TaxTMI 
TaxTMI 
2010 (10) TMI 1262
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....ial unit engaged in production of rice and thus the Petitioner is a consumer having contract load/demand of 99 KW and it was classified as medium industry relating to supply of power with a contract demand of 99 KW as the same is below 110 KW. The Petitioner's industrial unit was inspected by the Executive Engineer (in-charge) and the S.D.O., Electrical MRT Division, Jeypore on 10.6.2009 and dump was conducted. Basing upon the results found from the dump showing increase in the connected load, the opposite party No. 1 issued an intimation bearing No. 853 dated 25.7.2009 intimating the Petitioner regarding unauthorized use of electricity Under Section 126 of the Act, i.e., by means not authorized by licensee (over drawal of maximum demand) vide Annexure-3. On the same day, the Petitioner has been issued and served with a provisional assessment order bearing No. 854 dated 25.7.2009 under Annexure-4 by the opposite party No. 1 whereby the Petitioner has been assessed provisionally fastening liability to the extent of Rs. 7,77,300/- for the period from June, 2008 to August, 2009 treating the Petitioner as a large industry on the ground that as per the dump report, the maximum deman....
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....sh the intimation under Annexure-3 and the provisional assessment order under Annexure-4 as well. 4. Per contra, the learned Counsel for the opposite party No. 1 has submitted that vide Notification bearing No. 4982-R & R-II-16/2003 dated 21.5.2004, the Executive Engineer of the electrical Division is empowered and having authority to assess the loss incurred by the company due to unauthorized use of electricity. He submitted that the provisional assessment order has been made as per the dump report of MRT Division dated 10.6.2009 wherein it was found that the Petitioner's industrial unit had consumed more power beyond the agreed quantum since 4.6.2008 and the MRT report speaks that the power consumed have raised to the average 117 KVA per month. He submitted that as per Section 126(5) of the Act, if the Assessing Officer reaches at the conclusion that the unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period ....
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.... use of electricity' alleging 'over drawal of maximum demand' ? Section 126 of the Act provides for assessment which runs as under: Section 126-Assessment- (1) if on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use. (2) The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed. (3) The person, on whom an order has been served under Sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. (4) A....
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....s 'unauthorized use of electricity' which is exhaustive because it defines what the 'unauthorized use of electricity' is. As per the aforesaid definition, the 'unauthorized use of electricity' can said to be taken place if there is unauthorized use of electricity by any artificial means or by a means not authorized by the concerned person or authority or licensee or through a tampered meter or for the purpose other than for which the use of electricity was authorized or for the premises or areas other than those for which the supply of electricity was authorized. 6. In the instant case, the assessment under Sub-section (1) of Section 126 has been undertaken on the allegation of unauthorized use of electricity leading to over drawal of maximum demand. But this Court does not find that the 'over drawal of maximum demand' comes under any category as defined under the statute for 'unauthorized use of electricity' and therefore, this Court holds that 'over drawal of maximum demand' does not come under the definition/meaning of 'unauthorized use of electricity' as per Sub-clause (ii) of Clause (b) to Explanation appended to Secti....