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TMI Blog2017 (8) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2017. Notification No.1/2017-Compensation Cess (Rate), dated 28th June 2017 issued by the Ministry of Finance, Department of Revenue has re-introduced the cess @ ₹ 400 per tonne of coal. If the Act is vulnerable to being challenged for lack of legislative competence then the Rules can fare no better. The Court, at this stage, is of the view that, the Petitioner has made out a prima facie case for partial ad interim relief subject to conditions. As far as the additional levy on the stocks of coal on which it has already paid the Clean Energy Cess in terms of FA Act, 2010, the Petitioner should not be required to make any further payment. However, on stocks of coal on which no Clean Energy Cess under the FA, 2010 was paid, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 ( Act ). The context in which the challenge is laid is that the Petitioner is a trader of imported and Indian coal having its operation in various parts of the country. Prior to the impugned Act, under the Finance Act, 2010 ( FA 2010 ), with effect from 1st July 2010, a Clean Energy Cess was levied under Chapter VII. As a result, on every metric tonne of coal that was sold by the Petitioner, it was required to pay initially a cess @ ₹ 100 per tonne which was progressively increased and stood at ₹ 400 per tonne as on the date of its abolition when the new GST regime was introduced. 4. Section 18 of the Taxation Laws (Amendment) Act, 2017 ( TLA Act ) states that enactments specified in the third column of the Third Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional tax was to be levied for a period of two years or for such other period as the GST Council recommended and was to be assigned to the States in the manner prescribed thereunder. However, when the Bill was debated in the Parliament, Clause 18 was dropped. What was clause 19 of the said Bill has today been enacted as Section 18 of the COI 101st Amendment Act. It states that the Parliament shall, by law, on the recommendation of the GST Council, provide for compensation to the States for loss of revenue arising on account of implementation of GST, for a period which may extend to 5 years. 6. The crux of the Petitioner s submission is that Section 18 of the COI 101st Amendment Act does not enable the Parliament to levy any cess whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2017 ( IGST Act ). Therefore, it is clear that cess is being levied on the same taxable event that is the subject matter of the levy under the CGST and IGST Acts, viz., supply of goods and services. 10. For the purpose of providing compensation to States for loss of revenue arising out of the implementation of the GST regime, Section 8 contemplates the cess being collected in such a manner as may be prescribed. This has led to the enactment of the Goods and Services Tax Compensation Cess Rules, 2017. Notification No.1/2017-Compensation Cess (Rate), dated 28th June 2017 issued by the Ministry of Finance, Department of Revenue has re-introduced the cess @ ₹ 400 per tonne of coal. If the Act is vulnerable to being challenged for l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Finance Act, 2010 on the imported coal, and the stock laying out it again subjected to cess under the impugned legislation. Furthermore, the no credit is allowed on the Clean Energy Cess so already paid with the cess levied under the impugned legislation. The Petitioner have stock of around 1,92,000 tonne of coal as on 30.06.2017 on which the Petitioner have already paid clean energy cess @ 400/- per tonne as per the cess levied under the provisions of Chapter VII of the Finance Act, 2010. Further, w.e.f. 01.07.2017, the Petitioner have to charge cess from customers @ 400/- per tonne under the Goods and Services Tax (Compensation to States) Act, 2017 while selling this stock which will result in double taxation of around ₹ 7.68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nergy Cess on coal to depute a team to the Petitioner s business premises to verify on how much of the stock of coal Clean Energy Cess under the FA, 2010 already stands paid. Subject to the Petitioner furnishing to the satisfaction of the officers proof of such payment, the Petitioner will be given credit for such payment and will not be required to make any further payment under the impugned Act for effecting sales and clearances. Till such time the said exercise is completed, no coercive steps will be taken against the Petitioner to recover the levy under the impugned Act. 16. It is made clear however, that on those stocks for which the Petitioner is not able to produce a satisfactory proof of already having paid the Clean Energy Cess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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