of the impugned Assessment Order lies in the information given by the local unit of JBVNL that electricity duty has to be paid by HT consumer to the State Government. It appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by these Rules. It is undisputed fact that the petitioner is engaged in the business of operating a hotel. Further it is also undisputed that the petitioner is only a consumer of electricity supplied by the licensee namely Jharkhand State Electricity Board (JSEB) or Jharkhand Bijli Vitran Nigam Limited (JBVNL). Prior to coming into force of the Jharkhand Electricity Duty (Amendment) Act, 2011, the liability to pay the electricity duty was of the licensee and not of the consumer of electricity. It was by way of the Jharkhand Electricity Duty Act (Amendment), 2011 and specifically Section 5 of the said Amendment Act that the liability to pay the electricity duty was imposed on the consumer in addition to the licensee, Section 5 of the said Amendment Act amended Section 4 of the Bihar Electricity Duty Act, 1948 to create a liability of payment of electricity duty also on the consumers. 9. The validity and vires of Section 5 of the Jharkhand Electricity Duty (Amendment) Act, 2011 by which Section 4 of the Bihar Electricity Duty Act, 1948 was amended was challenged inter-alia before this Hon'ble Court in the matter of M/s Anjaney Ferro Alloys Ltd. (supra). The said matter was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear from the aforesaid definition that the supply of energy to any industrial or mining consumer will only be considered as "bulk supply". It is an undisputed fact that the petitioner is not a mining consumer. As far as being industrial consumer is concerned, it is submitted that Industrial Unit is defined under Section 2(i) of the Electricity Duty Act, 1948. The said definition is quoted hereinbelow for ready reference: 2(i)-"Industrial unit" means an industrial unit engaged, predominantly in: (i) The manufacture or production or processing of goods: (ii) any job work which remits in the manufacture or production of goods but does not include a unit which manufactures or produces any kind of food or drinks or both; meant ordinarily for consumption in the premises of such establishment; and (iii) who are supplied with the electrical energy with a contract demand above 100 KVA or more with 3 Phase at 6.6 KV/11KV/33KV by a "licensee" or a "distribution licensee" or as may be notified in this behalf by the State Government from time to time. Explanation - The premises of industrial unit does not include "Mines" and such premises used for residential purposes." Fr ..... 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