Bharat Coking Coal Ltd. Vs Commr. CGST & CX (CESTAT Kolkata)
The appeal arose from an Order-in-Original dated 08.02.2017 concerning Central Excise duty on coal cleared by M/s. Bharat Coking Coal Ltd. The Revenue alleged that, during March 2011 to October 2015, the appellant collected MADA Market Fee, described on invoices as “Bazaar Fee/Tax”, but did not include it in the assessable/transaction value of coal. The resulting alleged short-payment of Central Excise duty and cess was quantified at Rs.2,49,46,326/-. The Market Fee was collected at 1% and the appellant had disclosed it on its invoices, though it was not included in the ER-1 returns.
The Tribunal considered the character of the levy under Section 90A of the Bihar Mineral Area Development Authority Act, as adopted in Jharkhand, and distinguished it from the levy under Section 89. The Tribunal noted that Section 90A separately provides for a Market Area and a Market Fee on sale or transaction of commodities, with the rate capped at one per cent of sale value, while Section 89 dealt with tax on use of land. The nine-Judge Supreme Court decision in Mineral Area Development Authority v. Steel Authority of India was held to have settled the State Legislature’s competence to tax mineral-bearing land, but the Tribunal found that the Supreme Court decision did not decide whether the distinct Section 90A Market Fee was a tax or a fee.
