WP 7975 (W) of 2007. Case: Century Plyboards (India) Ltd. and Ors. Vs The Government of West Bengal and Ors.. High Court of Calcutta (India)
| Case Number | WP 7975 (W) of 2007 |
| Counsel | For Appellant: Saptansu Basu, Ld. Sr. Advocate, Ayan Banerjee and Sudipa Bhattacharya, Advocates and For Respondents: Prithu Dudhoria, Advocate |
| Judges | Samapti Chatterjee, J. |
| Issue | West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 - Sections 12, 12A, 13, 13(1), 17, 17(1), 17C, 17A, 17B, 2, 2(1), 2(1)(b), 3, 3(4), 4 |
| Judgement Date | February 17, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Samapti Chatterjee, J.
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The issues to be determined in the present writ petition are:-
"(i) Whether fee can be levied for the goods manufactured by the petitioners which is neither agricultural product nor is sold and marketed through the market point specified under the West Bengal "agricultural produce" Marketing (Regulation) Act, 1972 (hereinafter referred to as said Act)?
(ii) Whether notices dated 9th August, 2006 and 5th April, 2007 are dehors the provision of the West Bengal "agricultural produce" Marketing (Regulation) Act and are thereby null and void?
(iii) Whether both impugned notices, imposing market fee on Plywood and Veneer are beyond the scope of the said Act of 1972?
(iv) Whether two products manufactured by the petitioners are products of agriculture, horticulture, sericulture, pisciculture, forestry or animal husbandry or any other produces specified to the schedule and therefore levy of fee on Plywood and Veneer is justified or not?"
Fact of The Case
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The case of the petitioner in a nutshell is as follows:-
"The petitioner No. 1 is a company incorporated under Companies Act, 1956. The petitioner No. 2 is a shareholder and director of the petitioner No. 1. The petitioner No. 1 carries on business of manufacturing Plywood and Veneer in and from its factory situated at Diamond Harbour Road, Bishnupur, South 24-Parganas. For purpose of manufacturing Plywood as well as Veneer petitioner imports timber logs from Malaysia and Mayanmar. Those timber logs are raw materials which are used for manufacturing Plywood and Veneer."
It is submitted that petitioner does not procure any raw material locally for the purpose of manufacturing activities and the entire raw materials are imported. It is revealed that for the purpose of manufacturing Plywood and Veneer those timber logs are processed at the factory of the petitioners and out of the said timber logs through the manufacturing process Veneer is obtained. Thereafter, the Veneer is further processed in a mechanical manner at the factory premises of the petitioners for the purpose of manufacturing Plywood. The said Plywood and Veneer which are manufactured at the factory of the petitioners thus are obtained purely by way of mechanical process and are neither "agricultural produce" nor fall in the category of any of the scheduled items under the West Bengal "agricultural produce" Marketing (Regulation) Act, 1972. Those Plywood and Veneer are excisable item, and the petitioners are regularly paying excise duties in accordance with law.
The petitioners are carrying on business from various branches all over India. After manufacturing those manufactured materials are transferred by way of stock transfer to various branches of the petitioners all over India for purpose of selling the same through its dealers. Therefore, it is evident that the goods manufactured by the petitioners are neither "agricultural produce" nor are sold and marketed through the market points specified under the said Act of 1972.
Sometime in the year 2004, an attempt was made by the respondent to impose market fee on the Plywood and Veneer manufactured by the petitioners. Against that the petitioners made representation before the concerned authority. On the basis of the representation the West Bengal Government on 20th January, 2005 exempted market fee on Plywood and Veneer vide a Notification No. 169-M.W. & C/9M-49/2000. Thereafter again on the basis of the representation dated 11th February, 2005 the West Bengal Government exempted the market fees on Plywood and Veneer vide a Notification No. 391-M.W. & C/9M-49/2000. On 9th August, 2006 Plywood was included in the schedule to the said Act of 1972. The items of Plywood was included under category XII (Miscellaneous). Against such inclusion on 15th July, 2006 the petitioners made a detailed representation wherein the petitioners refused to pay market fee on Plywood.
All on a sudden on 12/14th April, 2007 four trucks being Nos. WB23-A-5581, AP 11-U21441, WB 23-A7931, WB 39-7716 carrying Plywood and Veneer from the factory of the petitioners situated at Diamond Harbour Road to South 24 Parganas Jengira Bazar RMC were stopped by the men and agents of the respondent No. 4. Against that on 17th April, 2007 the petitioner through his learned Advocate made a representation for releasing all those trucks.
Assailing such action on the part of the respondent authority the petitioner filed the present writ for cancellation and/or setting aside the impugned notifications dated 9th August, 2006 and 5th April, 2007 issued by the respondent No. 1. In the said representation petitioners also prayed for refund the sum of ` 74580/- illegally realised from the petitioners towards market fee under the said Act of 1972 and also for declaration that Section 2 (1) of the West Bengal "agricultural produce" Marketing (Regulation) Act, 1972 is ultra vires the Constitution and bad in law.
Submissions of The Learned Advocates
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Mr. Saptansu Basu, learned senior counsel appearing for the petitioners vehemently argued that the said two impugned notifications imposing market fee on Plywood and Veneer is beyond the scope of the said Act of 1972.
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Mr. Basu further vehemently urged that under the said Act the State Government has to declare by notification any area as market area. Therefore, it is only within this notified market area, purchase and sale of such "agricultural produce" shall be regulated. But the petitioners are carrying on business of manufacturing Plywood from its factory at Diamond Harbour Road, Bishnupur, Kanchowki, South 24-Parganas. The State Government has not published any notification declaring any area as a market area by way of notification under Section 3 of the said Act of 1972 within which the petitioners are carrying on their business of manufacturing Plywood and Veneer.
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Mr. Basu further contended that without setting up a market area or a principal market yard or sub-market area under Section 3 (4) of the said Act of 1972, question of realising market fee from the petitioners cannot and does not arise.
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Mr. Basu further emphasized that imposition of market fee without forming any market area is without jurisdiction and therefore bad in law.
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Mr. Basu further drew my attention...
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