Case: M/S. Heinz India Pvt. Ltd.  Vs. State Of U.P.


Decision:
0[ds]So long as there is statutory sanction for the Director to exercise the revisional power vested in the Board, any argument that such a delegation is either impermissible or does not serve the purpose of providing a suitable machinery for adjudication of the disputes shall have to be rejected. It is noteworthy that Rule 133-A of the Rules framed under the Act regulates the filing and disposal of the revision petitions under Section 32 thereof. This provision was inserted with effect from 11th May, 2008 and empowers the Board either to decide the revision petition itself or to nominate an officer for doing so. It also provides for grant of an opportunity of being heard to the person concerned and a time bound disposal of the revision. Rule 133-A is, therefore, a step in the direction of providing a machinery under the Act for adjudication of disputes that may arise between dealers on the one hand and the market committee on the other. That being so, the Act is not completely bereft of a machinery nor can it be said that the observations made by this Court in Ram Chandra Kailash Kumars case (supra) have gone unheeded. All that we need to add is that in order to make the Boards revisional power more effective and its exercise more transparent and credible, the Board would do well to delegate the power of hearing and disposal of the revision petitions to a senior and experienced officer who is well-versed in dealing with legal issues concerning assessment and/or determination of the liability under the Act. Beyond that it is neither necessary nor proper for us to sayheightened standard of proof required to rebut a presumption raised under the statute at hand is in our view applicable for two distinct reasons. The first and foremost is that the presumption is raised in relation to a fiscal statute. While the amount payable is not a tax it is nevertheless a statutory levy which is attracted the moment the transaction of sale takes place within the market area. Goods, admittedly produced within the market area and not consumed within such area are presumed to be leaving pursuant to a transaction of sale unless the contrary is proved. That the goods are produced within the market area is not in dispute in the instant case. That they left the market area is also admitted. In the ordinary course, therefore, the presumption would be that the goods left pursuant to a sale unless the appellants are in a position to prove the contrary.40. The second reason for applying a higher standard of proof than mere preponderance of probability is that the nature of transaction pursuant to which the goods are removed from the market area is within the exclusive knowledge of the appellants or the persons to whom such goods are being dispatched. In other words, the circumstances in which the transactions, which the statute presumes to be sales, but which the appellants claim are simple transfer of stocks are within the exclusive knowledge of the appellants. The entire evidence relevant to the transactions, being available only with the appellants and the true nature of the transactions being within their special knowledge, there is no reason why the rebuttal evidence should not satisfy the higher standard of proof and clearly and convincingly establish that the fact presumed is not the actual fact. Our answer to Question No.2 accordingly is that the evidence intended to rebut the statutory presumption under Section 17 of the Adhiniyam ought to be clear and convincing evidence showing that what is presumed under the provision is not the real fact.In the light of the legal position stated in the earlier part of this order, it is neither feasible for us to embark upon an exercise of re- appreciating the entire material or to substitute our own findings for those recorded by the Mandi Samiti and the Director/Mandi Parishad. So long as the finding recorded by the Mandi Samiti and the Mandi Parishad are not irrational or perverse, and so long as the view taken by them is a reasonably possible view, this Court would not interfere.58. In course of arguments at the Bar, we repeatedly asked Mr. Chandra as to why the appellants had failed to adduce the material which would throw a flood of light as to the true nature of the transaction within or outside the mandi area. Mr. Chandras reply was that the material was available and could be produced if so required. Some of this material which was with the appellant but was not produced was sought to be introduced even at the stage of hearing before us, while the rest could, argued Mr. Chandra be laid before the Samiti, if an opportunity to do so could be granted to the appellant.59. We regret our inability to accede to any such request. We do not think that a party who has had ample opportunity before the authorities below, to substantiate its claim can have the luxury of either producing material for the first time in the Supreme Court or ask for a remand to enable it to do what it ought to have done at the appropriate stage. It was not the contention of the appellants that they were not given a fair opportunity to prove their case before the authorities below. As a matter of fact, orders passed by the Mandi Samiti and the Mandi Parishad show that sufficient opportunity was indeed afforded to the appellants and the matter had remained pending for a number of years before those authorities.So also, no remand ought to be made only to enable a party to produce additional material. A remand is neither mechanical nor a routine affair. If there is nothing