RAY TALKIES Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS reference has been made by the Commercial Taxes Tribunal, Bihar, Patna under Section 9D(1) of the Bihar Electricity Duty Act, 1948 (for short 'the Act') to this Court to give its opinion on the following questions of law : - (i) Whether the estimate of consumption of electricity from the Generator at 2000 units per month is based on any material on record or is arbitrary; (ii) Whether the estimate of consumption of 2000 units per month is wholly discriminatory and mala fide in view of the facts that the same assessing Officer in case of Kumar Talkies situated in the same town of Dhanbad which had two generators installed and had more ceiling fans than the petitioner had assessed the estimated consumption of 1000 units per month; (iii) Whether the rate of duty leviable on the electricity consumed from the generator installed in the cinema premises will be 2 paise per unit; (iv) Whether in view of Section 2K (iii) of the Bihar Factories Act, the cinema premises wherein the generator has been installed becomes an industrial undertaking; and (v) Whether the levy of penalty in the facts and circumstances of the case is illegal.

(2.) REFERENCE has arisen out of the order dated May, 31, 1983 passed by the Commercial Taxes Tribunal in its revisional jurisdiction in the matter of assessment of electricity duty under the Act on M/s Ray Talkies of Dhanbad, the assessee for the period from June 1, 1978 to July 30, 1980.

(3.) THE Act is for the levy of a duty on the sale and consumption of electrical energy in the State of Bihar. It is not disputed that the assessee is liable to payment of duty under sub -section (4) of Section 4 of the Act which is as under : - "(4) Every person (including any department of the State Government, other than a licensee, who generates energy for his own use or for the use of his employees, or partly for such use and partly for sale, shall pay every month at the time and in the manner prescribed the proper duty payable under Section 3 on the units of energy consumed by him or his employees or sold by him." Now we will refer to Section 3 of the Act. Its relevant part is as under : - "(1) Subject to the provision of sub -section (2), there shall be levied and paid to the State Government on the units of energy consumed or sold, excluding losses of energy in transmission and transformation a duty at the rate or rates specified in the Schedule." Sub -section (2) is not applicable in the present case. It is, therefore, not necessary to set out the same.