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C/SCA/16374/2013 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16374 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India or any order made thereunder ?
AIR LIQUIDE INDIA HOLDING PRIVATE LIMITED....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) Appearance:
MR MIHIR JOSHI, SR. COUNSEL FOR M/S WADIAGHANDY & CO, ADVOCATE for the Petitioner(s) No. 1 MS SHRUTI PATHAK AGP for the Respondent(s) No. 1 MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 4 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 31/08/2015 CAV JUDGMENT The petitioners have challenged order dated 27.5.2013 passed by respondent No.2 and have prayed inter alia that, Page 1 HC-NIC Page 1 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT [a] the order dated 27.5.2013 passed by respondent No.2 holding that the petitioners are liable for to pay electricity duty and are not entitled for any benefit for exemption from paying electricity duty and are not eligible for being considered as new industrial undertaking;
[b] to restrain the respondents from raising demand for electricity duty until 24.11.2014 and [c] to direct the respondents to refund total amount of electricity paid by the petitioners for the period which is available to the petitioners by way of exemption from payment of electricity duty in respect of consumption of energy.
2. So as to support and justify the said relief, the petitioners have stated and claimed that, 2.1 The petitioner company is wholly owned subsidiary of "Air Liquiquide international" which is a French company. According to the petitioner, the said holding company is leader in extraction and supply of gases for industry, health and environment purposes and it has industrial units located in different countries.
2.2 The petitioners have also claimed and contended that from 1996 to 2009, the petitioner was undertaking "onsite" activities at their client's (viz. Gujarat Guardian Limited and EI Dupont Ltd.) premises by providing suitable onsite generation technology for generation and supply of gaseous nitrogen on "build, own, operate and maintain basis".
Page 2 HC-NIC Page 2 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT According to the arrangement with the said clients, the infrastructure and other resources, including supply of power, were being made available by the said clients at their cost. The petitioners have claimed that the petitioner company also supplies storage tanks, vaporizers, customized equipments for storage and use of gases on long term contract basis on monthly rentals which is termed as "fixed facility fee".
2.3 It is also claimed that for such purpose i.e. for providing the said facilities, agreements were entered into by and between the petitioner company and the said clients under which the petitioner company ensured installation of infrastructure for supply of nitrogen gas.
2.4 It is also claimed that according to the terms of the contracts the obligation to obtain requisite registrations and permission for installation of plants and machinery and permission for electricity consumption at the respective premises, was on the clients. Therefore, in view of the arrangement, the electricity connections were availed by the clients in their own names and at their premises.
2.5 It is further claimed by the petitioners that it was only in 2009 that the petitioner for the first time, established its own industrial undertaking i.e. industrial unit at Jhagadia for production and supply of gases viz. liquid oxygen, liquid nitrogen, gaseous hydrogen and gaseous nitrogen. It is claimed that the said industrial unit is established and registered as medium scale industry after appropriate sanction granted by the ministry of industry and commerce, New Delhi. The petitioner has also asserted that, Page 3 HC-NIC Page 3 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT A. for establishing said industrial unit at Jhagadia, the petitioner has purchased land from GIDC at GIDC Industrial Estate, Jhagadia;
B. it has obtained registration as "factory" under provisions of the Factories Act, 1948;
C. it also applied for, and has been granted, "No Objection Certificate" from Pollution Control Board; D. requisite consent under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 are also granted;
E. requisite clearance is granted by Chief Controller of Explosives, Nagpur under Indian Explosive Act, 1884; F. registration under Central Excise Act, 1944, registering the petitioner as manufacturer of industrial gases is also granted;
G. registration under and for the purpose of Gujarat Value Added Act, 2003 and Central Sales Tax Act, 1956 are also granted;
H. approval from Weights and Measurement department for flow meters weight bridge, etc. is also granted;
I. the industrial unit commenced industrial production on and from 25.11.2009;
J. According to the petitioners, it is "New Industrial Undertaking" as contemplated under Section 2(bb) read with Section 3 and 2(a) of Gujarat Electricity Duty Act, 1950 and Bombay Electricity Duty (Gujarat) Rules 1986.
2.6 It is claimed that since the petitioner intended to avail Page 4 HC-NIC Page 4 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT such benefit of exemption from payment of electricity duty, it had submitted an application dated 28.1.2010 in prescribed Form-E to seek certificate of eligibility for exemption of electricity duty under Section 3(2)(vii) of the Act read with Rule - 11 (1) of the Rules.
2.7 The petitioner has also claimed that the respondents rejected the said application vide order dated 18.11.2010 on the ground that petitioner has been existing undertaking and has been engaged in manufacturing activities in the state and that therefore cannot be considered "New Industrial Undertaking" under the Act.
2.8 Feeling aggrieved by the said decision dated 18.11.2010, the petitioner challenged the order by filing appeal before respondent No.2 who also rejected the appeal vide order dated 27.5.2013. The said order dated 27.5.2013 is under substantial challenge in present petition.
2.9 According to the petitioners, the impugned order is arbitrary and the authority has passed the impugned order without application of mind to the facts of the case and relevant provisions and also failed to appreciate the correct and proper meaning, scope and object of the provision and have erred in holding that the petitioner cannot be considered "New Industrial Undertaking".
3. The respondents have opposed the petition and claimed that the decision by the authorities are just, proper and in Page 5 HC-NIC Page 5 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT consonance with the provisions under the Act and the Rules and that the petitioner company is not entitled for the exemption from payment of electricity duty and consequently, the claim that the amount paid by it towards the duty should be refunded is not sustainable. The respondent Nos.2 and 3 have filed common reply affidavit wherein it is averred and claimed that:
"6.3 It is submitted that the petitioner in its application form 'E' at item No.6 i.e. for previous nature of business or manufacturing activity stated that;
"Previous business activities of the company Includes the business of trading of gases and of equipments / machineries / onsite plants etc. for industrial gases and providing services by setting up of onsite gas generation plants, in their premises, to be used captively by the customers for production of finished goods. Recognizing the potential for increasing demand for the industrial gases with in Gujarat, the company has embarked on setting up its own first industrial gas producing plant in the State of Gujarat drawing electricity from the state Grid."
