{"id":99713,"date":"2003-10-21T00:00:00","date_gmt":"2003-10-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-the-secretary-to-govt-on-21-october-2003-2"},"modified":"2015-11-30T18:11:59","modified_gmt":"2015-11-30T12:41:59","slug":"in-the-high-court-of-judicature-at-vs-the-secretary-to-govt-on-21-october-2003-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-the-secretary-to-govt-on-21-october-2003-2","title":{"rendered":"In The High Court Of Judicature At … vs The Secretary To Govt on 21 October, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
In The High Court Of Judicature At … vs The Secretary To Govt on 21 October, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 21\/10\/2003  \n\nCORAM   \n\nTHE HONOURABLE MR. JUSTICE E. PADMANABHAN             \n\nW.P.No. 961 of 1998 and  W.P.No.962 of 1998  \nand \n3943,  20457, 20458, 20872, 20873, 21155 to 21158, 31261 to 31264, \n21 356 to 21360, 23168 to 23173, 23417, 23909  to  23915,  15803,\n25440,  25  441,and 25342 to 25349, 26368, 26369, 13872, 25081 to \n25086, 23047, 23083 of 2001 \nand \n        60,61, 353 to 360, 583, 637, 904, 909, 938,  1262,  1335,\n1336, 1722 to 1725, 1732, 1757 to 1762, 1764, 2251, 2267 to 2270,\n2283  to  2284,  2  288  to 2291, 2305, 2442, 2593, 2658 to 2663,\n2683, 2702, 2703, 2902 to 2905, 2955 to 2957, 2969 to 2971,  3056\nto 3058, 3146, 3224, 3230, 3 231, 3223, 3234, 3244, 3245, 3478 to\n3480,  3719  to  3721,  3748  to 3751 , 3743, 3877, 4076 to 4080,\n4083, 4201 to 4204, 4308 to 4311, 4363, 4372, 4386, 4387, 4557 to\n4560, 4872, 4621 to 4624, 4894 to 4897, 492 2, 5099, 512, 5246 to\n5248, 5255, 5266, 52795291, 52i6 to 5298,  5299,  5300,  5301  to\n5304, 5372, 5448, 5475 5476, 5504, 5510, 5847 to 5850, 5871, 5942 \nto 5945, 6164, 6191, 6200 to 6201, 6234, 6384, 6387, 6517 , 6518,\n6384,  6712,  6739,  6855,  6877, 6982, 6989, 7154, 7155, 7385, 7\n465, 7535 to 7538, 7539, 7540 to 7542, 7653,  7677,  7688,  7694,\n7721,  7724,  7725,  7727,  7728, 7779, 8026, 8027, 8109, 8135 to\n8137, 8262, 8 335, 8400, 8492, 8493, 8497, 8498,  8662  to  8665,\n8680,  8737,  8905,  89 20, 8944, 8963 to 8969, 8984, 9028, 9029,\n9144, 9145, 9188, 9426, 952 4, 10006, 10183, 10393, 10394, 10466, \n10630, 11111, 11133, 11308, 113 09, 11609, 11836, 11837, 11843 to \n11848, 12176, 12439 to 12441, 13678  ,  13721  to  13723,  14524,\n14525,  14843  to 14847, 15629 to 15635, 15636 to 15643, 15845 to\n15847, 15907, 15930, 15983 to 15987,  16046  to  160  49,  16069,\n16076,  16077,  16093, 16109, 16173, 16299, 16439, 16440, 16 489, \n16494, 16973 to 16976, 17132, 17245 to 17248, , 17348, 17921,  18\n202  to  18204,  18339, 18994, 19028, 19465, 19466, 19539, 19604,\n19605, 19755, 19331, 19332, 19963, 20032, 20041 to  20043,  20368 \nto  20371,  2  0402,  20764,  28748,  20844, 21006, 21023, 21182,\n21282, 21359, 21633 to 21638, 21743, 22017, 22429 to 22432, 22439  \nto 22442, 22459, 22555, 22556, 22639, 22661, 22838, 22845, 22855, \n22996, 23063, 23511, 23803, 23845, 23846, 24226 to 24228,  24594, \n24650  to 24652, 24680, 29370, 29385, 29766, 31461, 31521, 32041, \n32293, 3234 0 to 32342, 32534 to 32  540,  35367,  11492,  12271,\n12320, 17891 to 17894, 21254,29739, 32608, 32698 to 32705, 33461,  \n33462,  33547,  33564, 34310, 34311, 34528, 351 73, 35174, 35269, \n35530, 35848, 35867, 35900, 36232 to 36234, 36454, 36691,  36789, \n37125,  37311,  37372,  37509, 38178, 38179, 38396, 38397, 38459, \n38596, 38657, 38666, 38803, 39889 to 39891, 39050, 39629, 406 43, \n40742, 40894, 41633 of 2002, 1076, 2081, 2283, 2284,  6086,  1833\n9, 19539, 19755, 19963, 20402, 20764, 21006, 30200, 33822, 42317, \n433 10, 43311, 44248, 44611, 44731, 45293, 45315 to 45319, 45518, \n45523, 46505, 46195, 46631, 46632, 1527 and 34618 of 2002  \nand \n450,  1190  to  1193,  1667,  1746, 1781, 1796, 1811, 1812, 2627,\n2628, 3140, 4032 to 4034, 5157, 6228,  6355,  6356,  6585,  6652,\n6887,  7830, 7 831, 11025, 11026, 13051, 13056 and 18489, 1190 to \n1193, 3309, 3426, 3428, 8883, 13755, 17416, 18544  and  22999  of\n2003.