D.N. Patel, J. - (1.) W.P. (T) No. 3087 of 2013 is taken up as the lead matter which has been argued out by the Sri Sumeet Gadodia and opposed by Sri Jagdeep Dhankhar, Senor 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 respondentsCompanies. The said amount has already been paid by the respondentsCompanies to the Union of India and in terms of the the contract between the petitioners and the respondentsCompanies, they were liable to make payment of central excise duty. This differential excise duty has been demanded by the respondents from these petitioners and, therefore, these petitions have been preferred challenging the action of the respondentsCompanies mainly on the ground that royalty is covered by the words "other taxes" as used in Section 4(3)(d) of the Act of 1944 and, therefore, royalty is not a part and parcel of "transaction value" and, therefore, no excise duty is leviable upon the royalty paid by these petitioners.
(3.) Counsels appearing for the petitioners have argued out their cases at length and have relied upon several decisions which are as under: • India Cement Limited & Ors Vs State of Tamil Nadu and others, 1990 1 SCC 12 • State of West Bengal Vs. Kesoram Industries Limited, 2004 10 SCC 201 • Mineral Area Development Authority Vs Steel Authority of India Limited, 2011 4 SCC 450 • I.D.L. Chemicals Limited Vs. Union of India & ors, 1996 5 SCC 373;