6.8 It is most humbly submitted that it is felt by the answering respondents that the petitioner is not eligible for benefit for exemption from payment of electricity duty as peer the provisions and explanation under section 3(2)(vii) of the Act and accordingly the impugned order was passed."
3.1 According to the respondents, the petitioner has been undertaking manufacturing activity in the State before starting the unit / production at present location in 2009 and that in view of the clause No.2.2.2 of the Supply Agreement between M/s. Air Liquiquide West India Private Ltd. Bharuch (which is amalgamated with present petitioner company) and M/s. EI Dupont India Limited as well as M/s. Gujarat Guardian Limited, the petitioner cannot be considered "new industrial undertaking".
4. Mr. Joshi, learned Senior Counsel has appeared for the Page 6 HC-NIC Page 6 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT petitioner, and Ms. Shruti Pathak, learned AGP appeared for the respondent No.1 to 3, and Mr. Dave, learned advocate appeared for the respondent No.4 electricity company.
5. Mr. Dave, learned advocate for the electricity company declared and submitted that it is formal party and the electricity company does not intend to add anything beyond the submissions by respondent Nos.1 to 3 and the electricity company adopts the submission and stand of the said respondents.
6. The learned AGP and learned advocate for the respondent No.4 company have not disputed, rather accepted, the petitioners' submission that total amount as per the claim raised by the respondents i.e. which became payable as per the impugned orders, is paid / deposited by the petitioners.
7. Mr. Joshi, learned Senior Counsel, appearing with Ms. Gargi Vyas, learned advocate for the petitioner, submitted that the Act levies duty on consumption of electrical energy in the State and that therefore, the duty can be levied and claimed from the petitioner only after the petitioner started consuming electricity. He further submitted that the petitioner became consumer of "first instance" when it availed electricity connection for its industrial unit at Jhagadia i.e. in 2009 and that therefore, for the period prior to 2009 the petitioner cannot be termed "consumer" and such consumption can be attributable only to the clients and not to the petitioners. According to the petitioner, its activities cannot be interpreted to mean that prior to 2009 the Page 7 HC-NIC Page 7 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT petitioner was "an existing industrial unit" in the State and / or within the purview of the expression "engaged predominantly in the manufacture or production" or the expression "a service undertaking". Learned Senior Counsel for the petitioner relied on section 3(2) of the Act and further submitted that the unit at Jhagadia is not established by transfer of any existing business or undertaking or by transfer of building, machinery and plant previously used in the State for any industrial purpose or by way of splitting or reconstruction of existing business or undertaking already in existence and that the technology and manufacturing process used at the sites of the clients are different from the technology and manufacturing process employed by the petitioner at its unit at Jhagadia. Learned Senior Counsel for the petitioner submitted that the demand raised by the respondents for payment of electricity duty and the refusal to allow benefit of exemption from the payment of duty for five years is arbitrary, unjustified and contrary to the provisions of the Act. Learned Senior Counsel for the petitioner also relied on the amendment in the Act which, according to the petitioner, contemplates that any additional unit of an existing / established industrial undertaking will be entitled to exemption from the payment of electricity duty subject to the terms and conditions specified by the Government. So as to support and justify the contentions and submissions, learned Senior Counsel for the petitioner relied on the decisions in case of Textile Machinery Corporation Limited, Calcutta v. The Commissioner of Income Tax, West Bengal, Calcutta [1977 (2) SCC 368], and State of Gujarat & Ors. v. Saurashtra Cement & Chemical Industries Ltd [(2003) 2 SCC 394] and Shakti Bio Science Ltd. & Anr. v. Assessment Officer, Page 8 HC-NIC Page 8 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT Gandhinagar & Ors. [(2014) 1 GLR 545].
8. Per contra, Ms. Shruti Pathak, learned AGP, opposed the submissions by learned Senior Counsel for the petitioner and submitted that the petitioner cannot be considered new industrial undertaking and the petitioner is not entitled for exemption from payment of electricity duty for period of five years as claimed by it. Learned AGP relied on the application submitted by the petitioner in prescribed Form - E whereby the petitioner sought exemption from payment of electricity duty. Learned AGP submitted that the meaning of the term "new industrial undertaking" under section 3(2)(vii)(a) of the Act, does not cover industrial units / undertakings such as the petitioner's. According to learned AGP, the explanation under the said section carves out an exception according to which certain units cannot be considered as new industrial undertaking. According to learned AGP, even an undertaking which is formed by transferring business or building, machinery or plant previously used in the State for any industrial purpose by any other unit also cannot be considered to be new industrial undertaking and from the details provided by the petitioner in the application submitted in prescribed Form - E, it has emerged that the petitioner, according to its own claim, was engaged in business and activity of manufacture and sale of gases including manufactured oxygen, medical oxygen, liquid nitrogen, etc. and merely because the said gases were manufactured at the premises of the clients, does not take away or eliminate the fact that the petitioner was engaged in industrial activity in the State of Gujarat and that therefore, it is not justified in claiming that its unit at Jhagadia is new industrial Page 9 HC-NIC Page 9 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT undertaking. Learned AGP relied on clause No.2.2.2 of the agreement entered into by and between the petitioner with company named Gujarat Guardian Limited and another company named E.I.Dupont and submitted that the liability to pay all taxes, cost, duties, charges (freight and insurance) etc. were to be borne by the petitioner and that in view of the said provision and in view of the nature of business and activity which was being carried on by the petitioner, its unit at Jhagadia cannot be considered as new industrial undertaking. Learned AGP submitted that the petitioner's claim that prior to 2009 - at the site of the clients - it was not using electricity is not correct and that the petitioner does not fulfill the requirements, conditions and criteria prescribed by the Act under the said provision so as to be eligible for being considered as new industrial undertaking to be eligible for exemption from payment of electricity duty.
