ULTRATECH CEMENT LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The present petition has been filed by petitioner under Article 226 of the Constitution of India challenging legality, validity and propriety of the order dtd. 26/9/2023 passed by the learned Additional Commissioner (CGST and Central Excise), Raipur in Original Order No. 10/ADC/GST/2023-24. By the impugned order the Additional Commissioner has confirmed the demand and ordered for recovery of Goods and Services Tax ("GST") of Rs.14,35,54,944.00(CGST Rs.7,17,77,472.00 + SGST Rs.7,17,77,472.00) (Rupees Fourteen Crore Thirty-Five Lakh Fifty-Four Thousand Nine Hundred and Forty-Four only) along with applicable interest and penalty on the Development Cess and Environment Cess to be paid under the Chhattisgarh (Adhosanrachna Vikas evam Paryavaran) Upkar Adhiniyam, 2005. The Additional Commissioner has also imposed penalty to the tune of Rs.1,43,55,494.00. The petitioner has also challenged the demand notice dtd. 6/12/2023 issued by Assistant Commissioner, Raipur ' 3, Division -1 (Annexure P/2). in which levy and collect Goods and Services Tax ("GST") of Rs.14,35,54,944.00 (CGST Rs.7,17,77,472.00 + SGST Rs.7,17,77,472.00) (Rupees Fourteen Crore Thirty-Five Lakh Fifty-Four Thousand Nine Hundred and Forty-Four only) along with applicable interest and penalty on the Development Cess and Environment Cess payable to the State of Chhattisgarh under the Chhattisgarh (Adhosanrachna Vikas evam Paryavaran) Upkar Adhiniyam, 2005.

(2.) Brief facts as projected by the petitioner are that the Petitioner is a Public Limited Company duly registered under the provisions of the Companies Act, 1956, having its Registered Office at B-Wing, 2nd floor, Ahura Center, Mahakali Caves Road, Andheri (E), Mumbai-400093. The Cement Plant of the Petitioner company is situated at Post Hirmi, Tehsil, Simga, District Baloda Bazar, Bhatapara (Chhattisgarh) and is engaged in the manufacture and supply of Cement and Clinker. The Petitioner has its own Limestone (Cement Grade) Mines for captive use in the manufacture of cement situated at Paraswani, Baloda Bazar, Chhatisgarh. The Petitioner company has been granted mining leases (in short "ML") for extraction of mineral Limestone (Cement Grade) "Major Mineral" and also "Notified mineral" under Mines and Minerals (Development and Regulation) Act, 1957, as amended from time to time ("MMDR Act")]. This mining lease has provided for all the payments that are required to be made to the State Government in relation to the aforesaid captive mining operation royalty, surface rent, dead rent, water charges. Therefore, against the receipt of mining rights, Petitioner pays a royalty to the State Government under Sec. 9 (2) of the MMDR Act. Additionally, in terms of Sec. 9B and 9C of the MMDR Act, the Petitioner also pays charges towards the District Mineral Foundation ('DMF') and National Mineral Exploration Trust ('NMET'), respectively.

(3.) It has also been contended that Legislature of the State of Chhattisgarh has enacted the Chhattisgarh (Adhosanrachna Vikas Evam Paryavaran) Upkar Adhiniyam, 2005 ('Chhattisgarh Cess Act') which provides for the levy of cess on land for raising funds to implement infrastructure development and environment improvement projects. The Chhattisgarh (Adhosanrachna Vikas Avam Paryavaran) Upkar Niyam, 2005 ('Chhattisgarh Cess Rules') has been framed under the provisions of the Chhattisgarh Cess Act. Sr. No. 01 to Schedule I and Schedule II prescribe that the cesses are payable on land covered under the Mining lease at the prescribed rate on each tonne of dispatch of mineral. The prescribed rate is Rupees 11.25 on each tonne of dispatch of mineral (w.e.f. 4/9/2019), i.e., in the present case, limestone. The Petitioner discharges the statutory levy of Infrastructure Development Cess and Environment Cess at the prescribed rate and pays the same to the Chhattisgarh State Government. The Petitioner has paid a total sum of Rs.79,75,27,468.00 towards the Cesses for the period from July 2017 to September 2021. Respondent No. 01 issued a Circular No. 164/20/2021-GST dtd. 6/10/2021 stating that the rate of GST on Royalty would be 18% with retrospective effect from July 2017 to December 2018. In the aforesaid facts and circumstances, proceedings were initiated by the inspection carried out on the Petitioner under Sec. 67(1) of the CGST Act on 27/8/2021. In furtherance of the same, inquiry was made on the Petitioner by summons dtd. 27/8/2021 issued by the learned Superintendent, Office of the Principal Commissioner, CGST and Central Excise, Raipur, Chhattisgarh (Ld. Superintendent) under Sec. 70 of the CGST Act alleging evasion of CGST due to non-payment of GST on Infrastructure Development Cess and Environment Cess.