Judgment : This writ application is filed by the petitioner challenging the orders dated January 22, 2002 passed by the respondent no.7 and April 3, 2002 passed by the respondent no.5 with regard to the non-admissibility of rebate @ 25% on energy charges in respect of the factory of the petitioner no.1. The petitioner no.1 was a registered private limited company under the Companies Act, 1956. Its cast iron foundry was lying and situated at Jagannathpur, Delhi Road, P.O. Bamunari P.O. Dankuni (hereinafter referred to as the said factory). The respondent no.1 installed 47.5 H.P LT supply line at the said factory premises with effect from July 17, 1984. The petitioner company submitted an application dated August 31, 1998 to the respondent no.7 for providing high tension electricity supply line at the said factory for installation of 500 Kgs. capacity induction furnace (300 KVA). After complying with all formalities by the petitioner company as also after holding joint inspection, an estimate dated October 10, 1998 was sent to the petitioner company by the respondent no.7 on October 9, 1998. In terms of the Clause 4(iii) of the above estimate the petitioner was eligible for the concession as follows:- “iii) You will be eligible for a concession of 25% on total energy charges (excluding demand charge & fuel surcharge) for 3 (three) years from the date of permanent connection provided you do not avail of subsidy on purchase and installation of captive power generation sets as per W.S. incentive scheme, 1993. However, concession in the energy charge will be withdrawn without notice if you default in payment or delay payment beyond due date of your dues to the Board for a period of 3(three) months in succession or intermittently during the period of 3(three) years during which the concession is available.” Thereafter, the respondent authority entered into an agreement dated January 18, 1999 with the petitioner company for installation high tension electricity line at the said premises. Clauses 15(2) and 28 of the above agreement are quoted below: “15 (2) If the Board by a notification makes any alteration in the aforesaid rates, tariff and its associated stipulations, such altered rates, tariff and its associated stipulations shall be treated as if the same were part of this Agreement in suppression of the charges set forth in the in the Schedule-II hereto with effect from the date fixed in the notification. 28. 28. The Agreement shall be read and construed as subject, in all respects to the provisions of the Indian Electricity Act, 1910 and the Electricity Supply Act, 1948 and of the Rules for the time being in force thereunder so far as the same as respectively may be applicable.” In terms of the aforesaid clause 15(2) of the agreement dated January 18, 1999 the petitioner company was under obligation to pay electricity charges in terms of schedule II of the above agreement subject to concessions contains in note (viii) of the above schedule and the conditions of note (viii) are quoted below: “viii) Concession of 40% 30% 25% will be admissible on the total energy charges (excluding demand charge and Fuel Surcharge) for 3 years from the date of permanent connection provided the consumer does not avail of subsidy on purchase and installation of captive power generation sets as per W.B. Incentive Scheme, 1993. However, concession in the energy charge will be withdrawn without notice to the consumer if he defaults in payment or delays payment beyond due date of his dues to the Board for a period of three months in succession or intermittently during the period of three months in succession or intermittently during the period of three years during which the concession is available.” By virtue of the communication dated November 4, 1999 the respondent no.7 asked the petitioner company to furnish a certificate either from the Industrial Development Corporation or Director, Cottage and Small Scale Industries, Government of West Bengal (which one was applicable) to the effect that the petitioner company had not applied or availed of subsidy on purchase and installation of captive power generation set as per West Bengal Incentive Scheme, 1993. The above certificate was necessary for availing of the concession enumerated in Note (viii) to schedule II of the agreement dated January 18, 1999. On July 12, 2000 the Director Cottage and Small-Scale industry West Bengal issued a certificate to the petitioner company regarding non-availing of subsidy on purchase and installation of generating set in terms of S.S.I. 1993 the above certificate is quoted below: “CERTIFIED that M/s EDCONS(MKS) Casting Pvt. Ltd. Having factory at Jagannathpur, P. S. Dankuni Dist. Hooghly is permanently Registered SSI unit having S.S.I. Registration Certificate No.21/08/0348 2/PMT/SSI dated 21-11-1984. Hooghly is permanently Registered SSI unit having S.S.I. Registration Certificate No.21/08/0348 2/PMT/SSI dated 21-11-1984. As per record of District Industries Centre, Hooghly the date of commencement of production of the unit is 01-03-1984 and undertaking has neither applied for nor availed of any subsidy on purchase and installation of Captive Power Generating Set under State Scheme of Incentive for Cottage and Small Scale Industries – 1993. The captioned unit has already started their expansion programme. The expansion programme of the unit has been incorporated in the Permanent SSI registration certificate of the unit.” On the basis of the above certificate the petitioner company claimed concession @ 25% on energy charge from the respondent authority by a communication dated July 13, 2000. By the communication dated November 16, 2000 issued by the respondent no.7 the claim of concession in energy charges was rejected on the ground that the industry concerned was not a new industry. It was originally a medium voltage consumer. The same was converted bulk consumer category. The petitioner company approached the respondent no.5 for reconsideration of the claim of concession on energy charges and the same was rejected by the respondent no.5 by virtue of communication dated April 3, 2002. Hence this writ application. It is submitted by the leaned counsel appearing on behalf of the petitioner that consequent upon installation of 500 Kgs capacity induction furnace (300 K.V.A.), the petitioner company started a new iron casting system in place of cast iron foundry. Therefore, the ground of rejecting the claim of the petitioner company cannot be sustained in law. It is also submitted on behalf of the petitioner that the petitioner company did not avail of subsidy for installation of captive power generation set under West Bengal Incentive Scheme, 1993. According to him, the petitioner company was entitled to get the benefit of concession upon fulfillment of the conditions prescribed in the agreement dated January 18, 1999. The learned counsel appearing for the petitioner relied upon the decision of State of Gujarat Vs. Saurashtra Cement & Chemical, reported in (2003) 2 SCC 394 in support of his above