MC ADAMS BALSEN CHLORATES PRIVATE LIMITED vs CHIEF ELECTRICAL INSPECTOR TO GOVERNMENT

THE complainant started a SSI Unit in the year 1990 at Boothakudi Panchayat, Viralimalai for manufacturing Sodium Chlorate and Potassium Chlorate. THE complainant obtained financial assistance from the Tamil Nadu Industrial Investment Corporation Limited, Pudukottai. THE complainant obtained H.T. service connection bearing No. 66 from the third opposite party after depositing the required amount. THEy could not continue operating the plant due to heavy loss incurred by them on account of steep hike of electricity power cost. On 19.4.1994, the complainant requested the third opposite party for disconnection of power for their industry since they decided to close down the industry. Accordingly power supply was disconnected from 29.4.1994. During the period the complainant''s unit was in operation, the complainant had to pay electricity additional tax under the provisions of the Tamil Nadu Electricity (Taxation on Consumption) Act, 1962. But vide G.O.Ms. No. 1084 dated 30.7.1992, the Government directed that such tax could be waived for units for three years from the date of manufacture. Since the complainant had already paid the additional tax and there was no possibility for the same being adjusted against future bills, the complainant requested the third opposite party to refund the tax paid. THE complainant was requested by the third opposite party to contact the Chief Electrical Inspector to Government, Chennai for refund of electricity tax since the Board has already remitted the amount of tax collected from the complainant to the Government. THE complainant requested the first opposite party to sanction refund of electricity tax paid by them. THE Government of Tamil Nadu by order G.O.Ms. No. 113, Energy (B1) Department dated 9.8.1994, extended the exemption of tax from January 1992 instead of the period from 30.7.1992 and, therefore, the complainant requested the second opposite party to arrange to refund the electricity tax remitted by them from the period from January 1992 to July 1992, in addition to the proposals already sent. On 21.11.1994, the third opposite party requested the complainant to contact the first opposite party. THE complainant, therefore, contacted the first opposite party and requested for the refund. THEy also addressed letters dated 10.6.1995 and 25.10.1995 to the second opposite party and 9.1.1995 and 17.8.1996 to the third opposite party. THE third opposite party on 20.8.1996 informed the complainant that a sum of Rs. 2,24,600/- had to be refunded. But the first opposite party has stated that unless the refund orders are issued by the second opposite party, it will not be paid. THE complainant wrote to the Secretary to Government, Energy Department several letters. Finally a reply was sent on 31.8.1999 stating that there was no provision for refund of additional tax levied on the consumption of energy. THE complainant is a consumer within the meaning of Section 2(d)(1)(ii) of the Act. THE complainant, therefore, prays for a direction to the opposite parties to pay a sum of Rs. 5,21,072/- (consisting of a sum of Rs. 2,24,600/- towards principal and a sum of Rs. 2,96,472/- towards simple interest at the rate of 24% per annum till the date of the complaint), a sum of Rs. 1 lakh towards compensation for irreparable loss, inconvenience and hardship caused and also pay Rs. 30,000/- towards expenses incurred for claiming the amount.

