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TMI Blog2003 (11) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... te Government by the Union of India in order to save the rice mills from the losses on account of lower prevailing rate in the market. The sale by the appellants to the respondent-Corporation was made at a special rate, i.e., at the rate of Rs. 708.20 paise per quintal which was determined after taking into consideration the sales tax, market fee and other expenditure. It is also admitted position that the appellants are licensee under the Act whereas the respondentCorporation is not a licensee. 3.. The appellants assailed the order of assessment on two grounds. Firstly that under the provisions of the Act read with Rules, the purchaser has to pay market fee and as such the appellants are not liable to pay the same. Though the market fee has to be collected and paid by the seller (appellants) but if they did not do so in view of the direction of the State Government the payment of the market fee has to be made by the respondent-corporation and as such the respondent Market Committee be restrained from realising the market fee from them on the sale of rice to the respondent-corporation. Secondly that if there is any difficulty to allow the said prayer, the respondent-corporation m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) shall not be levied more than once on a notified agricultural produce in the same notified Market Area." 7.. The manner has been prescribed under rule 82 of the Rules framed by the State Government in exercise of power under section 52 of the Act. The said Rules run as follows: 82.. Market fee.-(i) The Market Committee Shall levy and collect market fee, on agricultural produce bought or sold in the market area at the rate of Rs. 1 per Rs. 100 worth of agricultural produce. (ii) If the buyer is a licensee, he shall within a week of the purchase, deposit the market fee, with the Market Committee. (iii) If the seller is a licensee and the buyer is not a licensee, the seller shall realise the market fee from the buyer and shall within a week deposit the same with the Market Committee. (iv) If neither the buyer nor the seller is a licensee, the buyer shall deposit the market fee with the Market Committee or to its authorised officer or to staff or any person authorised by the Market Committee. (v) to (xiii) ........................ 8.. Sub-rule (iii) of rule 82 is relevant for the purpose of this case. According to it, if the seller is a licensee and buyer is not a licensee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely, as to whether the finding of the High Court that the levy of market fees is not justified because there was no direct or indirect benefit conferred by the Market Committee either on the purchasers or traders of bamboos as a class, is valid or not. (see paragraph 8 of the judgment). The apex Court held that the benefit was provided by the Market Committee to the buyer and seller of the agricultural produce and as such the levy of market fee was valid. The apex Court in paragraph 32 of the judgment held that the second proviso to sub-section (2) of section 19 of the Act which provides that in case of a commercial transaction between traders in the market area, the market fee shall be collected and paid by the seller, cannot be pressed into service to negative the levy of the market fee, even if the Forest Department is treated as trader when it sells the bamboos. However, their Lordships observed that the provision requiring the seller to collect market fee in such case is made for the convenience of collection of the fees, as is the similar provision made in the first proviso of the said sub-section where buyers cannot be identified. The collection made by the seller, i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution Bench of the apex Court and the Constitution Bench while dealing with the said provision of the U.P. Act held that the purchaser shall pay the market fee and liability to realise and deposit the market fee is of the seller. It is immaterial whether he collects the same from the purchaser or not. It was also held that in view of the mandatory requirement of the provision, the Market Committee is entitled to collect market fee from the seller even if he has not realised it from the purchaser. In paragraph 11 of the judgment, the decision rendered in the case of Krishi Utpandan Mandi Samiti v. Indian Wood Products Ltd. (1996) 3 SCC 321 was held to be not laying correct law as it was observed in paragraph 11 of the judgment as follows: "It is difficult for us to agree with the reasoning that the use of the word 'shall' in the said clause means that where the selling trader collects fees from a purchasing trader he is under an obligation to make over the fee to the Market Committee and where the selling trader does not collect the fee from the purchasing trader the liability to pay the market fee remains to be that of the purchaser." 16.. The Constitution Bench of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be open to them to recover the same from the purchaser-Government." 17.. From perusal of the relevant provision of rule 82 of the Rules it appears that it is the responsibility of the seller to realise the market fee from the buyer and deposit the same to the Market Committee. The words used are "shall realise" and "shall deposit". The requirements are mandatory in nature and duty is cast on the seller to realise and deposit the amount of market fee. It is immaterial whether the seller has realised the market fee from the purchaser or not, and the Market Committee is entitled to collect the same. 18.. Thus, the submission advanced on behalf of the appellants that under the relevant provision it is not an obligation of the buyer to collect and deposit the market fee from the seller, where he is a licensee and the purchaser is not, is devoid of any substance and the appellants are liable to pay the market fee in terms of the Rules and the order of assessment does not suffer from any legal infirmity. 19.. So far the matter with regard to direction to the respondent-Corporation is concerned, no relief can be granted to the appellants on this ground also as appears from the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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