M.Y.EQBAL, J. - (1.) IN this application under Article 226 of the Constitution of India, the petitioner M/s. Atibir Hi -Tech Pvt. Ltd has prayed for quashing the order dated 3.3.2006 issued by the Deputy Commissioner of Commercial Taxes, Giridih Circle, Giridih, whereby petitioner's application elated 27.1.2006 for cancellation of registration certificate issued under Rule 4 of the Bihar Electricity Duty Rules, 1949 and for refund of the amount realized by way of electricity duty has been rejected and a direction has been issued to the petitioner to make payment of electricity duty together with surcharge.
(2.) THE petitioner is an industry having Induction Furnace and Rolling Mill at Mohanpur in Giridih said to have been set up in 1998. The petitioner purchases electricity from Damodar Valley Corporation for the purposes of its industry under the agreement executed between the Damodar Valley Corporation being the licensee and the petitioner company. The petitioner -company started its commercial activities from November, 1998. The petitioner's case is that under ill -advice, the petitioner applied for registration as an assessee under Rule 3 of the Bihar Electricity Duty Rules, 1949 and on 9.12.1999 the petitioner -company was registered under Rule 4 of the Bihar Electricity Duty Rules, 1949 and a registration certificate was issued on 4.1.2000 making the petitioner -company liable to pay duty for distribution and/or consumption of energy from 7.11.1998. The petitioner's further case is that since the respondents -Commercial Taxes Department has been wrongly and illegally realizing electricity duty and surcharge from the petitioner -company, it filed an application for cancellation of registration which was rejected by the impugned order. The Deputy Commissioner of Commercial Taxes, Giridih by notice dated 8.4.2006 directed the petitioner to deposit the amount of Rs. 3,47,708/ - on account of electricity duty due upto November, 2005 and also directed to file statement of returns of electricity duty payable by the petitioner -company. The petitioner's case is that it was not obliged to pay duty directly to the State and the Deputy Commissioner of Commercial Taxes illegally rejected the application for cancellation of registration. In the counter affidavit filed by the respondents -Commercial Taxes Department, firstly it was contended that the impugned order passed by the Deputy Commissioner of Commercial Taxes is revisable and the petitioner can file revision before the Joint Commissioner of Commercial Taxes, Hazaribagh under Rule 14(4) of the Bihar Electricity Duty Rules, 1949. The respondents' case is that the petitioner voluntarily filed application for registration along with copy of agreement dated 28th August, 1998 entered into with DVC for bulk purchase of electricity energy. In terms of the agreement, electricity duty or any other levy imposed by the Government of West Bengal or the Government of Bihar or the Government of India or any other competent authority in respect of energy generated by the Corporation and purchased by the petitioner from DVC shall be paid by the petitioner. It was stated that the petitioner has been regularly filing returns for the bulk purchase of electrical energy horn DVC and paying electricity duty. In any case, the petitioner is liable to pay electricity duty under the Act and the Rules.
(3.) IN the counter affidavit filed by respondent No. 6 DVC, it is stated that the provisions of Electricity Act and the Electricity Duty Act are not applicable so far the present case is concerned. The petitioner and the respondent -DVC are governed by the Damodar Valley Corporation Act, 1947. It was further stated that as per the agreement entered into between the petitioner and the Damodar Valley Corporation, the former is liable to pay the duty and all taxes to the competent authority.;