\nand \nWPMP Nos:    30173,  30174, 30803, 3084, 31261 to 31264, 31543 to   \n31547 34136 to 34141, 34551, 35341  to  35347,  23415,  37719  to\n37721\/2001 \nand \n30173, 30174, 30803, 30804, 31261 to 31264, 31543 to 31547, 34136  \nto 34141, , 34551 35341 to 35347, 23415, of 2001 93,84, 516, 523,\n894, 957, 1023, 1295, 1300, 1325, 1766, 1861, 1862, 2400 to 2403,\n2413,  24  39 to 2444, 2446, 3117, 3132 to 3135, 3149, 3150, 5156\nto 3159, 3175 , 3483, 3605, 3697, 3733, 3767, 3768, 4064 to 4067,\n4154 to 4156, 417 5 to 4176, 4322  to  4324,  4426,  4533,  4542,\n4543.   4532, 4548, 4558, 45 59, 4900 to 4902, 5208 to 5210, 5245\nto 5248, 5373, 5438, 5518, 5727 to 531, 5434, 5939  to  5942,6076\nto  6079, 6117, 6128, 6147, 6148, 6382 to 6385, 6893, 6894, 6519,\n6522, 6923 to 6926, 6957, 7152, 7232, 735 8 to 7360, 7367,  7368,\n7396 to 7408, 7413 to 7415, 7416, 7417, 7418 to 7421, 7517, 7587,\n7614,  4615,  7650, 7657, 8115 to 8118, 8115, 8116, 8143, 8233 to\n8236, 8491, 8529, 8542, 8543, 8579, 8808, 8813, 8994, 8995, 8808,\n9253, 9286, 948, 9506, 9649, 9655, 9917,  9918,  10231,  103  03,\n10381 to 10384, 10385, 10386 to 10388, 10535, 10560, 10571, 10578  \n,  10608, 10611, 10612, 10613, 10614, 10686, 10975, 10976, 11089, \n111 27 to 11129, 11277, 11357, 11461, 11569, 11570, 11573, 11574, \n11802 to 11805, 11817,  11889,  12090,  12106,  12135,  12156  to\n12162,  12178,  12 254, 12255, 12378, 12379, 12438, 12752, 12914, \n13540, 13757, 15056, 14057, 14154, 14339,  15011,  15049,  15253, \n15254,  15255, 15639, 15937 , 15938, 15944 to 15949, 16413, 16757 \nto 16759, 18453, 18530 to 1853 3, 19528, 19529, 19942  to  19946,\n20914  to  20920,  21199 to 21201, 212 93, 21324, 21397 to 21401,\n21472 to 21475, 21508, 21517, 21518, 21542 , 21564, 21641, 22054, \n22055, 22123, 22129, 22964 to 22967,  23264,  23  431  to  22434,\n23571, 24478, 24839 to 24841, 25069, 26124, 26176, 2687 3, 26874, \n26961,  26962,  27049, 27050, 27281, 26647, 26658, 27559, 276 56, \n27667 to 27669, 28194 to 28197, 28244, 28748, 28841, 29049,  2906 \n9,  29279,  29420,  29538, 29929 to 29934, 30086, 30449, 30991 to\n30994, 31003 to 31006, 31024, 31161, 31162, 31278, 31306,  31508, \n31516, 31 522, 31701, 31802, 32403, 32758, 32811, 32812, 33312 to \n33314,  33822, 33899 to 33901, 33933, 47755, 47774, 48291, 45885, \n45962, 46637, 469 48, 47054 to  47056,  48451  to  48457,  52768,\n15518,  16536, 16585, 24448 to 24451, 33503, 29375, 48221, 48553, \n48665 to 48672, 49559, 49560, 49680, 49706, 51062, 51063,  51484, \n52347  to  52349,  52534,  53074,  535 53, 53477, 53750, 54499 to\n54501, 54801, 55166, 55303, 55820, 56063,  56145,  56316,  57177, \n57178,  57416,  57417,  57510,  57643, 57717, 57731, 5795, 59322,\n58249, 59006, 60253, 60378, 60551, 61576, 37574 to 375 81, 38992, \n38993, 8733, 37283, 37288, 33922, 33978, 1505, 2881, 3149 , 3150, \n8365, 25069, 26961, 26962, 44202,  50016,  62454,  63698,  63699,\n64922,  65329, 65473, 66196, 66217 to 66221, 66458, 66460, 67618, \n672 54, 67780, 67781, of 2002\nand \n1477 to 1480, 2088, 2186, 2221, 2235,  2250,  2251,  2628,  3294,\n3934,  5077  to  5079,  6578, 7990, 8169, 8170, 8474, 8558, 8866,\n10049, 10050, 13841, 13842, 16384,  16390,  23114,  4154,  11360,\n17223, 21762, 231 68 and 28433 of 2003 \nand \nWVMP.   Nos;  1266, 1237, 1338, 1248, 1249, 1239 to 1241, 1258 to  \n1262, 1251 to 1256, 1243 to 1246, 1230 to  1235,  1263,  1210  to\n1215, 1227 to 1229, 1216to 1219, 1220 to1224, 1250, 1207 to 1209,\n1225 and 1226 of 2002. \n\n\nW.P.No:3943 of 2002  \n\nM\/s.South India Small\nSpinnrs Association rep. By its\nPresident Mr.U.G.Kanakarajan  \nAvinashi Road, Coimbatore                               ..Petitioner\n\n-Vs-\n\n\n\n1. The Secretary to Govt.,\n   Govt., of Tamil Nadu\n   Energy Department \n   Fort St. George\n   Chennai-9\n\n2. The Tamil Nadu Electricity Board\n   rep. By its Chairman,\n   800, Anna Salai, Chennai-2\n\n3. Tamil Nadu Electricity Regulatory Commission\n   rep. By its Chairperson,\n   Seethammal Colony, Alwarpet \n   Chennai-18.                                  ..Respondents<\/pre>\n
