Dhirubhai Naranbhai Patel, Actg. C.J. - (1.) COUNSEL appearing for the petitioner submitted that they are seeking stay against Annexures -2 and 3 mainly for the reasons that the royalty amount as well as stowing excise duty has been added in the assessable value for the payment of the excise duty on coal. It is submitted by the counsel for the petitioner that the issue involved is whether the amount of royalty and the amount of stowing excise duty can be treated as tax or not and if it is treated as tax, it is excluded from the valuation of the goods in question under Section 4(3)(d) of the Central Excise Act, 1944. Stowing excise duty is leviable under the Coal Mines (Conservation and Development) Act, 1974 and it is defined under Section 3(j) of this Act and charging Section is Section 6 of the Act, 1974.
(2.) COUNSEL appearing for the respondents vehemently submitted that it is true that the matter is pending before the Nine Judges' Bench of Hon'ble the Supreme Court. As per the order passed by the Hon'ble Supreme Court in the case of Mineral Area Development Authority and Others Vs. Steel Authority of India and Others, reported in : (2011) 4 SCC 450, paragraph 2 of the said order reads as under: "2. Before concluding, we may clarify that normally the Bench of five learned Judges in case of doubt has to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger coram than the Bench whose decision has come up for consideration (see Central Board of Dawoodi Bohra Community v. State of Maharashtra). However, in the present case, since prima facie there appears to be some conflict between the decision of this Court in State of W.B. v. Kesoram Industries Ltd. which decision has been delivered by a Bench of five Judges of this Court and the decision delivered by a seven -Judge Bench of this Court in India Cement Ltd. v. State of T.N., reference to the Bench of nine Judges is requested. The office is directed to place the matter on the administrative side before the Chief Justice for appropriate orders." Thus, there are two decisions rendered by Hon'ble the Supreme Court -one is by seven Judges' Bench in the case of India Cement Limited Vs. State of Tamil Nadu, reported in : (1990) 1 SCC 12 and another decision rendered by Hon'ble the Supreme Court in the case of State of West Bengal Vs. Kesoram Industries Ltd., reported in : (2004) 10 SCC 201. The earlier judgment reported in the year 1990 was delivered by the seven Judges' Bench, whereas the decision reported in the year 2004 was delivered by Five Judges' Bench. There is also another decision referred in the case of Mineral Area Development Authority (Supra) by the Hon'ble Supreme Court.
(3.) LOOKING to the contentions raised in this writ petition, Rule.;