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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7856 OF 2012

WARYAM STEEL CASTINGS PVT. LTD.       …APPELLANT(S) VERSUS

PUNJAB STATE POWER CORPORATION LTD. AND ANR.                             …RESPONDENT(S)

WITH  CIVIL APPEAL NO. 6269 OF 2013, CIVIL APPEAL NO. 6276 OF 2013, CIVIL APPEAL NOS. 6289-6290 OF 2013, CIVIL APPEAL NOS. 6625-6626 OF 2013 AND CIVIL APPEAL NOS. 6291-6292 OF 2013

J U D G M E N T

RANJAN GOGOI, J.

1. The  appellant-companies  are  arc  furnace industries engaged in the manufacture of steel ingots. The very nature of the operations carried out require the appellants to draw heavy load of electrical power i.e.  above  2500  KVA.  The  said  connections  are,

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accordingly, categorized as “Industrial Connections”.  

2.   The appellants who were all established prior to June 1995 draw power from 11 KV High Tension Supply Line.  Electricity in the State of Punjab, where the industrial  units  are  located,  are  supplied  through different kinds of voltage supply system i.e. (i) low tension (LT) at 440 volt – normally fed to domestic, small power or medium supply electric connection below 100 KW; (ii) high tension (HT) at 11,000 voltage (11 KV) to large supply industrial connections; and (iii) extra high tension (EHT) at 66,000 voltage (66 KV) – supplied to very big industrial consumers for whom a dedicated 66 KV  line  directly  from  sub-Station  of  the  Board  is provided.

3. A circular dated 23rd June, 1995 was issued by the Punjab State Electricity Board (hereinafter referred to as “the Board”) mandating all existing as well as prospective  consumers,  who  had  installed  induction furnace units with a load above 1500 KVA, to shift to 66

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KVA voltage supply failing which they were required to pay surcharge at the rate of 17.5%. All the appellants received  due  notice  for  conversion  of  their  voltage supply from 11 KV to 66 KV on or before 31st December, 1996.  On receipt of such notices, the Induction Furnace Industries Association of the State of Punjab took up the matter with the State Government and on the advice of  the  High  Powered  Committee  constituted, recommendations were made to the effect that all units existing as on 23rd June, 1995 should be exempted from the necessity of conversion to 66 KV as well as levy of 17.5% surcharge.  

4. The aforesaid recommendations of the Committee (made in its meeting held on 19th January, 1999) were accepted by the Board and a commercial circular bearing No.25/1999  dated  8th June,  1999  was  issued  to  the following effect.

“3. To resolve the issue, a Committee comprising  of  officers  of  PSEB  and representatives  of  Public  &  Industry,

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was constituted on the intervention of State  Government.   The  committee  was asked  to  study  the  grievances  of Induction  Furnace  Industry  in  details and give its recommendations acceptable to both PSEB and Industry.  Accordingly, the committee went into this issue in detail and has submitted the following recommendations to PSEB, which have now been accepted by the Board. i) Board may not insist to levy 17.5% surcharge  for  non-conversion  by  the consumers as existing in 6/95 and also by  those  consumers  who  were  released connections at 11 KV with an undertaking to pay 17.5% surcharge after 6/95. ii) The 17.5% surcharge already billed and the late payment surcharge already levied  w.e.f.  1.1.97  may  be  written back.   Wherever certain consumers have deposited this surcharge, the same may be  refunded  through  subsequent  energy bills. iii)All  future  connections  above  1500 KVA/2500KW  shall  be  at  66  KV  only. However, where feasibility at 11 KV has already been given before 3/97, the same need not be reviewed.  (This para has been corrected vide CC No.30/99)”

5. The Electricity Act, 2003 (hereinafter referred to as “2003 Act”) came into force with effect from 10th

June, 2003.  The object of the 2003 Act, inter alia, is to protect the interests of consumers and rationalize

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electricity tariff.  Part VII of the 2003 Act deals with ‘tariff’.   Specifically,  Section  61  of  the  2003  Act contained  in  Part  VII  thereof  provides  that  “the Appropriate  Commission”  shall  specify  the  terms  and conditions for the determination of tariff and while doing so the Appropriate Commission shall be guided by the principles mentioned in the said Section.  Section 62 of the 2003 Act deals with determination of tariff and is in the following terms:

“62.  Determination of tariff:-(1) The Appropriate Commission shall determine the  tariff  in  accordance  with  the provisions of this Act for –  

(a)  supply  of  electricity  by  a generating  company  to  a distribution licensee:  

Provided  that  the  Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum  and  maximum  ceiling  of tariff  for  sale  or  purchase  of electricity  in  pursuance  of  an agreement, entered into between a generating company and a licensee or between licensees, for a period not  exceeding  one  year  to  ensure reasonable prices of electricity;  (b) transmission of electricity ;

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(c) wheeling of electricity;  (d) retail sale of electricity:  Provided  that  in  case  of

distribution of electricity in the same area  by  two  or  more  distribution licensees,  the  Appropriate  Commission may,  for  promoting  competition  among distribution  licensees,  fix  only maximum  ceiling  of  tariff  for  retail sale of electricity.  

(2) The Appropriate Commission may require  a  licensee  or  a  generating company to furnish separate details, as may  be  specified  in  respect  of generation,  transmission  and distribution  for  determination  of tariff.  

(3)  The  Appropriate  Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate  according  to  the consumer's load factor, power factor, voltage,  total  consumption  of electricity during any specified period or  the  time  at  which  the  supply  is required or the geographical position of any area, the nature of supply and the  purpose  for  which  the  supply  is required.  

(4) No tariff or part of any tariff may  ordinarily  be  amended,  more frequently than once in any financial year, except in respect of any changes expressly permitted under the terms of

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any fuel surcharge formula as may be specified.  

(5)  The  Commission  may  require  a licensee  or  a  generating  company  to comply with such procedures as may be specified for calculating the expected revenues  from  the  tariff  and  charges which he or it is permitted to recover.

(6) If any licensee or a generating company  recovers  a  price  or  charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest  equivalent  to  the  bank  rate without  prejudice  to  any  other liability incurred by the licensee.  

6. Under Section 2(4) of the 2003 Act “Appropriate Commission” is defined in the following terms:

“Appropriate  Commission”  means  the Central Regulatory Commission referred to in sub-section (1) of section 76 or the  State  Regulatory  Commission referred to in section 82 or the Joint Commission referred to in section 83, as the case may be.

Section  86  of  the  2003  Act  defines  the functions of the “State Commission” which, inter alia, includes determination of tariff for generation, supply,

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transmission  and  wheeling  of  electricity,  wholesale, bulk or retail, as the case may be, within the State.    

Under  Section  111  of  the  2003  Act  an  order passed by any of the Adjudicating Authority under the 2003 Act including an order made by “the Appropriate Commission” is appellable to the Appellate Tribunal for Electricity constituted under Section 112 thereof.   

7. Though it may not be necessary to notice in any detail the views expressed by this Court, from time to time, with regard to the nature of power exercised in determining tariff under the Act of 2003, all that would require  a  mention  is  that  the  said  power  has  been consistently held and understood by this Court to be statutory,  required  to  be  exercised  within  the  four corners of the relevant provisions of the 2003 Act i.e. Sections 62 to 64 and in accordance with the principles laid down in Section 61 thereof.  

8. Prior to coming into force of the 2003 Act with

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effect from 10th June, 2003 the Punjab State Electricity Regulatory Commission established under the Electricity Regulatory Commission Act, 1998 (since repealed by the 2003  Act)  had  issued  a  tariff  order  for  the  year 2003-2004 on an application made by the Licensee Board for determination of tariff for the said year.  In the tariff proposals, the Board, inter alia, proposed to levy  surcharge  at  the  rate  of  17.5%  from  Induction Furnace  Units  who  had  not  shifted  to  66  KV  voltage supply  and  to  whom  exemption  from  payment  of  such surcharge had been earlier granted by circular No.25/99 dated 8th June, 1999.  In the course of the deliberations leading to the final determination/ fixation of tariff, the North India Induction Furnace Association was heard in the mater and the reliance placed by the Association on the above circular No.25/99 dated 8th June, 1999 was taken note of along with the fact that the Board in its reply  dated  17th March,  2003  had  admitted  that  such exemption was allowable and that it (the Board) did not press its proposal to levy surcharge at the rate of 17.5%  from  Induction  Furnace  Units  which  were  in

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operation on the relevant cut-off date i.e. 23rd June 1995.  

