AC ZONE PVT LTD Vs. SUPERINTENDING ENGINEER

JUDGEMENT

(1.) CHALLENGING the order of the 1st respondent dated 31.12.2004 confirming the assessment order issued by the 2nd respondent dated 17.07.2004, the petitioner has filed this writ petition.

(2.) THE petitioner, a Company incorporated under the Companies Act is carrying on the business of sales and service of Air Conditioners. THE petitioner has stated that they occupied the premises comprising ground and first floors situated at No.2, Mahalinga Chetty Street, Nungambakkam, Chennai 600 034, as a lessee in August 2003; the premises is owned by Mrs.Hadhiz Faliha and the electricity connection stands in the name of the previous owner, Mrs.G.Lalitha. According to the petitioner, they have been prompt in paying the electricity bills. THE impugned demand is made on the said Mrs.G.Lalitha and on the petitioner in their capacity as Enjoyer and according to the petitioner, it is with respect to the electricity service connection for the first floor and that the consumption charges for ground floor is higher compared to that of the first floor and it was increasing every month. 2a. THE petitioner has further stated that during the middle of June 2004, they noticed wire melting in the meter box and on their complaint to the respondents, the wire was replaced. Prior to their complaint made on 19.06.2004, the respondents inspected the premises and took electricity meter reading. According to the petitioner, the last meter reading was taken by the respondents on 19.06.2004 and a sum of Rs.7,446/- was levied towards electricity consumption charges. It is the further case of the petitioner that on 24.06.2004, about 12.30 pm, i.e., after 5 days from the date of recording the bimonthly meter reading, the third respondent made a sudden visit to their premises along with their officials to check the meter. After checking the meter, the petitioner was informed that the electricity meter bearing connection No.171-039-109 was tampered with inasmuch as the seals were found removed. 2b. THEreafter, the petitioner was served with a show cause notice bearing K.No.AEE/EB/Chetput/7 Na.A./04 dated 23.06.2004 by the 3rd respondent calling upon them to pay a sum of Rs.85,639/- towards extra levy for energy stolen, a sum of Rs.60,000/- towards compounding fee and raise objections if any with the 2nd respondent within seven days. THE demand levied by the respondents in the said show cause notice is on the basis of 180 working days of 12 hours at the connected load of 5.99 kws., thus arriving at 12,939 units. 2c. According to the petitioner, they have paid a sum of Rs.60,000/- towards compounding fee and a sum of Rs.28,639/- towards the alleged extra levy for the alleged theft of energy immediately under protest. THE petitioner has raised objections before the 2nd respondent and the 2nd respondent after hearing them and considering their representation dated 24.06.2004, by order dated 17.07.2004, held that on examination of their explanation to the show cause notice dated 24.06.2004 and the records available at the time of enquiry, it was found that theft of energy was confirmed and directed the petitioner to pay the balance amount of Rs.57,000/- in three instalments of Rs.19,000/- each, between 19.08.2004 and 19.10.2004. 2d. Against the said order of the 2nd respondent dated 17.07.2004, the petitioner preferred an appeal before the 1st respondent urging that (a) they did not have any intention to commit theft of energy (b) they are not carrying on any manufacturing activity (c) they are not carrying on any activity that would require substantial consumption of energy and (d) that the basis for calculating the impugned demand by the 2nd respondent is erroneous. THE petitioner has also stated that they have their show room of Air Conditioners and their service centre is located elsewhere. 2e. According to the petitioner, the formula on which the demand was levied was irrational and without any basis. THE petitioner has also stated that the 1st respondent after considering their representation dated 03.08.2004 and hearing them on 28.09.2004, confirmed the order of the 2nd respondent dated 17.07.2004, except modifying the number of instalments in paying the balance amount into five. Aggrieved by the impugned order passed by the 1st respondent, the petitioner is before this court.

(3.) LEARNED counsel for the petitioner would submit that the petitioner's electricity installation and points such as fans, lights, computer, printer and Air Conditioner do not warrant heavy power consumption and in any event, the petitioner's nature of business does not warrant heavy power consumption nor does it give any room to hold that there is theft of energy. It is his contention that the 1st respondent has held that there is theft of energy on the only ground that the seals were found tampered, but, he has failed to appreciate that merely because the seals were allegedly tampered does not mean that there is theft of energy. 5a. LEARNED counsel would further submit that on 19.06.2004, the respondent Board has taken meter reading at the petitioner's premises and on that day the respondent has not noticed broken seal or tampering of any nature. While so, suddenly on 24.06.2004, the respondents made a surprise visit to the petitioner's premises and alleged that the seal has been tampered and raised the impugned demand on the petitioner. In this regard, it is the contention of the learned counsel that while determining the number of days for which pilferage took place, it has to be kept in mind that the petitioner cannot be held guilty of theft of energy for the period anterior to 19.06.2004. In support of his case, learned counsel for the petitioner has relied on a decision of the Allahabad High Court reported in AIR 1994 Allahabad 386 (M/s.Sharda Oil Industries Pvt. Ltd., Nunaihi vs. Appellate Authority/Superintending Engineer, U.P.State Electricity Board and another). Relevant paragraphs of the said decision are extracted hereunder: