JUDGMENT [ENTITY], J.
1. In this writ petition the writ petitioner, namely, [ENTITY] Ltd. (A Government of India Enterprise) Regd. office Hemkunt Tower, 98 Nehru place, New Delhi - 110 019, hereinafter referred to as "the petitioner-Corporation" sought for a direction or order declaring that the State of Manipur and the Chief Engineer, Electricity Department, Government of Manipur, the respondent Nos. 1 and 2 herein are not entitled to levy tax on sales of electricity effected by the petitioner-Corporation to the States of Nagaland and Assam, the 3rd and 4th respondents herein, and for quashing the notice/demand for payment of sales tax for power for Rs. 71,21,27,675 (rupees seventy-one crores twenty one lakhs twenty-seven thousands six hundred and seventy five only) made by the respondent No. 2 vide Bill No. SCD/EE/ST/89-90/17 dated the July 27, 1989 as in annexure VI to the writ petition coupled with a prayer for issuing permanent injunction against the respondent 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] of the Manipur Tax on [ACT] hereinafter referred to as the Act, 1984 may be declared to be ultra vires to the [ACT] ; and (b) the levy of penalty at the rate of 1/2 per cent of the amount so defaulted for every defaulting day as incorporated in [SECTION] of the [ACT] 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 Station in the State of Manipur is being supplied to the States of Manipur, Nagaland and Assam State Electricity Boards (the latter two are arrayed as respondent Nos. 3 and 4 respectively) and, the electricity is being transmitted by the Loktak Station to Imphal (Manipur) through 2 numbers namely, 132 KV Single Circuit Loktak-Imphal (Manipur) transmission line, one of which is owned by the Government of Manipur, the first respondent herein and, after meeting the electricity requirement of Manipur, the balance electricity is being transmitted to Dimapur (Nagaland) ; and after meeting the power requirement of Nagaland the remaining energy is transmitted to [ENTITY] (Assam) ; and similarly, there is another 132 KV Single Circuit Loktak [ENTITY] Transmission line, owned by respondent No. 2 which is, inter alia, used for supply of power to Assam at Pailapool and Half Long (in the State of Assam) ; at Dimapur in Nagaland and at [ENTITY], Half Long and Pailapool in the State of Assam where meters are installed and joint readings are recorded in the presence of representatives of the petitioner-Corporation and the beneficiary States or State Electricity Board. According to the petitioner-Corporation, the terms and conditions of supply of electricity agreed to between the petitioner-Corporation and the State of Nagaland, the 3rd respondent herein are as follows :
"(i) The delivery point of energy supplied from Loktak station to Government of Nagaland shall be 132 KV Dimapur Sub-station of Nagaland Electricity Department, Government of Nagaland.
(ii) The [ENTITY] shall present monthly bill in duplicate for the energy supplied during the calendar month to Government of Nagaland by 7th of succeeding month based on the energy metered at Dimapur sub-station.
(iii) The energy tariff and charges set out above shall be exclusive of and in addition to any tax, cess, levy or any other tax imposition of fees or surcharges, etc., on energy that may be payable by [ENTITY] in accordance with any law in force from time to time."
The terms of supply of electricity to the Assam State Electricity Board, the 4th respondent herein, are also on similar lines with the aforementioned three delivery points in the, State of Assam. The learned counsel for the petitioner-Corporation argued that there is a provision relating to levy of tax in the said [ACT] under [SECTION] 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] 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] 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 1/2 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] of the Act and the "Rules" to be framed under [SECTION] of the Act by the Government of Manipur have not been published so far and in the absence of the "Rules" no form of return appears to have been prescribed and no procedure for assessment of tax and penalty after affording opportunity of being heard by the Chief Engineer seems to have been finalised by the Government of Manipur and in the absence of such Rules, etc., the first respondent herein through the respondent No. 2 has been issuing notice/demand for payment of astronomical amounts against the petitioner-Corporation under the related impugned notice/demand dated July 27, 1989 and that being aggrieved by the action of the respondent Nos. 1 and 2, the petitioner-Corporation has repeatedly represented to the respondent Nos. 1 and 2 that the tax is payable only on the electricity sold within the State of Manipur and not on the entire electricity generated and transmitted by the Loktak Station outside the State of Manipur and it was explained that the [ACT] does not and cannot cover the sales made to the States of Assam and Nagaland and it is also not just and proper to levy penalty on the so called amount of taxes in default amounting to the tune of Rs. 68.56 crores approximately under the impugned notice/ demand dated July 27, 1989 as in annexure VI to the writ petition which itself is not due. It was also argued that the definition of "sale" outside the State of Manipur as incorporated under [SECTION] of the Act being repugnant to the Act and also the ultra vires to the [ACT] requires to be struck down and likewise, on penalty so far imposed upon the petitioner-Corporation under the impugned notice/demand is in contravention under the provisions of [SECTION] of the Act and, apart from it, [SECTION] of the Act which gives the arbitrary powers to the State Government to penalise a defaulting generating units at such exorbitant rate and that too without affording any opportunity to the petitioner-Corporation of being heard before levy of the penalty is liable to be struck down.
