Madras High Court
T.M.R. Rajeswaran vs Junior Engineer, Distribution Town ... on 28 November, 2006
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
Page 3344
1. Challenge in this Writ Petition is the proceeding of the third Respondent levying commercial Tariff V and direction is sought for to collect charges categorizing the Petitioner's service station under L.T. Tariff IV and to refund the excess amount collected from the Petitioner.
2. Brief facts of the case are as follows:
The Petitioner runs Service Station for which he has obtained S.C. No. 412 from Velayuthapuram Distribution in his name. The service connection was effected under Tariff IV on 04.12.1996. Based on A.G.s audit enquiry No. 13 dated 12.11.1996, a Notice was issued to the Petitioner on 30.01.1997 intimating that Tariff has been changed from IV to IX with effect from 12.04.1996. At this stage, the Petitioner had produced SSI Certificate issued by District Industries Centre Virudhunagar. Based upon the representation of the Petitioner and the certificate produced by him, the L.T. Tariff applicable to small industries III B was applied.
2.1. Stating that there was wrong application of tariff, Respondents revised the tariff from L.T. Tariff-III B to Commercial Tariff V and passed the impugned Order that the Petitioner is liable to pay at the revised rate from 7/97 to 11/2001 Rs. 71,739/-, which is challenged in this Writ Petition.
3. Assailing the impugned Order, the learned Counsel for the Petitioner interalia raised the following contentions:
Board has no power to resolve any dispute as to the tariff and the reduction of tariff could be decided only by Regulatory Commission. Reliance placed upon CDJ Kerala High Court 174;
Page 3345 In view of B.P. (FB) No. 211, dated 20.06.1995, in case of other power load services, if any other Certificate is produced, they may be categorized under L.T. Tariff IV. When the Petitioner has produced SSI Certificate, Service Station of the Petitioner ought to be categorized under L.T. Tariff IV and levy of charges of Tariff V is unsustainable.
What has been adopted for Maintenance and Service Stations of State Transport Corporation cannot be adopted for other service Stations run by private individuals who only undertake job work and not involved in any big scale commercial activities.
4. Contending that as per clause 25.03 of the Terms and Conditions of supply, Board has power to force the consumers to pay revised amount, the learned Standing Counsel has submitted that when the Petitioner's Service Station is not carrying out any manufacturing activities, the Respondents have rightly categorized the Service Station as 'commercial' and Tariff V is only applicable.
5. I have carefully examined the records and duly considered the submissions.
6. Based on A.G.'s Audit Enquiry No. 13 dated 12.11.1996, Notice was issued to the Petitioner on 30.01.1997 intimating him that Tariff has been changed from IV to IX with effect from 12.04.1996. At this stage, the Petitioner has produced the SSI Certificate issued by the District Industries Centre, certifying his service station as 'small scale industry' related to his service station 'Water and Grease Servicing of Two Wheelers and Four Wheelers'. Since SSI Certificate was produced and on Petitioner's representation, B.P.(FB) No. 211, dated 20.06.1995 was applied and the Petitioner's Service Station was charged under LT Tariff IV.
7. B.P. (FB) No. 211, dated 20.06.1995 has made certain clarification regarding the applicability of Tariff IV and it is applicable only to industries involved in manufacturing activities. From 01.03.1993 onwards, L.T. Tariff IV was applicable only to industries and the same has been clarified in B.P. (FB) No. 211, dated 20.06.1995 as under:
As per Government Tariff Notifications issued from time to time, the L.T. Tariff IV was earlier applicable to L.T. Service with power loads for both industrial and non-industrial purposes. However, from 01.03.1993 onwards, L.T. Tariff IV is applicable only to industries. As such it has become necessary, to define the guiding principles to be applied to decide what constitutes an industry or otherwise so that the L.T. power load services could be categorized under appropriate tariff viz., L.T. IV or L.T.IX. In the memo cited under reference (4). It has been defined that the industry is one which buys the raw material and convert it into an usable material.
8. The said proceedings has also made certain clarification regarding Rice Mill, Floor Mill and that they could be charged under L.T. Tariff IV only if they produce certificate issued by the Government Industries Department / District Industries Centre, local bodies, treating their unit as Industrial Unit. If they failed to produce such a certificate, those units are to be categorized only under L.T. Tariff.
