IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.2650 and 2651 of 2009, M.P.Nos.1,1,2 and 2 of 2009 GTN Enterprises Limited, Spinning Division, Dharmapuram Road, Indira Nagar, Tungavi (P.O.,) Udumalpet - 642 203. ...Petitioner in W.P.No.2650 of 2009 Patspin India Limited, 2/85 - B, Udumalai, Tirupur Road, Ponneri, Kottamangalam (P.O.,) Udumalpet - 642 201. ...Petitioner in W.P.No.2651 of 2009 Vs. 1.The Superintendent, Regulated Market Committee, Coimbatore Market Committee, Udumalpet - 642 126. 2.State of Tamil Nadu, Rep. By Secretary to Government, Agriculture Department, Fort St. George, Chennai - 600 009. ...Respondents in both WPs Writ Petitions preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus, directing the respondents herein or their men or agents or subordinates or persons acting on their behalf from demanding or levying market fee on the sale of Cotton Waste, where such sale takes place in the course of export of Cotton Waste out of the territory of India. For Petitioners : Mr.Vijay Narayan, Senior Counsel for Mr.R.Parthiban For Respondents : Mr.G.Sankaran for R1 Mr.R.Ravichandran, AGP for R2 https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R The two petitioner companies, who are engaged in the manufacture of Cotton Yarn in Tungavi and Kottamangalam Villages in Udumalpet Taluk have filed the writ petitions, seeking for a direction to forbear the respondents from demanding and levying market fee on the sale of Cotton Waste, where such sale takes place in the course of export of Cotton Waste out of the territory of India. 2. When these matters came up for admission on 19.02.2009, this Court without admitting the writ petitions granted an order of interim injunction restraining the respondents from demanding and levying market fee on the sale of cotton waste. The interim order granted initially for a limited period came to be extended from time to time. 3. Aggrieved by the grant of interim order, the Regulated Market Committee, Coimbatore at Udumalpet, the first respondent herein filed vacate stay application in M.P.No.2 of 2009 in both the writ petitions and the same were yet to be taken up. 4. Heard the arguments of Mr.Vijay Narayan, learned Senior Counsel leading Mr.R.Parthiban, learned counsel for the petitioners, Mr.G.Sankaran, learned counsel for the first respondent and Mr.R.Ravichandran, learned Additional Government Pleader for the second respondent State. 5. The contentions raised in the two writ petitions were identical. The two petitioners were running textile mill engaged in the manufacture of cotton yarn. In the process of manufacture, Cotton Waste generated is sold by the petitioners to various buyers in Tamil Nadu. On the sale of the Cotton waste, market fee is levied by the first respondent in terms of Section 24 of the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 (for short TNAPMR Act). It was contended that only if sale or purchase takes place within the notified market area, the first respondent will get jurisdiction to levy market fee. The petitioner mills apart from the sales to various buyers in Tamil Nadu are also exporting certain quantities of cotton waste to different importers in foreign countries. On such exports, market fee cannot be levied under the provisions of the TNAPMR Act. The TNAPMR Act is made by the State Legislature and it cannot impose tax on sale or purchase of goods where the sale or purchase takes place in the course of imports or exports of goods to or from the Territory of India. Article 286 of the Constitution prohibits the State legislature in imposing such tax. However, the first respondent issued orders claiming market fee on the value of Cotton waste exported by the petitioners. Thereafter, a consolidated order was also issued on the petitioners. The petitioners objected to the demands. Notwithstanding their objection, the levy is insisted. 6. The petitioners earlier filed a writ petition before this https://hcservices.ecourts.gov.in/hcservices/ Court challenging the order of the first respondent. This Court granted an interim stay on condition that the petitioners should deposit 50% of the amount demanded. The petitioners have also complied with those orders. But however, since demands were made for subsequent months, the petitioners could not raise these issues. Therefore, they were allowed to withdraw the writ petition. When subsequent levies were made, they have come forward to file the present writ petitions, challenging the action of the first respondent in levying market fee on export of Cotton waste. Heavy reliance was placed upon the embargo made under Article 286 of the Constitution. 7. In reply to the stand of the petitioners, the first respondent in their counter affidavit dated 14.01.2009 stated that the validity of the Act was upheld by a Division Bench of this Court in W.P.No.2429 of 1992 dated 28.04.1994. The entire area of Coimbatore District has been declared as notified area in respect of Cotton, Groundnut, Tobacco etc. under Section 4(1) of the TNAPMR Act. The term 'Cotton' will include Cotton Kappas, Cotton Lint, Cotton Waste as per schedule prescribed under Section 2(20) r/w Section 65 of the Act. The petitioner Mills are licensees of the first respondent's Committee for purchasing, Stocking, Processing, Selling and Weighing in Cotton and Cotton Waste under the TNAPMR Act and TNAPMR Rules, 1991. Under Section 24(1) of the TNAPMR Act, the Market Committee is entitled to levy and collect fee on the notified agricultural produce on advalorem basis at the rate of 1 % per every Rs.100/- of the aggregate amount for which the notified agricultural produce (in the present case cotton waste) is bought or sold or not exported within Thirty Days from the date of arrival from outside the State. The fee will have to be paid by the Purchaser. In case, if the Purchaser cannot be identified, the fee shall be paid by the Seller. 