        Writ  Petitions  preferred under Art.226 of The Constitution of India,
\nseeking for the relief of  writ  of  Declaration,  declaring  the  Tamil  Nadu
\nElectricity  (Taxation  on  Consumption)  Act,  viz., Act, 32 of 1991 as ultra
\nvires, as stated therein.\n<\/p>\n
For petitioners:       Mrs.Nalini Chidambaram, S.C.,
\n                        Mr.R.  Thiagarajan,S.C.,
\n                        Mr.R.S.Pandiaraj,
\n                        Mr.Palani Selvaraj,
\n                        Mr.Kamalanathan,
\n                        Mr.Sivanandham,
\n                        Mr.C.S.Krishnamurthy
\n                        Mr.Rahul balaji
\n                        Mr.T.S.Sivagnanam
\n                        Mr.V.Ramajegadeesan
\n                        Mr.S.K.Nachimuthu
\n                        Mr.S.Kadarkarai
\n                        Mr.Md.Ibrahim Ali
\n                        Mr.S.Rakkappan
\n                        Mr.K.Kalyanasundaram
\n                        Mr.P.Radhakrishnan
\n                        Mr.R.kannan
\n                        Mr.N.Manoharan
\n                        Mr.K.Rajasekar
\n                        Mr.M.Ajmalkhan
\n                        Mr.G.Veerapathiran
\n                        Mr.C.Premano Louis
\n                        Mr.S.Jaswanth
\n                        Mr.K.R.A.Muthukrishnan
\n                        Mr.M.Jayaraman
\n                        Mr.Vijay Narayan
\n                        Mr.R.Vijayaraghavan
\n                        Mr.S.N.Kribanandam
\n                        Mr.V.P.Sengottuvel
\n                        Mr.M.Kannadasan
\n                        Mr.A.R.Jeyasankar
\n                        MR.V.Sanjeevi
\n                        Mr.V.Bharathidasan
\n                        Mr.S.Mohan
\n                        Mr.S.Navaneethakrihsnan
\n                        Mr.C.M.Krisnakumar
\n                        Mr.K.Selvaraj
\n                        Mr.N.L.Rajah
\n                        Mr.S.Natarajan
\n                        M\/s.Aiyar & Dolia
\n                        M\/s.Muthuani Doraisamy
\n                        Mr.S.Subbiah
\n                        M\/s.Silambannan<\/p>\n
For Respondents:       Mr.N.R.Chandran,
\n                        Advocate General,
\n                        Mr.R.Raghupathy,
\n                        Additional Government Pleader
\n                        Mr.N.Srinivasan, for
\n                        Tamil Nadu Electricity
\n                        Regulatory Commission.\n<\/p>\n
:COMMON ORDER      <\/p>\n
        In  this  batch  of  writ  petitions the petitioners either Company or
\nindividual or Association of members, as a consumer of electricity have prayed
\nfor the issue of a writ of Declaration  declaring  the  Tamil  Nadu  Eletricty
\n(Taxation  on  consumption)  Act,  viz.,  Act  32  of  1991 as ultra vires the
\nConstitution of India, illegal, invalid  and  unenforceable  and  consequently
\ndirect  the  respondents  to  refund  the  entire  amount  collected  from the
\nconsumers under the head of Electricity Tax.\n<\/p>\n
        2.   Heard  Mrs.Nalini  Chidambaram,  learned  Senior  Counsel,  Mr.R.
\nThiagarajan,  learned  Senior  Counsel,  Mr.Kamalanathan,  Mr.Palani Selvaraj,
\nMr.Sivanandam, Mr.R.S.Pandiaraj, and other learned counsels appearing for  the
\npetitioners,  Mr.N.R.Chandran, learned Advocate General for the State of Tamil
\nNadu,  and  Mr.N.Srinivasan,  learned  standing  counsel  appearing  for   the
\nrespondents 2 and 3.\n<\/p>\n
        3.   The  petitioners seek to invalidate Section 3.A of the Tamil Nadu
\nElectricity (Taxation on Consumption) Act, 1962.   The  petitioners  challenge
\nthe  levy  of  additional tax on the consumption of energy in terms of Section\n<\/p>\n
3.A in these batch of writ petitions.   The  petitioners  seek  to  invalidate
\nSection  3.A  as introduced by Tamil Nadu Act 32 of 1991 and consequently seek
\nfor refund of the tax collected respectively from each one of them.    Section
\n3A which is impugned reads thus:-\n<\/p>\n
“3.A  Levy  of  Additional Tax on consumption of energy:–(1)Save as otherwise
\nprovided in Sub Section (1) of Section 3, there shall be levied  and  paid  to
\nthe  Government  every  month,  an additional tax on the consumption of energy
\ncalculated at the rate of four per centum of the price of energy  consumed  by
\nthe consumer:\n<\/p>\n
        provided  that  no  additional  tax  shall  be  levied  under this sub
\nsection–\n<\/p>\n
        (a) On the energy consumed by  any  person  for  domestic  connections
\nincluding hut connections or for agricultural purposes; or\n<\/p>\n
        (b)  on  the energy consumed by any person (other than a licensee) who
\nconsumes energy generated by himself.\n<\/p>\n
(2) The additional tax under sub section (1) shall be levied  in  addition  to
\nany  tax  payable  on the consumption of energy levied and collected under sub
\nsection (1) of section 3.\n<\/p>\n
(3) The provisions of this Act shall apply in relation to the addition to  the
\nadditional  tax payable under sub section (1) as they apply in relation to the
\ntax payable under sub section (1) of Section 3.”\n<\/p>\n
        4.  Section 3.A was inserted by the Tamil Nadu Electricity (  Taxation
\non Consumption)  Act  1991  (Act 32 of 1991).  The Act 32 of 1991 received the
\nassent of the Governor on 11th October  1991  and  it  came  into  force  with
\nretrospective effect from 1st October, 1991 as provided by Section 1(2) of the
\nAmending Act.\n<\/p>\n
        5.   The  learned  counsel appearing for the petitioners fairly stated
\nthat the impugned provision namely Section 3.A of the Tamil  Nadu  Electricity
\n(Taxation  on  Consumption)  Act, 1962 falls well within the competency of the
\nState Legislature.  There is no dispute that Section 3 .A falls  within  Entry
\n53, List  II  of  Schedule  VII  to  the Constitution.  Therefore it cannot be
\ncontended that it is not being contended that the provision is ultra vires.\n<\/p>\n
        6.  Proviso to Section 3.A also provides that no  additional  tax  has
\nbeen  levied  under  section  3.A  on  the  energy  consumed by any person for
\ndomestic connections including sale to hut  connections  or  for  agricultural
\npurposes.   So  also the energy generated and consumed by the consumers is not
\nsubjected to additional tax.  Sub section (3) makes it clear that Section  3.A
\nshall  apply  in  relation to the addition to the additional tax payable under
\nsub section (1) as they apply in relation to the tax payable under sub section
\n(1) of Section 3.\n<\/p>\n
        7.  The learned counsel appearing for the petitioners mainly contended
\nthat by G.O.Ms.NO.787, PWD, dated 30th April 1979, the State Government by way
\nof simplification and rationalisation of tariff structure merged all duties or
\ntaxes, being additional levies,  such  as  surcharge,  metropolitan  levy  and
\nelectricity tax, wherever applicable depending upon the class of consumers and
\nalso the Central Excise  surcharge.    The  said G.O.  Ms No.  787, PWD, dated
\n30th April 1979 has merged the tariff rate which  includes  the  levy  of  tax
\nexcepting metropolitan levy and Central Excise Surcharge.\n<\/p>\n
        8.   The State Government issued a Notification under section 4 of the
\nTamil Nadu Revision of Tariff Rates and Supply of Electrical Energy Act,  1979
\nand existing  schedule was substituted by a new schedule of tariff rates.  New
\ntariff  rates  consist  of  basic  rate,  besides  central  excise  surcharge,
\nmetropolitan levy.    The  basic rate varied from High Tension to Low Tension.
