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2014 (11) TMI 1256 - HC - Indian LawsRecovery of electricity charges - arguments advanced by respondent is that on one hand petitioner has not installed any meter to record consumption in auxiliaries but at the same time has claimed that for computation of auxiliaries consumption the total load of 462 KW should be taken into consideration although part of this load was also being used in sugar manufacturing process by the petitioner - HELD THAT - The factual controversy on record seems to involve mixed question of fact and law. Power of appellate Court or the Civil Court is much wider than the power of this Court available under Article 226/227 of the Constitution of India in DWARKA PRASAD AGARWAL (D) BY LRS. AND ANR. VERSUS BD. AGARWAL, RAMESH CHANDRA AGARWAL AND ORS. 2003 (7) TMI 481 - SUPREME COURT and DIPAK CHANDRA RUHIDAS VERSUS CHANDAN KUMAR SARKAR 2003 (7) TMI 691 - SUPREME COURT . It shall not be possible for this Court while exercising power conferred by Article 226 of the Constitution of India to resolve the factual controversy on record. Whether the assessment order has been passed imposing duty is based on correct appreciation of facts and material on record or not is a disputed question of fact. Further whether petitioner has installed meter or it was possible to find out the actual consumption by the auxiliaries is also a disputed question of fact. Appellate authority has got wider power then this Court to enter into factual controversy on record and also to decide question of fact and law - It is well-settled proposition of law that where mixed question of fact and law are involved ordinarily this Court should refer the matter to statutory authority. The petitioner to prefer an appeal within a month from today before the appellate authority under Rule 13A of the U.P. Electricity Duty Rules 1952 - Petition disposed off.
Issues Involved:
1. Legality of the recovery notice for electricity charges from July 1978 to 1983. 2. Exemption from electricity duty for electricity generated from new generating sets. 3. Assessment and imposition of electricity duty on old generating sets. 4. Maintenance of records and submission of returns as per U.P. Electricity (Duty) Act 1952. 5. Availability of alternative remedy through appeal under Rule 13-A of the U.P. Electricity (Duty) Rules 1952. 6. Judicial review of factual disputes and assessment orders. Issue-wise Detailed Analysis: 1. Legality of the Recovery Notice: The petitioner, a public limited company, challenged the recovery notice for electricity charges from July 1978 to 1983 under the U.P. Electricity (Duty) Act 1952. The notice was issued based on consumed generating electricity from old generating sets, which the petitioner claimed had been shut down after installing a new turbo generating set of 2500 KW in February 1978. The petitioner argued that the old sets had become outdated and were no longer in use. 2. Exemption from Electricity Duty: The petitioner contended that the consumption of electricity from its own generating sets installed after 2.1.1973 was exempted from electricity duty as per the notification dated 17.3.1973 under the U.P. Electricity (Duty) Act 1952. However, the respondents argued that the petitioner was liable to pay electricity duty on the energy consumed from the old generating sets and that the exemption was only applicable to the new generating set if the old sets were kept running to their full capacity. 3. Assessment and Imposition of Electricity Duty: The respondents assessed electricity duty based on the total generating capacity, including the old turbo generating sets, which the petitioner claimed were not in use. The respondents argued that the petitioner had not installed any working condition meter to record consumption in auxiliaries and had not provided records of energy generated during the period in question. The assessment was made based on standard percentages adopted for all own generating units in the state. 4. Maintenance of Records and Submission of Returns: The respondents stated that the petitioner had failed to maintain and submit records as required under the U.P. Electricity (Duty) Act 1952. The petitioner's letter dated 5.1.1979, informing about the new generating set, was received by the respondents only on 16.4.1984, leading to the assessment of electricity duty based on the provisions of Rule 4(1) of the U.P. Electricity (Duty) Rules 1952. 5. Availability of Alternative Remedy: The respondents argued that the petitioner had an alternative remedy of filing an appeal under Rule 13-A of the U.P. Electricity (Duty) Rules 1952. The court noted that the petitioner could have challenged the assessment order through the statutory appeal process, which provides a complete machinery to address such disputes. 6. Judicial Review of Factual Disputes: The court observed that the case involved mixed questions of fact and law, which are better suited for determination by the appellate authority rather than through a writ petition under Article 226 of the Constitution of India. The court emphasized that it is not possible to resolve factual disputes in summary proceedings and that the appellate authority has wider powers to address such issues. Conclusion: The court concluded that the petitioner should have availed the alternative remedy of filing an appeal under Rule 13-A of the U.P. Electricity (Duty) Rules 1952. Given the long pendency of the case, the court permitted the petitioner to file an appeal within a month and directed the appellate authority to decide the appeal expeditiously. The court ordered that the status quo be maintained for six months or until the disposal of the appeal, whichever is earlier. The writ petition was disposed of without any order as to costs.
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