National Green Tribunal
Heavy Water Plant Kota vs Member Secretary Rspcb on 13 November, 2024
Item No. 07
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No.03/2024 (CZ)
Heavy Water Plant Kota Appellant(s)
Vs.
Member Secretary, RSPCB Respondent(s)
Date of Hearing: 13.11.2024
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Appellant (s): Mr. Om Shankar Shrivastava, Adv.
(With Mr. Harish Verma, Technical Officer,
HVYR)
For Respondent(s) : Mr. Rohit Sharma, Adv.
ORDER
1. Originally, this writ petition was filed under Article 226 and 227 of the Constitution of India before High Court of Judicature, Rajasthan, Jaipur and it was registered as SB Civil Writ Petition No. 4342 of 2008.
2. The petition was disposed of/transferred vide order dated 04.01.2024 with the following observation :-
"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 4342/2008 Heavy Water Plant Kota, Government Of India Department Of Atomic Energy, Post Office Anushakti, Via Kota, Through The General Manager. ----Petitioner Versus The Member Secretary, Rajasthan State Pollution Control Board, 1 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB 4, Industrial Area, Jhalana Doongri, Jaipur. ----Respondent For Petitioner(s) : Ms. Ritika Agarwal For Respondent(s) : Mr. Akhil Simlote HON'BLE MR. JUSTICE AVNEESH JHINGAN Order 04.01.2024
1. This petition was filed aggrieved of order dated 13.09.2007 passed by the Cess Appellate Authority under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977.
2. Learned counsel for the respondents submits that the impugned order is appealable before the National Green Tribunal (for short 'NGT'). He relies upon the decision of this Court dated 22.07.20t4 passed in SBCWP No.10068/2009 (Rajasthan Rajya Vidyut Utpadan Nigam Limited Vs. Assessing Authority (Member Secretary) Rajasthan State Pollution Control Board & Anr.), wherein while relying upon decision of the Apex Court in the case of Bhopal Gas Peedith Udyog Sangathan & Ors. Vs. Union of India & Ors.), the matter was transferred to NGT for final disposal by passing following order:-
"Pursuant to the judgment and order dated 09.08.2012 passed by Hon'ble Apex Court in case of Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. Vs. Union of India & Ors., Writ Petition (Civil) No.50/1998, writ petition is listed before the Court. In the aforesaid case, following directions have been given in Par 39 thus it is quoted hereinunder for ready reference:
"We find it imperative to place on record a caution for consideration of the Courts of competent jurisdiction that the cases filled and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relation to any of the 2 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB seven statutes specified in scheme 1 of the NGT Act, should also be dealt with by the specialized tribunal that is that NGT, created under the provisions of the NGT Act. The Courts may be well advised to direct transfer of such cases to the NGT in its discretion, as it will be in the fitness of administration of justice."
Learned counsel for the parties do not dispute that the instant proceedings come within the purview of the law and/or an issue contemplated in the above judgment.
In this view of the matter, this petition stands transferred to the National Green Tribunal for disposal. For a period of four weeks, the interim order would be continued, if it exists.
The Registry would do the needful. The petition is disposed of on transfer."
3. Learned counsel for the petitioner is not able to distinguish the case viz-a-viz order passed by the co-ordinate Bench.
4. The petition is transferred to NGT for disposal."
3. Aggrieved by the order dated 13.09.2007 passed by the Cess Appellate Authority under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 this appeal has been filed on the ground that the petitioner is not liable to pay Cess under Sub-Section 2A of Section 3, under the provisions of the Water (Prevention and Control of Pollution) Cess Act, 1977 and thus it has been prayed to quash and set aside the order dated 13.09.2007.
4. Notice has been issued to the respondent State Pollution Control Board Rajasthan to submit the reply and in compliance thereof, State PCB has filed the reply. In response to the reply, the appellant has filed the rejoinder. 3 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB
5. We have heard the Learned counsel for the parties and perused the record.
6. Brief facts giving rise to the appeal are that Heary Water Plant of the appellant is set up at Anushakti by the Department of Atomic Energy, Government of India to produce Heavy Water by dual temperature H2S - H2O chemical exchange process. The Plant handles various chemicals in the process of producing Healy Water. The water from the exchange towers of the Petitioner is saturated with H2S, which is stripped in a direct steam stripper as part of the process itself. The effluent from this stripper is cooled, diluted and travels a distance of about 2.8 Km where it is discharged to the lake. The effluent when it leaves the plant boundary has an undissociated H2S contents of less than 72 ppb and a temperature of 40 Deg. Centigrade. The discharged effluents are not only monitored regularly by Environmental Survey Lab of Bhabha Atomic Research Center (BARC) but also by Regional Office of RPCB at Kota. Apart from the above, the Petitioner has its own Technical Specifications for the operation of the Plant approved by Safety Committee for operating Plants of Atomic Energy Regulatory Board, and Emergency Preparedness Plan which has been drawn for Plant, Site and Off Site and approved by the appropriate authorities. In this regard, the Plant conducts various exercises for the said conditions at regular intervals.
7. The Plant also has a network of online H2S in air monitoring system, which continuously monitor the H2S concentration in air throughout the Plants, as well as within 5 Km area from the Plant. This system is totally computerised with audio-visual alarm in field and in Central Control Room. Data of each monitor is automatically recorded hourly and the same are easily available for observation/analysis. Presently main water consumption (from the view point of effluent) has been classified by RPCB as water is consumed for processing whereby water gels polluted and the pollutants are not easily biodegradable and are toxic; whereas the water discharged by the Petitioner 4 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB is fully treated and has never violated the stringent specifications set by RPCB. Hence, RPCB should bring the water consumption under the classification of water gets polluted and the pollutants are easily biodegradable. The effluent water before discharge is exhaustively treated in treatment facilities and continuously monitored by pollution control and monitoring equipments, The plant is operated by highly qualified and trained personnel who have been authorised for Plant operation by AERB in line with the authorization procedure approved by AERB. Well thought out contingency plans has been worked out to avoid any environmental pollution. The Plant discharge has always remained well below the specified limits and has been meeting the standards set by RPCB.