9. After the coming into force of the 2003 Act, for the year 2004-2005 the State Commission announced and published its tariff order dated 30th November, 2004 which contained provisions with regard to the aforesaid surcharge in paragraph 9.11 thereof in the following terms:

“9.11 17.5%  SURCHARGE  FOR  11  KV ARC/INDUCTION FURNACE CONSUMERS

Some  Industrial  Consumers Associations have objected to the proposal  of  PSEB  to  levy  17.5% surcharge  on  induction  furnace consumers catered supply at 11 KV especially  when  tariff  has  been fixed at 11 KV. As  per  present  policy,  all  Large Supply  consumers  except  arc furnaces  with  contract  demand exceeding  2500  KVA  and  upto  4000 KVA  can  be  catered  at  11  KV provided  they  are  ready  to compensate  for  transformation losses, incremental line losses and service  charges  incurred  in  this regard.  For  this  purpose,  energy recorded at 11 KV is enhanced by 10% for billing purposes. For all

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arc  furnace  consumers  and  other consumers having demand above 4000 KVA which are given supply 11 KV, surcharge @ 17.5% is leviable. The Board in its reply has stated that  the  tariffs  for  various categories are worked out at a base voltage  level  for  each  category. The rebate/surcharge is offered to incentivize/penalize  the  consumer for shifting from the base voltage to higher/lower voltage, keeping in view the additional transformation cost,  transformation  losses  and line losses saved/incurred by the Board by such shifting.  Hence the energy recorded at 11 KV is to be enhanced by 10% for consumers with demand  exceeding  2500  KVA  &  upto 4000 KVA (except arc furnaces) to cover  for  transmission  losses, incremental line losses and service charges.   It  has  been  further stated by the Board that surcharge @ 17.5% shall be leviable on all arc  furnace  consumers  above  2500 KVA  and  other  consumers  with Contract Demand exceeding 4000 KVA catered supply at 11 KV.  It has also been stated that surcharge @ 17.5%  is  levied  on  arc  furnace consumers catered supply at 11 KV since last 30 years.  The  Commission  notes  that  Large Supply Consumers with bulk demand are required to be catered supply at 33 KV or higher voltage. Where they are allowed to avail supply at lower than permitted voltage, the

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same  involves  number  of  costs  to the  Board  by  way  of  setting  up sub-station and its operation and maintenance.   It  also  involves additional  line  losses  and transformation  losses  for  the Board.   As  such,  these  consumers are definitely liable to pay.   The Commission, therefore, decides to uphold the version of PSEB and continue levy of surcharge.”

10. For  the  year  2005-2006,  the  Board  in  its proposal  took  the  following  plea  in  respect  of  Arc Furnace consumers:

“(ii) For Large Supply consumers except Arc Furnaces having contract demand exceeding  2500  KVA  and  upto  4000 KVA catered at 11 KV, the energy consumption is enhanced by 10% to cover  for  transformation  losses, incremental line losses and service charges.   17.5%  surcharge  is leviable  on  all  Arc  Furnace consumers  and  other  Large  Supply consumers  having  contract  demand above 4000 KVA and catered at 11 KV.”

11. The State Commission by its tariff order dated 14th June,  2005  for  the  year  2005-2006  decided  as

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follows:

“The  Commission  directs  the  Board  to submit  a  comprehensive  proposal bringing  out  all  the  aspects  of  the matter  and  the  proposal  should  also include  revenue  implications.   The proposal should be submitted along with next ARR for 2006-07.  Meanwhile the Commission  decides  to  continue  the existing system.”

12. A  similar  decision  was  taken  by  the  State Commission in the tariff order dated 10th May, 2006 for the  year  2006-2007  by  holding  that  it  would  be appropriate  “to  continue  with  existing  provisions  of rebates and surcharges for availing supply at different voltages”.

13. Thereafter, it appears that on 18th May, 2006, the North India Induction Furnace Association had moved the  State  Power  Corporation  against  the  levy  of surcharge  on  all  Arc  Furnace  consumers  drawing electrical  power  exceeding  2500  KVA  on  11  KV  Supply Line.  The Power Corporation on 27th June, 2006 had

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advised the said Association to agitate the issue before the Electricity Regulatory Commission.  Accordingly, a review petition was filed by the said Association before the Electricity Regulatory Commission seeking review of the  tariff  order  of  2006-2007,  which  came  to  be dismissed on 13th October, 2006.   

14. Thereafter,  it  appears  that  the  State  Power Corporation issued electricity bills for April 2007 and had imposed surcharge on Arc Furnaces established prior to June 1995. Challenging the same, writ Petitions were filed by aggrieved industries before the High Court of Punjab and Haryana.  While the said writ petitions were pending, the Regulatory Commission had passed its tariff order dated 17th September, 2007 for the year 2007-2008 and pursuant thereto a circular bearing No.66/2007 dated 28th November,  2007  was  issued  seeking  to  recover electricity surcharge from the concerned establishments for  the  financial  years  2004-2005,  2005-2006  and 2006-2007.  The aforesaid subsequent events were brought on record in the writ petitions before the High Court by

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means of amendments thereto.  

15. A learned single judge of the High Court by order dated 27th April, 2009 dismissed the writ petitions filed by the arc furnace industries, inter alia, on the ground that after the 2003 Act had come into force with effect from 10th June, 2003 fixation of tariff assumed the character of a statutory exercise to be performed by the Regulatory Commission on the basis of the principles and parameters laid down in the 2003 Act. As such, the “concession”  made  by  the  Government  culminating  in circular No.25/99 dated 8th June, 1999 would cease to have any legal effect unless specifically acknowledged by the Regulatory Commission which the Commission had not done.  The High Court also took the view that the circular No.25/99 dated 8th June, 1999 cannot operate as an estoppel against the provisions of the 2003 Act and the  exercise  of  power  thereunder  by  the  Regulatory Commission to determine and fix the tariff.   In this regard, the High Court also specifically took note of the fact that the arc furnace industries i.e. the writ

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petitioners  before  it  had  not  challenged  any  of  the tariff  orders  levying  or  reiterating  the  levy  of surcharge and what was challenged before it were only the bills levying surcharge as raised by the Board/Power Corporation, as may be.   

16. The aforesaid order of the learned single judge of the High Court dated 27th April, 2009 was challenged by the industries before the Division Bench of the High Court by means of several Letter Patent Appeals.  While the aforesaid Letter Patent Appeals were pending before the  High  Court  another  significant  development  took place, namely, the issuance of the tariff order dated 8th September, 2009 for the year 2009-2010 specifically reiterating  and  levying  the  surcharge  on  Induction Furnace Units.  The tariff order for the year 2009-2010 was  challenged  by  the  concerned  industrial establishments  before  the  Appellate  Tribunal  for Electricity  (hereinafter  referred  to  as  “Appellate Tribunal”). The aforesaid challenge made was answered by the Appellate Tribunal by its order dated 16th July, 2010

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by holding that the levy of surcharge being compensatory in nature is fully justified. The transmission losses and other charges that are incurred by the Board in providing power at the required load (above 2500 KVA) to induction furnace units from a 11KV supply line has to be recovered from a defaulting unit (one which had not migrated to the mandatory 66 KV supply line). However the learned appellate Tribunal disagreed with the State Regulatory Commission on the rate thereof i.e. 10% and 17.5%  respectively  for  non-induction  (large  consumer) and  induction  furnace  units.   The  learned  Appellate Tribunal by its aforesaid order dated 16th July, 2010, therefore, remanded the matter to the State Commission for  a  fresh  decision  on  the  rate/quantum  of  the surcharge leviable.  

