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TMI Blog2011 (3) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... ally mentioned and enumerated in List III. Unless the tax is in respect of a subject, which stands enumerated in the "taxing specific entries", no levy/fees/charges can be imposed in the name of tax by the State Government. In these circumstances, various case laws relied on by the State Counsel are of no avail to them. Needless to say that a taxing statute, must be made in consonance with article 265 of the Constitution. In view of the above, we are of the considered opinion that the provisions of section 2(d1), section 8(4) and 8(5) of the U.P. Sheera Niyantran Adhiniyam amended by U.P. Act No. 10 of 2009, reproduced hereinabove, suffer from callous exercise of power and it can safely be concluded that the State has overstepped its limit of power.Accordingly, all the writ petitions are allowed and the aforesaid provisions are declared invalid. X X X X Extracts X X X X X X X X Extracts X X X X ..... or supply" have been substituted by the words "transfer or sell or supply" and in sub-sections (4) and (5) of the section 8 of the Principal Act, the words "sold or supplied" have been substituted by the words "transferred or sold or supplied". Therefore, it has been strenuously argued that the effect of these amendments is that the sugar factory will be required to pay administrative charges even on molasses, which is transferred to its own distillery, although it does not involve any sale or commercial transaction and the molasses is required for captive consumption. According to learned counsel for the petitioners, the storage, gradation and control of molasses produced by the sugar factories in Uttar Pradesh including regulation of its supply and distribution is governed by the provisions of the 1964 Adhiniyam. In the statutory scheme so laid in the Adhiniyam of 1964, a person requiring molasses for his distillery or for any purposes of industrial development is obliged to apply to the Controller of Molasses in terms of section 7A of the Adhiniyam of 1964. Sub-section (4) of section 8 provides that occupier of a factory shall be liable to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Significantly this was also the meaning of the captive consumption as per the provisions of the U.P. Sheera Niyantran Adhiniyam, 1964. The State Government cannot vary from the exact meaning of the said definition, which is beyond the scope of the U.P. Sheera Niyantran Adhiniyam, 1964. Further, the definition of "molasses for captive consumption" under the new section 2(d)(i) is contrary to the general principle of law and understood by the apex court in catena of judgments. According to counsels for the petitioners, the definition of "molasses for captive consumption" as sought to be introduced is clearly discriminatory and violative of article 14 of the Constitution of India and the impugned Act is nothing but a colourable exercise of power by the State. The classification of units or distilleries within the same premises or in contiguous vicinity of the sugar factory is not a reasonable classification. The words "captive consumption" clearly mean that anything which is manufactured or produced would not go out of the hands of the manufacturer but would be consumed for his own purpose. Viewed in the light of the above, it is clear that the distance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of excise and therefore, also is beyond the legislative competence of the State. Narrating the background, it has been submitted by the learned counsel for the petitioners that before the aforesaid amendment in section 2, companies having more than one sugar factory and a distillery either in the premises of the sugar factory or situated at a distance, were not required to supply reserved quantity of molasses for country liquor, in view of the Supreme Court judgment dated September 24, 2007 in Dhampur Sugar Mills Ltd. v. State of Uttar Pradesh reported in [2007] 8 SCC 338. By the impugned amendment, the State Government has negated the judgment of the Supreme Court. The petitioners submit that the premise on which the State proceeded to promulgate the impugned Act is clearly fallacious and basically illegal and unconstitutional. The Supreme Court was merely dealing with the question of whether a sugar factory could be compelled to supply molasses to distilleries other than its own despite its own needs. In this sense, the impugned enactment neither removes the basis upon which the judgment was rendered nor is valedictory in nature. It has been vehemently argued that the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of India which authorizes the State to levy tax on the sale or purchase of goods other than newspapers. In this regard reliance on paragraphs 53, 54 and 56 in Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. AIR 2007 SC 1984 has been placed. Paragraphs 53, 54 and 56 read as under: "53. Article 245 of the Constitution of India vests the Parliament with power of legislation on all matters enumerated in List and also the matters enumerated in List III of the Seventh Schedule of the Constitution of India. The State Legislature, however, has the exclusive right to legislate matters specified in the entries contained in List II. ... 