8. That the Petitioner has regularly been granted renewed consents by RPCB and all through the Petitioner has been complying with the consent conditions. The rates applicable to the Petitioner are therefore, those indicated in subsection (2) of section 3 of Water (Prevention and Control of Pollution) Cess Act, 1971 (for short the same may be referred to as the Act published in the Gazette of India Notification No, 53 of 1991 dated 17.12.1991. The same is Subsequently, revised by Notification of Govt. of India on 6.5.2003 are reproduced in the succeeding paragraph for ready reference:-
Sl. Category Rates
No. (Paisa/KL)
1 Industrial cooling, spraying in 5.00
mine pits or boiler feeds.
2 Domestic Purpose 2.00
3 Processing whereby water 10.00
polluted and the pollutants easily
biodegradable.
4 Processing whereby water gets 15.00
polluted and the pollutants are
not easily biodegradable and are
toxic.
5
Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB
However, the rates applied by RPCB while working out "Cess" amount have not been consistent and have lately/mostly been those [indicated in sub-section (2A) of section 3 of the above mentioned Gazette of India notification No. 53 of 1991 dated 17.12.1991] which are meant for those industries which fail to comply with any of the provisions of Section 25 of the Water (Prevention & Control of Pollution) Act 1974 or any of the standards laid down by the Central Government under the Environment Protection) Act 1986 i.e.:-
i. Those industries whose effluents samples are not meeting the RPCB standard.
ii. Those industries, which are not taking water consent from RPCB.
9. The amounts indicated in Cess Assessment Orders have been shown much higher than prescribed rates. Such higher rates mentioned in the Cess Assessment Orders are not applicable in case of the Petitioner. Payments are, therefore, being made based on rates applicable to the Petitioner. For proper classification of effluents, Petitioner has constantly and persistently been approaching and requesting through various letters, meetings with RPCB authorities since 1994.
10. The submission of the learned counsel for the State PCB are that the appeal/application is not maintainable on the ground of limitation and further that the respondent has not installed the STP and separate meters on various points. With regard to classification, it has been clarified that the clarification of process water under item 3 of Schedule 2 of Cess Act, it is clear that under the assessment order dated 01.08.2006, the classification was done by the assessing authority under item 3 of Schedule 2 only. Item 4 6 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB of Schedule 2 has not been applied in their cases and thus the point raised by the appellant has no consequence and is of no relevance.
11. The contention of the learned counsel for the Respondent State PCB are that the entire case of the Appellant is against the rate levied towards processing where water gets polluted and the pollutants are easily biodegradable category and in cases of "where water gets polluted and the pollutants are not easily biodegradable and are toxic in nature." It is clarified here that in the impugned order dated 01.08.2006, the rate that has been charged from the Appellant under the head of "where water gets polluted and the pollutants are biodegradable and not easily are toxic, inverted commas close is nil" and therefore most of the allegations of the Appellant regarding the impugned assessment order being wrong becomes irrelevant.
12. The present matter relates to the year 2006 and the Cess Act, 1977 has been subsumed under the GST regime and while the departmental order issued by the RSPCB dated 03.08.2017, a direction was issued that the water Cess for the period prior to the abolishment of the Water Cess i.e. 30.06.2017 is to be collected and all the regional officers shall verify the return of the water Cess for the period upto June, 2017 and in this process this initiative has been taken by the State PCB.
13. Learned Counsel for the Appellant, Mr. Om Shankar Srivastava has argued that the appellant received erroneous assessment order vide No. RPCB/ CESS / IX (1204) /33 / 2006-07/568 by respondent/ RSPCB on dated 01.08.2006 by the Member Secretary (Assessing Authority), RSPCB, which was duly challenged vide Appeal No. 64/2006 before appellate authority at Jaipur relating to the period from 01.05.2006 to 30.06.2006 whereby, RSPCB had assessed the water cess under sub-section 2(A) of Section 3 of the water cess Act 1977 instead of sub-section (2) of section 3 of Water 7 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB (Prevention and Control of Pollution) Cess Act, 1977. Moreover, while passing the above referred impugned Order dated 01.08.2006, no opportunity of hearing and/or to present the stand of the Appellant was provided to the Appellant. The Appellant has challenged the impugned order passed by appellate authority on dated 13.09.2007 before Hon'ble High Court, at Jaipur, Rajasthan in SB (Civil) WP No 4342/2008 whereof, the Hon'ble High Court vide order dated 07.09.2009 stayed the impugned order dated 13.09.2007.
14. That, the Appellant Plant, flow meter and pH meter have already been installed and calibrated periodically to ensure continuous monitoring of the trade effluent. Other prescribed parameters of trade effluent are being analyzed in the Appellant Plant's laboratory periodically in round the clock shifts. As directed by the Respondent, STP was established on 17.12.2008.
In addition to that, the trade effluent is being analyzed by external agency, recognized by the Respondent. Effluent samples are being collected periodically and analyzed by the Respondent at their office situated at Chittorgarh (Rajasthan) and as such no violation is reported so far. The appellant was never in violation of Section 25 of the Water Act 1974. As a responsible Government Organization, the Appellant is dedicated in complying the provisions of the environment laws. The Appellant had made payments under protest based on rates applicable to it by requesting the authorities in the Respondent Organisation since 1994 through various communications and meetings for proper classification of effluents. Hence, the dispute in question being a continued cause of action until Writ petition filed well within the law of limitation. Therefore, defense of RSPCB on the ground of limitation does not stand.
