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TMI Blog2015 (11) TMI 1659X X X X Extracts X X X X X X X X Extracts X X X X ..... : D.N. Patel, J.]. - W.P. (T) No. 3087 of 2013 is taken up as the lead matter which has been argued out by Sri Sumeet Gadodia and opposed by Sri Jagdeep Dhankhar, Senior Counsel. The counsels for rest of the petitioners have adopted the argument canvassed by Sri Sumeet Gadodia in W.P. (T) No. 3087 of 2013 and they also submitted that the differential excise duty is not recoverable looking to the fact that the major issue as 'royalty being a tax or not' is referred to a Larger Bench of Hon'ble Supreme Court. 2. These writ petitions have been preferred challenging the action initiated by the respondents for recovery of excise duty upon coal. For the coal, excise duty is leviable from 1st March, 2011 on ad valorem basis. These petitioners were liable to make payment of excise duty on coal, but, at the relevant time, the amount of royalty paid by them was not included in the transaction value as defined under Section 4(3)(d) of the Central Excise Act, 1944 and, therefore, Union of India demanded differential excise duty from the respondents-Companies. The said amount has already been paid by the respondents-Companies to the Union of India and in terms of the contract between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government. As per the terms and conditions of the "Spot e-Auction Scheme 2007" under which these petitioners have participated and acted upon in a bid process, these petitioners are liable to make payment of tax, cess, royalty, stowing excise duty, etc. especially looking to Clause 4.4 of the terms and conditions of "Spot eAuction Scheme 2007" which is at Annexure 1 to the Memo of W.P. (T) No. 3087 of 2013 which is taken as a lead matter for the sake of argument and, therefore, let this amount be allowed to be recovered by these respondents-Companies and, as decided by the Hon'ble Allahabad High Court in W.P. (T) No. 460 of 2014, dated 1st September, 2014 [2014 (310) E.L.T. 263 (All.)], let this amount be deposited by the applicants before the respondents-Companies and when Hon'ble Supreme Court finalising the issue of royalty whether it is a tax or not, proper steps for refund or otherwise can be taken as per the directions of Hon'ble Supreme Court. Counsels for the respondents have relied upon the decisions rendered by the Division Bench of Hon'ble Allahabad High Court in W.P. (T) No. 460 of 2014 judgment and order dated 1st September, 2014. (2) W.P. (T) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se petitioners to the respondents-companies towards the differential excise duty. 9. It appears that by virtue of decision rendered by Hon'ble Supreme Court reported in the case of India Cement Limited (supra) especially Paragraphs 33 and 34 to be read with the decision rendered by Hon'ble Supreme Court in the case of Union of India and anr v. Azadi Bachao Andolan & Anr. reported in (2004) 10 SCC 201, though the Hon'ble Supreme Court had referred the matter to a Larger Bench of nine judges, this reference is made by the decision given by Hon'ble Supreme Court in the case of Mineral Area Development Authority & Ors. v. Steel Authority of India Limited & Ors. reported in (2011) 4 SCC 450 and, hence, we are not deciding the issue whether the amount of royalty and the amount of stowing excise duty can be added to the transaction value as mentioned in Section 4(3)(d) of the Act of 1944 royalty or not. 10. We are exercising powers under Article 226 of the Constitution of India. There is a contract between the parties i.e. the petitioners and the respondents-Companies. These petitioners have participated in "Spot E-auction Scheme" for the purchase of coal. The terms and condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see no reason to entertain these writ petitions at this stage. The amounts which are recoverable from these petitioners as differential excise duties shall be paid by them to the respondents-Coal Companies. This payment will be without prejudice to the right of the contention of these petitioners and shall be treated as payment made under protest and the said payment will be subject to outcome by the Hon'ble Supreme Court on the point that whether royalty is tax or not. 12. This amount of differential excise duty will be deposited by the petitioners to the respondents-coal companies on or before 25th February, 2016 either by cash or by demand draft. Much has been argued out about the refund of the aforesaid amount if the petitioners have an advantageous position after the decision is finally passed by the Hon'ble Supreme Court in the matter of royalty whether it is a tax or not. At this stage, we are not finalizing the issue of refund, because all will depend upon the direction to be given by the Hon'ble Supreme Court in the aforesaid decision by the Larger Bench and will also depend upon whether the burden of the duty has been passed on the consumers or not, keeping in mind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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