Judgment R.A.SHARMA, J. 1. The petitioner manufactures iron and steel and various other iron and steel products. It generates electric power and also purchases power from the Bihar State Electricity Board and the Damador Valley Corporation. The power so produced and purchased by it is partly used for its captive use and partly sold to its associate companies. 2. The petitioner has filed this writ petition challenging the order passed by the appellate authority (Annexure 2 to the writ petition) under the Bihar Electricity Duty Act, 1948 , (hereinafter referred to as the Act) holding the petitioner liable to pay the surcharge under Sec. 3-A on the units of energy sold by it to its associate companies during the assessment years 1985-86 to 1988-89 (hereinafter referred to as the period in question). The validity of Sec. 3-A of the Act has also been challenged. On 15-1-91, while admitting the writ petition, a Division Bench of this Court passed the following interim order :- "So far prayer for stay in C.W.J.C. No. 92 of 1991(R) is concerned, it was submitted that the Petitioner-Associate Companies, to whom electricity was supplied, have paid surcharge on the electricity duty under Sec. 3A of the Bihar Electricity Excise Duty Act, 1948. In view of this position, the respondents are restrained from raising demand against the petitioners for payment of surcharge, during the pendency of this application." 3 The respondents have filed their counter-affidavit and the petitioner has filed rejoinder in reply thereto. We have heard the learned counsel for the parties. 4. The learned counsel for the petitioner has raised the following points/submissions in support of the writ petition :- (i) Sec. 3-A of the Act being discriminatory is violative of the Article 14 of the Constitution of India.(ii) No surcharge can be realized from the petitioner on electricity generated by it for captive consumption.(iii) As the surcharge for the period in question on the units of energy sold by the petitioner to its associate companies has already been paid by those companies, it is not open to the respondents to realize surcharge from the petitioner also for the same units.(iv) The appellate authority has no power to review its order passed earlier which has become final. In any case the reasons given by the appellate authority in support of review are not liable to be sustained, being contrary to the record.(v) That part of the assessment order, wherein it has been held that the surcharge is liable to be paid by the associate companies and not by the petitioner, not having been challenged in the appeal, was not liable to be interfered with by the appellate authority.(vi) The surcharge under Sec. 3-A is liable to be paid by the same person who is to pay the duty under Sec. 3 of the Act and as the duty for the period in question was paid by the associate companies, the surcharge is liable to be paid and has in fact been paid by them and it is not open to the respondents to realize the same from the petitioner. 5. The learned counsel for the petitioner has conceded that the first two points/submissions have already been decided against the petitioner by a Division Bench of this Court in its earlier writ petition in Tata Iron and Steel Company V/s. State of Bihar, 1997 (2) All PLR 423, wherein the validity of Sec. 3-A has been upheld and the petitioner has been held liable to pay the surcharge on the electricity generated by it. These submissions, therefore, need no further discussion. 6. Before dealing with the third point on merit it is appropriate to notice the relevant statutory provisions.The State of Bihar has passed the Act providing for levy of electricity duty on the units of energy consumed or sold. Sub-sec. (1) of Sec. 3 being the charging section is reproduced below :- "3. Incidence of duty- (1) Subject to the provision of Sub-sec. (2) there shall be levied and paid to the State Government on the units of energy, consumed or sold, excluding losses of energy in transmission and transformation a duty at the rate or rates specified in the Schedule." 7. Who will pay the duty has been dealt with in Sec. 4, which is reproduced below :- "4. (2) there shall be levied and paid to the State Government on the units of energy, consumed or sold, excluding losses of energy in transmission and transformation a duty at the rate or rates specified in the Schedule." 7. Who will pay the duty has been dealt with in Sec. 4, which is reproduced below :- "4. Payment of duty.- (1) Every licensee shall pay every month to the (State) Government at the time and in the manner prescribed the proper duty payable under Sec. 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 fails 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-sec. (2), exercise the power conferred on a licensee by Sub-sec. (1) of sec. 24 of the Indian Electricity Act, 1910, (IX 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 partly for such use and partly for sale, shall pay every month at the time and in the manner prescribed the proper duty payable under Sec. 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 Sec. 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." 8. Under Sec. 4(1) the licensee is required to pay the duty on the unit of energy consumed by him or sold by him to the consumer but Sub-sec. Under Sec. 4(1) the licensee is required to pay the duty on the unit of energy consumed by him or sold by him to the consumer but Sub-sec. (2) has authorised the licensee to recover the amount so paid by him as duty from the consumer. Sub-sections (4) and (4a) of the said section have fixed liability to pay the duty on the person other than the licensee also. 9. In 1985 Sec. 3A was inserted in the Act providing for levy of surcharge in addition to the duty payable under Sub-sec. (1) of Sec. 3 @ 2 paise per unit of energy consumed or sold. Sub-sec. (1) of Sec. 3-A being relevant is reproduced below :- "3A. Surcharge - (1) Subject to the provision of clauses (a), (b) and (e) of Sub-sec. (2) of Sec. 3, every licensee (or every other person other than the licensee who is liable to pay duty under Sec. 4) shall pay, in addition to the duty payable under Sub-sec. (1) of Sec. 3, surcharge at the rate of two paise per unit of energy consumed or sold." 10. In 1990 Sec. 3A was amended by the State Act No. II of 1990 making persons other than the licensee also liable for payment of surcharge. Sec. 3A as it stands after its amendment made in 1990 is as under :- "3A. Surcharge - (1) Subject to the provision of clauses (a), (b) and (e) of Sub-sec. (2) of Sec. 3, every licensee (or every other person other than the licensee who is liable to pay duty under Sec. 4) shall pay, in addition to the duty payable under Sub-sec. (1) of Sec. 