15. The core issue of appeal is amounts levied by the Respondent in Cess Assessment Orders have been much higher than prescribed rates. Such 8 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB higher rates mentioned in the Cess Assessment Orders are not applicable in case of the Appellant. The Appellant, therefore, made payments under protest based on rates applicable to it i.e. as per schedule II of Section 3 (2) of the Water (Prevention and Control of Pollution) Cess Act, 1977 by requesting the authorities in the Respondent Organisation through various communications and meetings since 1994 for effluents. may kindly be referred to in this regard.
16. The fact remains that rates levied by the Respondent in their impugned Order dated 01.08.2006 are not applicable to the Appellant. While imposing the rates in the above impugned order, the Respondent has rightly categorized the purpose for which water is consumed. However, rates levied against this categorization / purpose, had wrongly been imposed @10 paisa/KL for industrial cooling spraying in mines, pits or boiler instead of @ 5 paisa/KL; @ 3 paisa/KL for domestic purpose instead of @ 2 paisa/KL; @ 20 paisa/KL instead of 10 paisa/KL for processing whereby water gets polluted and the pollutants are easily biodegradable under sub-section (2A) of section 3 of Water (Prevention and Control of Pollution) Cess Act, 1977 and that, the action on the part of the Respondent is required to be corrected by charging the accurate and appropriate rates applicable for the Appellant under section 3 (2) of the Cess Act, 1977 viz. @ 5 paisa/KL for industrial cooling spraying in mines, pits or boiler instead of @ 10 paisa/KL; @ 2 paisa/KL for domestic purpose instead of @ 3 paisa/KL; @ 10 paisa/KL instead of 20 paisa/KL for processing whereby water gets polluted and the pollutants are easly by biodegradable in the impugned order by reassessing the whole amount under dispute.
17. The petitioner/appellant has further argued that the General Manager of Heavy Water Plant, Kota (the petitioner) had a meeting with the Member Secretary RPCB in his office at Jaipur on January 15,1994 itself and 9 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB subsequently also, as a sequel to which the effluents were classified for Cess Assessment as per rates indicated in column-2 of Schedule II of the Cess Act, 1977 (in accordance with Sub-section 2 of Section 3 of the abovementioned Gazette Notification No. 53 of 1991 dated 17.12.1991). These rates had been applied by RPCB in their Cess Assessment Orders issued upto 30.03.1995, vide CAO No. 861 dated 30.03.1995. However, from 19.04.1996 onwards the classification of effluents seems to have been changed unilaterally by RPCB without intimating any reason for the same for example - criterion of categorizing from 211,2, 4 category, it was changed to 2ll, 2N2, 214 by RPCB upto the issue of CAO No. 2670 of 06.05.1997, after which again the entire classification was shifted to Column 3 Schedule II of the Cess Act, 1977 (applying Sub-Section 2.t of Section 3 of the Cess Act, 1977 to the Petitioner). Application of this classification/ yardstick has been continued till date.
18. The Plant is drawing water from Rana Pratap Sagar Lake for industrial use as well as for residential colony for principally three purposes as under:-
a) Industrial cooling water (at Plant);
b) Domestic Supply (at Plant as well as Colony); and
c) Processing water (at Plant).
So far as, Industrial cooling water is concerned the same is being used to cool process liquid through cooling water heat exchangers. The cooling water is subjected to only chlorination and no chemical dosing in the cooling tower is being done. The Petitioner is maintaining the cycle of concentration in the range of 1.3 to 1.5 and hence, the quality of blow down water remains similar as that of raw water drawn from Rana Pratap Sagar Lake.
19. The water drawn for using in the process is purified in Water Treatment Plant and the same is used for Deuterium extraction. Nearly whole of this water is discharged from the plant and during processing no contaminant is 10 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB added to this purified water. This water is further cooled to 35 degree centigrade in the Effluent Cooling Tower. The outlet of the cooling tower is Demineralised quality water, which is used for making boiler feed water, Cooling Tower makeup and remaining water is used for gardening and small quantity of water is discharged to the lake. The quality of Demineralised water discharged to lake is much better than standards specified by RPCB and other Statutory Bodies. Environmental Survey Lab, Rawatbhata, an independent agency, is regularly monitoring quality of this water for the specified parameters. Their analytical results also confirm that the quality of this water fully conforms to the specified quality. In view of this the discharged process water (effluent) should be categorized as non-toxic and bio-degradable. In this regard the Petitioner submit copies of results of Ambient Air Monitoring from the year 1995 to 2005 and further that the Heavy Water Plant, Kota has been awarded efficient water management by the Confederation of Indian Industries on 30.11.2007 for the efforts made by Heavy Water Plant, Kota.
20. It is further argued that the Petitioner is entitled to get rebate under Section 7 of the Cess Act, 1977. It provides that a person, who is liable to pay the cess if installs a treatment plant he will be entitled to a rebate of 25th of the cess payable by him. The exception as given in sub-section (8) is that a person who fails to comply with any of the provisions of section 25 of the Act, 1974 or any standards laid down by the Central Government under Environment Protection Act, 1986 will not be entitled to get the rebate under section 7 of the Act, 1977. At no point of time the Petitioner has been apprised about violation of any provision of Environment Protection Act, 1986 or any other standard laid down by the Government of India or by the RPCB. Thus, it is clear that the Petitioner is fully entitled to get rebate under section 7 of the Act, 1977. The Assessing Authority has nowhere given any 11 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB reason in the assessment order that as to why this rebate should not have been granted to the Petitioner. Demanding amount at higher rates show that the Respondent has rejected the request of the Petitioner for granting rebate under section 7 of the Act, 1977 arbitrarily. Such deemed rejection is not sustainable in eye of law, as before rejecting such valid request no opportunity of hearing has been given to the Petitioner. The Petitioner has not been apprised about violation of any condition prescribed in section 7 of the Act,1977. Thus, it is manifest that in any manner the Respondent could not have withheld the order for granting rebate under section 7 of the Act, 1977. The Petitioner has time to time deposited the requisite amount to the Respondent.
