- (1.) SUNIL Ambwani, J. The petitioner is a private limited company with its registered office at 56 and B-33 Site No. IV, Industrial Area, Sahibabad District Ghaziabad. It is engaged in the manufacture and sale business of pro duction of milk products including 'desi Ghee' in the name and style of Pa. V in the market area of Krishi Utpadan Mandi Samiti at Ghaziabad (KUMS, Ghaziabad ). The petitioner also sells its products through consignee agents. A list of 15 con signee agents with their offices in the States of West Bengal; Gujarat; Goa; Orissa; Maharashtra; Rajasthan and New Delhi, is enclosed with the writ petition. These consignee agents provide services namely uploading of goods from the truck, storage in the depots of the petitioner, despatch by trucks to redistribution stockists as per sale order, raise sale invoices on behalf of the petitioner-com pany in the name of re-distribution stockists and collect payments. The dispute in the present case is limited to the imposition of the 'market fee' and 'develop ment cess' on the transactions through consignee agents under Section 17 of the U. P. Krishi Utpadan Mandi Adhiniyam, 1965 (the Adhiniyam) for the period 14. 5. 2004 to 31. 3. 2005.
(2.) IN reply to the show cause notice issued to the petitioner on 22. 5. 2004, directing the petitioner to produce all the documents with regard to production, sale-purchase movement and storage for the concerned year, with reference to an enquiry initiated on the declaration by the petitioner that the stock transfer vide consignment note No. 94 dated 14. 5. 2004 despatching 5250 Kgs Desi Ghee to Anand Sales Corporation at Ahmedabad, the gate pass was not necessary as the agricultural produce was not sold in the market area, the petitioner filed a reply on 14. 6. 2004 explaining the entire transactions of manufacture and transfer of ghee to its god own situated in various parts of the country. The market commit tee was not satisfied with the explanation and that by the order dated 27. 4. 2005 the Secretary of the market committee of the KUMS, Ghaziabad found, relying upon the Explanation to Section 17 (3) (b) of the Adhiniyam, and the judgment of Supreme Court in Mandi Samiti v. Mahalakshmi Sugar Works, dated 2. 2. 1995 and Krishi Utpadan Mandi Samiti v. M/s Saraswati Cane Crusher, dated 25. 3. 1998 found that it was necessary to obtain gate pass after producing sufficient evi dence by way of valid rebuttal of the sale and movement of the agricultural pro duce, and that the petitioner was required to obtain gate pass. The Secretary KUMS, Ghaziabad also relied upon a judgment of Division Bench of this Court in Heinz India (P) Ltd. And another v. State of U. P. and others, (Writ Petition No. 2323 of 1997 decided on 20. 8. 2004) on the sales through C and F agents in holding that such transactions are deemed sales and attract market fees. The Secretary, KUMS, Ghaziabad further found that the petitioner did not give sufficient evidence to clarify the position with regard to sale and the orders for movement of ghee, details of payments, sale position, the details of accounts and the position of Candf agents. The day books of Candf agents were not pro duced. The Secretary KUMS, Ghaziabad consequently imposed market fee at Rs. 9,39,200. 05 and the development fees at Rs. 2,34,800/-, total Rs. 11,74,000/-for 3906. 80 quintals of 'deshi ghee' taken out from the market area of KUMS, Ghaziabad valued to approximately at Rs. 4,69,60,035. 00 under Section 17 (3) (b) of the Adhiniyam and also directed that in future the petitioner shall produce details of its business and obtain gate passes, whenever it is transporting the ghee from the market area of KUMS, Ghaziabad. The petitioner filed a revision under Section 32 of the Adhiniyam against the assessment before the Director, Rajya Krishi Utpadan Mandi Parishad, U. P. The revision was heard and dismissed on 31. 10. 2007, by the Deputy Director (Administration/marketing), exercising delegated powers of the Director of Rajya Krishi Utpadan Mandi Parishad (in short the Parishad), giving rise to this writ petition. The Deputy Director, Mandi Parishad while affirming the order of the Secretary, KUMS, Ghaziabad, held that the transactions are not by way of stock transfers but are sale within the market area of KUMS, Ghaziabad and that the 'desi ghee' was taken out from the market area only after it was sold.
(3.) ON the question of liability upon a manufacturer, the Deputy Director held that the petitioner is a manufacturer/dealer/trader and is liable to pay market fee on the transaction of sale in the market area. The petitioner did not produce sufficient evidence to validly rebut that the movement of ghee outside the market area was not by way of stock transfer, raising a presumption that the ghee was transported outside the State only after its sale on which the 'market fees' and 'development cess is due. Heard Shri Yashwant Verma for the petitioner and Shri B. D. Mandhyan, Senior Advocate assisted by Shri Satish Mandhyan for respondents. The parties have exchanged affidavits. With the consent of the parties the writ petition was heard finally at admission stage.;