Singhwahini Cement Pvt. Ltd. vs Bihar State Electricity Board and Others

The Court

The petitioner, M/s. Singhwahini Cement Pvt. Ltd. has prayed for declaration that the petitioner is entitled to exemption from payment of Annual

Minimum Guarantee Charges (Maximum Demand Charges i.e. KVA and Guaranteed Energy Charges i.e. KWH-Unit charges) for a period of five

years i.e. for the period 1999-2000 to 2004-2005.

Further prayer has been made to set aside the order dated 7.11.2000 communicated vide letter No. 2492 dated 8.12.2000 whereby and

whereunder the respondent Bihar State Electricity Board. Patna (now Jharkhand State Electricity Board for the State of Jharkhand) has rejected

the representation of the petitioner for such exemption from payment of Minimum Guarantee Charges on the ground inter alia, that exemption from

payment of Minimum Guarantee Charges id respect to sick industries is not covered under the Industrial Policy Resolution. The consequential bills

in respect to Minimum Guarantee Charges for the year 1999-2000 for Rs. 1,55,314/- has also been challenged with further prayer to direct the

respondents to refund the petitioner a sum of Rs. 77,657/- already realised on account of Minimum Guarantee Charges.

The case of the petitioner is that it open its unit and registered as a small scale industry (SSI for short) vide permanent Registration No.

030605329 dated 9.5.1995. In the meantime, it entered into an HT Agreement with the Bihar State Electricity Board (now it being controlled by

Jharkhand State Electricity Board - Board for short) on 3.10.1994. Due to paucity of working capital and other operational problems, and market

problems, the company become sick in the year 1998 and declared as sick industry.

The State of Bihar came out with Industrial Policy, under the Industrial Policy, 1995. While it allowed different benefits to industries like power

incentive including exemption from payment of Minimum Guarantee Charges for new Industrial Units having connected load upto 500 KVA,

exemption from electricity duty for five years on captive power generation upto 25 MW for own consumption to new industrial units under Clause

9.6, it also allowed certain benefits for revival of sick unit including industrial sickness in SSI sector under Clause 22.1 (iv) a sick unit being revived

was made entitled to sales tax exemption/deferment exemption from Minimum Guarantee etc. as determined in the revival package, a State level

apex body was also constituted for such rehabilitation package. Pursuant to such provision of Industrial Policy, 1995, a High Power Committee

was constituted by resolution dated 26.12.1995 under the Chairmanship of Director of Industries, Government of Bihar with a view to expedite

speedy rehabilitation of sick and closed small scale units. The said 12 Members Apex Committee also included amongst others representative of

Board to act in terms with guidelines laid down for such Apex Committee for revival of sick units.

The petitioner made reference to the Apex Body on 3.11.1998 for declaring the unit as a sick Industrial Unit whereinafter the Director of

Industries, Government of Bihar vide letter No. 1735 dated 27.3.1999 registered the petitioner''s unit as a sick unit vide Registralion No. 11/Ind.

Rugna Ikai/UNI/288/99 and called upon the petitioner to submit its rehabilitation scheme. Accordingly, the petitioner submitted a revival package

on 26.4.1999 for its rehabilitation before the Director of Industries for consideration of the said revival package including exemption of AMG

charges by the Board till revival of the petitioner unit. The apex body in its 13th meeting held on 20.12.1999 approved the aforesaid rehabilitation

package and allowed exemption from payment of AMG charges during the period of revival of petitioner''s unit till 2005. Thereafter the Director of

Industries, Government of Bihar, Patna vide letter No. 278 dated 29.1.2000 informed all concerned including the Chairman, BSEB to take

necessary action in the light of the decision taken by the Apex Body in its 13th meeting held on 20.12.1999.

The petitioner also filed a representation on 26.5.2000 before the Board drawing its attention to the decision of the Apex Body but in spite of

repeated request, no action having taken and AMG bill for Rs. 1,55,314/- having raised by bill dated 12.5.2000 for the year 1999-2000, the

petitioners preferred a writ petition before this Court being CWJC No. 1626/2000(R) against the bill. This Court vide its order dated 28.6.2000

while disposed of the writ petition aforesaid, directed the Board to consider and decide the representation as was preferred by petitioner which

was rejected by impugned order dated 7.11.2000 communicated vide letter No. 2492 dated 8.11.2000.

