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TMI Blog2003 (11) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ication dated 21-7-1976 issued under Bihar Agricultural Produce Markets Act, 1960 (for short the Act ), Ram Nagar Agricultural Produce Market Area was constituted. A licence under the provisions of the Act was issued by the concerned market committee viz. the Bagha Agricultural Produce Marketing Committee to the appellant as a result of which the transactions of purchase of sugarcane and sale of sugar and molasses became subject to payment of market fee. The connected Civil Appeal Nos. 8293-8311 of 2001 have been filed by the Bagha Agricultural Produce Marketing Committee aggrieved by the part of the judgment of the High Court holding that they would not be entitled to recover the balance two third amount of market fee which remained unpaid. For the sake of convenience in this judgment wherever we have referred the appellant , it is referred for the appellant in Civil Appeals No. 8274-8292 of 2001, namely Harinagar Sugar Mills Ltd. 2. The appellant filed a suit in the Court of the Subordinate Judge, Bettiah challenging the levy of market fee raising different grounds. By means of an interim injunction the market committee was restrained from realizing the market fee from the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Managing Director of the Bihar Agricultural Produce Marketing Board against the order dismissing the appeals. The Revisional Authority dismissed all the revisions preferred by the appellant by order dated 23-3-1999. The appellant thereafter preferred 19 writ petitions before the Patna High Court with a prayer for quashing of the assessment orders dated 16-5-1997. In the meantime, on 10-8-1999 Civil Appeal No. 1282 of 1995 filed by the appellant along with Civil Appeal No. 398 of 1977 filed by Belsund Sugar Company Ltd. was allowed by a Constitution Bench of this Court. 5. This Court, by means of the aforesaid judgment reported in AIR 1999 SC P. 3125, Belsund Sugar Company Ltd. v. State of Bihar, held that provisions of the Market Act do not apply to the transactions of purchase of sugarcane and sale of sugar and molasses by the sugar mills situate in the market area of the Market Committee. The judgment of this Court was however, made prospective in application and the relevant part having bearing on the merits of the matter in hand may be perused which is quoted hereunder : .keeping in view the peculiar facts and circumstances of these cases, we deem it fit to direct in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the required amount of penalty with the market committee in view of provision of Section 27B of the Act, which reads as under : 27B. Appeal - (1) Any person dissatisfied with the order passed on assessment may appeal to the Regional Director of Agriculture Marketing of the Area concerned. (2) No appeal under sub-section (1) against the order or assessment under sub-section (7) or against the order of penalty passed under sub-section (8) of section 27A, or assessment under section 27AA shall be entertained unless the appellate authority is satisfied that the appellant has deposited with the Market Committee : (a) In case of an appeal against the order of assessment and levy of market fee under sub-section (7) of section 27A or section 27AA one third of the fee assessed as due against him or the admitted amount of fee whichever is higher. (b) In case of an appeal against the order passed under sub-section (8) of section 27A, ten per cent of the levy of penalty due from him. 6. The above noted provision requires the appellate authority to be satisfied that the deposit of one third of the fee assessed as due, against the assessee and ten per cent of penalty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant provision for refund made in the judgment of this Court in the case of Belsund Sugar Mill s case (supra) is .. the collected market fees on these past transactions prior to this judgment will not be required to be refunded to any of the sugar mills which might have paid these market fees. In the next paragraph again it is provided .. In other words, market fees paid in past shall not be refunded .. . The question, therefore, which falls for consideration is as to whether the amount deposited with the market committee in view of the provisions of Section 27B of the Act, before filing an appeal, would amount to amount of fee paid by the appellant or not. In support of the contention that it would not be payment of the amount of fee assessed, reliance has been placed on a decision reported in, 1964 (7) SCR 579, J. Dalmia v. Commissioner of Income Tax, New Delhi, so as to indicate the meaning of the word paid . It is in context with Section 16(2) of the Income Tax Act, 1922. The appellant before the Court held some shares in a company which had declared interim dividends in respect of which the appellant had also received a dividend warrant for a certain amount, as a share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to under what head the deposits are entered, on the other hand what would be material is the purpose for which they are to be utilized. The deductions were for the Loss Equalisation and Capital Redemption Reserve Fund . But it was first liable to be used in adjusting the losses of the society and thereafter for payment of initial loan from Industrial Finance Corporation and then for redeeming the government share and only in the event of balance being left it was liable to be converted into share capital. So the primary purpose was to discharge the liability of the society. Hence they were liable to be included in the taxable income as amount paid. We don t think that the said decision helps the appellant in any manner. Similarly, a decision referred to in the case of State of M.P. Ors. v. Indore Iron Steel Mills Pvt. Ltd., 1998 (6) SCC 416 also has no application to the question involved in the present case. The next case referred to is reported in 1993 (66) E.L.T. 557 (Cal.), Super Cassettes Industries Ltd. v. Collector of Customs. In this case as a pre-condition for filing an appeal the petitioner had made deposit of disputed amount as per requirement of Section 129E