M/S Benara Udyog Limited vs State Of U.P. And 3 Others
2022 Latest Caselaw 2138 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 
Case :- WRIT - C No. - 5817 of 2022
 

 
Petitioner :- M/S Benara Udyog Limited
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Anshul Kumar Singhal
 
Counsel for Respondent :- C.S.C., Baleshwar Chaturvedi, Paras Nath Rai
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Dinesh Pathak,J.

Heard learned counsel for the petitioner, Shri Prashant Mathur, learned Additional Chief Standing Counsel for respondent No.1 and Sri Paras Nath Rai appearing on behalf of respondent No.3.

The instant petition has been filed praying for quashing of the order dated 25.1.2022 passed by respondent No.4, i.e. Director, Department of Electricity Safety, U.P. Lucknow, whereby the refund of electricity duty to the tune of Rs.27,90,936.99 has been directed by making adjustment from the component of electricity duty in future bill. The petitioner has also prayed for a direction to respondent No. 3 and 4 to forthwith refund the electricity duty realised from the petitioner during the period January 2010 to January 2020 with interest as per directions given by this Court in Misc. Bench No. 5055 of 2019 Bansal Wire Industries Ltd. Unit No.2 Vs. State of U.P. and others dated 7.8.2019, affirmed by the Apex Court in Special Leave to Appeal Nos. 29175-29178 of 2019 by order dated 7.1.2020.

The facts in brief relevant for deciding the instant petition are that the petitioner claimed exemption in electricity duty in terms of various concession announced by the State under the Uttar Pradesh Industrial & Service Sector Investment Policy-2004. The case of the petitioner was that pursuant to the said Policy, a notification was issued on 21.01.2010 whereunder the petitioner was entitled to rebate in electricity duty for a period of ten years. The said issue was set at rest by the judgement of the Supreme Court in Civil Appeal Nos. 10446-10447 of 2017 Gallantt Ispat Ltd. State of U.P. & others decided on 11.8.2017. The Supreme Court held that in terms of Industrial Policy, 2004, the benefit of exemption in electricity duty shall be available to all eligible units but it would not be from the date of establishment of the Unit but from the date of issuance of the notification dated 21.01.2010. A review application filed by U.P. Power Corporation Ltd. was rejected by the Supreme Court by order dated 23.11.2017. The State Government in order to give effect to the judgement of the Supreme Court in Civil Appeal Nos. 10446-10447 of 2017 Gallantt Ispat Ltd. State of U.P. & others, issued a notification dated 5.2.2018, whereunder the claims relating to exemption in electricity duty had to be submitted before the Director, Electricity Safety (respondent No.4). The notification interalia provided that "after 21.01.2020, the credited amount will be adjusted against the present electricity duty till the entire credited amount get adjusted". In terms of the said claims, a Unit though entitled to exemption in electricity duty and consequently, refund of the amount paid under the said Policy forthwith would actually be receiving it in staggered manner by adjustment against the component of electricity duty from future bills. The notification dated 5.2.2018 was subjected to challenge before this Court in a batch of writ petitions, leading one being Misc. Bench No. 5055 of 2019 Bansal Wire Industries Ltd. Unit No.2 Vs. State of U.P. & others and other connected matters. The writ petitions were allowed by a Coordinate Bench of this Court by judgement dated 7.8.2019 and it was held that the Clause relating to adjustment of electricity duty from future bill (Clause 7(vi) is illegal and was set aside and a direction was issued to the State Government to refund entire amount of refundable electricity duty within a period of six months from the date of passing of the judgement. It was further provided that in case of delay, the amount will carry interest @ 10% p.a. until the it is paid. The State Government, being aggrieved thereby, filed Special Leave to Appeal No.29175-29178 of 2019 before the Supreme Court which was dismissed but the time prescribed by judgement dated 7.8.2019 was extended upto 15.4.2020, failing which consequences envisaged in the order of this Court would ensue. The claim of the petitioner for refund of electricity duty was examined by respondent No.4 and it was found to be valid and sustainable to the extent of Rs.27,90,936.99 but without directing for payment of the said amount, forthwith, respondent No.4 placing reliance on the notification dated 5.2.2018 directed that the amount be refunded by adjustment from the component of electricity duty in future bill.

The instant writ petition was connected with Writ-C No.1379 of 2022 M/s. Umang Oil Pvt. Ltd. vs. State of U.P. & others by order dated 18.4.2022 as similar controversy was involved. In the said writ petition, this Court had passed the following order on 8.4.2022 :-

"The impugned order dated 5.12.2018, prima facie appears to be in teeth of the judgment of this Court dated 7.8.2019 in Misc. Bench Nos. 5055 of 2019, 11312 of 2019, 21139 of 2018, 6137 of 2019 and the order of Supreme Court dated 7.1.2020 in Special Leave to Appeal Nos.29175-29178 of 2019 (State of U.P. vs. Ms. Bansal Wire Insurance Limited and others) and also subsequent judgment of this Court dated 19.2.2020 in Writ C No.38942 of 2018 (Ms. Sarvottam Rolling Mills Private Limited and others).

Put up this case on 25.4.2022 by which date respondent no.2 shall ensure compliance of the above judgments forthwith in the letter and spirit and file affidavit of compliance, failing which, he shall remain personally present before this Court to show cause why suitable action be not taken for non-compliance.

Learned Standing Counsel undertakes to communicate the instant order to respondent no.2 for due compliance."

In compliance of order dated 8.4.2022, respondent No.2 re-examined the matter and has now passed an order dated 18.4.2022 recommending to the State Government for forthwith reimbursement of Rs.27,49,051.76 to the petitioner. In the personal affidavit filed by respondent No.4, he has taken a clear stand in paragraph 4 that thereby he has cancelled his earlier order 25.1.2022. Respondent No. 4, who is present in person, has made a statement before the Court that it will be ensured that the entire sum is paid to the petitioner within 15 days from today.

Sri Prashant Mathur, learned Additional Chief Standing Counsel also submitted that the entire sum will be refunded within 15 days. He further states that interest @ 10% p.a. as directed by this Court by judgement dated 7.8.2019 and as modified by the Supreme Court by order dated 7.1.2020 would also be paid to the petitioner. Meaning thereby that the petitioner would be entitled to interest @ 10% p.a. for the period after 15.4.2020 until actual payment is made.

Having regard to the specific stand taken by respondent No.4 in the personal affidavit filed by him today and the statement made by the Additional Chief Standing Counsel appearing on behalf of the State, we dispose of the writ petition accordingly and direct respondent No.1 to refund electricity duty to the petitioner within 15 days alongwith interest @ 10% p.a. for the period starting from 16.4.2020 till the date of actual payment.

Order Date :- 6.5.2022

skv

(Dinesh Pathak, J.) (Manoj Kumar Gupta, J.)