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TMI Blog2019 (12) TMI 1644X X X X Extracts X X X X X X X X Extracts X X X X ..... been heard together and are being disposed of by this common Judgment. 3. These writ applications relate to the electricity duty payable by the petitioner Company for the Years 2005-06 to 2010-11. The petitioner Company is having its captive mines and it consumes electricity in the mining process, as well as the washing of the coal extracted after the mining, in their washeries. These writ applications relate to the electricity duty payable by the petitioner Company on the electricity consumed in washing the extracted coal. The petitioner Company claimed that since washing was not a mining process, and it was an industrial process, the petitioner was liable to make the payment of electricity duty @ 0.02 paise / unit only, and also paid the electricity duty at the same rate. Whereas the stand of the State is that the washing of the extracted coal is also the mining process, and accordingly, the petitioner Company was liable to pay the electricity duty @ 0.15 paise / unit of the consumption of electricity. 4. By the different orders dated 30.06.2010, 05.08.2010, 18.12.2010 and 01.03.2012, passed by the Assessing Authority, i.e., in W.P. (T) No. 2557 of 2019, the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he letters had been issued to the Commissioner of Commercial Taxes, for granting sanction for review. It is apparent from the order-sheet of the review proceedings, that the sanction was never granted by the Commissioner of Commercial Taxes. After hearing the parties the review orders were ultimately passed on 30.01.2014 in all these matters, which have been brought on record as Annexure-12 to the writ application, whereby the penalty have been imposed upon the petitioner Company for non-payment of electricity duty at the prescribed rate, within the prescribed period. These orders also clearly show that they have been passed in exercise of power of review. 7. Learned counsel for the petitioner has drawn our attention towards Section 9-A of the Bihar Electricity Duty Act, (herein after referred to as the 'Act'), as adopted by the State of Jharkhand as well, wherein sub-Section (3) prescribes that subject to the Rules and for the reasons to be recorded in writing, the prescribed authority may, upon application or of its own motion, revise any order passed under the Act, or the Rules made thereunder, and sub-Section (4) provides that an order of review may be passed by an aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsels for the State that the penalty orders could be passed by any authority prescribed under the Act, as in fact, this is only a clerical exercise of calculation of the penalty to be paid according to the Act and under the Rules, for the delayed payment of the electricity duty, or the part there of. 10. Learned counsels for the State have also drawn our attention to an earlier Judgement of this Court in the case of the petitioner themselves, in W.P.(T) No. 2593 of 2010 (Tata Steel Limited Vs. State of Jharkhand & Ors., decided on 24.06.2010), in which the issue to be adjudicated was whether the petitioner Company was liable to make the payment of the electricity duty @ 0.02 paise / unit of the electricity consumed, claiming the electricity to be consumed in industrial purpose, or the Company was liable to make the payment of electricity duty @ 0.15 paise / unit, as the electricity was consumed in mining purpose. This Court, relying upon the decision of the Hon'ble Apex Court in Chowgula & Co. Pvt. Ltd. & Anr. Vs. Union of India and Ors., reported in (1981) 1 SCC 653, came to the conclusion that the basic contention of the petitioner that the electricity consumed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order or assessment with or without penalty passed under this Act, or the rules made thereunder may, within the prescribed period and in the prescribed manner, appeal to the prescribed authority against such order of assessment or penalty or both: Provided that no appeal shall be entertained by such authority unless it is satisfied that twenty percentum of the duty assessed or such amount of duty as the appellant may admit to be due from him, whichever is greater, has been paid. Provided further that where the prescribed authority revises any order of its motion, no proceeding for such revision shall be initiated at any time except before the expiry of two years from the date of the said order. (2) Subject to such rules as may be prescribed, the appellate authority may, in disposing of an appeal under subsection (1)- (a) confirm, reduce, enhance or annul the assessment or penalty, or both; or (b) set aside the assessment or penalty, or both, and direct the assessing authority to make a fresh assessment after making such further inquiry as may be directed by the appellate authority. (3) Subject to such rules as may be prescribed and for reasons to be recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than order passed by the Commissioner, shall not be reviewed more than twelve months after the date of the passing of the order which is sought to be reviewed. (11) No authority below the rank of Commissioner, shall review an order which has been passed by its predecessors in office, except with the previous sanction of the Commissioner." 13. From the perusal of Rule 12 (1) of the Rules, it is thus, clear that the Commercial Taxes Officer and the Deputy Commissioner of Commercial Taxes are the officers of the same rank, so far as the assessment order is concerned. Rule 14(10) & (11) clearly prescribe that for reviewing any order, other than the order passed by the Commissioner, the sanction of the Commissioner in writing is required, and such review cannot be made beyond the period of 12 months from the date of the passing of the order sought to be reviewed, and further, an order can be reviewed by an officer, who is the successor-in-office of the officer who had passed the order sought to be reviewed, only with the previous sanction of the Commissioner, even if the order is sought to be reviewed within the period of 12 months. 14. The case of the petitioner Company is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w proceedings had been initiated, and the letters had been issued to the Commissioner of Commercial Taxes, for granting sanction for review. According to Section 9-A (4), the prescribed authority to review an order, would be the officer who had passed the order, or his successor-in-office. In W.P.(T) No. 2557 of 2019, the review order has been passed by the same authority who had passed the assessment order, whereas in all other matters, the review orders have been passed by the Deputy Commissioner of Commercial Taxes, whereas the assessment orders were passed by the Commercial Taxes Officer, and as such, the review orders have been passed by the authority successor-in-office, in accordance with Section 9A (4) of the Act, read with Rule 12 (1) of the Rules. Annexure-8 to the writ applications show that when the audit objection was raised by the audit team and it was pointed out to the Deputy Commissioner of Commercial Taxes, Ramgarh Circle, the Deputy Commissioner responded that the assessment order would be reviewed. 17. In that view of the matter, the submission of the learned counsels for the State that the order is not an order passed in review, rather it is an order passed su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of one year. As such, these penalty orders cannot be sustained in the eyes of law. Consequently, the subsequent orders / Judgement passed by the Commissioner of Commercial Taxes, Ranchi, and the Tribunal, also cannot be sustained in the eyes of law. 20. For the foregoing reasons, all the penalty orders dated 30.1.2014, as contained in Annexure-12 to the writ applications and the revisional orders dated 21.5.2014 passed by the Commissioner, Commercial Taxes, as contained in Annexure-14 to the writ applications, as also the impugned Judgment dated 13th August, 2018, passed by the Tribunal in Revision Petition Nos. HZ-ED-66, 67, 68, 69, 70 & 71 of 2014, are hereby, set aside. Consequently, the penalty amount deposited / recovered from the petitioner Company are directed to be refunded / adjusted in the future bills towards the electricity duty. 21. At this stage, learned Additional Advocate General prays for liberty to the authorities to proceed in accordance with law. It is made clear that we have not stopped any authority to exercise his powers permitted under the law. 22. All these writ applications are accordingly, allowed with the direction and observation as above. All the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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