Order Per D.N. Patel. J.- 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. 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 vs. Income-tax Officer, as reported in A.I.R. 1969 SC 285, and in the case of Woodlands Hotel (P) Ltd. vs. State of Karnataka, as reported in (1995) 97 STC 251. 4. Learned counsel for the petitioner has relied upon the decisions, rendered in the case of Kalva Suryanarayana vs. Income-tax Officer, as reported in A.I.R. 1969 SC 285, and in the case of Woodlands Hotel (P) Ltd. vs. State of Karnataka, as reported in (1995) 97 STC 251. 4. Learned counsel for the respondent-State submitted that the petitioner is already paying the electricity duty under the provisions of the Act, 1948 and looking to the provisions of Section 3-A(1) of the Act, 1948, surcharge is leviable from a person, who is liable to pay duty under Section 4 of the Act, 1948. The petitioner has never raised any objection for collection of electricity duty tinder Section 4 of the Act, 1948, and, thus, the petitioner admits its liability to make payment of electricity duty under Section 4 of the Act. 1948. There is no challenge worth the name about the aforesaid aspect in this writ petition and, therefore, the petitioner cannot deny the liability to make payment of surcharge. It is also submitted by the learned counsel for the respondent-State that in the counter affidavit, filed by the State, at paragraph no. 6(a) it has been mentioned categorically that an order of assessment was passed under Rule 12(1) of the Rules, 1949. The petitioner is purchasing electricity in a bulk quantity from the D.V.C. and as per the petitioner itself, the electricity is partly used for its collieries/washeries and partly for its employees and the petitioner is allowing free consumption only up to 30 KWH per residential unit per month and beyond this limit, if there is any consumption by the employee, such employee is required to make payment for consumption of electricity. Thus, as per Section 4(4a) of the Act, 1948, the petitioner is falling Within the words "every person other than a licensee" and because of this fact, the peti~ tioner is making payment of electricity duty, without any protest under Section 4 of the Act, 1948 for the aforesaid period i.e. for the period running from 1999-2000 to 2003-04 and once there is a liability to make payment of the duty, there is also a liability to make payment of surcharge, as per Section 3-A( 1) of the Act, 1948 and hence the orders at Annexures- 5 and 6 are true, correct, legal and in consonance with the provisions of the Bihar Electricity Duty Act, 1948 and the Rules, made there under, and, thus, this writ petition deserves to be dismissed. 5. Learned counsel appearing for the Damodar Valley Corporation, which is respondent no. 5 in this writ petition, submitted that there is an agreement between the D.V.C. and the petitioner to pay the electricity duty and as per Clause 17 of the said agreement, the petitioner is liable to make payment of the electricity duty. The petitioner is not disputing its liability to make payment of the electricity duty. It is further submitted by the learned counsel for the D.V.C. that it is incorporated under the Damodar Valley Corporation Act, 1948 and as per Section 20 thereof, a contract has been entered into between the petitioner and the D.V.C. and as per Clause 17 thereof, the petitioner is liable to make payment of electricity duty, which the petitioner is paying since the years together without any protest or demur. The said contract is a statutory contract, in view of Section 20 of D.V.C. Act, 1948 and as per Section 58 of the D. V.C. Act, it has overriding effect upon the Bihar Electricity Duty Act, 1948, because D.V.C. Act, 1948 .is a specific Act, thereunder, D.V.C. has been incorporated and looking to Article 288 of the Constitution of India, the State law i.e. the Bihar Electricity Duty Act, 1948 cannot have an. overriding effect upon the D. V.C. Act, 1948. It has also been submitted by the learned Counsel appearing for the D.V.C. that even otherwise also, the petitioner is selling part of the electricity to its employees, if they are using electricity beyond the limit of 30 KWH per residential unit per month. overriding effect upon the D. V.C. Act, 1948. It has also been submitted by the learned Counsel appearing for the D.V.C. that even otherwise also, the petitioner is selling part of the electricity to its employees, if they are using electricity beyond the limit of 30 KWH per residential unit per month. It is submitted by the learned counsel for the D.V.C. that even if the rate charged by the petitioner from its employees is equal to the cost price, the said transaction can be said to be a sale and once there is sale of electricity, even at a rate of cost to cost basis, petitioner will be covered by Section 4(4a) of the Act, 1948 and once the petitioner is covered by Section 4(4a) of the Act, 1948, the petitioner is also liable to make payment of surcharge as per Section 3-A(1) thereof. It is submitted that the petitioner is not raising any dispute for its liability to make payment of electricity duty under Section 4 of the Act, 1948 and, therefore also, it cannot deny its liability to make payment of surcharge under the Act, 1948 and, therefore, this writ petition deserves to be dismissed. 