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2011 Supreme(Kar) 600
High Court of Karnataka
K. SREEDHAR RAO
M/S. Parisons Milling Co. Private Ltd
Versus
State of Karnataka & Others
WRIT PETITION NO: 29819 of 2010 (APMC) C/W WRIT PETITION Nos. 29818, 29816 & 30712 of 2010
Decided on : 20-10-2011
For the Petitioner:Chander Kumar & Associates, Advocates.
For the Respondent:R1 & R2 - D. Vijayakumar, AGA, R3 & R4 -H.K. Thimmegowda, Advocate.
Headnote:KARNATAKA AGRICULTURAL PRODUCE MARKETING (REGULATION AND DEVELOPMENT) ACT, 1966 - Section 66(6): [K.Sreedhar Rao, J] Sale and purchase of the goods at high seas - Levy of market fee - Challenged - Held, The provisions of Section 65 of the APMC Act mandates the levy and collection of market fee only when the goods are brought within the market area. When it is categorically established that the sale was held on high seas, the question of levy and collection of market fee does not arise. The view taken by the third respondent appears to be incorrect. There appears to be no application of mind to the documents produced by the petitioners. In fact in the resolution, there is no reference to any of these documents produced by the petitioners. That apart, the document produced categorically indicates that the shipment was made at Geraldton, Australia on 22.10.2006. The consignment reached Mangalore port on 02.11.2006. The purchaser took clearance and delivery of consignment on 04.11.06. The agreement of sale on high seas is dated 28.10.06. Further Held, In the present case, there appears to be no difficulty in ascertaining the correctness of the fact as to whether the sale takes place on high seas and thereafter goods entered into territorial water. The sale agreement is made when the goods were in transit. There was still five days left to reach Mangalore Port. The definition of territorial waters under Marine Zone Act extends upto 12 nautical miles i.e., around 22 kms. When the agreement of sale was entered into, there was still 5 days left for shipment to reach Mangalore Port. Taking into consideration the date on which ship arrived at Mangalore Port, it cannot be said that sale was held after the goods entered territorial waters which is hardly 22 kms. The dates of events mentioned above categorically disclose that the sale is held on high seas by irresistible inference.
1. In all these four petitions, the facts and questions of law are same.
2. The petitioner in W.P.No.29819/2010 imported 11000 MTS Australian Premium Wheat from Australia. According to the case of the petitioner, the shipment was lodged at Geraldton, Australia on 22.10.06. The consignment arrived at Mangalore Port on 02.11.2006.
3. When the goods were in transit on high seas, 9000 MTS of Australian Premium Wheat in W.P.No.29818/2010 and 2000 MTS of Australian Premium Wheat was sold in two slots to Australia India Pvt. Ltd. The purchaser by producing bill of lading and other documents, got released 9000 MTS of wheat from the Customs Authority at Mangalore Port. The petitioners in W.P.No.29816/2010 had purchased 5000 MTS of Australian Premium Wheat from Australia at high sea. The petitioner in W.P.No.30712/2010 had purchased 5000 MTS of wheat from Australia on high sea and had purchased 4712.98 MTS of Australian Premium Wheat from M/s. AWB Geneva SA. The goods were stored in the stockyard within the market area. The officials of the third respondent noticed stock, seized goods and demanded payment of market fee. The third respondent passed a resolution vide Annexure-R in W.P.No.29819/2010 stating that there is deliberate attempt of evasion of payment of market fee. The material produced by the assessee does not disclose the exact place where the sale took place in view of the storage of goods in the market yard. It is held that the petitioners have to pay market fee. The petitioners aggrieved by the said resolution at Annexure-R have filed these writ petitions.
In the objection statement, the third respondent – society contends that transit goods were sold on high seas, is concocted. The petitioner in W.P.No.29818/2010 is the sister concern of the petitioner herein in W.P.No.29819/10. It is only to avoid levy of market fee, they have contrived the transaction of sale on high seas. The documents of sale have been executed in India, the Registered Office of the petitioner in W.P.No.29819/2010 and 29818/2010 is one and the same. The petitioners have not discharged the burden of proof that the sale has taken place on high seas. In that view, it is strenuously contended that the goods attracts levy of market fee.
The goods were seized by the officers of the third respondent. The petitioners filed writ petition challenging the seizure. This Court directed the third respondent to give opportunity to the petitioners to explain their stand and to deal with the matter in accordance with law. The petitioners in the second round produced the following documents to substantiate their contentions:-
1. True copy of the High Seas Sales Agreement dated 31.10.2006 between AWB India Pvt. Ltd and Parisons Roller Flour Mills Pvt. Ltd
2. True copy of High Seas Sales Invoice dated 31.10.2006 DLH/HS/0602030 issued by AWB India Pvt. Ltd
3. True copy of Bill of Lading No.06 dated 22.10.206.
4. True copy of Bill of Entry
5. True copy of the purchase invoice bearing no.MAN/01/06-07 of MAN/05/06-07 (5 in no.)
6. True copy of the stock register from 01.04.2006 to 31.03.2007
7. True copy of Sales Ledger of Australian Milling Wheat (Mangalore) for the period from 01.04.2006 to 31.03.2007
8. Details of stock transfer from Mangalore to Calicut for the period from 01.04.2006 to 31.03.2007 with delivery note number.
9. Details of Sales Register for the period 01.04.2006 to 31.03.2007 with details of Invoice No., Truck No. and quantity.
10. Details of APMC cess paid for the year 2006-07.
The committee rejected the contention of the petitioners and directed payment of market fee. The petitioners aggrieved by the said orders filed a petition before this Court in W.P.No.3404/2007 challenging the levy. This Court set aside the order and directed re-hearing of the matter afresh.
The counsel for the petitioners submitted that the petitioner in W.P.No.29818/2010 who is the purchaser of the goods on high seas, has produced the bill of entry to show that