17. Though the order dated 16th July, 2010 of the learned Appellate Tribunal was challenged before this Court  in  Civil  Appeal  No.10889  of  2010,  no  interim relief  was  granted  to  the  appellants  by  this  Court. Consequently, on 19th January, 2011, the Punjab State

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Electricity Regulatory Commission, on consideration of the matter on remand, had passed its orders reducing the surcharge from 10% and 17.5% to 7% and 10% respectively.

18. On 14th February, 2011, Civil Appeal No.10889 of 2010 filed against the order of the learned Appellate Tribunal  dated  16th July,  2010  was  dismissed  by  this Court thereby confirming the levy of surcharge.  On 9th

September, 2011 the Division Bench of the High Court of the Punjab and Haryana also dismissed the Letter Patent Appeals filed by the industrial establishments. By its Order  dated  27th July,  2012  the  learned  Appellate Tribunal  had  dismissed  the  appeal  filed  by  the industrial establishments against the order dated 19th

January, 2011 of the Regulatory Commission with regard to the reduced rate/quantum of surcharge i.e. 7% and 10% respectively, as already noticed.

19.   It is challenging the common order of the High Court dated 9th September, 2011 dismissing the Letters Patent Appeals filed by the industrial establishments

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that  civil  Appeal  Nos.6269  of  2013,  6276  of  2013, 6289-6290 of 2013, 6291-6292 of 2013 and 6625-6626 of 2013 have been filed whereas challenging the order of the  learned  Appellate  Tribunal  with  regard  to quantum/rate  of  surcharge  re-determined  by  the Regulatory Commission Civil Appeal No.7856 of 2012 has been filed. It is the correctness of the aforesaid two orders  that  would  require  to  be  determined  in  the present group of appeals.

20. Insofar  as  the  order  of  the  High  Court dismissing  the  Letter  Patent  Appeals  filed  by  the industrial establishments is concerned the matter should not detain the Court. Not only the levy of surcharge has been upheld by this Court by dismissal of Civil Appeal No.10889 of 2010, though for the year 2009-2010, what stares at the face of the record is the consistent view taken by the Regulatory Commission in all the tariff orders  commencing  from  the  year  2004-2005,  that  to offset the transmission and all other losses and other incidental charges incurred in enabling the Induction

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Furnace Units to draw power at 11 KV supply without switching over to 66 KV supply line, levy of surcharge on such consumers is necessary.  The “compromise” and “concession”  made  and  effected  by  issuing  circular No.25/99 dated 8th June, 1999 must be understood to have come  to  an  end  with  the  introduction  of  the  new electricity regime by the 2003 Act unless extension of the same has been explicitly made/recognized in any of the tariff orders, which fact is  conspicuously absent. The absence of continuation of the said concession made by the Government in respect of pre-1995 industries in any of the tariff orders for the subsequent years i.e. after  coming  into  force  of  the  Act  is  a  conscious decision of the Regulatory Commission with regard to the necessity and justifiability of the levy of surcharge on the  defaulting  industries.   The  reason  for  levy  of surcharge being justifiable on the touchstone of the necessity to disincentivize the defaulting units cannot be  faulted.   The  exercise  being  statutory  and  being clear and unambiguous as manifested by the tariff order, noticed and extracted above, there will be little room

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for taking any other view in the matter except to hold that the High Court was fully justified in dismissing the writ petitions.  In fact, from another perspective, it can very well be said that the issue with regard to legality and justification for levy of surcharge stands foreclosed  by  the  order  of  this  Court  dated  14th

February, 2011 dismissing the Civil Appeal No.10889 of 2010 filed in the circumstances already noticed.

21. This will bring the Court to a consideration of the other limb of the case, namely, the correctness of the  quantum/rate  of  surcharge  as  determined  by  the Regulatory  Commission  and  upheld  by  the  learned Appellate Tribunal.  

