Girish Kumar Balubhai Choksi vs STATE OF GUJARAT

THE case of the complainant before the District Forum was that he was made to pay excess electricity charges by the Gujarat Electricity Board. His case was that he had taken electricity connection for running a factory for which he was regularly paying the bills raised on him without any demur. He discovered that the bill raised for the period November, 1993 to January, 1994 for a sum of Rs. 3,555.36 was excessive. He made further enquiries and came to know that the Board was collecting from him duty @ 60% which was payable by domestic consumers. THE Board had ignored the fact that he was running an industrial concern and was liable to pay duty only @ 10%. He, therefore, lodged a complaint with the District Forum that the Board had recovered illegally electricity duty from him from April, 1990.

IT may be mentioned that before lodging the complaint with the District Forum, the complainant had approached the Board to correct the bills. The Board directed him to approach the Collector of Electricity Duty. The Collector, however, corrected the bill for six months and refunded the excess amount of duty collected by the Board but refused to correct the bills for the period November, 1993 to January, 1994 as time -barred. According to the complainant, he had to pay an excess amount of Rs. 2,471.31 by way of electricity duty. Although the District Forum held in favour of the complainant, the State Commission set aside that order of appeal. The case of the Board is that it is a statutory body and discharge statutory functions strictly in accordance with law. It collects duties from the consumer and pays it to the State Government. It is merely a collecting agent. The Board has also taken a point that the complainant should have produced a certificate to the effect that he was using electricity for industrial purpose for availing of lower rate of duty which he had failed to do. Even if the connection was given for industrial purpose, if the electricity was used for some other purpose, the complainant could not have availed of the lower rate of duty. It was argued that under the statutory scheme, the Board had to collect the duty and pass it on to the State. Any excess collection had to be refunded by the State in the manner laid down by the Statute.

SECTION 3 of the Bombay Electricity Duty Act, 1958 which is the charging section of the Act imposes a duty on the consumption of electricity at the prescribed rate. In Schedule 1, it has been provided that 10% of the consumption charges is leviable as duty for an industrial undertaking consuming exclusively low tension energy. Section 4 of the Act lays down that every licensee shall pay to the State Government at the time and in the manner prescribed the proper electricity duty payable under the Act in respect of energy supplied by him to the consumer. The Board is the licensee in this case. It was supplying electrical energy to the consumer. It was, therefore, duty -bound to hand over the duty collected to the State. The amount of duty payable is included in the bills issued to the consumers for the consumption of electrical energy. Whatever is collected by the Board by way of duty is handed over to the State Government. The question is what is the remedy for excess collection of duty by the Board ? Statutory Rules have been framed under Section 12 of the Bombay Electricity Duty Act, 1958 called the "Bombay Electricity Duty (Gujarat) Rules, 1986". Rule 12 lays down the procedure and also a period of limitation for refund of excess collection of duty. It provides that no consumer shall be entitled to a refund of electricity duty charged by the licensee in excess of the duty leviable under Act unless an application for refund supported by original energy bill and receipt of payments is made to the Collector of electricity within six months from the date of payment of such excess duty. Therefore, the proper procedure laid down for recovery of excess duty is to apply to the Collector for refund of duty. A period of limitation of six months has been provided. It is clear from this rule that the refund has to be claimed from the Collector and not the licensee. It is also clear that the claim for refund of excess duty paid must be made within the period of six months from the date of payment.

After analysing the rules, the State Commission has come to the conclusion that the Board could not in any way give any refund under the Statutory Scheme. It was merely acting as a collecting agent for and on behalf of the State Government. The remedy of the complainant for excess billing was to approach the Collector as laid down in Rule 12. The refund which was admissible under Rule 12 of the Act was given to the complainant. The complainant was not given any refund for the period beyond six months. In view of the statutory rules, the State Commission overruled the decision of the District Forum.

In our view, the State Commission has come to a correct decision. The law imposes a duty, provides a machinery for collection of that duty and also confers upon the consumer a right to recover any excess amount collected from him. The manner of enforcement of that right and the period of limitation is also laid down. The person aggrieved has to follow the statutory remedy to obtain refund in the manner laid down by the statutory rules. If the rules lay down that claim of refund cannot be made beyond a period of 6 months, that claim cannot be allowed to be made beyond the statutory period under some other Act. This will have the effect of nullifying a provision of the taxing statute itself.

AN argument was made that this Commission is acting under the Consumer Protection Act. If there is deficiency in service, the Commission is free to redress any wrong committed to the consumer unfettered by any other Act or Rule. We are unable to uphold this argument. This Commission has to act in accordance with law. There is a statutory bar to recover of any refund beyond a period of 6 months. That bar cannot be side -tracked by directing refund of collection of excess amount of duty beyond the statutory period of 6 months. This will make mockery of the statutory provision. The deficiency of service complained of in this case is excess billing. The statutory rules have specifically provided the remedy for excess billing and has laid down the manner and the period of time within which the remedy is to be availed of. The complainant has already availed of the statutory remedy and has got a refund for the period of 6 months. The complainant now cannot be allowed to override the statutory bar by raising a consumer dispute. Every statute imposing duty or tax contains a machinery for recovery of tax as well as a machinery for refund of excess collection of tax. It also lays down the period of limitation for that purpose. These provisions cannot be bypassed by proceeding under the Consumer Protection Act or some other Act. In the case of Mafatlal Industries Limited v. Union of India, (1997) 5 Supreme Court Cases 536, it was held that refund claim on account of excess payment of duty will have to be recovered in accordance with the statutory rules. It was further held that a suit or writ for recovery of excess payment will not lie where a complete mechanism for refund is provided by the statute.

IN the case of Assistant Collector of Customs, Madras v. Canara Rubber Products (P) Limited, Civil Appeal No. 254 of 1997, Supreme Court heard an appeal against an order of the Madras High Court which had allowed a Writ Petition filed for recovery of excess payment of excise duty. Though the Writ Petition was filed beyond the statutory period of limitation of 6 months, as fixed by the Excise Rules, the Madras High Court allowed the writ petition by holding that the rule relating to six months'' limitation laid down by the Central Excise Rules did not apply in case of illegal collection or levy in a writ proceeding. It was held by the Supreme Court that this view was erroneous in view of the judgment in the case of Mafatlal Industries (supra).

THEREFORE , the view taken by the Supreme Court is that if the statute provides a machinery for refund of excess collection of duty and also lays down a period of limitation for recovery of the excess payment, an aggrieved person must follow that remedy within that period of limitation. He cannot circumvent that law by filing a suit or writ. If that be so, he cannot also circumvent the statutory provisions by taking resort to Consumer Protection Act. There is another aspect of case. The complainant''s case is that he is running a Power Loom Factory at Surat. For this purpose, he was having an industrial connection. The price of the goods manufactured and sold by the manufacturer would normally include all costs including electricity charges and duties. The duty paid normally would be included in the price charged by the petitioner for the goods manufactured and sold by it. In other words, the burden of the duty has been passed on to the consumers. Refund of duty to the manufacturer under these circumstances, would amount to unjust enrichment of the complainant. According to the majority view in the Mafatlal Industries case (supra), in such a situation no refund of duty can be allowed unless the manufacturer can prove that he has not passed on the burden of the duty to his customers. There is no averment in the complaint that the manufacturer has borne the burden of excess payment of duty and has not passed it on to its customers. Therefore, he is not entitled to get any refund.

IN view of what has been stated hereinabove, we uphold the order passed by the State Commission. The appeal is dismissed. No order as to costs. Appeal dismissed.