Jharkhand High Court
M/S Bharat Coking Coal Ltd vs Principal Commissioner on 14 September, 2022
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 2579 of 2022
1.M/s Bharat Coking Coal Ltd., Koyla Bhawan, Saraidhela, Dhanbad
through its Manager (Finance), Virender Sharma R/o Saraidhela, Dhanbad
2.Director Finance, M/s Bharat Coking Coal Limited, Koyla Bhawan,
Seraidhela, Dhanbad --- --- Petitioners
Versus
1.Principal Commissioner, Central Goods & Service Tax and
Central Excise, Ranchi
2.Commissioner, Central Goods & Service Tax, Sub-Commissionerate, Dhanbad
3.Additional Commissioner (Prev.) Central Goods & Service Tax and
Central Excise, Ranchi
4.Additional Commissioner, Central Goods & Service Tax,
Sub-Commissionerate, Dhanbad --- --- Respondents
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : M/s Biren Poddar, Sr. Adv., Deepak Sinha, Piyush Poddar and Manav Poddar, Advocates For the Respondents : M/s P.A.S. Pati, Ranjana Mukherjee, Advocates 06/14.09.2022 The writ petition was preferred with the following reliefs:
a. "For quashing and setting aside the Order-in-Original No. 15/2021-22/ADC/DNB dated 02.03.2022 (Annexure-8), served upon the Petitioner on 06.04.2022, passed by the Additional Commissioner, Central Goods & Service Tax, Sub- Commissionerate, Dhanbad (Respondent No. 4), whereby and whereunder, the said Adjudicating Authority in a quite illegal and arbitrary manner confirmed and imposed GST Liability of Rs. 90 crores, interest u/s 40 of the CGST Act and imposed 100% penalty u/s 74(8) of the said Act on the Petitioner No. 1 concerning the period 2017-18, and further imposed penalty of Rs. 1,00,000/- u/s 137(2) read with Section 122 of the Act upon the Petitioner No. 2, without taking into account/consideration and without dealing with the vital facts of the matter/submissions made by the petitioner before him to the effect that the entire amount of Rs. 500 crores deposited by the Petitioner No. 1, as upfront payment, with the Ministry of Coal, Government of India, for the allotment of 4 coal blocks, has been refunded/returned to the Petitioner No. 1, vide two Sanction Orders dated 23.06.2021 (Annexure-1) and dated 04.02.2022 (Annexure-2), issued by the Ministry of Coal, Government of India, on account of surrender of those 4 (Four) coal blocks by the Petitioner, as mentioned in Para-21 of the impugned order, which are in clear violation of principles of natural justice.
b. For quashing and setting aside the Demand-cum-Show Cause Notice contained in C. No. V(30)30/Prev./BCCL/Ran(H)/2020 dated 26.10.2021 (Annexure-5) issued by the Respondent No. 3, whereby the Petitioners have been show caused as to why GST liability of Rs. 90 crores concerning the period 2017-18 should not be recovered from the Petitioner No. 1 apart from Interest u/s 50 and imposition of penalty u/s 74(8) of the Act and also the imposition of penalty on the Petitioner No. 2 u/s 122(2)(b) of the Act, due to none payment of GST on the upfront amount of Rs. 500 crores paid by the Petitioner No. 1 to the Ministry of Coal for allotment of new coal blocks, as the same is without -2- jurisdiction in view of the fact that the Respondent No. 3 proposed to raise alleged demand by classifying the services under Service Code 997337 under the Residuary Entry No. 17(viii) of the Notification No. 11/2017-C.T.(Rate) dated 28.06.2017 (Annexure-9) and based upon the same, it proposed to levy GST @ 18% ( CGST @ 9% +SGST @ 9%), whereas the admitted fact of the matter is that the during the period in question i.e. the Financial Year 2017-18, no such entry namely 17(viii) was existing in the aforesaid Notification as on 28th June, 2017.
c. For a declaration that the Petitioner No. 2 cannot be made liable to pay any GST on the upfront amount of Rs. 500 crores, paid by the Petitioner No. 1 to the Ministry of Coal, Government of India, for their decision to allot 4(four) new coal blocks namely Pirpainti Barahat, Mandar Parvat, Dhulia North and Mirzagaon coal blocks to the Petitioner No. 1, which coal blocks have been surrendered by the Petitioner No. 1, without any mining and the aforesaid upfront amount of Rs. 500 crores were duly returned/refunded to the Petitioner No. 1 vide two Sanction Orders dated 23.06.2021 (Annexure-1) and dated 04.02.2022 (Annexure-2), issued by the Ministry of Coal, Government of India.
d. For any other appropriate Writ(s), Order(s), Direction(s) as may be deemed fit and proper by your Lordships for doing substantial and conscionable justice to the Petitioner."
Learned counsel for the respondents have taken a preliminary objection as to the maintainability of the writ petition as no exceptional grounds to entertain the writ petition on the existence of alternative remedy under Section 107 of the CGST Act is made out.
However, after some arguments, learned Senior Counsel for the petitioner seeks permission to withdraw the writ petition in order to prefer an appeal. He submits that apprehending coercive steps, writ petitioner would be making the mandatory pre-deposit by Monday latest and prefer an appeal also.
In the facts and circumstances of the case noted above and the submission made, we are of the view that petitioner should avail of the remedy of appeal under Section 107 of the CGST Act. We, therefore, do not make any comments upon the merits of the plea raised by the petitioner. The writ petition is accordingly, dismissed as withdrawn with the aforesaid liberty.
(Aparesh Kumar Singh, J.) (Deepak Roshan, J.) A.Mohanty