IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:02-1-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.Nos.31272, 33938, 33939, 34313 to 34316, 34742 to 34746, 34552 to 34560, 35284, 35285, 34676 to 34679, 34516 to 34520, 34790 to 34794, 35289, 35323, 35324, 23296, 23297, 34365, 35052, 34206 to 34214, 30487 & 37583 to 37585 of 2007 and connected Miscellaneous Petitions 1. M/S.SALEM TEXTILES LIMITED 'B' UNIT, REP. BY ITS GENERAL MANAGER (TECH) MR.N.HARI NARASIMHAN, SELLIAMPALAYAM, SALEM 636 108. ... PETITIONER IN W.P.31272/07 2. SRI BALASUBRAMANIA MILLS LTD REP BY ITS MANAGER MR.N.RANGARAJ, UPPILIPALAYAM, COIMBATORE. ... PETITIONER IN W.P.33938/07 3. M/S.SUJAY SPINNERS REP BY ITS MANAGER MR.N.RANGARAJ, UPPILIPALAYAM, COIMBATORE. ... PETITIONER IN W.P.33939/07 4. RAJALAKSHMI PAPER MILLS LTD HT SC NO. 80 SWAMINATHAPRAM UDUMALPET BY ITS DIRECTOR G. RAVINDRAN ... PETITIONER IN W.P.34313/07 5. S.S.D. SPINNING MILLS LTD HTSC NO. 97 & 179 NO. 132 VILLAGE ROAD IYYAPANTANGAL CHENNAI REP BY ITS MANAGER C. KATHIRESAN ... PETITIONER IN W.P.34314/07 6. VINAYAGA ALLOYS LTD B-48E SIPCOT INDUSTRIAL COMPLEX, GUMMIDIPUNDI 601 201 REP BY ITS DIRECTOR ASHOK KUMAR JAIN ... PETITIONER IN W.P.34315/07 7. AMARAVATHI SRI VENKATESA PAPER MILLS LTD HTSC NO. 15 SWAMINATHAPURM UDUMALPET BY ITS DIRTOR G. RAVINDRAN ... PETITIONER IN W.P.34316/07 https://hcservices.ecourts.gov.in/hcservices/ 8. ORCHID CHEMICALS & PHARMACEUTICALS LTD., R & D DIVISION, HT SC NO. 402 (CEDC-SOUTH, TNEB), ORCHID TOWERS, 313, VALLUVAR KOTTAM REP BY ITS V.P. AND COMPANY SECRETARY L. CHANDRASEKAR ... PETITIONER IN W.P.34742/07 9. ORCHID HEALTH CARE (DIVISION OF ORCHID CHEMICALS& PHARMA), HT SC NO. 402 (CHENGALPET EDC, TNEB), NUNGAMBAKKAM REP BY ITS V.P. COMPANY SECRETARY L. CHANDRASEKAR ... PETITIONER IN W.P.34743/07 10. ORCHID HEALTH CARE - R & D DIVISION, ALATHUR HT SC NO.369 (CHENGALPET EDC, TNEB) NUNGAMBAKKAM REP BY ITS V.P. COMPANY SECRETARY L. CHANDRASEKAR ... PETITIONER IN W.P.34744/07 11. ORCHID HEALTH CARE R&D DIVISION HT SC NO. 455 (CHENGALPET EDC TNEB), NUNGAMBAKKAM, REP BY ITS V.P. COMPANY SECRETARY L. CHANDRASEKAR ... PETITIONER IN W.P.34745/07 12.ORCHID CHEMICALS & PHARMACETICALS LTD., HT SC NO. 562 (CHENGALPET EDC, TNEB), NUNGAMBAKKAM REP BY ITS V.P. AND COMPANY SECRETARY L. CHANDRASEKAR ... PETITIONER IN W.P.34746/07 13.INDUS STEELS AND ALLOYS LTD., THALLY ROAD, KALUKONDAPALLY P.O., DHARMAPURI REP. BY ITS DIRECTOR D. VENKATESH GUPTA ... PETITIONER IN W.P.34552/07 14. ATTUR STEELS (P) LTD., 1A, THERKU KADU, NARASINGAPURAM POST, SALEM, REP. BY ITS DIRECTOR JYOTHI SARATHY ... PETITIONER IN W.P.34553/07 15. CHIRANILAL SPINNERS PRIVATE LIMITED, ATTAYAMPATTY ROAD, KAKAPALAYAM, SALEM REP. BY ITS DIRECTOR ASHOK KUMAR PARASURAM PURIA ... PETITIONER IN W.P.34554/07 16. SAVORIT LIMITED-HT SC NO.1234 (UNITED INDIA ROLLER FLOUR MILL DIVISION), TOLLGATE, CHENNAI BY ITS DIRECTOR P. MURUGESAN ... PETITIONER IN W.P.34555/07 https://hcservices.ecourts.gov.in/hcservices/ 17. METTUR SPINNING MILLS LTD., METTUR DAM, SALEM DT REP. BY ITS DIRECTOR, P. BALAKRISHNAN ... PETITIONER IN W.P.34556/07 18. C.R. TEXTILE MILL ATTAYAMPATTY ROAD, ATHANUR, RASIPURAM, NAMAKKAL DT REP. BY ITS MANAGING DIRECTOR, MR. AMIT PARASURAM PURIA ... PETITIONER IN