\nLow Tension and Tariff 1,2, and 4 etc., Basic Rate  differed  and  apart  from
\nbasic  rate  for KVA of maximum demand per month has also been included in the
\ntariff rate.  The said tariff rate is nothing but general conditions of supply
\nprescribed by the Tamil Nadu Electricity Board  from  time  to  time.    After
\nG.O.Ms.No.78  7,  dated  30th  April  1979, which came into force on 1.5.1979,
\nthere has been further revision of tariff rates by  the  following  Government
\nNotifications:-\n<\/p>\n
G.O.Ms.Nos
\nDate
\nDate of effect\n<\/p>\n
1.G.O.Ms.NO.787, PWD, (Electricity)
\n30.4.1979
\n1\/5\/1979\n<\/p>\n
2.G.O.Ms.NO.1518, PWD,(Electricity)
\n11\/9\/1981
\n15.9.1981\n<\/p>\n
3.G.O.Ms.NO.861, PWD, (Electricity)
\n30.4.1982
\n1\/5\/1982\n<\/p>\n
4.G.O.Ms.NO.1033, PWD, (Electricity)
\n16.5.1983
\n16.5.1983\n<\/p>\n
5.G.O.Ms.NO.793, PWD, (Electricity)
\n25.5.1985
\n1\/6\/1985\n<\/p>\n
6.G.O.Ms.NO.3042, PWD, (Electricity)
\n23.12.1986
\n1\/7\/1987\n<\/p>\n
7.G.O.Ms.NO.482, PWD, (Electricity)
\n22.3.1989
\n1\/4\/1989\n<\/p>\n
8.G.O.Ms.NO.553, PWD, (Electricity)
\n12\/3\/1990
\n1\/4\/1990\n<\/p>\n
9.G.O.Ms.NO.1434, PWD, (Electricity)
\n27.8.1991
\n1\/9\/1991\n<\/p>\n
10.G.O.Ms.NO.402, PWD, (Electricity)
\n24.1.1992
\n1\/2\/1991\n<\/p>\n
11.G.O.Ms.NO.313, PWD, (Electricity)
\n26.2.1993
\n1\/3\/1993\n<\/p>\n
12.G.O.Ms.NO.35,Energy Dept.,(A.2)
\n1\/3\/1994
\n1\/3\/1994\n<\/p>\n
13.G.O.Ms.NO.29,Energy Dept.,(A.2)
\n31.1.1995
\n1\/2\/1995\n<\/p>\n
14.G.O.Ms.NO.17,Energy Dept.,(A.2)
\n14.2.1997
\n15.2.1997\n<\/p>\n
15.G.O.Ms.NO.115,Energy Dept.,(A.2)
\n19.7.1998
\n20.7.1998\n<\/p>\n
16.G.O.Ms.NO.3,Energy Dept.,(A.2)
\n7\/1\/2000
\n7\/1\/2000\n<\/p>\n
17.G.O.Ms.NO.95,Energy Dept.,(A.2)
\n28.11.2001
\n1\/12\/2001 <\/p>\n
        9.    While  referring  to  G.O.Ms.No:787  PWD,  Dt.30.4.1979,  it  is
\ncontended that tax has already been merged with tariff rate under  the  policy
\nof  rationalisation  and simplification and having rationalised and merged the
\ntax with tariff rate, it is not open to the  respondents  to  levy  additional
\ntax.   It  is  also  contended  that the respondents have no authority to levy
\nadditional tax under Section 3.A as it is without authority.  When no tax  has
\nbeen  levied  under Section 3, the levy of additional tax under Section 3.A is
\nwithout authority and unenforceable.  In other words,  it  is  contended  that
\nwhen  there  is  no  levy of tax under section 3 of the Tamil Nadu Electricity
\n(Taxation on Consumption) Act, 1962, no question of  levy  of  additional  tax
\narises under Section 3.A and such a demand is without authority.\n<\/p>\n
        10.  It  is  contended  by  Mr.Palani  Selvaraj  as  well  as  by  Mr.
\nPandiaraj that levy of tax under the Electricity Act either under Section 3 or
\nunder  Section  3.A  as  inserted  by  the Amending Act unconstitutional or is
\nillegal and not authorised by law in that the levy infringes  Art.288  of  The
\nConstitution  in  so  far  as  the Act has not been reserved for the assent of
\nPresident before levy of  tax  on  Electrical  or  energy  and  therefore  the
\nprovision is unenforceable.  Hence a direction may be issued to refund the tax
\nso far collected under the Act.\n<\/p>\n
        11.  It is further contended by the counsel for the  petitioners  that
\nafter  merger, there being no identity of tax levied under section 3 , Section\n<\/p>\n
3.A is unenforceable and there could be no levy of additional tax.  It is also
\ncontended that it amounts to double taxation.  It is  contended  that  Section\n<\/p>\n
3.A  offends  Art.14,19  and  21 of The Constitution, besides the State has no
\nlegislative competency to enact the Amending Act, 32 of  1991.    It  is  also
\nfurther  contended  that it is an arbitrary exercise of power conferred on the
\nState.  According to one of the counsel, there could be no levy of  additional
\ntax on the consumption of energy and it is beyond the legislative competency.\n<\/p>\n
        12.   Mr.Rahul  Balaji,  appearing  for  one of the petitioners namely
\nM\/s.Madras Cements Company, referred to the exemption granted in favour of the
\nsaid petitioner and contended that there cannot be  levy  under  section  3.A.
\nMr.Rahul  Balaji,  contended  that  having  granted exemption in favour of the
\npetitioner, it cannot be taken away indirectly under section 3.A  by  imposing
\nadditional  tax  in respect of consumption of energy which is generated by the
\nsaid petitioner.\n<\/p>\n
        13.  Per contra, the learned Advocate General leading the arguments on
\nbehalf of the respondents  contended  that  Section  3.A  of  the  Act  is  an
\nindependent provision which operates on its own strength and it is well within
\nthe legislative competency of the State Legislature.  It is contended that the
\nrate  of  levy has been increased and earlier merger of tax which was leviable
\nunder section 3 has no consequence and even after merger also Section 3.A will
\noperate independently and there could  be  a  levy  of  additional  tax  under
\nSection 3.A.    It  is  contended on behalf of the respondents that levy under
\nSection 3.A will not amount to double taxation.    Even  assuming  so,  double
\ntaxation  is  permissible and valid in law, unless and until it is established
\nthat such levy is confiscatory in nature.\n<\/p>\n
        14.  The learned Advocate General relied upon the pronouncement of the
\nSupreme Court in State of U.P., Vs.  Renusagar Power Company, reported in  AIR
\n1988 SC 1737 in this respect.\n<\/p>\n
        15.   In these batch of Writ Petitions, the following points arise for
\nconsideration:-\n<\/p>\n
        (1)     Whether Section 3.A as introduced by Tamil Nadu Electricity  (
\nTaxation on Consumption) Act, 1991 is beyond the legislative competency of the
\nState Legislature?\n<\/p>\n
        (2)  Whether  the  provision  of  Tamil  Nadu Electricity (Taxation on
\nConsumption) Act, 1962 as well as the Amendig Act are invalid, inoperative and
\nunenforceable as the  same  has  not  been  reserved  for  the  President  for
\nconsideration in terms of Art.288 of The Constitution?\n<\/p>\n
        (3)     Whether  there could be a levy of additional tax under section\n<\/p>\n
3.A when the levy under section 3 ceased to exist on and after 1st May 1979?\n<\/p>\n
        (4)     Whether the  levy  of  additional  tax  is  expropriatory  and
\nviolate Art.14 of The Constitution?\n<\/p>\n
        (5)     To what relief, if any?\n<\/p>\n
        16.   Taking up the first and second points together for consideration
\nat the first instance, identical points were considered by  this  court  in  a
\nbatch of writ petitions challenging the validity of levy of tax on consumption
\nunder  the  Tamil Nadu Tax on consumption or sale of Electricity Act, 2003 and
\nrejected after detailed consideration.  However, it is sufficient to refer  to
\nthe provisions  of The Constitution, while considering the contentions.  It is
\nto be pointed out that the word “Consumption” is found under List II, Entry 53
\nof Schedule VII which reads thus:-\n<\/p>\n
        53.  TAXES ON THE CONSUMPTION OR SALE OF ELECTRICITY
\n        “`Consumption’.  The word, not being limited in  any  way,  authroises
\nthe  imposition  of  a  duty on the consumption of Electricity by the producer
\nhimself.  Such a duty cannot be regarded  as  a  duty  of  excise  within  the
\nmeaning of Entry 84 of List I”.\n<\/p>\n
This is the settled legal position as has been held by the Supreme Court.\n<\/p>\n
        17.   The  levy  of additional tax in the present case by the impugned
\nprovision is on the consumption of electrical energy which falls within  Entry\n<\/p>\n
53.   This additional levy under section 3.A falls well within the Legislative
\ncompetency and there cannot be any doubt.  The Supreme Court in J.C.Mills  Vs.
