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2004 (3) TMI 764

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..... and not to service and entertainments units; iii. To existing units for substantial expansion/ modernisation / diversification. The concession in such cases will be available only for the consumption of the new machinery and equipment which add to the capital asset, by not less than 25 % of the existing fixed capital investment excluding land and building the installation of which is to be certified by the competent authority. iv. For modernisation, to industrial units having a contract demand not exceeding 500 KVA. In such cases, new equipments alone will be eligible for the concession. The Government order also indicated that the eligibility for the concessions would have to be certified by the Kerala State Industrial Development Corporation (KSIDC) / Kerala Financial Corporation (KFC) in respect of units funded by them, or by the Director of Industries and Commerce in other cases, and by the concerned General Manager, District Industries Centres in respect of Small Scale Industrial units. It was also declared in Government order that the industrial units which set up their captive power generating units for their own consumption would be exempted from payment of elect .....

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..... ion to a power intensive industry like steel producing unit and said if the situation improves, the application of M/s Southern Ispat Ltd., can be taken up . The said reply was forwarded to the appellant by the office of the Regional Development Commissioner for Iron and Steel. By a letter dated 10.9.1996 addressed to the appellant the KSEB sanctioned power allocation to the extent of 1950 KVA at 11 KV with contract demand of 1950 KV to the appellant's factory. The allocation was made subject to the following conditions: 1. Supply is liable to be restricted or cut of during power shortage period after giving notice. 2. Power should not be used for industrial purpose between 6 P.M. to 10 P.M. or any other restrictions necessitated by local condition or otherwise when imposed should be strictly complied with. 3. Charges payable as minimum will have to be paid even if power is not availed of within three months from the date on which the readiness of the Board to supply power to you is intimated. 4. Specific provision regarding the above condition will be incorporated in the service connection agreement. 5. You have to execute a power supply agreement in the f .....

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..... eputy Chief Engineer, Electrical Circle, Palakkad thanking him for the inspection of the work site on 12.11.1996. It also enclosed a Charted Accountant's certificate detailing the investment of ₹ 379.68 lakhs and a photocopy of KSIDC's letter dated 11.11.1996 giving full details. Finally, the letter requested permission to deposit the amount of ₹ 8,73,200 at Electrical Major Section, Parali so that the construction of line may begin. A copy of the letter from KSIDC requesting expedition and commission of the project was also forwarded. Apprehending that the KSEB was deliberately delaying the matter, so that the appellant would not be able to carry out commercial production before the cut off date of 31.12.1996, the appellant submitted a scheme to the Government of Kerala for generation of 125 KVA electrical energy by installation of a diesel power generating set in its factory. By the letter dated 6.12.1996 of the Chief Electrical Inspector to the appellant sanction for the scheme was granted subject to the following conditions: 1. Copy of Power allocation sanction for additional loads if required should be obtained from the K.S.E.Board/ Licensee and a co .....

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..... nction was accorded for an estimate amounting to ₹ 13,10,000 for modification of sub-station for providing 11 KV Outlet at 110 KV sub-station, Parali and registered as 21/96-97. It was directed by the order that the cost on account of this had to be met from the deposit to be made by the beneficiary under OYEC Scheme. On 13.12.1996 the appellant gave a declaration to the KSEB that the private generator set installed at the premises of its factory would not be synchronised with KSEB board mains and that a meter would be installed. On the same day the agreement on stamp paper of ₹ 60 was forwarded to the Assistant Executive Engineer, Electrical Major Section, Parli, Palakkad for being processed. He was also requested to intimate the amount to be deposited towards security. On 16.12.1996 the appellant deposited a sum of ₹ 13,10,000/- with the KSEB as directed in the order of the Chief Engineer. The appellant moved the High Court of Kerala by O.P. No.6456/1997 seeking a writ of Mandamus directing the KSEB and its officers to take urgent and immediate steps to give sanctioned power connection to the appellant's factory at Kottayi and also sought an interim or .....

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..... made no grievance, nor took any other steps. The appellant moved a writ petition No.OP 9007/1999 before the High Court of Kerala challenging the bill for charges for electrical energy supplied to the appellant's industrial unit at rates in excess of the pre-1992 tariff rates. This writ petition was moved on 31.3.1999 and challenged the invoice no.23602 dated 23.3.1999 by which the appellant was called upon to pay a sum of ₹ 2,28,578/- towards consumption of electricity during the month of February, 1999. By a judgment dated 3.7.2001 the learned single Judge who heard the writ petition dismissed the writ petition holding generally that appellant had not complied with the conditions subject to which power supply at concessional tariff rates have to be made. Being aggrieved thereby, the appellant filed writ appeal no.2614/2001 which was dismissed by the Division Bench by the judgment impugned before this Court. It is contended by the appellant that the delay in sanction and supply of electric supply was only on account of the tardy manner in which the KSEB functioned. It is also urged that, despite the lethargy shown by the KSEB, to meet the deadline the appellant had instal .....

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..... were being refused. The high tension power supply required by the appellant had to be specially arranged by drawing the electrical lines on the OYEC basis by construction of PSC polls along the line at the Appellant's cost. This amount was deposited on 11.12.1996, only a few days before the concession was about to lapse. Having examined the correspondence on record, we are not in a position to accept the contention of the appellant that the respondents had acted with undue tardiness or lethargy. Further, the remittances of ₹ 8,54,700/- and ₹ 3,45,200/- made by way of security deposit for executing the power supply agreement were actually made on 1.2.1997 and 4.2.1997, after the expiry of the period of concession. The KSEB made the power allocation on the specific condition that power would be supplied subject to drawing of 11 KVA exclusive feeder line from 110 KV Parali station under the OYEC scheme. The electric wiring was completed in the factory of the appellant and the wiring contractor submitted completion certificate on 29.8.1998. There were some deficiencies which were rectified by the appellant only on 1.12.1998. The electrical inspector is required to s .....

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..... accepting this certificate as conclusive. Firstly, the certificate has been issued only on 11.9.1998. The certificate is issued To whom so ever it may concern . There is no reference to the electrical inspector's findings on the matter of conditions of appellant's high tension installations, which was a pre-requisite for the KFC to issue a proper certificate for the purpose of entitlement to the pre-1992 tariff concessions. There is nothing to show that the KFC had made any inquiry of their own. On the contrary, as the certificate shows, the certificate appears to have been issued merely on the basis of record produced by the company. The record produced by the company could not have shown that the appellant company had started commercial production. The High Court has also disbelieved and rejected the other documents relied upon in support of the appellant's case of commencing of commercial production prior to 31.12.1996. The High Court points out the fact that promoters of the appellant company had a factory at Raipur in Madhya Pradesh and the possibility of the Appellant having bought manufactured goods from there and sold them within the State of Kerala to crea .....

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