Case: Harinagar Sugar Mills Ltd Vs. State Of Bihar

entertains the appeal. There is no direction as such for the appellant to make any payment, under Section 27-B of the Act. It is for the appellate authority to be satisfied that a part of the liability is in deposit with the committee. 14. Considering the facts of the present case in the light of what has been observed by us above, we find that orders of assessment had been made. The liability had been fixed and the amount was determined. The appellate authority was satisfied that one third amount of the fee assessed and due was paid to the committee before filing of appeals. The appeals were dismissed. The revisions preferred thereafter were also dismissed. All statutory remedies stood exhausted. Writ petitions filed under Article 226 of the the Constitution were pending when the order of this Court was rendered in the case of Belsund Sugar Mills case (supra). The writ petitions were deposed of in the light of the judgment of this Court without interfering with the orders of assessment and appellate and the revisional orders. In the case of Belsund Sugar Mills (supra) specific directions have been issued in exercise of powers under Article 142 of the Constitution as to in what circumstances the amount paid to be refunded and not be refunded. We have already quoted earlier the relevant part of the judgment in the Belsund Sugar Mills case (supra) according to which the judgment was prospective in effect without affecting the past transactions and the orders, but the amount of the liability of the fee which had already been paid till the date of the order was not be refunded but the balance which remained unpaid was also not be recovered. In this case we have already held that the amount deposited before filing of appeals was a part of the liability and found due and partly in discharge thereof. It was, therefore, not liable to be refunded and the High Court has rightly held so. 15. Similarly,, we find no force in the appeal preferred by the market committees for a direction to the assessees to deposit the balance amount of the fee assessed. It cannot be done in view of the judgment of this Court in the case of Belsund Sugar Mills case (supra). 16. Learned counsel for the appellant has submitted that once it has been found by this Court in the case of Belsund Sugar Mills (supra) that market fee would not be liable to be paid by the sugar mills, there is no occasion to impose or realize or retain the amount of penalty, collected/deposited on account of delayed payment of the market fee. It is submitted that as a normal consequence of the judgment in the Belsund Sugar Mills case (supra), there would be no liability to pay the market fee even though covered by the past transactions and orders or in future. But in exercise of power under Article 142 of the Constitution of India, this Court provided that the judgment shall have prospective application and the past transations and assessments prior to the date of the judgment shall not be affected, but further provided that the amount already paid before the date of the judgment shall not be required to be refunded to the sugar mills and the amount which remained unpaid in view of any order of stay granted by the Court, shall not be liable to be recovered. Subject to above arrangement, normally, no amount of fee would have been liable to be paid. That being the position, the question of penalty on delayed payment does not arise, more particularly, when there is no provision made in the order that the amount of penalty already paid shall also not be refunded. It is further submitted that apart from the one third amount of fee which has been deposited while filing the appeal, the rest of the amount has been held to be not recoverable by the High Court. That is to say, two third of the market fee assessed, realization of which was stayed, is not liable to be paid or recovered. But the penalty has been imposed considering the whole amount of fee assessed, even the amount which is not recoverable in pursuance of the judgment passed in Belsund Sugar Mills case (supra). It would be completely an anomalous situation that the balance unpaid amount of two third would not be liable to be paid or recovered but 10% of penalty on that amount which has been deposited, while filing the appeal would not be refunded. The High Court has brushed aside this claim of the appellant merely by observing that penalty is an integral part of the tax liability. We, therefore, find that the amount which was in fact not liable to be paid but a part of it is being retained in pursuance of the arrangement made in exercise of powers under Article 142 of the Constitution of India and the remaining part which is not recoverable, no penalty is liable to be recovered and retained. In our view, that the 10% amount of the penalty as paid by the appellant is liable to be refunded.17. Learned counsel for the appellant made a submission that in case of question of refund of market fee deposited is not favourable considered, in that event, the matter may be remanded to the High Court so that the appellant may argue the matter before the High Court on the merits challenging the orders of assessment and on the question so to whether there was or not any quid pro quo against the amount paid by the appellant. We do not think it is possible to accede to the request made. The whole matter was before the High Court. It was always open to the appellant to have argued any point it wished to argue while matter was under hearing. Once having not done so, the matter cannot be remanded to be opened afresh on disputed questions.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]we find that orders of assessment had been made. The liability had been fixed and the amount was determined. The appellate authority was satisfied that one third amount of the fee assessed and due was paid to the committee before filing of appeals. The appeals were dismissed. The revisions preferred thereafter were also dismissed. All statutory remedies stood exhausted. Writ petitions filed under Article 226 of the the Constitution were pending when the order of this Court was rendered in the case of Belsund Sugar Mills case (supra). The writ petitions were deposed of in the light of the judgment of this Court without interfering with the orders of assessment and appellate and the revisional orders. In the case of Belsund Sugar Mills (supra) specific directions have been issued in exercise of powers under Article 142 of the Constitution as to in what circumstances the amount paid to be refunded and not be refunded. We have already quoted earlier the relevant part of the judgment in the Belsund Sugar Mills case (supra) according to which the judgment was prospective in effect without affecting the past transactions and the orders, but the amount of the liability of the fee which had already been paid till the date of the order was not be refunded but the balance which remained unpaid was also not be recovered. In this case we have already held that the amount deposited before filing of appeals was a part of the liability and found due and partly in discharge thereof. It was, therefore, not liable to be refunded and the High Court has rightly heldin exercise of power under Article 142 of the Constitution of India, this Court provided that the judgment shall have prospective application and the past transations and assessments prior to the date of the judgment shall not be affected, but further provided that the amount already paid before the date of the judgment shall not be required to be refunded to the sugar mills and the amount which remained unpaid in view of any order of stay granted by the Court, shall not be liable to be recovered. Subject to above arrangement, normally, no amount of fee would have been liable to be paid. That being the position, the question of penalty on delayed payment does not arise, more particularly, when there is no provision made in the order that the amount of penalty already paid shall also not betherefore, find that the amount which was in fact not liable to be paid but a part of it is being retained in pursuance of the arrangement made in exercise of powers under Article 142 of the Constitution of India and the remaining part which is not recoverable, no penalty is liable to be recovered and retained. In our view, that the 10% amount of the penalty as paid by the appellant is liable to bewhole matter was before the High Court. It was always open to the appellant to have argued any point it wished to argue while matter was under hearing. Once having not done so, the matter cannot be remanded to be opened afresh on disputed questions.