22. The nature of the power under the Act of 2003 and the scope of interference with orders passed by the statutory/  appellate  authorities  thereunder  has  been dealt with by this Court in Transmission Corporation of Andhra Pradesh Ltd. and Anr.  vs.  Sai Renewable Power

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Private Ltd. and Ors.1, The view expressed in paras 36 to 40 of the report in the said case, quoted below, may require to be specifically noticed.

“36. Fixation of tariff is, primarily, a function to be performed by the statutory authority in furtherance to the provisions of the relevant laws. We have already no- ticed that fixation of tariff is a statu- tory function as specified under the provi- sions of the Reform Act, 1998; the Elec- tricity  Regulatory  Commissions  Act,  1998 and the Electricity Act, 2003. These func- tions are required to be performed by the expert bodies to whom the job is assigned under the law. For example, Section 62 of the Electricity Act, 2003 requires an ap- propriate Commission to determine the tar- iff in accordance with the provisions of the Act. The Regulatory Commission has been constituted and notified under the provi- sions of Section 3 read with Section 11 of the Reform Act, 1998 which in terms of Sec- tions 11(1)(c) and (e) is expected to fix the tariff as well as the terms of licence.

37. There are three different legislations in course and the Regulatory Commission has been constituted under the Reform Act, 1998 which in turn would be the Commission as contemplated under the Electricity Regula- tory Commission Act, 1998 and the Electric- ity Act, 2003. In terms of first proviso to Section 82(1) of the Electricity Act, 2003 the State Electricity Regulatory Commission established by the State Government under Section  17  of  the  Electricity  Regulatory

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Commission  Act,  1998  and  the  enactment specified  in  the  Schedule  shall  be  the State Commission for the purposes of this Act. Even in terms of Section 185(3) of the Electricity  Act,  2003  the  said  authority would be deemed to be an appropriate Com- mission for all purposes and intent as the Reform Act, 1998 has been specifically men- tioned in Entry 3 of the Schedule to the Electricity Act, 2003. In other words, as already noticed the Regulatory Commission constituted by the said notification would be  the  appropriate  Commission  under  all these Acts and is required to perform the functions  as  contemplated  under  Sections 11, 17 and 82 of the respective Acts.

38. The functions assigned to the Regula- tory Commission are wide enough to specifi- cally impose an obligation on the Regula- tory  Commission  to  determine  the  tariff. The  specialised  performance  of  functions that are assigned to the Regulatory Commis- sion can hardly be assumed by any other au- thority and particularly, the courts in ex- ercise  of  their  judicial  discretion.  The Tribunal constituted under the provisions of the Electricity Act, 2003, again being a specialised  body,  is  expected  to  examine such issues, but this Court in exercise of its powers under Article 136 of the Consti- tution would not sit as an appellate au- thority over the formation of opinion and determination of tariff by the specialised bodies. We would prefer to leave this ques- tion open to be considered by the appropri- ate authority at the appropriate stage.

39. We do not consider it appropriate to go into the merit or demerit of determination of tariff rates in the appeals. Determina-

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tion of tariff is a function assigned leg- islatively to a competent forum/authority. Whether it is by exercise of legislative or subordinate legislative power or a policy decision, if the Act so requires, but it generally falls in the domain of legisla- tive activity and the courts refrain from adverting into this arena.

40. We have to further examine the legality of this issue in the light of the findings that we have recorded on the issues in re- lation  to  jurisdiction  of  the  Regulatory Commission to determine/review the tariff. The jurisdiction of this Court is limited in this aspect. This Court has consistently taken the view that it would not be proper for the Court to examine the fixation of tariff rates or its revision as these mat- ters are policy matters outside the preview of judicial intervention. The only explana- tion  for  judicial  intervention  in  tariff fixation/revision is where the person ag- grieved can show that the tariff fixation was illegal, arbitrary or ultra vires the Act.  It  would  be  termed  as  illegal  if statutorily  prescribed  procedure  is  not followed or it is so perverse and arbitrary that it hurts the judicial conscience of the court making it necessary for the court to intervene. Even in these cases the scope of jurisdiction is a very limited one.”                  (Underlining is ours)