W.P.34557/07 19. STERLING SPINNERS LTD S.N.STREET, TOLLGATE, CHENNAI-81 REP. BY ITS MANAGING DIRECTOR S.N. KUMAR ... PETITIONER IN W.P.34558/07 20. THIRUMALA ALLOYS CASTINGS P LIMITED, SIPCOT INDUSTRIAL COMPLEX, DHARMAPURI REP.BY ITS DIRECTOR SATHISH AGARWAL ... PETITIONER IN W.P.34559/07 21. SAVORIT LIMITED, HTSC NO. 41 (DEDC, TNEB), 22, N.T. ROAD, TOLGATE, CHENNAI REP. BY ITS DIRECTOR P. MURUGESAN ... PETITIONER IN W.P.34560/07 22. M/S SRI GOWRI STEEL ROLLING MILLS, 10/1 KUNNTHUR ROAD, UTHUKULI,ERODE REP. BY ITS MANAGING PARTNER, K.DURAIRAJ ... PETITIONER IN W.P.35284/07 23. M/S EMKAY ALLOYS(P) LTD SF.NO.645/1 KALINGIYAM VILLAGE, GOBI TALUK, ERODE DIST, REP. BY ITS MANAGING DIRECTOR, K.DURAIRAJ ... PETITIONER IN W.P.35285/07 24. M/S..JR. SMELTERS (P) LTD 3, MANALI EXPRESS ROAD, CHENNAI, REP. BY ITS DIRECTOR, PRAMOD SINGH ... PETITIONER IN W.P.34676/07 25. M/.S, THULSYAN NEC LTD 147 GREAMS ROAD, CHENANI -6 REP.BY ITS MANAGING DIRECTOR SANJAY THULSYAN ... PETITIONER IN W.P.34677/07, 34678/07 26.TULSYAN NEC LTD NO. 61 SEMBUDOSS STREET, CHENANI REP. BY ITS MANAGING DIRCTOR SANJAY THULSYAN ... PETITIONER IN W.P.34679/07 https://hcservices.ecourts.gov.in/hcservices/ 27. M/S.MEENAKSHI UDYOG INDIA (P) LTD, NO.19 III FLOOR, ALSA MALL, 4 MONTIETH ROAD, CHENNAI,REP BY ITS DIRECTOR SALIB BANSAL ... PETITIONER IN W.P.34516/07 28. M/S.SIDHI SMELTERS (P) LTD A-3 SIPCOT INDUSTRIAL COMPLEX, GUMMIDIPOONDI, REP BY ITS GENERAL MANAGER, G.MUTHUSAMY ... PETITIONER IN W.P.34517/07 29. R.V.STEELS (P) LTD PANJETTY, PONNERI TALUK, TIRUVALLUR DT, REPBY ITS JUSTIN SUNDAR ... PETITIONER IN W.P.34518/07, 34519/07, 34520/07 30. KANCHI KARPOORAM LTD ENATHUR VILLAGE, PARANDUR ROAD, KANCHEEPURAM, REP BY ITS MANAGING DIRECTOR SURESH SHAH ... PETITIONER IN W.P.34790/07 31. INDO STEEL RE ROLLERS 33 SADAYANKUPPAM VILLAGE, MANALI, CHENNAI, REP BY ITS MANAGER, PRAMOD SINGH ... PETITIONER IN W.P.34791/07 32. NARAYAN INDUSTRIES NO.0/37A,KAMRAJ NAGAR, ERANAVOOR, CHENNAI REP BY ITS PARTNER PRAMOD SINGH ... PETITIONER IN W.P.34792/07 33.GBR METALS (P) LTD (ROLLING MILL DIVISION UNIT II) PERAVALLORE VILLAGE, PONNERI, THIRUVALLUR DT REP BY ITS DIRECTOR VENKATESH RATHI ... PETITIONER IN W.P.34793/07 34. M/S.GBR METALS (P) LTD (FURNACE UNIT), PERAVALLORE VILLAGE, THIRUVALLUR DT REPBY ITS DIRECTOR VENKATESH RATHI ... PETITIONER IN W.P.34794/07 35. MET PRO INDUSTRIES(P) LTD SIDCO INDUSTRIAL ESTATE, KAKKALUR,TIRUVALLUR DIST, REP. BY ITS DIRECTOR, K.VIJAYAKUMAR ... PETITIONER IN W.P.35289/07 https://hcservices.ecourts.gov.in/hcservices/ 36. SREE KOPPAMMAL COTTON SPINNING MILLS (P) LTD., PULIYURAN VILLAGE(UNITS I AND II), H.T.SC.NOS. 262 AND 257) SEMPATTI POST, ARUPPUKOTTAI, VIRUDHUNAGAR DT, REP. BY ITS DIRECTOR T.R.S. BABU ... PETITIONER IN W.P.35323/07 37. M/S ARUPPUKOTTAI SRI JAYAVILAS LTD., (UNIT I AND II) H.T.SC.NOS. 68 AND 150,) MELAKANDAMANGALAM, TAMILPADI, VIRUDHU NAGAR DT REP. BY ITS DIRECTOR T.R.S. KARTHIKEYAN ... PETITIONER IN W.P.35324/07 38. SRI VIGNESWARA STEELS (P) LTD REP BY THE MANAGING DIRECTOR, SANKARI , SALEM DT. ... PETITIONER IN W.P.23296/07 39. M/S.VINAYAGA ALLOYS (P) LTD REP BY THE MANAGING DIRECTOR, SANKARI TK, SALEM DT. ... PETITIONER IN W.P.23297/07 40. M/S DORAIRAJ SPINTEX, S.F.NO. 141/2-A, KARADIKOOTAM VILLAGE, PALANI, REP. BY