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2022 (4) TMI 1296 - HC - GSTLevy of Service Tax and / or GST on royalty and District Mineral Fund (DMF) - royalty for grant of mining lease - seeking interim protection in respect of levy of service tax / GST on royalty - HELD THAT:- 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 CEMENT LIMITED VERSUS STATE OF TAMIL NADU [1989 (10) TMI 53 - SUPREME COURT] 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 [2011 (3) TMI 1554 - SUPREME 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.
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