6. Having heard learned counsel for the parties and looking to the facts and circumstances of the case, we see no reason to entertain this writ petition, mainly for the following facts and reasons Liability to pay electricity duty under the Bihar Electricity Duty Act. 1948: (I) The petitioner, which is Central Government Undertaking, is purchasing electricity in bulk from Damodar Valley Corporation (D.V.C.). It has several collieries and coal washeries in thirteen different areas, including Piparwar Area. The present matter relates to the collieries/coal washeries of Piparwar Area. Out of the total electricity purchased from D.V.C., the petitioner distributes it to its different units, including its collieries/coal washeries at Piparwar Area and also to its different offices, quarters of employees, hospitals and is also using the same for streetlight of its campus and compound. (II) It also appears from the facts of the present case that the petitioner is providing free of charge consumption of electricity to its employees up to 30 KWH per residential unit per month and if any employee is consuming beyond the aforesaid limit of 30 KWH per month, he is required to make payment for consumption of electricity to the petitioner. Clause 8.3.1 of the agreement, entered into between the petitioner and its Trade Union (popularly. known as National Coal Wage Agreement-V) reads as under: "8.3.1: In the Coalfield areas where the employees are provided with quarters by the management and also electricity from the bulk supply obtained by them from the Electricity Board, the employees shall be entitled to a free consumption of 30 KWH per quarter per month on a uniform basis. For consumption beyond this limit, the employees will be required to pay at the same rates at which the Electricity Supply Undertakings charge the Coal Companies." (Emphasis supplied) Thus. it appears that part of the electricity purchased by the petitioner from the D. V.C. is used for its own purpose and part of the same for sale. (III) In view of Section 4 of the Act, 1948, the petitioner is liable to make payment of electricity duty. Section 4 of the Act, 1948 reads as under: "4. Payment of duty.- (I) Every licensee shall pay every month 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 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 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. (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 rebate of such percentage as may be prescribed on the amount of duty paid by him within the prescribed time." (Emphasis supplied) In view of the aforesaid provision of law, every person other than licensee, who obtains, for sale or partly for his own use and partly for sale the energy, shall pay every month to. the State Government the duty payable under Section 3 on the units, partly sold and partly consumed by him. As stated herein above, the petitioner, who has purchased bulk supply of energy from D.V.C. is partly using the same for its own purpose i.e. for collieries/coal washeries and partly for sale. Thus, the petitioner is' covered by the words "every person other than a Licensee", used in Section 4(4a) of the Act, 1948. (IV) It is vehemently contended by the learned counsel for the petitioner that the petitioner is charging from its employees for the consumption of electricity, if the consumption is beyond 30 KWH per month at the cost price. Learned counsel for the petitioner has relied upon a decision, rendered by the Hon'ble Supreme Court in the case of Woodlands Hotel (P) Ltd. vs. State of Karnataka, as reported in (1995) 97 STC 251 and submitted that even if the petitioner is charging for consumption of electricity from its employees, but, as the rate applied is cost to cost basis, there is neither any element of 'sale' nor there is any intention of sale and hence, the petitioner is not covered by the words "every person other than a licensee", as used in Section 4(4a) of the Act, 1948. . . This contention of the learned counsel for the petitioner is not accepted by this Court mainly for the following reasons: (a) Even if, the petitioner is selling electricity on cost to cost, basis to its employees, it remains sale of electricity; (b) Even if there is a sale with a zero percent profit or with negative profit i.e. at loss, then also sale remains sale. ' (c) While appreciating the word "sale" profit or loss is not a guiding factor at all. There may be a sale with profit or there may be a sale' with no profit no gain or there may be a sale even though there is a loss and therefore one should not contemplate profit while interpreting a word "sale" as used in Section 4(4a) of the Act. 1948. There is thus no need to look at a word 'sale' on canvass of the profit or loss arising out of the sale. (d) While interpreting the taxing statute, rules of strict interpretation shall be applied. Intention is not to be seen but action and its resultant effect is to be watched. The Bihar Electricity Duty Act, 1948 is a taxing statute and. therefore it must be interpreted strictly. Section 4 thereof imposes duty upon a person to make payment of duty, payable under Section 3 thereof for the energy consumed or partly consumed or partly sold. As per Section 4(4a) of the Act, 1948, every person other than a licensee, who obtains the energy for sale or partly for its own use and partly for sale, shall pay every month to the State Government the duty, payable under Section 3 of the Act, on the units of energy, so obtained and partly sold and partly consumed by him. It has been held by the Hon'ble Supreme Court in the case of Ajmera Housing Corporation & Am. VS. Commissioner of Income Tax, as reported in (2010)8 SCC 739 , at paragraph no. 36, as under: "36. It is trite law that a taxing statute is to be construed strictly. In a taxing Act one has to look merely at what is said in the relevant provision. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. There is no room for any intendment. There is no equity about a tax. In a taxing Act one has to look merely at what is said in the relevant provision. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. There is no room for any intendment. There is no equity about a tax. (See Cape Brandy Syndicate vs. IRC and Federation of A.P. Chambers of Commerce & Industry vs. State of A.P.). In interpreting a taxing statute, the court must look squarely at the words of the statute and interpret them. Considerations of hardship, injustice and equity are entirety out of place in interpreting a taxing statue. (Also see CST vs. Modi Sugar Mills Ltd.)." In view of the aforesaid decision, taxing statute should be interpreted strictly and, therefore, the submission made by the learned counsel for the petitioner that though the petitioner is charging for consumption of energy from its employees, it does not tantamount to sale of energy, is not accepted by this Court. Those who are selling electricity for profit or even at no profit no loss basis or at loss are covered by words "every person other than a licensee" used in Section 4(4a) of the Act. 1948. Thus, the petitioner is, covered by words "every person other than a licensee" as used in Section 4(4a) of the Act, 1948. Liability to pay surcharge under Bihar Electricity Duty Act. 1948: (V) It further appears from the provisions of Bihar Electricity Duty Act, 1948 that liability to pay surcharge arises out of Section 3-A thereof, which reads as under: "3A. Surcharge.-(1) Subject to the 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.-(1) Subject to the 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 this surcharge as such from the consumer; (3) All provisions of this Act and the Rules framed there under, relating to the payment, assessment, recovery and refund of the 'duty shall also apply to the payment, assessment, recovery and refund of the surcharge." (Emphasis supplied) In view of the aforesaid provisions of Section 3-A(1) of the Act, 1948, every person other than the licensee, who is liable to pay duty under Section 4 thereof, shall pay surcharge for the energy, consumed or sold. As held above, the petitioner being liable to make payment of duty under Section 4(4a) of the Act, 1948, is also liable to make payment of surcharge at the rate of two paise per unit of energy, consumed or sold. (VI) The petitioner has paid electricity duty payable under Section 3 of the Act. 1948 without any protest for the years in question i.e. for the years 1999-2000 to 2003-04. This liability is arising out of the applicability of Section 4 of the Act, 1948. As stated herein above, the petitioner is covered by the words "every person other than a licensee", used in Section 4(4a) of the Act, 1948. (VII) Once the liability to pay electricity duty is not disputed by the petitioner. the dispute raised by the petitioner about its liability to pay surcharge is nothing but a cry in the wilderness because as per Section 3-A(1) of the Act. 1948. every person other than the licensee who is liable to pay duty under Section 4 of the Act. 1948, shall also be liable to pay surcharge and therefore also the petitioner cannot now dispute its liability for payment of surcharge. In this petition also, no prayer has been made by the petitioner for declaration that the petitioner is not liable to pay the electricity duty. 1948, shall also be liable to pay surcharge and therefore also the petitioner cannot now dispute its liability for payment of surcharge. In this petition also, no prayer has been made by the petitioner for declaration that the petitioner is not liable to pay the electricity duty. There is no prayer for refund of the electricity duty, paid by the petitioner. Thus, the petitioner accepts its liability to pay the electricity duty as per Section 4(4a) to be read with Section 3 of the Act, 1948 and, therefore, the petitioner is also liable to pay surcharge, as per Section 3-A(1) of the Act, 1948. Statutory contract and liability to pay surcharge: . (VIII) The Damodar Valley Corporation is a statutory corporation and is incorporated under Damodar Vally Corporation Act, 1948. The object and reason of the D.V.C. Act is as under: "ACT NO. XIV OF 1948 An Act to Provide for the establishment and regulation of a Corporation for the development of the Damodar Valley in the Provinces of Bihar and West Bengal. ' Whereas it is expedient to provide for the establishment and regulation of a Corporation for the development of the Damodar Valley in the provinces of Bihar and West Bengal: And Whereas in pursuance of Section 103 of the Government of India Act, 1935 (26 Geo.5, c.2) resolutions have been passed by all the Chambers of the Provincial Legislatures of the said provinces to the effect that certain matters dealt within this Act which are enumerated in the Provincial Legislative List should be regulated in those provinces by Act of Dominion Legislature." Section 2(1) and 2(2) of the D.V.C. Act. 1948 reads as under: "In this Act, unless there is anything repugnant in the subject or context (1) "Corporation" means the Damodar Valley Corporation; (2) ,"Damodar Valley" includes the basin of the Damodar river and its tributaries." The aforesaid Act also provides for charge for supply of the electrical energy to be levied by D.V.C. Section 20 of the D.V.C. Act. 1948 reads as under: 20. Charges for supply of electrical energy. 