While arguing the case in support of the petitioner-Corporation the learned counsel supported all the grounds, namely, ground Nos. A, B, C, D, E, F and G as highlighted in the grounds column of the writ petition. Supporting the case of the petitioner-Corporation, the learned counsel had relied upon a decision of the Andhra Pradesh High Court rendered in [PRECEDENT] and submitted that the State Government is not competent to levy tax on inter-State sale of electricity energy.
3. At the hearing Mr. [ENTITY], learned Advocate-General 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 [ENTITY] and [ENTITY] for Manipur ; Dimapur for Nagaland and [ENTITY] 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 agreement the delivery point is clearly mentioned and indicated that "132 KV Bus bar at Loktak Station" shall be the delivery point for supply of energy to the bulk power customer and further arrangement for evacuation from the delivery point shall be the responsibility of bulk power customer and, as such, it is clear that the said point of the supply of energy generated by the petitioner-Corporation to the bulk power customer/consumer is at Loktak station in Manipur. According to the learned Advocate-General, Manipur every generating unit which produces or generates electricity in the State for sale shall be liable to pay the tax as required under [SECTION] of the [ACT] and, as such, the petitioner-Corporation which admittedly a generating unit and producing electricity in the State of Manipur for sale is liable to pay tax under the [ACT]. The case laws laid down in [PRECEDENT] so far relied upon by the learned counsel for the petitioner-Corporation is not applicable in the instant case inasmuch as the facts of that case is quite different from the facts of the case in hand. It is also argued by the learned Advocate-General that the Government of Manipur had already published the date on which the [ACT] shall come into force by notification in the Official Gazette and the bills are prepared as per energy bill format adopted in the department on receipt of the generation data and the due date for payment of bills prescribed by the [ACT] under registration No. 16 has been considered and tariff of 2 paisa and 10 per cent surcharge as provided under the related Schedule the [ACT] has been considered and penalty has been duly calculated as per [SECTION] of the Act and the State respondent Nos. 1 and 2 prepared the bills thus issuing demands of it to the petitioner-Corporation from time to time and lastly, the impugned demand/ notice was served to the petitioner-Corporation and there is no infirmity or illegality in demanding the payment of the said bills. The learned Advocate-General in his usual frankness submitted that the related rules has not yet been framed as required under [SECTION] of the [ACT] however; it is submitted that in the absence of rules framed and no form of return, it cannot be said that no demand for payment of tax on 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]. The penalty on default to pay tax or any part thereof within the prescribed period is imposed at the rate prescribed under the [ACT] particularly under [SECTION] 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 the alleged actions of the State respondent Nos. 1 and 2 including the impugned demand/notice for payment of tax for sale of power and penalty imposed as seen in the document marked as annexure VI to the writ petition or not.
5. As per provisions of [SECTION], the Parliament has exclusive power to make laws with respect to any of the matters enumerated in [SECTION] in the Seventh Schedule (Union List) notwithstanding anything in Clause (3) of the said article and further, subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in [SECTION] in the Seventh Schedule (State List).
6. [SECTION] State List envisaged about the taxes on the consumption or sale of electricity and that of [SECTION] of the same List lays down about the taxes on the sale or purchase of goods other than newspaper, subject to the provisions of [SECTION] in other words, the levy of taxes on sale of electricity is relatable to both the entries, i.e., 53 and 54 in [SECTION] and that, [SECTION] governs the taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce. Apart from it, in the instant case [SECTION] and [SECTION] of the [ACT] are relevant and, accordingly, the same are quoted below :
"286(1). No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place
(a) outside the State ; or
(b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
269. Taxes levied and collected by the Union but assigned to the States.
(3) Parliament may by law formulate principles for determining when a sale or purchase of (or consignment of,) goods takes place in the course of inter-State trade or commerce."
[SECTION] has disabled rather debarred a State to impose or authorise the imposition of taxes on sale or purchase of goods where such sale or purchase takes place outside the State and power to impose tax on the sale or purchase in the course of inter-State trade or commerce is with the Parliament, i.e., to say, the State Legislature has no such power in view of the [SECTION] and read with [SECTION].
7. A bare perusal of [SECTION] of the [ACT] 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] of the [ACT] 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 to a railway company is valid in the eye of law as the State Legislature is very much competent to levy tax on sale of electricity inside the State.
8. Now, a question arises as to whether the State, respondent Nos. 1 and 2, imposed tax and penalty upon the petitioner-Corporation for sale of electricity effected by the petitioner-Corporation to the States of Nagaland and Assam, the 3rd and 4th respondents herein, outside the State of Manipur or within the State of Manipur.
9. According to the petitioner-Corporation the delivery points of electricity are at Imphal and [ENTITY] in case of the State of Manipur ; at Dimapur for Nagaland and in the State of Assam the delivery points are at [ENTITY], Half Long and Pailapool and in support of this plea the petitioner-Corporation also highlighted about the relevant terms and conditions of supply of electricity agreed to between the petitioner-Corporation and the States of Nagaland and Assam, the 3rd and 4th respondents herein at paragraph 5 of the writ petition but the petitioner-Corporation could not produce any supporting document containing the relevant terms and conditions of such supply of electricity agreed to between the parties concerned except the two documents as in annexure-III (colly) which speak about the energy consumption statement as recorded at [ENTITY] Grid Sub-station and the energy data for the month of June, 1989 supplied and issued by the Sub-Divisional Officer (E), Transmission Sub-Division, Dimapur. In fact these two documents in annexure III (colly), i.e., office letters dated July 1, 1989 and July 4, 1989, do not speak or establish the factum of the delivery point of electricity in Assam and Nagaland but the same speaks about the energy consumption data for a relevant month. On the other hand, the State respondent Nos. 1 and 2 specifically stated in their affidavit in opposition that for the purpose of supplying power by the petitioner-Corporation to the Bulk Power Customers like Government of Tripura, Assam and Nagaland and agreement (Bulk Power Supply Agreement) had been entered between the petitioner-Corporation and the concerned State Governments and in the said agreement it is clearly mentioned that "132 KV Bus bar at Loktak station" shall be the delivery point for supply of energy to the bulk power customer and this statement of the respondent Nos. 1 and 2 is not denied or controverted 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., [ENTITY] 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 [PRECEDENT] 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 movement but in the instant case, the sale of electricity was made in the State of Manipur with a specific delivery point at Loktak station (Manipur) but not at any delivery point either in Assam or Nagaland as discussed above. During the course of hearing, learned Advocate-General, Manipur for the respondent Nos. 1 and 2 also relied upon two decisions of the apex Court rendered in [PRECEDENT] and another decision rendered in [PRECEDENT] wherein the apex Court in the first case held that sale by the respondents in India for export by purchaser to its foreign buyer is not a sale in the course of export; and, in the second case the apex Court held that the movement of goods which was not a result of any contract of sale from Madras to Calcutta, but under the directions and in pursuance with the instruction in authorisation note of the Corporation to its agent is not inter-State sale transaction. ([PRECEDENT] followed)
11. It is well-established principles of law that in a taxing statute one has to look merely at what is normally said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. There is no scope for importing into the statute words which are not there. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. This principle of law finds its place in a decision of the apex Court rendered in [PRECEDENT].
12. It is an admitted position that the respondent Nos. 1 and 2 have been demanding payment of tax on sale of electricity and sent the related bill of it to the petitioner-Corporation for the relevant period but the petitioner-Corporation did not clear the bill and did not pay the tax and being aggrieved by the actions of the respondents Nos. 1 and 2 particularly the impugned notice/demand dated July 7, 1989 as in annexure VI to the writ petition, the petitioner-Corporation approached this Court 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] of the [ACT]. It is well-settled that ordinarily, the High Court does not entertain a petition for a writ under [SECTION] of the [ACT] 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 [SECTION] of the [ACT] 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. [SECTION], of the [ACT] provided that the Government may, in special cases and for reasons to be recorded in writing, remit the whole or any portion of the penalty.
13. After proper application of my mind in this matter, I am of the view that there is no infirmity or illegality in the impugned notice/demand dated July 27, 1989 as in annexure VI to the writ petition and, as such, no interference of it is called for from the end of this Court. Considering the nature of the case, liberty is granted to the petitioner-Corporation to approach the appropriate authority, i.e., the Government for remitting the whole or any portion of the penalty imposed upon the petitioner-Corporation under the impugned notice/demand as required under [SECTION] of the [ACT] by filing a representation within a period of one month from today and the authority concerned shall examine and consider the matter once again if the petitioner-Corporation file the same, as it is under the wisdom and domain of the competent authority.
For the reasons, observations and discussions made above, this writ petition is partly allowed to the extent indicated above but no order as to costs. The earlier ad interim order dated September 28, 1999 passed by this Court stands vacated.