M/S Ultratech Cement Limited vs The State Of Madhya Pradesh
2024 Latest Caselaw 12655 MP

Madhya Pradesh High Court

M/S Ultratech Cement Limited vs The State Of Madhya Pradesh on 6 May, 2024

                                                      1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                       HON'BLE SHRI JUSTICE VINAY SARAF
                                              ON THE 6 th OF MAY, 2024
                                          WRIT PETITION No. 4333 of 2022

                          BETWEEN:-
                          1.    M/S ULTRA TECH CEMENT LIMITED THROUGH
                                COAL MINE NAMELY ULTRA TECH CEMENT
                                LIMITED (BICHARPUR COAL MINES, VILLAGE
                                SENDURI, P.O. CHUNIYA SENDURI, DISTRICT
                                SHAHDOL (MADHYA PRADESH)

                          2.    MR. SUNIL KUMAR TIWARI S/O SHRI RAM
                                PRAVESH TIWARI, AGED ABOUT 50 YEARS,
                                OCCUPATION: NIL R/O BUNGALOW NO. C-2,
                                STAFF COLONY MAIHAR CEMENT WORK, P.O.
                                SARLANAGAR MAIHAR, DISTRICT SATNA
                                (MADHYA PRADESH)

                                                                             .....PETITIONERS
                          (BY SHRI ADITYA ADHIKARI - SENIOR ADVOCATE WITH SHRI SHARAD
                          CHANDRA KHARE - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH
                                PRINCIPAL SECRETARY ENERGY DEPARTMENT,
                                VALLABH    BHAWAN,    BHOPAL   (MADHYA
                                PRADESH)

                          2.    CHIEF ENGINEER (ELECTRICITY SAFETY) AND
                                CHIEF ELECTRICAL INSPECTOR BHOPAL, A-WING
                                3RD FLOOR SATPURA BHAWAN, BHOPAL
                                (MADHYA PRADESH)

                          3.    MADHYA PRADESH POORV KSHETRA VIDYUT
                                VITRAN COMPANY LIMITED THROUGH ITS CGM
                                (COMMERCIAL) HAVING ITS OFFICE AT BLOCK
                                NO. 7 SHAKTI BHAWAN, RAMPUR, JABALPUR
                                (MADHYA PRADESH)

                                                                            .....RESPONDENTS
                          (MS. SHIKHA SHARMA - PANEL LAWYER FOR STATE AND SHRI RITWIK
                          PARASHAR - ADVOCATE FOR RESPONDENT NO.3)
Signature Not Verified
Signed by: MOHD IRFAN
SIDDIQUI
Signing time: 5/10/2024
1:45:37 PM
                                                              2
                                This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

The core issue involved in the present petition is that for the purpose of availing the benefit of notification dated 04.03.2014 issued by the State Government, whereby the exemption was granted to a new High Tension Consumers (hereinafter referred as 'HT Consumers') from payment of Electricity Duty on consumption of electricity supplied from the grid for a period of five years for HT Consumers having connection of 33 KV will be available or not to a consumer in whose premises electricity supply line has

been connected for the purpose of receiving electricity, within a period of five years from the date of notification or for the purpose of availing the benefit of the notification, the supply of electricity within five years from the date of notification is a pre-condition.

2. The facts suffice for disposal of the present petition filed under Articles 226/227 of the Constitution of India are that, petitioner-Ultra Tech Cement Ltd. is a registered company has applied for supply of electricity in its Bicharpur Coal Mines through 33 KV Line. Upon presentation of the application by the petitioner on 27.06.2015, Superintending Engineer (O & M) of M.P. Poorva Kshetra Vidyut Vitaran Company Ltd. (hereinafter referred to as MPPKVVC Ltd.') started the process and the work of installation of electricity line was completed as per the satisfaction of MPPKVVC Ltd. on 28.02.2019 and it was duly intimated by the petitioner company to respondent on 01.03.2019. Superintending Engineer (O&M) of MPPKVVC Ltd. Shahdol issued a letter dated 01.03.2019 to the petitioner informing that its request for phase wise increase of Contract Demand has been accepted and verification of