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 this 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." Note :- The underlined portion within brackets in sub-sections (1) and (2) have been added byamendment made in 1990. 11 Sec. 5 requires every licensee and every other person who is liable to pay duty to submit returns. 11 Sec. 5 requires every licensee and every other person who is liable to pay duty to submit returns. Failure to submit returns invites penalty according to Sec. 5. Sec. 9A provides for appeal against an order of assessment or penalty or both within the prescribed period and under a prescribed manner to the prescribed authority. 12. The Bihar Electricity Duty Rules, 1949 , (hereinafter referred to as the Rules) have been framed under the Act. Rule 2(b) defines assessee as under :- "2(b) "assessee" means a licensee or any other person who is liable to pay duty under the Act."Rules 3 and 4 require every assessee to be registered. Rules 9 and 9A have specified the authorities before whom and the form in which the returns are to be filed. Rule 11, which has fixed the last point in a series of transfer of the same energy, at which duty payable is to be levied, is as under :- "11. Point at which duty is payable in a series of transfers.- Where there is a series of transfers of the same energy, the duty payable shall be levied only at the last point in such series of transfers." Rule 14 has specified the authorities before whom the appeal and revision are to be filed. Rule 15 has provided for refund of the duty or penalty paid by an assessee and the proviso appended thereto has fixed the period of six months of the date of passing of the order or assessment or within three months of the date of the final order passed in appeal or revision whichever is earlier for seeking refund. 13 The petitioner is a licensee as defined in Sec. 2(d) of the Act. Being a licensee, it is also an assessee in terms of Rule 2(b). It was assessed to surcharge for the period in question by the Assessing Officer on the units of energy consumed and sold by it. It challenged the assessment order by filing appeal. Although the appellate authority accepted the contention of the petitioner about the liability to pay surcharge on the energy sold by it to the associate companies holding that the surcharge is to be paid by the same person who pays the duty but rejected its other contention relating to its liability to surcharge on the electricity generated by it. Although the appellate authority accepted the contention of the petitioner about the liability to pay surcharge on the energy sold by it to the associate companies holding that the surcharge is to be paid by the same person who pays the duty but rejected its other contention relating to its liability to surcharge on the electricity generated by it. The appellate authority, thus, partly allowed its appeal and remanded the matter to the Assessing Officer for deciding it afresh. 14. After the remand, the Assessing Officer assessed the petitioner to surcharge on the electricity generated by it but as regards the electricity sold by it to the associate companies, it was held that surcharge is to be paid by those companies and not by the petitioner. The petitioner again filed the appeal challenging that part of the assessment order whereby and whereunder it was held liable to pay surcharge on the electricity generated by it. The appellate authority, vide the impugned order, has not only dismissed the appeal upholding that part of the assessment order whereby the petitioner has been held liable to pay surcharge on the electricity generated by it but has also declared that the petitioner is liable to pay surcharge on the electricity sold by it to its associate companies even though the surcharge on the same energy has already been paid by those companies. 15. The fact that surcharge for the period in question on the electricity sold to the associate companies by the petitioner has been realized from those companies by the respondents is not disputed. In paragraph No. 19(i) and (iv) of the writ petition, it has been stated that the surcharge on the electricity sold by the petitioner to the associate companies has been paid by those companies and the same has been accepted by the respondents. The said averments have not been denied in the counter-affidavit. This is apparent from paragraph Nos. 22 and 25 of the counter-affidavit which contained the reply of the paragraph Nos. 19(i) and (iv) of the writ petition. Again in paragraph Nos. 5 and 8 to the rejoinder affidavit, the petitioner has reiterated the same thing saying that the associate companies have paid the surcharge on the energy transferred to them. The petitioner has also filed certificates issued by those companies containing their statement that they have paid the surcharge for the period in question. 16. Again in paragraph Nos. 5 and 8 to the rejoinder affidavit, the petitioner has reiterated the same thing saying that the associate companies have paid the surcharge on the energy transferred to them. The petitioner has also filed certificates issued by those companies containing their statement that they have paid the surcharge for the period in question. 16. The period in dispute regarding which surcharge is demanded from the petitioner is the assessment years 1985-86 to 1998-89, i.e. from the time when Sec. 3-A was introduced in the Act till it was amended in 1990. For the period in question the associate companies to whom the electricity was sold by the petitioner have already paid surcharge in addition to the party by them. But the respondents are demanding the surcharge for the same period from the petitioner also on the ground of it being a licensee. After the amendment of Sec. 3A of 1990 the surcharge is not being demanded from the petitioner on the electricity sold by it to its associate companies and the said companies as usual are paying both the duty and the surcharge. 17. The question is as to whether it is open to the Government to realize surcharge on the same energy from both the seller and the consumer. The answer is in negative. 