Meghalaya High Court: The Division Bench of Ranjit More, CJ. and H.S.Thangkhiew, J., dismissed a petition which was filed challenging the constitutional validity of Section 3(1)(c) of the Meghalaya Electricity Duty (Assam Act XXX of 1964 as adapted by Meghalaya) as amended vide amendment Act dated 15th October, 2019 (“the Act”).
Before the 2019 amendment, Section 3(1)(c) of the Assam Electricity Duty Act, 1964 (Assam Act XXX of 1964) reads as follows:
“3. (1) There shall be levied and paid to the State Government a duty, to be called the “electricity duty”, at the rate of five paise per unit of energy.
(c) generated by a person or a company or a firm or any organisation for own use or consumption”.
Division Bench of the Gauhati High Court held and declared that the State is not legally competent to levy duty from the cellular phone companies on self-produced and self-consumed electricity. The Division Bench further held that taxable event is generate and that cannot be read as consumption and hence Entry 53 of the State List of the Seventh Schedule does not support the State action. Consequently, Section 3(1)(c) of the Assam Electricity Duty Act, 1964 is declared ultra vires. Sub Section 3 (1) (c), thereafter was subsequently substituted by the State of Assam. Similar action was taken by the State of Meghalaya and Sub Section 3(1) (c) of the Meghalaya Electricity Duty (Assam Act XXX of 1964 as adapted by Meghalaya) was amended. Sub-Section (c) was substituted as follows:
“(c) Consumed by any person or any organization generating energy”.
Mr A.Kumar, AG and Mr K.Khan, Sr. GA appearing for the respondents submitted that the 2019 amendment of the said Act was in consonance with Entry 53 of the State List. Learned AG further submitted that the 2019 amendment to the said Act has made it abundantly clear that taxable event in respect of captive consumption of electricity was when the electricity was “consumed” by the person generating it. Consequently, the duty is not imposed under Section 3 (1) (c) of the said Act on the mere act of “generation” of electricity. He further submitted that levy of electricity duty under the amended Sub Section 3(1) on consumption of electricity was perfectly admissible.
The Court opined that the issue raised in this petition is squarely covered by the two Supreme Court judgments in Jiyageerao Cotton Mills Ltd. v. State of Madhya Pradesh, AIR 1963 SC 414 and State of Andhra Pradesh v. National Thermal Power Corpn. Ltd. (NTPC), AIR 2002 SC 1895 and held that even bare consumption of electricity energy by a person who generates the same is permissible to be taxed by reference to Entry 53 of the State List, thus the petition was declared devoid of merits.
[ATC Telecom Infrastructure (P) Ltd. v. State of Meghalaya, 2021 SCC OnLine Megh 216, decided on 21-10-2021]