A. GUNASEKARAN, ... PETITIONER IN W.P.34365/07 41. BUTTERFLY SPINNING MILLS (P) LTD., 169, R.S. ROAD, KOMMAKKOVIL PERUNDURAI, ERODE, REP BY ITS MANAGING DIRECTOR K.K.PALANISAMY ... PETITIONER IN W.P.35052/07 42. SUPREME YARN SPINNERS LIMITED HT SC NO.168 SEDC, SALEM REP BY ITS CHAIRMAN P.PALANIAPPAN ... PETITIONER IN W.P.34206/07 43. SRI DWARKA TEXTILES HT SC NO.146 CEDC, AVINASHI TK, COIMBATORE DT REP BY ITS EXECUTIVE DIRECTOR MOHANLAL TIBREWAL ... PETITIONER IN W.P.34207/07 44. DATTATREYA TEXTILES (P) LTD HTSC NO.47, MEDC, MYLAPORE, CHENNAI REP BY ITS DIRECTOR DR.MRS.SOUMINI RAMESH ... PETITIONER IN W.P.34208/07 https://hcservices.ecourts.gov.in/hcservices/ 45. GANGOTRI TEXTILES LIMITED UNIT IV, HT SC NO.275, DEDC, PEELAMEDU, COIMBATORE REP BY ITS EXECUTIVE DIRECTOR MOHANLAL TIBREWAL ... PETITIONER IN W.P.34209/07 46. GANGOTRI TEXTILES LTD, UNIT I HT SC NO.122, CEDC, PALLADAM TK, COIMBATORE REP BY ITS EXECUTIVE DIRECTOR MOHANLAL TIBREWAL ... PETITIONER IN W.P.34210/07 47. SUNDARAM TEXTILES LIMITED HT SC NO.14, TEDC, MYLAPORE, CHENNAI REP BY ITS VICE CHAIRMAN AND MANAGING DIRECTOR MRS.SOUMINI RAMESH ... PETITIONER IN W.P.34211/07 48. GANGOTRI TEXTILES LTD, UNIT VII HT SC NO.360, CEDC, S.F.NO.262/2b,3a, 3b, 262/4, PALLADAM TALUK, COIMBATORE REP BY ITS EXECUTIVE DIRECTOR MOHANLAL TIBREWAL ... PETITIONER IN W.P.34212/07 49. SRI NACHAMMAI COTTON MILLS LTD - A UNIT, HT SC NO.6 SEDC, NO.30 SUGAVANESWARA ROAD, SALEM REP BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR P.PALANIAPPAN ... PETITIONER IN W.P.34213/07 50. SRI NACHAMMAI COTTON MILLS LTD B UNIT, HT SC NO.89 SEDC, SALEM REP BY ITS CHAIRMAN CUM MANAGING DIRECTOR P. PALANIAPPAN ... PETITIONER IN W.P.34214/07 51. PALLIPALAYAM SPINNERS (P) LTD. SALEM, REP. BY ITS DIRECTOR, P.P.NAGARAJAN ... PETITIONER IN W.P.30487/07 52. SRI RAMAKRISHNAN MILLS (COIMBATORE) LTD COIMBATORE REP. BY ITS VICE PRESIDENT & COMPANY SECRETRY ... PETITIONER IN W.P.37583/07 53. M/S. SRI RAMAKRISHNA MILLS (COIMBATORE) LTD, COIMBATORE REP. BY ITS VICE PRESIDENT & COMPANY SECRETRY NARASIMHALU ... PETITIONER IN W.P.37584/07 https://hcservices.ecourts.gov.in/hcservices/ 54.M/S. SRI JAGANATHAN TEXTILES LTD GANAPATHY, COIMBATORE, REP. BY ITS DIRECTOR N.NARSIMHALU ... PETITIONER IN W.P.37585/07 vs. 1. The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai 600 002. ... ISt Respondent in W.P.Nos.31272, 30487/07 and 2nd respondent in W.P.Nos. 33938, 33939, 34313 to 34316, 34742 to 34746, 34552 to 34560, 35284, 35285, 34676 to 34679, 34516 to 34520, 34790 to 34794, 35289, 35323, 35324, 23296, 23297, 34365, 35052, 34206 to 34214, 37583 to 37585 of 2007 2. The STATE OF TAMILNADU REP BY ITS SECRETARY TO GOVERNMENT ENERGY DEPARTMENT FORT ST. GEORGE CHENNAI-9. .. ISt Respondent in W.P.33938, 33939, 34313 to 34316, 34742 to 34746, 34552 to 34560, 35284, 35285, 34676 to 34679, 34516 to 34520, 34790 to 34794, 35289, 35323, 35324, 23296, 23297, 35052, 34206 to 34214, 37583 to 37585 of 2007 THE SUPERINTENDING ENGINEER TAMILNADU ELECTRICITY BOARD SALEM ELECTRICITY DISTRIBUTION CIRCLE, SALEM ... 