wrong in the orders under challenge, there is no question of interference with the same. There is no reason for this Court to set the clock back and start a process which would take the parties another decade or so to come to terms with thelong as there is statutory sanction for the Director to exercise the revisional power vested in the Board, any argument that such a delegation is either impermissible or does not serve the purpose of providing a suitable machinery for adjudication of the disputes shall have to be rejected. It is noteworthy that Rule 133-A of the Rules framed under the Act regulates the filing and disposal of the revision petitions under Section 32 thereof. This provision was inserted with effect from 11th May, 2008 and empowers the Board either to decide the revision petition itself or to nominate an officer for doing so. It also provides for grant of an opportunity of being heard to the person concerned and a time bound disposal of the revision. Rule 133-A is, therefore, a step in the direction of providing a machinery under the Act for adjudication of disputes that may arise between dealers on the one hand and the market committee on the other. That being so, the Act is not completely bereft of a machinery nor can it be said that the observations made by this Court in Ram Chandra Kailash Kumars case (supra) have gone unheeded. All that we need to add is that in order to make the Boards revisional power more effective and its exercise more transparent and credible, the Board would do well to delegate the power of hearing and disposal of the revision petitions to a senior and experienced officer who is well-versed in dealing with legal issues concerning assessment and/or determination of the liability under the Act. Beyond that it is neither necessary nor proper for us to sayd standard of proof required to rebut a presumption raised under the statute at hand is in our view applicable for two distinct reasons. The first and foremost is that the presumption is raised in relation to a fiscal statute. While the amount payable is not a tax it is nevertheless a statutory levy which is attracted the moment the transaction of sale takes place within the market area. Goods, admittedly produced within the market area and not consumed within such area are presumed to be leaving pursuant to a transaction of sale unless the contrary is proved. That the goods are produced within the market area is not in dispute in the instant case. That they left the market area is also admitted. In the ordinary course, therefore, the presumption would be that the goods left pursuant to a sale unless the appellants are in a position to prove the contrary.40. The second reason for applying a higher standard of proof than mere preponderance of probability is that the nature of transaction pursuant to which the goods are removed from the market area is within the exclusive knowledge of the appellants or the persons to whom such goods are being dispatched. In other words, the circumstances in which the transactions, which the statute presumes to be sales, but which the appellants claim are simple transfer of stocks are within the exclusive knowledge of the appellants. The entire evidence relevant to the transactions, being available only with the appellants and the true nature of the transactions being within their special knowledge, there is no reason why the rebuttal evidence should not satisfy the higher standard of proof and clearly and convincingly establish that the fact presumed is not the actual fact. Our answer to Question No.2 accordingly is that the evidence intended to rebut the statutory presumption under Section 17 of the Adhiniyam ought to be clear and convincing evidence showing that what is presumed under the provision is not the real fact.In the light of the legal position stated in the earlier part of this order, it is neither feasible for us to embark upon an exercise of re- appreciating the entire material or to substitute our own findings for those recorded by the Mandi Samiti and the Director/Mandi Parishad. So long as the finding recorded by the Mandi Samiti and the Mandi Parishad are not irrational or perverse, and so long as the view taken by them is a reasonably possible view, this Court would not interfere.58. In course of arguments at the Bar, we repeatedly asked Mr. Chandra as to why the appellants had failed to adduce the material which would throw a flood of light as to the true nature of the transaction within or outside the mandi area. Mr. Chandras reply was that the material was available and could be produced if so required. Some of this material which was with the appellant but was not produced was sought to be introduced even at the stage of hearing before us, while the rest could, argued Mr. Chandra be laid before the Samiti, if an opportunity to do so could be granted to the appellant.59. We regret our inability to accede to any such request. We do not think that a party who has had ample opportunity before the authorities below, to substantiate its claim can have the luxury of either producing material for the first time in the Supreme Court or ask for a remand to enable it to do what it ought to have done at the appropriate stage. It was not the contention of the appellants that they were not given a fair opportunity to prove their case before the authorities below. As a matter of fact, orders passed by the Mandi Samiti and the Mandi Parishad show that sufficient opportunity was indeed afforded to the appellants and the matter had remained pending for a number of years before those authorities.