High Court
Case Details
Court No. - 3 Case :- WRIT - C No. - 9433 of 2023 Petitioner :- M/S Zanul Abdeen Cold Storage And Ice Udyog Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Arun Mishra Counsel for Respondent :- C.S.C.,Narendra Kumar Tiwari Hon'ble Surya Prakash Kesarwani,J. Hon'ble Anish Kumar Gupta,J. 1. Heard Sri Arun Mishra, learned counsel for the petitioner, the learned Additional Chief Standing counsel for the respondent Nos.1 and 2 and Sri
Legal Reasoning
Narendra Kumar Tiwari, learned counsel for the respondent No.3. 2. According to the petitioner, they have established a new industrial unit under the name and style of M/s Z.A. Cold Storage and Ice Udyog, which is engaged in business activity of cold storage and ice. The State Government has issued Notification No.1765/24-3-2009-2000 (124)/09, Lucknow, dated: 21.01.2010 granting exemption to all new units from electricity duty for a period of ten years and to pioneer units for a period of fifteen years. That notification was followed by a Government Order dated 05.02.2018 issued pursuant to the judgment of Hon'ble Supreme Court in Civil Appeal No.10446-10447 of 2017 whereby certain directions have been issued for allowing exemption/ adjusting electricity duty in respect of new industrial units. Another Notification No.274/24-P-3-2018-2000(124)-2009 Lucknow, dated 05.02.2018 was issued providing as under: "WHEREAS on the basis of exemption in electricity duty allowed under Para 3.4.2.9 of the Uttar Pradesh Industrial and Service Sector Policy-2004 to all new units for a period of 10 years and Para 4.5 to all units declared as pioneer units for a period of 15 years, the Department of Energy by issuing notification No. 1765/24- 3-2009-2000 (124)/09, dated 21.01.2010 created a provision for exemption in electricity duty to all new industrial units and all units declared as pioneer units for a period of I 0 years and 15 years respectively. AND WHEREAS after approval of Hon'ble Council of Ministers, Infrastructure & Industrial Investment Policy-2012 has been issued ; under para 5.5 of aforesaid policy, a provision has been created for continuation of exemption in electricity duty to all new 2 industrial units and all units declared as pioneer units for a period of 10 years and 15 years respectively; NOW THEREFORE the Governor having regard to the prevailing charges for supply of energy in any area, the .generating capacity of any plant, the need to promote industrial production generally, is pleased to direct under sub-section (4) of section 3 of the Uttar Pradesh Electricity (duty) Act, 1952 (U.P. Act no. 33 of 1952) that all such industrial units declared as new industrial units and pioneer units shall be exempted from electricity duty for the period of 10 years and 15 years respectively." 3. As per order of Zila Udyog and Udyam Protsahan Kendra, Jaunpur dated
Decision
21.06.2016 filed as Annexure-6 to the writ petition, “cold storage” has been declared to be an industrial unit. 4. However, an order dated 18.09.2020 (filed as Annexure CA-1) has been issued by the respondent No.5 wherein it has been observed that since cold storage is not engaged in manufacture, production, technology or contract work and instead it is a service sector unit for preservation of perishable items, therefore, cold storage units are not entitled for benefit of the Scheme. 5. As per counter affidavit dated 01.05.2023 filed today on behalf of the respondent Nos.1 and 2, the petitioner-cold storage is not eligible for benefit of the Uttar Pradesh Industrial Investment and Employment Promotion Policy, 2017 but copy of the said policy has not been filed along with the counter affidavit. In paragraph-10 of the counter affidavit, the respondent Nos.1 and 2 have taken the stand that a cold storage is a service sector equipment and is related to preserving perishable goods for a long period of time without being involved in material manufacturing, production, technology or contract work. Based on it, learned standing counsel submits that since cold storage is a service sector industry and not engaged in any manufacture or production of any article, therefore, petitioner is not entitled for the benefit of exemption from electricity duty. 6. We have carefully considered the submission of the learned counsels for the parties and we do not find any substance in the stand taken by the respondent Nos.1 and 2 in their counter affidavit. As per order of the Deputy 3 Commissioner (Industries) dated 21.06.2016 filed as Annexure-6 to the writ petition, a cold storage has been declared to be an industrial unit. Thus, the petitioner's unit is an industrial unit, which is alleged to be a new unit. The notification dated 21.01.2010 grants exemption from electricity duty to all new industrial units and also those units which have been declared as pioneer units. The notification dated 05.02.2018 also grants exemption of electricity duty to all new industrial units and all units declared as pioneer units for a period of 10 and 15 years respectively. There is nothing in these two notifications to indicate that industrial unit would mean only those units where manufacture or production activity is being carried out. Thus, petitioner's unit being an industrial unit and not disputed to be a new unit, prima facie appears to be entitled for exemption from electricity duty. However, no exemption order has been passed by the competent authority and instead, a stand has been taken in paragraph-5 of the counter affidavit that no application for exemption in electricity duty has been received from the petitioner's unit. 7. In view of the aforesaid, we permit the petitioner to submit an appropriate application for exemption from electricity duty in respect of his cold storage industry unit before the respondent No.2 within three weeks from today along with a certified copy of this order. In the event, such an application is filed before the respondent No.2, it shall be decided by the respondent No.2 in accordance with law by a reasoned and speaking order within next three weeks, after affording reasonable opportunity of hearing to the petitioner. 8. With the aforesaid direction, the writ petition is disposed of. 9. It is made clear that we have not expressed any opinion on merits of the case of the petitioner. Order Date :- 01.05.2023 NLY Digitally signed by :- NAND LAL YADAV High Court of Judicature at Allahabad