In the meantime, the petitioner having received notice for disconnection of electric supply vide letter dated 17.6.2000, had to deposit 50% of the

AMG bill being Rs. 77,657/-in respect to which prayer for refund has been made.

According to petitioner, there being specific decision taken by the State of Bihar under Industrial Policy, 1995 for revival of sick unit in terms of

such decision, it is entitled for deferment exemption from payment of Minimum Guarantee Charges, the Apex Committee having decided and

recommended for such exemption.

The Board by impugned order dated 7.11.2000 rejected the claim of petitioner for deferment exemption from payment of AMG charges on the

ground that a sick unit is not covered under the Industrial Policy, 1995, nor under any law. The relevant portion of order dated 7.11.2000 showing

ground of rejection reads as follows:

It will be seen from the above that there is no stipulation for exemption from payment of AMG charges in cases where the industry has been

declared sick and rehabilitation package approved by the Industries Department. The exemption from payment of AMG charges is applicable in

Cases where the unit is under expansion and diversification. The instant case for exemption for payment of AMG is exclusively based on the

ground of rehabilitation which is not a condition prescribed for allowing exemption from payment of AMG charges. In this connection, it is stated

that AMG charge is a valid charge to be levied under the terms and conditions of supply. The Board has a right to levy AMG charges in

accordance with the tariff framed u/s 49 of the Electricity (supply) Act. 1948. The consumer is also contractually bound for payment of AMG

charge''s, irrespective of the consideration whether the energy has been consumed or not. Further, the Board has got inherent power to levy AMG

charges in accordance with the terms and conditions of the agreement till such time as the agreement is determined or modified otherwise. In that

view of the matter, the claim of the petitioner for exemption from payment of AMG charges is neither covered under the said Industrial Policy

Resolution of the State Government nor under any other law or rule or any policy declaration of the Bihar State Electricity Board. Accordingly, the

representation of the consumer for exemption of the AMG charges for the period 1999-2000, amounting to Rs. 1,55,314/-. is not maintainable

and the same is rejected.

Similar stand has been taken by the Board in its counter- affidavit.

Mr. V.P. Singh, counsel for the Board submitted that no Government Policy can be made applicable for taking action by the Board till such policy

decision is communicated by the State u/s 78A of the Electric Supply Act, 1948. He placed reliance on the decision of the State taken u/s 78A of

Electric supply Act. 1948 as communicated vide Resolution No. 2336 dated 6.11.1995 read with Resolution No. 3493 dated 3.9.1996, as

reiterated by Board''s letter No. 652 dated 11.10.1996.

The resolution No. 2336 dated 6.11.1995 was issued by the State of Bihar from its Energy Department u/s 78A of Electric Supply Act, 1948 for

grant of power incentive as per Industrial Policy. 1995. It was decided and directed to allow exemption to consumer from payment of Minimum

Guarantee Charges for new Industrial Units having connected load upto 500 KVA, to grant exemption fro Electricity Duty for five years on captive

power generation upto 25 MW for own consumption to new industrial unit and to allow loads upto 99 H.P. on L.T. for new connection to

industrial units in stipulated under Clause 9.6 of Industrial Policy. 1995. By the subsequent Resolution No. 3493 dated 3.9.1996 issued from

Energy Department of the State of Bihar, while the earlier decision was reiterated, the period to grant such benefit was stipulated i.e. to grant

benefit to units winch started production between 1.4.1998 to 31.3.1998. The aforesaid policy decision u/s 78A of Electric Supply Act. 1948 was

communicated by the Board to its officials vide its letter No. 652 dated 11.10.1996.

Under the aforesaid policy decision of the State made vide resolution No. 2336 dated 6.11.1995 read with resolution No. 3493 dated 3.9.1996,

no policy decision having communicated for revival of sick units as per Clauses 22, 22.1 and 22.2 of Industrial Polity. 1995, the Board has taken

plea that the petitioner cannot derive any advantage from exemption of Minimum Guarantee Charges on the ground that it is a sick unit nor such

benefit can be granted merely be-cane the APEX Committee recommended to grain such exemption in its 13th meeting dated 20.12.1999 as

communicated vide letter No. 278 dated 29.1.2000.