1948 reads as under: 20. Charges for supply of electrical energy. -The Corporation, shall fix the schedule of charges for the supply of electrical energy, including the rates for bulk supply and retail distribution, and specify the manner of recovery of such charges: Provided that the Corporation may in any contract for bulk supply of electrical energy impose such terms and conditions including a retail rate schedule as it may deem necessary or desirable to encourage the use of electrical energy." (Emphasis supplied) In pursuance of the aforesaid Section 20 of the D.V.C. Act, 1948, the D.V.C. and the petitioner entered into a contract. which is statutory contract in nature. for bulk supply of electrical energy. Section 18 prescribes the bulk supply of energy. Clause 17 of the contract entered into between the D.V.C. and the petitioner reads as under: "17. Any levy such as Sales Tax, Electricity duty, Octroi or otherwise by whatsoever name or names called or either described by the Govt. of West Bengal or Govt. of Bihar or Govt. of India or any other competent authority in respect of energy generated by the Corporation and/or purchased by the consumer from the Corporation shall be paid by the consumer." (Emphasis supplied) (IX) In view of the aforesaid Clause 17, the petitioner is paying electricity duty without any protest or without raising any objection, for the years in question i.e. for the years 1999-2000 to 2003-04. Never any objection has been raised by the petitioner for payment of electricity duty. In this petition also, the only dispute which is raised is for the liability towards payment of surcharge only and for refund of surcharge, already paid. The aforesaid contract is statutory contract in view of Section 20 of the D.V.C. Act, 1948. (X) D.V.C. Act, 1948 has an overriding effect, as per Section 58 thereof. Section 58 of the D. V.C. Act, 1948 reads as under: "58. Effect of other laws.- The provisions of this Act or any rule made there under shall have effect notwithstanding anything contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act." (Emphasis supplied). Section 58 of the D. V.C. Act, 1948 reads as under: "58. Effect of other laws.- The provisions of this Act or any rule made there under shall have effect notwithstanding anything contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act." (Emphasis supplied). (XI) Thus, looking to the conjoint reading of Section 20, Section 58 and Clause 17 of the contract between the D.V.C. and the petitioner, the petitioner is liable to make payment of electricity duty payable under Section 4 of the Act, 1948 and once there ,is a liability to make payment of electricity duty upon the petitioner as per Section 4 of the Act, 1948, there is also a legal obligation upon the petitioner to pay surcharge upon the energy consumed or sold. as per Section 3-A(1). Even otherwise also, the words "any levy" in Clause 17 of the contract between the D.V.C. and the petitioner, include surcharge. As per Clause 17 of the contract which is statutory in nature the sale tax electricity duty octroi or any levy by whatever name or names called or described by the State authorities in respect to energy purchased by the petitioner from the D.V.C. shall be paid by the petitioner. The surcharge is covered by this Clause because it is also a levy in respect of energy. Procedural compliance of the Bihar Electricity Duty Rules. 1949: (X) It has been stated in an affidavit-in-reply by the respondent-State in paragraph no. 6(a) and (b), as under: 6. xxx xxx xxx (a) That the amount collected by the respondent No.4 under Section 7 A is legal because the same was amount of surcharge and the same was liable to be paid under Section 3 A of the Act. The recovery was made after the assessment order. passed under Rule 12(10). (b) That the respondent no. 4 after verification of returns' filed by the petitioner has completed the assessment and thereafter the recovery proceeding was started. Thus the contention, which has been raised by the learned counsel for the petitioner that there is no assessment order, is denied by the respondents. Learned counsel for the respondents has presented the order sheets dated 3rd January, 2004, 28th January, 2004, 9th February, 2004 and there is a counter signature also. Thus the contention, which has been raised by the learned counsel for the petitioner that there is no assessment order, is denied by the respondents. Learned counsel for the respondents has presented the order sheets dated 3rd January, 2004, 28th January, 2004, 9th February, 2004 and there is a counter signature also. The petitioner has consumed 9,01 ,00,508 units and the surcharge is to be levied at the rate of two paise per unit and, there for 90100508 X 2 paise is equal to Rs.18,02,010.16 paise. This amount was calculated by the respondents for Registration No. HL/ED-12. Notice of demand was also issued on 9.2.2004, which was received by the petitioner. This is for the period 1999-2000. Similarly, there are notices of demand and assessment orders for subsequent years also. (XI) It has also been stated at• paragraph