RSA No. 2182 of 1983 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 4514-C of 2004 and RSA No. 2182 of 1983(O&M) Date of Decision: October 09 , 2009 Messrs The Janta Cooperative Sugar Mills Limited ...... Appellant Versus Punjab state Board forPrevention and Control of Water Pollution, Patiala ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Rahul Sharma, Advocate for the appellant. Mr.Amol Rattan Singh, Advocate for the respondent. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. CM No. 4514-C of 2004 For the reasons recorded in the application, the same is allowed. The order dated 24.03.2004 is set aside and the appeal is restored to its original number. RSA No. 2182 of 1983(O&M) With the consent of both the counsel, this appeal is being taken up for arguments. RSA No. 2182 of 1983 (O&M) 2 This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant for a declaration that the respondent is not entitled to charge cess under the Water (Prevention and Control of Pollution) Cess Act, 1977. Even though no question of law was framed at the time the appeal was filed yet the question of law which arises for determination is “whether sugarcane is a vegetable so as to attract the exigibility of Cess?” Learned counsel has relied upon a judgment of the Hon'ble Supreme Court in M/s Saraswati Sugar Mills V. Haryana State Board and others reported as AIR 1992 S.C.224 which admittedly covers the present case. In that case the Hon'ble Supreme Court held that sugarcane is not a vegetable and thus the cess could not be levied on sugar industries. In the circumstances the question of law proposed has to be held in favour of the appellant and it has to be declared that the cess in question was illegally being charged. Learned counsel for the respondent has argued that in fact by a subsequent amendment even the appellant would be liable to pay cess. There is a dispute between the parties as to whether the liability would start from 1992 or 2003 but in any case it has to be held that at least till 1992 no cess was leviable on the appellant industry. The question now arises as to whether the cess which was admittedly paid by the appellant is liable to be refunded back. In my opinion this question and the question as to the effect of the subsequent amendments of 1992 and 2003 would be best addressed by the assessing officer. Consequently this appeal is allowed in the above terms and it is declared that the appellant is not liable to pay any cess under schedule (1) of RSA No. 2182 of 1983 (O&M) 3 the above mentioned Act at least till the year 1992. The question regarding refund of the liability if any to pay cess between 1992 and 2003 as well as the date w.e.f. which the appellant would be liable to pay cess would be decided by the assessing officer. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE October 09, 2009 sunita