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31. The second contention of the learned Counsel for the petitioners is based on Section 3(1)(c) of the Act. They would submit that a careful reading of Section 3 in general and Section 3(1)(c) in particular indicates that the consumers, such as the petitioners, who consume electricity from these platforms, are not covered under Section 3. Section 3 deals with two kinds of supply. In respect of licensed suppliers, it contains two categories besides captive generating plants, and only Section 3(1)(c) pertains to non- licensed suppliers, including captive generating plants. However, Section 3(1)(c) specifically uses the phrase 'consumption for its own use' and does not mention the word 'consumer'. In this regard, the definition of 'consumer' under Section 2(5) is referenced. It is submitted that while interpreting the provision, the Court must consider that a term, despite being defined in the https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/07/2025 06:01:57 pm ) W.P.No.4871 of 2022 etc., (batch cases) statute, is not included in the charging provision. If the legislature intended to cover the petitioners, it would have used the phrases 'actual user of power' or ‘any person who is supplied with the electricity on payment of charges or free of cost or otherwise’. Since the phrase is not used, Section 3(1)(c) does not encompass the petitioners.

36. The next submission is that there is no prescribed statutory provision or a prescribed statutory procedure for the imposition, assessment, and collection of the tax on energy procured through exchanges. If these exchanges are absent, or even if there is any ambiguity regarding them, it must be considered that there is no tax in law. The judgment of the Hon'ble https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/07/2025 06:01:57 pm ) W.P.No.4871 of 2022 etc., (batch cases) Supreme Court of India in Commissioner of Central Excise and Customs, Kerala (cited supra) is relied upon, with specific reference to Paragraph Nos.20 and 21. By reading the said judgment, the learned Counsel would first submit that Act 12/2003 does not identify such a taxable event. The phrase 'consumption of own use' employed therein, as demonstrated in the preceding Sections of the Act, is contextually confined only to captive generating plants. Similarly, the definition of consumer also does not include these kinds of users. The applicable rate of tax is also unclear, as the levy of not less than Rs.10 ps and not more than Rs.20 ps is again not expressly made applicable. Even assuming that the definition should be interpreted to apply to new transactions, the rate of tax should have first been notified specifically for these transactions. The judgment of the Hon'ble Supreme Court of India in Commissioner of Customs (Import), Mumbai (cited supra) is relied upon for the proposition that the interpretation of the charging provision of a taxation statute, as opposed to the interpretation of an exemption notification, should favor the assessee in https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/07/2025 06:01:57 pm ) W.P.No.4871 of 2022 etc., (batch cases) any case of ambiguity. Thus, in the absence of a clear provision under Act 12/2003, the entire attempt to collect tax through the impugned Government Order is illegal.

61. The Act specifically uses terminologies such as 'actual user of power,' which is defined under Section 2(1) to mean a user who is not a consumer but uses power from a captive generating plant. Therefore, when these individuals purchase power through the open access system, they fall within the definition of consumer. However, when Section 3(1)(c) abandons the word 'consumer,' it contradicts itself by designating the incidence of tax as consumption ‘for own use,’ which only applies to captive generating plants and not to those who purchase power through the intra-State open access system. In light of this, G.O.(Ms).No.55 Energy (D2) Department, dated 20.10.2021, which aims to assign the collection of tax to the licensee, namely TANGEDCO, concerning the consumption of electricity purchased through open access from Indian Energy Exchange Limited or Power Exchange India Limited, cannot be upheld as leviable under Section 3(1)(c) of the Act and is therefore quashed. However, it remains open for the State https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/07/2025 06:01:57 pm ) W.P.No.4871 of 2022 etc., (batch cases) of Tamil Nadu to introduce a suitable amendment to the charging provision if it chooses to levy tax on intra-state Open Access Purchase transactions. G. Question No.(iii):-

68. As far as the Rules are concerned, under Rule 6, every licensee or every person, other than a licensee, is supposed to credit such tax to the https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/07/2025 06:01:57 pm ) W.P.No.4871 of 2022 etc., (batch cases) Government's treasury under the accounts mentioned therein. Rule 8 also enables the licensee to include the tax leviable under the Act as a separate item in the bill for the charges for the sale of electricity by him and shall recover the same from the consumer along with his charges for the sale of such electricity. In this regard, the definition of 'consumer' under the Act, which was extracted supra, includes the actual user of power or any other person who consumes the electricity generated by him. Therefore, the provision also exists for including the Electricity Tax in the bill. In view thereof, I do not find the G.O.Ms.No.121 to be violative of the Rules.