WP(C)/22196/2020
2021 Latest Caselaw 560 Ori

                          W.P. (C) N0.22196 OF 2020




6. 18.1.2021.     This matter is taken up by video conferencing mode.

                2. In this writ petition, the Petitioner has challenged the
                impugned Demand Notice dated 5th January, 2019 issued by
                the Opposite Party No.2, the Odisha Mining Corporation
                Limited (OMC), by which the Petitioner has been asked to
                deposit a sum of Rs.1,82,08,734/- with OMC towards
                service tax on Royalty, DMF & DMT & NMET against the
                quantity of iron ore purchase for the period from 1st April,
                2016 to 30th June, 2017 on the ground that the aforesaid
                amount has already been paid by the OMC as Service Tax
                to the Department.

                3. The Demand Notice further states that if the Petitioner
                fails to deposit the above amount, OMC shall straight away
                recover it from the Petitioner's account.

                4. The Petitioner's registered    its protest by a letter dated
                19th January, 2019 in which it drew the attention OMC to
                the fact that the very issue whether service tax is payable on
                royalty paid to the State Government for removal of iron ore
                from the mining lease area is the subject matter of SLP (C)
                No.37326 of 2017 (Udaipur Chambers of Commerce and
                Industry & Ors v. Union of India) and           in which the
                Supreme Court has passed an interim order on 11th August,
                2018 staying operation of the judgment dated 24th October,
 2017    of the High Court of Rajasthan (Jodhpur Bench),
which decided the issue against the lease holders.

5. It appears that pursuant to the above order dated 11th
August, 2018 of the Supreme Court, interim orders were
passed by this Court on 20th November, 2019 in a batch of
writ petitions staying the recovery of service tax subject to
the Petitioners filing an undertaking that if they failed in the
writ petitions, they would pay the sum together with
interest. However, in the present case, since the above
amount already stands recovered by OMC from the
Petitioner, it is not possible to this Court to pass any such
interim order.

6. Learned counsel appearing for the OMC does not dispute
that the above issue is pending consideration in the Supreme
Court that further that without waiting the final judgment,
the recovery of the service tax already stands effected from
the present Petitioner.

7. In the circumstances, this Court directs OMC to file an
undertaking before this Court within two weeks in the form
of an affidavit, stating subject to the decision pending
SLP(C) in the Supreme Court, if it is held that service tax is
not payable on royalty, OMC will refund to the Petitioner
the sum recovered together with interest that would be
payable by the Department to OMC. The said amount
               would, in the said event, be refunded to the Petitioner by
              OMC within eight weeks from the date of the judgment of
              the Supreme Court.

              8. The writ petition is disposed of in the above terms.

              9. As the restrictions due to the COVID-19 situation are
              continuing, learned Counsel for both the parties may utilize
              a soft copy of this order available in the High Court's
              Website or print out thereof at par with certified copy in the
              manner prescribed, vide Court's Notice No.4587, dated 25th
              March, 2020.

                                                  ............................

(Dr. S. Muralidhar) Chief Justice

........................ (S.K.Mishra) Judge

P.C. Das A.K. Behera