9. As per the said Board proceedings, services with the power loads relating to coffee grinding, Ice factory, body building unit, Saw Mill, Rice Mill, Flour Page 3346 Mill, Prawn Farming poultry Farming and Battery charging unit, which have been specifically mentioned under L.T. Tariff IV in the G.O.Ms. No. 29 dated 31.01.1995, may be categorized under L.T. Tariff IV, as already instructed vide circular Memo dated 02.05.1995.
10. Regarding the other power load services, than those mentioned above, are to be categorized under L.T. Tariff IV, only if they produce certificate as industry from the government Industries Department/District Industries Centre.
11. The contention of the Petitioner is that the Petitioner has produced SSI Certificate and the third Respondent has already accepted the same and classified the Petitioner service station as 'Tiny Industrial Unit', with effect from 29.05.1997 and now there is no reason for reversing the earlier Order except the misguided audit report. It was further submitted that since the Petitioner has produced the SSI Certificate as per B.P. (FB) No. 211, dated 20.06.1995, the Petitioner service station should continue to be categorized under L.T. Tariff IV and revision of tariff and categorizing the Petitioner's service under Tariff V is unsustainable.
12. The contention of the Petitioner does not merit acceptance. Even in B.P.(FB) No. 211, dated 20.06.1995, it was clarified that industry is one which buys raw materials and convert it into useful material. The Government has also clarified that L.T. Industrial Tariff was to be applied only in the case of consumers who are involved in manufacturing activities. Based on such clarifications, commercial wing also clarified that consumers who are actually carrying out manufacturing activity alone are entitled for L.T. Industrial Tariff and other units actually carrying out any manufacturing activities are to be levied commercial tariff i.e. Tariff V.
13. The Petitioner's service Station is involved in water and grease servicing of two wheelers and four wheelers Automobiles. Though the Petitioner was granted Certificate from the District Industries Centre, showing his business as industry based, the service station is not involved in any manufacturing activity. Hence the Respondents were justified in revising the tariff as applicable to his business commercial tariff V.
14. In levying of L.T. Tariff IV, there was wrong application of Tariff in view of wrong classification. As per Clause 25.03, "where consumer has been classified in particular category and billed accordingly, and when it is subsequently observed that the classification is not correct, the Board may alter the classification".
15. Since in the case of the Petitioner, there was wrong classification of tariff, under clause 25.03 of the terms and conditions of supply, the Respondents have revised the tariff. The learned Standing Counsel for the Tamil Nadu Electricity Board has submitted that similarly placed consumers throughout the State are paying Consumption Charges at commercial Tariff and the Petitioner alone cannot raise objection for levy of charges under Tariff V.
16. At this juncture, it is relevant to refer to the clarification sought for on the applicability of correct Tariff in respect of "maintenance workshop cum service station run by M/s. Rani Mangammal Transport Corporation" in the State Transport Corporation. Any unit owned, controlled or subsidiary to Page 3347 other undertaking including State Owned Corporation/undertaking is not registrable as SSI and hence, M/s. Rani Mangammal Transport Corporation Limited has not come within the purview of SSI. Hence clarification was sought for regarding the applicability of correct tariff in respect of maintenance of workshop cum Service Station run by the state Corporation. Tamil Nadu Electricity Board has clarified the position that maintenance of workshop cum Service station run by Rani Mangammal Transport Corporation is to be classified only under L.T. Tariff V. We may usefully extract the relevant portion of the State proceedings dated 30.08.1999, which is as under:
Regarding the clarification sought for on the applicability of correct tariff in respect of the "Maintenance workshop cum Service Station" run by M/s. Rani Mangammal Transport Corporation the Superintending Engineer/Dindigul E.D.C. is informed as follows:
As per instructions issued in B.P.(FB) No. 211, dated 20.06.1995, power load services shall be categorized under then L.T. Tariff IV (Present L.T. Tariff III B) provided a Certificate to the effect that such service relates to an Industry is produced.
Previously SSI Certificate was issued to Vehicle Service Station by Director of Industries and Commerce and hence eligible for L.T. Tariff-IV [Present L.T. Tariff III B]. However, it is seen from the recent clarifications received from the Director of Industries and Commerce that "Servicing Industry" undertakings engaged in maintenance, repair, testing or servicing of all types of vehciles and machinery are classified under small scale service and business [Industry Related] Enterprises [SSSBES] with effect from 30.09.1991. Hence Vehicle Service Stations are to be categorized under L.T. Tariff V. Further it is also seen from the clarificatory letter from Government/Industries Department, that any unit owned, controlled or subsidiary of any other Undertaking including State Owned Corporation undertakings is not registrable as Small Scale Industries and hence M/s. Rani Mangammal Transport Corporation Limited, does not come under the purview of SSI.
