Rajasthan High Court - Jaipur
M/S Shivalik Silica vs Union Of India on 17 December, 2021
Bench: Akil Kureshi, Uma Shanker Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 14849/2021
M/s Shivalik Silica, A Partnership Firm Registered Under The
Provisions Of The Partnership Act, 1932, Having Its Head Office
At Flat No. 1601, Tower 1, Spr Imperial Estate, Sector 82,
Faridabad - 121002 (Haryana) And Mine And Works Office At Ml
No 2/93, Village Agawali, Tehsil Bayana, District Bharatpur -
321401 (Rajasthan), Through Its Partner Shri Yogeshh Mittal,
S/o Shri Om Prakash Mittal.
----Petitioner
Versus
1. Union Of India, Through The Secretary, Ministry Of
Finance, Department Of Revenue, North Block, New
Delhi-110001.
2. Central Board Of Indirect Tax And Customs, Through The
Chairman, North Block, New Delhi-311001.
3. Chief Commissioner, Cgst (Jaipur Zone), New Central
Revenue Building, Statue Circle, C-Scheme, Jaipur-
302005 (Rajasthan).
4. Commissioner, Cgst Alwar, Gst Commissionerate, A Block,
Surya Nagar, Alwar - 301001 (Rajasthan)
5. Assistant Commissioner, Cgst Division-F, Bharatpur, Opp.
Ghana Gate, Jawahar Nagar, Bharatpur, Rajasthan -
321001 (Rajasthan).
----Respondents
For Petitioner(s) : Mr. Anurag Kalavatiya
For Respondent(s) :
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE UMA SHANKER VYAS
Order
17/12/2021
The petitioner has challenged a show cause notice dated 14/10/2021 issued by the Assistant Commissioner of Central (Downloaded on 21/12/2021 at 09:43:25 PM) (2 of 3) [CW-14849/2021] Goods and Service Tax Division-F, Bharatpur calling the petitioner why service tax amounting to Rs.46,61,707/- should not be recovered in terms of Section 73(1) of the Finance Act, 1994 with interest and penalty. The main ground for challenge in the show cause notice is that no service tax is leviable on royalty paid on mining operations. Learned counsel for the petitioner vehemently contended that this issue is pending before the larger bench of the Supreme Court in a reference to 9 judge bench in the meantime, service tax should not be allowed to be recovered. He drew our attention to the orders passed by the division bench of Gujarat High court and single bench of this court and in some cases by the Supreme Court where the recoveries are stayed.
Having heard learned counsel for the petitioner and having perused the documents on record, we are not inclined to entertain the petition for the following reasons:-
Firstly this petition is directed against the show cause notice and in this adjudication process is still not over. It is true that even against the show cause notice this Court would entertain the writ petition if jurisdiction question is raised. In other words, if the authority issuing show cause notice has no jurisdiction to levy a tax, this Court would not insist on the assessee submitting to such notice. However in the present case the issues as of now stand concluded against the petitioner. Learned counsel for the petitioner has candidly placed for our consideration a Division Bench judgment of this Court in the case of Udaipur Chambers of Commerce and Industry Vs. Union of India- 2018 (8) G.S.T.L. 170(Rajasthan) in which the question of service tax on royalty on mining lease was examined and decided against the assessee. The decision of 5 judge bench of the Supreme Court in (Downloaded on 21/12/2021 at 09:43:25 PM) (3 of 3) [CW-14849/2021] case of State of West Bengal Vs. Kesoram Industries and Ors.: (2004) 10 SCC 201 would also be applicable. Merely because the Supreme Court in subsequent decisions has doubted the correctness of the view of the 5 judge bench and referred the issue to 9 judge bench, would not persuade us to stay the department from issuing notice and adjudicating the demands.
We may note that the reference was made to the larger bench by an order passed in Mineral Area Development Authority etc. Vs. M/s. Steel Authority of India and Ors. on 30.03.2011. If all the proceedings are stayed awaiting the reference judgment even before the adjudication has been completed, there is serious apprehension of the evidence and materials getting lost. We would therefore not like to stop the department from even carrying out the adjudicating process on the petitioner's expectation that the larger bench of 9 judge may reverse the decision in the case of Kesoram Industries.
In the result, the petition is dismissed.
(UMA SHANKER VYAS),J (AKIL KURESHI),CJ
Anil Goyal/BM Gandhi/12
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