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TMI Blog2014 (11) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CIVIL MISC. WRIT PETITION (M/B) NO. 3006 OF 1984 - - - Dated:- 24-11-2014 - D.P. SINGH AND ASHOK PAL SINGH, JJ. For the Appellant : R.K. Srivastav, R.K. Srivastava and V.P. Upadhyaya For the Respondent : C.S.C. JUDGMENT [PER: HON. MR. JUSTICE DEVI PRASAD SINGH] 1. Instant petition under Article 226 of the Constitution of India has been preferred by the petitioner Oudh Sugar Mill feeling aggrieved with the recovery notice initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition). 4. It has been stated by the petitioner's counsel, Dr. R.K. Srivastava that respondent No. 2 unauthorizedly required the petitioner to pay electricity duty on the basis of consumed generating electricity from old generating sets (supra) that too on the basis of 100 per cent capacity of turbo generator. By demand notice dated 25.1.1983 opposite parties required the petitioner to pay electricity duty amounting to ₹ 714527/- (Annexure-6 to the writ petition). The demand notice includes ₹ 4,31,517.19/- and ₹ 21285.16/- towards duty on two turbo generating set of 660 KW and 1400/1600 KW which according to petitioner's counsel have completely been shut down after new generating set become operative. Petitioner filed objection dated 4.2.1984 (Annexure 7 to 9 to the writ petition). Thereafter, petitioner received a revised notice/assessment order dated 14.3.1984 (Annexure 10 to the writ petition). It is argued that respondent No. 3 without any reason reduced the electricity duty on the energy consumed on running of auxiliary use for generation of electricity on its own to 10 per cent. By another letter dated 8.3.1984 (Annexure-11 to the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption from newly installed generating set of 2500 KW. It has been stated in the counter-affidavit that according to standing order of department letter No. 5004 dated circulated vide letter dated 7.10.1976 (Annexure 3 to the Counter-affidavit), the energy consumed in the auxiliaries is exempted from payment of electricity duty to the extent of 10 per cent of total energy generation. As such the standard set up has been made applicable to entire State of Uttar Pradesh. It has been stated in the counter-affidavit that petitioner had not installed any working condition meter for recording consumption on auxiliaries. Hence, there was no alternative left with opposite party No. 2 but to assess the consumption at the rate of 10 per cent as auxiliary consumption out of total generated units which is the standard adopted for all own generating units who pay electricity to the State. 7. The sum and substance of arguments advanced by respondent is that on one hand petitioner has not installed any I 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 althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief and that in any event since, controversy involve mixed question of law and fact writ petition is not maintainable and matter may be relegated to appellate authority. 11. In the alternative respondent No. 2 pleaded that petitioner had an alternative remedy of filing appeal under Sub Rule 1 of Rule 13-A of the U.P. Electricity (duty) Rules 1952. 12. Learned counsel for the petitioner has relied upon the cases in Bank of Chettinad Ltd. v. Commissioner of Income Tax, Madras, AIR 1940 PC 183; Hansraj Gorddhan Das v. H.H. Dave, Assistant Collector Central Excise and Customs, AIR 1970 SC 755; Renusagar Power Co. Ltd. v. State of U.P. and others, AIR 1973 ALL 33; M/s. Swaroop Vegetables Products Industries Ltd. Etc. v. State of U.P. and others, MR. 1984 SC 20; ABL International Ltd. And another v. Export Credit Guarantee Corporation of India Ltd. and others, (2004) 3 SCC 553; Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241; S.N. Chandra Shekhar v. State of Karnataka and others, (2006) 3 SCC 208; Siemens Ltd. v. State of Maharashtra and others, (2006) 12 SCC 33; Uttamrao Shivadas Jankar v. Ranjitsingh Vijaisinh Mohite-Patel, AIR 2009 SC 2975. 13. On the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of electricity duty or interest or penal duty in case not paid within the prescribed period. For convenience, Sections 7 and 8 of the 1952 Act are reproduced as under: Section 7 Recovery of electricity duty, etc. (1) Any sum due on account of electricity duty or interest or penal duty under Section 3, Section 4 or Section 4-B, if not paid within the prescribed period to the State Government, shall be recoverable as an arrear of land revenue-- (a) in the case of energy supplied or consumed by a licensee,--from the licensee; (b) in the case of energy supplied or consumed by the Board,--from the Board; and (c) in the case of energy consumed by any other person generating it,-from the person liable to pay such duty under this Act. (2) Without prejudice to the provisions of sub-section (1) the State Government may,-- (a) in the case of any such sum as aforesaid being due from a licensee' or the Board, deduct the sum from any amount payable by the State Government to the licensee or the Board; or (b) in the case of any sum as aforesaid being due from a licensee, requiring