Counsel for the petitioner relied on the decision of the Full Bench of the Patna High Court in Tara Steel Industries Vs. Assistant Commissioner

of Commercial Taxes and Others, . That was a case relating to grant of exemption from sales tax, to the small scale industries as per policy, the

benefit of exemption from payment of sales tax was not allowed in favour of petitioner of the said case as no specific notification was issued. The

Full Bench taking into consideration the fact that the law has not prescribed any particular or peculiar form for a notification under sales Tax Act,

held that where a formal resolution has been taken by the State Government expressly issued in its name and recorded by the order of the

Governor duly published in the Gazette, specifying in express terms the exemptions as it granted, it cannot be said that it would not come within the

ambit of the notification referred to in the Sales Tax Act. The resolution would be a notification in terms with the Act which to be treated as a

substantial compliance with the law. Such resolution and decision of the Government will come within the ambit of Section 4(3) of the Bihar Sales

Tax Act, 1959 read with the Bihar Finance Act, 1981 and in order to promote industrialisation within the territory, the promises and benefits of

various incentives for small scale industries to be granted. Similar decision was given by this Court in the case of Chotanagpur Refractories v. State

of Bihar fit Ors.. CWJC No. 3159/ 2000(R), disposed of on 20.11.2000, wherein us per Industrial Policy. 1995, the Court declared that the said

Petitioner''s unit was entitled for deferment of sales tax for a period of live years from 2000-2001 to 2004-2005.

To appreciate the issue, it is necessary to quote relevant provisions of Industrial Policy. 1995 as quoted hereunder :

9.6. Power Incentive.--Exemption from payment of minimum guarantee charge for new industrial units having connected load upto 500 KVA

exemption from Electricity Duty for 5 years on captive power generation upto 25 MW for own consumption to new industrial units.

loads upto 99 H.P. to be made available on L.T. for new connection to industrial units.

special arrangements for expeditious clearance for rebate for non supply - of power to industrial undertakings.

Revival of Sick Units.--The continuing problems of industrial sickness is a matter of great concern for the Government. Closure of units loads

to unemployment and locking up of capital deployed in such ventures. The State Government is determined to take effective measures and to

render all possible assistance for the amelioration of this malaise.

22.1. Industrial Sickness in SSI Sector.--The State Government proposes to take the following measures for the revival of SSI Units:

(1) there are scores of medium and small scale units which are sick but have the potential of becoming viable. For such SSI Units which are

outside the purview of the Bureau of Industrial and Financial Reconstruction (BIFR), the State Government proposes to form an apex body on the

lines of BIFR with Director of Industries as its Head to consider their revival.

(ii) The State level apex body for rehabilitation of sick industry would be vested with adequate powers so that it can effectively implement

management and financial restructuring.

(iii) The sick SSI Units would be identified as per guidelines given by RBI/IDSI. Appropriate packages of reliefs and con- cessions for such units

would be approved for their rehabilitation.

(iv) Sick units undergoing rehabilitation will not have to take sickness certificate every year. The approved revival package for each sick unit would

indicate the period of revival.

(v) The apex body shall monitor the progress of the revival package.

(vi) A sick unit being revived would be entitled to Sales Tax exemption/deferment exemption from Minimum Guarantee etc. as determined in the

revival package.

(vii) The State level apex body would besides representatives of Government Department/Organisations/Financial Institutions will also have as its

members one representative each of Confederation of Indian Industries, Bihar Industries Association and Bihar Chamber of Commerce.

The rehabilitation package would be implemented within a fixed time frame so that the process of revival is not delayed. 24. Monitoring &

Review.--All concerned departments and organisations will issue follow up notifications to give effect to the provisions of the Policy within a

month. This will be appropriately monitored by the Govt.

The State Government may carry out Mid Term Review of this Policy.

It is also pertinent to mention that after re-organisation of the State and creation of State of Jharkhand, the Jharkhand State has also came out with

a new Policy known as Jharkhand Industrial Policy, 2001"" wherein almost similar stipulation has been made. It has been given effect from 15th

November, 2000 and has been allowed to remain in force till 31st March 2005. The relevant provisions read as follows:

15.2.2, Captive Power Generation.--The Government would encourage private sector in setting up of Captive Power Generation Plants of any

capacity to meet the existing as well as future demand for power of industrial units. For setting up such power generation unit, no permission from

SEB shall be required. The surplus power generation by such plant could also be purchased by the State Electricity Board on mutually agreed

terms. The State Electricity Board shall allow wheeling and banking to such power plants. Large industrial unit/consortium of industrial enterprises

in growth centers/industrial areas shall be allowed to set up power generating units as well as to take over distribution of power in such industrial

complexes. Such captive power generation and purchase shall be provided exemption from electricity duty for a period of ten years form the date

of commercial production.