THE opposite parties 1 and 2 filed a common counter stating as follows: THE Government of Tamil Nadu announced a new Industrial Policy and in order to promote rapid industrial development, the Government among other things, granted exemption in respect of the additional tax payable under the Act for a period of 3 years from the date of commencement of manufacture of the principal product. THE G.O.Ms. No. 1084 dated 30.7.1992 was to be given effect from 20.1.1992. THE complainant''s industry has been started before the date of announcement of the policy. However, as per G.O.Ms. No. 113, Energy dated 9.8.1994, the H.T. consumers, who were availing tariff concession prior to 30.7.1992, but who have not completed the tariff compensation period were also given the benefit of electricity tax exemption for the balance period of 3/5 years beyond 20.1.1992. THE complainant industry was closed permanently on 29.4.1994 and the service connection was disconnected. Since the electricity tax already paid by the complainant, the same could not be adjusted in future current consumption bills because the service was disconnected. THE third opposite party had recommended for refund of amount to the first opposite party. THE third opposite party has stated in his letters dated 8.7.1994 and 29.11.1994 the details of tax remittances from 8/91 to 23.5.1993 and from 1/92 to 7/92 made by the complainant. THE total remittance made by the complainant in the exemption period was Rs. 2,24,600/-. THE electricity tax is a statutory levy to be paid by the consumer/complainant and the levy is made in pursuance of the provision of the Act. Having regard to the nature of business of industry and the price of energy consumed, therefore, any exemption from tax noticed may be subject to such restrictions and conditions may be specified. But there is no provision for refund of tax already made in the Act. THEre is no deficiency in service. THE opposite parties are not liable to pay the damages. THE other allegations are denied. Hence, the opposite parties pray that the complaint may be dismissed. The third opposite party has filed a version stating as follows: The complainant availed HT power supply in the year 1990 for a sanctioned demand of 800 KVA and commercial production commenced from 24.5.1990. The total concession amount allowed to the complainant from 24.5.1990 to 23.5.1993 was Rs. 35,82,271/-. The exemption was granted with an object to encourage more new industries to come up in the State. At the request of the complainant the service connection was again disconnected from 29.4.1994. After availing the entire tariff concessions, the complainant requested the opposite party to disconnect and consequently the opposite party dismantled the said service. The request made by the complainant could not be accepted by the opposite party since the tax collected was remitted to the Chief Electrical Inspector to Government. Moreover, the additional tax on the consumption of energy levied during the period from 20.1.1992 to 30.7.1992 can be set off only against the future additional tax on energy to be collected from new units which enjoy the concession. The third opposite party has stated that they have written to CEIG and informed the details of tax collected from the complainant. There is no deficiency in service. The complaint is false and baseless. The opposite party is not liable to pay any amount. The opposite party has not caused any damage or loss or inconvenience. The complaint is not in time. There is no cause of action. The third opposite party prays that this complaint be dismissed with costs.

The G.O.Ms. No. 1084, P.W. (VI) dated 30.7.1992 reads that there will be an exemption in respect of the additional tax payable under the Act, any new industrial undertaking established in the State of Tamil Nadu, for a period of three years from the date of commencement of the manufacture of production of the principal product. Thus G.O. exempts in respect of the additional tax by any new undertaking for a period of three years from 30.7.1992. The G.O. was given effect to 30.7.1992. In the G.O.Ms. No. 47, dated 29.11.1993, it is ordered that the additional tax on the consumption of energy levied during the period from 20.1.1992, the date of announcement of New Industrial Policy, to 30.7.1992 to set off against the future additional tax on energy. The Superintending Engineer has written to the Chief Electrical Inspector to Government giving the details of electricity tax assessed, collected and remitted from 8/92 to 23.5.1993. It is mentioned that a sum of Rs. 1,27,905/- is the amount that has to be refunded to the consumer in view of the G.O.Ms. No. 1084 and G.O.Ms. No. 46 issued by the Government