of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon. In this case also deposit was made in terms of Section 35F of the Central Excise Act, 1944 while filing an appeal. The order under appeal was set aside and while allowing the appeal the case was remanded. It was held that in such circumstances there was no reason to retain the deposit which was liable to be refunded. It was observed that once the order was not found to be satisfactory and set aside, a fresh decision on the matter was awaited after adjudication. There was no such provision providing for deposit during pendency of adjudication in absence of any order assessing liability, the one which was appealed against ceased to exist on being set aside in appeal. According to the relevant provision it was deposit pending appeal. It is thus observed in the judgment as follows : .. It is clear that the amount so deposited remains a deposit pending appeal and is thereafter available for appropriation or disbursal consistently with the final order maintaining or setting aside the order of adjudication. All the above noted cases of different High Courts are those where the order fixing the liability has been set aside and the appeal had been allowed. No case has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in revision would be of no relevance as writ proceedings are not continuation of the suit or appeal. In support of his contention, he has referred to certain decisions. In 1992 Supp. (2) SCC 312, H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal Ors. v. M/s. Gopinath Sons Ors., it has been held that judicial review under Article 226 of the Constitution is not directed against the decision but is confined to decision making process. In exercise of writ jurisdiction re-appraisal of evidence or the correctness of the decision is not to be gone into. It is not to be treated as an appeal against the orders impugned. (1992) 1 SCC 380, Chandigarh Administration Ors. v. Manpreet Singh Ors., has been referred to for the proposition that the High Court cannot assume the appellate jurisdiction while exercising power under Article 226. 1995 Supp.(2) SCC 535, State of U.P. Ors. v. Committee of Management of S.K.M. Inter College Ors., has also been referred to for the same proposition that proceedings under Article 226 of the Constitution are not like appellate proceedings. On the basis of the above decisions the contention is that the decision of the statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and due. It is to be noted that the provision under Section 27B of the Act is that the appellate authority is to be satisfied that the appellant has deposited with the market committee one third of the fee assessed before he files an appeal. It is quite obvious that in case the appeal fails what would be required to be deposited would only be the balance of the amount of the liability, if that too is not already paid. In case the appeal succeeds, the amount paid against assessed liability which is later set aside cannot be retained and in the normal course, it is liable to be refunded, unless of course for some good reasons, it is ordered otherwise. For example, where it may amount to undue enrichment of the appellant. In the case of the appeal being unsuccessful, in the normal course, nothing more would be required to be done to the extent of deposit made. Therefore, merely, because the amount deposited may have to be refunded in case appeal succeeds that alone does not mean that the nature of the deposit is changed or it is anything else except the amount of levy assessed and due, particularly looking to the language used and provision made under Section 27B of the Act, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharges the liability of the payment of the amount assessed and found due, to the extent of deposit made, subject indeed to the decision of the appeal. 13. We have already noticed that in all the cases cited by the learned Senior Counsel Shri Shanti Bhushan on behalf of the appellant, the appeals were allowed and the amount was held to be refundable. Even in one of the cases, Voltas case (supra), where after setting aside the order of assessment the matter was remanded, it was held that there was no good reason or any order against which the amount deposited as a pre-condition to file an appeal, could be retained. Fresh order was awaited. But where amount of liability has been assessed and fixed and the order exists, pre-appeal deposit will be nothing else but payment of a part of the liability assessed and discharged to the extent of the amount of liability paid, subject to the result of the appeal. We are not concerned with other kind of cases where there may be different reasons for deposit of security or any amount of any other nature. Mere filing of the appeal does not absolve the appellant nor suspends the liability assessed during pendency of the appeal. It continues un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessed. It cannot be done in view of the judgment of this Court in the case of Belsund Sugar Mill s case (supra). 16. Learned Counsel for the appellant has submitted that once it has been found by this Court in the case of Belsund Sugar Mill s (supra) that market fee would not be liable to be paid by the sugar mills, there is no occasion to impose or realize or retain the amount of penalty collected/deposited on account of delayed payment of the market fee. It is submitted that as a normal consequence of the judgment in the Belsund Sugar Mill s case (supra), there would be no liability to pay the market fee even though covered by past transactions and orders or in future. But in exercise of power under Article 142 of the Constitution of India, this Court provided that the judgment shall have prospective application and the past transactions and assessments prior to the date of the judgment shall not be affected, but further provided that the amount already paid before the date of the judgment shall not be required to be refunded to the sugar mills and the amount which remained unpaid in view of any order of stay granted by the Court, shall not be liable to be recovered. Subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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