2ND RESPONDENT IN W.P.NO.31272, 30487/07 THE SUPERINTENDING ENGINEER TAMILNADU ELECTRICITY BOARD DINDIGUL ELECTRICITY DISTRIBUTION CIRCLE, DINDIGUL ... IST RESPONDENT IN WP.34365/07 THE SUPERINTENDING ENGINEER TAMILNADU ELECTICITY BOARD GOBI CIRCLE, GOBICHETTIPALAYAM ... R3 IN W.P.NOS. 37583 AND 37584/07 https://hcservices.ecourts.gov.in/hcservices/ THE SUPERINTENDING ENGINEER TAMILNADU ELECTIRICITY BOARD (SOUTH) TATABAD, COIMBATORE. ... R3 IN W.P.37585/07 THE SUPERINTENDING ENGINEER TAMILNADU ELECTRICITY BOARD COIMBATORE ELECTRICITY DISTRIBUTION CIRCLE (METRO) TATABAD, COIMBATORE ... 3RD RESPONDENT IN W.P.NOS.33938, 33939/07 THE SUPERINTENDING ENGINEER TNEB METTUR DISTRIBUTION CIRCLE, METTUR DAM. ... 3RD RESPONDENT IN W.P.23296, 23297/07 I. Petitions presented under Article 226 of the Constitution of India praying this Court to issue of a writ of Certiorarified Mandamus (i)calling for the records of the 2nd respondents demand in Lr.No.SE/SEDC/SLM/AO/REV/HT/A2/BF.59/D.423/07,dated 10.9.2007, quash the same and further direct the respondents or their subordinates to return the electricity tax received from the petitioner. (W.P.No.31272/07) ii. call for the records of the 3rd respondent in Lr.No.SE/ CEDC/Metro/DFC/AO/R/HT/AS/HTSC.No.205/07and Lr.No.SE/ CEDC / Metro/ DFC/AO/R/HT/AS/HTSC No.182/07 respectively dt 12.10.2007 and quash the same and direct the respondents to refund the electricity tax in respect of maximum demand and peak hour charges or adjust the said electricity tax collected from the petitioner with the demand of additional current consumption deposit of Rs.26,93,492/- (W.P.Nos..33938/07 AND Rs.5,50,287 (w.p.33939/07) respectively. II. (i) writ of mandamus forbearing the Respondents from levying, demanding and collecting electricity tax on charges other than consumption charges as law laid down in the judgment dated 15.5.2007 by the Supreme Court in SLP Civil No. 18220 of 2006 etc in southern Metrochemical Industries ltd vs. Electrical inspector and E.T.I.O & others (W.P.Nos.34313, 34314, 34315,34316, 34742 to 34746, 34552 to 34560, 35284, 35285, 34676 to 34679, 34516 to 34520, 34790 to 34794, 35289, 35323, 35324, 35052, 34206 to 34214, 37583 to 37585 of 2007. ii. Writ of mandamus Directing the respondents one to three to give effect to the order of Supreme Court in C.A. 2551/2007 dt 15.5.2007 by not levying electricity tax on demand charges, pass revised demand of electricity tax, excluding tax on demand charges and corresponding BPSC for tax on demand charges and refund the electricity taxes collected on demand charges with BPSC. (23296, 23297/07) https://hcservices.ecourts.gov.in/hcservices/ iii. Writ of Mandamus directing the respondents not to collect the Electricity Tax as per the order of the Supreme Court dated 15.05.2007 in respect of demand charges, peak hour charges and also to refund a sum of Rs. 9,40,911/- to the petitioner industry having H.T.S.C.No.174, (34365/07) III. Writ of Declaration declaring the levy, demand and of Belated payment surcharge on the electricity tax arrears by the Respondent vide Letter No. SE/SEDC/Slm/AO/Rev./HT/A.2/BF.35/D.424/07 dated 10.09.2007 as arbitrary, unlawful and ultra vires the Constitution of India (30487/07) Mr.R.Muthukumarasamy, Senior counsel for Mr.M.Kamalanathan, Advocate for the Petitioner in W.P.Nos.31272, 33938 and 33939/07 Mr.R.Muthukumarasamy, Senior counsel for M/s.R.S.Pandiaraj, Advocate for the