IN the version both the first and second opposite parties admitted that the complainant is entitled to refund of Rs. 1,27,905/- by giving effect to G.Os. It is no doubt true that the said amount has been collected by the third opposite party and remitted to the first opposite party. According to the contention of the opposite parties, since the service has been disconnected, there is no provision of refund of amount more so because the G.O. only speaks of adjustment in the amount due for the subsequent period. IN the case of the complainant, the adjustment cannot be made because the industry has been closed down and the service connection has been put an end to. Therefore, the further availing of the energy or the question of future consumption charges did not arise in the case of the complainant. Therefore, according to the opposite parties, the amount has been collected and remitted to the Government and as there is no provision for refund of the amount in the G.Os. or in the Act, the complainant is not entitled to the relief asked for. The third opposite party has clearly stated in his letter that the complainant is entitled to the amount and same may be refunded. But having taken such a stand, now, to say, that there is no provision for the refund of the amount will be ridiculous. When there is a provision of collection and when there is a provision of adjustment and when the Government has powers to exempt, it would follow that the Government has powers equal for ordering refund. IN view of the G.Os., it follows that the excess amount has been collected from the complainant by the opposite parties which amount belongs to the complainant, therefore, the complainant is entitled to get a refund of the said amount. The contention that the complainant is not a consumer cannot be accepted. He was a consumer and was supplied energy. When the additional taxes were collected, he was the consumer and as a consumer the amount towards electricity charges and electricity tax and additional taxes were collected. Therefore, in such circumstances when for certain service, certain charges are collected and at later point of time, it is shown that the charges collected are in excess, then it follows that the consumer will be entitled to the refund of the amount and the refund of the amount flows as a consequence to the contract of hire of service and, therefore, it is clear that the provisions of Consumer Protection Act would apply to the facts of the case. Having exempted the users from paying the additional electricity tax for a period and having collected the amount, it is a duty of the supplier to refund the amount and failure to refund would amount to deficiency in service since it is a spill-over from the contract of service entered into between the parties. The other contention that the complaint is barred by limitation is without any merit. For the complainant has been writing to the opposite parties demanding them to return the amount. The third opposite party has also written on 7.7.1994 recommending the refund of the amount to the first opposite party. The first opposite party has not chosen to send any reply. Therefore, in such circumstances, it cannot be stated that there is any bar of limitation since the liability of refund would continue. It is only on 31.8.1999, the complainant was informed that there is no provision in the Tamil Nadu Electricity (Taxation on Consumption) Act, 1962 for refund of additional tax and the complaint has been laid on 7.12.1999. Therefore, there is no question of limitation at all. In fact, the National Commission has held in decision reported in 2002(1) CPR 167 (NC), Haryana State Electricity Board v. Bhagwat Prasad, that where Electricity Board is found to have charged certain amount illegally, it is liable to refund the amount with interest rather than to adjust it in future bills. Though the charging of the amount here is not illegal, the failure on the part of the opposite parties to refund the amount in spite of demands and after issuance of the G.Os., is definitely an illegal act and, therefore, they are bound to refund the amount with interest.

THE complainant has sought for a direction for refund of Rs. 2,24,600/-. While according to the letter of the Superintending Engineer, it is Rs. 1,27,000/-. In the version, the first and second opposite parties have admitted in paragraph 7 that the total remittance made by the complainant during exemption period was Rs. 2,24,600/-. THErefore, with regard to that claim, there is no dispute. THE complainant has asked for interest on the said amount at 24% per annum and calculated a sum of Rs. 2,96,472/- towards the same. He had further asked for a sum of Rs. 1 lakh towards compensation for loss and inconvenience and Rs. 30,000/- towards expenses incurred by way of correspondence and trips between Pudukottai and Chennai. Since the opposite parties had the benefit of the amount with them, they are bound under law to pay interest on the sum by way of compensation which we would work out at 8% per annum from 1.9.1999. As regards the sum of Rs. 30,000/- though we can presume that certain expenses would have been incurred, in the absence of any further materials, it is not possible to quantify the same. As regards the claim of Rs. 1 lakh towards the irreparable loss, inconvenience and hardship, in the circumstances, we can only direct the opposite parties to pay a sum of Rs. 1,000/- under the head. We also feel that the opposite party must be directed to pay a cost of Rs. 2,000/- to the complainant. In the result, we accept the complaint in part and direct the opposite parties to refund the sum of Rs. 2,24,600/- with interest at 8% per annum from 1.9.1999 and also pay a sum of Rs. 1,000/- as compensation under the head of loss, inconvenience and hardship and a sum of Rs. 2,000/- towards costs. The amount as ordered above shall be paid within two months hereof. Complaint partly allowed.