\nState  of Madhya Pradesh, reported in AIR 19 63, SC 414 upheld the validity of
\nidentical levy.  The Supreme Court held thus:-\n<\/p>\n
        “(6) It is difficult to see how the levy of duty upon  consumption  of
\nelectrical energy can be regarded as duty of excise falling within Entry 84 of
\nList I.    Under that Entry what is permitted to Parliament is levy of duty of
\nexcise on manufacture or production of  goods  (  other  than  those  excepted
\nexpressly by  that entry).  The taxable event with respect to a duty of excise
\nif Manufacture or production.  Here the taxable event  is  not  production  or
\ngeneration of  electrical energy but its consumption.  If a producer generates
\nelectrical energy and stores it up, he would not be requir3d to pay  any  duty
\nunder the  Act.    It is only when he sells it or consumes it that he would be
\nrendered liable to pay the duty prescribed by the Act.  The Central  Provinces
\nand  Berar  Electricity  Act  was  enacted  under Entry 48-B of List II of the
\nGovernment of India Act, 1935.  The relevant portion of that entry read thus:-
\n“Taxes on the consumption or sale of electricity”
\nEntry 53 of List II of the Constitution is to the same effect.   The  argument
\nof  Mr.Sastri  is  that  the word “consumption” should be accorded the meaning
\nwhich it had under the various Electricity Acts, including Indian  Electricity
\nAct, 1910.    Under  that Act and under the various Provincial and other Acts,
\nconsumption of Electricity means according to him, consumption by person other
\nthan producers and that both in the Government of  India  Act  and  under  the
\nConstitution the word Consumption must be deemed to have been used in the same
\nmanner.   The  Acts  in  question deal only with a certain aspect of the topic
\nelectricity, and not with all of them.  Therefore,  in  those  Acts  the  word
\nconsumption  may  have  a  limited meaning, as pointed out by learned counsel.
\nBut the world consumption has a wider meaning.  It means also  use  up,  spend
\netc.,  the  mere  fact that a series of law were concerned only with a certain
\nkind of use of Electricity, that is  consumption  of  electricity  by  persons
\nother  than  the  producer  cannot  justify  the  conclusion  that the British
\nParliament in using the word consumption in Entry 48-B  and  the  Constitution
\nAssembly  in Entry 53 of List II wanted to limit the meaning of Consumption in
\nthe same  way.    The  language  used  in  the  legislative  entries  in   the
\nConstitution must be interpreted in a broad way so as to give widest amplitude
\nof power to the Legislature to legislate and not in a narrow and pedant sense.
\nWe  cannot,  therefore,  accept  either  th  two grounds urged by Mr.Viswanath
\nSastri challenging the vires of the Act.”\n<\/p>\n
        18.  In a  recent  pronouncement  in  State  of  Andhra  Pradesh,  Vs.
\nNational  Thermal  Power  Corporation  Ltd.,, reported in 2002 (5) SCC 203 the
\nSupreme Court held that a levy on the sale or consumption  of  electricity  is
\nwell within  the  legislative  competence  and valid.  In that case tax on the
\ninterstate sale of electricity was sought to be levied by the State of  Andhra
\nPradesh  and while invalidating such a levy on the interstate sale the Supreme
\nCourt held thus:-\n<\/p>\n
        “33.  On behalf of the States of A.P.  And M.P., it was submitted that
\nthe subject of electricity has been specifically dealt with  by  Articles  287
\nand  288  of  the  Constitution  and  by  implication the Articles, other than
\nArticles 287 and 288, should be read as not dealing with  electricity.    This
\nsubmission is stated only to be rejected.  These articles make some provisions
\nfor  electricity and water or electricity in the special context dealt with by
\nthose articles and do  not  exclude  applicability  of  other  articles  where
\nelectricity has been dealt with as goods.”\n<\/p>\n
        19.  In  State  of U.P., Vs.  Renusagar Power Company, reported in AIR
\n1988 SC 1737, at page 1761, the Supreme Court held thus:-\n<\/p>\n
        “75…..Price fixation, in our opinion, which is ultimately the  basis
\nof  rise  in  cost because of the rise of the electricity duty is not a matter
\nfor investigation of court.  This question was examined by this Court in Union
\nof India v.  Cynamide  India  Ltd<\/a>  where  one  of  our  learned  brothers  who
\ndelivered the  judgment  of the High Court of Allahabad was a party.  There in
\nexercise of the powers under Section 3(2)(c) of the Essential Commodities Act,
\nthe Drugs (Prices Control) Order, 1979  was  made.    The  Central  Government
\nthereafter issued  notification  thereunder.    At  page  741 of the report, C
\nhinnappa Reddy, J.    speaking  for  the  court  referring  to  a  passage  of
\nAdministrative  Law  by  Schwartz  with approval expressed the view that those
\npowers were more or less legislative in character.   Fixation  of  electricity
\ntariff can  also  to a certain extent be regarded of this category.  Chinnappa
\nReddy, J.  observed at page 735 of the report that price fixation is  more  in
\nthe nature  of a legislative activity than any other.  He referred to the fact
\nthat due to the proliferation of delegated legislation, there  is  a  tendency
\nfor  the  line  between  legislation  and  administration  to  vanish  into an
\nillusion.   Administrative,  quasi-judicial  decisions  tend   to   merge   in
\nlegislative  activity and, conversely, legislative activity tends to fade into
\nand present an appearance of an  administrative  or  quasi-judicial  activity.