the Board to deduct the sum from any amount payable by the Board to the licensee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity of being heard, shall determine the amount of penalty to be imposed for evading or attempting to evade the payment of duty, assess the amount of duty for such period and notify the amount of duty/penalty in writing to the licensee, appointed authority or other person, as the case may be. (3) The Deputy Electrical Inspector, after giving reasonable opportunity to the licensee, appointed authority or other person of being heard, in the event of any of the seals fixed on the meter by an inspecting officer under sub-rule (b) of Rule 10 being found broken at the time of any subsequent inspection, shall estimate the amount of the energy supplied or consumed during the period between the date of affixing the seal and the date on which the same is found tampered. He shall also determine the amount of penalty to be imposed for such default and notify to the licensee, appointed authority or other person, in writing the amount of penalty as well as of the duty payable. In cases where no appeal is preferred against the order of the Deputy Electrical Inspector, the Electrical Inspector may, if considered necessary by him, revise the order of the Deputy Electrical Inspector and may e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court held that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. 23. In Renusagar Power Co. Ltd. v. State of U.P. and others (supra) Hon'ble Supreme Court held that where energy consumption by the petitioner is proved to the not consumed in the premises used by it for commercial purpose no duty may be imposed. 24. In M/s. Swaroop Vegetables Products Industries Ltd. Etc. v. State of U.P. and others (supra) a plea and argument advanced by the appellant before Hon'ble Supreme Court that exemption must be granted to all persons having their own source of electricity regardless of the date on which the source of generation is installed. Argument was negatived by the High Court on the ground that exemption was granted having regard to the need to promote industrial production generally and to the prevailing acute power shortage in the State. Their Lordship held that in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed by Shri H.P. Srivastava, learned Additional Chief Standing counsel is second face of coin where Hon'ble Supreme Court declined to interfere with disputed question of fact and law involved or where in tax matter a person has got adequate alternative remedy under the statute. 31. In Titaghur Paper Mill (supra) the assessing order was subject-matter of dispute during the course of judicial review. Their Lordship held that where a decision of the assessing authority requires to be impugned it should be done before the statutory authority provided under the Act or statute. To quote relevant portion as under: 8. No such question arises in a case like the present where the impugned orders of assessment are not challenged on the ground that they are based on a provision which is ultra vires. This is a case in which the entrustment of power to assess is not in dispute and the authority within the limits of his power is a Tribunal of exclusive jurisdiction. The challenge is only to the regularity of the proceedings before the learned Sales Tax Officer as also his authority to treat the gross turnover returned by the petitioners to be the taxable turnover. Investment of aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the petitions under Article 226 are filed solely for the purpose of obtaining interim orders and thereafter to prolong the proceedings by one device or the other. This practice needs to be strongly discouraged. 33. In Raj Kumar Shivhare (supra) Hon'ble Supreme Court reiterated the aforesaid principle and held that when statutory forum is created for redressal of grievances and that too in a fiscal statute a writ petition should not be entertained ignoring the statutory provisions. The statutory forum of appeal should lot be abdicated and given a go bye by a (sic)tigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court fell into a manifest error by not appreciating this aspect of the matter. Their Lordship concluded the finding as under: In this case, liability of the appellant is not created under any common law principle but, it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not maintainable. 34. In United Bank of India v. Satyawati Tondon and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, the percentage adopted was standard percentage which has been allowed also to other sugar mills. 41. 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 vide Dwarka Prasad Agarwal and another v. Ramesh Chander Agarwal and others, 2003 (VI) SCC 220; Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, 2003 (VII) SCC 66; Banal N. Desai v. State of Karnataka and others, 2003 (V) SSC 395; National Highway Authority of India v. Ganga Enterprises, 2003 (VII) SCC 410 and Union of India and others v. Ingersoll Rand (India) Ltd., 2001 (10) SCC 617. 42. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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