Case: L.M.L. Limited Vs. State Of U.P

the same was contrary to the existing Circulars of the Board, the same cannot be sustained.” 44. In Collector of Central Excise Vadodra vs. Dhiren Chemical Industries : (2002) 2 SCC 127 this Court held :- “We need to make it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue.” 45. The latter decision is also an authority for the proposition that a circular would be binding on the State in appropriate cases. We are not oblivious of the decisions of this Court where the Commission has been held to be the sole tariff making authority. [See Association of Industrial Electricity Users Vs. Respondent: State of Andhra Pradesh and others: (2002) 3 SCC 711 ] and West Bengal Electricity Regulatory Commission vs. C.E.S.C. Ltd. etc. etc : (2002) 8 SCC 715. In CESC (supra) this Court observed:- “58. Having carefully considered the provisions of the Act as also the arguments advanced in this regard, we are of the opinion that under the 1998 Act, it is the Commission concerned and in the instant case the State Commission of West Bengal, which is the sole authority to determine the tariff, of course as per the procedure in the said Act.” 46. We may also notice that in BSES Ltd. Vs. Tata Power Co., Ltd. and others : (2004) 1 SCC 195 this Court held :- “16. The word "tariff" has not been defined in the Act. "Tariff is a cartel of commerce and normal it is a book of rates. It will mean a schedule of standard prices or charges provided to the category or categories of customers specified in the tariff. Sub-section (1) of Section 22 clearly lays down that the State Commission shall determine the tariff for electricity (wholesale, bulk, grid or retail) and also for use of transmission facilities. It has also the power to regulate power purchase of the distribution utilities including the price at which the power shall be procured from the generating companies for transmission, sale, distribution and supply in the State. Utility has been defined in Section 2(1) of the Act and it means any person or entity engaged in the generation, transmission, sale, distribution or supply, as the case may be, of energy. Section 29 lays down that the tariff for intra-State transmission of electricity and tariff for supply of electricity, wholesale, bulk or retail in a State shall be subject to the provisions of the Act and the tariff shall be determined by the State Commission. Sub-section (2) of Section 29 shows that terms and conditions for fixation of tariff shall be determined by Regulations and while doing so, the Commission shall be guided by the factors enumerated in Clauses (a) to (g) thereof. The Regulations referred to earlier show that generating companies and utilities have to first approach the Commission for approval of their tariff whether for generation, transmission, distribution or supply and also for terms and conditions of supply. They can charge from their customers only such tariff which has been approved by the Commission. Charging of a tariff which has not been approved by the Commission is an offence which is punishable under Section 45 of the Act. The provisions of the Act and Regulations show that the Commission has the exclusive power to determine the tariff. The tariff approved by the Commission is final and binding and it is not permissible for the licensee, utility or any one else to charge a different tariff.” 47. The abovesaid three decisions are distinguishable on facts. They were not dealing with a situation of the present kind. It was not a case where the supplier had difficulty of supplying uninterrupted electrical energy. 48. The proximity of issuance of the circular vis-a-vis Notification must also be noticed. The tariff was framed on 7th August, 2000 which came into force from 9th August, 2000 whereas the circular was issued on 8th September, 2000. The consumers exercised their option on 31st October, 2000. The judgment in the case of LML (supra) was delivered on 25th April, 2001. The circular dated 31st August, 2001 undoubtedly was issued in view of the said judgment. The said judgment did not deal with the questions raised before us. In any event if the licensee violates the tariff approved by the Commission appropriate legal action can be taken against it. But it would be too much to contend that for a mistake on the part of the Corporation, the consumers would suffer. In this view of the matter, we are of the considered view that the doctrine of estoppel shall apply in the cases where the promise was made. However, the principle of said doctrine would, however, not be applicable where no such promise was made. 49. Respondent-Kanpur Electricity Supply Company would not be bound thereby. Tariff is fixed for providing a service. Supply of electrical energy is a public utility service. While carrying out a function of this nature, the court of law must keep in mind the equitable principles also. Equity does not postulates that although the supplier did not fulfil its obligation, still it would be entitled to the benefits envisaged under the law. 50. Similarly Uttarnachal Power Corporation also does not appear to have made such a promise. The doctrine of promissory estoppel in those cases also will have no application. 51. In view of the fact that several matters are pending before the Commission on question of independent feeder we need not express any opinion thereupon. If any appeal is pending before the Commission on the said question it would decide the same independent of the same irrespective of the result of this decision..We, therefore, without expressing any opinion on the said question, permit the appellants to agitate the same point before the Commission.52. We, therefore,

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In view of the fact that several matters are pending before the Commission on question of independent feeder we need not express any opinion thereupon. If any appeal is pending before the Commission on the said question it would decide the same independent of the same irrespective of the result of this decision..We, therefore, without expressing any opinion on the said question, permit the appellants to agitate the same point before the Commission.