Petitioner in W.P.Nos.34313 to 34316/07, 34742 to 34746/07, 34552 to 34560/07, 34206 to 34214 and 30487/07 Mr.R.Muthukumarasamy, Senior counsel for M/s.K.Seshadri Advocate for the petitioner in W.P.35284 and 35285/07, 34516 to 34520, 34790 to 34794/07, 35289, 35323, and 35052/07 Mr.S.Sivanandham Advocate W.P.Nos.23296 and 23297/07 Mr.C.S.Krishnamoorthy Advocate in W.P.34365/07 Mrs. R. Hemalatha, Advocate, WP.37583 to 37585/07 Mr.P.S.Raman, Addl. Advocate General Assisted by Mr.R.Subbiah, Spl.Govt. Pleader for TNEB in all the WPs and of Mr.N.Senthilkumar, Govt. Advocate on behalf of the state in all the Wps the Court made the following order COMMON ORDER Earlier writ petitions filed questioning the levy of electricity tax imposed under Tamil Nadu Act 32 of 1991 as well as Tamil Nadu Tax on Consumption or Sale of Electricity Act, 2003 were dismissed, against which appeals were filed and the same were also dismissed by the Division Bench on 13.07.2006. It was, against the said dismissal order, civil appeals were filed before the Supreme Court and the Supreme Court has partially allowed the appeals by common order dated 15.05.2007 as reported in Southern Petrochemical Industries Co.Ltd., vs. Electricity Inspector and E.T.I.O. [2007 (3) CTC 273 (SC)]. https://hcservices.ecourts.gov.in/hcservices/ 2. The Supreme Court has set aside the impugned common order in so far it relates to demand charges, holding that in respect of demand charges no electricity tax is leviable. Based on the judgement of the Supreme Court, the petitioners have made representations and in spite of the same, the Tamil Nadu Electricity Board has raised electricity bill, levying electricity tax on demand charges also. Some of the petitioners have also demanded refund of the electricity tax paid on demand charges based on the Supreme Court order. In spite of repeated request by the petitioners, the Tamil Nadu Electricity Board has not followed the orders of the Supreme Court under one pretext or the other. In view of the same, present writ petitions are filed for direction to the respondent Electricity Board to give effect to the orders of the Supreme Court in Civil Appeal No.2551 of 2007 etc. Batch dated 15.05.2007, by not levying electricity tax on demand charges and also to pass revised demand of electricity tax, excluding tax on demand charges and corresponding Belated Payment Surcharge (in short "BPSC") for tax on demand charges and also for refund of the electricity tax collected on demand charges with BPSC. 3. The petitioners in these writ petitions have not questioned the payment of consumption charges and their main challenge in these writ petitions is relating to the levy of electricity tax on demand charges. The Supreme Court in the said case, viz., Southern Petrochemical Industries Co.Ltd., vs. Electricity Inspector and E.T.I.O. [2007 (3) CTC 273 (SC)] has clearly held that there exists distinction between actual consumption and maximum demand. The Supreme Court has also held that what is permissible for the purpose of framing a tariff need not necessarily be permissible for levy of tax. Tariff for supply of High Tension energy is on two parts, viz., (i) units consumed and (ii) maximum demand, and ultimately it was held that the maximum demand indicator installed in a factory premises of a consumer of High Tension electrical energy shows the maximum amount of energy drawn during any consecutive 30 minutes in a total month of consumption of electrical energy. The maximum demand charge is fixed on that basis although the connected demand may be much more, and in that view of the matter, the Supreme Court has set aside the judgement of the High Court. 