55. Various entries in the three Lists provide for the fields of legislation. They are, therefore, required to be given a liberal construction inspired by a broad and generalize spirit and not in a pedantic manner. A clear distinction is provided for in the scheme of the Lists of the Seventh Schedule between the general subjects of legislation and heads of taxation. They are separately enumerated. Taxation is treated as a distinct matter for purposes of legislative competence vis-a-vis the general entries. Clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. For convenience the relevant provisions of section 8 of the U.P. Sheera Niyantran Adhiniyam, 1964 prior and after the impugned amendment are reproduced hereinbelow: Section 8--Prior to amendment "8. Sale and supply of molasses.--(1) The controller may by order require the occupier of any sugar factory to sell or supply, in the prescribed manner such quantity of molasses to such person, as may be specified in the order, and the occupier shall, notwithstanding any contract, comply with the order. (2) and (3) . . . (4) The occupier of a sugar factory shall be liable to pay to the State Government, in the manner prescribed, administrative charges at such rate, not exceeding five rupees per quintal as the State Government may from time to time notify, on the molasses sold or supplied by him. (5) The occupier shall be entitled to recover from the person to whom the molasses is sold or supplied an amount equivalent to the amount of such administrative charges, in addition to the price of molasses." Section 8--After amendment "8. Sale and supply of molasses.--(1) The controller may by order require the occupier of any sugar factory to transfer or sell or supply in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners, hence there is no transfer of property from one person to another for any price or valuable consideration, which are necessary ingredient for sale by one person and purchase by another person. In support of this contention reliance has been placed on Vam Organic Chemicals Limited v. State of U.P. [1997] 106 STC 574 (All); [1997] UPTC 624, U.P. State Cement Corporation Limited v. Commissioner of Sales Tax [1979] 43 STC 476 (All); [1978] UPTC 653. Reliance has also been placed on State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985] 60 STC 213 (SC); AIR 1985 SC 1293 and Ram Chandra Kailash Kumar & Co. v. State of U.P. AIR 1980 SC 1124 wherein it has been observed that on any transaction, which is not a purchase or sale, no tax can be imposed. Thus, it has been asserted that the impugned amendments in the Act are clearly arbitrary and the State clearly lacks legislative competence to enforce the amendments contained in the impugned Act. Lastly, it has been informed that after the impugned amendment, the respondents have issued an order dated March 23, 2009 to all the Excise Inspectors directing them to charge administrative charges from all the sugar factories on transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or old deteriorated molasses and to provide adequate facilities for handling of molasses, etc. Contravention to this provision renders the occupier of sugar factory to penalties under section 11. (iv) Section 6 provides for preservation against adulteration. (v) Section 7 provides for removal of adulterated molasses. This provision directly benefit the distilleries and industries and industries using molasses so as to get quality molasses and to remove possibility of distribution or supply of adulterated molasses. (vi) Section 7A of the Adhiniyam enables any person who requires molasses for his distillery or for any purpose of industrial development to apply in the prescribed manner to the Controller of Molasses specifying the purpose for which it is required and on receipt of the application the Controller of Molasses may make an order under section 8 of the Adhiniyam considering the availability of molasses, various requirements of molasses, better utilization to which molasses may be put in the public interest, genuineness of requirement, etc. (vii) Section 8 provides that Controller of Molasses may, with the prior approval of the State Government, by order require the occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the State Government and it reads as under: "The Central Government may give directions to any State Government as to the carrying into execution in the State of any of the provisions of this Act or of any order or direction made thereunder." According to State counsel, entry 33 of the Concurrent List covers the field of trade and commerce in, and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by the Parliament by law to be expedient in the public interest