8. It was further stated that the Supreme Court vide its judgment in Civil Appeal Nos.3982 to 3984 of 1999 dated 02.03.2001 has held that the traders are liable to collect Market fee from their purchasers and pay it to the Marketing Committee. The said decision has been followed subsequently in various judgments of this Court. The petitioners are collecting Market fee on sale of Cotton Waste from their purchasers and paying Market Fee collected to the respondent. They are also keeping Cotton Stock more than 3 months requirement of the Mills. The petitioners Mills are bringing Cotton lint from outside the State and the Country as per monthly cotton returns submitted by them to the respondent and they have reported the sale of Cotton Waste in those documents. While the petitioners have paid for the sales within the State, they have not paid the Market fee in respect of sale to the purchasers outside the Mill. The action of the petitioners are in violation of Section 24(1) of the TNAPMR Act because the petitioners are purchasing Cotton Lint for the purpose of manufacturing Cotton Yarn only and not for export. When Cotton Yarn is manufactured, up to 12 to 15% of Cotton lint comes out as Cotton Waste from various departments within the Spinning Mill. Such Cotton Waste is being collected by the Mill Department wise and it is sold. This process will take more than 30 days from the time of arrival of the https://hcservices.ecourts.gov.in/hcservices/ Cotton Lint from outside the State or other country. The Committee is empowered to collect market Fee on the Agricultural Produce bought or sold or not exported within 30 days from the date of arrival to the petitioners Mill. The burden of proof that any notified agricultural produce is not liable for the levy of fee is heavily on the petitioners. 9. It was also submitted that the petitioners in their earlier writ petition challenging such levy were directed to pay 50% of the levy as a condition for grant of stay. After getting the stay and depositing 50%, they withdrew the miscellaneous petitions and further, they sought for time to deposit the balance 50%. Instead of the paying the amount, they have come forward to file the present writ petitions and it is unfair on the part of the petitioners. Reliance placed upon the judgment of the Supreme court relating to commercial tax has no relevance to the case on hand. The Cotton Waste generated by the Textile Mill is not a separate crop and it is covered by the Schedule under Section 2(20) of the TNAPMR Act. The Cotton Waste collected in the petitioners Mill Premises is only for sale and it is not brought from other state for the purpose of export. Therefore, there was no case made out for interfering with the demand notice issued by the first respondent. 10. Mr.Vijay Narayan, learned Senior Counsel in emphasising the prohibition contained under Article 286 of the Constitution referred to the judgment of the Supreme Court in Bengal Immunity Company Limited v. State of Bihar and others reported in (1955) 2 SCR 603 : AIR 1955 SC 661. In interpreting the object behind Article 286 of the Constitution, in paragraph 40, the Supreme Court held as follows:- "40. ...the Constitution-makers in Article 286 enacted restrictions on the power of the State Legislatures in regard to the imposition of tax on the sale or purchase of goods and these restrictions were fourfold: (1) State Legislatures were restrained from imposing a tax on the sale or purchase of goods where such sale or purchase took place outside the State; (2) The State Legislatures were restrained from imposing a tax on the sale or purchase of goods where such sale or purchase took place in the course of the import of the goods into or export of the goods out of the territory of India; (3) The State Legislatures were restrained from imposing a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter-State trade or commerce except in so far as the Parliament might by law otherwise provide; and (4) The State Legislatures were restrained from imposing a tax on the sale or purchase of any such goods as had been declared by Parliament by law as essential for the life of the community unless such law had been reserved for the consideration of the https://hcservices.ecourts.gov.in/hcservices/ President and had received his assent. These were the four restrictions which were put upon the powers of the State Legislatures to impose a tax on the sales or purchases of goods and were imposed with different objectives in view." 11. The learned Senior Counsel further relied upon the subsequent judgment of the Supreme Court in State of A.P. v. National Thermal Power Corporation Ltd., and others reported in (2002) 5 SCC 203, wherein the Constitution Bench judgment of the Supreme court in Bengal Immunity's case (cited supra) came to be followed and in that judgment, they also dealt with the sale of goods in terms of the Central Sales Tax Act, 1956 vis-a-viz, the definition found in Article 286 regarding levy of tax by State legislature. In paragraphs 15 and 16, the Supreme Court observed as follows:- "15. The Central Sales Tax Act, 1956 was enacted to formulate principles for determining - when a sale or purchase of goods takes place in the course of inter- State trade or commerce or outside a State or in the course of import into or export from India, to provide for the levy, collection and distribution of taxes on sale of goods in the course of inter-State trade or commerce etc., as the preamble to the Act states. Clause (d) of Section 2 defines "goods" (unless the context otherwise requires) to include all materials, articles, commodities and all other kinds of movable properties, but not including newspapers, actionable claims, stocks, shares and securities. Section 3 of the Act, placed in Chapter II thereof, provides as under: "CHAPTER II FORMULATION OF PRINCIPLES FOR DETERMINING WHEN A SALE OR PURCHASE OF GOODS TAKES PLACE IN THE COURSE OF INTER-STATE TRADE OR COMMERCE OR OUTSIDE A STATE OR IN THE COURSE OF IMPORT OR EXPORT 3. When is a sale or purchase of goods said to take place in the course of inter-State trade or commerce.