- (1.) 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 4 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 in 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.1,55,314.00 has also been challenged with further prayer to direct the respondents to refund the petitioner a sum of Rs.77,657.00 already realised on account of Minimum Guarantee Charges.
(2.) The case of the petitioner is that it opened 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 became 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 up to 500 KVA, exemption from electricity duty for five years on captive power generation up to 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 (vi) 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 Registration No. 11/Ind. Rugna Ikai/U.Ni./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, B. S. E. B. 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.1,55,314.00 having raised by bill dated 12-5-2000 for the year 1999-2000, the petitioner preferred a writ petition before this Court being C. W. J. C. 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 the 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 5 Rs.77,657/- in respect to which prayer for refund has been made.
(3.) 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 under section 49 of the Electricity (Supply) Act, 1948. The consumer is also contractually bound for payment of AMG charges, 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.1,55,314.00, is not maintainable and the same is rejected.";