and imported goods of the same kind products. There is no law enacted by the Union Government under this field and as such the notification issued by the State Government for the administrative charges on molasses is not repugnant to the law made by the Union Government. Moreover, a Full Bench of this court in the case of Shriram Industrial Enterprises Ltd. v. Union of India [1996] ALJ 468, while considering the question of legislative competence and the provision of section 18G of the Industries (Development & Regulation) Act, 1951 observed in paragraph 69 as under: "69. The result of the aforesaid discussion is that secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould arise. Repugnancy must exist in fact and not depend merely on a possibility. Ch. Tika Ramji's case AIR 1956 SC 676 has been cited with approval in the more recent case of Indian Aluminium Company Ltd. v. Karnataka Electricity Board [1992] 3 SCR 213, where this court again held that in the absence of any notification under section 18G of the Industries (Development and Regulation) Act, there was no question of any repugnancy on the score of tariff of electricity fixed by the State Amending Act. Section 18G per se did not take away the State's right also to legislate under entry 33 of List III. This court also noted the provisions of article 254(2) of the Constitution in this connection. ... 24. The respondents have pointed out that the U.P. Sheera Niyantran Adhiniyam, 1964 has also received the President's assent under article 254(2). In any event, looking to the fact that the Molasses Control Order of 1961 passed by the Central Government in exercise of powers conferred by section 18G was not extended at any point of time to the State of U. P. or the State of Bihar, the question of repugnancy between the Molasses Control Order, 1961 and the U.P. Sheera Niyantran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o about ₹ 11 crores per annum. This expenditure is directly and exclusively referable to the services being rendered by the State Government for regulation of molasses mainly for the benefits of distilleries and industries in public interest. Besides above, there is an exclusive team of officers and staff posted at headquarter of Controller of Molasses, who are exclusively devoted to the regulatory services being rendered by the State Government in relation to molasses. Also, laboratories have been set up by the Excise Department for proper regulation of quality of molasses in the interest of distillers and industries. Thus, it is imminently clear that the State incurs huge expenditure on salary of officers, technicians and staff related to the laboratories and further incurs huge expenditure on equipment, maintenance of building, electricity and chemicals. From the circumstances mentioned above, the administrative charges under section 8(4) of the Adhiniyam are in the nature of regulatory fee and has direct co-relation between the fee and services rendered by the State Government to the beneficiaries, i.e., the distilleries and industries requiring molasses. The occupier of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08, the Molasses Policy used to provide that sugar factories were liable to supply molasses to the distilleries engaged in the manufacture of country liquor, irrespective of their own need. However, the controversy was set at rest by the Supreme Court vide its judgment dated September 24, 2007 in the case of Dhampur Sugar Mills Ltd. v. State of Uttar Pradesh [2007] 8 SCC 338, whereby it has been held that reservation applies only to the excess stock of molasses, i.e., molasses which is in excess of and not used for own consumption by the sugar mill and reservation would not apply in case there is no balance stock of molasses with any sugar mill. The sugar factories including the petitioners' company, are required to maintain the above ratio of 3: 7 and are not at liberty to dispose of the molasses of the unreserved quantity at their discretion and are placed at a great disadvantage for the following reasons: (1) The sugar factories have to maintain high stock of molasses, as a result of which their cash flow position is adversely affected and the sale proceeds what they could have realized by selling molasses of the unreserved quantity is not available to them and their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd price of molasses produced by the sugar factories in the State of Uttar Pradesh and the regulation of supply and distribution thereof. Section 2 is the definition clause. Section 2 (b) defines "distillery" which means the premises license under the provisions of the United Provinces Excise Act, 1910, for the manufacture of power, portable or industrial alcohol; section 2(d) defines "molasses" and it means the heavy, dark coloured viscous liquid produced in the final stage of manufacture of sugar by vacuum pan from sugarcane or gur, when the liquid as such or in any form or admixture contains sugar; section 2(3) defines "occupier in relation to a sugar factory" and it means the person, who has ultimate control over the affairs of the factory and includes a managing agent of the factory. Section 2(h) deals with "sugar factory" or "factory" and it means any premises including the precincts thereof, whereon, twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process connected with the production of sugar by means of vacuum pans is being carried on or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him. (5) The occupier shall be entitled to recover from the person to whom the molasses is transferred or sold or supplied an amount equivalent to the amount of such administrative charges, in addition to the price of molasses." Section 10(1) deals with the provision for selling of molasses by a sugar factory which reads as under: "The occupier of a sugar factory shall sell molasses in respect of which an order under section 8 has been made: Provided that the distilleries of potable alcohol which have been granted licence for wholesale contract supply of country liquor shall continue to be supplied molasses in respect of which an order under section 8 has been made at a price not exceeding that for the time being prescribed in the Schedule till March 31, 1998." In Chapter V of the Act, there are miscellaneous provisions and section 17 deals with the maintenance of accounts and furnishing of returns, which reads as under: "17. Every occupier of a sugar factory and every person to whom molasses is supplied by such occupier shall be bound-- (a) to maintain such registers, records, accounts, instruments and re-agents as may be prescribed; (b) to furnish al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugar factory and it reads as under: "25. (1) No molasses shall be removed from the premises of a sugar factory until it has been weighed or measured and a pass in form M.F. 4 has been issued. This pass shall be issued in pentuplicate by the occupier of the factory or by an officer authorized by the controller in this behalf. One copy of the pass shall remain with the occupier of the sugar factory, one copy shall be handed over to the sub-inspector of Excise posted at the sugar factory before the removal of the molasses from the premises of the sugar factory, one copy shall be sent to the Controller, and one shall be sent to the excise inspector of the circle in which the sugar factory is situate. (2) Verification of the receipt of consignment--On receipt of the consignment, the consignee shall verify the quantities received and note them on the back of the pass and return it to the occupier of the sugar factory concerned. The consignee shall take adequate safeguard to the see that the wastage or deficiency in transit does not exceed one per cent. In case the wastage or deficiency exceeds one per cent the consignee shall be liable to punishment imposed under the Act for the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn purpose. Meaning thereby reservation cannot be imposed on such sugar mills as have their own distilleries and consume molasses in their own distilleries. The sugar mills have also obtained stay order from the honourable courts on the administrative charges, that is charged on the sale of molasses stating that they are not selling molasses but are using it for their own purpose. There are 30 such cases pending in honourable courts and around ₹ 23 crores have accrued as arrears so far which will increase in future. These sugar mills could get this benefit because there is no clear cut provisions in the Molasses Uttar Pradesh Sheera Niyantran Adhiniyam, 1964 and the Rules made thereunder regarding captive consumption (own use). In view of this, option was sought from expert lawyers who advised for modification in the said Act. According to them "captive consumption" means goods not sold but consumed within factory. With the definition of captive consumption to be incorporated in the said Act and the rules only those sugar mills which have distilleries in the same campus shall be entitled for exemption from reservation/ administrative charges, whereas other sugar mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'molasses is supplied' the words 'molasses is transferred or supplied' shall be substituted." Production, supply and distribution of goods are no doubt within the exclusive sphere of the State Legislature but it was subject to the provisions of entry 33 of List III which gave concurrent powers of legislation to the Union as well as the States in the matter of trade and commerce in, and the production, supply and distribution of, the products of industries where the control of such industries by the Union was declared by Parliament by law to be expedient in the public interest. The controlled industries were relegated to entry 52 of List I which was the exclusive province of Parliament leaving the other industries within entry 24 of List II which was the exclusive province of the State Legislature. The products of industries which were comprised in entry 24 of List II were dealt with by the State Legislatures which had under entry 27 of that List. Power to legislate in regard to the production, supply and distribution of goods, goods according to the definition contained in article 366(12) including all raw materials, commodities and articles. It will also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases, wherein it has been held that for imposing a tax, the general entry given in List III would not be sufficient to confer this power upon the State Government. In the case of Hoechst Pharmaceuticals Ltd. v. State of Bihar [1984] 55 STC 1 (SC); [1983] 4 SCC 45, the apex court held as under (page 31 in 55 STC): "76. It is equally well-settled that the various entries in the three Lists are not 'powers' of legislation, but 'fields' of legislation. The power to legislate is given by article 246 and other articles of the Constitution. Taxation is considered to be a distinct matter for purposes of legislative competence. Hence, the power to tax cannot be deduced from a general legislative entry as an ancillary power. Further, the element of tax does not directly flow from the power to regulate trade or commerce in, and the production, supply and distribution of essential commodities under entry 33 of List III, although the liability to pay tax may be a matter incidental to the Center's power of price control." In the case of Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. AIR 2007 SC 1984, the apex court held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own captive consumption. The place of the distillery in same premises or at different places is wholly irrelevant and unreasonable for the purpose of deciding the captive consumption/self-consumption of the molasses as was held by the apex court in Dhampur Sugar Mills Ltd. [2007] 8 SCC 338. In Ram Chandra Kailash Kumar & Co. v. State of U.P. AIR 1980 SC 1124 the apex court observed as under: "We now take the example of a producer-trader who is an agriculturist and produces paddy in his own field but owns a rice mill also in the same market area. He mills the paddy grown by him into rice and sells it as such. It is plain that in his case no market fee can be charged on paddy because there is no transaction of sale and purchase of paddy. . ." In Vam Organic Chemicals Limited v. State of U.P. [1997] 106 STC 574 (All); [1997] UPTC 624, a Division Bench of this court observed as under (page 577 in 106 STC): "We quite agree with the view taken by the learned single judge in U.P. State Cement Corporation Ltd. [1979] 43 STC 476 (All); [1978] UPTC 653. There is nothing to indicate in the charging section 3(1)(c) of the Act of 1939 that the requirement that there should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sale of Goods Act. Moreover, mere issuance of bill or charging price by one unit to another unit would not amount to any sale as it is for the purposes of accounting and this method of accounting cannot alter the true character of the transaction. It is not disputed that the State can charge only such tax as is permissible under law. The Constitution Bench of the honourable Supreme Court in the case of State of Kerala v. P.J. Joseph AIR 1958 SC 296 has held as under: "Imposition of tax which is not supported by the law is violative of article 265 of the Constitution of India and such an imposition could not be said to be supported by law even if it was by means of endorsement made by Government or a reference made to by the Board of Revenue; the levy of duty which has not been published Gazette." As regards to the plea that the aforesaid tax is also covered by entry 54 of List II, we may look to the entry aforesaid as under: "54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I." At this juncture, it is relevant to add that the legislative competence of a State to tax sales or purchases of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) an actual transfer of title in the goods. In the absence of any one of these elements, there will be no sale. Here, article 366(29A) is not applicable for justifying the imposition of administrative charges on the transfer of molasses from sugar units to the distillery unit owned by the same company for self consumption. In our opinion, in spite of article 366(29A) which is the only enabling provisions, no tax; i.e., the administrative charges can be legally realized since it does not fall in any of clauses of (29A). The State has wrongly relied upon clause (f) of article 366(29A) which also contemplates the supply of goods being food or any other article for human consumption or any drink from one person to another person for cash deferred payment or for other valuable consideration. In Tamil Nadu Kalyana Mandapam Assn. v. Union of India [2005] 1 VST 180 (SC); [2004] 135 STC 480 (SC); [2004] 267 ITR 9 (SC); [2004] 5 SCC 632, the apex court in paragraphs 43 and 44 of the report held as under (pages 496 and 497 in 135 STC): "43. . . it is well-settled that for the tax to amount to a tax on sale of goods, it must amount to a sale