1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4603 OF 1993 The National Rayon Corporation Ltd. ...Petitioners v/s The State of Maharashtra ...Respondents Mr Vaibhav Sugdare with Mr Ricabchand, Mr Ruben and Mr S.S. Suryawanshi i/b M/s Vigil Juris for Petitioners. Mr V.A. Sonpal, AGP for Respondents. CORAM : D.K. DESHMUKH AND A.R. JOSHI JJ. DATE : 2ND MARCH 2010. 2 P.C. :- 1] Though by prayer clause (aa), a declaration is sought that the respondents have no power to levy duty and recover duty in respect of captive consumption of energy, the learned counsel appearing for petitioners stated before us that he is not pressing for that relief. The learned counsel submitted that he is restricting his petition to challenge the order dated 3rd February 1993 passed by the State Government. The relevant facts are that the petitioners had made a representation to the authority under the Bombay Electricity Duty Act 1958 claiming refund of the amount which according to the petitioners was paid by them under a mistake of law. That representation was treated as an appeal by the authority and it was decided by order dated 18th January 1992. The authority found that the case of the petitioners is covered by the decision of the authority in the case of M/s Walchandnagar Industries Ltd. and therefore, for the reasons given in that case, the petitioners were 3 entitled to claim refund of excess electricity duty paid by them. It appears that the State Government in exercise of its power under section 7B of the said Act decided to revise that order. It appears that the show cause notice was also issued to the petitioners and by order dated 3rd February 1993 the State Government set aside the order passed by the authority. It is this order which is challenged in this petition. 2] The learned counsel appearing for petitioners initially submitted that the State Government has no jurisdiction to suo motu revise the order passed by the authority. The learned counsel further submitted that the State Government was not justified in revising that order. The learned counsel submits that in any case the State Government could not have set aside the order passed by the authority because it is clear from the record that the duty was paid by the petitioners under a mistake of law. 4 3] The learned counsel appearing for respondent  State Government, on the other hand, submits that the duty of which refund was claimed was paid by the petitioners from 1978 till 1983 and a representation seeking refund of that amount was made only in the year 1993 and therefore, the claim for refund was clearly barred by the law of limitation because limitation for filing suit for recovery of the amount paid under mistake is three years from the date of payment or from the date of discovery of the mistake. The leaned counsel further submitted that the only ground on which the authority permitted refund was its order in Walchandnagar Industries Ltd. s case. The learned counsel submits that the order of the authority in Walchandnagar Industries Ltd. s case was set aside by the State Government and therefore, the order on the basis of which refund was claimed was itself a non-existent order. 4] The power of the authority to decide the class in which the consumption falls is contained 5 in section 4A of the said Act. Section 4A reads as under :- 4A. Reference for decision to authority - question as to part or clause of Schedule under which any consumption of energy falls:- (1) Where any question arises as to the part or clause in the Schedule to this Act under which any consumption of energy falls, or where the energy is consumed for different purposes what portion of consumption should be governed by such part or clause, the question shall be referred for decision to such authority, as the State Government may by notification in the Official Gazette specify for the whole or any part of the State. The authority after such inquiry, as it deems fit, shall record its decision. (2) The decision recorded by the authority under sub-section (1) shall, subject to any appeal under section 7A to 6 or revision under section 7B by the State Government, and the order of the State Government in such appeal or revision be final. Perusal of the above section shows that the authority empowered by the State Government can decide the question referred to it by the State Government. It appears from this provision that the authority does not have power to entertain representations or appeals directly, the representations or appeals have to be submitted to the State Government which has to make reference to the authority. In the present case, there does not appear to be any reference made by the State Government to the authority. Perusal of sub-section (2) of section 4A shows that the decision of the authority is appealable under section 7A and it is also revisable under section 7B. Perusal of section 7A shows that an appeal against the decision under section 4A can be filed within a period of 60 days to the State Government. Then comes section 7B, 7 which reads as under :- 7B. Revision  Where no appeal is made under section 7A, the State Government may, at any time, suo motu, for the purpose of satisfying itself as to the legality or propriety of the decision of the authority under sub-section (1) of section 4A, call for and examine the record of the case. If it appears to the State Government that any decision so called for should be modified, annulled or reversed, the State Government may, after giving the person affected thereby, an opportunity of being heard, pass such order thereon as it thinks just. Section 7B thus vests power in the State Government to suo motu revise an order made by the authority under section 4A. There is power vested in the State Government to call for records in its suo motu jurisdiction of any enquiry or order made by the authority under section 4A for examining its 8 legality and propriety. The only restriction on that power is to be found in section 7B ifself, that before annulling an order or modifying it, the State Government is obliged to grant an opportunity of being heard to the party concerned. It is common ground before us that the order has been made by the State Government after granting an opportunity of being heard to the petitioners. Therefore, in our opinion, it cannot be said that the order that is impugned in the petition is not within the jurisdiction of the State Government. We also find from the record that the authority had given only one reason in its order for ordering refund. The last paragraph of the order of the authority makes the position clear, which reads thus :- The authority observed that the case of M/s Walchandnagar Industries Ltd. and that of M/s The National Rayon Corporation Ltd. are essentially similar and the Government which is appellate authority has already decided that M/s Walchandnagar Industries 9 Ltd. Should be charged electricity duty at the rate of 1 paise per unit, even after 1.9.1978 vide order dated 24.6.1988 referred to above. Therefore, there seems to be no reason to decide this case differently. The Authority has therefore decided that M/s National Rayon Corporation Ltd., Mohne, Kalyan can be charged electricity duty classifying them as Low Tension consumer in respect of power generated on their own T.G. sets for the period from 1.9.1978 to 30.11.1983 and claim for refund of excess electricity duty paid may be settled accordingly. Perusal of this order shows that only one reason weighed with the authority in ordering refund viz. Its order in the case of Walchandnagar Industries Ltd. s case. It is clear from the observations of the State Government in its order that the order passed by the authority both in the cases of Walchandnagar Industries Ltd. s case as 10 also National Rayon Corporation Ltd. were reversed by the State Government. Thus, the very basis for ordering refund in favour of the petitioners by the authority was wiped out by the orders of the State Government. Therefore, we cannot find any reason to interfere with the order of the State Government setting aside the order of the authority. We find from the order that thereafter, the State Government, instead of remanding the matte back to the authority, went into the merits of the claim and held that on merits also, the petitioners are not entitled to claim refund. We, however, do not propose to go into the correctness or otherwise of the reasons given by the State Government because according to us, if the order passed by the authority in the case of Walchandnagar Industries Ltd. goes, there can be no justification for the authority to order refund in favour of the petitioners after expiry of the period of three years which is the period of limitation for filing a civil suit. In our opinion, the claim for refund made by the petitioners after expiry of the period 11 of three years could have been entertained only for one reason viz. the decision given by the authority in case of other industry viz. Walchandnagar Industries Ltd. Once that decision set aside by the State Government, we find no justification in ordering refund to the petitioners because the claim was filed clearly beyond the period of limitation. In the result therefore, petition fails and is dismissed. Rule is discharged with no order as to costs. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE A.R. JOSHI )