construction of 33 KV lines and switch yard was completed by the Authorized Officer of MPPKVVC Ltd. and the lines were handed over to the Electricity Company for the purpose of charging. A certificate certifying completion and verification of the line ready for charging electricity was issued by the Executive Engineer (O & M), MPPKVVC Ltd., Shahdol and according to the completion and verification certificate, the work was completed on 01.03.2019 and line was handed over on 01.03.2019 for the purpose of charging supply of Electricity of 33 KV to the petitioner company.

3. On 29.05.2019, petitioner company applied to Chief Electrical Officer of MPPKVVC Ltd., Jabalpur for extending the benefit of notification dated 04.03.2014 issued by the Government of M.P., whereby the exemption for a period of five years from payment of Electricity Duty was granted to new power connection taken within five years from the date of notification for a period of five years on 33 KV High Tension line. The letter was replied by Chief General Manager (Commercial) EZ, MPPKVVC Ltd. on 20.06.2020, whereby it was intimated to the petitioner company that the power supply was started from 13.03.2019, which is after expiry of the period of five years of Gazette Notification dated 04.03.2014, therefore, the said connection is not eligible for electricity duty exemption. It was intimated in the letter that the petitioners may approach Chief Electrical Inspector for resolution of disputes in

terms of Section 10 of Madhya Pradesh Vidyut Shulk Adhiniyam, 2012 (hereinafter referred to as 'Adhiniyam, 2012'), therefore, the petitioner submitted representation before the Chief Electrical Inspector with a prayer to extend the benefit of notification. Superintending Engineer (O & M) of MPPKVVC Ltd. on 13.08.2020 informed to Chief Engineer (Electrical Safety) and Chief Electrical Inspector, Bhopal that approval for HT connection was done by the

office of Superintending Engineer by way of letter dated 01.03.2019, however, the contract for supply of electricity was approved on 13.03.2019 and electricity of supply was started on the same day. On 15.12.2022, Chief Engineer (Electrical Safety) and Chief Electrical Inspector, Bhopal passed the order and rejected the prayer of the petitioner for extending the benefit of exemption from payment of electricity duty solely on the ground that the date of charging is 13.03.2019, which is not within five years from the date of issuance of notification. The said order was challenged by the petitioner by preferring an appeal before the Principal Secretary, Energy Department, Govt. of M.P., under Section 10 of the Adhiniyam, 2012. However, the appeal was dismissed by order dated 11.11.2021 on the same ground that supply was started after five years of notification. All the above facts are admitted in the present case and therefore, there is no dispute in respect of facts of the case. The only issue involved in the present case is interpretation of notification for grant of exemption from payment of Electricity Duty.

4. With the consent of the parties in the above factual backdrop, the arguments were heard.

5. Learned counsel for the petitioners submits that for the purpose of availing the benefit of notification, the only requirement is that the claimant must be a new HT Consumer, who take new connection from the Electricity Distribution Companies of the State within five years from the date of issuance of the notification. He has drawn the attention of this Court towards the definition of Consumers provided in the Adhiniyam, 2012 under Section 2(1)(B), which provides as under:-

"2(1)(B):- consumer" means any person who is supplied with electricity for his own use by a Licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for

the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be."

6. He also relied on the definition of Consumers u/s 2(15) of the Electricity Act, 2003, which reads as under:-

"2(15):- "consumer" means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be."

7. He submits that the definition of Consumers prescribed in the Adhiniyam, 2012 and the Electricity Act, 2003 are same. He further submits that as per the definition, if a premises is connected for the purpose of receiving electricity with works of a licensee, the person will include in the definition of consumer. He further submits that definition of work is provided in Section 2(77) of the Electricity Act, 2003, which reads as under:-

"2(77):- "works" includes electric line, and any building, plant, machinery, apparatus and any other thing of whatever description required to transmit, distribute or supply electricity to the public and to carry into effect the objects of a licence or sanction granted under this Act or any other law for the time being in force."