9. I have heard learned Senior Counsel for the petitioner and learned AGP for the respondents and also considered the material on record of this petition.
10. The petitioner has claimed that since 1996 until 2009, it used to undertake its business activities at the premises of its clients on "build, own and operate and maintain" basis and for putting in operation such arrangement the petitioner had entered into contracts with clients viz. Gujarat Guardian Limited and E I Dupont Limited in State of Gujarat and with one more client in State of Maharashtra. According to the terms of the contract between the parties, the arrangement for other resources and infrastructure, including supply of power for the said activity, was made by clients at their cost Page 10 HC-NIC Page 10 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT and as part of its obligation the petitioner ensured installation, operation and maintenance of the plant for generation of gaseous nitrogen and to supply the gas. Subsequently, somewhere in 2009, the petitioner established its own industrial unit for production and supply of gases namely, liquid oxygen, liquid nitrogen, gaseous hydrogen and gaseous nitrogen and the said unit is also engaged in trading of argon and acetylene.
11. The dispute between the petitioner and the respondents has arisen in respect of the said industrial unit at Jhagadia. The dispute and difference between the petitioner and the respondents arose on account of an application submitted by the petitioner on or around 28.1.2010 seeking exemption from the obligation to pay electricity duty on the premise that its industrial unit at Jhagadia is "New Industrial Undertaking" and that therefore, in view of the provisions under the Act, it is entitled for exemption from payment of duty for first five years from the date when the commercial production started the petitioner also prayed for certificate of eligibility for exemption of electricity duty under Section 3(2)(vii) read with Rule 11(1) of the Rules. The respondent No.3 considered the application and vide order dated 18.11.2010, the respondent No.3 rejected the application and the appellate authority rejected the appeal vide order dated 29.5.2013.
12. In this factual background, the dispute between the parties arise from construction and application of the definition and meaning of the term "new industrial undertaking" and it is necessary to decide as to whether petitioner's industrial unit at Jhagadia can be considered Page 11 HC-NIC Page 11 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT "new industrial undertaking". For that purpose, it will be necessary to keep in focus the meaning of the expression "New Industrial Undertaking" as provided under the Act and the factual background stated by the petitioner.
13. So as to consider and appreciate rival contentions, it is appropriate and necessary to take into account the provisions under Section 2(a), (bb) and (ee) as well as provisions under Section 3(1), 3(2)(vii) and the explanation thereto. The said provisions read thus:-
"Section 2: In this Act, unless the context requires otherwise:-
(a) "Consumer" means any person who is supplied with energy on payment of charges or otherwise by a licensee or by any other person who generates energy and includes -
(i)a licensee in relation to energy either generated by himself or supplied by any other licensee,
(ii) any other person in relation to energy generated by himself, and used by such licensee or person for any purpose excluding that of construction, maintenance or operation of his generating, transmitting or distributing system but including office, commercial or residential purpose connected with such system;
and the word "consume" with its grammatical variations and cognate expression shall be construed accordingly;
(bb) "industrial undertaking" means an undertaking engaged predominantly in -
(i) the manufacture or production of goods or
(ii) any job work which results in the manufacture or production of goods but does not include -
(a) a service undertaking; and
(b) an undertaking which manufactures or produces any kind of food or drinks or both meant ordinarily for consumption on the premises of the undertaking.
Explanation 1. - For the purpose of item (B) of this clause, "premises of the undertaking" includes all premises which are intended for being used for consumption of food or drinks or both.
Explanation 2. - For the purpose of this clause and clause (ee), an undertaking engaged in the manufacture or production of goods and also in any one of more of the activities specified in clause (ee) -(a) shall be deemed to be -
(i) engaged predominantly in the manufacture or production of goods if the gross annual income of such undertaking from such manufacture of production for the accounting year of such Page 12 HC-NIC Page 12 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT undertaking preceding the period in respect of which the duty is levied in greater than the gross annual income of such undertaking for that accounting year from such activity or activities,
(ii) a service undertaking engaged predominantly in any one or more of the activities specified in clause (ee) if the gross annual income of such undertaking from such activity or activities for the accounting year of such undertaking preceding the period in respect of which the duty is levied is greater than the gross annual income of such undertaking for that accounting year from such manufacture or production.
(ee) "service undertaking" means an undertaking which is engaged predominantly in all or any of the following activities, irrespective of whether all or any of these activities result in the manufacture or the production of goods, namely:-
(i) repairs, renovation, reconditioning, restoration restitution or preservation,
(ii) cleaning, [***]
(v) case hardening, carbonizing or any other surface treatment,
(vi) electronic data processing,
(vii)such other activity as the State Government may, by notification in the Official Gazette, specify] Section 3. (1) Subject to the provisions of sub-section (2)(2AA), (2AAA), (2B) and (3), there shall be levied and paid to the State Government a duty on the consumption of electricity (hereinafter in this Act referred to as "electricity duty") at the rates specified below:-
(a) the electricity duty shall be payable by consumers other than those referred to in sub-clauses (i) and (ii) of clause (a) of section 2, at the rates specified in Schedule I to this Act, and
(b) the electricity duty shall be payable by consumers referred to in sub clauses (I) and (ii) of clause (a) of section 2, at the rates specified in Schedule II to this Act.] (2) Electricity duty shall not be leviable on the units of energy consumed, -
(vii) for motive power and lighting in respect of premises used by a new industrial undertaking for industrial purpose, subject to such terms and conditions as may be prescribed, for a period of five years from the date on which such industrial undertaking begins to manufacture or produce goods for the first time:
Provided that no new industrial undertaking shall be entitled for exemption from payment of electricity duty under this clause, unless it has obtained a certificate regarding eligibility for such exemption in prescribed form by making an application therefore in such form, within Page 13 HC-NIC Page 13 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT such period and to such officer as may be prescribed.