21. It is further argued that the proper categorization of water drawn by the appellant for assessment of the past cess and reconciliation of the payment shown outstanding had not been done by the respondents.
22. The contention of the appellant are that the scientist deputed to analyze the water quality at the plant had prepared the analysis report which has been annexed with the petition and the comparison of various parameters indicated in the analysis clearly demonstrate that the quality of the discharge from heavy water plant is in fact better than the lake water referred to as raw water in respect to the parameter mentioned in the consent issued by the RSPCB. The letter referred and annexed with the petition as annexure-1 issued by the appellant in 1994 clearly depicts as follows with the comparative report of the water analysis-
"In fact the lake water used in the process first passes DM Plant and this demineralised water is used in the process for extraction of deuterium using H20-H2S exchange process. The water leaving Plant is fully treated before discharging it in the open terrain in Delay Tank Area.
12 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB The process outlet water is first stripped free of H2S to the level of < 0.5 PPM by using primary steam in waste stripper & the H2S evolved in waste stripper is put back in the exchange unit (Plant). The water leaving waste stripper has temperature the range of 75 deg.C. & is, therefore, further diluted and cooled with double the quantity of lake water before it is let into a pipeline leading to delay tank area. Incidentally, low level sulphide concentration further gets reduced first because dilution and then because of its reaction with dissolved Oxygen present in dilution water, during its travel in the pipeline upto delay tank. It is reaffirmed that HWP does not use any other chemicals in the process water or in the process which will lead to addition of any other pollutant to this discharge at the delay tank area.
Further at the Delay Tank Area outfall the Plant discharge gets further aerated. The last traces of H2S are removed due to atmospheric Oxidation, by the time discharge leaves our battery limits and after that the discharge water flows down 5 Κ.Μ. in open before it meets the lake water. The dissolved oxygen content in the discharge within the plant boundary after dilution is more than 5 PPM which further gets enhanced in the delay tank area at the outfall before it leaves our delay tank battery limits and this oxygen level is more than adequate for the survival of the aquatic life and also re-affirms the non-toxicity of HWP's discharge which can be endorsed as "Fully Treated Water". Considering the above mentioned aspects you may kindly arrange to issue necessary instructions 13 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB for acceptance of HWP's discharge as "Fully Treated Waste Water".
Incidentally, it is mentioned that HWP's domestic water consumption has now increased from 34 m3/hr. to 68 m3/hr for which two drinking water pumps are now being run continuously.
We are also making efforts to reduce the number of effluent outlets and in this regard the effluents from N2 Generation plants and Steam Generation Plant have been combined at one common discharge point with V-notch installation for flow measurement. The sample from outlets are being taken jointly by Kota Regional Office of RPCB & representative of HWP (K) and recently it was also done on 10th February, 1994."
23. It is further submitted that the appellant plant has its own technical specification for the operation of the plant approved by the Safety Committee for operating plants of AERB, an emergency preparedness plant which has been drawn for plant, site and off-site emergency conditions and duly approved by State Government authorities.
24. Presently, the main water consumption has been classified as water is consumed for processing whereby water gets polluted and the pollutants are not easily biodegradable and are toxic, whereas the water discharged by the unit is fully treated and has never violated the stringent specification set by State PCB. Hence, the request has been made to the State PCB that it should be brought under the classification of water gets polluted and the pollutants are easily biodegradable.
25. The contention of the appellant are that the effluent water before discharge is exhaustedly treated in treatment facilities and continuously monitored by 14 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB pollution control and monitoring equipments. The plant is operated by highly qualified and trained personnel and according to the norms and requires the cess rebate but in spite of the repeated request made by the appellant, the State Pollution Control Board has not considered the application and not made the proper classification of long standing problems which has been periodically raised before the State PCB. Again vide letter annexure-5 dated 03.05.2003 the plant has made request to the State Pollution Control Board with attachment of details that the values may be used for a calculation of water cess and the result of analysis carried out by Water Control and Analytic Lab of HWPK and formal appliances report by the State PCB and concerned condition has been sent to the State PCB with the request that the applicable rebate must be given to the appellant unit but the same has not been heard nor replied by the respondent to the State PCB. The report which has been attached shows that the water quality is within the prescribed limit as per parameter laid down by the State PCB.
26. The appellant has also attached the copy of the regular payment made to the State PCB under the Water Act and submitted that from the record of previous CESS order, there is no outstanding amount shown in the bill received from RPCB till 31.03.2002. CESS order no. 1204, for duration 01.12.2002 to 28.02.2003 shows outstanding amount of Rs. 95,67,520. For duration 01.01.2005 to 31.03.2005, shows outstanding amount shown in the bill is Rs. 1,86,48,880 (Outstanding Amount Rs 72,97,020 + Interest Rs. 10913849). Principal Outstanding Amount as per CESS order no. 19/05- 06/Gr-I is Rs. 72,97,020. As per monthly bill data, the average bill is roughly 1,50,000/-. If we divide the principal outstanding amount by one month bill amount, which comes approximately 48 months bill consider average monthly CESS charges 1,50,000/-). If we see from the table-1, consider 4 years back from the CESS order no. 19/05-06/Gr-I, it would be period of 15 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB March, 2000 to March 2005. During this period before March, 2003 there is no outstanding amount shown by RPCB in any CESS order. The outstanding amount shown only after December, 2002 CESS orders. Which shows that Outstanding amount is calculated only for 2 years (approx.) from 1.12.2002 to 31.03.2005, which shows inflated CESS charges.
