Indian Kanoon - Search engine for Indian Law

This petition under Article 226 of Constitution of India has been filed against the order dated 12.09.2005 passed by State of Madhya Pradesh by which the contention of petitioner that auxiliary consumption in respect of a captive power plant is not liable to be levied with Energy Development Cess under Section 3 (2) of Madhya Pradesh Upkar Adhiniyam as amended by Madhya Pradesh Upkar (Sansodhan Tatha Vidhi Manyata Karan) Adhiniyam, 2004 has been rejected.

2. It is submitted by counsel for petitioner that provision of Madhya Pradesh Upkar Adhiniyam were challenged and the validity of the same was held by the High Court, however, they were declared ultra vires by the Supreme Court. Accordingly, Madhya Pradesh Upkar (Sansodhan Tatha Vidhi Manyata Karan) Adhiniyam, 2004 was introduced. The said amendment was challenged by filing W.P. No. 1860/2004 which has been dismissed. However, SLP (Civil) No.17748/2007 (C.A. No. 5172/2007) is pending.

3. It is submitted that the short controversy involved in the present case is as to whether Energy Development Cess is payable on the auxiliary consumption in respect of captive power plant or not?

4. It is submitted that by amendment, Sub-Section 2 of Section 3 of Madhya Pradesh Upkar Adhiniyam, 1981 has been substituted which reads as under:-

"(2) Every producer of electrical energy shall pay to the State Government an energy development cess at the rate of 20 paisa per unit on the electrical energy sold or supplied to a consumer or consumed by himself or his employees by his captive power unit or diesel or other generator set of more than 10 Kilowatt capacity during any month."

6. It is submitted that there is a difference between the Hindi and English version and, therefore, Hindi version would prevail and, therefore, Energy Development Cess is not liable to be paid on auxiliary consumption in respect of captive power plant.

7. Per contra, it is submitted by counsel for respondents that there is no difference in Hindi and English version. Even otherwise, it is submitted that in the light of Article 348 (3) of Constitution of India English version would prevail.

8. Heard learned counsel for parties.

9. The Hindi version and English version of Section 3 (2) of Madhya Pradesh Upkar Adhiniyam which was incorporated by Madhya Pradesh Upkar (Sansodhan Tatha Vidhi Manyata Karan) Adhiniyam, 2004 has already been reproduced.

10. This Court could not find any difference in English and Hindi version which may make the auxiliary consumption of energy for the captive power plant exempted from Energy Development Cess.