\nAny  attempt  to  draw  a distinct line between legislative and administrative
\nfunctions, it has been said, is  ‘  difficult  in  theory  and  impossible  in
\npractice’.  Reddy  J.    insisted  that  it  is  necessary  that the line must
\nsometimes be drawn as different legal right and consequences may  ensue.    It
\nappears  to  us  that  subsection (4) of Section 3 of the Act in the set up is
\nquasi-legislative and (quasi-administrative insofar as it  has  power  to  fix
\ndifferent  rates  having regard to certain factors and insofar as it has power
\nto grant exemption in some cases, in  our  opinion,  is  quasi-legislative  in
\ncharacter.   Such  a decision must be arrived at objectively and in consonance
\nwith the Principles of natural justice.  It is correct that with regard to the
\nnature of the power under Section 3(4) of the Act when the power is  exercised
\nwith  reference  to  any  class  it  would  be  in  the  nature of subordinate
\nlegislation but when the power is exercised with reference  to  individual  it
\nwould be  administrative.   Reference was made in this connection to the cases
\nof Union of India v.  Cynamide India Ltd.  and P.  J.   Irani<\/a>  v.    State  of
\nMadras.”\n<\/p>\n
        20.   In  the  circumstances,  the  first  point has to be answered in
\nfavour of the respondents  and  against  the  writ  petitioners  holding  that
\nSection  3.A  as  introduced  by  the  Tamil Nadu Act, 1991 is well within the
\nlegislative competency of the State Legislature and it is intra vires  of  the
\nConstitution.\n<\/p>\n
        21.  As  regards  Art.    288 also, this court has considered the very
\nsame contention elaborately while examining the validity of Tamil Nadu Tax  on
\nConsumption  or  Sale  of  Electricity  Act, 2003 and held that Art.288 of The
\nConstitution has no application at all.  If electrical energy by any Authority
\nestablished by an existing law for developing any interstate  river  or  river
\nvalley,  unless  the  enactment has been reserved for the consideration of the
\nPresident and received the assent, there cannot be a levy on such  generation,
\nsale or  distribution  by  that authority.  Here, none of the petitioner falls
\nunder the category of interstate river or river valley  authority  constituted
\nby an Act of Parliament, nor the petitioners consumed power sold by such river
\nvalley  authority or constituted by interstate river or river valley authority
\nso that they could claim  that  levy  without  consent  of  the  President  is
\nprohibited by  Art.228  and  therefore,  it  is invalid.  This is not the case
\nhere.\n<\/p>\n
        22.  It is not open  to  the  petitioners  to  invoke  Art.288.    The
\ngeneration or sale or distribution of electrical energy in the present case is
\nnot  by  any  interstate  river  or  river  valley authority constituted by an
\nenactment of Parliament  and  therefore  no  reliance  could  be  placed  upon
\nArt.288.  In the present case, the generation and sale of electrical energy is
\nby  the  Tamil Nadu Electricity Board or it is a generation and consumption by
\nthe consumers themselves in their own generating plants or captive  generators
\nand therefore invocation of Art.288 is a misconception and it cannot be relied
\nupon.   In  the  circumstances  the  point has to be answered in favour of the
\nrespondents and against the writ petitioners.\n<\/p>\n
        23.  Taking up the next point for consideration it has to  be  pointed
\nout  that  Section  3.A  as  introduced  by  the  Amending  Act operates as an
\nindependent charging section.  Section  3  provides  that  additional  tax  is
\nlevied  and  shall  be  paid  to  the  Government on the consumption of energy
\ncalculated at the rate of 4 per centum of the price of energy consumed by  the
\nconsumer.   Therefore  in  respect  of  consumption  of electrical energy by a
\nconsumer, an additional quantum of tax is levied at the rate of 4  per  centum
\nof the  price  of  energy  consumed by the consumer.  Section 3.A which is the
\ncharging section operates independent of Section 3.  It is like  surcharge  or
\nenhancing  the  rate  of  duty  or  tax  payable under the Act with respect to
\nconsumption of electrical energy by a consumer.  As  already  pointed  out  it
\nfalls under  the  legislative competency of the State.  It is for the State to
\nfix rate of taxes either calling it as basic rate or surcharge  or  additional
\ntax any other terms so long as it is not expropriatory in nature.  The rate of
\n4  per  centum  as  was  introduced  by  the  Tamil  Nadu  Act, 32 of 1991 has
\nsubsequently been revised and enhanced to 5 pr centum by Tamil Nadu Act 43  of
\n1994.   This again is an additional levy which is additional to the tax levied
\nand payable under section 3 on the  consumption  of  electrical  energy  by  a
\nconsumer.  If a consumer consumes electrical energy the consumer has to pay an
\nadditional  amount  of  tax at 4 per centum of the price of energy consumed by
\nthe consumer in addition to the tax if any payable under Section 3.\n<\/p>\n
        24.  Even though there has been a merger of levy under Section 3  with
\nschedule  of  tariff  notified  under  section 4 of the Tamil Nadu Revision of
\nTariff Rate of Supply of Electrical Energy Act, 1978, it cannot be  held  that
\nthere  has  been  no  levy,  nor  it could be held that there has been a total
\nexemption from levy, nor it could even be suggested that  levy  of  tax  under
\nSection 3  has  been suspended.  Admittedly there is no notification under the
\nTamil Nadu Electricity Act, ( Taxation on Consumption) Act, 1962.   But,  1991
\nAct confers  power  of  exemption in terms of Section 12 or 13.  Admittedly no
\nnotification has been issued under the Tamil  Nadu  Electricity  (Taxation  on
\nConsumption) Act,  1962.    IN  fact the electricity tax has been levied under
\nSection 3 .  Therefore the contention that there has  been  merger  is  of  no
\nconsequence  and  at any rate the same will not render Section 3.A as nugatory
\nor unenforceable.  As already pointed out Section 3.A  operates  independently
\nas a charging section and it is an additional levy of tax.\n<\/p>\n
        25.   While  considering  the  effect  of  G.O.Ms.No:787, Public Works
\nDepartment,  dated  30.4.1979,  a  Division  Bench  of  this  Court  in   M\/s.
