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2023 Supreme(Cal) 1157
IN THE HIGH COURT AT CALCUTTA
Sabyasachi Bhattacharyya, J.
INOX Air Products Private Limited - Petitioner
Versus
Director of Industries, Directorate of Industries, Government of West Bengal and others
WPO No. 1230 of 2023
Decided On : 27-07-2023
Advocate Appeared:
For the Petitioner: Mr. J. P. Khaitan, Sr. Adv., Ms. Dipali Sheth, Adv., Mr. Indranil Banerjee, Adv., Ms. Subham Mehta, Adv., Mr. Subrata Mukherjee, Adv.
For the Respondent: Mr. Somnath Ganguli, A.G.P., Mr. Vivek Basu, Adv., Mr. Paritosh Sinha, Adv., Mr. Suddhadev Adak, Adv., Mr. Prasun Mukherjee, Adv., Mr. Deepak Agarwal, Adv.
The definition of PIUs in the 2005 Scheme is not relevant for defining PIUs for the purpose of the 2013 Scheme.
Headnote:
ELECTRICITY DUTY - WAIVER - POWER INTENSIVE UNITS - DEFINITION - APPLICABILITY: The 2013 Scheme, as amended in 2014, is an independent scheme that does not require power to be drawn from state authorities, particularly the WBSEB, for eligibility. The definition of Power Intensive Units (PIUs) in the 2005 Scheme, which is referred to in the 2013 Scheme, is not relevant for defining PIUs for the purpose of the 2013 Scheme. The applicability clause in the 2005 Scheme, which relates power drawal to the WBSEB, is not relevant for defining PIUs under the 2013 Scheme. Clause 7.1 of the 2005 Scheme, which pertains to entitlement for incentives, defines PIUs as units drawing power through HT (33 KV) and EHT (above 33 KV) connection having an actual monthly maximum demand of 1500 KVA and above.
Fact of the Case:
The petitioner, a private company engaged in the manufacture and supply of industrial gases and medical oxygen, sought the benefit of a waiver under the West Bengal State Support for Industries Scheme, 2013 (2013 Scheme) for waiver of electricity duty. The petitioner's application was rejected by the respondent authorities on the ground that the petitioner did not meet the applicability criteria of the 2005 Scheme, which was referred to in the 2013 Scheme for the definition of Power Intensive Units (PIUs).
Finding of the Court:
The court held that the 2013 Scheme is an independent scheme that does not require power to be drawn from state authorities, particularly the WBSEB, for eligibility. The court further held that the definition of PIUs in the 2005 Scheme is not relevant for defining PIUs for the purpose of the 2013 Scheme. The court also held that the applicability clause in the 2005 Scheme, which relates power drawal to the WBSEB, is not relevant for defining PIUs under the 2013 Scheme. The court found that the petitioner met the definition of PIUs under Clause 7.1 of the 2005 Scheme and was therefore entitled to the waiver under the 2013 Scheme.
Issues: Whether the 2013 Scheme is an independent scheme that does not require power to be drawn from state authorities, particularly the WBSEB, for eligibility. Whether the definition of PIUs in the 2005 Scheme is relevant for defining PIUs for the purpose of the 2013 Scheme. Whether the applicability clause in the 2005 Scheme, which relates power drawal to the WBSEB, is relevant for defining PIUs under the 2013 Scheme.
Ratio Decidendi: The court held that the 2013 Scheme is an independent scheme that does not require power to be drawn from state authorities, particularly the WBSEB, for eligibility. The court further held that the definition of PIUs in the 2005 Scheme is not relevant for defining PIUs for the purpose of the 2013 Scheme. The court also held that the applicability clause in the 2005 Scheme, which relates power drawal to the WBSEB, is not relevant for defining PIUs under the 2013 Scheme. The court found that the petitioner met the definition of PIUs under Clause 7.1 of the 2005 Scheme and was therefore entitled to the waiver under the 2013 Scheme.
