- (1.) THIS reference under Section 9D of the Bihar Electricity Duty Act, 1948 has been made by the Commercial Taxes Tribunal, Patna, arising out of the application made before that Tribunal under Sub -section (1) of Section 9D of the said Act. The Tribunal has referred the following two questions of law for our decision: - - (i) "Whether under the facts and circumstances of case the delay occurred in initiating the review proceeding is such that it goes to affect the validity of the case." (ii) "Whether in view of the provisions under Section 3A (3) of the Bihar Electricity Duty Act the petitioner is exempted from the levy of surcharge in case under Section (3) (2) (c) whereunder the petitioner is exempted from levy of electricity duty."
(2.) THE Bokaro Steel Plant at Bokaro Steel City is a unit of the petitioner Steel Authority of India which deals in the manufacture of iron and steel. The petitioner at Bokaro generates electricity in its own captive power plants for utilising the same in the manufacturing process in the Steel Plant. The petitioner also purchases power from the Damodar Valley Corporation which is partly utilised in the aforesaid manufacturing process in its plant, and partly for its employees for their domestic use in the town shop maintained by it. We are not concerned with this aspect of the matter in this case. The Bihar Electricity Duty Act, 1948 is a legislative enactment meant for the levy of Duty on the sale and consumption of electrical energy in the State. Section 3 being the charging section in so far as the levy of "duty" is concerned, lays down that there shall be levied and paid to the State Government on the units consumed or sold, a duty at the rate specified in the Schedule. Sub -section (2) of Section 3 however exempts six categories or class of consumption of electrical energy from payment of this duty. For ready reference we reproduce Section 3 which reads thus: - - "3. Incidence of Duty. - -1) Subject to the provisions of Sub -section (2), there shall be levied and paid to the State Government on the units of energy consumed or sold, excluding loses of energy in the transmission and transformation a duty at the rate or rates specified in the Schedule. (2) No duty shall be leviable on units of energy - (a) consumed by the Government of India, or sold to the Government of India, for consumption by that Government; (b) consumed in the construction, maintenance or operation of any railway company operating that railway, or sold to that Government or any such Railway company for consumption in the construction, maintenance or operation of any railway, (c) consumed by the licensee in the construction, maintenance and operation of his electrical undertaking: (d) consumed by or sold by any class of persons exempted from payment of duty under Section 9; (e) consumed by the Damodar Valley Corporation for the generation, transmission or distribution of electricity by that Corporation; (f) consumed for any purpose which the State Government may, by notification, in this behalf declare to be a public purpose and such exemptions may be subject to such conditions and exemptions if any, as may be mentioned in the said notification. 3. When a licensee holds more than one licence, duty shall be payable separately in respect of each licence."
(3.) SECTION 4 of the Act stipulates that every licensee shall pay every month to the State Government duty payable under Section 3 of the units of energy consumed by it or sold by it to the consumers and that the licensee may recover from its consumers the amount which falls to be paid by the licensee as duty in respect of the energy sold by it to the consumers. Section 4 reads thus: - - 4. Payment of duty. - -(1) Every licensee shall pay every morfth to the State Government at the time and in the manner prescribed the proper duty payable under Section 3 on the units of energy consumed by him or sold by him to the consumer. (2) Every licensee may recover from the consumer the amount which falls to be paid by the licensee as duty in respect of the energy sold to the consumer. (3) The licensee may, for the purpose of Sub -section (2), exercise the power conferred on a licensee by Sub -section (1) of Section 24 of the Indian Electricity Act, 1910 (9 of 1910) for the recovery of any charge or sum due in respect of energy supplied by him. (4) Every person including any department of the State Government, other than a licensee, who generates energy for his own use or for the use of his employees, or party for such use and partly for sale, shall every month at the time and in the manner prescribed the proper duty payable under Section 3, on the units of energy consumed by him or his employees or sold by him. (4a) Every person other than a licensee who obtains for sale or partly for his own use and partly for sale, bulk supply of energy generated by a licensee or other person shall pay every month to the State Government at the time and in the manner prescribed, the duty payable under Section 3 on the units of energy so obtained and sold or partly sold and partly consumed by him. (5) The licensee or other person who is liable to pay duty under this Act shall, subject to the prescribed conditions, be entitled to a rebate of such percentage as may be prescribed on the amount of duty paid by him within the prescribed time." These two sections thus deal with the issues relating to the chargeability of the duty and the liability to pay the same to the State Government. Section 3A was introduced in the Act by way of an amendment in the year 1985. It reads thus: "3A. Surcharge. - -(1) Subject to provisions of Clauses (a), (b) and (c) of Sub -section (2) of Section 3, every licensee or every other person other than the licensee who is liable to pay duty under Section 4 shall pay in addition to the duty payable under Sub -section (1) of Section 3, surcharge at the rate of two paise per unit of energy consumed or sold; (2) Notwithstanding anything to the contrary contained in this Act. no licensee, or other person who is liable to pay surcharge shall be entitled to collect the amount of surcharge as such from the consumer. (3) All provisions of this Act and the Rules framed thereunder, relating to the payment, assessment, recovery and refund of the duty shall also apply to the payment, assessment, recovery and refund of the surcharge.;