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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 ..... of the same, it transpires that the State Government has observed that normal realization of cess under Section 21 of the Act, 1972 on specified agricultural commodities from market areas will continue. 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. [ 1984 (11) TMI 63 - SUPREME COURT ] and in P. V. Suresh [ 1993 (9) TMI 367 - SUPREME COURT ], 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 extended. List the matter on 08.04.2020. - Honourable Mr. Justice Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents shall not collect cess till the next returnable date. List on 13.3.2020. Upon consideration of the said interim order, I find sufficient force in the said submission of Mr. Choudhury. Accordingly, a prima facie consideration for extension or otherwise of the above order is found necessary. In the writ petition, it is projected that the petitioner is a proprietorship firm which is engaged in the business of agricultural produce like pulses, chana, etc. and for the said purpose, it brings raw materials from outside the State of Assam. In respect of the agricultural produce brought by the petitioner from outside to the State of Assam, the Board has been levying cess in purported exercise of the powers under Section 21 of the Act. Section 21 of the Act states as under : Power to levy cess . 21. (1) Every Market Committee shall levy and collect a cess on the agricultural produce bought or sold in the market area at a rate not exceeding two rupees for every one hundred rupees of the aggregate amount for which a specified agricultural produce is bought or sold whether for cash or for deferred payment or other valuable considerations. (2) The Assam State Agricultural Marketing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods and Services Act, 2017 which has come into force w.e.f. 01.07.2017, the cess which is being levied by the respondent Board authorities, has been subsumed in the Goods and Services Tax (GST). Thus, no State is empowered to levy cess in respect of buying, selling and supply of goods and services. Apart from the above, a number of other contentions have been raised which are not required to be gone into at this stage of prima facie consideration for extension or otherwise of the interim order dated 26.02.2020, quoted above. As regards the judgment and order dated 04.04.2001 of the Full Bench, it has emerged that the said judgment and order was assailed by the respondent Board before the Supreme Court of India in a special leave petition which was eventually numbered as Civil Appeal No. 3969/2001 after grant of leave. It was contended therein that a Full Bench by its order dated 04.04.2001 had struck down Rule 21(7) of the Assam Agricultural Produce Market (General) Rules, 1975 but at the time of striking down the said rule, it was no longer in existence, having been amended by the Assam Agricultural Produce Market (Amendment) Act, 2000 (the 2000 Amendment Act, for short). By an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal fiction being to fructify some legislative end, it ought to be permitted a full play subject to the restraint of unintended extension thereof annihilating the vey objective of its creation. Section 21 of the Act authorizes the levy and collection of cess specified on the agriculture produce bought or sold in the market area at the rate specified. Explanation-I envisages a rebuttable presumption that unless the contrary is proved, a specified agricultural produce would be deemed to have been bought or sold in the notified market area in the three eventualities enumerated in Clause (i), (ii) and (iii) thereof. The obvious legislative aim is to obviate the possibility of any transaction of sale or purchase of a specified agricultural produce in the notified market area going unnoticed and to prevent consequential evasion of cess. The presupposition is not in absolute terms and is liable to be displaced, if proved otherwise. Though three incidents have been comprehended which signify to hypothesize a sale or purchase of such produce in the notified area, these per se are neither antithetical nor incompatible with the essential attributes of such transactions as contemplated in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. The Division Bench had also taken note of the fact that the Agricultural Produce Market (General) Rules, 1975, as amended by the Agricultural Produce Market (General) (Amendment) Rules, 2003 framed in exercise of the power under Section 49 of the Act, 1972 amongst others have provided for a detailed procedure for levy and collection of cess. Rule 25 of the said Rules provides for refund of market fee recoverable in excess of amount actually due or on a transaction which is exempted under the Rules. The amount recoverable is to be repaid out of the market development event or market committee fund dependable on the account on which it had been credited. The Division Bench in paragraph 94 has further observed as under :- 94. The realization of the cess, however, by all means would have to be in scrupulous observance of the necessary preconditions embodied in Section 21 of the Act and Rule 21, 22 and 23 of the Rules as discussed hereinabove. The legal fiction engrafted in Section 21 would apply only in absence of any direct evidence of sale to the contrary. The levy and collection of cess on the specified agricultural produce would ensue only on the sale or purchase thereof in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to collect tax in accordance with the Judgment passed by the Division Bench of High Court dated 12.9.2008, uninfluenced by the Order passed in the contempt proceedings dated 23.10.2009. Post along with SLP(C) No. 11317 of 2009. From a perusal of the above order dated 30.03.2010, it prima facie appears that the respondent Board has been permitted to collect the cess in accordance with the judgment and order passed by the Division Bench of this Court on 12.09.2008, uninfluenced by the order dated 23.10.2009 passed in Cont. Case(C) No. 2310/2009. It is submitted by Mr. Choudhury that the above order dated 30.03.2010 is operative as on date. It is by virtue of the operation of the said order, the respondent Board is authorized to levy and collect cess in terms of the provisions of Section 21 of the Act. In so far as the contention regarding impermissibility to levy cess in terms of the provisions of Section 21 of the Act, 1972 in view of the advent of GST, a communication dated 31.07.2017 issued by the Government of Assam in the Agricultural Department to the Chief Executive Officer of the respondent Board has been brought to the notice of this Court. On perusal of the same, it transpi ..... 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