- A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase- (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another. Explanation 1.-Where goods are delivered to a carrier or other bailee for transmission, the movement of the https://hcservices.ecourts.gov.in/hcservices/ goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 2.-Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State." 16. At this juncture, it would be appropriate to have a view of the legislative history. Explanation to clause (1) of Article 286 generated some controversy which led to the constitution of a larger Bench (seven-Judge strength) in Bengal Immunity Co. Ltd. v. State of Bihar3. The larger Bench ruled by majority that an inter-State sale or purchase continues to be so irrespective of the State where the sale can be held to be located under the general law or by the fiction created by the Explanation appended to clause (1) of Article 286. The situs of a sale or purchase is wholly irrelevant so far as its inter-State character is concerned. The larger Bench further ruled that until Parliament by law made in exercise of the powers vested in it by clause (2) of Article 286 provides otherwise, no State can impose or authorize the imposition of any tax on sales or purchases of goods when any sales or purchases take place in the course of inter-State trade or commerce. To put in other words, it was held that Explanation to Article 286(1) as it existed prior to the Sixth Amendment could not be applied for the purpose of interpreting clause (2) of Article 286. 12. The learned Senior Counsel contended that the term 'in the course of export' was given a wider connotation so as to include not only the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. Reliance was placed upon the following passage found in paragraph 10 of the judgment of the Supreme Court in Ferro Alloys Corpn. Ltd. v. Union of India reported in (1999) 2 SCC 198: "10. Before we do so, we should make reference to the judgment of this Court upon which both sides have relied, namely, the Constitution Bench judgment in Mohd. Serajuddin v. State of Orissa1. This was the judgment that occasioned the amendment of Section 5 so as to introduce sub-section (3) therein. Analysing earlier decisions of this Court, various principles were laid down in Serajuddin case1 to ascertain which was the sale which occasioned the import. It was said https://hcservices.ecourts.gov.in/hcservices/ that the sale which was to be regarded as exempt was the sale which caused the export to take place or was the immediate cause of the export. To establish an export, a person exporting and a person importing were necessary elements and the course of export was between them. The introduction of a third party dealing independently with the seller on the one hand and with the importer on the other broke the link between the two for then there were two sales, one to the intermediary and the other to the importer. The first sale was not in the course of export because the export commenced with the intermediary. The expression 'sale" in Section 5 of the Central Sales Tax Act had the same meaning as in the Sale of Goods Act, 1930. The expression "in the course" implied not only a period of time during which the movement was in progress but postulated a connected relation. Sale in the course of export out of the territory of India meant a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. Directions given to place the goods on board a ship pursuant to the contract of sale were not in the course of export because, in the given case, the export sale was an independent one with a foreign buyer. In such cases, the taking of goods from the appellant's place to the ship was completely separate from the transit pursuant to the export sale." 13. The learned Senior Counsel further contended that the nature of transaction i.e. whether it is inter-state or intra-state would depend upon the factual scenario of the case under examination. He placed reliance upon the judgment of the Supreme Court in State of Orissa and another v. K.B.Saha and Sons Industries (P) Ltd. and others reported in (2007) 9 SCC 97 and referred to the passages found in paragraphs 12 to 18. 