Orissa High Court
Administrator vs Union Of India And .... Opposite Parties on 7 August, 2024
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.18780 of 2024
(Through hybrid mode)
Administrator, Southco .... Petitioner
Utility
Represented by Adv.-
Mr. R. Tangri, Advocate
Mr. Asutosh Mohanty, Advocate
Mr. Deepro Sen, Advocate
-versus-
Union of India and .... Opposite Parties
others Represented by Adv.-
Mr. Choudury Satyajit Mishra,
Senior Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
ORDER
07.08.2024
W.P.(C) no.18780 of 2024 and I.A. no.9649 of 2024
Order No.
01. 1. Mr. Tangri, learned advocate virtually appears on behalf of
petitioner and submits, his client is a distribution company. Impugned is
circular dated 1st March, 2018 issued by Government of India, Ministry of
Finance (Department of Revenue), Central Board of Excise and Customs.
Under challenge is clarification (1) against query (1) in serial no.4 in the
circular. He submits, fees and charges mentioned in clauses (i) to (v) under
clarification (1) are incidental to transmission, exempted as clarified by
said clarification itself. Hence, the fees and charges under clauses (i) to (v)
are also exempted. Pursuant to the clarification demands have been made.
There be interference, interim at this stage. This is because the clarification
has been struck down by, inter alia, the Gujarat High Court on judgment
dated 19th December, 2018 in Torrent Power Limited v. Union of India
available at (2018) SCC OnLine Guj 4808. He submits further, revenue
preferred Special Leave Petition to the Supreme Court. There was direction
for issuance of notice but no order of stay.
2. Mr. Mishra, learned advocate, Senior Standing Counsel appears on
behalf of revenue. He submits, revenue has filed Special Leave Petition
against striking down of the clarification by, inter alia, the Gujarat High
Court. Petitioner has just been issued with a show cause notice. There is no
reason for interference at this stage.
3. We are inclined to pass interim order and adjourn the writ petition
sine die awaiting adjudication of the question by the Supreme Court. This
is because the Supreme Court did not stay the striking down of the
clarification. It has given rise to issuance of show cause notice and acting
further on basis the clarification, there will be demand. Since the show
cause notice was issued in respect of the clarification, struck down by the
Gujarat High Court, we following judgment of the Supreme Court in
Kusum Ingots and Alloys Ltd. v. Union of India, reported in (2004) 6
SCC 254, interpret the striking down to be applicable in this State.
Paragraph 22 from Kusum Ingots (supra) is reproduced below.
"22. The court must have the requisite territorial jurisdiction. An
order passed on writ petition questioning the constitutionality of
a Parliamentary Act, whether interim or final keeping in view the
provisions contained in Clause (2) of Article 226 of the
Constitution of India, will have effect throughout the territory of
India subject of course to the applicability of the Act."
4. Impugned show cause notice dated 18th June, 2024 will remain
stayed. The writ petition is adjourned sine die awaiting adjudication by the
Supreme Court on the Special Leave Petition pending in said Court, inter
alia, against Torrent Power Limited (supra). Liberty to mention.
( Arindam Sinha )
Judge
( M.S. Sahoo )
Designation: Personal Assistant
Judge
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 07-Aug-2024 19:03:39
