- (1.) THIS order will dispose of various writ petitions as per the details given in Schedule-A to this order. All these cases are disposed of by this common order since the questions involved are same in all these cases.
(2.) THE submission of the learned counsel for the petitioners is that in accordance with the provisions of Section 59 of the Electricity Supply Act, 1948, general principles for Board finance have been enumerasted. THE submission of the learned counsel for the petitioners is that previously the excise duty was payable on the electricity generated and the tariff was revised by 5 paisa to include excise duty, which was levied under Item 11-E of the Central Excise Tariff. THE position continued and by notification dated 1. 10. 1984 the excise duty was withdrawn by the Central Government and thus in respect of the period from 1. 10. 1984, the tariff remaining the same, the respondents have collected 2 paisa per KWH in respect of the excise duty, which was already included in the tariff structure and the said amount has not been paid to the Central Excise Department. THE tariff was revised on 14. 7. 1985 and till then the respondents have collected the excise duty in the tariff as a components of the price. Mr. K. K. Sharma has also submitted that collection of excise duty is without the authority of law and violative of Article 265 of the Constitution of India. According to him, a tax which has been taken directly or indirectly even if it has not been shown separately in the bill would be covered under Article 265 of the Constitution of India. It is submitted that in the budget provisions submitted to the State Government, the excise has been taken as an item of expenditure and, therefore, it must be considered that the said amount has been collected from the petitioners. Mr. Rastogi appearing on behalf of the respondents has drawn my attention towards the provisions of General Conditions of Supply and Scale of Miscellaneous charges relating to supply of electricity. Under clause 22 (d) it has been provided that the rates set out in the schedule of rates which do not include any tax duty or other direct or indirect charges on the electrical energy that may be payable in accordance with any law in force, such charges will be payable by the consumer in addition to the tariff charges. A copy of the bill for consumer has also been shown to support his contention that whenever any tax or duty is payable it has separately been charged and in the present case since there was no collection of excise duty at all for the period from 1. 10. 1984 onwards, the question of any refund does not arise. Copies of the revised budget estimate have also been produced. According to the said budget estimate for the year 1984-85 the figure was taken at Rs. 245 lacs and since excise with withdrawn from 1. 10. 1984, the revised estimates were reduced to Rs. 200 lacs. It is submitted that the Electricity Board is already in loss and the amount collected from the consumers has gone to the cost of fuel and other expenditure and has neither been retained by the Electricity Board nor is a profit to the Electricity Board. I have considered the arguments of both the sides. It is a fact that the budget estimates have to be approved by the respondents and in that, the element of excise duty was duly mentioned as one of the components. The amount of excise duty which is mentioned in the budget estimate was an item of expenditure. It is also clear that in none of the bills the amount of excise duty has been charged separately. If the amount of excise duty is collected and the same in not payable then the petitioners would have been entitled for refund of the same. The burden was on the petitioners to prove that the excise duty was collected during the period 1. 10. 1984 onwards. Simply because the excise duty was taken into consideration in the budget estimate, it will not lead to any inference that the excise duty has been collected. In any case, once the budget estimates have been revised for the year 1984-85 itself, the allegation that the excise duty has been collected, has no substance. The question of refund to the consumers or application of the provisions of Article 265 would arise only when the amount has actually been collected. The provisions of section 49 of the Electricity (Supply) Act, 1948 which provide for the sale of electricity by the Board to the persons other than licencees, have given the guidelines for fixing tariffs. In accordance with the provisions of Section 59 the tariffs are to be adjusted in a manner so that the total income and expenditure are equalised. Earlier, there was a provision that the surplus cannot be more than what the Government may notify, but subsequently by an amendment of 1983 it was fixed at 3% and therefore, there would not a surplus of more than 3%. The annual financial statements, which are required to be submitted to the Government have to contain the details with regard to the receipt and expenditure for the ensuing year and that statement has to be laid on the table of the Legislature. The action of the respondents in revising the estimates immediately after withdrawal of the excise duty shows their bonafide that the said amount is not intended to be retained by them and the entire income was applied only in respect of the various items of expenditure mentioned in the statements.
(3.) THE submission of Mr. Kuhad that the consumer can claim the refund and the Board was a trustee in collecting the excise duty and in view of the decisions in Soft Beverages (Pvt) Ltd. vs. Union of India and another (1) and Madras Aluminium Co. Ltd. vs. Union of India (2), the amount of duty is refundable with interest have no application in the facts and circumstances of the case. The scope of the provisions of Sections 59 and 49 of the Electricity (Supply) Act, 1948 have been considered by the Hon'ble Supreme Court in the case of Hindustan Zink Ltd. vs. Andhra Pradesh State Electricity Board (3) wherein it has been held that laying annual financial statement containing the particulars of traffic revision before the legislature effectively controls the exercise of delegated power by the Board. It has further been held that the Board is entitled to generate reasonable surplus even in absence of specification of quantum of surplus by the State Government so long as it acts as a public utility enterprise and not as a. . . . . It has not been established that the respondents have collected the excise duty in addition to the tarriffs for the supply of electricity or that the said excise duty was included in the tariff and was thus collected from the petitioners. The petitioners have submitted that the tariffs have been revised from 14. 7. 1985 and from that date no claim is made. The dispute is only for the period from 1. 10. 1984 to 14. 7. 1985 and it has not been established that the excise duty was collected by the respondents from the petitioners. On the contrary, from the revised budget estimate submitted by the respondents proves that they have excluded the element of excise duty from the day it was withdrawn by the Central Government in their budget estimate. When the budget estimates are prepared and various items of expenditure are taken into consideration for the cost of production, it does not mean that the income which is received by the respondents by way of supply of electricity to the consumers relates to each of such item. The different items are only the criteria for fixing the rate, but not the proof that the amount is collected from the petitioners separately in respect of those various items. One charge from the petitioners, which is the tarriff rate and how that tarriff rate is arrived at is provided in the Act itself. The various factors, which have to be taken for fixing the tarriff are mentioned in the Section itself, so that there may not be any arbitrary fixation of the tariff. In the present matter since the revised estimates were submitted in which even the element of excise duty from 1. 10. 1984 has been excluded, it cannot be presumed that the excise duty has been collected by the respondents from the petitioners. Even for the purpose of claiming refund of excise duty it should have been proved that the excise duty has been collected by the respondents from the petitioner, which they have failed to prove. ;