27. Contention of the appellant is that there are inconsistencies in the billing process as the CESS order no. 1204, for duration 01.12.2002 to 28.02.2003 shows outstanding amount of Rs. 95,67,520. CESS order no. 1204, for duration 01.01.2005 to 31.03.2005, shows outstanding amount shown in the bill is Rs. 1,86,48,880 (Outstanding Amount Rs 72,97,020 + Interest Rs. 10913849), and the outstanding amount remain same till 30.04.2007, CESS order no. 2007-2008/52 from 01.10.2007 to 31.12.2007 shows zero outstanding amount and later on, CESS orders show outstanding amount ZERO till 31.10.2008. Again, CESS order No. 2008-2009/513 for duration 1.11.2008 to 31.12.2008 shows outstanding amount Rs. 18,00,630.00 (outstanding amount Rs. 14,78,444.00 + Interest Rs. 1,22,186), which shows inconsistencies in billing process in CESS order by RPCB, deserve dismissal of impugned order.
28. It is further argued by the learned counsel for the Appellant, Mr. Om Shankar Shrivastava that as mentioned in point no. 1, CESS charges are imposed for 4 years, but outstanding amount before March, 2002 is ZERO. The Outstanding amount as per official bill record is only for two years. Break up of CESS charges for two years shows in TABLE-2 for the period 01.03.03 to 31.03.05. From Table-2, it can be understood that the total CESS charges have been calculated by RSPCB to be Rs 36,10,086, as reflected by them HWP (Kota) under protest. As such, the difference between RSPCB bills and deposited by HWPK remains Rs. 21,21,692/-. If at all the penalty is to be charged with full justification by RSPCB on the difference 16 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB amount of Rs. 21,21,692/-, then in terms of the penalty clauses mentioned in their cess bills, a maximum 48% interest or up to 100% of principal amount is liable to be paid by appellant /HWP (Kota) considering the two- year period of penalty. In this way, Rs 31.40 Lakhs @ 48% or 42.42 Lakhs @ 100% of the principal amount would be required to be payable. However, the amount of penalty calculated by RSPCB not only appears inconsistent with reference to the penalty clauses mentioned by them in the bill but the same found to be incongruent as per the method and/or rationale of calculation shown below :-
TABLE-1 CESS charges and outstanding from 01.01.2000 to 31.03.2010 Duration Outstanding Cess Total Sr. Principle Interest Total Charges Payable From To no. (A) (B) (A+B) (C) Amount (A+B+C) 1 01.01.2000 31.10.2000 Nil Nil Nil 666207 666207 No Outstanding 2 01.11.2000 28.02.2001 Nil Nil Nil 430864 430864 3 01.05.2001 28.02.2002 Nil Nil Nil 980385 980385 4 01.03.2002 31.03.2002 Nil Nil Nil 95173 95173 5 01.12.2002 28.02.2003 9567520 Nil Nil 203617 9771137 6 01.01.2005 31.03.2005 7297020 10913849 18210869 438011 36859749 O/S amount 7 01.07.2005 31.10.2005 7297020 10913849 18210869 533711 36955449 8 01.05.2006 30.06.2006 7297020 10913849 18210869 326976 36748714 9 01.08.2006 30.11.2006 7297020 10913849 18210869 681121 37102859 10 01.03.2007 31.03.2007 7297020 10913849 18210869 181979 36603717 11 01.04.2007 30.04.2007 7297020 10913849 18210869 176028 36597766 12 01.10.2007 31.12.2007 0 0 0 511779 511779 13 01.03.2008 31.03.2008 0 0 0 95809 95809 No Outstanding 14 01.01.2008 29.02.2008 511779 0 511779 202286 1225844 15 01.03.2008 31.03.2008 0 0 0 95809 95809 No consistency 16 01.04.2008 31.10.2008 0 0 0 668569 668569 17 01.11.2008 31.12.2008 1478444 122188 1600632 201316 3402580 18 01.01.2010 31.03.2010 0 15521 15521 66760 97802 19 01.04.2010 30.04.2010 66760 15521 82281 92677 257239 17 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB TABLE-2 Summary report on CESS charges by RPCB and deposit detail by HWPK Amount CESS deposited Differenc Sr. Assessment charges by by HWPK CESS Order no. e in Rs.
No. Period RPCB in inRs. (A-B)
Rs.(A) (B)
1 145/02-03/1 01.03.03 31.03.03 74260 24753 49507
2 195/03-04/1 01.04.03 31.05.03 90095 0 90095
3 196/03-04/1 06.05.03 31.07.03 582793 340600 242193
4 272/2003-20048/Gr. I 01.08.03 31.08.03 106377 0 106377
5 274/2003-20048/Gr. I 01.09.03 29.02.04 788879 450857 338022
6 44/O4-O5/Gr. I 01.03.04 31.03.04 163327 0 163327
7 45/O4-O5/Gr. I 01.04.04 30.06.04 468295 0 468295
8 77/O4-O5/Gr. I 01.07.04 31.12.04 898049 451814 446235
9 19/05-06/Gr. I 01.01.05 31.03.05 438011 220370 217641
3610086 1488394 2121692
29. The submission of the heavy water plant kota are that the water consumption of the plant has been shown by the Assessing Authority under category (IV) of Schedule II whereas they are entitled to be classified under category (III) of Schedule II of the Cess Act. Further, they have claimed that as they have regularly been complying with the consent conditions, imposed by the Board, they should be assessed under Section 3(2) of the Cess Act and not under Section 3(2)(A). The Plant's contention is that they have never violated any provisions of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and standard laid down under EP Act, 1986. They have contended that they have been writing to the Assessing Authority through various letters since 1994 to represent against the assessment at higher rates under Cess Act. Further, the plant has claimed that upto 30.3.95 the rate applied by Rajasthan State Pollution Control Board for the cess assessment under Section 3(2) of the Cess Act but from 19.4.96 onwards the classification of effluent has been changed unilaterally and has been continued upto 6.5.97, after which, again the entire classification was shifted 18 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB under category (III) of Schedule II of Cesse Act. According to the memo of appeal, there are two major categories under which water is consumed by the Plant (a) Industrial cooling water and (b) process water. Regarding industrial cooling water, the Plant's contention is that it is subject only to chlorination and not chemical dozing. The quality of blow down. water from cooling remains nearly the same as raw water. Regarding water used in the process, the plant's contention is that no contamination is added to this water. It is cooled upto 35°C In a recently installed cooling tower and its quality is as good as de mineralized quality and most of it is used within the plant for cooling tower make up and gardening. Therefore, their contention is that the process water effluent should be categorized as non-toxic bio degradable under item (III) of Schedule II of the Cess Act. The appellant has contended that since it is complying with Section 25 of the Water Act and the standards under the EP Act, 1986, the cess rate should be under Section 3(2) of the Cess Act. It has also contended that it is also entitled to rebate under Section 7 as it has installed treatment plant. Violation of any of these provisions has never been conveyed to the appellant. Appellant has not been given. any opportunity of hearing before passing the assessment order and before denying rebate. The appellant has repeatedly contended that the respondent has not taken any action for proper categorization of water drawn by the appellant and also for re-assessment of the past cess assessment orders w.e.f 26.1.92. The appellant has referred to meetings held with the Assessing Authority dated 24.12.05 and 10.3.06 in this regard.