submissions. According to him, the petitioner company was entitled to get the benefit of concession upon fulfillment of the conditions prescribed in the agreement dated January 18, 1999. The learned counsel appearing for the petitioner relied upon the decision of State of Gujarat Vs. Saurashtra Cement & Chemical, reported in (2003) 2 SCC 394 in support of his above submissions. On the other hand it is submitted by the learned counsel appearing for the respondents that the respondent no.7 entered into the agreement dated January 18, 1999 containing therein a provision for giving a concession to the petitioner company in terms of note (viii) to Schedule II of the above agreement. Upon receipt of the certificate dated July 12, 2000 from the Director, Cottage and Small Scale Industry, West Bengal, the respondent authority came to know that the petitioner company had not established a new industry and the installation of 500 Kgs. capacity induction furnace (300 KVA) was a part of its expansion programme. Therefore, the petitioner company was not entitled to get concession which was a part of associated conditions of a tariff. According to him the tariff was fixed by the West Bengal Electricity Regulatory Commission in exercise of powers conferred under Section 22(i) of the Electricity Regulatory Commission Act, 1998. Under the above tariff, concession could be availed of by new and HT or EHT industrial unit expand for additional production on/or after January 26 of 1999 in accordance with Note IX of T.O.D. tariff. According him on the basis of condition prescribed in Clause 15(2) of the agreement dated January 18, 1999, the respondent authority was entitled to alter the rate of charges, tariff and associated conditions and such altered rates of tariff and its associated conditions should be treated as if the same were part of the above agreement in suppression of the charges set forth in schedule (ii). Therefore, the petitioner company was not entitled to concession with regard to the consumer of high tension electricity. The learned counsel appearing on behalf of the respondents railed upon the decision of B.S.E.S. Ltd. Vs. M/s. Tata Power Co. Ltd., reported in AIR 2004 SC 760 in support of the above submissions. Therefore, the petitioner company was not entitled to concession with regard to the consumer of high tension electricity. The learned counsel appearing on behalf of the respondents railed upon the decision of B.S.E.S. Ltd. Vs. M/s. Tata Power Co. Ltd., reported in AIR 2004 SC 760 in support of the above submissions. Having heard the learned counsel appearing for the respective parties as also considering the facts and circumstances of the case I find that the ground for rejecting prayer of the petitioner company for granting concession on consumption of high tension electricity at the said factory premises on the ground of expansion of the industry in question from a medium voltage consumer to bulk consumer category. In view of the note (viii) to schedule II of the agreement dated January 18, 1999 as quoted hereinabove, the petitioner company was entitled to get the concession after obtaining a certificate from West Bengal Industrial Development Corporation or Director, Cottage and Small Scale Industry, Government of West Bengal, as the case may be. Indisputably, the petitioner company submitted a certificate dated July 12, 2000 issued by the Director Cottage and Small Scale Industries, West Bengal to the effect that the petitioner company had started their expansion programme and the same was incorporated in permanent SSI registration certificate of the unit. Pertinent to mention here that in the application dated August 31, 1998 the petitioner declared in column IV (at page 48 to this writ application) the nature of industry as “additional 500 Kgs. capacity induction furnaces (300 KVA). Now the question which falls for consideration of this court is this whether the petitioner company was entitled to enjoy the benefit of concession in terms of the aforesaid agreement dated January 18, 1999? Admittedly, clause 15(2) provided that the petitioner company was under obligation to pay energy charges under the agreement in accordance with the charges set forth in schedule II of the above agreement. The respondent authority was further entitled to alter the same rate, tariff and its associated conditions and such altered rates, tariff and its associated conditions should be treated as if the same were part of the above agreement in suppression of the charges set forth in schedule II. In other wards the concession prescribed in the agreement in question was a part of associated condition of tariff. In other wards the concession prescribed in the agreement in question was a part of associated condition of tariff. Tariff is fixed under statutory provisions by virtue of the notification in exercise of power conferred under Section 29 of the Electricity Regulatory Commission Act 1998. Reference may be made to the decision of B.S.E.S. Ltd (supra) and the relevant portion of the above decision are quoted below: “16. The word “tariff” has not been defined in the Act. “Tariff” is a cartel of commerce and normally 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. Subsection (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. 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.” (Emphasis supplied) It is evident from the materials on record (at page 117 to this writ application) that concession had been provided for all new HT and EHT industries under the tariff and related conditions as approved by the West Bengal Electricity Regulatory Commission in exercise of power conferred under Section 22(1) of the Electricity Regulatory Commission Act, 1998. The petitioner was not a new industry as observed hereinabove. The concession was also available for expansion of existing industries in terms of clause B of Note (XI) of the above tariff and related conditions (at page 117 to this writ application). But the same could be availed of by new and existing HT or EHT industrial unit expanding for additional production on/or after January 26, 1999 as defined in West Bengal Industrial Incentive Scheme, 1993. Permanent HT/Bulk power supply was affected in the said factory of the petitioner company with effect from July 29, 1999. But it was a case of conversation of a medium voltage consumer to bulk consumer category. So, the petitioner was not entitled to get the concession in accordance with the aforesaid tariff and related conditions. In the matter of Saurashtra Cement & Chemical (supra) it was held that exemption was applicable only to a new unit which is totally independent of the old existing one. But in this case no material was placed on record to show that the expanded unit of the petitioner was not using materials or machines of the existing unit. This writ application fails. The respondent corporation will be at liberty to take consequential steps accordingly after a period of fortnight. There will be, however, no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.