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TMI Blog2010 (7) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhattacharya, J.]. - Instead of disposal of the application, we have heard out the appeal itself by treating as on day's list. 2. This appeal is at the instance of a writ-petitioner and is directed against an order dated 8th April, 2010 passed by a learned Single Judge of this Court thereby disposing of an application for modification and/or variation of the earlier interim order dated 23rd February, 2010 by merely extending the time for deposit of the amount ordered to be deposited by the earlier order dated 23rd February, 2010 till 7th May, 2010 on the prayer of the appellant after recording the submission of the learned Additional Solicitor General, appearing for the respondents, that the appellant should be entitled to interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge of this Court, His Lordship directed the parties to complete affidavit by19th April, 2010. Thereafter, His Lordship recorded a prima facie case for passing an interim order and directed that if the writ-petitioner deposited a sum of Rs. 3,68,18,583/- within three weeks from the date of communication of that order, there should be an interim order directing that adjudication proceeding might go on and be concluded by the respondents but the respondents should not include for the purpose of determining taxable service the supply of free material to the petitioner and to that extent the explanation appearing against serial Nos. 7 & 10 in the Table given in the notification dated 1st March, 2006 should not be applied to the detriment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the notification and in the said paragraph 32 of the application disputed the demand of Rs. 39 crore and odd by contending that even if for the sake of argument, the said provision is said to be intra vires, at the most a sum of Rs. 3,68,18,583/- should be payable. Dr. Pal contends that there was, thus, no admission on the part of his client that the aforesaid amount was due. 10. Dr. Pal next contends that in an earlier writ-application filed by his client in respect of demand for the earlier period, the same learned Single Judge passed an interim order directing the respondents not to include, for the purpose of taxable service, the supply of free material to the petitioner without imposing any condition and, thus, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r opinion, in this type of a litigation where the provision of exemption has been challenged as violative of Article 14 of the Constitution of India, there is no scope of staying the operation of the exemption or granting exemption on a modified term in the field of collection of revenue. It is needles to mention that any collection of revenue made on the basis of any provision which is subsequently declared as ultra vires the Constitution of India, should be refunded and at the stage of disposing of the writ-application, the Court can pass appropriate order compensating the person who has paid the revenue on the basis of such ultra vires provision. 14. In this type of a matter, if merely on the basis of recording a prima facie case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the decision of the learned Single Judge of the Madras High Court in the case of Larsen & Toubro Ltd. v. Union of India reported in 2007 (7) S.T.R. 123 (Madras), relied upon by Dr. Pal, we find that by an order consisting of two paragraphs, the learned Single Judge after recording prima facie case of the petitioner granted an ad interim order of injunction without considering the question of balance of convenience and inconvenience. We are of the view that in a revenue matter, when a particular provision has been challenged as ultra vires the provision of the Constitution, the Court, on mere finding of prima facie case, should not grant unconditional injunction restraining the government from collecting revenue on the basis of such provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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