30. The grounds and submission of the appellant are that no inquiry was held by the parties concerned before passing the assessment order and no notices have been issued under section 25 of the Water (Prevention & Control of Pollution) Act and opportunity of hearing was not provided to the appellant.
It is further contended that similar heavy water plant located in Andhra 19 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB Pradesh is being assessed as lower rate under Section 3(2) of the Cess Act and since the plant at present is also being run with same pollution control measures, the appellant is entitled to same rate of assessment as is being done in other heavy plants.
31. It is further argued by the appellant that the STP was installed within a reasonable time and the plant has also installed meters at three places which should be treated as a full compliance of the Rule 3(2) of the Cess Act and it should not be treated as a unit of non-compliances. While passing the impugned order the assessment authority has not issued any notice to the appellant and not made any reasonable efforts of giving opportunity of hearing and when the matter was raised before the first appellate authority, it was discussed that it is not necessary to provide an opportunity of hearing to the appellant.
32. In our view, this is not reasonable clarification of the point and ex-parte imposition of calculation and water cess without providing an opportunity of hearing is not reasonable and requires to be turned down on this round alone. The contention of the respondent are that the unit had installed meters at three places instead of four places and the STP was installed but not made operational and thus it may be treated as non-compliances.
33. The contention of the appellant are that just after receiving the order of the State PCB, STP was installed and it takes time to be fully operational and when the discharge point are at three places, then they have installed the meters at three places and this cannot be treated as a violation and unit was fully complying with the conditions. Section 11 of the Cess act has been discussed in the order of the appeal and it has been said that the calculation of water cess does not come within the category of the penal dates while the submission of the appellant are that when the rate has been enhanced by 20 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB the respondent without giving an opportunity of hearing, it comes as a penal rates and it requires mandatory hearing.
34. It is further argued that being a Central Government organization, the appellant requires several formalities to be done for initiating, commencing and carrying out any new activity and further requires sanction of budget and as such after obtaining the approval from the competent authority the department work order has been issued for construction of sewage treatment plant at HWP kota and with the date of commencement of work being 19.12.2006, thus time taken in mid of this for designing, obtaining approval of the competent authority, tendering and commencing construction of STP unit was only 16 months and the work was completed within a reasonable time. Hence, the appellant cannot be held responsible and liable for the penal rate of water cess and should be treated as a fully complied.
35. On the point of assessment and classification of the rate, it has been submitted that the appellant had made payments based on rate applicable to it by requesting the authorities in the respondent organization since 1994 through various communications referred above at the meeting for proper classification of influence and thus the question with regard to calculation and classification is a continuing cause of action and the writ filed before the Hon'ble High Court was well within the law of limitation and the contention of the respondent that the appeal is barred by time is not tenable as per above assertions of the appellant.
36. Learned counsel for the appellant has drawn the attention of Water (Prevention and Control of Pollution) Cess Act, 1977 where local authority and industry has been defined as follows :-
21
Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB "Section 2
(a)"local authority" means a municipal corporation or a municipal council (by whatever name called) or a cantonment board or any other body, entrusted with the duty of supplying water under the law by or under which it is constituted;
(c)[ "industry" includes any operation or process, or treatment and disposal system, which consumes water or gives rise to sewage effluent or trade effluent, but does not include any hydel power unit;]"
37. The Levy and collection of fees has been prescribed in section 3 which is as follows :-
"Section 3 Levy and collection of cess .-(1) There shall be levied and collected a cess for the purposes of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and utilisation thereunder.
(2)The cess under sub-section (1) shall be payable by-
(a)every person carrying on any [industry]; and
(b)every local authority, and shall be calculated on the basis of the water consumed by such person or local authority, as the case may be, for any of the purposes specified in column (1) of Schedule II, at such rate, not exceeding the rate specified in the corresponding entry in column (2) thereof, as the Central Government may, by notification in the Official Gazette, from time to time, specify.
[(2-A) Where any person carrying on any ] [Inserted by Act 53 of 1991, Section 2 (w.e.f. 26.1.1992). ][industry] [ Substituted by Act 19 of 2003, Section 3, for " specified industry" (w.e.f. 6.5.2003).][or any local authority consuming water for domestic purpose liable to pay cess fails to comply with any of the provisions of section 25 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) or any of the standards laid 22 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB down by the Central Government under the Environment (Protection) Act, 1986 (29 of 1986), cess shall be, notwithstanding anything contained in sub-section (2) of this section, calculated and payable at such rate, not exceeding the rate specified in column (3) of Schedule II, as the Central Government may, by notification in the Official Gazette, from time to time, specify.] [Inserted by Act 53 of 1991, Section 2 (w.e.f. 26.1.1992). ] (3)Where any local authority supplies water to any person carrying on any [industry] [ Substituted by Act 19 of 2003, Section 3, for " specified industry" (w.e.f. 6.5.2003).] or to any other local authority and such person or other local authority is liable to pay cess [under sub-section (2) or sub-section (2-A)] [ Substituted by Act 53 of 1991, Section 2, for " under sub-section (2)" (w.e.f. 26.1.1992).] in respect of the water so supplied, then, notwithstanding anything contained [in those sub-sections] [ Substituted by Act 53 of 1991, Section 2, for " in that sub- section" (w.e.f. 26.1.1992).], the local authority first mentioned shall not be liable to pay such cess in respect of such water."
