M. Katju, J.
1. This writ petition has been (lied praying for a writ of certiorari quashing the impugned order dated 22.7.1998 passed by the Mandi Samiti, Etah copy of which is Annexure-2 to the petition and for a writ of mandamus restraining the respondents from recovering the amount including interest under the aforesaid order and for restraining the respondent Nos. 3 to 5 from withholding issuing of Gate Passes or taking any coercive action against the petitioner in future. There was also a prayer in the petition for declaring the Explanation to Section 17 (iii) of the U. P. Krishi Utpadan Mandi Adhiniyam, 1964 (hereinafter referredto as Mandi Adhiniyam) as ultra vires, but this prayer has not been pressed by the learned counsel for the petition.
2. We have heard Sri Shanti Bhusan learned counsel and Sri Tarun Agarwal, learned counsel for the petitioners, and Sri B. D. Mandhyan learned counsel for the Krishi Utpadan Mandi Samiti, Etah.
3. The facts of the case are that the petitioner is a Company incorporated under the Indian Companies Act having its registered office at Mumbai. Earlier the business was being run by M/s. Lipton India Ltd. which was amalgamated with M/s. Brook Bond India Ltd. with effect from 7.3-1994, and this Company in turn was amalgamated with the petitioner Company M/s. Hindustan Lever Limited with effect from 21.3.1997.
4. The petitioner Company is engaged in the manufacture, distribution/sale of several consumer products in its various factories located in different parts of India. The present case relates to the petitioners factory at Etah in which it produces Ghee.
5. In paragraph 9 of the writ petition, it has been mentioned that the sales and distribution system followed by the petitioner Company over the last about 40 years is uniform throughout India. The consumer products which are manufactured at the petitioner's factory are not sold at the factory gates but there is a stock transfer from the factory to the Company depots which are owned/leased/ managed by the petitioner company at its own costs and expenses through Agents called 'Clearing and Forwarding Agents' (hereinafter called C and F Agents). It is alleged that after the goods are manufactured at the factories, the petitioner Company makes a 'stock transfer' of these goods to the Company Depots through trucks. At the Depots, the goods are unloaded, stored by C and F Agents for and on account of the petitioner Company as per the terms of the Contractual Agency signed and executed between the petitionerCompany and the C and F Agents. A sample copy of one such contract dated 21.3.1997 between the petitioner Company and one of the C and F Agents located at Agra Is Annexure-4 to the petition.
6. In paragraph 9 of the writ petition, it is also alleged that at all times the property in the finished goods stored the depots always and exclusively vest with the petitioner Company and never with the C and F Agents. The C and F Agents are only hired for providing certain services viz. unloading of goods from the trucks, storage of the goods at the depots of petitioner, despatch of goods by trucks to the Re-distribution stockists as per the sale orders. raising first sale invoice on behalf of the petitioner Company in the name of the Re-distribution stockists, and collecting the payments of sale invoices. Cheques/demand drafts from the Re-distribution stockists draw as payable to the credit of the petitioner Company. It is further alleged that the first sale of the Company products is not made at the factory gate but always at the depot gate, which is run and managed by the petitioner Company through its C and F Agents. This sale is made at the depot gate to the Re-distribution stockists, and the sale consideration for each and every invoice is directly received by the petitioner Company from the Re-distribution Stockists in its own Bank account maintained at the respective C and F Agents locations. It is further alleged that the sale consideration is never received by the C and F Agents in their own names or to the credit of their own Bank accounts. If any complaints or claims for damages short delivery, usual defects, are received from the Re-distribution stockists after delivery of the Company products to them they are entertained and settled by the petitioner Company at its own costs, without any exposure or liability being attached to or suffered by. the C and F Agents. It has been further alleged that the petitioner manufactures Ghee only at one location i.e., at its Etah factory in U. P, and this Ghee is sold by the petitioner Company under brand'Anil Ghee'. It is alleged that the entire production of Ghee is stock transferred by trucks from time to time from the Etah factory about 20 of the Company Depots, 5 of which are within U. P., and the C and F Agents' functions are limited to operate as petitioners' Delivery Agents without any further processing of the said products which are received by them for sale to the Redistribution stockist in a sealed condition.
7. In paragraph 9, the petitioner has also quoted certain relevant provisions of the Agreement between the petitioner and the C and F Agents, copy of which is Annexure-4 to the petition. Thus, clause 2 (a) of the said Agreement states 'The Company shall consign from time to time its goods to the C and F Agents by air. road or rail which the C and F Agents shall receive, stock and hold on behalf of the Company'. Clause 2 (d) of the said Agreement states 'The C and F Agent has requested the company to provide godown space to store the goods received by the C & F Agent from the Company which the Company has provided on the terms and conditions more particularly mentioned in this Agreement and in the Agreement supplemental to this Agreement Provided Always that the C and F Agents shall store in the said godown the goods belonging only to the Company and/or its associate/ Subsidiary companies'. Clause 2 (e) of the said Agreement states 'The godown shall display a sign board indicating that the goods belong to and are the property of the Company and/or its associate/subsidiary companies as the case may be'. Clause 2 (f) of the said Agreement states 'The goods entrusted to the C and F Agent for the purpose of this Agreement remain the property of the Company and it shall always be open to the officers of the Company duly authorised in writing by the Authorised Signatory of the Company for the said premises with or without notice to inspect the stocks and accounts and for the purpose, the said officers of the Company shall, if go warranted, be entitled to enter the godown. Inspect the condition of thegoods, without let or hindrance from the C and F Agent and for this purpose C & F Agent shall be bound to hand over possession of the godown together with the goods and said offices will be entitled to put lock at all exits of the godown.....'Clause 2 (g) of the said Agreement states 'The C and F Agent shall at no time have any lien on the goods or the godown premises for its charges, remuneration or dues of whatsoever nature'. Clause 2 (h) of the said Agreement states The C and F Agent shall be responsible for the safety of the goods entrusted by the Company from the time of receipt of the goods till such goods are issued out of the godown as per instructions of the Company. The C and F Agent shall be liable to make good any loss caused to the Company as a result of pilferage, theft, robbery or damage or destruction of the goods excluding acts of God'. Clause 2 (J) of the said Agreement states 'The C and F Agent shall promptly comply with invoicing delivery/despatch instructions of the Company and shall cause to be delivered to the authorised Transport Contractors of the Company and/or the Rail heads the required quantity of the goods for movement to the Company's stockists, dealers or other godowns'. Clause 2 (J) of the Agreement states The C & F Agent shall submit to the Company statements in Forms prescribed by the Company containing details of stock received, held and distributed. These statements shall be submitted at such time and at such intervals as may be instructed by the Company'. Clause 2 (m) of the said Agreement states The C and F Agent shall raise invoices on the Company's stockist for the value of the goods despatched to them as per instructions of the Company and bank the cheques of the RS and submit to the Company in the format prescribed together with all necessary returns as are incidental thereto'. Clause 3 of the said Agreement states 'For the services rendered by the C and F Agent the Company agrees to pay service charges as mutually agreed between the parties and communicated in writing to the C andF Agent accordingly and which may be revised from time to time. But for the aforesaid the C and F Agent will not be entitled to any other charges, remunerations or reimbursements'.
8. In paragraph 10 of the writ petition, it is alleged that the petitioner Company does not conduct sale of Ghee through any commission agents in U. P, or outside U. P. as the entire sales made from its own Depots at 20 different locations through C & F Agents.
9. In paragraph 11 of the writ petition. It is alleged that the petitioner Company appoints its Redistribution stockists by entering into a formal agreement called 'Redistribution stockists Agreement'. A sample copy of one such agreement dated 11.12.1997 has been annexed as Annexure-5 to the petition paragraph 13 of this agreement between the petitioner Company and Re-distribution Stockists is as follows :
'It is clearly agreed between the RS and the Company that the despatch/delivery of goods by the Company to the RS shall always be on payment by cash/DD/Cheque against supply as may be required by the Company from time to time. Such payment against despatch shall always be the essence of supply order which Company may accept to execute partly or wholly on receipt of a supply order from the RS. Such orders may be placed by him on the Company through telephonic orders, or orders through Company's Representative/ C and F Agents (orally or in writing) depending upon the expediency of the business and mutual convenience of the parties hereto. In such circumstances, and in order to enable the Company to execute smoothly the order so placed by the RS without loss of time, the RS hereby agrees to entrust and keep in deposit, and the Company agrees to accept such deposit, the pre-signed crossed cheques of the RS drawn in favour of the Company with standing instructions and authorisation to the Company for filling up the sale price of the goodsdespatched as per Company's sate invoice. The company shall have the right to complete the cheques so deposited with the price as per its sale invoice as soon as the goods ordered to be despatched. In addition the R5 also hereby authorises the Company to use such pre-signed deposited cheques for payment and discharge of any amount outstanding the RS in the Company's books of account. The signed Cheque shall constitute a representation and assurance on the part of the Re-distribution Stockist to the Company that the Redistribution Stockist has sufficient funds with his banker to cover the amount of the Cheque. Without prejudice to the foregoing provisions the Company shall have the right to make a demand for payment by any other mode of payment like cash, demand draft, etc. and the RS shall make all payments to the Company in the manner so prescribed by the C6mpany.'
10. In paragraph 12 of the petition, it is alleged that the petitioner Company puts its goods in the stream of trade by only selling it to the Re-distribution Stockists.
11. Thus, the case of the petitioner is that it does not make any sale at the factory gate at Etah, and instead there is a stock transfer from the Etah factory to the petitioner's Depots and it is the C and F Agents at the Depots who make the sale at the Depots to the Redistribution Stockists. Hence the petitioner has contended that the Mandi Samiti, Etah has no right to levy Mandi fee since there is no sale within the market area of Etah.
12. It appears that by letter dated 8.3.1991. the Mandi Samiti. Etah for the first time demanded a sum of Rs. 55.97,495.77 as Mandi fee on the alleged sale of Anil Ghee produced in the Etah factory. The petitioner challenged this demand before the High Court but the High Court dismissed the petition on the ground that the petitioner should approach the Board under Section 32 of the Mandi Adhiniyam. Thereafter, the petitioner went up in appealbefore the Supreme Court. The Supreme Court in Civil Appeal Nos. 1769-1773 of 1998 decided on 25.3.1998. copy of which has been annexed as Annexure-1 to the petition, set aside the judgment of the High Court and observed that the demand raised against the traders shall be taken to have been made in provisional assessment but the traders can file an objection within two months which should be decided within two months thereafter. Consequently the petitioner filed an objection before the Mandi Samiti which has been rejected by the impugned order dated 22.7.1998 vide Annexure-2 to the petition. The total amount levied by the impugned order is Rs. 4.93,86.932.66 out of which the petitioner has deposited under protest Rs. 42.88,802.81 and it was directed to deposit the balance of Rs. 4.50.98.179.85. Aggrieved this writ petition has been filed in this Court.
13. Counter-affidavit has been filed on behalf of the Mandi Samiti. Etah. In the counter-affidavit, a preliminary objection has been raised that the petitioner has an alternative remedy under Section 32 of the Mandi Adhiniyam and it is alleged that certain disputed questions of facts are involved because of which the petition should be dismissed on the ground of an alternative remedy. Another preliminary objection was taken in the Supplementary Counter Affidavit filed on 6.1.1999 before this Court in which it was contended that the petition is not maintainable as no objection has been filed by M/s. Lipton India Ltd. or M/s. Brook Bond India Ltd.
14. In paragraphs 5 to 11 of the counter affidavit, it is disputed that there is any stock transfer from the Etah factory to the Depots.
15. In paragraph 19 of the counter-affidavit, it is stated that the sale of Ghee takes place in Etah and it is denied that there is any stock transfer by the petitioner.
16. In paragraph 29 of the counter-affidavit, ft is alleged that the petitioner did not care to produce intrinsic evidence to show that there was a stock transfer.
17. Before considering the rival submissions of the petitioner, we may deal with the preliminary objections of the respondents. Regarding the first preliminary objection that the petitioner has an alternative remedy under Section 32 of the Mandi Adhiniyam, we are of the opinion that this is not a fit case for relegating the petitioner to his alternative remedy. It is settled law that existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution of India, but it is a matter of discretion. In the present case, there are two aspects because of which we are not inclined to dismiss this petition on the ground of an alternative remedy. Firstly, this matter has been pending since 1991 when for the first time demand notice was sent to the petitioner by the Mandi Samiti, Etah and the matter came up to this Court and then went up to the Supreme Court and thereafter the impugned order dated 22.7.1998 has been passed in pursuance of the direction of the Supreme Court. The matter has been pending for long and has gone up even to the Supreme Court and it will be in the interest of justice that the matter should be decided by this Court finally now. There is a Latin maxim 'interest Republicae ut sit fanis litium' which means 'it is in the interest of the republic that there should be an end to litigation'. The controversy in this case has been dragging on for many years and it is high time that it should be finally decided by this Court, instead of relegating the matter to the Board. Secondly, this Court had earlier dismissed the petition on the ground of alternative remedy under Section 32 but the judgment of this Court was set aside by the Supreme Court, which means that even the Supreme Court was not impressed by the existence of an alternative remedy under Section 32. Hence we are not inclined to dismiss the petition on the ground of an alternative remedy.
