Cut and finished timber is immovable property for the purpose of levy of cess under the Bengal Cess Act, 1880.

Aftab Alam, J.

1. CWJC No. 2201/92 (R) is filed at the instance of M/s. Ranchi Timber Traders Association (Petitioner No. 1) and another person. Petitioner No. 1 of this case is a society registered under the Societies Registration Act and describes itself as an association of members engaged in the sale and purchase of "cut and finished timber" CWJC Nos. 432/1992 (R) and 2777/1992 (R) are similarly filed at the instance of different saw mills and their proprietors and persons carrying on business in timber.

2. In all the three writ petitions question is raised regarding the validity of the Gazette notification fixing the rate of cess at three percentum on the sale price of forest produce timber. Also come under challenge the demands of cess made against the petitioners on cut and finished timber purchased by them on the basis of the impugned notification.

3. The petitioners in all the three writ petitions claim that they purchase only cut and finished timber from the depots of the Forest Department/Bihar Forest State Trading who sell them in lots on the basis of auction. It is stated that the trees in the forest are cut by the Forest Department/Bihar Forest State Trading. From the forest, timber in cut and finished form was brought to the depots of the Forest Department/Bihar Forest State Trading where it was sold to timber merchants, like the petitioners. According, to the petitioners cut and finished timber cannot be held to be immoveable property by any stretch of imagination and hence the petitioners, the purchasers of timber in moveable from cannot be saddled with the imposition of cess and the impugned notification, in so far it allows levy of cess on moveable cut and finished timber is ultra vires Sec. 4 of the Bengal Cess Act, 1880 .

4. Mr. Merathia, learned G.P. II submitted at the out set that the points raised in these writ petitions were directly covered by the decision of this Court in M/s. Bajrangbali Saw Mill V/s. State of Bihar and Ors. 1993 (2) PLJR 512. In the case of Bajrangbali Saw Mill a Bench of this Court (of which one of us Aftab Alam, J was a member) held that cut and finished timber was amenable to the levy of cess on the basis of the impugned notification dated 28.8.1991. In coming to this inference the decision placed reliance on an earlier Division Bench judgment in Someshwar Prasad V/s. State of Bihar 1974 BLJR 348, which was re-affirmed by a Full Bench judgment in . The Western India Match Company Limited V/s. Collector, Cess, Bettiah 1981 BLJR 657.

5. Ms. Anubha Rawat, learned Counsel for the petitioners, however, submitted that the decision in Bajrangbali Saw Mill (supra), was not correctly rendered and the judgment in that case required re-consideration. Learned Counsel submitted that the earlier decisions in the cases of Someshwar Prasad and . Western India Match Company Limited (supra) on which reliance was placed dealt with imposition of cess on cutting of trees and standing timber. Those decisions, therefore, could have no application for justifying the imposition of cess on cut and finished timber. She further submitted that the Supreme Court decision in the State of Orissa V/s. Titaghur Paper Mills Company Limited -- , had laid to rest any doubt that cut timber would not qualify as immovable property. She submitted that though the Supreme Court decision was noticed by the Division Bench in Bajrangbali Saw Mill (supra), it was distinguished on erroneous grounds and according to her though the Supreme Court decision was under the Orissa Sales Tax Act, the observations and findings made there would nevertheless apply for interpreting the definition of immovable property under the Cess Act.

6. We heard Ms. Rawat with pleasure and we deeply appreciated the persuasive manner in which she urged before us the need to reconsider the decision in M/s. Bajrangbali Saw Mills (supra) but I am unable to agree with her that the earlier Bench decision on this issue was rendered incorrectly. 1 fi