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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 ..... EME COURT]. Following the interim order passed by the Apex Court in the case of M/S. LAKHWINDER SINGH VERSUS UNION OF INDIA ORS. [ 2021 (11) TMI 336 - SC ORDER ], this Court had been pleased to grant interim protection on levy of GST on mining lease / royalty/DMF. In the background of the legal position that royalty has been considered to be a tax or profit pendre and the issue is pending before the 9 Judge Constitution Bench, we are of the considered view that the petitioners have made out a case for interim protection. As such, there shall be stay of recovery of GST for grant of mining lease/ royalty/DMF from the petitioners till further orders. However, the Revenue is not restrained from conducting and completing the assessment proceedings. Learned counsel for the respondent State and CGST are granted 3 weeks time to file counter affidavit in respective writ petitions in which no counter affidavit has been filed - Let these matters be listed in the 1st week of July, 2022. - W.P (T) No. 432 of 2021 With W.P (T) No. 4463 of 2021, With W.P.(T) No. 4510 of 2021 With W.P.(T) No. 4518 of 2021 With W.P.(T) No. 4520 of 2021 With W.P.(T) No. 4545 of 2021 With W.P.(T) No. 4608 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Works M/s Jai Maa Bhagwati Stone Works, S.S. Black Stone Works, M/s Maa Basnawi Stone Works (popularly known as Maa Baishnavi Stone Works ) M/s Dokania Stone Works, M/s Maa Tara Construction Equipment Co. For the Petitioners: Ms/ Biren Poddar, Sr. Advocate, Deepak Kr. Sinha, Advocate [WPT 432/2021] Mr. N.K. Pasari, Advocate [WPT 4510/21, 4518/21, 4520/21 4545/21] Mr. Sumeet Gadodia, Advocate [Rest of the matters] For the Resp.-CGST: Mr. Amit Kumar and P.A.S. Pati, Advocates For the Resp.-State: M/s Sachin Kumar, A.A.G-II, Ashok Kr. Yadav, G.A-I Heard learned Senior Counsel Mr. Biren Poddar assisted by learned counsel Mr. Deepak Sinha and learned counsel Mr. Sumeet Gadodia for the petitioners in the respective writ petitions. We have also heard Learned A.A.G-II Mr. Sachin Kumar on behalf of the State and Mr. Amit Kumar and Mr. P.A.S Pati, learned counsel representing the CGST in respective writ petitions. 2. The present batch of writ petitions have been listed today in view of our order passed in W.P.(T) No. 432 of 2021 dated 24.02.2022, para 3 whereof reads as under: On being apprised of the order dated 04.01.2022, we deem it necessary to hear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitioners such as W.P(T) No. 4609 of 2021 in the case of M/s Ratan Black Stone, Sahibganj Vrs. Union of India through Principal Commissioner, Central GST and Central Excise others and other analogous cases such as W.P(T) No. 4510 of 2021. When the case of M/s Mandhan Minerals Corporation in W.P.(T) No. 432 of 2021 was taken up before this Court on 24.02.2022, this Court was apprised of the judgment dated 04.01.2022 passed in the case of M/s Lakhwinder Singh(supra) wherein the Apex Court had refused to entertain the petition under Article 32 of the Constitution of India at the first instance and relegated the petitioners to avail of the alternative and efficacious remedy before the concerned High Courts under Article 226 of the Constitution of India. The petition was dismissed leaving it open to the petitioners to pursue their remedies in accordance with law. In this background the present batch of writ petitions have been posted for consideration on the continuation of the interim relief granted to them earlier, so far as levy of GST on royalty and DMF is concerned. Some other fresh writ petitions have by now come on board, which have been tagged together by the instant order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon Article 246 A of the Constitution of India inserted by 101st Constitutional Amendment where under special provisions has been made in respect of Goods and Service Tax. (iii) Learned counsel for the petitioners have also placed reliance upon the relevant provisions of the CGST Act such as Section 15, which provides for value of taxable supply. However, the basic plea of the petitioners is that royalty being a tax cannot be the price paid for any supply of services so to say, conceived under the GST Act for leasing out the minerals to the writ petitioners / lessee within the meaning of the expression used under Schedule II of the Act. A Tax in the nature of GST cannot be imposed on royalty, which in itself has been held to be tax by the Apex Court in the case of India Cement (supra). (iv) Learned counsel for the petitioners have also referred to the observations of the Apex Court relying upon the classic exposition of Latham CJ in Matthews Vrs. Chicory Marketing Board in the case of Dewan Chand Builders Contractors Vrs. Union of India Ors. reported in 2012(1) SC 101. The Apex Court in the said case has relied upon the Constitution Bench judgment in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enable the petitioners to avail of the alternative remedy before the concerned High Court under Article 226 of the Constitution of India, the principles on which such interim protection was granted by the Apex Court on levy of GST on mining lease/ royalty, should apply to the case of the petitioners at hand. Interim order has been passed by other High Courts on independent consideration, such as in the case of Oil India Limited Vrs. Union of India others (W.P.C. No. 3872 of 2020) by the High Court of Gauhati vide order dated 17.11.2020. Similar order has been passed by the Andhra Pradesh High Court in the case of M/s C.R. Granites Vrs. The Assistant Commissioner (ST)(FAC), Addanki Circle, Addanki another in Writ Petition No. 30248 of 2021, order dated 22.12.2021. It is submitted that the different High Courts as above have taken into consideration that the question whether royalty is a tax or not is pending consideration before the 9 Judge Constitution Bench of the Apex Court and till then the ratio rendered by the 7 Judges Bench in the case of India Cement Ltd. (supra) that royalty is a tax holds the field. Learned counsel for the petitioners submit that petitioners ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f GST on royalty/DMF. On consideration of the rival pleas in the canvass of facts and the legal propositions advanced by them, it is clear that the levy of GST by the respondents is on the royalty/DMF in respect of the mining lease granted to the petitioners. The decision of the Apex Court by the 7 Judges Constitution Bench in the case of India Cements Ltd. (supra) that royalty is a tax is under consideration before a 9 Judges Constitution Bench of the Apex Court upon reference made in the case of Mineral Area Development Authority others (supra). 9. Following the interim order passed by the Apex Court in the case of M/s Lakhwinder Singh (supra) dated 04.10.2021, this Court had been pleased to grant interim protection on levy of GST on mining lease / royalty/DMF. In the background of the legal position that royalty has been considered to be a tax or profit pendre and the issue is pending before the 9 Judge Constitution Bench, we are of the considered view that the petitioners have made out a case for interim protection. As such, there shall be stay of recovery of GST for grant of mining lease/ royalty/DMF from the petitioners till further orders. However, the Revenue is not re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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