23. In  this  regard,  it  has  already  been  noticed that the Regulatory Commission had, on remand, by its order  dated  19th January,  2011  reduced  the  rate  of

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surcharge from 10% and 17.5% respectively to 7% and 10% respectively.   The  industrial  establishments  in  the appeals before the learned Appellate Tribunal contended that the said rate is without justification inasmuch as the  State  Regulatory  Commission  in  its  order  had unambiguously noticed that the cost to the consumers to switch over to the 66 KV supply would correspond to a much lower amount than what would work out on the basis of the rate of surcharge levied, details of which are available  in  paragraph  8  of  the  order  of  the  State Regulatory Commission dated 19th January, 2011.  However, a reading of the entire paragraph 8 of the said order of the State Regulatory Commission would go to show that the State Commission thought it proper to work out the appropriate rate of surcharge by adding a penal element to  the  cost  of  conversion  to  disincentivise  the consumers from continuing to receive supply on the 11 KV transmission lines.  It is on the aforesaid basis that an  additional  input  had  been  added  to  the  cost  of conversion  to  work  out  the  rate  of  surcharge  as determined in the order dated 19th January, 2011. If the

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aforesaid is the basis for determination of the rate and that too by the Expert Body which has been upheld by the learned Appellate Tribunal we can find no fault with the said exercise. In this regard we may take note of the fact that though under the Act of 2003 “surcharge” is not  specifically  defined,  the  said  expression  stands “for an additional/extra charge … surcharge is thus a super added charge, a charge over and above the usual or current dues … it is in substance an addition to the stipulated rate of tariff.” The above observations made in  the  context  of  the  provisions  of  the  Electricity (Supply) Act, 1948 in M/s Bisra Stone Lime Co. Ltd. vs. Orissa  State  Electricity  Board  and  Anr.2,  would  be squarely applicable to the present case to dismiss all speculations  with  regard  to  the  nature  of  the  levy (surcharge) and the power of the Commission to impose the same at particular rate(s) as may be determined.  

24. For the aforesaid reasons, we do not find any merit in the appeals filed against the order of the High

2   AIR 1976 SC 127

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Court as well as the order of the learned Appellate Tribunal.  We, therefore, affirm the order of the High Court dated 9th September, 2011 as well as the order of the learned Appellate Tribunal dated 27th July, 2012 and dismiss both set of appeals leaving the parties to bear their own costs.

....................,J.         (RANJAN GOGOI)

....................,J.         (NAVIN SINHA)

NEW DELHI JUNE 19, 2017

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ITEM NO.3 & 3.1 TO 3.5      COURT NO.2             SECTION XIV/IV                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

CIVIL APPEAL NO.7856 OF 2012 WARYAM STEEL CASTINGS PVT.LTD.                 APPELLANT (S)                                 VERSUS PUNJAB STATE POWER CORPN.LTD  AND ANR.          RESPONDENT(S) WITH CIVIL  APPEAL  NO.6625-6626/2013,  CIVIL  APPEAL  NO.6289-6290/2013, CIVIL APPEAL NO.6291-6292/2013, CIVIL APPEAL NO.6276/2013, CIVIL APPEAL NO.6269/2013 Date : 19/06/2017 These cases were called on for pronouncement of  judgment today. For parties:

Mr. Mohit D. Ram, AOR Ms. Naresh Bakshi, AOR Mrs. Kamaldeep Gulati, AOR Mr. Nishant Kumar, Adv. Ms. Shikha Ohri, Adv. Ms. Divya Roy, AOR Mr. Himanshu Shekhar, AOR Mr. Nishant Kumar, Adv. Ms. Shikha Ohri, Adv. Ms. Sharmila Upadhyay, AOR Mr. Subhasish Bhowmick, AOR

Hon'ble  Mr.  Justice  Ranjan  Gogoi  pronounced  the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Navin Sinha.

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The appeals are dismissed in terms of the signed reportable judgment leaving the parties to bear their own costs.  

[VINOD LAKHINA] A.R.-cum-P.S.

[ASHA SONI] COURT MASTER

[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE]