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TMI Blog2009 (8) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... g, purchasing nor processing tobacco and has not subjected the tobacco to any of the process mentioned in the definition clause under section 2(1)(mmm) which is a notified agricultural produce within the market area and therefore, is also outside the purview of section 6 of the Act also. In favour of assessee. - W.P. No. 3539 of 2002 - - - Dated:- 4-8-2009 - JHA R.S. , J. ORDER:- R.S. JHA J. The petitioner has filed this petition challenging notices cumulatively marked as annexure P1 dated June 13, 2002 and June 18, 2002 bringing the petitioner within the purview of Krishi Upaj Mandi Adhiniyam, 1972 issued by the Krishi Upaj Mandi Samiti Damoh and Hatta demanding market fees from the petitioner, on the ground that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not have the effect of creating any liability upon the petitioner. The respondent/mandi again issued a notice to the petitioners on June 22, 2002 demanding market fees and threatening coercive steps towards recovery. Being aggrieved by the same, the petitioners have filed the present petition. It is submitted by the learned counsel for the petitioners that the petitioners purchase processed tobacco from Gujarat and utilize the same for manufacturing of bidi within the market area. It is stated that though, admittedly, tobacco is a notified agricultural produce, as the petitioner is not undertaking the activity of selling, purchasing or processing any notified agricultural produce within the market area, he is not liable to pay any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2008 passed in W. P. No. 1348 of 2005 Tapa Traders, Gwalior v. Krishi Upa Mandi Samiti, Gwalior. I have heard the learned counsel for the parties at length. The issue that arises for decision in the petition is as to whether the process undertaken by the petitioner for preparing bidi from tobacco amounts to manufacture and whether the petitioner is liable to pay market fee in accordance with the provisions of the Act. In the instant case, admittedly, the petitioner is importing processed tobacco from Gujarat and is preparing bidi from the same and the fact that the petitioner is in fact bringing tobacco within the market area, which is a notified agricultural produce, is not disputed or denied. It is also an admitted fact that bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, decorating, husking, parboiling, polishing, ginning, pressing, curing or any other treatment to which an agricultural produce or its product is subjected to before final consumption. From a perusal of the aforesaid provision of law, it is clear that a person who is either buying or selling or processing a notified agricultural produce within the market area is liable to pay market fee and that powdering, crushing, decorating, husking, parboiling, polishing, ginning, pressing, curing or any other treatment to which an agricultural produce or its product is subjected to before final consumption amount to processing. In the instant case, admittedly, the petitioner does not undertake any of the activities mentioned in the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. (See Empire Industries Limited v. Union of India [1987] 64 STC 42 (SC); [1985] 3 SCC 314). 20.. These aspects were highlighted in Kores India Ltd. v. Commissioner of Central Excise, Chennai [2005] 1 SCC 385. 21.. The stand of learned counsel for the respondents that the levy is under two circumstances, i.e., (i) on the buying and selling of notified agricultural produce when brought within the State into the mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken for manufacture may be relevant but may not be decisive. (See Commissioner of Central Excise, Tamil Nadu v. Vinayaga Body Building Industries Ltd. [2008] 3 SCC 666). 18.. Zafrani zarda being a 'manufactured tobacco' would not answer the description of processed tobacco. It is used by a class of consumers. It is used for a specific purpose. Tobacco as a processed form is used for many purposes, by many persons and in many ways. Tobacco in raw form or in any other processed form is not commercially known as zarda. The common parlance test may have to be applied for the purpose of finding out as to whether the product in question is manufactured goods or not. From a perusal of the aforesaid judgments it is clear that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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