Hence, in consideration of the above revised policy of the Government/Industries Department to classify the Vehicle Service Stations as SSBE and that any Government Undertakings etc., cannot be registered as SSI, the Superintending Engineer/Dindigul E.D.C. is informed that the "Maintenance workshop cum Service Station" run by M/s. Rani Mangammal Transport Corporation is to be classified under L.T. Tariff V only.
17. It is quite obvious that maintenance cum Service Station are to be categorized under L.T. Tariff V. Onbehalf of the Petitioner, it was contended that maintenance service workshop of M/s. Rani Mangammal Transport Corporation Limited owned by the Government of Tamil Nadu, which is not at all registrable with the District Industry Centre and that Petitioner's service automobile service station registered as SSI with District Industrial Centre cannot be equated as belonging to one and the same class. This contention has no force. The predominant test for applying L.T. Tariff IV is involvement in manufacturing activities. Production of SSI Certificate is a token shown by Tamil Nadu Electricity Board for identifying the small scale industries involved in manufacturing activities which may be categorized under L.T. Tariff IV. The Page 3348 contention of the Petitioner that the Petitioner's service station cannot be equated with the service station of the Transport Corporation has no basis.
18. Drawing the attention of the Court to B.P. (FB) No. 211, dated 20.06.1995, the learned Counsel for the Petitioner has further submitted that there is apparently no reason for differentiating a body building unit and Battery charging unit as one class and automobiles service station as industry class. Quite obviously, body building unit is involved in manufacturing activities. A single individual, who is in arrears, cannot plead discrimination against the levy of Tariff V. This is all the more so when similarly placed service stations are paying the charges under Tariff V.
19. As per the proceedings in Memo. No. SE/IEMC/EE(T)/AEE1 /AE1/Commissioner 05590/98-5, dated 30.08.1999, the Petitioner's Service Station was classified under Small Scale Service and Business [Industry related] Enterprises SSSBES and the Respondents have rightly categorized the Petitioner's service station under L.T. Tariff V and there is no violation of law, nor any discrimination, as alleged by the Petitioner. Audit report Raised objection and bills were revised with effect from 18.06.1997, levying charge under Tariff V. The Petitioner has earlier filed Writ Petition No. 577/2000 and the same was disposed of with direction to issue Show Cause Notice and to afford opportunity to the Petitioner. Show Cause Notice was issued to the Petitioner and after considering his explanations, in the enquiry, the amount of Rs. 71,739/- has been levied. Pursuant to the conditional Order passed in the Writ Petitions, the Petitioner is said to have paid Rs. 10,000/- + Rs. 10,000/- and the balance of Rs. 51,739/- is payable. As per clause 19.16 of the Terms and conditions of Supply, when there is revision of bills ,like in cases of defective meter, incorrect application of tariff, wrong billing etc., the billing will be made for the duration of the period, subject to the maximum period of three years from the date of billing. Accordingly, bills were revised from 7/97 to 11/2000, which is in accordance with clause 19.16 of the Terms and Conditions and the Petitioner cannot challenge the Order on this score also.
20. Contending that after passing of the Electricity Act 2003, the Board has no power to revise the tariff and that only regulatory commission has to decide regarding the tariff and the conversion of tariff, the learned Counsel for the Petitioner has placed reliance upon CDJ 2006 Kerala High Court 174 Sainalabdeen v. Kerala State Electricity Board rep. by its Chairman. Since the period of revised bill relates to 1997-2000, the provisions of Electricity Act, 2003 cannot be invoked and hence the said Judgment is not applicable to the case on hand.
21. Classification of service station under Tariff V and the revision of Tariff and Billing are in accordance with the terms and conditions of supply. Therefore, the Petitioner cannot go back from honouring the terms and conditions of Agreement executed at the time of availing supply. The Petitioner has not made out substantial grounds calling for interference.
22. The Writ Petition is dismissed. No costs. Consequently, WMP No. 3900/2001 is dismissed and WMP No.7399/ 2001 is closed.