no. 11 of the counter affidavit, filed by the State, that though the petitioner is paying electricity duty and is filing returns also, as stated in paragraph no. 16 of the petition, but, has not deposited surcharge payable under Section 3-A of the Act, 1948. The petitioner has, thus, knowingly evaded payment of surcharge and, as such, the present case is a case of evasion of payment of surcharge by the petitioner. Thus, there is a due compliance of the Bihar Electricity Duty Rules, 1949, especially Rules 12 and 13 thereof. (XII) Even otherwise also, as stated in paragraph no. 16 of the counter affidavit, filed by the respondent State, there are full details in the returns, filed by the petitioner of the energy consumed and the rate of surcharge is two paise per unit. Thus. on the basis of admitted facts also surcharge can be calculated. especially when the Petitioner has no objection for payment of electricity duty for the units consumed by it. On the basis of this very consumption of units of electricity surcharge can calculated by multiplying the number of units by two paise per unit. Refund of Surcharge: (XIII) It is vehemently contended by the learned counsel for the petitioner that the respondents must refund the surcharge levied from the petitioner. On the basis of this very consumption of units of electricity surcharge can calculated by multiplying the number of units by two paise per unit. Refund of Surcharge: (XIII) It is vehemently contended by the learned counsel for the petitioner that the respondents must refund the surcharge levied from the petitioner. This contention is not accepted by this Court, mainly for the reasons that: (a) The petitioner is liable to make payment of electricity duty as per Section 4(4a) of the Act, 1948 and the petitioner is covered by the words "every person other than a licensee" used under Section 4(4a) of the Act, 1948; (b) The petitioner has never objected and has already paid the electricity duty for the years in question i.e. 1999-2000 to 2003-04. This payment has already been made by the petitioner towards the electricity duty, without any protest; (c) A person, who is liable to make payment of electricity duty, is also liable to make payment of surcharge, as per Section 3-A(1) of the Act, 1948; (d) Looking to the provisions of D.V.C. Act, 1948, especially Section 20 to be read with Section 58 of the D.V.C. Act, 1948 with Clause 17 of the contract, entered into between the petitioner and the D.V.C., the petitioner is liable to make payment of electricity duty, which the petitioner has already paid for the years in question; without raising any objection and, therefore also, the petitioner is liable to make payment of surcharge. The words "any levy" used in Clause 17 of the statutory contract, entered into between the petitioner and the D.V.C., includes surcharge. (e) As per National Coal Wage Agreement-V, entered into between the petitioner and its Trade Union, the petitioner is charging for every unit of electricity from its employees if the consumption is beyond 30 KWH per residential unit per month. Thus. there is a sale of energy. Sale remains sale. even if there is no profit arising out of the sale. (f) It has been held by the Hon'ble Supreme Court in the case of Mafatlal Industries Limited and Ors. vs. Union of India & Ors., as reported in (1997)5 see 536, especially in paragraph no. 108(iii), as under: "108. Thus. there is a sale of energy. Sale remains sale. even if there is no profit arising out of the sale. (f) It has been held by the Hon'ble Supreme Court in the case of Mafatlal Industries Limited and Ors. vs. Union of India & Ors., as reported in (1997)5 see 536, especially in paragraph no. 108(iii), as under: "108. xxx xxx xxx (iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/ decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on as the case may be Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund.• But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition. The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched." (Emphasis supplied) In view of the aforesaid decision also. in absence of any proof that the amount of• surcharge paid to the respondents has not been Dassed over to the consumers the petitioner is not entitled to any refund otherwise it will tantamount to unjust enrichment. Principle of unjust enrichment prohibits the refund, of the duty, especially when there is no evidence that the petitioner has not passed over the duty upon its consumers. It has rightly been contended by the learned counsel for the respondent-State that cost of energy and the duty paid thereon must have been added in the cost of production and cost of production has already been levied from the consumers. Thus, the duty paid by the petitioner has already been passed over to the consumers of the petitioner and, therefore, in view of these facts also and in absence of any evidence, as stated herein above, the petitioner is not entitled for refund. Even otherwise also, we have held that the petitioner is liable to make payment of surcharge under Section 3-A of the Bihar Electricity Duty Act, 1948. Thus, no question of refund of surcharge, whatsoever, arises in the present case. 7. As a cumulative effect of the aforesaid facts, reasons, provisions of law and judicial interpretations, we find no substance in this writ petition and, hence the same is hereby dismissed, but, without any order as to costs.