according to the established concept of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing provision and in the absence of any valid law having been enacted in this regard, the said provision cannot in itself be applied for imposition of tax or for realization thereof. The aforesaid discussions lead us to an irresistible conclusion that such a transfer cannot amount to sale as it is a company which is a person who owns both the units and that "transfer" and "sale" cannot be interchanged, nor "transfer" can be read as "sale". The impugned legislation is also bad in law as article 265 of the Constitution of India prohibits the imposition of tax and says that no tax shall be levied or collected except by authority of law. It is not in dispute that the molasses is a by-product generated in the course of manufacture of sugar by its factory and is used by its own distillery for manufacture of various other industrial products. Undoubtedly, as referred to above, the entry 33 of List III of the Seventh Schedule to the Constitution, the State has a right to regulate trade and commerce in the product of an industry. However, in the garb of the said power, the State is not conferred with the power to levy a tax on either captive consump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he price of molasses. Under section 10(1) of the U.P. Act, the sugar factory has to sell molasses at a price not exceeding that prescribed in the Schedule. Therefore, the levy of administrative charges is on production for sale of molasses. In the case of Chhotabhai Jethabhai Patel and Co. v. Union of India AIR 1962 SC 1006, the question before this court was the nature and character of the duty of excise. It was held that the duty of excise was a tax or duty not intended by the taxing authority to be borne by the person on whom it is imposed and from whom it is collected but it is intended to be passed on to those who purchased the goods on which the duty was collected. That excise duty is a tax as it is imposed in respect of some dealing with the commodities, such as their import or sale, or production for sale. It has been further held that going by the general tendency of a tax, it is capable of being passed on to the consumer or the buyer. In our view, the above test is important because a tax is capable of being passed on to the consumer or the buyer whereas a fee is a counter-payment by the buyer who receives the benefit of the services for which he is charged and such fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said administrative charges cannot be appropriated to the revenue account of the sugar factory. Therefore, there is no element of quid pro quo as far as the administrative charges in the hands of the sugar factory are concerned. On the other hand, under section 8(4) of the U.P. Act read with rule 23 of the said U.P. Rules, every sugar factory is required to deposit administrative charges on the molasses sold/supplied before actual delivery to the distillery (buyer), which brings in the principle of compulsory exaction. Hence, administrative charge under the U.P. Act is tax and not a fee. It may be noted that in the instant matter, it has been argued on behalf of the State by Sri J.N. Mathur, Additional Advocate-General, that the case of Commissioner of Central Excise, Lucknow, U.P. v. Chhata Sugar Co. Ltd. [2004] 2 RC 614; [2004] 3 SCC 466, cannot be applied in the facts and circumstances of the present case and that too when the State was not the party in the said matter but the same counsel in SAF Yeast Company Private Limited v. State of U.P. [2009] 24 VST 152 (All) [FB]; [2008] 3 VSTI 23 has taken a different stand. It would be useful to reproduce the relevant extract of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sugar [2004] 2 RC 614; [2004] 3 SCC 466 after examining various provisions of the Adhiniyam of 1964 held that the administrative charges levied under the Act is not in the nature of a regulatory fee but is clearly a tax. The said judgment of the apex court has a binding effect and this court is not permitted under law to take a view contrary to it merely on the assertion of the respondents that they were not party in the aforesaid decision rendered by the apex court. In the event, the respondents were aggrieved by the decision of the apex court either directly or indirectly, they should have approached the apex court. Moreover, the respondents are estopped from raising such a plea when in earlier writ petition, their stand is altogether different. It may be clarified that the petitioners have not questioned the validity of the U.P. Sheera Niyantran Adhiniyam but have only questioned the validity of the provisions of section 2(d1), 8(4) and 8(5) insofar as it purports to levy tax, namely, administrative charges on the supply/transfer of molasses from the sugar factory to the distillery owned by the same, hence neither entry 33 is relevant. Therefore, the judgment of this court in th ..... 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