TaxTMI 
TaxTMI 
TaxTMI 
2010 (4) TMI 1244
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....ity of the unit. A linkage was provided for supply of coal after an agreement was entered in this regard by the petitioner and the respondents. Initially the linkage was granted on an ad hoc basis for six months and thereafter on a joint inspection carried out by a team constituted by Coal India Ltd., recommendation for 4692 M.T. per month allocation of coal was decided in favour of the petitioner. The earliest letter granting linkage is dated 10.5.1999 and is annexure-1 to the writ application. It is the stand of the petitioner that the smokeless fuel manufacturing unit was set up upon the assurance and promise of the Coal India Ltd. to supply coal and large scale investment was made on that assurance. Coal India Ltd. is the main source of supply and the survival of the unit is dependent upon regular supply of coal to the petitioner from time to time. Earlier the distribution and regulation of coal and its price was controlled by what is known as Colliery Control Order 1945 but subsequently the same was replaced by Colliery Control Order 2000 which was duly notified in the Gazette on 1.1.2000. Coal India Ltd. in order to regulate the distribution of coal categorized the consumer....
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....in this regard. A new coal distribution policy dated 18.10.2007 came to be notified. One of the salient features of the new coal distribution policy is that the classification of consumers into Core and Non-Core Sector have been done away with and the linkage system has been replaced with more transparent bilateral commercial arrangement which is known as Fuel Supply Agreement. All the existing valid linked consumers whose linkage/MPQ during the year 2006 and 2007 was 4200 tons or more have to enter into Fuel Supply Agreement with the Coal Companies not later than six months from the date notified by the Coal India Ltd. Failure to enter into agreement would result in discontinuation of supplies at fixed price. Another aspect which must be noted is that 75% of the quantity of normative requirement of the consumers would be considered for supply through Fuel Supply Agreement at a notified price to be fixed or declared by the Coal India Ltd. and the balance 25% would be sourced by units through E-Auction or import of coal. Government of India, Ministry of Coal has been notifying the price of coal from time to time and the Coal Companies have been charging price of those coals from v....
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....ally without any notice or information to the linked consumers. Some of the sale orders which have been annexed as annexure-4 to the writ application reflect that position. It is the charging of 20% over and above of notified price that has brought the present petitioner before this Court challenging the said act of the respondents. The first contention of the petitioner with regard to 20% extra price being charged from the petitioner is that it has no legal basis or foundation for doing so. The action of the respondent is discriminatory and violative of Article 14 of the Constitution of India because of all the consumers only the linked consumers have been targeted by the Coal Companies to charge 20% extra price over and above the notified price. There is no separate notification either by Government of India or the Coal Companies themselves. According to the petitioner the object and purpose of realizing this 20% extra price from the linked consumers is with the purpose of compensating the Coal Companies for the refunds which they were compelled to make in terms of the direction of the Hon'ble Supreme Court. Charging of 20% extra price over and above the notified price is in th....
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....oal Company has also brought on record the so called opinion of the Additional Solicitor General of India as a proof of justification for charging 20% extra price over and above the notified price from the linked consumers. The stand of the respondents or their justification is not understood by this Court because on meticulously going through the coal policy as well as the opinion of learned Additional Solicitor General there is no reflection whatsoever that any advise was given or any provision was made in the interim coal policy to charge 20% extra price over and above the notified price from the linked consumers. The issue of charging of excess price only from the linked consumers in absence of any recommendation or approval of Government of India as well as in absence of any notification having been brought to the notice of the Court the act and conduct of the respondent Coal Companies obviously seems to be an innovation of the Coal Companies itself. Even in the supplementary affidavit filed by the respondents they have not brought on record any decision or deliberation of the kind on record to show the circumstances, authority or justification under which they were authoriz....