RAMESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS petition has been filed by the petitioner for quashing the order of assessment dated 18.10.1979 (Annexure-4) passed by the Assessment Sub-Committee of the Agricultural Produce Market Committed Shaikhpura, district Munghair, for the period from 1.4.1976 to 31.3.1979 imposing levy of market fee on tobacco, tobacco products, Zafrani Zarda, Tea leaves and Bidi leaves as well as penalty under the provisions of Bihar Agricultural Produce Marketing Act, 1960 and rules framed thereunder.

(2.) THE petitioner was one of the partners of the Firm, namely, M/s Janta Tobacco Stores situated at Shaikhpura in the district of Munghair. THE firm was holding a licence issued under the provisions of the Marketing Act and such licence had been received by the firm on 22.4.1979 as required under the Rules. THE firm was filing return regularly and paid market fee on assessment of the transactions of sale effected by the firm. THE items/commodities dealt by the firm were all excisable goods as under the Central Excise Act. It was maintaining a register showing the entire stock position as well as sale and purchases of tobacco and tobacco products. On 24.7.1979 the Secretary of the respondent Market Committee visited the premises of the firm and seized all the books of accounts lying there and then issued a letter on 24.7.1979 directing the firm to purchase register with regard to sukha, khaini Bidi leaves and Kandi for the period from 1.4.1975 to 2.2.77 and sale-purchase register with regard to zarda and tea leaves for the period from 1.4.1975 to up to date. THE petitioner appeared with all this books of accounts lying with him except those which have been seized by the Secretary and those which were the excise department. THE Secretary had not called the petitioner nor his registers have been filled and as such, the petitioner had to leave the office of the Secretary but subsequently the firm received a notice dated 1.8.1979, as contained in Annexures-1 and 2 with a direction to produce all books of accounts mentioned in the notice on 3.8.1979 but that notice was received by the firm on 17.8.1979. On 20.8.1979 the firm filed an application that the Form E.B. 3 register is lying with the Excise Department and that ten box of tea leaves were purchased on 19.9.1978 under Bikray Lakha No. 13829 dated 19.9.1978 during the relevant period. Seizure was made regarding Zafrani Zarda which belonged to another firm. THE notice for assessment at Form 'C', as mentioned in Annexure-3, had been done for the first time by the Secretary and accordingly the petitioner appeared on 24.9.1979 and filed a petition but no order was passed on his petition in his presence but subsequently the firm was served with a demand notice in which it was mentioned that a fee of Rs. 9831.67 paise has been determined against the firm and a further 100% penalty amounting to same Rs. 9831.67 paise has been levied against the firm. THEn the petitioner applied for certified copy of the assessment order and from the assessment order it could appear that the firm has been subjected to fee penalty by adopting arbitrary and illegal manner. Such assessment order, as contained in Annexed-4, is under challenge. Various points have been raised regarding illegality of the assessment order. Whether tobacco and tobacco products can be levied for market fee or not was the subject matter before the Apex Court. Once it was held by the Apex Court in the case of I.T.C. as reported in 1985 supplementary (1) SCC 145 that the State legislature is not competent for providing levy and collection of market fee on the sale of tobacco in the market area. But the same view as given had been considered in 2002 (1) Supreme Today 258, held that the law enunciated in the earlier case was not a correct one and it was held that State Legislature is competent to enact levying of market fee at the market area on tobacco and tobacco products itself In that way, in the present writ petition challenge regarding the tobacco/tobacco products having been without jurisdiction of levying of market fee goes away. This writ petition was kept pending till the decision being arrived at by the Apex Court in the I.T.C. case, as mentioned above. When that judgment went against the I.T.C. vis-a-vis the present petitioner also, that point of levying of market fee on tobacco and tobacco products goes away.

(3.) IN respect of tea leaves, the same has been added in the Schedule of the Act by a notification dated 21.1.1976 and by further notification on 24.12.1979 under Section 4 of the Act tea leaves were notified for the respondent Market Committee and hence, before 24.12.1976 there was no scope of levying market fee. Moreover, the tax has been levied on the basic of transactions on tea leaves on 24.7.1979 and in that way, levying can be done for the period 1979-80 and not for the previous year.