- (1.) The main grievances, ventilated in this writ petition, is to the effect that the Petitioner is not liable to make payment of surcharge under Section 3-A of the Bihar Electricity Duty Act, 1948 and, therefore, special mode of recovery/ garnishee orders, as contained in Memo No. 1321 dated 28th July, 2005 and Memo No. 1507 dated 24th August, 2005, which are at annexures 5 and 6 respectively, deserve to be quashed and set aside and the amount, already realized towards the surcharge, be refunded to the Petitioner.
(2.) Learned Counsel for the Petitioner has submitted that the Petitioner is not liable to make payment of surcharge under Section 3-A of the Bihar Electricity Duty Act, 1948 (hereinafter to be referred as "the Act, 1948" for the sake of brevity). It is further submitted that the Petitioner owns and possesses several collieries and coal washeries. Petitioner purchases electricity from Damodar Valley Corporation (hereinafter to be referred to as "D.V.C." for the sake of brevity) and the entire units of energy, purchased by the Petitioner, is being used by the Petitioner for its different units/ washeries, including its Piparwar Area. The Petitioner also supplies electricity, which is purchased from the D.V.C, to the staff quarters of its employees. Learned Counsel for the Petitioner has relied upon the agreement, entered into between the Petitioner and its workers. This agreement is known as National Coal Wage Agreement-V. It is submitted by the learned Counsel for the Petitioner that as per Clause 8.3.1 of the agreement, the Petitioner is supplying electricity up to 30 KWH per residential unit per month, free of charge and beyond this limit, the employees are required to make payment for the electricity, consumed by them. It is also submitted by the learned Counsel for the Petitioner that as per Section 4 of the Act, 1948, the D.V.C. is also liable to make payment of duty and consequently, as per Section 3-A the D.V.C. is liable to make payment of surcharge and, therefore, garnishee order at annexure 5, issued by the Deputy Commissioner of Commercial Taxes, directing the Manager, Main Branch, State Bank of India, Hazaribagh, to pay in the Government treasury a sum of Rs. 75,57,072/- being an amount of surcharge for the period running from 1999-2000 to 2002-2003, deserves to be quashed and set aside. The amount realized towards the aforesaid garnishee order is at Rs. 43,66,000/- from the bank account of the Petitioner's Piparwar Area and it is also submitted that similarly the order at annexure 6, directing the Branch Manager, Punjab National Bank, Bachra Branch, to pay in the Government treasury a sum of Rs. 52,32,290/-, being the amount of surcharge for the period 2001-02 and 2003-04 deserves to be quashed and set aside. The amount realised because of this garnishee order at annexure 6 is Rs. 52,32,290/- from the aforesaid Bank.
(3.) It is further submitted by the learned Counsel for the Petitioner that as per the agreement between the Petitioner and the D.V.C, the Petitioner is not liable to make payment of surcharge. Clause 17 of the agreement does not include surcharge and it is further submitted by the learned Counsel for the Petitioner that even if it is interpreted that Clause 17 of the agreement between the Petitioner and the D.V.C. includes surcharge, then also as per Section 3-A of the Act, 1948, D.V.C. is not entitled to collect surcharge from the Petitioner. Learned Counsel for the Petitioner has also submitted that the D.V.C. is a licensee and the Petitioner is a consumer as per the provisions of the Bihar Electricity Duty Act, 1948. It has also been submitted by the learned Counsel for the Petitioner that the orders at annexures 5 and 6 have been issued by the Respondents without there being any assessment, required under Rule 12 of the Bihar Electricity Duty Rules, 1949 (hereinafter to be referred as "the Rules, 1949" for the sake of brevity). Never any notice for finalization of the assessment was served upon the Petitioner and No. assessment for the aforesaid years has been served upon the Petitioner and, therefore also, the garnishee orders at annexures 5 and 6 deserve to be quashed and set aside. Learned Counsel for the Petitioner has relied upon the decisions, rendered in the case of Kalva Suryanarayana v. Income-tax Officer, 1969 AIR(SC) 285, and in the case of Woodlands Hotel (P) Ltd. v. State of Karnataka, 1995 97 STC 251.;