ASSAM STATE AGRICULTURE MARKETING BOARD Vs. TINSUKIA TRADING COMPANY PVT. LTD.
LAWS(GAU)-2018-11-159
HIGH COURT OF GAUHATI
Decided on November 08,2018

Assam State Agriculture Marketing Board Appellant
VERSUS
Tinsukia Trading Company Pvt. Ltd. Respondents

JUDGEMENT

A.S.BOPANNA, J. - (1.) Heard Mr. S. Saikia, learned counsel for the appellants. Also heard Mr. O.P. Bhati, learned counsel for the respondent.
(2.) The appellants - Assam State Agriculture Marketing Board, is before this Court assailing the order dated 31.07.2018 passed by the learned Single Judge in W.P.(C) No.4469/2015. The brief facts which led to the said order passed by the learned Single Judge is that the respondent herein was before the learned Single Judge in the said writ petition contending that the appellants herein are not justified in levying cess on Mustard Oil imported from outside the State of Assam and in that light the respondent herein had sought for refund of the amount of Rs.4,22,202/- which had been collected by the respondent as cess during the period 04.07.2014 to 10.03.2015. The learned Single Judge having, thus, taken into consideration the rival contentions as also the provisions of law was of the opinion that the appellants herein were not justified in leving cess and has, accordingly, directed for refund of the amount.
(3.) The learned counsel for the appellant while assailing the order passed by the learned Single Judge has made a detail reference to the provision as contained in Section 2(1)(i) of Assam Agricultural Produce Market Act, 1972, for short, the Act, which provides the definition of "Agricultural Produce", so as to contend that it would mean and include the processed form of agricultural produce also. In that light, a reference made to the Schedule to point out that Mustard Seed being included in the Schedule at (IV) thereof, the same will also include Mustard Oil. Reference is also made to the definition of 'Trade' and 'Processing' as contained in the Act. Hence, the contention is that "Agricultural Produce" would mean and include the processed or non-processed Agriculture, Horticulture, Animal Husbandary, Pisciculture, Sericulture and Forest produce as specified in the Schedule and, therefore, levy of cess is justified. The contention that Mustard Oil also should be considered as an agricultural produce as a processed form of Mustard seed is sought to be justified by relying upon the decisions of the Supreme Court in the case of Kishan Lal Vs. State of Rajasthan and Ors., 1990 (supp) SCC 742, the case of Krishi Utpadan Mandi Samiti and Anr. Vs. M/s Shankar Industries and Ors., 1993 Supp (3) SCC 361(II), and also the decision in the case of Park Leather Industry (P) Ltd. and Anr. Vs. State of U.P. and Ors., (2001) 3 SCC 135. It is contended that in the said decisions of the Supreme Court, it has also been held that the processed form would also be available for levying of cess. Hence, it is contended that the learned Single Judge without considering this aspect of the matter has erroneously arrived at a conclusion. Alternately, it is contended that even if this Court accepts the view taken by the learned Single Judge that Mustard Oil is not an agriculture produce, the refund as ordered would not be just since the respondent herein has passed on the said burden to the end user and the respondent herein, therefore, is not entitled to the same. The learned counsel for the appellant has sought to rely upon the decision in the case of Shree Digvijay Cement Co. Ltd. and Anr. Vs. Union of India and Anr. , (2003) 2 SCC 614 in that regard. Learned counsel for the respondent, however, seeks to sustain the order passed by the learned Single Judge, contending that the learned Single Judge has taken note of the aforesaid decisions and on due consideration of the decision of the Supreme Court in the case of State of Rajasthan Vs. Rajasthan Agriculture Input Dealer's Association, (2005) 5 SCC 479, has arrived at the ultimate decision and, therefore, it is contended that the order passed by the learned Single Judge does not call for any interference. Ultimately, it is contended that mustard oil cannot be considered as agricultural produce and, therefore, levy of cess was not justified. In the background of the rival contentions, we have perused the appeal papers. At the outset, we notice that in the backdrop of the order passed by the learned Single Judge there is no serious dispute in so far as the appellant herein being entitled to levy cess in the market area, and, therefore, the said aspect is not adverted to in details. Only issue for consideration herein is whether the appellants were justified in levying the cess on Mustard Oil by construing the same as agricultural produce and in that circumstances, whether they are justified in doing so despite the fact that Mustard Oil is not included in the Schedule to the Act. At this stage, we may refer to the definition of Agriculture Produce as contained in Section 2(1)((i) of the Act, which reads as under: "2(1)(i) "Agriculture Produce" means and includes any produce whether, processed or non-processed of Agriculture, Horticulture, Animal Husbandry, Pisciculture, Sericulture and Forest as specified in the Schedule." (emphasis supplied);


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