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TMI Blog2020 (5) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of the interim order passed on 26.02.2020 making the same operative till today as the returnable date, that too, without assigning any reason, the same has affected the entire operation of collection of cess of the respondent Assam State Agricultural Marketing Board (the Board, for short). Due to the restraint order, the Board has been prevented from collecting the cess which it is otherwise entitled to collect under the provisions of Section 21 of the Assam Agricultural Produce Market Act, 1972, as amended, (the Act, 1972, for short). The respondent Board has, in the meantime on 12.03.2020, filed their affidavit-in-opposition in the matter. The respondent Board authorities as applicants, have also preferred an interlocutory application, I.A. (Civil) 938/2020, seeking vacation/modification of the interim order dated 26.02.2020, with the alternative prayer not to extend the operation of the interim order dated 26.02.2020 beyond the returnable date i.e. 13.03.2020. Mr. Choudhury referring to the order dated 26.02.2020, has submitted that in view of the interim order so passed, a prima facie consideration for extension or otherwise of the said interim order on the returna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cess will be levied on goods manufactured from the agricultural produce on which cess is proposed to be levied and which are ultimately exported out of the country. Explanation -- 1. For the purpose of this section all Specified Agricultural Produce shall unless the contrary is proved be deemed to be bought or sold in notified market area if - (i) Such produce is taken out or proposed to taken out of the said area; or (ii) the agreement of sale or purchase thereof in respect of such produce is entered into the said area; or (iii) in pursuance of sale or purchase or the agreement of sale or purchase such produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser.] Explanation --2. The cess referred to in Section 21 shall be paid by the purchaser of the specified agricultural produce concerned." It has been contended that the levy of cess under Section 21 of the Act was challenged in a similar event before this Court and a Full Bench of this Court vide its judgment and order dated 04.04.2001 passed in Writ Appeal No. 392/1999 (Tinsukia Trading Co. vs. The State of Assam), reported in 2001 (1) GLT 520, has held that the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assam and others) and other similar writ petitions, then pending before this Court. It is contended on behalf of the respondents herein that by the above 2000 Amendment Act, Section 21 of the Act has been amended. The said batch of writ petitions, W.P.(C) No. 5491/2001 (Assam Roller Flour Mills and others vs. State of Assam and other) and other writ petitions, came to be disposed of by a Division Bench of this Court by a common judgment and order dated 12.09.2008, reported in 2008 (4) GLT 366. In the said batch of writ petitions, a number of provisions which had been inserted by the Assam Agricultural Produce Market (Amendment) Act, 2000 and the Assam Agricultural Produce Market (Amendment) Act, 2006 including the amendments brought in Section 21 of the Act, 1972, were assailed. In respect of the challenge made to the amendments brought in Section 21 of the Act, 1972, the Division Bench in paragraph 48 has observed as under : "The legal fiction thus comprehends a licit supposition of eventualities, which may or may not exist to achieve a legislative purpose. A court on the discernment of the objective, can permissibly infer the existence of hypothetical state of affairs and all c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n option to the person concerned to dislodge the presumption of deemed sale or purchase. The legal fiction obligates the traders/dealers to be scrupulously vigilant and law compliant. Indubitably, they are obliged to pay the cess, if realizable in law. There is no scope to presume that the levy would be exacted even if not payable. The eventualities comprehended in the three clauses of Explanation I are plausible consequences and/or corollaries relatable to a transaction of sale or purchase of a specified agricultural produce in a notified area and are not in our view transgressive of the contours of the purpose for which the legal fiction had been envisioned. The fiction is neither extra territorial nor ipso facto repugnant to the legally acknowledged features of sale and/or purchase. It is also not sui generis in its form or characteristics, identical provisions being available in many contemporaneous laws. More significantly it is vividly arranged on a corresponding provision in the Model Act, 1998 enacted in alignment with the recommendations of the High Power Committee on agricultural marketing suggesting measures to remove disparities in different State Marketing Acts and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially complied with." The above judgment of the Division Bench dated 12.09.2008 has been challenged before the Supreme Court of India in Special Leave to Appeal No. 11317/2009 and other connected matters by a number of traders stated to have dealt in agricultural produce. Leave was granted in those matters by an order dated 25.10.2013 and accordingly, the matters have been numbered as Civil Appeal No. 9655/2013, 9656/2013, 9657/2013 and 9666/2013. It is submitted on behalf of the respondent Board that as on date, the said civil appeals are pending before the Supreme Court without any interim restraint order. It is found that, in the interregnum, a contempt petition being Cont. Case (C) No. 401/2008, came to be filed against certain officials of the respondent Board alleging forceful recovery of cess in violation of the judgment and order dated 12.09.2008. In a judgment rendered on 23.10.2009, a Division Bench of this Court had held a number of officials of the respondent Board guilty of contempt and punishments were imposed accordingly. Against the said order dated 23.10.2009 passed in Cont. Case(C) No. 401/2008, the contemnors preferred an appeal being Criminal Appeal No. 1967/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unlop India Ltd. & Ors., reported in (1985) 1 SCC 260 and in Union Territory of Pondicherry vs. P.V. Suresh and Ors., reported in (1994) 2 SCC 70, wherein the factors required to be considered at the time of passing interim orders against revenue have been indicated on the premises of existence of alternative statutory remedy. It is observed therein that prudence, discretion and circumspection are called for at the time of passing such an interim order. Mere existence of a prima facie case is not sufficient to grant an interim order against Revenue but several other factors like balance of convenience, irreparable injury, public interest, etc. are also to be taken into consideration. Having due regard to the observations made in the order dated 30.03.2010 which is stated to be in operation till date; the fact situation obtaining in the present case and the consideration required to be given before passing any interim order against collection of revenue, as laid down in Dunlop India Ltd. (supra) and in P. V. Suresh (supra), I am of the prima facie view that the extension of the interim order dated 26.02.2020 is not found expedient at this stage and accordingly, the same is not exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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