38. Contention of the learned counsel of the appellant are that a unit is not polluting any water but only utilizing the water for cooling the plant and the process of heating and cooling take place and after extraction of TTO (from 165 to 140) i.e. approximately 25 points, it is cold to the extent of 5 degree above the normal temperature of the water and again discharge to the tank. At any time the water is analyzed and the report is examined by the expert of the unit which shows that the raw water which was taken by the project is utilized and discharge and point-A is the parameter of the discharge water is better then the raw water which is enumerated in the following report :-
23
Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB RESULTS OF ANALYSIS OF RPS LAKE (RAW) WATER AND FULLY TREATED WASTE WATER FROM DELAY TANK BOUNDARY S.No. Parameters Raw Water Point-A
1. pH 8.35 8.5 2. Conductivity K (uS/cm) 265 210 3. TDS (mg/1) 177 140 4. Total Hardness (ppm as 88 66 CaCO3) 5. Ca-Hardness (ppm) as 50 42 CaCO3) 6. Ma-Hardness (ppm as 38 24 CaCO3)
7. Dissolved Oxygen (ppm) 7.8 5.8
8. Chloride (ppm) 17.2 12.9
9. Silica as (5102) ppm 9.3 7.0
10. P-Alkalinity (ppm as 2.1 4.1 CaCO3)
11. M-Alkalinity (ppm as 92.7 70.0 CaCO3)
12. Total Sulphide (ppb) <10 <10
13. Undissociated H2S (ppb) <1 <1
14. Sulphate (ppm) 29.6 26.6
15. Temperature - 40o C
16. BOD (at 20°C 5 days) (ppm) 0.58 -
17. COD (ppm) 11.89 3.96 RESULTS OF ANALYSIS OF RPS LAKE (RAW) WATER AND FULLY TREATED WASTE WATER FROM DELAY TANK BOUNDARY S.No. Parameters Raw Water Point-A
1. pH 8.6 8.5 2. Conductivity K (uS/cm) 214 157 3. TDS (mg/1) 143 105 4. Total Hardness (ppm as 82 57 CaCO3) 5. Ca-Hardness (ppm) as 54 40 CaCO3) 6. Mo-Hardness (ppm as 28 17 CaCO3)
7. Dissolved Oxygen (ppm) 7.6 5.3
8. Chloride (ppm) 14.18 12.05
9. Silica as (5102) ppm 8.66 7.2
10. P-Alkalinity (ppm as 7.05 3.8 CaCO3) 11. M-Alkalinity (ppm as 96.35 59 CaCO3)
12. Total Sulphide (ppb) <10 <10
13. Undissociated H2S (ppb) <1 <1
14. Sulphate (ppm) 6.91 5.2
15. Temperature - 40o C
16. BOD (at 20°C 5 days) (ppm) 0.61 0.02
17. COD (ppm) 12.05 3.82
18. Turbidity (units) 1.8 0.22
39. The project is to produce heavy water by dwell temperature PH25 -H20 process. For the purposes of Cess calculation it is classified under 24 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB subsection 2 of section 3 of the Water (Prevention and Control of Pollution) Cess (Amendment) Act, 1991 which is stated below :-
(Schedule II) (See section 3) Purpose for which water is Maximum rate under Maximum rate under consumed sub-section (2) of sub-section (2-A) of section 3 section 3 (1) (2) (3)
1. Industrial cooling, Five paise per kilolitre Ten paise per spraying in mine pits or kilolitre boiler feeds
2. Domestic purpose Two paise per kilolitre Three paise per kilolitre
3. Processing whereby Ten paise per kilolitre Twenty paise per water gets polluted ad kilolitre the pollutants are-
(i) Easily biodegradable;
or
(ii) Non-toxic; or
(iii) Both non-toxic and easily biodegradable
4. Processing whereby Fifteen paise per Thirty paise per water gets polluted and kilolitre kilolitre the pollutants are i. Not easily biodegradable; or ii. toxic; or iii. both toxic and not easily biodegradable
40. The contention is based on the calculation made by the RSPCB in its notice issued in 2006 where at column-4 the water consumption is shown as zero. The State PCB was required to calculate the water cess in accordance with maximum rate under subsection 2 of section 3 given in schedule 2 but in place of calculating this clause it was calculated in accordance with sub section 2 (a) of section 3 which was wrong calculation and as per Cess Act, 1977 (2) the same has been deleted and subsumed under GST Act.
25 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB
41. So far as, the violation as narrated by the State PCB, it has been submitted that after notice and requirement of installation of meter it has been installed at three prominent and appropriate basis and now the fourth meter has also been installed. It is narrated that board/PCB has failed to appreciate their efforts taken by the appellant and without calling a report from the expert body with regard to pollution of water or pollutant activity the same has been calculated in the wrong section though it was required to be calculate in accordance with subsection 2 of section 3 as prescribed under Cess Act and in addition to wrong calculation at the first time, at the time of raising the demand an interest to the tune of Rs. 18210869 have been calculated.
42. The perusal of the annexure -10, notice of demand reflects that the calculation of interest is unwarranted and undesirable and not in accordance with the law and penal in nature which requires to be set aside for being without any notice and without providing an opportunity of hearing.