4. While it is the contention of the learned counsel for the petitioners in these cases, including Mr.R.Muthukumarasamy, learned senior counsel appearing for some of the petitioners that once the Supreme Court has categorically held that there cannot be any tax on demand charges, it is the duty of the Board to fllow the same. It is also their submission that when exemption was granted under the old Act from payment of tax, the same is not taken away by the advent of new law, with reference to Entry No.53 of List II of the Constitution of India. 5. While admitting that a new Act has been enacted in Tamil Nadu Act 38 of 2007, viz., Tamil Nadu Tax on Consumption or Sale of Electricity (Amendment) Act, 2007, by which amendments have been https://hcservices.ecourts.gov.in/hcservices/ incorporated into Act 12 of 2003, viz., Tamil Nadu Tax on Consumption or Sale of Electricity Act,2003, the learned senior counsel submitted that even after the Amendment Act has been introduced as a validating law, the same is valid only if such law cures the defects pointed out by the Court and the same is within the legislative competency of the State. 6. According to the learned senior counsel, when the Supreme Court has clearly held that the tax levied on demand charges is not valid in law, by virtue of the validating Act, viz., Act 38 of 2007, the definition "consumption charge" in Section 2(7) is substituted including within it, the charge on maximum demand and power factor surcharge and therefore, it cannot be said that the validating Act intends to cure the defects pointed out by the Supreme Court. 7. In addition to that, Mr.Sivanandham, learned counsel appearing for one of the writ petitioners has referred to the judgement of the Supreme Court, wherein it was held that the demand charge cannot be construed as a sale and therefore, relying upon the judgement of the Supreme Court in Gujarat Ambuja Cements Ltd. And another vs. Union of India and another [2005 (4) SCC 214] stating that the object of the validating Act would in effect nullify the decision of the Supreme Court rendered in Southern Petrochemical Industries Co.Ltd., vs. Electricity Inspector and E.T.I.O. [2007 (3) CTC 273 (SC)] and the same is not permissible and according to him, there is no legislative competency on the State Government to make such law. It is his submission that in spite of the validating Act having come into existence, it is still open to the petitioners to maintain the writ petitions without challenging the vires of the validating Act. 8. Mr.R.Muthukumarasamy, learned senior counsel would also submit that even by the validating Act, the effect of Section 3(1) of the Act as it was in existence in Act 12 of 2003 has not been effectively cured and therefore, there is no necessity to challenge the new Act. By