Jharkhand High Court: A Division Bench of Aparesh Kumar Singh and Anubha Rawat Choudhary, JJ., allowed the petition and sets aside the impugned assessment orders as well as demand notices arising therefrom, which has been passed by treating the petitioner as a consumer of bulk supply of electricity.
The present writ petitions were filed challenging the order of assessment dated 22-05-2020 for the respective period passed by the Respondents, whereby the petitioner has been directed to pay electricity duty on the amount of electricity energy consumed by the petitioner and penalty has also been imposed for not getting itself registered under the provisions of Jharkhand Electricity Duty Act and the Rules framed thereunder. The petitioner has also challenged the demand notice and the order of attachment of its bank account arising out of the order of assessment in each case.
Counsel for the petitioner submitted that the impugned order of assessment has been passed treating the petitioner as a consumer of bulk supply of electricity from JBVNL. the impugned order of assessment is an ex-parte order, but the assessing Authority ought to have applied its mind while treating the petitioner as a consumer of bulk supply of electricity, in as much as the petitioner is admittedly having a shopping complex and is receiving electricity supply from JBVNL under High Tensions Agreement and is accordingly consuming the electricity the purpose for which the supply is given is ‘market complex’ at single point of supply and as per the schedule to the agreement, the petitioner is only a consumer of electricity and not a reseller.
Counsel for respondents submitted that the petitioner never appeared before the Authority and having not appeared before the Authority, ex-parte orders were passed and there is alternative remedy of appeal against the impugned orders of assessment.
As per the provisions of Bihar Electricity Duty, Act, 1948 and the rules framed thereunder, the term bulk supply was never defined. Subsequently in the year 2011, vide Notification dated 24.06.2011, the term bulk supply has been defined for the first time which reads as under:
“Rule 2(ba). “Bulk Supply” means supply of energy to such industrial units, mines or commercial consumers who are supplied with the high tensions energy connection for their respective premises.”
Notification 18-06-2012. Rules S.O. 4 dated 18-06-2012 amending rule 2 clause (ba) reads as under:-
2(ba). “bulk supply” means, supply of energy to such industrial and mining consumers who are supplied with the high tensions voltage supply services for their respective premises.”
The Court relied on Magadh Sugar & Energy Ltd. v. State of Bihar, 2021 SCC Online SC 801 and observed that the petitioner is receiving electricity from JBVNL with respect to its Market (Shopping) Complex at Deoghar under high tension Tariff and is neither an industrial consumer nor a mining consumer but is a commercial consumer.
The Court further observed that the term ‘bulk supply’ was defined vide Notification dated 08-10-2011, wherein the supply to industrial units, mines or commercial consumers under high tension energy connection were treated to be “bulk supply”, but the definition of “bulk supply” was amended vide Notification No. S O 4 dated 18-06-2012 and the term “commercial consumer” stood deleted and consequently, the term “bulk supply” was confined to energy supplied to industrial units and consumers engaged in mining. Admittedly, the petitioner is neither an industrial consumer, nor a mining consumer.
The Court observed “The impugned orders of assessment in all the cases have been passed by treating the petitioner as a consumer of bulk supply of electricity. The respondents have failed to satisfy this court as to how the petitioner can be treated as a consumer of bulk supply of electricity on the face of the amended definition of “bulk supply” under notification No. SO 4 dated, 18.06.2012.”
The Court held “the impugned order cannot be sustained in the eyes of law, as the petitioner cannot be treated as a consumer of bulk supply of electricity.”
[Shroff Enterprises v. State of Jharkhand, W. P. (T) No. 1282 of 2021, decided on 28-10-2021]
Arunima Bose, Editorial Assistant has reported this brief.
For the Petitioner: Mr. M.S. Mittal Mr. Vishnu Deo Bhagat and Mr. Salona Mittal,
For the respondent 1 to 3: Mr. A.K. Yadav
For the respondent 4: Mr. P.A.S. Pati
For the respondent 5: Mr. Manoj Kumar