8. Learned counsel for the petitioners submits that once the works of erection of electricity line was completed, inspected and verified and the lines were handed over to MPPKVVC Ltd., thereafter the Act of charging of line is to be performed by the Electricity Company and there was no role of the petitioner in charging the line. It is not in dispute that the works of erection of lines were completed, verified and lines were handed over on 01.03.2019 i.e. within five years from the date of issuance of notification dated 04.03.2014, and therefore, the petitioner company is entitled for availing the benefit of notification. He further submits that, 'the definition of works provided in Section 2(77) of the Electricity Act, 2003 does not include the act of charging the line or supply the

electricity'. Therefore, the works was completed on 01.03.2019 and the petitioner is entitled for the benefit of exemption from payment of Electricity Duty for a period of five years as per notification dated 04.03.2014. He relied on the judgment of Apex Court delivered in the matter of Uttar Pradesh Power Corporation Limited and others vs. Anis Ahmad, (2013) 8 SCC 491, wherein in a dispute in respect of assessment of amount of unauthorized use of electricity u/S. 126 and 127 of the Electricity Act, 2003, Apex Court considered the definition of consumer and held that, if the electricity line is erected and connected for the purpose of supply of electricity with the works of a licensee, the person in whose premises it is connected, will fall under the definition of consumer irrespective of the fact whether such person is supplied with electricity or not.

9. On the strength of above pronouncement of the Apex Court, the learned counsel for the petitioner submits that the petitioner has attained the status of consumer on 01.03.2019 as the electric line was connected, handed over,

inspected and verified for the purpose of supply of electricity and charging, and the same was within five years from the date of issuance of notification and therefore, the petitioner was entitled for extending the benefit of notification.

10. Per contra, learned counsel appearing on behalf of MPPKVVC Ltd. submits that admittedly the supply was started from 13.03.2019, after completion of period of five years from the date of issuance of notification, the petitioner is not entitled for the benefit of notification. He relied on the judgment of Apex Court delivered in the matter of Essar Steel India Limited and another vs. State of Gujarat, (2017) 8 SCC 357, wherein, in a dispute in respect of exemption from payment of duty of electricity generated for captive use, the Apex Court has held that, the fulfillment of the condition of the

notifications issued for the purpose of exemption from payment of electricity duty is material issue and the same should be adhered. In that matter, the exemption was granted to the consumers establishing generator sets for the purpose of consumption of energy for motive and power and lighting for industrial purposes and the exemption was applicable for a period of ten years from the date of purchased, installation and commission of the DG sets beginning from 01.01.1991 and ending on 31.12.1992. In that matter, the claim was rejected on the ground that generator sets were not purchased, or installed or commissioned during the period from 01.01.1991 to 31.12.1992, therefore, the consumers were not entitled for any benefit. Here in the present case, the lines were installed, connected, verified and handed over to MPPKVVC Ltd. within the period prescribed in the notification, hence the said judgment is not applicable to the present case.

11. Learned counsel for the respondent further relied on the judgment of Apex Court delivered in the matter of State of Jharkhand and others vs. Ambay Cement and another, (2005) 1 SCC 368 , wherein in a issue regarding exemption from payment of Sales Tax, the Apex Court has held that, an exempting provision in a taxing statute has to be construed strictly and it is not open to the Court to ignore the conditions prescribed in the Industrial Policy and the exemption notifications. Moreover, the statute has to be strictly construed by reading it in entirely and not in parts. He further placed the reliance on the judgment of Apex Court delivered in the matter of Grasim Industries Ltd. and another vs. State of M.P. and another, AIR 2000 SC 66, wherein similar proposition was laid down by the Apex Court.

