Madras High Court
M/S.Brakes India Limited vs The Superintending Engineer on 4 August, 2014
Author: S. Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04-08-2014 CORAM THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN W.P.Nos.8296 to 8298 of 2008 And M.P.Nos.1, 1 and 1 of 2008 M/s.Brakes India Limited, Represented by its Executive Director (Operation and Finance), having its factory at Brakes Division, Arakkonam Road, Sholinghur-631 102, Vellore District. .. Petitioner in all WPs vs. The Superintending Engineer, Vellore Electricity Distribution Circle, Gandhi Nagar, Vellore-6. .. Respondent in all WPs Writ Petitions filed under Article 226 of the Constitution of India, praying for the issue of Writs of Certiorari, calling for the records of the respondent culminating in its impugned proceedings, viz., Lr. No.SE/VEDC/VLR/RCS/AS/A.2/F.E.Tax.Arrs/BPSC/08 dated 12.3.2008 issued in respect of HT Service Connection Nos.1067, 1144 and 1168 and quash the same. For Petitioner in all WPs : Mr.N.L.Rajah For Respondent : Mr.M.Varunkumar, Standing Counsel for TNEB. C O M M O N O R D E R
The petitioner has filed all these writ petitions for the issuance of Writs of Certiorari, calling for the records of the respondent culminating in its impugned proceedings, viz., Lr. No. SE/ VEDC/ VLR/ RCS/ AS/ A.2/F.E.Tax.Arrs/BPSC/08 dated 12.3.2008 issued in respect of HT Service Connection Nos.1067, 1144 and 1168 and quash the same.
2. Heard Mr.N.L.Rajah, learned counsel appearing for the petitioner in all these writ petitions and Mr.M.Varunkumar, learned Standing Counsel for the Tamil Nadu Electricity Board.
3. The Electricity Tax was levied under the Tamil Nadu Electricity (Taxation on Consumption) Act, 1962 upto to the period 15.6.2003. It is not in dispute that the Electricity Act came into force on 10.6.2003 and the Tamil Nadu Electricity Supply Code came into force on 21.7.2004. The constitutional validity of Section 3-A of the Amendment Act of 32 of 1991, enabling the Electricity Board to levy additional tax on consumption of energy calculated at such rates as specified on the price of energy consumed by the consumer was upheld by this Court on 21.10.2003, when the constitutional validity of the said provision was questioned.
4. A demand was raised by the Electricity Board on the Management to pay the arrears of electricity tax and it was directed to be paid within a specified time. It is also not in dispute that the tax demanded by the Electricity Board was paid by the petitioner. The issue involved in this writ petition is whether under the Tamil Nadu Electricity (Taxation on Consumption) Act 1962, the Electricity Board has got powers to collect electricity tax and whether the Electricity Board has powers or any authority to levy Belated Payment Surcharge (BPSC) on electricity tax.
5. One of the Units of the writ petitioner has approached the Ombudsman, questioning the levy of electricity tax and the Ombudsman by an order dated 12.5.2006, has come to the conclusion which reads as follows:-
6. CONCLUSION:
Article 265 of the Constitution of India says that no tax can be levied or collected except by authority of law and as such electricity tax can be levied and collected only in accordance with the provisions of law. It also follows that any additional levy such as interest or surcharge on tax too has to be levied only according to law. The law which deals with levy of such tax is the Tamil Nadu Electricity (Taxation and Consumption) Act 1962 and Section 5(1) of the Act empowers TNEB to act as agent in the matter of collection of tax. Hence, the terms and conditions (though derive authority from Electricity Supply Act 1948) cannot obliterate or can be said to be said to be superior to the Tamil Nadu Electricity (Taxation on Consumption) Act 1962, given its nature as a subordinate legislation. So also is the case with TN Electricity Supply Code, which too cannot go against the provisions of Tamil Nadu Electricity (Taxation on Consumption) Act 1962. Hence, for all practical purposes and for solving the issue before this Forum, I find that only the Tamil Nadu Electricity (Taxation on Consumption) Act 1962 is applicable and nothing else.
6. The Ombudsman, by an order dated 12.5.2006, rendered a finding which reads as follows:-
On view of the above findings, I direct TNEB to re-work the calculations in line with Sections 5 and 8 of the Act, 1962 and charge 12% interest for the period of delay, on the amount of tax collected. The 25% of the disputed amount, already deposited with TNEB, prior to the petition before Ombudsman shall be adjusted and the balance amount collected from the petitioner-company. With these observations and order, the petition is disposed. The parties shall bear their respective costs. TNEB shall send a compliance report within 30 days from the date of receipt of this order.
7. The abovesaid order of the Ombudsman was questioned by the Tamil Nadu Electricity Board by filing a writ petition in W.P.No.4302 of 2008 and this Court by an order dated 22.2.2013 dismissed the writ petition. The writ petitioner in this case is also similarly placed. When the Tamil Nadu Housing Board is acting as an agent in the matter of collection of tax and that 1962 Act is applicable to the case on hand, as the entire amount due is prior to July 2003, I find much force in the contention of the learned counsel for the petitioner and the Electricity Board will have to re-work the calculation in terms of Sections 5 and 8 of the 1962 Act and pay the balance amount to the petitioner, within a period of 12 weeks from the date of receipt of a copy of this order. As the petitioner has already paid the entire amount, it is fairly submitted by the learned counsel for the petitioner that it is open to the Electricity Board to adjust the balance amount towards future electricity bills. The contention of the TNEB is that after the 2003 Act and 2004 Supply Code, the petitioner has got a remedy before the Consumer Grievance Redressal Forum, cannot be accepted at this stage, as it will be putting the premium on the Electricity Board to enjoy the amount lying with them which they are not authorised to keep it in terms of the law. Even assuming for the sake of arguments that the contention of the counsel for the respondent that the petitioner has got alternative remedy, this Court is not inclined to accept the said contention of the learned counsel for the Electricity Board at this stage when the matter is taken up for final hearing. Hence the above contention of the learned counsel for the Electricity Board is rejected.
8. The writ petitions are disposed of on the above terms. No costs. Consequently connected miscellaneous petitions are closed.
04-08-2014 Index : Yes/No. Internet: Yes/No. Svn Office to Note: Issue order copy by 11.8.2014.
To The Superintending Engineer, Vellore Electricity Distribution Circle, Gandhi Nagar, Vellore-6.
S. VAIDYANATHAN, J.
Svn
WP Nos.8296 to 8298 of 2008
04-08-2014