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TMI Blog2024 (8) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been to the tune of Rs. 3,62,25,709.39, the petitioner attacked the validity of Circular issued by Government of India in Ministry of Finance, Department of Revenue (Tax Research Unit), being CBIC-190354/207/2021-TO (TRU-II)-CBEC, dated 6-10-2021. 3. Fact as adumbrated by the petitioner, M/s. Tarini Minerals Pvt. Ltd., in the writ petition shows that the petitioner, having an iron ore mines at Unchabali paid GST on royalty @ 5% from the date of introduction of the GST regime with effect from 1-7-2017 till 31-12-2018. A Show Cause Notice dated 27-12-2023 purported to have been issued under Section 73 of the CGST/OGST Act stemming on Circular No. CBIC-190354/207/2021-TO (TRU-II)-CBEC, dated 6-10-2021 issued by Government of India in Ministry of Finance, Department of Revenue (Tax Research Unit), indicating that there was short payment of GST. 4. Mr. R.P. Kar, Learned Senior Counsel for the petitioner submitted that Service Account Code ("SAC") 997337, i.e., "licensing services for the right to use minerals including its exploration and evaluation" is allegedly treated by the GST Council in its 14th Meeting to be falling within the ambit of residuary entry vide Entry No. 17 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove. Same rate of Central tax as applicable on supply of like goods, involving transfer of title to goods - 5.4 Vide Notification No. 27/2018-Central Tax (Rate) bearing F. No. 354/428/2018-TRU [GSR 1271(E)], dated 31-12-2018 under SAC Heading 9973 : Sl. No. Chapter, Section or Heading Description of service Rate (Per cent) Condition 17 Heading 9973 (Leasing or rental services, with or without operator) *** (viia) Leasing or renting of goods Same rate of Central tax as applicable on supply of like goods involving transfer of title to goods - (viii) Leasing or rental services, with or without operator, other than (i), (ii), (iii), (iv), (v), (vi), (vii) and (viia) above. 5.5 Mr. R.P. Kar, Learned Senior Counsel appearing for the Petitioner has, therefore, submitted that even though Entry 17 has suffered amendments during the period from 1-7-2017 to 31-12-2018, no substantial change is perceived in the residuary entry with respect to the period in question, i.e., 1-7-2017 to 31-12-2018. Amplifying his argument, the Counsel harped that the residuary entry as relied upon by the proper officer while invoking Section 73 of the CGST/OGST Act fastens tax li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 17-9-2021, the opposite party No. 1 has invoked power under Section 73 contemplating levy of tax @ 18% on SAC 997337, i.e., "licensing services for the right to use minerals including its exploration and evaluation". Counsel for the petitioner, while attacking legality of said Circular, submitted that such a Show Cause Notice dated 25-1-2022 is fait accompli and the opposite parties should not have sought to raise demand of differential tax saddling extra burden of tax by levying tax @ 18% [CGST = 9% + OGST = 9%] on the petitioner with retrospective effect and thereby the proper officer has misconstrued applicability of entries of Schedule appended to Notification specifying rate of tax. 6. Mr. Avinash Kedia, Learned Junior Standing Counsel (GST, Central Excise & Customs) appearing for the opposite party Nos. 3, 5, 6 & 7 and Mr. Sunil Mishra, Additional Standing Counsel for opposite party No. 4, per contra argued that : (i) The Show Cause Notice contemplating action under Section 73 of the CGST/OGST Act being issued by proper officer, no prejudice would be caused to the petitioner in case it is relegated to participate in the proceeding by filing appropriate rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participate in the proceeding there may be every possibility for the proper officer to follow the recommendation of the Council pursuant to which the Circular has been issued by the Central Government which in turn has followed the view of the Appellate Authority for Advance Ruling vide order dated 5-11-2019, in re Penguin Trading and Agencies (supra). This Court is not oblivious of the settled position of law that a substantive right cannot be put to jeopardy by bringing into operation fiscal law with retrospective effect. Reference may be had to CIT Vrs. Vatika Township Pvt. Ltd., (2015) 1 SCC 1; Jayam & Co. Vrs. ACCT, (2016) 96 VST 1 (SC); Reliance Industries Ltd. Vrs. Commissioner of Sales Tax, 2020 (I) OLR 117. 8. In view of the above, this Court is satisfied that prima facie case is made out as the petitioner has demonstrated that its transactions fell within the scope of residuary entry of Sl. No. 17 with the Heading 9973 (Leasing or rental services, with or without operator) which attracted rate of tax @ 5% [CGST = 2.5% + OGST = 2.5%] and it has discharged liability for the transactions effected during the period 1-7-2017 to 31-12-2018, to which no objection is raised by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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