Explanation. - For the purpose of this clause "a new industrial undertaking" means any industrial undertaking which -
(a) is not formed by the splitting up or the reconstruction of a business or undertaking already in existence in the State; or
(b) is not formed by transfer to a new business or undertaking of a building, machinery or plant previously used in India for any industrial purpose, of such value in relation to total value of the aforesaid investments, as the State Government may, by notification in the Official Gazette, specify; or
(c) is not an expansion of the existing business or undertaking in the State."
14. According to the scheme of the Act, the obligation to pay electricity duty arises on consumption of electricity / energy and duty is levied on "consumption" of electricity and the Duty shall be payable by "consumer". The rates at which the Duty shall be payable by different classes of consumers (mentioned in the schedule) is prescribed under section 3(1).
Section 3(2) grants exemption, in certain cases, from the obligation to pay the duty. The said provision brings in picture the terms "industrial undertaking" and "industrial purpose" inasmuch as the said sub-section (2) provides, inter alia, that the Duty shall not be leviable, for five years, on the units consumed for "industrial purpose" by a "new industrial undertaking". The answer to the question as to which undertaking can be considered "industrial undertaking" lies in section 2(bb) and the answer to the issue which industrial undertaking can be considered "new industrial undertaking" is answered by clause (vii). The explanation to said clause
(vii) of sub-section (2) of section 3 of the Act excludes certain industrial undertakings from the range of "new industrial undertaking" and clarifies which industrial undertaking will not qualify for such exemption. The term "consumer" is Page 14 HC-NIC Page 14 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT defined under Section 2(a) to mean any person to whom energy is supplied by a licencee or by any other person who generates energy. Section 2(bb) defines the term "industrial undertaking" so as to mean any undertaking which is engaged predominantly in manufacture or production of goods or any job work which results into manufacture or production of goods. The said definition further provides, inter alia, that the term "industrial undertaking" does not include (i) a service undertaking; and (ii) any undertaking which manufactures or produces any kind of food or drinks or both which are meant ordinarily for consumption on the premises of the undertaking. The scheme of the Act, by virtue of sub-section (2) of Section 3, grants exemption or moratorium - for a period of five years - from the obligation to pay Duty and such benefit is available, inter alia, to "new industrial undertaking" and to some other undertakings, specified under said sub- section (2) of Section 3. However, any undertaking which is formed by transfer of building, machinery or plant previously used in India to the new business or undertaking or which is formed by splitting-up or reconstruction of a business or undertaking already in existence in the State or which is not an expansion of existing business or undertaking are excluded from the purview of "new industrial undertaking".
14.1 The petitioner has claimed that it undertook "onsite" activities at the premises of its clients, however, electricity connection was availed by and supplied to and in the name of, the clients and that the person who was registered as "consumer" with the licensee were the clients of the petitioner and the bills for energy consumption were raised in the name of petitioner's clients and not the petitioner. It is, Page 15 HC-NIC Page 15 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT however, pertinent that electricity was obtained for operation of the plant, i.e. "for industrial purpose" and the owners hip of the plant/s was with and retained by the petitioner. The petitioners have also claimed that according to the arrangement agreed between the petitioner and their clients, the obligation to make available required load of electricity was that of the client and the application for requisite load of energy necessary for operating the plant was made by the clients.
14.2 However, it cannot be overlooked that the plants installed by the petitioner at the site of its clients were merely installed and set up at the site but were not sold to the clients and its clients were not the "owners" of the plants. Further, the energy / electricity supplied to and consumed by the plants i.e. for operation and maintenance of the plants was business activity of the petitioner. Differently put, the electricity supplied and consumed for production / manufacture of gases was for the business activity of the petitioner.
14.3 In light of sub-clause (vii) of sub-section (2) of Section 3 which provides, inter alia, that electricity duty shall not be leviable on the unit of energy "consumed for" motive power and lighting in respect of premises used by a "new industrial undertaking" "for industrial purpose" subject to prescribed terms and conditions, for period of five years from the date on which the said industrial undertaking begins to manufacture or produces goods for first time the petitioner has claimed the exemption / benefit. However, it is necessary to consider the proviso to clause (vii) of sub-section (2) of Section 3 which Page 16 HC-NIC Page 16 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT curtails the availability of said exemption by prescribing norms for industrial undertaking on fulfillment of which exemption would be available. The proviso read with the explanation thereto provides that an industrial undertaking which claims to be "new industrial undertaking" shall not be entitled for exemption from payment of electricity duty under the said clause (vii) if (a) it has not obtained a certificate regarding eligibility for such exemption by making an application within prescribed time limit; and industrial undertaking shall not be treated as "new industrial undertaking"(b) if such industrial undertaking is formed by (i) transfer of building, machinery or plant previously used in India for any industrial purpose to an undertaking or business; (ii) if it is an expansion of existing business or undertaking in the State; or (iii) if such industrial undertaking is formed by splitting or reconstruction of a business or undertaking already in existence in the State.
14.4 Therefore, it becomes necessary to ascertain, from the facts and material available on record, as to whether the industrial unit set-up by the petitioner at GIDC Estate, Jhagadia, in 2009 falls into any one or more of the aforesaid exclusions i.e. the four exclusions prescribed under Section 3(2)(vii) read with the explanation.
