The proviso to Sec. 8 of the Electricity Duty Act, 2016 was interpreted as an exception or qualification to the principal provision, allowing the authorities under Sub-Sec. (1) to decide all types of claims for exemption of electricity duty, including those under any policy resolution of the State Government.

JUDGMENT

KRUSHNA RAM MOHAPATRA,J. - This matter is taken up by virtual/physical mode.

2. Petitioner being a Private Limited Company calls in question the inaction of the authorities under the Electricity Act, 2003 (hereinafter referred to as "Electricity Act') and Odisha Electricity (Duty) Act, 1961 (herein after referred to "Electricity Duty Act') in considering its representation dtd. 5/8/2021.

3. Before delving into the issue involved in this writ petition, it would be profitable to deal with certain relevant provisions of the Electricity Duty Act (pre and post-amended) for adjudication of the writ petition.

3.1 Sec. 8 of the Electricity Duty Act, 1961 reads as follows:-

"Disputes between the licensee and the consumer-

(1) The Chief Electrical Officer or such other officer not below the rank of an Assistant Engineer or an Assistant Electrical Inspector as may be authorized by the State Government in that behalf shall have the power to decide all disputes relating to the liability for payment of the electricity duty or exemption therefrom.

(2) Subject to the decision in appeal before such authority as may be constituted by the State Government in that behalf by a notified order, preferred within three months from the date of the order under sub-sec. (1), such order shall be final"

Subsequently, the Electricity Duty Act was amended and published in Gazette Notification dtd. 5/11/2016, which received the assent of the Governor of Odisha on 3/11/2016. Amended provisions of the Odisha Electricity (Duty) Amendment Act, 2016 reads as under:-

"(1) The Chief Electrical Inspector, Electrical Inspector or Deputy Electrical Inspector as may be authorized by the State Government within the local limit as may be specified in that behalf shall have the powers to decide all disputes relating to the liability for payment of the electricity duty or exemption therefrom:

Provided that in case of any dispute relating to exemption of electricity duty as an incentive under different Policy Resolutions of the State Government, such dispute shall be referred to the Secretary to Government, Energy Department, whose decision shall be final.

(1-a) Any person, aggrieved by the order passed by the authority referred to in sub-sec. (1), may prefer an appeal accompanied with such fee as may be prescribed, before,""

(a) the Principal Chief Electrical Inspector, where the order is passed by the Chief Electrical Inspector;

(b) the Chief Electrical Inspector, where the order is passed by the Electrical Inspector; and

(c) the Electrical Inspector, where the order is passed by the Deputy Electrical Inspector, within one month from the date of the order passed under sub-sec. (1) and the decision in appeal under this subsec. shall be final subject to appeal, if any, preferred under sub-sec. (2):

Provided that no appeal shall be admitted unless the appellant makes a deposit of fifty percentum of the amount disputed.

(c) in sub-sec. (2), for the words, figure and bracket "under sub-sec. (1)", the words, figure and bracket "under sub-sec. (1-a)" shall be substituted"

4. As reveals from the writ petition, the Petitioner-Company is engaged in the business of production and export of Aluminum. It has set up its processing unit, "Aluminum Smelter' within the Special Economic Zone (SEZ) area under the provisions of Special Economic Zone Act, 2005 (hereinafter called "SEZ Act'). Claiming exemption from levy of electricity duty upon auxiliary consumption of 3 x 600 MW Captive Generating Plant (CGP), i.e., Units- I, III and IV and refund of money already deposited towards electricity duty along with applicable interest, the Petitioner-Company made a representation to the Chief Electrical Inspector, Sambalpur-Opposite Party No.2 stating inter alia that electricity generated by the Captive Generating Plant (CGP) within Domestic Tariff Area is being consumed by its Aluminum Smelter situated within SEZ area. Hence, the auxiliary energy consumption should be exempted from levy of electricity