18. As regards, the second preliminary objection of the respondents, we are of the opinion that it is a hyper-technical one. It hasalready been mentioned that M/s. Lipton India Ltd. amalgamated into M/s. Brook Bond India Ltd. In 1994 and that Company was in turn amalgamated with the petitioner M/s. Hindustan Lever Ltd. in 1997. Thus both M/s. Lipton India Ltd. and M/s. Brook Bond India Ltd. were not in existence after 1997. Hence the only Company which could have filed an objection in pursuance of the judgment of the Supreme Court dated 25.3.1998 was M/s. Hindustan Lever Ltd. and this Company filed the objection.
19. The two schemes of amalgamation of 1994 and 1997 indicate that the liabilities of M/s. Lipton India Ltd. as well as of M/s. Brook Bond India Ltd. have been taken over by the petitioner Company. Hence the petitioner is certainly entitled to challenge the imposition of market fee of M/s. Lipton India Ltd. and M/s. Brook Bond India Ltd. Hence we find no substance in this second preliminary objection also.
20. We may now proceed to consider the case on merits. The main contention of Sri Shanti Bhusan, learned counsel for the petitioner is that there were only stock transfers from the Etah factory and not any sale1 at the factory gate. No doubt the Explanation to Section 17 to the Mandi Adhiniyam states that when any specified agricultural produce is taken out of the market are by a licensed trader, there is presumption that the goods were sold in such area. This Explanation reads as follows :
'For the purpose of Clause (iii) unless the contrary proved, any specified agricultural produce taken out or proposed to be taken out of a market area by or on behalf of a licensed trader shall be presumed to have been sold within such area and in such case, the price of such produce presumed to be sold shall be deemed to be such reasonable price as may be ascertained in the manner prescribed.'
21. Sri Shanti Bhusan contended that this Explanation to Section 17 only raises a rebuttablepresumption and it is not conclusive proof. We are in agreement to submission. In' our opinion. If no material is produced by a trader to rebut the presumption, then it will be presumed that the goods are sold within the market area, but if material is produced by the trader to the contrary, then the presumption1 can be rebutted. In this case, we find that the petitioner has produced overwhelming evidence before the Mandi Samiti to rebut the presumption.
22. It may be noted that Section 17 (iii) (b) states that the Mandi Samiti has the power to levy market fee. 'which shall be payable on transaction of sale of specified agricultural produce in the market area'.
23. A perusal of Section 17 shows that market fee is payable on sales within the market area. In our opinion two things are noteworthy regarding this provision. Firstly, the market fee is payable on sales and not on contracts. There is a clear distinction in law between a contract and a sale. Even if there is a contract to sell certain goods, yet there may be a breach of that contract resulting in no sale, for which a suit for damages may be maintainable or a suit for specific performance. Learned counsel for the respondents has tried to draw a distinction between the word 'Sale' and the expression 'Transaction of Sale'. We are of the opinion that there is no such distinction. In our opinion, the expression 'Transaction of Sale' has the same meaning as the word 'Sale'.
24. The second point to be noticed in the above provision is that market fee is payable on sales within the market area, and not on sales outside the said area. Thus, in our opinion, the situs of sale is of paramount importance to determine whether Mandi fee is payable or not. If no sale has taken place within the market area, obviously no Mandi fee is payable.
25. Section 2 (r) of the Mandi Adhiniyam states 'Sale includes barter or deposit of goods by way ofpledge or as security for the amount received as advance'.
This definition of sale in the Mandi Adhiniyam does not really define a sale as is only an inclusive definition. In other words. It only states that certain transactions which would otherwise not be sale would also be treated as a sale, e.g., barter or deposit of goods by way of pledge or security. The present case does not relate to barter or deposit of goods by way of pledge or security. Hence Section 2 (r) of the Mandi Adhiniyam does not at all help us in understanding the meaning of the word sale. Hence we have to go back to the general law in the Sale of Goods Act to understand the meaning of the word 'sale'. In an analogous legislation of the State of Andhra Pradesh, the Supreme Court in Agricultural Market Committee v. Shalimar Chemical Works, AIR 1997 SC 2502. has applied the provisions of the Sale of Goods Act for deciding when and where a transaction of sale takes place.
26. Section 4(1) of the Sale of Goods Act stated 'A contract sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price'. Section 4(3) of the said Act states 'where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell'.