14.5 So as to claim that it does not fall in any of the said conditions and that it is a new industrial undertaking and should have been recognized and treated as such, the petitioner has relied on the details which are recapitulated in para No.2.5 above.
Page 17 HC-NIC Page 17 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT 14.6 The petitioner has further claimed that its unit at Jhagadia is "consumer of first instance". As mentioned earlier, Section 3 of the Act, being charging section, levies the duty on consumption of electricity and imposes the obligation to pay duty on the consumer. It is in light of Section 3 that the petitioner seems eager to claim that prior to 2009, i.e. before the unit at Jhagadia commenced production, it was not a "consumer" as contemplated under Section 2(a) of the Act. True it is that the obligation to pay duty is imposed on a consumer, however, when a dispute or controversy arising in light of sub-section (2) of Section 3, more particularly clause
(vii) of sub-section (2) arises and question of eligibility for availing benefit of exemption is raised, the question whether the undertaking seeking such benefit is consumer of first instance or not would be merely one of the factors which may be considered, however, the principal issue would be whether the undertaking claiming benefit of exemption is new industrial undertaking or not and in view of the proviso to explanation to clause (vii) of sub-section (2) of Section 3, the former aspect viz. the unit is consumer of first instance or not would be secondary inasmuch the status of the undertaking must be decided in light of the four conditions or requirements prescribed by virtue of the said proviso and explanation. Differently put, whether an undertaking is a new industrial undertaking has to be ascertained only in light of the four conditions prescribed by the proviso and explanation to clause (vii) of sub-section (2) of Section 3.
In this view of the matter, in the facts of present case, the issue as to whether the petitioner is consumer of first instance or not would be a secondary aspect, however, the crucial and relevant aspects or factors in light of which the Page 18 HC-NIC Page 18 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT final decision as to the character and status of the undertaking in question (i.e. whether it is a new industrial undertaking or not) must be decided keeping in focus and by applying only those four conditions which are prescribed by virtue of the proviso and explanation to clause (vii) of sub- section (2) of Section 3.
14.7 On the other hand, it is necessary to also take into account the fact that before it set-up the unit at Jhagadia, the petitioner's business activities were already in operation since 1996. The petitioner was already in business and by entering into special arrangement with its clients, it was continuing its business in full swing. The petitioner, to put it in its own words, saw "great potential" for "expansion of business" and therefore, it set-up the unit at Jhagadia.
14.8 Having regard to the nature of petitioner's business activity in light of definition of industrial undertaking under section 2(bb) of the Act, the petitioner would fall within purview of the term "industrial undertaking". When the nature of business activities of the petitioner are considered, it also becomes clear that the petitioner's undertaking cannot be classified under section 2(ee) of the Act i.e. as a service undertaking.
15. Therefore, what was necessary to be considered by the authority is as to whether the petitioner's unit at Jhagadia can be said to be "new industrial undertaking" as contemplated under Section 3(2)(vii) read with its proviso and explanation.
15.1 It is not in dispute that the petitioner started its business Page 19 HC-NIC Page 19 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT activities in the State since 1996. The petitioner, according to its own claim, is essentially and materially in business of manufacturing and selling / supplying various gases. It is also relevant that prior to 2009, the petitioner was engaged in same business activity i.e. manufacture and sale / supply of gases and after 2009 also the petitioner's business activity is the same i.e. manufacture and supply of gases.
15.2 True it is that at its Jhagadia unit, the petitioner is manufacturing more or different type of gases than what it used to do at the site of its clients, prior to 2009 in the State of Gujarat and that it has, according to its claim, installed "state-of-the-art-technology". However, even if it is assumed that the petitioner has installed new and better technology, the fact remains that such latest and better technology is used for the same business activity viz. manufacture and sale / supply of gases.
15.3 Therefore, question arises as to whether the petitioner's action of setting up the plant at Jhagadia can be said to be expansion of business and/or whether the unit is hit by said or any other explanation under clause (vii). It is profitable to recall, at this stage, that according to proviso of sub-section (2) of section 3, an industrial unit, which is an "expansion of business" in the State can not be treated as "new industrial undertaking". It is also pertinent that mere installation and use of new, better or latest technology, without anything more, would ordinarily amount to modernization or up- gradation of method and means of production but when the issue to be examined and decided in light of and within the confines of clause (vii) of Section 3(2) read with proviso and Page 20 HC-NIC Page 20 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT the explanation then mere installation and use of new technology would, without anything more, not automatically make the unit "new undertaking". Likewise, starting production or manufacture of more or different gases would amount to or would, without anything more, amount to expansion of business or at the most diversification. When the principal activity and business of the unit remains the same, then, the unit or undertaking which is set up may or may not, depending on facts of the case and depending on presence or absence of other facts, factors and connected or related or attending circumstances, come within the purview of the term "new industrial undertaking" as contemplated under the Act.
15.4 For the said purpose, each case and its facts must be tested on the touch stone of the proviso of clause (vii) of sub- section (2) of section 3 and the explanation because the said proviso and the explanation contain the list of the industrial undertakings which will not be and cannot be considered new industrial undertaking and also reflects the object of clause
(vii) as well as sub0section (2) of section 3 and intention of the legislature.
