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TMI Blog2022 (4) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4654 of 2021 With W.P.(T) No. 4677 of 2021 With W.P. (T) No. 4678 of 2021 With W.P.(T) No. 4683 of 2021 With W.P. (T) No. 4684 of 2021 With W.P.(T) No. 4685 of 2021 With W.P.(T) No. 4709 of 2021 With W.P.(T) No. 4711 of 2021 With W.P (T) No. 4812 of 2021, With W.P. 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X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of interim relief granted to them earlier. As such, learned counsel for the petitioners pray for an earlier date for hearing on the interim plea." 3. The writ petitions at serial no. 40 to 50 [W.P.(T) No. 855 of 2022, W.P.(T) No. 897 of 2022, W.P.(T) No. 903 of 2022, W.P.(T) No. 926 of 2022, W.P.(T) No. 927 of 2022, W.P.(T) No. 933 of 2022, W.P.(T) No. 955 of 2022, W.P.(T) No. 974 of 2022, W.P.(T) No. 979 of 2022, W.P.(T) No. 986 of 2022 and W.P.(T) No. 1282 of 2022] also relate to the common issue of levy of Service Tax and / or GST on royalty and District Mineral Fund (DMF). However, some of the writ petitions such as from Serial No. 41 to 44 [W.P.(T) No. 897 of 2022, W.P.(T) No. 903 of 2022, W.P.(T) No. 926 of 2022, W.P.(T) No. 927 of 2022] relate exclusively to levy of service tax on royalty. Therefore, all these writ petitions are being tagged together. In these cases, no interim order has been passed on the levy of service tax or GST on royalty and DMF. By the order of this Court dated 02.03.2021 passed in W.P.(T) No. 3878 of 2020 in the case of Sunita Ganguly Vrs. Principal Commissioner, Central GST and Central Excise, Ranchi & others this Court had been pleased to gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petitions petitioners have sought declaration that royalty is not a payment in respect of a taxable service and as such there is no liability to pay GST on royalty and DMF. 5. Learned counsel for the petitioners have pressed the prayer for interim protection from levy of GST on royalty and DMF or continuation of the interim protection granted earlier in some of the writ petitions based on the following plea: (i) The sheet anchor of the case of the petitioners is that royalty is in the nature of a "Tax" or profit pendre and cannot be termed as a consideration towards supply of services in terms of Section 15 of the GST Act. They have placed reliance on the case of India Cement Ltd. & others Vrs. State of Tamil Nadu & others reported in 1990 (1) SCC 12 rendered by the 7 Judges Constitution Bench of the Apex Court where in it has been held that royalty is a tax. Learned counsel for the petitioners submit that in view of the opinion of the Apex Court in the case of State of W.B. Vrs. Kesoram Industries Ltd & others reported in 2004(10) SCC 201 rendered by a 5 Judges Constitution Bench of the Apex Court, the very question whether royalty is a tax or not, is pending consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court in the case of Commissioner of Income Tax, Udaipur, Rajasthan Vrs. Mcdowell and Company Limited reported in (2009) 10 SCC 755, para 21 and 22, wherein it has been held that "Tax", "duty", "cess" or "fee" constituting a class denotes to various kinds of imposts by State in its sovereign power of taxation to raise revenue for the State. (vi) Another limb of argument on behalf of the petitioner is that levy of GST on royalty/ DMF is akin to levy of service tax under the Finance Act, 1994, since by virtue of the 101st constitution amendment, various indirect taxes prevalent in the country such as VAT, Central Excise Tax, Service Tax, Entry Tax etc. have been subsumed in one Tax in the nature of Goods and Services Tax. Article 366 (12A) of the Constitution of India defines Goods and Services Tax to means tax on supply of goods and services or both. The nature of levy under the service tax under the Finance Act, 1994 imposed by the respondents are akin to GST. On a mistaken notion of supply of services by way of leasing of mineral rights to the petitioners by the State, GST is sought to be imposed on royalty. Since the levy of service tax on royalty/ DMF has been stayed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for final hearing on any convenient date and no interim protection may be granted. Learned counsel for the State has made two fold arguments on the interim plea: (i) That royalty also amounts to a consideration on which GST can be levied. (ii) That there is no bar on imposition of GST even if royalty is considered as a tax as per the judgment of the Apex court in the case of India Cement Ltd. (supra). Counter affidavit has been filed by the State in some of the writ petitions. 7. Learned counsel for the CGST Mr. Amit Kumar and Mr. P.A.S. Pati in respective cases have also opposed the plea. They have drawn the attention of this Court to Section 7 of the CGST Act, 2017 which explains the expression "supply" and includes all forms of supply of goods or services or both, such as sale, transfer, barter, exchange, license, rental, lease etc. He submits that clause 1(a) under Section 7 provides that activities such as lease are to be treated as supply of services as referred to in Schedule II. Referring to the definition clause of "consideration" under Section 2(31), it is submitted that "consideration" in relation to supply of goods or services or both includes any payment made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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