\nNavbharath Ferro Alloys Ltd.,  Ms.6  & others Vs.  The State of T.N.  rep.  by
\nthe Secretary to Govt., PWD (Electricity), reported in 1997 Writ L.R.201,  and
\nexamining the levy in particular the basis for calculation of energy tax, held
\nthus:-\n<\/p>\n
        “5.   The  contention  is that in the event the revised tariff is also
\napplied as clarified by the Chief Engineer, in his memo  No.450\/J2\/70-2  dated
\n10.5.1979, the   revised   tariff   effected   under  G.O.ms.No.787  P.    W.D
\n(Electricity)  dated  30.4.1979  would  include  the  tax  whatever  leviable,
\ntherefore  the  amount  of  tax  payable on the tariff that prevailed prior to
\nG.O.Ms.No.787 dated 30.4.1979 shall have to be  excluded  from  the  price  of
\nenergy for the purpose of levying the energy tax.  We are of the view that the
\nenergy tax payable by the captive energy consumers has to be determined not on
\nthe basis  of  the  explanatory  memo  issued b the Chief Engineer.  It is not
\nexplained as to under what authority he had issued such memo.    Even  without
\ngoing  into  that  question,  we are of the view that what is relevant for the
\npurpose of deciding the energy tax liability of the petitioners, who are using
\nthe captive energy produced by them, is the definition of the price of  energy
\nas per  Sec.2(9),  Sub sec.  (2) of Sec.5 and Sec.3(1)(a) and (b) of the Tamil
\nNadu Act 4 of 1962.  All these provisions, which have been referred to  above,
\nread  together  would  make  it  clear  that  the  tariff  for  the time being
\nprevailing in force would be the price or the money consideration  payable  by
\nthe energy  consumers.  Whatever may be the contents of the tariff, as long as
\nit answers the requirement of the definition of price of energy as meaning the
\nmoney consideration paid by a consumer to a licensee, excluding items  (i)  to\n<\/p>\n
(iv) of Cl.(9) of Section 2 of the Tamil Nadu Act 4 of 1962 would be the price
\nof  energy  therefore, we are of the view that it is not possible to accede to
\nthe contention of the petitioner that in the tariff revised by  G.O.M.s.NO.787
\ndated  30.4.1979l  the tax payable on the tariff as it stood prior to 1.5.1979
\nshould be excluded for the purpose of determining the energy tax, because  the
\nsaid  tax  payable on the tariff has been made as part and parcel of the price
\nor the money consideration payable by the energy consumer to the licensee.\n<\/p>\n
        6.  The Tamil Nadu Act 1 of 1979 has been  considered  by  a  Division
\nBench  of  this Court (to which one of us the Hon’ble The Chief Justice, was a
\nparty) M\/s.Snam Abrasives Ltd., rep, by its director T.V.  Sivaraman, V.   The
\nCommissioner  and  Secretary  to  the  Government  Public  Works & Electricity
\nDepartment and Others (ILR 1996) 2 Madras 501).    In  para  11  of  the  said
\ndecision,  it has been held that Section 4 of the Act No.1 of 1979 gives power
\nto the State Government to change the tariff schedule.  The  relevant  portion
\nof the judgment is as follows:-\n<\/p>\n
“…When  section  4  gives  the power to change the Schedule, it goes without
\nsaying that the Government has the power to prescribe the rates different from
\nwhat was prescribed under Act 1 of 1979 and  in  so  doing  they  can  equally
\nprescribe  a  different  rate for the industries which had been grouped, under
\nHeading V.  Special Tariff.  Therefore, when the Tariff Schedule Act was first
\namended by G.O.Ms.NO.787 dated 3 0.4.1979 the  fact  that  the  Synthetic  Gem
\nIndustry  was  levied  at  the rate of 20 Paise per KWH where as Caustic Soda,
\nCalcium Carbine, Aluminum Fertiliser etc., were charged  at  the  rate  of  17
\npaise, 10 paise, 19 paise respectively per KWH cannot be faulted on the ground
\nthat a  different  classification had been adopted.  We are clearly of opinion
\nthat only tariff  rates  as  applicable  to  ce  rtain  industries  have  been
\nprescribed  and  this  is  perfectly  legitimate  and  within the power of the
\nGovernment under section 4 of the Act.  In other words, Section  4  does  give
\nthe  power  to  the Government industries by amending the schedule and this is
\nprecisely what has been done in the various  Government  orders.    The  first
\ncontention of the appellants, therefore, fails…..”\n<\/p>\n
The  explanatory  note  issued  by the Chief Engineer, whose authority has not
\nbeen explained to us, is not  in  conformity  with  the  reasons  for  issuing
\nG.O.Ms.No.787 dated 30th April, 1979.  In addition to that, as already pointed
\nout  the  said explanatory note apart from being contrary to Section4 of Act 1
\nof 1979 the scope of which is explained  in  the  aforesaid  decision  is  not
\nrelevant  for  purpose  of  deciding  the  price  of energy in relation to the
\ncaptive energy produced by the consumers.”\n<\/p>\n
This answers the material contention advanced by the learned counsel  for  the
\npetitioners.   This court is bound by the Division Bench pronouncement of this
\nCourt.\n<\/p>\n
        26.  Sub section (2) of Section 3.A makes it clear that the imposition
\nunder section  3.A(1)  shall  be  in  addition  to  any  tax  payable  on  the
\nconsumption of energy levied and collected under sub section (1) of Section 3.
\nThe  Legislature has made it clear that the levy under section 3.A(1) shall be
\nin addition to to the levy payable under sub section (1) of Section 3.    Even
\nassuming  for  the  purpose  of argument that there has been no levy under sub
\nsection (1) of Section 3 there could be a levy under section 3.A(1) in respect
\nof consumption of energy by the consumer calculated  at  the  rate  of  4  per
\ncentum of the price of energy consumed by the consumer.\n<\/p>\n
        27.   As  rightly  pointed  out  out  by  the learned Advocate General
\nSection 3.A operates independent of Section 3 and  the  State  Legislature  ha
\nimposed an additional amount of tax under sub section (1) of Section 3.A which
\nis  in  addition  to  all  the  tax  payable  under  section (1) of Section 3.
\nAssuming for purpose of argument that there has been no levy under sub section
\n(1) of section 3, it cannot be contended that there could be no  levy  at  all
\nunder section 3.A(1).  Such a contention is a misconception and has no legs to
\nstand.   As  already pointed out it is a further levy under sub section (1) of
\nSection 3.A and section 3.A(1) being the  charging  section  itself,  operates
\nindependently and the consumption of energy tax has been levied at the rate of
\n4 per  centum  on  the price of energy consumed by the consumer.  Therefore it
\nmakes no difference whether there is separate levy of tax under  section  3(1)
\nor not.    As already indicated there has been a levy under sub Section (1) of
\nSection 3 and it is not as if there has been no  notification  withdrawing  or
\nsuspending the enforcement of the provisions of the Act.\n<\/p>\n
        28.   There may be individual exemption under sections 12 or 13 of the
\n1962 Act.  But the same will not in any manner impinge upon Section 3.A or the
\noperation of  levy  under  section  3.A(1).    The  learned  counsel  for  the
\npetitioners advanced such a contention while placing reliance on a publication
\nby  the  Electricity  Board  which  indicates  salient features of the revised
\ntariff stating that there shall not be any levy of tax.  But a perusal of  the
\ntariff notification  is otherwise.  Even assuming so, the same will not affect
\nthe levy under section 3.A which also falls within the legislative  competency
\nof the State.\n<\/p>\n
        29.  Mr.Ragul Balaji, learned counsel appearing for M\/s.Madras Cements
\ncontended that there is an exemption in favour of the petitioner and therefore
\nthere cannot  be  a  levy.    The said contention overlooks the sub section in