43. As narrated by the Technical Expert attending the Tribunal during the course of hearing he has submitted that industrial cooling water is subjected only to chlorination and no chemical using. The quality of the blow down water from cooling remains nearly the same as raw water. Water is used in the process of no contamination and no adding of any contaminated water and it is cooled upto 35% in effluent cooling tower and its quality is as good as dematerialized Quality and most of it is used within the plant for cooling tower, make a produce boiler, field water and gardening and on that ground it has been argued that the treated process water effluent is categorized as non-toxic, bio-degradable under the Cess Act. We have also examined the notice and calculation of the environmental of water cess and in column no. 4 the water consumption, 26 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB which is categorized as toxic has been shown as zero. Since, there is no toxic water thus, no calculation can be done in that column.
44. He has further submitted that in any natural source of hydrogen, protium and deuterium exist together in both atomic and molecular forms, however, the proportion of deuterium varies from source to source. In fact, in compounds having hydrogen, for e.g. water, hydrogen and deuterium are found together and water having deuterium atom in place of hydrogen is termed as heavy water. Heavy water is chemically known as deuterium oxide and its formula is D2O and its presence in natural water is approximately 150 ppm (mole basis). As protium and deuterium have similar chemical properties, natural water and heavy water will have similar chemical behavior. However, they have certain differences in physical properties which are tabulated as follows:
Physical Properties Normal Water Heavy Water
Molecular weight 18.015 20.028
Meting pt. °C 0 3.81
Boiling pt. °C 100.0 101.42
Triple pt. °C 0.01 3.82
Max. Density at 3.984 11.185
Temp °C (0.99997 g/cm3) (1.106 g/cm3)
Density at 0 °C in 0.99701 1.1044
g/cm3
Moderation Ratio 58 21000
Refractive Index 1.33 1.328
i. Uses of Heavy Water
Heavy Water is mainly used as moderator and coolant in PHWR type of nuclear reactors which uses natural uranium (92U238 having about 0.7% of 92U235) as a fuel. Fission of natural uranium produces fast neutrons which need to be slowed down so as to increase the fission cross-section of the neutrons for further fission. Hydrogen is the best material for slowing down neutrons due to its 27 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB low atomic weight, however, it has higher cross-section for neutron absorption as well and hence low moderation ratio. On the other hand, deuterium has lower absorption cross-section and hence high moderation ratio. So, Heavy water is a better moderator for natural uranium reactor since deuterium has very little capacity to absorb neutron.
Further, deuterium is used in nuclear fusion reactor in which 1 kg of heavy water can provide fusion energy equivalent to thermal energy of 6*106 kg of coal. Heavy water is also used as a tracer for elucidation of the mechanism of enzyme action. Virus growth in heavy water was also studied and found very little growth which opened the door for use of heavy water as a solvent in polio vaccine as deuterium have no adverse effects on human being.
ii. Methods of Heavy Water Production Separation of heavy water from natural water and synthesis of heavy water from hydrogen compounds is based on various properties of deuterium oxide/deuterium. Even though protium and deuterium have similar qualitative behavior, the small quantitative difference in chemical and physical properties helps in separation of heavy water/deuterium from natural water/hydrogen. As the presence of deuterium in natural water is very little, separation cost is exorbitantly high. There are various ways for its production:
1. Reversible Process
2. Irreversible Process The reversible process can further be divided in two principles.
1. Chemical Exchange Process
2. Distillation The irreversible processes are also classified as follows:
1. Diffusion
2. Thermal Diffusion
3. Gravitational
4. Crystallization
5. Biological
6. Photochemical 28 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB
7. Absorption
8. Electrolysis All irreversible processes require much high energy and hence are not economical for large scale production facilities. So, reversible processes are exploited on a large scale for production of heavy water.
iii. Production of Heavy Water in India India is able to produce nuclear grade heavy water for requirement of its nuclear reactors. The Nangal plant was operative on electrolysis principle which has been decommissioned. All other plants are producing heavy water with the help of chemical exchange and distillation principle applied in a combined manner. The term chemical exchange refers to isotopic exchange of deuterium and protium. Isotopic exchange takes place due to different values of equilibrium constant at different temperatures.
Equilibrium constant is characteristic of a chemical reaction which decides shift of reaction to occur in a forward or backward direction depending upon temperature. Moreover, chemical exchange process is further divided into two processes:
1. Mono-thermal process
2. Bi-thermal process In India, heavy water production has been carried out with the help of wide varieties of processes including mono-thermal chemical exchange, bi-thermal chemical exchange & distillation and electrolysis."
45. The contention of the Learned Counsel for the appellant and technical expert attending the Tribunal are that at the point of demand of notice there was no outstanding amount payable by the appellant plant and respondent State PCB has arbitrarily calculated the amount on the basis of wrong sub section on the change rate without giving an opportunity of hearing and thus, the cess amount or interest requires to be re-assessed in accordance with Sub subject 2 of Section 3 of Water Cess Act 1977. 29 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB
46. Accordingly, in view of the above submission and record the impugned order under appeal dated 01.08.2006 and order dated 13.09.2007 passed by the authority below in Cess Appeal No. 64/2007 quashed and set aside. The State PCB is directed to calculate the amount in accordance with sub section 2 of section 3 and to make adjustment of the amount according to rules after giving an opportunity of hearing to the appellant (Heavy Water Plant Kota, Govt. of India, Department of Atomic Energy) and to make an adjustment with further calculations according to rules.
47. The respondents are further directed to consider the provisions of section 7 of Cess Act, 1977 which was affected from 1992 with regard to admissible rebate as per law. Since, the amount which is paid or due is subject to objections, thus, no interest will be calculated.
48. The Appeal No. 03/2024 is allowed accordingly.
Sheo Kumar Singh, JM [ Dr. Afroz Ahmad, EM 13th November, 2024 Appeal No. 03/2024(CZ) PN 30 Appeal No. 03/2024(CZ) Heavy Water Plant Kota Vs. Member Secretary, RSPCB