12. Considered the arguments advanced by the rival parties and perused the

documents available on record.

13. It is apt to reproduce the subjected notification issued by the State Government published on 04.03.2014 in the Gazette, which are as under:

"No. F-3-23-2013-X111-WHEREAS, the State Government is of the opinion that in order to encourage new high tension consumers to connect with the grid of Electricity Distribution Companies and to promote industrialization in the State, it is necessary and expedient to do so in public interest;

NOW, THEREFORE, in exercise of the powers conferred by clause:

(i) of section 5 of the Madhya Pradesh Vidyut Shulk Adhiniyam, 2012 (No. 17 of 2012), the State Government, hereby, exempts new high-tension consumers, as specified in column (2) of the Schedule below, from the payment of electricity duty on consumption of electricity supplied from the grid for a period as specified in column (3) of the said Schedule, subject to the following conditions, namely:- (1) This exemption shall be available only to the new high-tension consumers who take new connection from Electricity Distribution Companies of the State within 5 years from the date of issue of this notification, (2) The exemption shall not be available for units/consumers presently connected with the Electricity Distribution Companies of the State SCHEDULE Sr.No. High-tension Consumer Period of exemption from electricity duty

(1) 33 KV Voltage 5 years.

                            (2)             132 KV Voltage                              7 years
                            (3)             220 KV Voltage                             10 years.

2. The notification shall come in to force from the date of its publication in the Madhya Pradesh Gazette".

14. By mere reading of notification for the purpose of availing the benefit of exemption of Electricity Duty, the following conditions are essential:-

(i) The exemption shall be available only to new High Tension consumers and it will not be available to the existing consumers. It is not in dispute that the petitioner is a new High Tension consumer and a new connection was granted to the petitioner.

(ii) The connection should be taken within five years from the date of issuance of notification. The application for providing connection was filed by the petitioner on 27.06.2015 and the electricity line was completed, verified and

handed over to Electricity Company on 01.03.2019. Thereafter, there was no role of the petitioner in charging the line and supplying the electricity and same could have been done on the same day or very next day because after testing the line, it is only a matter of charging the line by supplying the electricity.

(iii) Though no allegation was levelled by the petitioners that deliberately the line was not charge during the currency of the notification but in the absence of any allegations also, it may be considered that when the lines were handed over to the respondents on 01.03.2019, within five years, from the date of publication of the notification, and all formalities to be completed from the part of petitioners were over and therefore, the petitioners cannot be denied to avail the benefit of notification because of any delay caused by the respondents.

15. The benefit of notification is available to the consumers and as per the definition provided in Section 2(1)(B) of the Adhiniyam, 2012 and 2(15) of the Electricity Act, 2003, after the connection of the line for the purpose of receiving the electricity of a works of the lincencee, the petitioner attained the status of consumer and therefore, the petitioner was entitled for the benefit of notification as for the purpose of availing the benefit of notification. In the notification, nowhere stated that the benefit will be applicable only to those consumers to whom electricity supply was started. The supply of energy is solely an act of MPPKVVC Ltd. and in the absence of any role of the petitioner, the petitioner cannot be denied from the benefit of notification.

16. In view of above conspectus, the petition is allowed and the order passed by the Principal Secretary, Electricity Department, Government of M.P., Bhopal under Section 10 of the Adhiniyam, 2012 on 11.11.2021 is hereby set aside and the respondents are directed to extend the benefit of the exemption notification dated 04.03.2023 to the petitioner. The petitioner will be entitled for the benefit

of the exemption from paying Electricity Duty for a period of five years w.e.f. 01.03.2019 and the amount of Electricity Duty already been paid by the petitioner, shall be refunded to the petitioner along with interest @ 6% per annum, within three months from today.

17. With the aforesaid, present petition is allowed and disposed of.

(VINAY SARAF) JUDGE irfan