Imarti Lakdi Vyapari Sansthan Jodhpur Versus The State Of Rajasthan
GST
2018 (11) TMI 212 – RAJASTHAN HIGH COURT – [2019] 60 G S.T.R. 1 (Raj), 2019 (20) G. S. T. L. 212 (Raj.)
RAJASTHAN HIGH COURT – HC
Dated:- 29-10-2018
D. B. Civil Writ Petition No. 1451/2018
GST
MR. SANGEET LODHA AND MR. DINESH MEHTA JJ.
For Petitioner(s) : Mr. H. R. Soni.
For Respondent(s) : –
Judgment
1. The petitioner, a Society registered under the provisions of Society Registration Act, 1958 (hereinafter referred to as 'Petitioner Society') has preferred the present writ petition, seeking a declaration to the effect that respondent-State has no power to charge tax/cess payable under the provisions of Rajasthan Agriculture Produce Marketing Act, 1961 (hereinafter referred to as the 'Act of 1961') from its members.
2. Mr. Soni informing that the members of petitioner society are engaged in purchase and sale of timber (Imarti Lakadi), asserted that they are having their shops and godowns
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dent-Agriculture Market Committee, such levy and recovery of Mandi cess from the members of the petitioner society is arbitrary and violative of Article 14 of the Constitution of India on the one hand and is a fetter on their right to carry on trade and business, which stand guaranteed by Article 19 (1) (g) of the Constitution of India.
5. We have heard learned counsel for the petitioner and perused the material available on record.
6. At the outset, we may observe that the entire edifice of the petitioner's case is based on the assumption that the impugned levy under the Act of 1961 is a 'Cess'; such foundation is clearly contrary to the very provisions of the Statute and law on the subject.
7. Levy under Section 17 of the Act of 1961 is a 'fee'.
8. It is a settled proposition of law that the State can levy market fee under the relevant provisions of a statute, enacted in exercise of powers available to it under Entry 66 of the second list of the VIIth Schedule. It has also been s
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a market committee constituted under Sub-section (1) of Section 4 of the Act does not end with establishing such number of markets in the notified market area under the first part of Sub-section (3) but also extends to the providing of such facilities in the market as the Government may from time to time by general or special order specify under the second part of Sub-section (3). In exercise of their powers under Section 33 of the Act, the State Government have framed the Andhra Pradesh (Agricultural Produce & Livestock) Markets Rules, 1969. Chapter V relates to 'Regulation of trading'. It would appear that Rules 48 to 53 are the machinery provisions for controlling the trade in notified agricultural produce, livestock and products of livestock in a notified area while Rules 54 to 73 impose restrictions on the carrying on of all such trade in such area. It is clear from the provisions of Section 15 of the Act that the services to be rendered by the market committee and facilit
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market area outside the market in that area.” Another unfounded assumption of the learned Counsel was that the activities of the market committee and the facilities provided by it were confined by Act to the market area only. The establishment, maintenance and improvement of the market is one of the purposes for which the market committee fund might be expanded under Section 15 of the Act. The other services such as the provision and maintenance of standard weights and measures, the collection and dissemination of information regarding all matters relating to crop statistics and marketing in respect of notified agricultural produce, livestock and products of livestock, schemes for the extension or cultural improvement of notified agricultural produce including the grant of financial aid to schemes for such extension or improvement within such area undertaken by other bodies or individuals, propaganda for the improvement of agricultural produce, livestock and products of livestock and
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oresaid view is fully fortified by the judgment of Division Bench of this Court in the case of M/s Vishwakarma Timber Mart vs. State of Rajasthan, reported in 1984 WLN 402, which reads as :-
“Under the definition of “agricultural produce” it cannot be said that the 'timber' is wholly unconnected with the agriculatural produce and, therefore, no ground is made out for striking down this item. In any case the timber (imarti lakadi) is a notified item in the Schedule and comes within the legislative competence and is covered by the words “or otherwise” in the Schedule, as defined in the definition of “agricultural produce”.
11. Moving on to the last point of the petitioner that after promulgation of Goods and Service Tax, the levy of cess under the Act of 1961 cannot continue; we are constrained to observe that even this argument is misconceived.
12. The constitution (One Hundred and First Amendment) Act, 2016 was enacted by the Parliament with the intent to consolidate number of indir
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