Allahabad High Court
M/S Bansal Wire Industries Ltd.( Unit ... vs State Of U.P. Thru Prin. Secy. Energy ... on 7 August, 2019
Bench: Munishwar Nath Bhandari, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 4 Case :- MISC. BENCH No. - 5055 of 2019 Petitioner :- M/S Bansal Wire Industries Ltd.( Unit No.Iii) Thru Director Respondent :- State Of U.P. Thru Prin. Secy. Energy Deptt. & Ors. Counsel for Petitioner :- Vishal Dixit,Ankita Tripathi,Kamlesh Kumar Counsel for Respondent :- C.S.C.,Shreeprakash Singh And Case :- MISC. BENCH No. - 11312 of 2019 Petitioner :- M/S Vacmet India Ltd. Thru Authorized Signatory & Anr. Respondent :- State Of U.P. Thru Prin. Secy. Energy & Ors. Counsel for Petitioner :- Mohd.Altaf Mansoor Counsel for Respondent :- C.S.C.,Manish Jauhari,Satyanshu Ojha And Case :- MISC. BENCH No. - 21139 of 2018 Petitioner :- M/S Rathi Steel & Power Ltd.(Furnace Div.)Thru. Its Director Respondent :- State Of U.P. Thru. Prin. Secy. Energy And Others Counsel for Petitioner :- Vishal Dixit,Ankita Tripathi,Kamlesh Kumar Counsel for Respondent :- C.S.C.,Aprajita Bansal,Shreeprakash Singh And Case :- MISC. BENCH No. - 6137 of 2019 Petitioner :- M/S Bansal Wire Industries Ltd. (Unit No. Ii) Thru Director Respondent :- State Of U.P. Thru Prin. Secy. (Energy) & Ors. Counsel for Petitioner :- Vishal Dixit,Ankita Tripathi,Kamlesh Kumar Counsel for Respondent :- C.S.C.,Shreeprakash Singh Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Alok Mathur,J.
1. Supplementary counter affidavit filed by the Additional Chief Standing Counsel on behalf of the respondent nos. 1 and 2 is taken on record.
2. The batch of writ petitions have been heard together and decided by this common judgment.
3. Heard learned counsel for the petitioners, learned Chief Standing Counsel and Mr. Sudeep Seth, Senior Advocate assisted by Mr. Shree Prakash Singh and learned counsel for the respondent nos. 4 and 5.
4. By this writ petition, a challenge has been made to Clause 7 (vi) of the notification dated 05.02.2018 apart from the order dated 25.09.2018 passed by the Directorate of Electrical Safety. A further prayer is made to adjust the amount collected towards electricity duty in upcoming bills.
5. Brief facts of the case show that a dispute arose after issuance of the notification dated 21.01.2010 pursuant to a policy framed by the State of Uttar Pradesh in the year 2004. It was named as Uttar Pradesh Industrial and Service Sector Policy, 2004. The incentives were announced for the industries and service sectors.
6. The petitioners had established there units in State of Uttar Pradesh prior to the notification dated 21.01.2010. Since the establishment of units was after the policy of 2004 and prior to the notification dated 21.01.2010, exemption from electricity duty was claimed by the petitioner. The respondents refused to extend the benefit under the policy of 2004 on the ground that the industries were established prior to the notification dated 21.01.2010. According to the State Government, the benefit of the Policy of 2004 was available to the units established after 21.01.2010.
7. The petitioners approached this Court to challenge the decision of the State Government with a prayer to extend the benefit of the Policy of 2004. The writ petitions preferred by the petitioners were dismissed.
8. Aggrieved by the judgment of this Court, petitioners approached the Apex Court by maintaining Special Leave Petition. The leave to appeal was granted followed by the judgment holding petitioners to be entitled for the benefit under the Policy of 2004. In compliance of the judgment of the Apex Court, the State Government issued a notification on 05.02.2018. In the notification, directions were given that if the industrial unit has been closed, the amount towards electricity duty be refunded, and if, the industrial unit is running, the amount towards electricity duty be adjusted in the bills after 21.01.2020. It was further directed that electricity duty should not be collected between 5.02.2018 to 21.01.2020.
9. The petitioners have challenged clause 7(vi) of the notification dated 05.02.2018 not only on the ground of discrimination but in reference to the judgment of the Apex Court. It is submitted that when petitioners were made entitle to the benefit under the Policy of 2004, amount collected towards electricity duty should have been refunded immediately after the judgment of the Apex Court. The State Government instead of doing it, continue to collect electricity duty till issuance of notification dated 05.02.2018.
10. The challenge to the notification has been contested by the respondents mainly on the ground that the amount of electricity duty has been used for the benefit of Uttar Pradesh Power Corporation Limited. Since, the amount has already been utilized and looking to the financial crunches, refund could not be made immediately. It is also urged that there is no direction by the Apex Court to refund the amount. For the aforesaid, reference of the judgment of the Apex Court has been given. The prayer is not to cause interference in the notification dated 05.02.2018 and the order dated 25.09.2018 passed in consonance to it.
