JUDGMENT : D.N. Patel, J 1. W.P. (T) No. 3575 of 2013 has been argued out by Sri Vaibhav Kumar and opposed by Mrs. A. R. Choudhary, Ratnesh Kumar and Kaustav Panda. It has been submitted by the parties that similar matters have been decided by this Hon'ble Court in W.P.(T) No.3087 of 2013 and analogous matters vide judgment dated 27.11.2015. 2. This writ petition has 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 respondents-Companies. The said amount has already been paid by the respondents-Companies to the Union of India and in terms of the contract between the petitioners and the respondents-Companies, 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 respondents-Companies 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. Counsel appearing for the petitioners has argued out the case at length and has relied upon several decisions which are as under: (1990) 1 SCC 12 India Cement Limited & Ors Vs State of Tamil Nadu and others (2004) 10 SCC 201 State of West Bengal Vs. Kesoram Industries Limited (2011) 4 SCC 450 Mineral Area Development Authority Vs Steel Authority of India Limited (1996) 5 SCC 373 I.D.L. Chemicals Limited Vs. Union of India & ors 4. On the basis of the aforesaid decisions, it is submitted by the counsels for the petitioners that as has been held in the decision rendered by Hon'ble Supreme Court in India Cement Limited & Ors Vrs. Union of India & ors 4. On the basis of the aforesaid decisions, it is submitted by the counsels for the petitioners that as has been held in the decision rendered by Hon'ble Supreme Court in India Cement Limited & Ors Vrs. State of Tamil Nadu & Ors reported in (1990)1 SCC 12 , especially in paragraph 34 and the first line thereof i.e. “royalty is a tax” and, therefore, it cannot be added in the “transaction value” and hence, excise duty is not leviable. Much has been argued about the binding decision of the Hon'ble Supreme Court, where the matter is referred to a Larger Bench of nine judges of the Hon'ble Supreme Court and it is further submitted by the counsels for the petitioners that if this Court is directing to deposit the amount, the same may be kept in a separate bank account, so that interest accrued thereupon may be returned to these petitioners, if the Hon'ble Supreme Court is deciding the issue upon the royalty whether it is a tax or not. 5. Counsels for the respondents-Companies submitted that the Union of India has already demanded differential duty of Central Excise by adding an amount of the royalty in the transaction value. This amount has already been paid by the respondents-companies to the Union of India. Respondents-Companies are wholly owned, managed and controlled by the Central Government. As per the terms and conditions of the “Spot e-Auction Scheme 2007” under which these petitioners have participated and acted upon in a bid process, these petitioners are liable to make payment of tax, cess, royalty, stowing excise duty, etc especially looking to Clause 4.4 of the terms and conditions of “Spot eAuction Scheme 2007” and, therefore, let this amount be allowed to be recovered by these respondents-companies and, as decided by the Hon'ble Allahabad High Court in W.P. (T) No.460 of 2014 dated 1st September, 2014, let this amount be deposited by the applicants before the respondents-companies and when Hon'ble Supreme Court finalising the issue of royalty whether it is a tax or not, proper steps for refund or otherwise can be taken as per the directions of Hon'ble Supreme Court. Counsels for the respondents have relied upon the decisions rendered by the Division Bench of Hon'ble Allahabad High Court in W.P. (T) No.460 of 2014 judgment and order dated 1st September, 2014. Counsels for the respondents have relied upon the decisions rendered by the Division Bench of Hon'ble Allahabad High Court in W.P. (T) No.460 of 2014 judgment and order dated 1st September, 2014. (2) W.P. (T) No. 65 of 2013 delivered by Hon'ble Chhatisgarh High Court at Bilaspur judgment and order dated 11th September, 2013. (3) a Decision rendered by the Hon'ble High Court of Calcutta in W.P. (T) No. 20522(W) of 2013 and other allowed matters judgment and order dated 11th April, 2014. 6. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, by virtue of the Finance Act, 2011 which is made effective from 1st March, 2011, the extraction of coal is made subject to payment of excise duty. These petitioners are the traders in coal and they purchased the coal under the “Spot e-Auction Scheme 2007”. The terms and conditions of “Spot e-Auction Scheme 2007”. Clause 4.4 thereof reads as under: “4.4 The Buyers while bidding shall quote their “Bide price” per tonne in Indian Rupee as base coal price on FOR/FOB colliery basis, exclusive of other charges like statutory levies, surface transportation charges, sizing/beneficiation charges, taxes, cess, royalty, SED, & any other charges as will be applicable at the time of delivery. These charges as well as freight etc shall be on the Buyers' account.” (Emphasis supplied) 7. In view of the aforesaid clause, these petitioners paid royalty and other taxes for the period running from 1st March, 2011 to 28th February, 2013, but, the amount of royalty and stowing excise duty were not added to the transaction value as required under Section 4(3)(d) of the Act of 1944 and, therefore, respondents-Union of India demanded differential excise duty from the respondents-Companies. The said amount has been paid by the respondents-companies to the Union of India and looking to the aforesaid clause 4.4 of the terms and conditions of “Spot E-auction Scheme” notices have been issued upon the petitioners for payment of differential excise duty adding the amount of royalty and stowing excise duty to the transaction value. 8. Looking to the Annexure 1 series of the instant writ petition, the recoverable amount from the petitioners are mentioned and the respective amount is to be paid by these petitioners to the respondents-companies towards the differential excise duty. 9. 8. Looking to the Annexure 1 series of the instant writ petition, the recoverable amount from the petitioners are mentioned and the respective amount is to be paid by these petitioners to the respondents-companies towards the differential excise duty. 9. It appears that by virtue of decision rendered by Hon'ble Supreme Court reported in the case of India Cement Limited (Supra) especially paragraphs 33 and 34 to be read with the decision rendered by Hon'ble Supreme Court in the case of Union of India and anr Vs. Azadi Bachao Andolan & anr reported in (2004) 10 SCC 201 , though the Hon'ble Supreme Court had referred the mater to a Larger Bench of nine judges, this reference is made by the decision given by Hon'ble Supreme Court in the case of Mineral Area Development Authority & Ors Vrs Steel Authority of India Limited & Ors reported in (2011) 4 SCC 450 and, hence, we are not deciding the issue whether the amount of royalty and the amount of stowing excise duty can be added to the transaction value as mentioned in Section 4(3)(d) of the Act of 1944 royalty or not. 10. We are exercising powers under Article 226 of the Constitution of India. There is a contract between the parties i.e. the petitioners and the respondents-companies. These petitioners have participated in “Spot E-auction Scheme” for the purchase of coal. The terms and conditions of “Spot e-Auction Scheme 2007” is binding to the parties to this agreement and looking to Clause 4.4 thereof, these petitioners are bound to make payment of statutory levies, surface transportation charges, sizing/beneficiation charges taxes, cess, royalty, stowing excise duty (SED) and other charges. Thus, the contract between the parties is not a statutory contract, but, it is a contract of commercial in nature. Likewise, there is a clause for arbitration as contained in Clause 11.12 of the terms and conditions of “Spot e-Auction Scheme 2007”. The said clause 11.12 reads as under : “11.12 In the event of any dispute, Bidder / Buyer is necessarily required to represent in writing to the General Manager (Sales) of the concerned coal company, who would deal with the same in a period of one month from such representation. Thereafter, if required the matter be determined by the Director-in-Charge of Marketing of the concerned coal company. Thereafter, if required the matter be determined by the Director-in-Charge of Marketing of the concerned coal company. Any interpretation of any clause of this will be subject to clarification by CIL, which will be deemed as firm and final. All disputes arising out of this scheme, or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996. The arbitration shall be conducted at Calcutta at a place to be notified by CIL. The arbitrator shall be appointed by the Chairman and Managing Director, CIL upon written request in this behalf. The award rendered by the Arbitrator shall be final and binding on the parties. (The place of arbitration & nomination of arbitrator be varied appropriately in view of the Coal Company involved)”. (Emphasis supplied) 11. The respondents-Coal Companies have already made payment of differential excise duty after the proceedings was initiated by the Central Excise authorities and as the issue is already pending before the Hon'ble Supreme Court before the nine judges Bench and also looking to the aforesaid Clause 4.4 and 11.12 of the terms and conditions of “Spot e-Auction Scheme 