Aparesh Kumar Singh, J.

1. Heard Mr. Navaniti Prasad Singh, learned senior counsel for the petitioner and Mr. Ajit Kumar, learned Advocate General, representing the State.

2. Whether the petitioner is entitled for refund of the electricity duty and surcharge paid by it for the period 01.01.2001 to 31.05.2004 in terms of the Industrial Policy, 2001 and the notification bearing S.O. No. 70 dated 17.07.2004, issued by the Commercial Taxes Department, Government of Jharkhand is the issue to be answered in the present matter.

3. We shall proceed to answer the instant issue, in the light of the relevant material facts, borne out from the pleadings on record and the grounds urged in support or against by the learned counsel for the parties.

4. In the present writ petition, petitioner has sought quashing of the order dated 23.06.2016 (Annexure-20), passed by learned Commercial Tax Tribunal in Revision Petition RN 99/2010, whereby, the claim of the petitioner for refund of the electricity duty and surcharge for the aforesaid period in lieu of exemption granted under the Industrial Policy, 2001 has been rejected. The order of the learned Commissioner, Commercial Taxes, Ranchi has been upheld. Petitioner also sought quashing of the order dated 12.04.2010 (Annexure-19), passed by the learned Commissioner, Commercial Taxes in Revision Case No. CC(S) 132/2007, whereunder, though the learned Commissioner has accepted the eligibility of the petitioner under the Industrial Policy, 2001 and the date of commercial production i.e. 01.01.2001 declared by the Director, Industries, but the claim of refund of the electricity duty and surcharge for the period 01.01.2001 to 31.05.2004 has been rejected on the ground of unjust enrichment. The order of the Joint Commissioner, Commercial Taxes dated 17.01.2007 (Annexure-16) rejecting the claim of the refund by the petitioner is also under challenge. Petitioner has sought appropriate direction upon the respondents for payment of the amount deposited by it as electricity duty and surcharge on the ground that it is entitled for such exemption under the Industrial Policy, 2001 and the statutory notification dated 17.07. 2004, issued by the Commercial Taxes Department, Government of Jharkhand for 10 years from the date of commencement of commercial production.

5. Learned senior counsel for the petitioner has, at the outset, submitted that the learned Tribunal has fallen in serious error of jurisdiction by overruling the findings of the learned Commissioner on the point of eligibility of the petitioner for exemption though neither they were under challenge by the revenue nor assailed by the petitioner. Though the Joint Commissioner, Commercial Taxes had rendered its finding both on the point of eligibility and on the ground of unjust enrichment against the petitioner but the learned Commissioner in revision had set aside the findings on the eligibility of the petitioner while rejecting the claim only on the ground of unjust enrichment. The findings of the learned Tribunal therefore are susceptible to challenge on both counts.

6. The Industrial Policy, 2001 was notified on 25.08.2001 w.e.f. 15.11. 2000 as the effective date of its operation. As per Clause 15.2.2 captive power generation and purchase shall be provided exemption from electricity duty for a period of 10 years from the date of commercial production with an object to encourage private sector in setting up of captive power generation plants of any capacity to meet the existing as well as the future demand for power of industrial units. Such power generation units can be set up without permission of the State Electricity Board. Surplus power generated by such plant could also be purchased by the State Electricity Board on mutually agreed terms. The State Electricity Board shall allow wheeling and banking to such power plants. The Policy defines both "existing industrial units" and "new industrial units" as per Annexure-1 thereto. The date of produc