11. We have considered the rival submissions of the parties and perused the record.
12. The issue raised in these petitions needs to be considered in reference of the judgment of the Apex Court in regard to the application of the Policy of 2004. The High Court dismissed the writ petition preferred by the petitioners after holding that industrial units established prior to 21.01.2010 are not entitled to the benefit under the Policy of 2004. The Hon'ble Apex Court reversed the view and held that any unit established between year 2004 till 21.01.2010 are entitled to the benefit under the Policy of 2004. The paragraph nos. 5, 6 and 7 of the judgment of the Apex Court are quoted hereinbelow for ready reference. :-
" 5. The High Court has taken the view that the appellant would not be entitled to any benefit under the said notification. We cannot agree. While it is correct that the benefit of exemption is required to be made by the exercise of the statutory power under the Act, which came in the form of the notification dated 21.01.2010, what cannot escape our attention is the fact that the appellant's case before the High Court was that he has established his unit, inter alia, on the strength of the representation held out in the Industrial Policy which came to be given effect to by notification dated 21.01.2010. There is no dispute on the said fact.
6. If that is so, the appellant on the basis of the representation held out by the State would be entitled to the benefit of the said notification for the period for which exemption has been promised; commencing from the date of the notification. The benefit under the Industrial Policy of 2004 will become available to all eligible units not from the date of establishment of the unit but with effect from the date of issuance of the requisite notification under the Act which came to be issued on 21.01.2010.
7. On the aforesaid short ground, we set aside the order of the High Court and allow the writ petition (s) filed by the appellant."
13. The petitioners were held entitle to the benefit of the notification dated 21.01.2010, for the period for which exemption was promised, commencing from the date of notification dated 21.01.2010. It was further held that the benefit under the Industrial Policy of 2004 would be made available to all eligible units not from the date of establishment of the unit but w.e.f. the date of issuance of the notification i.e. 21.01.2010. The judgment of the High Court was set aside with the aforesaid directions.
14. The judgment of the Apex Court makes it clear that the petitioners were entitled to the benefit of Policy of 2004. In view of the aforesaid, there was no reason for the State Government to collect the electricity duty even after the judgment of the Apex Court. It was however collected till the issuance of notification under challenge. The amount collected towards the electricity duty has not been refunded till date, which is nothing but a contemptuous act. Despite entitlement of the petitioner to get exemption from electricity duty, it was not only collected subsequent to the judgment but even the previous collection has not been refunded so far .
15. An arrangement has been made to adjust the said amount from 21.01.2020. No liberty has been sought from the Apex Court to defer the compliance of the judgment. The date of 21.01.2020 has been determined by the respondents and that too with a provision for adjustment of the amount so collected instead of refund. It is while refunding the amount to the industries closed in between.
16. An argument of discrimination has been raised. It has been argued by learned Additional Advocate General that adjustment of the amount could not have been made for the industries already closed. It is in absence of a bill towards electricity charges. We find some justification therein, but no justification in the notification dated 05.02.2018 to defer the compliance of judgment of the Apex Court and that too with arrangement of adjustment instead of refund of the amount. The issue of financial crunches has been raised in reference to the Uttar Pradesh Power Corporation Limited though, the amount is to be refunded by the State Government, which is not under financial crunches. Thus, the only excuse taken by the respondent for denial of refund of the amount collected towards electricity duty and now is to be adjusted, cannot be accepted.
17. Accordingly, we cause interference in clause 7 (vi) of the notification dated 05.02.2018 and accordingly, it is set aside to the extent it provides for adjustment of the electricity duty so collected from the petitioners but w.e.f. 21.01.2020. The amount of electricity duty collected from the petitioners after the notification dated 21.01.2010 should have been refunded immediately after the judgment of the Apex Court.
18. It was stated by the respondents that the amount of electricity duty was invested. Thus, the amount aforesaid is not lying with the State Government. If that is so, then State Government wants to earn out of the refundable amount. The aforesaid cannot be accepted rather once the judgment came on the issue from the Apex Court, it was obligatory on the respondents to extend the benefit of the Policy of 2004 and thereby to refund the amount of electricity duty so collected from the petitioners.
19. Accordingly, writ petitions are allowed. It is with a direction to the respondents-State Government to refund the amount of electricity duty collected after the notification dated 21.01.2010 and would be in reference to the period of the benefit i.e. 10 years or 15 years, as the case may be. The amount would be refunded within a period of six months from today. If, the amount is not refunded within the period given above, it will carry interest @ 10% for the period subsequent to it. Direction of the refund has been given keeping in mind the prayer in the connected writ petitions and the oral prayer made in the present writ petition.
Order Date :- 7.8.2019 Ashish