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TMI Blog2000 (2) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent Nos. 1 and 2, restraining them from raising any demand on account of tax on sale of electricity outside the State of Manipur and for restraining the Government of Manipur from imposing any penalty on the petitioner-Corporation with regard to such tax. The petitioner-Corporation also made following prayer: (a) The definition of "sale" involving rather including the transmission or supply of electricity outside the State of Manipur as incorporated in section 2(g) of the Manipur Tax on Sale of Electricity Act, 1984 hereinafter referred to as the Act, 1984 may be declared to be ultra vires to the Constitution of India; and (b) the levy of penalty at the rate of per cent of the amount so defaulted for every defaulting day as incorporated in section 6 of the Act of 1984 may be declared unconstitutional, ultra vires and illegal which may be struck down. 2.. The learned counsel appearing for the petitioner-corporation contended that the petitioner-Corporation is wholly owned by the Government of India and it was set up by the Government of India to establish and operate a number of power stations in different parts of the country and the electricity generated by Loktak Statio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax in the said Act of 1984 under section 3 of it which envisaged that there shall be levied and collected in such manner as may be prescribed a tax on sale of electricity in the State at the rates set forth in the Schedule; and as per Schedule referred in section 3 of the Act, the basic rate of tax is 2 paise per KW/Hr. plus surcharge at 10 per cent of the basic tax is also chargeable; and by virtue of provisions laid down under section 6 of the Act, every generating unit which has defaulted to pay the tax or any part thereof within such period after it has become due as may be prescribed shall be liable to pay a penalty at the rate of per cent of the amount so defaulted for every defaulting day and that the Government may, in special cases and for reasons to be recorded in writing remit the whole or any portion of the penalty. The learned counsel went on to contend that the various notifications envisaged and required under the Act such as the notifications inviting the date of commencement of the Act in the Official Gazette in terms of section 1(3) of the Act and the "Rules" to be framed under section 15 of the Act by the Government of Manipur have not been published so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0] 78 STC 132 and submitted that the State Government is not competent to levy tax on inter-State sale of electricity energy. 3.. At the hearing Mr. T. Nandakumar Singh, learned AdvocateGeneral for respondent Nos. 1 and 2 at the very outset submitted that the power generated at Loktak Hydroelectric Power Station installed within the district of Churachandpur, Manipur is sold at Manipur and transmitted it by transportation to Nagaland and Assam inasmuch as the total energy available which is being produced by the petitioner-Corporation is distributed to all the beneficiaries for the purpose of billing at the proportion based on the consumption recorded at the points of each State like Yurembam and Jiribam for Manipur; Dimapur for Nagaland and Mariani for Assam and these points are defined for the purposes of measuring the quantum of energy drawn by the concerned State and, for the purpose of supplying of such power generated by the petitioner-Corporation to the Government of Tripura, Government of Assam and the Government of Nagaland, an agreement of (Bulk Power Supply Agreement) was entered between the petitioner-Corporation and the concerned State Government and in the said agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale of power or energy generated by the Loktak Hydro Electric Project at the delivery point of the Loktak project, Manipur can be made. The bills have been prepared for the total energy sold at the delivery point of Leimatak (Loktak station) and, as such, the petitioner-Corporation has to pay the tax on the sale of such energy or power under the Act of 1984. The penalty on default to pay tax or any part thereof within the prescribed period is imposed at the rate prescribed under the Act of 1984 particularly under section 6 of it and, as such, there is no question of challenging the rate of penalty of default on payment of sales tax and it cannot be challenged on the ground of arbitrariness or otherwise the learned Advocate-General argued. It is also submitted that there is no infirmity or irregularity in the impugned notice/ demand for payment of tax under impugned notice/demand dated July 27, 1989 as in annexure VI to the writ petition. 4.. Now this Court is to see and examine as to whether the petitioner-Corporation has enforceable legal rights in the instant case or not, and whether there are materials on record for establishing the case to justify the interference of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(3) and read with entry 92-A of List I (Union List). 7.. A bare perusal of section 2(g) of the Act of 1984 highlights about the definition of "sale" which includes transmission or supply of electricity outside the State of Manipur by any generating unit which according to me, the State Legislature of Manipur has no such power of legislation as the same is within the power and domain of the Parliament and, as such, the State Government of Manipur is not competent to levy such tax on inter-State sale of electricity energy in other words, the sale or transmission of supply of electricity outside the State; and in view of this position, the definition of "sale" involving transmission or supply of electricity outside the State of Manipur as incorporated in section 2(g) of the Act of 1984 which according to me, it is unconstitutional and ultra vires; but the word or definition of "sale" involving or including transmission or supply of electricity within the State of Manipur for cash or deferred payment or other valuable consideration or for any public utility service or for use by any generating unit, its members, employees or workers, but excludes sale to the Government of India or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner-Corporation and no reply affidavit or rejoinder was filed to the affidavit in opposition. In view of the above position, those points, viz., Mariani Grid Sub-station and Transmission Sub-Division, Dimapur are the points for the purpose of measuring the quantum energy drawn and consumed by the respondent Nos. 3 and 4. 10.. I am also in agreement with the submission so far advanced by the learned Advocate-General, Manipur that the decision/judgment of the High Court of Andhra Pradesh rendered in National Thermal Power Corporation Ltd. [1990] 78 STC 132 is not applicable in the instant case inasmuch as in the said case the National Thermal Power Corporation (NTPC) set up a Super Thermal Power Station at Ramagundam in the State of Andhra Pradesh and the power from this Super Thermal Power Station is supplied to the entire southern regions, i.e., to the States of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Goa in terms of long term bulk supply agreements entered with the Electricity Board of those States in other words, those sales of electrical energy to the other Southern States were made in pursuance of a contract of sale occasioning the inter-State movemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with this writ petition with the prayer sought for as highlighted above but the petitioner-Corporation did not prefer any appeal within the prescribed period of 3 (three) months to the Government against the impugned order issued by the Chief Engineer, Power, Government of Manipur as in annexure VI to the writ petition if the petitioner-Corporation is really aggrieved as required under section 13 of the Act of 1984. It is well-settled that ordinarily, the High Court does not entertain a petition for a writ under article 226 of the Constitution where the petitioner has an alternative remedy; which without being unduly onerous, provides an equally efficacious remedy as the High Court does not therefore act as a Court of Appeal against the decision of a competent authority to correct errors of fact, and the court normally will not permit by entertaining under article 226 of the Constitution the machinery created by the statute to be by-passed and leave the party applying to it to seek resort to that machinery so set up. Here in the instant case the petitioner-Corporation also questioned the validity of the order of assessment and penalty imposed under the impugned notice/ demand. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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