16. While examining the case in light of said provision, it would be appropriate to consider the object of said provision. The principal object of sub-section (2) of clause (vii) thereof is to give boost to industrial growth in the State by inviting new industries and by encouraging existing industries to set up new units. So as to achieve the said object, as one of the measures and incentives to industries and entrepreneurs, benefit of exemption from payment of electricity duty, by way of moratorium for five years, is provided. Since the provision Page 21 HC-NIC Page 21 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT is en-grafted with object of granting benefit or moratorium so as to encourage industries and enlarge base of industries / industrialization in the State, the said exemption must be construed in a manner which would achieve and advance the object. In light of the facts of present case, relevant and crucial expression in the sub-clause (vii) of sub-section (2) of section 3 are "not formed by reconstruction of a business already in existence" or "not formed by transfer of machinery or plant previously used in the State for any industrial purpose" or "expansion of existing business in the State". The said qualification or conditions are prescribed so as to provide safeguard against misuse of the exemption or moratorium benefit and therefore, should be strictly applied and adhered to.
17. When the said provision is construed, while keeping the said aspects in focus, it emerges that the petitioner, which is existing since 1996 in the State set up the unit at Jhagadia in 2009 for the same business which it has been engaged in, since 1996. Though it is claimed that improved technology is installed and more products are introduced, important fact of the matter is that primary business and field of operation remains the same i.e. manufacture and sale of supply of gases.
17.1 As mentioned earlier, it is petitioner's claim that it realized that there is great potential for its products and therefore, it decided to set up industrial unit for production of various gases. Accordingly, the unit at Jhagadia came to be set up. Thus, even according to the petitioner, the industrial unit at Jhagadia is set up for expansion of its business in which the petitioner has been engaged since 1996 in the Page 22 HC-NIC Page 22 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT State.
17.2 However, as mentioned the said aspect should be decided after considering various related aspects and not merely the "product basket "of the undertaking.
17.3 The real test, to ascertain as to whether the undertaking / unit in question is new undertaking or not is to determine whether it is all the same a new and identifiable undertaking separate and distinct from existing business or not; and whether the new industrial undertaking cannotes expansion of existing business. There must be new emergence of a physically separate industrial unit which can exist on its own as a viable unit and physical identity with the old unit is not preserved. In this context, it is relevant to take into account the observations in paragraph No.18 of the decision of Hon'ble Apex Court in the case of Textile Machinery Corporation (supra):-
"18. The assessee continues to be the same for the purpose of assessment. It has its existing business already liable to tax. It produced in the two concerned undertakings commodities different from those which he has been manufacturing or producing in its existing business. Manufacture or production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under S. 15C. Sub-section (9) of the section also points to the same effect, namely, production of articles. The answer, in every particular case depends upon the peculiar facts and conditions of the new industrial undertaking on account of which the assessee claims exemption under S. 15C. No hard and fast rule can be laid down. Trade and industry do not run in earmarked channels and particularly so in view of manifold scientific and technological developments. There is great scope for expansion of trade and industry. The fact that an assessee by establishment of a new industrial undertaking expands his existing business, which he certainly does, would not, on that score, deprive him of the benefit under S. 15C. Every new creation in business is some kind of expansion and advancement. The true test is not whether the new industrial undertaking connotes expansion of the Page 23 HC-NIC Page 23 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business. No particular decision in one case can lay down an inexorable test to determine whether a given case comes under S. 15C or not. In order that the new undertaking can be said to be not formed out of the already existing business, there must be a new emergence of a physically separate industrial unit which may exist on its own as a viable unit. An undertaking is formed out of the existing business if the physical identity with the old unit is preserved. This has not happened here in the case of the two undertakings which are separate and distinct."
17.4 In the above mentioned decision, Hon'ble Apex Court has observed that "every new creation in business is some kind of expansion and advancement and the fact that establishment of new undertaking expands existing business would not deprive the person from benefit available to new undertaking". However, it is also necessary to keep in focus that the said observations are made in view of the provision under section 15(c) of the Income Tax Act, whereas in present case, by virtue of explanation under clause (vii) of Section 3(2) unit set-up for "expansion of business" is excluded from the ambit of "new industrial undertaking. Moreover, it is also relevant to note that even in the cited decision Apex Court did not consider the appellant's unit as "new undertaking" in view of the fact that Apex Court noticed that the unit was not totally independent because certain assets were used in the manufacturing activity at new unit.
18. In light of this position, it is necessary to recall that the factual details stated by the petitioner, whereby the salient and distinguishing features about establishing the unit at Jhagadia are mentioned, give out that according to the petitioner's claim it purchased parcel of land at GIDC Page 24 HC-NIC Page 24 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT industrial estate and obtained, factory license, consent from pollution board, permission / sanction as required under the Air Pollution Act and Water Pollution Act, registration under Sales Tax Act etc. It is further claimed that the said sanctions, permissions, licences, etc. the unit is considered and treated as independent unit set up for the first time. The features emphasized by the petitioner and other vital facts emerging from the record viz. that the petitioner had set-up the plants at the site / premises of its clients, however, it retained the ownership and continued to be the owner, of the said plants have given rise to the issue whether physical identity of the unit at Jhagadia with the plants at the site of clients is main or not and whether there is any continuation of physical existence of the plants used by it previously. Unfortunately, any clear finding on these issues is not recorded by the authority. Further, relevant material which may render help in deciding the issue is also not available on record of the petition.
18.1 At this stage, it is appropriate to consider a fact viz. all that the petitioner's clients wanted was "gases" and not the plant for manufacture or production of gases. This is evident from clause Nos.1.1, 1.2 and 2.1 of the contract with M/s. Gujarat Guardian and clause describing object of agreement and clause Nos.2.1.2, 2.1.3, 2.1.4 and 2.1.8 of the contract with EIDI and ownership of the plants was retained with and by the petitioner and in the end result electricity was "consumed" to operate petitioner's plants - though at the site of its clients - ownership of which was with, and retained by, the petitioner. On such "consumption" of electricity, the Duty became leviable in light of Section 3(1) of the Act.