18. Sec. 3A imposes surcharge in addition to duty payable on the energy consumed or sold at the rate specified thereunder. According to Rule 11, in a series of transfers of the same energy the duty is to be levied at the last point in such series of transfer. Although Rule 11 relates to duty but in view of the Sub-sec. (3) of Sec. 3A, all provisions of the Act and the rules framed thereunder relating to payment, assessment, refund and recovery of duty shall apply to payment, assessment, refund and recovery of surcharge. Rule 11 is thus applicable to surcharge also. The last point in the instant case is the transfer of energy by the petitioner to the associate companies. It is at this point that both the duty and the surcharge is to be levied. It is admitted in the counter-affidavit filed by the respondents that the liability to pay duty on the energy sold by the petitioner to the associate companies is on those companies and not on the petitioner. It is at this point that both the duty and the surcharge is to be levied. It is admitted in the counter-affidavit filed by the respondents that the liability to pay duty on the energy sold by the petitioner to the associate companies is on those companies and not on the petitioner. This fact is also mentioned/admitted in the impugned order. But the case of the respondents is that Sec. 3A as it was before its amendment requires payment of surcharge by the licensee only and the petitioner being the licensee has to pay the same. Presuming it is so, it has neither been explained in the counter-affidavit, nor has it been mentioned in the impugned order as to why the surcharge was levied on the associate companies on the same energy regarding which the surcharge is being demanded from the petitioner. The associate companies are registered assessees under the Act and the rules framed thereunder. It has been so stated in paragraph No. 10 of the writ petition which has not been denied by the respondents in their counter-affidavit. The associate companies being the assessee had filed their returns and had paid both the duty and surcharge under the Act for the period in question on the energy sold to them by the petitioner. In the first appellate order (Annexure 1 to the writ petition) it is mentioned that the returns of the associate companies were filed before the appellate authority. It was open to the respondents not to levy surcharge on the associate companies on the energy sold to them by the petitioner and not to realize the same from those companies but that was not done. The respondents having levied and realized the surcharge from the associate companies on the energy sold to them by the petitioner, it is not open to them to realize the surcharge on the same energy from the petitioner also. Sec. 3A imposes surcharge on the units of energy "consumed or sold". The Government can, therefore, levy surcharge either on consumption or sale of the energy but it cannot subject both the consumption and sale of the same energy to surcharge. If the Government realizes surcharge both from the seller and the consumer, it will be realizing surcharge @ 4 paise per unit instead of 2 paise per unit which will be contrary to Sec. 3A. If the Government realizes surcharge both from the seller and the consumer, it will be realizing surcharge @ 4 paise per unit instead of 2 paise per unit which will be contrary to Sec. 3A. The Act does not contemplate levy of surcharge on both the seller and the consumer for the same energy. 19. The submission of the learned counsel for the respondents to the effect that associate companies can seek refund of the surcharge paid by them is not sustainable for two reasons, viz., firstly Rule 15 of the Rules has fixed the period of six months from the date of the assessment order for seeking refund, which period has already expired long ago, and; secondly none of the associate companies who have paid surcharge has ever sought its refund. In fact, the associate companies have issued certificates to the effect that they have paid surcharge for the period in the question in the electricity sold by the petitioner to them and those certificates have been filed as annexures to the rejoinder affidavit of the petitioner. 20. It is, therefore, not open to the respondents to realize surcharge from the petitioner on the same energy on which surcharge has already been paid by its associate companies. Accordingly the third submission raised by the learned counsel for the petitioner has to be accepted. 21. Before parting with this question, it may be mentioned that while holding the petitioner liable to pay surcharge on the energy sold by it to its associate companies the appellate authority has ignored its earlier order of remand with the observations that due to inadvertence, in place of not accepted, the word accepted was written therein while dealing with the petitioner submission regarding its liability to pay surcharge on the energy sold by it to the association companies. This is factually incorrect being contrary to the record.It is quite apparent from the perusal of the first appellate order that the appellate authority has expressly held that the surcharge is to be paid by the person who is liable to pay the duty. Having held as above, the appellate authority accepted the petitioner submission. It is not a case of typing or typographical error and it is also not a case where "accepted" in place of "not accepted" has been written due to forgetfulness/inadvertence. 22. Having held as above, the appellate authority accepted the petitioner submission. It is not a case of typing or typographical error and it is also not a case where "accepted" in place of "not accepted" has been written due to forgetfulness/inadvertence. 22. As we are accepting the third submission made by the learned counsel for the petitioner, it is not necessary to deal with his other remaining submissions. 23. This writ petition is accordingly partly allowed. The impugned appellate order (Annexure-2 to the writ petition), in so far as it has held the petitioner liable to pay surcharge on the same energy on which the associate companies have paid the surcharge for the period in question, is quashed. The remaining part of the order upholding the liability of the petitioner to pay surcharge on the electricity generated by it is upheld. No costs. 24. A. K. PRASAD, J. :- . I agree.Petition partly allowed.