\nSec.3.A.  It is an exemption in respect of levy under section 3(1).   However,
\nproviso  to  Section  3.A(1)  makes  it  clear that no additional tax has been
\nlevied under sub section (1) of Section 3.A on  the  energy  consumed  by  any
\nperson who  consumes  energy  generated by itself.  This proviso has been lost
\nsight of  by  Mr.Rahul  Balaji,  counsel  for  the  petitioner.    Hence  this
\ncontention cannot be countenanced.\n<\/p>\n
        30.   Taking  up  the  next  point  for  consideration, namely levy of
\nadditional tax of 4 per centum on the tax cannot be held to  be  expropriatory
\nin nature,  nor it offends Art.14.  It is a levy of tax which falls within the
\nlegislative competency of the State.  As rightly pointed out  by  the  learned
\nAdvocate  General  there  could  be  a  double  taxation  also so long as such
\ntaxation is not expropriatory.\n<\/p>\n
        31.  In Empire Industries Ltd., V.  Union of India, reported  in  1986
\nSC  663,  the  imposition of tax by Legislature was challenged as violative of
\nArt.14.  In that context, the Supreme Court held thus:-
\n“49.  Imposition of tax by legislation makes the subjects pay taxes.    It  is
\nwell-recognised that   tax  may  be  imposed  retrospectively.    It  is  also
\nwell-settled that that by itself would not be an unreasonable  restriction  on
\nthe right  to  carry  on  business.   It was urged, however, that unreasonable
\nrestrictions would be there because of the retrospectivity.  The power of  the
\nParliament  to make retrospective legislation including fiscal legislation are
\nwell-settled.  (See M\/s Krishnamurthi & Co.    v.    State  of  Madras.)  Such<\/a>
\nlegislation per  se  is  not  unreasonable.  There is no particular feature of
\nthis legislation which can be said to create any unreasonable restriction upon
\nthe petitioners.”\n<\/p>\n
        32.  In Venkateshwara Theater Vs.  State of Andhra  Pradesh,  reported
\nin  AIR 1993 SC 1947, the Apex Court while analysing the case law and taxation
\nprovision with reference to Art.14 the Supreme Court held thus:-\n<\/p>\n
“20.  Since in the present case we are dealing with a taxation measure  it  is
\nnecessary  to  point  out  that in the field of taxation the decisions of this
\nCourt have permitted the legislature to exercise an extremely wide  discretion
\nin  classifying  items for tax purposes, so long as it refrains from clear and
\nhostile discrimination against particular persons or classes.    (See:    East
\nIndia Tobacco Co.  v.  State of A.P.(AIR 1962 SC 1733), P.M.  Ashwathanarayana
\nShetty v.    State  of  Karnataka  (AIR<\/a>  1989  SC  100), Federation of Hotel &
\nRestaurant Association of India v.  Union of India<\/a> (1989) 2  SCR  918,  Kerala
\nHotel &  Restaurant  Association  v.    State  of Kerala (AIR 1990 SC 913) and
\nGannon Dunkerley and Co.  v.  State of Rajasthan<\/a> (1993) 1 SCC 364.)”\n<\/p>\n
        33.  In Kodar Vs.  State of Kerala, reported in Vol.34 (1974) SC 73 at
\npage 76, the Supreme Court while testing the validity  of  additional  tax  as
\ninfringing Art.19(1)(g) and 19(1)(f), held thus:-\n<\/p>\n
“9.  As regards the contention that the State Legislature has no power to pass
\nthe  measure,  we  are  of the view that additional tax is really a tax on the
\nsale of goods.  The object of the Act, as is clear from its provisions, is  to
\nincrease  the  tax  on  the  sale  or  purchase of goods imposed by Tamil Nadu
\nGeneral Sales Tax Act, 1959 and the fact that quantum of the additional tax is
\ndetermined with reference to  the  sales  tax  imposed  would  not  alter  its
\ncharacter.   It  may be noted that additional tax is to be imposed only if the
\nturnover of a dealer exceeds Rs 10 lakhs.  It is  in  reality  a  tax  on  the
\naggregate of sales affected by a dealer during a year.  The additional tax, e,
\nis  an  enhancement in the rate of the sales tax when the turnover of a dealer
\nexceeds Rs 10 lakhs a year and it is a tax on  the  aggregate  of  -the  sales
\naffected by  the  dealer  during  the  year.  The decisions in Ernakulam Radio
\nCompany v.  State of Kerala which was affirmed by  a  Division  Bench  of  the
\nKerala High Court  in  Kuikar  v.  Sales Tax Officer took that view.  The same
\nview was taken by the Andhra Pradesh High Court in A.S.   Ranachandra  Ran  v.
\nState of  Andhra  Pradesh  This  is  the  correct  view.   Entry 54 in List II
\nauthorises the state legislature to impose a tax on the sale  or  purchase  of
\ngoods.   So, the contention of the appellants that the additional sales tax is
\nnot a tax on sales but on the income of the dealer is without any basis.\n<\/p>\n
10.  As regards the second contention that  the  provisions  of  the  Act  are
\nviolative  of  the fundamental rights of the appellants under Article 19(1)(f)
\nand 19(1)(g), as the tax is upon the sale of goods and  is  not  shown  to  be
\nconfiscatory,  it  cannot  be  said  that the provisions of the Act impose any
\nunreasonable restrictions upon the appellants’ right to carry on  trade.    It
\nis,  no  doubt, true that every tax imposed some restriction upon the right to
\ncarry on a business; but it would not follow that the imposition of the tax in
\nquestion is an unreasonable restriction upon the appellants fundamental  right
\nto carry  on  trade.    Generally  speaking,  the amount or rate of a tax is a
\nmatter exclusively within the legislative  judgment  and  as  long  as  a  tax
\nretains  its  avowed  character  and does not confiscate property to the State
\nunder the guise of a tax, its reasonableness is outside the judicial ken.”\n<\/p>\n
        34.   In  fact  except  making  bald  averments  that  the   levy   is
\nexpropriatory, no  basis has been made as to how it is expropriatory.  Levy of
\n4 per centum as additional tax on  the  fact  is  not  expropriatory,  nor  it
\nviolates Art.14.    There  is nothing to show that the levy of 4 per centum is
\narbitrary.  Hence, this point is also answered in favour  of  the  respondents
\nand against the petitioners.\n<\/p>\n
        35.   In  the  result,  all the writ petitions and WPMPs are dismissed
\nholding that introduction of Section 3.A by Tamil Nadu Act, 32 of 1991 is  not
\nliable to be declared as invalid or unenforceable or inoperative.  No case has
\nbeen  made  out for issue of a writ of Declaration invalidating Section 3.A as
\nintroduced by Tamil Nadu Act, 2 of 1991, nor the petitioners are  entitled  to
\nthe consequential  relief  prayed  for  by them.  The parties shall bear their
\nrespective costs in these Writ Petitions and consequently all WPMPs  are  also
\ndismissed.\n<\/p>\n
Indedx:  Yes
\nInternet:  Yes<\/p>\n
gkv<\/p>\n
To<\/p>\n
1.  The Secretary to Govt.,
\nGovt., of Tamil Nadu
\nEnergy Department
\nFort St.  George
\nChennai-9 <\/p>\n
2.  The Tamil Nadu Electricity Board
\nrep.  By its Chairman,
\n800, Anna Salai, Chennai-2<\/p>\n
3.  Tamil Nadu Electricity Regulatory Commission
\nrep.  By its Chairperson,
\nSeethammal Colony, Alwarpet
\nChennai-18.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court In The High Court Of Judicature At … vs The Secretary To Govt on 21 October, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21\/10\/2003 CORAM THE HONOURABLE MR. JUSTICE E. PADMANABHAN W.P.No. 961 of 1998 and W.P.No.962 of 1998 and 3943, 20457, 20458, 20872, 20873, 21155 to 21158, 31261 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-99713","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nIn The High Court Of Judicature At ... vs The Secretary To Govt on 21 October, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-the-secretary-to-govt-on-21-october-2003-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"In The High Court Of Judicature At ... vs The Secretary To Govt on 21 October, 2003 - 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