Page 25 HC-NIC Page 25 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT 18.2 It is relevant to note that the petitioner wants to enjoy exemption from the liability to pay the duty on the premise that it was not consumer prior to 2009. In these facts and circumstances, the relevant issue was whether any one - either the petitioner or its clients - paid the electricity Duty for the energy / electricity "consumed" for operating of "Plants" / Floxal system (owned by the petitioner) so as to manufacture - production of gases purchased and used by its clients during the period of those contracts and before the petitioner set-up and commenced its unit at Jhagadia; or by such peculiar and special arrangement both i.e. petitioner and its clients avoided payment of Duty. Petitioner claims that it was not a consumer prior to 2009 and to support the claim and contention it has placed reliance on the meaning of the term defined under Section 2(a) according to which a person who is supplied electricity by a licencee can be termed "consumer" and since it was not supplied electricity, it cannot be termed consumer. On strength of such claim both i.e. petitioner and clients would avoid Duty. Therefore, authority ought to have examined the matter by lifting the veil and ought to have identified the actual and real user / beneficiary of "electricity consumption" i.e. real consumption.
18.3 Unfortunately, these aspects are not clarified in the orders. Actually, these aspects are not mentioned and / or addressed and decided in the orders. For determining these aspects inquiry into factual aspects and verification of relevant documents would be necessary. Relevant and necessary material is not available on record of this petition.
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19. Another fact necessary to be examined was whether the plant and / or the assets and machinery of the plants installed by the petitioner at the site of its clients are, in any manner, used in setting up the plants at Jhagadia and thereby, whether the identity and / or continuity of the unit / plants previously installed and used by the petitioner (at the sites of the clients) is maintained.
19.1 It is pertinent that in case of Textile Machinery Corporation (supra), Hon'ble Apex Court noticed that the appellant before Hon'ble Apex Court was not totally independent because certain assets were being used in the manufacturing activity carried on by the new unit. Consequently, Hon'ble Apex Court held that physical identity with old unit was preserved and therefore, the said new unit cannot be considered new unit completely independent of / from existing / old unit. In the said case, Hon'ble Apex Court observed and held that if use of old plant and machinery, etc. was necessary or if old plant and machinery were used to complete the manufacturing activity in the new unit then such unit cannot be said to be totally independent.
19.2 According to the decision, true taste for determining as to whether an industrial undertaking is new industrial undertaking or not is to examine as to whether it is all the same new and identifiable undertaking separate from and distinct from the existing business and not as to whether the new undertaking connotes expansion of existing business and that there must be new emergence of a physically separate industrial unit which may exist on its own as a viable unit and that an undertaking can be said to have been formed out of Page 27 HC-NIC Page 27 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT existing business if the physical identity with the old unit is preserved.
19.3 In this view of the matter, it was vital for the petitioner to place on record material - evidence to establish that the plat or machinery used previously for executing the contracts with its clients - customers are not used in setting up the unit at Jhagadia and the petitioner should have satisfied the authority on this count by showing credible and cogent evidence and it was necessary to decide this aspect as well before taking final decision.
19.4 At this stage, it is pertinent to mention that though the petitioner has claimed in the petition that for setting up the industrial unit at Jhagadia, GIDC Estate, it did not install and did not use whole or part of the machinery and plant installed and used by it while executing the contracts with its clients from 1996 onwards, however, the issue is neither mentioned nor addressed and discussed in the orders and not decided by the authority and any material to prove relevant aspects is not available on record of this petition.
19.5 This aspect is relevant and important in present case because the petitioner continued to be the "owner" of the plant/s installed and set-up by it at the sites of the clients and the ownership and title in said property rested and continued to be with the petitioner. In this context, it is relevant to mention that Gujarat Guardian Limited and EI Dupont Ltd, the petitioner was, as per the conditions of the contract, obliged to install plant for supply of gas to the clients on "build, own, operate and maintain" basis. The terms of the contract also Page 28 HC-NIC Page 28 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT provided that the ownership of the plant and machinery, under all circumstances, "shall remain personal property of the petitioner" and the clients had to pay only rental / fee of the plant to the petitioner. The ownership and title of the plant remained with and of the petitioner. In this context, it would be appropriate to take into account some of the clauses in the contracts in question viz. clause Nos. 1.1, 1.2, 2.1, 5.2, 5.5, 5.6, 6.1, 8.1 and 11.1 of the contract with Gujarat Guardian and clause Nos.2.1.2, 2.1.3, 2.1.4 and 2.1.8 of the contract with EIDI.
19.6 It is true that the plant and machinery were installed at the site of the client and entire infrastructure for its installation was provided by the client, however, essentially, the contract was to supply gas/gases (required by the particular client) to the clients at the client's site. The contracts do not contain any provision which oblige the petitioner to hand over the ownership and title of the plant to the clients and until the expiration of the period of contract and thereafter the petitioner continued to be the owner of entire plant and machinery. Thus, question which stares in the fact is what happened to the said plants and its machinery after expiry of the period of contracts. Whether the plants and its machinery were retrieved by the petitioner.
19.7 On initial assessment this aspect may not seem to be relevant in deciding whether the unit at Jhagadia is new undertaking or not, however, on overall consideration of relevant provisions and the object of the provisions, it emerges that so as to establish that it is a "new industrial undertaking" an industrial undertaking must comply four Page 29 HC-NIC Page 29 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT criteria prescribed under clause (vii) of Section 3(2) and it must establish that it does not violate any one of the said conditions which include the requirement that it should not have been formed inter alia, by transfer of any machinery or plant previously used in India for any industrial purpose.
19.8 It is pertinent that the provision uses expression "for any industrial purpose" and the words "machinery" and "plant" and "building". Thus, what is necessary is that the machinery or plant or building at the unit seeking exemption should not have been previously used by anyone for any industrial purpose.
