2003 Supreme(SC) 1171

2004(1) Supreme 460
SUPREME COURT OF INDIA
(From Patna High Court)
Brijesh Kumar and Arun Kumar, JJ.
Harinagar Sugar Mills Ltd. -Appellant
versus
State of Bihar and Ors. -Respondents
Civil Appeal Nos. 8274-8292 of 2001
With
C.A. Nos. 8293-8311 of 2001
Decided on 19-11-2003
Counsel for the Parites :
For the Appellant : Shanti Bhushan, G.C. Bharuka, Sr. Advocates, Praveen Kumar H. Devrajan, Ramesh Agrawal, Ms. D. Chhapgar, Prateek Kumar, Advocates.
For the Appellant in C.A. No. 8293/2001 : Salman Khursheed, Sr. Advocate, Sunil Roy, Advocate.
For the Respondents : S.B. Sanyal, Sr. Advocate, Sunil Roy, Advocate.

IMPORTANT POINT
Where amount of liability of market fee has been assessed and fixed and the order exists, pre-appeal deposit will be nothing else but payment of a part of the liability assessed and discharged to the extent of the amount of liability paid, subject to the result of the appeal.

Headnote:Bihar Agricultural Produce Markets Act, 1960-Section 27-B-Market fee on transactions of purchase of sugarcane and sale of sugar and molasses-Challenged-Appellant, a company having a sugar factory had been purchasing sugarcane and selling sugar produced and molasses collected as one of the by-products-Appellant filed a suit challenging levy of market fee-Interim injunction restraining Marketing Committee from realizing market fee from appellant-Suit decreed in favour of appellant-Appeal filed by Marketing Committee allowed-Second appeal dismissed-SLP-During pendency of matters before this Court, Market Committee issued 19 notices to appellant for assessment for years 1977-78 to 1995-96-Market fee assessed in respect of 19 years with penalty-Appellant filed 19 separate appeals for each year-Appellant deposited 1/3rd amount of tax liability as per provisions contained in Section 27B of the Act-By a judgment reported in AIR 1999 SC 3125, Belsund Sugar case, this Court held that the provisions of the Market Act do not apply to transactions of purchase of sugar cane etc.-Judgment made prospective in application-Whether appellants are entitled to refund of 1/3rd amount deposited-(No).

       Held : The main question, however, that needs to be considered is whether the amount deposited in view of Section 27-B of the Act is deposit of the liability of dues of fee assessed or not. The amount in respect of which the appellate authority is to be satisfied that it has been so deposited, according to Section 27-B of the Act has to be in certain proportion of the amount of fee assessed and due. That is to say the liability of the assessee is already fixed and the amount assessed is treated to be amount due to be paid, it is an ascertained amount out of dues which must be paid to the committee. Therefore, there can hardly be any doubt about the fact that it is a part of the amount out of the total liability outstanding against the appellant which appellant is required to pay to the party viz. the market committee before filing an appeal. It is not a deposit in Court or with appellate authority. Merely because liability in certain proportion is ensured to be in deposit before filing of an appeal, does not change the character of the deposit of a part of dues which is also specifically described to be fee assessed as due. It is not provided that the deposit is by way of security which would generally not be required to be paid to the party. Such deposits like security deposits are of different kind which are sometimes found provided for without reference to any monetary liability involved in the case, e.g. In election petition or other proceedings where some amount of security may be required to be deposited. In the present case, there is no scope to treat the amount deposited as anything else except part of the fee assessed and due. It is to be noted that the provision under Section 27-B of the Act is that the appellate authority is to be satisfied that the appellant has deposited with the market committee one third of the fee assessed before he files an appeal. It is quite obvious that in case the appeal fails what would be required to be deposited would only be the balance of amount of the liability, if that too is not already paid. In case the appeal succeeds, the the amount paid against assessed liability which is later set aside cannot be retained and in the normal course, it is liable to be refunded, unless of course for some good reasons, it is ordered otherwise. For example, where it may amount to undue enrichment of the appellant. In the case of the appeal being unsuccessful, in the normal course, nothing more would be required to be done to the extent of deposit made. Therefore, merely, because the amount deposited may have to be refunded in case appeal succeeds that alone does not mean that the nature of the deposit is changed or it is anything else except the amount of levy assessed and due, particularly looking to the language used and provision made under Section 27-B of the Act, where the appellate authority has only to be satisfied about the payment made to the committee. (Paras 11 & 12)

       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 Constitution were pending when the order of this Court was rendered in the case of Belsund Sugar Mills case (supra). The writ petitions were disposed of in the light of the judgment of this Court without interfering with the orders of assessment and the 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 is to be refunded and not to 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 to be refunded but the balance which remained unpaid was also not to be recovered. In this case we have already held that the amount deposited before filing of appeals was a part of the liability assessed and found due and partly in discharge thereof. It was, therefore, not liable to be refunded and the High Court has rightly held so. (Para 14)