the validating Act, the change effected under Section 3(1) of the Act 12 of 2003 is in respect of the meaning of expression "net charge" and the same stood changed as "consumption charge" and the term "consumption charge" is defined in the newly incorporated Section 2(7) of Act 38 of 2007. By relying upon the judgment of the Supreme Court in Southern Pharmaceuticals & Chemicals vs. State of Kerala (AIR 1981 SC 1863), it is also contended that it is the pith and substance of a statute, which has to be considered and the consequences are immaterial. 9. On the other hand, Mr.P.S.Raman, learned Additional Advocate General appearing for the respondent Electricity Board has contended that when by virtue of the validating Act 38 of 2007 changes have been effected to the Tamil Nadu Act 12 of 2003, which was consequent to the judgment of the Supreme Court and the definition of the term "consumption charge" has been newly incorporated and as long as the definition of the word exist in the statute book as on today, no mandamus can be issued against the said provisions. It is his contention that unless and until the newly created law is set aside in the manner known to law, the presumption being always in favour of https://hcservices.ecourts.gov.in/hcservices/ the constitutionality of any law passed, the writ petitions filed for direction cannot be entertained. He would also submit that it is always open to the petitioners to challenge the validating Act. 10. I have heard the learned counsel for the respective petitioners as well as learned Additional Advocate General for the respondent Electricity Board and perused the entire records. 11. It is true that the Hon'ble Supreme Court while construing the provisions of Tamil Nadu Tax on Consumption or Sale of Electricity Act, 2003 (Tamil Nadu Act 12 of 2003) has held that there cannot be levy of tax on demand and it can be only as per the consumption and the expression demand means readiness to supply. It was held that the term 'actual consumption' and 'maximum demand' are not one and the same as held by the Supreme Court in para-158 of the judgement in Southern Petrochemical Industries Co.Ltd., vs. Electricity Inspector and E.T.I.O. [2007 (3) CTC 273 (SC)], which reads as under. "158. From the definitions of aforementioned types of demand, it would appear that maximum demand in a month means the highest value of the energy delivered at the point of supply of the consumer during any consecutive thirty minutes in a month. It is, therefore, incorrect to contend that there does not exist any distinction between actual consumption and maximum demand. The High Court itself has noticed a distinction between Low Tension consumption and High Tension consumption. There indeed exists such a definition. Therefore, in our opinion, such a construction would not be correct." 12. The State Government has enacted Act 38 of 2007, which was assented by the Governor on 12.11.2007 to amend the Tamil Nadu Tax on Consumption or Sale of Electricity Act, 2003. The amendments to the said Act sought to be effected by the Tamil Nadu Act 38 of 2007 except Section 6 are deemed to have come into force on 16th July, 2003. 