15.2.11.--Exemption from payment of Minimum Guarantee Charge for new Industrial Units having connected load upto 500 KVA or equivalent

H.P. as per billing norms.

36.0. Monitoring and Review.--36.1, A High Power Cabinet Committee headed by the Chief Minister with the Finance Minister and the Industry

Minister as Vice Chairman and the Chief Secretary as the member convenor would be constituted to make suitable arrangements for the

development/revival of any industry of the State. This committee shall take up specific issues on case to case basis and offer all required

help/concessions concerning sales tax department or any other department, if it so requires.

36.2. All concerned departments and institutions shall issue follow-up notifications to give effect to the provisions of this policy within 30 days of

declaration of this policy.

(a) From the aforesaid fact, it will be evident that under Industrial Policy. 1995 (also under Jharkhand Industrial Policy. 2001). a new Industrial

unit having connected load upto 500 KVA, is entitled for power incentive like exemption from payment of Minimum Guarantee Charges for 5

years.

AND

(b) A sick unit in SSI sector on its identification is entitled for deferment exemption from Minimum Guarantee Charges during the period of revival

as determined in the revival package, apart from other benefits as laid down under the Industrial Policy, 1995.

Admittedly, a policy decision u/s 78A of the Electric Supply Act, 1948 has been issued by the State so far it relates to exemption from payment of

Minimum Guarantee Charges to units having connected load upto 500 KVA. It is also not in dispute that no such order u/s 78A of the Electric

Supply Act. 1948 has been issued by the State to grant benefits to a sick SBI unit for deferment of exemption from Minimum Guarantee Charges

etc. Now, the only question arises as to whether the petitioner own derive any benefit of Industrial Policy. 1995 so far as exemption from payment

of Minimum Guarantee Charges is concerned or not.

Though from the writ petition and recommendation of the Apex Committee has taken in its 13th meeting dated 20.12.1999 and letter of the

State Government No. 278 dated 29.1.2000, it appears that the petitioner''s unit has been held to be a sirk unit, it is not clear us to whether the

petitioner''s SSI unit is outside the purview of the Bureau of Industrial and Financial Reconstruction (BIFR) to derive advantage of Clause 22.1 (vi)

of Industrial Policy, 1995. However, the Apex Committee having taken certain decision and recommendation being made by the State of Bihar

vide its letter No. 278 dated 29.1.2000, the presumption goes in favour of petitioner-unit. In such circumstances, if the petitioner is entitled for

benefit under Clause 22.1 (vi), the respondents cannot deny such benefit merely on the ground that the State Government has not issued such

policy decision u/s 78A of the Electric Supply Act, 1948.

Under Clause 24 of the Industrial Policy. 1995 to which similar provision made under Clause 36.2 of the Jharkhand Industrial Policy, 2001

monitoring and review to be made and all concerned departments and organisations are required to issue follow-up notifications to give effect to

the provisions of the policy within a month. If the appropriate departments of the Government has not issued such notification u/s 78A of the

Electric Supply Act. 1948 in respect to Clause 92(1)(vi) for exemption from Minimum Guarantee Charges as per revival package, the respondents

State is bound to give appropriate direction to the concerned department to give proper effect to the Industrial Policy. 1995 [now Jharkhand

Industrial Policy, 2001). As a decision to be taken and direction to be given by the concerned State, the petitioner be given liberty to bring this

order to the notice of the concerned State through the Secretary. Energy Department of the said State, who in his turn is required to decide and

issue appropriate order/notification u/s 78A of the Electric Supply Act. 1948 as per Clause 22.1 of Industrial Policy. 1995 so that the concerned

sick SSI unit may derive advantage of the Industrial Policy. 1995 properly.

The concerned State is required to act in accordance with law immediately, but not later than a period of three months from the date of

receipt/production of a copy of this order.

The Board in its turn will await the decision and will act as per decision of the State and will determine as to what benefit to which the petitioner is

entitled as per Clause 22.1. (vi) of the Industrial Policy. 1995.

Till such decision is taken, the respondents will not take any coercive step against the petitioner for realisation of the rest of the amount in terms

with the impugned bill dated 12.5.2000 at least for a period of fours months.

If any adverse decision is taken by the State or the Board they will communicate the ground to the petitioner.

The writ petition stands disposed of with the aforesaid observations/directions.

Petition disposed of accordingly.