2007” and also looking to the fact that the petitioners-purchasers-traders of coal have made purchases of coal in pursuance of a transaction which are commercial in nature, we see no reason to entertain these writ petitions at this stage. The amounts which are recoverable from these petitioners as differential excise duties shall be paid by them to the respondents-Coal Companies. This payment will be without prejudice to the right of the contention of these petitioners and shall be treated as payment made under protest and the said payment will be subject to outcome by the Hon'ble Supreme Court on the point that whether royalty is tax or not. 12. This amount of differential excise duty will be deposited by the petitioners to the respondents-coal companies on or before 1st May, 2016 either by cash or by demand draft. Much has been argued out about the refund of the aforesaid amount if the petitioners have an advantageous position after the decision is finally passed by the Hon'ble Supreme Court in the matter of royalty whether it is a tax or not. Much has been argued out about the refund of the aforesaid amount if the petitioners have an advantageous position after the decision is finally passed by the Hon'ble Supreme Court in the matter of royalty whether it is a tax or not. At this stage, we are not finalizing the issue of refund, because all will depend upon the direction to be given by the Hon'ble Supreme Court in the aforesaid decision by the Larger Bench and will also depend upon whether the burden of the duty has been passed on the consumers or not, keeping in mind the principle of “Unjust Enrichment”. 13. Counsel for the petitioners has also contended that there are different transactions between the petitioners and the respondents-Coal Companies and, thus, the amount recoverable under one transaction cannot be recovered by the respondents-Coal companies from the deposits made in separate and distinct contract. This contention is not accepted by this Court mainly for the reason that if the trader is the same and the respondents-Coal Company is the same, there may be more than one transactions between them. The differential excise duty payable under the Contract No.I can be recovered by the respondents-Coal companies from the amount deposited by the traders under Contract No.II. The sovereign dues cannot be kept pending. The sovereign dues have to be paid by the petitioners to the respondents-Coal Companies which is a “State” within the meaning of Article 12 of the Constitution of India. The traders-petitioners of coal shall make payment of differential excise duty to the respondents-Coal companies which is wholly owned, managed and controlled by the Central Government. Whenever such type of issues are referred to Larger Bench before the Courts and if the amount of tax is involved which is to be recovered by the Central Government companies or the Government companies by the traders, these differential excise duty is bound to be paid by the traders to the Government companies, even during pendency of the issue, before the Larger Bench so that there may not be any difficulty by the Government or for the Governmental companies for recovery of the differential sovereign dues. Otherwise, if, later on, the matter is decided against the traders or petitioners or private parties, it will be extremely difficult for the Government or by the Government Companies to recover the differential excise duty or sovereign dues. Otherwise, if, later on, the matter is decided against the traders or petitioners or private parties, it will be extremely difficult for the Government or by the Government Companies to recover the differential excise duty or sovereign dues. The companies, private or public, may be wond up, but, the Central Government and the instrumentalities of the Central Government will not be wond up. The amount of sovereign dues paid by the companies, public or private, is absolutely safe with the Central Government or with the Governmental companies. Keeping in mind this equilibrium and looking to clause 4.4 and 11.12 of the terms and conditions of “Spot e-Auction Scheme 2007” and also looking to the fact that the transaction between these petitioners and the respondents-Coal companies is not a statutory contract, but, it is purely a commercial transaction, we, hereby, direct the petitioners-Companies to make payment of differential excise duty to the respondents-coal companies. If any amount has been recovered by the respondents-coal companies from the petitioners towards aforesaid differential excise duty, the same will be adjusted by the respondents-coal companies. 14. With the aforesaid directions and observations, this writ petition is disposed of.