14. Mr.G.Sankaran, learned counsel appearing for the first respondent Regulated Marketing Committee submitted that in respect of levy on agricultural produce brought within the territorial jurisdiction of the Committee, it is only the State legislature which is competent to pass laws and even the Parliament does not have power. While dealing with the levy and collection of Market Fee on sale of Tobacco in market area covered by the Bihar Agricultural Produce Markets Act, 1960 and Karnataka Agricultural Produce Marketing (Regulation) Act, 1966, the Supreme Court upheld the legislative competence of the State legislature and overruled the earlier judgment in I.T.C.Limited and others v. State of Karnataka and others reported in 1985 (Supp) SCC 476. The view of the majority of the Constitution Bench in the decision reported in I.T.C.Limited v. Agricultural Produce Market Committee and others reported in (2002) 9 SCC 232 found https://hcservices.ecourts.gov.in/hcservices/ in paragraph 201, is as follows:- "201. In keeping with the conclusions of the majority, expressed in the judgments of Sabharwal, Ruma Pal and Brijesh Kumar, JJ., it is held that: (1) ITC case1 was not correctly decided. (2) The State Legislatures are competent to enact legislation providing for the levy and collection of a market fee on the sale of tobacco in a market area. Consequently, the Markets Acts enacted by the States are valid. (3) The State legislations and the Tobacco Board Act, 1975, to the extent that they relate to the sale of tobacco in market areas, cannot coexist and the former prevail over the latter." 15. The learned Counsel further submitted that the levy charged by the Marketing Committee constituted under the TNAPMR Act is only a fee and not a tax. In this context, he referred to the judgment of the Constitution Bench of the Supreme court in Belsund Sugar Co. Ltd. v. State of Bihar reported in (1999) 9 SCC 620. Reliance was made to the following passage found in paragraph 105, which is as follows:- "105. ....It has to be kept in view that the market fee levied under the Market Act is a "fee" and not a "tax". The Market Act insofar as it enacts Section 27 levying market fee is referable to Entry 66 of the State List read with Entry 47 of the Concurrent List. Both of them deal with topics of legislation pertaining to fees in respect of the matters enumerated in the respective lists." 16. The learned counsel further submitted that even if it is a fee collected by Marketing Committee, there need not be any element of Quid pro quo in the services rendered by the Committee. For that purpose, he placed reliance upon a Division Bench judgment of this Court in Rajapalyam Paruthi Sangam and others v. State of Tamil Nadu and others reported in AIR 1996 Mad 29. After referring to paragraph 23 from the said judgment, he submitted that correlation between the levy of fees and services rendered is one of general character and not of mathematical exactitude. All that is necessary is that there should be a reasonable relationship between the levy of fee and services rendered. Even such relationship need not be direct but a mere casual relation may be enough. Neither the incidence of fee nor the services rendered need be uniform. 17. The learned counsel also contended that merely because the petitioners exports a portion of the Cotton waste generated during the manufacture of yarn from the Cotton lint that they are not bound to pay fee in respect of the goods sent for export cannot be accepted in the light of Section 24(1) of the TNAPMR Act. The provision of Section 24 came to be interpreted by this court in a batch of writ https://hcservices.ecourts.gov.in/hcservices/ petitions in M/s.Sri Ragavendra Traders rep. By its Partner A.Venkatachalam v. Salem Market Committee, rep. By its Special Officer and others in W.P.No.13521 of 1998 and batch cases. The matters were disposed of by a common order by S.S.Subramani,J. On 23.11.1998. Apart from holding that the levy made by the Market Committee is only a fee and there is no element of quid pro quo involved in rendering service, the learned Judge in Paragraph 18 observed as follows:- "18. ...If we consider the scope of Section 24 of the Act, it can be safely concluded that even though the petitioners may not receive cash at the spot, if the goods are exported from the market area to other places, it is liable for levy. In this connection, the definition of 'trader' as per Sec.2(23) of the Act is also of some importance, according to which, 'trader' means 'a person who buys, sells, stocks, processes, treats or in any way deals with any notified agricultural produce either for himself or as a partner or as an agent....' " 18. In the light of the rival contentions, it has to be seen whether the petitioners had made out any case to seek for a direction as prayed for in the two writ petitions. 19. The premises under which the two writ petitions were filed is largely based upon Article 286 of the Constitution. Article 286 as seen from the earlier line of decisions deals only with levy of taxes and not a fee by the State legislature. The constitutional validity of constituting Agricultural Produce Marketing Regulation has been upheld by the Supreme Court in more than one case. Even after holding that what was collected is only fee, the element of quid pro quo has been negatived in the line of decisions including the judgment in Agriculture Market Committee, Rajam and another v. Rajam Jute & Oil Millers Association, Rajam reported in (2003) 4 SCC 187. In paragraphs 21 and 23, the Supreme Court held as follows:- "21. The observations noted above in Sreenivasa case4 have simplified our task to a great extent. It follows that while quid pro quo between levy of fee and facilities provided in the notified market area is necessary, exactitude in such matters is neither required nor possible. The traditional view about actual quid pro quo has undergone a sea change. The extent of service/amenities cannot have correlation with the fee levied. Secondly, the market committees can continue their efforts for providing the amenities depending on availability of funds with them. It is not that all the required services must be in place before a fee can be levied. 23. In the case in hand, the levy of market fee by the Market Committee was challenged only on the ground https://hcservices.ecourts.gov.in/hcservices/ that no basic amenities or services were provided in the notified