DALMIA BHARAT SUGAR AND INDUSTRIES LTD. Vs. NATIONAL LOAD DESPATCH CENTRE AND UTTAR PRADESH NEW AND RENEWABLE ENERGY DEVELOPMENT AGENCY

JUDGEMENT

(1.) THE petitioner, Dalmia Bharat Sugar and Industries Limited has filed the present petition against non -issuance of Renewable Energy Certificate by NLDC for generation of biomass based power plant under Central Electricity Regulatory Commission (Terms and Conditions for Recognition and Issuance of Renewable Energy Certificate for Renewable Energy Generation) Regulations, 2010 (REC Regulations). The petitioner has made the following prayers in the petition:

(2.) THE petitioner has submitted that NLDC's decision to deny issuance of RECs to the petitioner cannot be sustained for the following reasons:

(3.) DURING the hearing, learned counsel for the petitioner submitted that UPNEDA in its letter dated 23.3.2013 has confirmed that electricity duty for self -consumption is not leviable in the State of UP based on a clarification dated 12.3.2013 from the Govt. of UP. Learned counsel submitted that the Govt. of UP has clarified that electricity duty on self consumption was abolished vide notification dated 6.2.1998 and the subsequent notification dated 13.9.2012 has not reintroduced the provisions of electricity duty on self -consumption and the policy of such abolition continues to be effective. Learned counsel submitted that as per the second proviso to Regulation 5(1) of the REC Regulations, a CPP should not have "availed or proposes to avail" any benefit in the form of waiver of electricity duty. This restrictive proviso becomes operative only when such generator "avails" the benefit by choice. However, in the present case, non levy of electricity duty on all forms of self consumption was introduced by the State Government as a matter of policy, and therefore, there was no choice to such generators to avail it or to forgo it. Such policy measures are introduced by State and can only be taken away by the State. The generators are not at freedom to "avail" or "forgo" it. Besides, there is no such forum where generators can deposit such duty. Under Article 265 of the Constitution of India, no tax can be levied or collected without authority of law. Therefore, the RE generator cannot deposit the electricity duty even if they want to, in the absence of any notification to that effect by the State Government. In the written note of argument, learned counsel for the petitioner has submitted that the Commission vide Notification dated 10.7.2013 has amended the REC Regulations under which 'waiver of electricity duty' as a disqualification for grant of REC has been removed. It has been argued that such an amendment is clarificatory in nature and applies even to the period prior to the amendment of REC Regulations. In this connection, reliance has been placed on the judgment of the Supreme Court in Zile Singh v. State of Haryana { : (2004) 8 SCC 1}.