13. Under the Amendment Act 38 of 2007, a new Clause has been introduced in Section 2(2-A) in respect of the term 'charge on maximum demand'. The newly introduced Section 2(2-A) is as follows: " 2(2-A). 'charge on maximum demand' means the charge levied on the highest value of the average kilovolt-Amperes delivered at the point of supply to the consumer during any consecutive thirty minutes in a month." 14. Section 2(7) of Act 12 of 2003, which defined the term "energy charge" was as follows: " 2(7). "energy charge" means the amount charged (whether as energy charge or other charge) by a licensee for the supply of electricity to a consumer before deduction of rebate, if any, allowed by the licensee for payment on or before such date as may be specified by the licensee, but does not include- (i) meter charges; (ii) interest on delayed payment; https://hcservices.ecourts.gov.in/hcservices/ (iii) fuel surcharge; or (iv) fuse off call charges and reconnection charges. Explanation I.- If electricity is supplied to any person free of charge or at a concessional rate (other than tariff concession), the energy charge would mean the tariff fixed by the Tamil Nadu Electricity Regulatory Commission in its Tariff Order to similar consumer. Explanation II.- "other charges" shall include demand charge and power factor surcharge;" The above said sub-section is substituted by Act 38 of 2007, in the following words. "2(7). 'consumption charge' means the amount charged by a licensee for the supply of electricity to a consumer before deduction of rebate, if any, allowed by the licensee for payment on or before such date as may be specified by the licensee, but does not include,- (i)meter charges; (ii)interest on delayed payment; (iii)fuel charges; and (iv)fuse off call charges and re-connection charges: Provided that in the case of High Tension supply of electricity, consumption charge includes the charge on maximum demand and power factor surcharge. Explanation.- If electricity is supplied to any person free of charge or at a concessional rate (other than tariff concession), the consumption charge would mean the tariff fixed by the Tamil Nadu Electricity Regulatory Commission in its Tariff order to similar consumer." 15. Further, the definition clauses in Section 2(8) 'gross charge' and Section 2(12) 'net charge' have been omitted. 15. Section 3 under Act 12 of 2003 stood as follows: " 3. Tax on the consumption or sale of electricity.- (1) Save as otherwise provided in this Act, every licensee and every person other than a licensee shall pay every month to the Government in the prescribed manner, a tax on the electricity sold or consumed during the previous month at the rates specified hereunder: (a) In the case of licensees other than captive generating plants, the rate shall not be less than 5% and not more than 10% of the net charge, as may be notified in the Government Provided that no tax shall be paid on sale of electricity for agricultural purposes and hut service connections; (b) In the case of licensees who are captive generating plants, the rate shall be not less than 10 paise and not more than 20 paise per unit of electricity on the consumption for own use, and shall be not less than 5% and not more than 10% of the net charge on the sale of surplus electricity as