19.9 Since the plants were installed and set-up by the petitioner at its client's premises for "industrial purpose" and the ownership rested with the petitioner, it was necessary to establish that the said plant/s or part of the plant/s or said machinery were not used in setting-up the unit at Jhagadia. However, unfortunately, these aspects are not considered by the authority and factual aspects are not verified and ascertained by the authority.
19.10 Therefore, it was necessary to find out as to whether at the stage when the contract period expired and the contract were terminated, the plant (including machinery) i.e. floxal unit, was removed, retrieved and taken back by the petitioner or the title and ownership of the plant was, at that stage, transferred (upon sale thereof or on any other terms and conditions) to its clients or whether the same plant or part of it came to be shifted to Jhagadia and was used at the industrial unit set up by the petitioner at Jhagadia in 2009.
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20. Of course, the petitioner has claimed that it employed new and improved technology. However, such assertion is not sufficient to reach to necessary conclusion in respect of the issue whether entire new plant and machinery was purchased and installed at Jhagadia or whole (or part of) the plant/s installed at the site of clients and previously used for industrial purpose, is used at Jhagadia and whether the petitioner comes within the purview of clause (vii) of sub- section (2) of section 3 or not.
20.1 On this count, it is relevant to note that in the impugned order/s the apparent as well as implied consequences of the fact (that according to the terms of the contract, the title and ownership of the plant (i.e. Floxal unit) was retained by and remained with the petitioner during the entire period of the contracts and the plant was never sold and the title and ownership of the plant was never transferred but it continued to be of the petitioner), though vital, are not considered and decided by the authorities.
21. Examination and adjudication of the said issue would, obviously, require examination of relevant documents and other material. In this context, it is appropriate to take into account the submission / reply dated 25.2.2011 said to have been filed by the petitioner before Chief Electrical Inspector and Duty Collector wherein the petitioner, in para 8.3 of reply, has mentioned some details related to this aspect.
22. This Court has also taken into account the copy of the application dated 28.10.2010 said to have been submitted by Page 31 HC-NIC Page 31 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT the applicant for seeking exemption from payment of electricity duty. The Item / Clause No.10 of the said application required the petitioner to disclose the fact related to list of machinery and Item / Clause No.11 required the applicant to disclose the details about capital investment and cost of each asset. The said Item / Clause Nos.10 and 11 and petitioner's reply thereto read thus:-
10 List of machinery with All Plant and machineries rated H.P. (Also state purchased are new. List of whether machinery Machinery with rated KW/HP is purchased are new or enclosed at Annex. VIII second hand) 11 Capital Investment (Give Attached at Annex. IX, CA the details of cost of each certificate from H S Ahuja & Co.asset) enclosed.
23. From the above mentioned reply / submission dated 25.2.2011 and on examination of the application in Form - E, it prima facie appears that the petitioner had claimed before the authority that the plant and machinery were purchased for setting up said unit and the plant and machinery install at the unit were new, however, though the said particular aspect is relevant and important in view of the provision under Section 3(2)(vii) of the Act, inasmuch as according to the said provision, any industrial unit which is formed or set up by transfer of "....machinery or plant previously used in India for any industrial purpose..." will not be and cannot be treated as new industrial undertaking, the impugned orders do not contain any discussion with reference to said assertion and / or related evidence nor finding and conclusion with regard to the said vital aspect are considered and decided and any finding, more particularly with regard to the factual aspects related to said assertions are not recorded. It was necessary Page 32 HC-NIC Page 32 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT to ascertain whether physical identity with the said plants is preserved at Jhagadia unit or there is complete new emergence of a physically separate and new unit. The impugned orders are thoroughly non-speaking and unreasoned order. Though the petitioner is visited with civil consequences, the contentions raised by it are discussed and decided and any reasons and conclusions are not recorded.
23.1 Since any material, even the annexures to its application dated 28.10.2010 or any other material said to have been placed on record before the authority are not before this Court, it is not possible for the Court to examine relevant material details and to arrive at any particular findings on this count. Any conclusion arrived at without considering the said relevant aspect would be defective. Therefore, remand of the case is inevitable.
24. It would be necessary for the authority to ascertain as to whether the plant and / or machinery previously used at the sites of the clients or part of it have been installed by the petitioner at the Jhagadia unit and/or used for and in the production activity or not and whether, on strength of relevant documents the petitioner has established that (a) the unit at Jhagadia is set up by new plant and machinery; and (b) the plant and machinery at any of the sites of its clients i.e. the plant and machinery previously used in India are not used in setting up the unit at Jhagadia and / or are not used in production process and whether sufficient and cogent and satisfactory documentary evidence to support its said assertion is made available by the petitioner.
Page 33 HC-NIC Page 33 of 34 Created On Wed Sep 02 01:09:20 IST 2015 C/SCA/16374/2013 CAV JUDGMENT 24.1 Thus, for the said purpose, i.e. for ascertaining the factual aspect, the matter is required to be remitted to the original authority who will call for relevant documents and material from the petitioner to ascertain the said factual aspect (if such material is already available on record before him) and if he is satisfied upon verifying the relevant documents and material and after granting opportunity of hearing to the petitioner that the unit at Jhagadia is set up by new plant and machinery and not with the plant and machinery or part of it previously used in India, then, the authority will pass appropriate fresh order in light of the discussion in this decision.
For the said purpose i.e. for remitting the matter to the original authority for determining the aforesaid aspect impugned orders are set aside with the direction to consider and decide the petitioner's application afresh having regard to the aspects discussed and decided in present decision and after verifying relevant documents and after hearing the petitioner.
With the aforesaid observations and directions, the petition is disposed of. Notice is discharged. Orders accordingly.
Sd/-
(K.M.THAKER, J.) kdc Page 34 HC-NIC Page 34 of 34 Created On Wed Sep 02 01:09:20 IST 2015