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TMI Blog2023 (11) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be satisfied if the SCN is set aside and the matter is relegated to respondent no. 1 for issuance of a fresh show cause notice - The SCN is set aside. - HON'BLE MR. JUSTICE VIBHU BAKHRU AND HON'BLE MR. JUSTICE AMIT MAHAJAN For the Petitioner Through: Mr. V. Lakshmikumaran, Mr. Karan Sachdev Mr. Agrim Arora, Advs. For the Respondents Through: Mr. Satish Kumar, SSC for R 1 to 3. Mr. Asheesh Jain, CGSC with Mr. Gaurav Kumar, Adv. Mr. Anurag Ojha, SSC for R5. VIBHU BAKHRU, J. 1. The petitioner has filed the present petition, inter alia, praying as under: - a) Issue an appropriate writ, order or direction quashing the impugned Notification No. 22/2014-ST dated 16.09.2014 issued by Respondent No. 3 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fty-six only). The said demand has been raised on three accounts. First, a sum of ₹2219,37,54,106/- in respect of capacity charges; ₹133,23,97,621/- in respect of the late payment surcharge; ₹82,53,329/- in respect of ocean freight on transportation of coal. The petitioner was called upon to show cause as to why the said amount should not be recovered under the proviso to Sub-section 1 of Section 73 of the Finance Act, 1994. In addition, respondent no. 1 has also proposed levy of penalty under Section 78 and 77(2) of the Finance Act, 1994. Insofar as the service tax on ocean freight is concerned, the same has been struck down by the High Court of Gujarat in Messrs Sal Steel Ltd. Ors. v. Union of India: 2019 9 TMI 1315. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, insurance etc. it should be assessed at the same rate as the principal supply. However, the same cannot be said of cheque dishonour fine or penalty as discussed in the preceding paragraphs. Fixed Capacity charges for Power 10. The price charged for electricity by the power generating companies from the State Electricity Boards (SEBs)/DISCOMS or by SEBs/DISCOMs from individual customers has two components, namely, a minimum fixed charge (or capacity charge) and variable per unit charge. The minimum fixed charges have to be paid by the SEBs/DISCOMS/individual customers irrespective of the quantity of electricity scheduled or purchased by them during a month. They take care of the fixed cost of generating/ supplying electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt no. 1 for issuance of a fresh show cause notice. 6. The said course commends to us as the said circular was issued after the SCN had been issued by respondent no. 1. 7. In view of the above, the SCN is set aside. 8. It is, however, clarified that respondent no. 1 is not precluded from issuing a fresh show cause notice after considering the import of the circular as well as the decision of the High Court of Gujarat in Messrs Sal Steel Ltd. Ors. v. Union of India (supra) as well as the decision of the Supreme Court in Union of India v. Mohit Minerals Pvt. Ltd. (supra). 9. It is further clarified that in the event a fresh show-cause notice is issued, the time period commencing from 29.12.2020 till date shall be exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X
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