Final Decision: The court allowed the writ petition and directed the respondent authorities to immediately start giving the benefits of the waiver to the petitioner from the next billing cycle. The court also directed the DVC to disburse the entire amount due to the petitioner from October 1, 2013, till the current billing cycle, by adjustment with the monthly bill to be payable by the petitioner.
JUDGMENT :
1. The petitioner is a private company engaged in the business of manufacture and supply of industrial gases and medical oxygen and is a consumer of the respondent no.4, the Damodar Valley Corporation (DVC). In the area within West Bengal where the petitioner consumes electricity for running its industry, there is no other power distributor except the DVC, as per the petitioner.
2. The present dispute arises with regard to the entitlement of the petitioner to get the benefit of waiver under a subsidy scheme floated by the Government of West Bengal, namely, the West Bengal State Support for Industries Scheme, 2013 (as amended up to 12.09.2014)(hereinafter referred to as, “the 2013 Scheme”).
3. Clause 9.4 of the 2013 Scheme provides that, along with other units, Power Intensive Units (PIUs) “as defined in WBIPS 2005” will be entitled to receive waiver of electricity duty with any ceiling under the 2013 Scheme, and also for percentage of waiver in terms of the sub-paragraph 7.2 of 2013 Scheme. Sub-paragraph 7.2 deals with waiver of electricity duty.
4. The petitioner applied for the benefits under the 2013 Scheme. After initial reluctance on the issue and several applications being filed in that regard by the petitioner, the Government of West Bengal, Directorate of Industries, communicated to the petitioner-Company that the petitioner?s appeal to consider its above unit as PIU cannot be granted, as it will violate Clause 6.1 of Part B of the Notification of WBIPS 2005.
5. Learned senior counsel appearing for the petitioner contends that the said ground of refusal is de hors the law as well as both the Schemes. It is argued that in terms of Clause 9.4, PIUs as defined in WBIPS 2005 (the 2005 Scheme) would be entitled to the waiver under the 2013 Scheme. Such expression, it is argued, refers only to the definition of the PIUs under the 2005 Scheme, and not the applicability clause thereunder.
6. Clause 6.1, which has been cited by the respondent-Authorities, provides that the 2005 Scheme shall be applicable to all large scale units and also for expansion of existing units on or after July 16, 2004 drawing power from West Bengal State Electricity Board (WBSEB). The applicability of the 2005 Scheme has, thus, been restricted to companies/undertakings that draw power from the WBSEB.
7. Learned senior counsel argues that such interpretation of the respondent-Authorities, which is that the 2005 Scheme would apply in its entirety even to the 2013 Scheme, is absurd and is negated by the 2013 Scheme itself.
8. In Clause 15 of the 2013 Scheme, pertaining to repeal and saving, it is clearly enumerated that the WBSSIS 2008 (as amended up to 01.01.2013), shall be repealed and stand substituted by the 2013 Scheme from the date of commencement of the 2013 Scheme.
9. As to the contention of the State that the Scheme is only applicable to units drawing power from the WBSEB, which is owned by the State, as the contemplation of the subsidy is to reimburse the beneficiary, is also de hors the law, it is argued.
10. Learned senior counsel places reliance on the difference in the specific language of the 2013 and the 2005 Schemes. Whereas the subsidy sought by the petitioner under the 2013 Scheme, as stipulated in Clause 9.4 thereof, comprises of waiver of electricity duty, the 2005 Scheme, with regard to similar units, is comprised of incentive in the form of reimbursement from the State Government. It is argued that the concept of reimbursement obviously connotes that the payment is being made by the State Authorities, for which the payment is to be made by the State in the first place. However, in case of the 2013 Scheme, a waiver of electricity duty can be given by any distributor from which the unit gets supply, subject to mutual arrangement between the State and the distributor.
11. Learned senior counsel further places reliance on the Bengal Electricity Duty Act, 1935 (for short, “the 1935 Act”). It is argued that in terms of the definition in