27. A perusal of Section 4(3) clearly indicates that for a sale to take place, there must be a transfer of property. As to when the transfer of property takes, we have to go to Chapter III of the Sale of Goods Act. Section 18. which is contained in Chapter Hi, states 'where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained'. Section 19 of the Sale of Goods Act states '(1) Where there is a contract for the sale of specific or ascertainedgoods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. (3) Unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in goods is to pass to the buyer'. Section 20 of the Sale of Goods Act states 'where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment of the price or the time of delivery of goods, or both, is postponed.' Section 23 of the Sale of Goods Act states '(1) Where there is a contact for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passed to the buyer. Such assent may be express or implied, may be given either before or after the appropriation is made, (2) where, in pursuance of the contract, the seller delivers goods to the buyer or to a carrier or other bailee (whether by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.
28. The expression specific goods has been defined in Section 2(14) of Sale of Goods Act to mean 'goods identified and agreed upon at the time a contract of sale is made'.
29. The facts of the present case reveal that what is transferred from the factory to the Company Depots (where the C and F Agents are located) are unascertained goods and not ascertained goods. The goods becomes ascertained only after out of A.W.C. 108the stock lying with the C and F Agent at the depot certain specifications out of the stock are separated for being sold. To give illustration, suppose there are 10,000 tins of ghee lying at the depot with the C and F Agents. If an order of 100 tins of ghee are received, then it is only when out of this stock of 10,000 tins of ghee (which are unascertained goods). 100 specific tins are taken out of the stock. Under Section 23(1) of the Sale of Goods Act. it is only when these specific 100 tins are appropriated to the contract that the sale takes place. Under Section 23(2). it is when the C and F Agents delivers these 100 specific tins to the carrier (which may be a truck or otherwise), goods can be said to be unconditionally appropriated to the contract. These provisions clearly show, that the exact point of time when the sale takes place is when the C and F Agents deliver certain specific tins of ghee to the carrier (truck or otherwise) which is meant for carrying the goods to the purchaser. Thus sales take place at the depot of the C and F Agents because it is at the moment of handing over the goods to the carrier for transportation to the buyer that the appropriation of the goods to the contract (i.e., the sale) takes place. It may be noted that Section 18 to the Sale of Goods Act makes it clear that there is no question of transfer of unascertained goods. The transfer can only be of ascertained goods. In the present case, the goods which are transported from the factory are unascertained goods because out of the total stock being carried in the truck from the factory, it is not clear which particular tins are being sold to which particular buyer. The facts of the present case clearly show that in fact unascertained goods are carried from the factory to the depots, and it is only at the depot that out of the stock certain specific tins are separated on, receiving order from the redistribution stockist for sale of those specific tins.
30. In P. S. N. S. Ambalavana Chettiar and Co, Ltd. and another u. Express Newspapers Ltd., Bombay, AIR 1968 SC 741, the Supreme Courtheld that in view of Section 18 of the Sale of Goods Act, It is a condition precedent to the passing of property under a contract of sale that the goods are ascertained. Unless and until a specified portion of the total stock is identified and appropriated to the contract, no properly passed to the buyer.
31. Section 19 of the Sale of Goods Act provides that 'where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time the parties to the contract intend it to be transferred'. Clause (3) of the Section 19 makes it clear that 'unless a different intention appears, the rules contained in Sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer'.
32. In the present case, there is nothing to show that any different intention existed, and hence the rules mentioned in Sections 20 to 24 of the Sale of Goods Act will determine the intention of the parties. As already observed above. Section 23 is the specific provision which is applicable to the present case. In our opinion, the situs of the sale is at the depot where C and F Agent is located, because it is at the depot where the goods are appropriated to the contract, and the sale takes place at the exact moment when the ascertained goods are handed over to the carrier at the depot. Hence, in our opinion, no sale takes place within the market area of Mandi Samiti, Etah. In this connection, reference may also be made to the decision of the Supreme Court to Mahabir Commercial Co. Ltd. v. CIT. AIR 1973 SC 430 (Paras 6 and 7).
33. Learned counsel for the respondent has relied on the Judgment of the Supreme Court in M/s. vijay Traders v. M/s. Bajaj Auto Vehicles Ltd., JT 1995 (7) SC 608. In our opinion, this decision is distinguishable. In the case of M/s. Vijay Traders, the Supreme Court found that the distributors were buying the vehicles from M/s. Bajaj Auto Vehicles Ltd.
34. In the present case, there is overwhelming evidence to show that there was no sale by the petitioner to the C and F Agents but the sale was by the C and F Agents on behalf of the petitioner to the Re-distribution Stockist. This evidence includes the agreements the petitioner and the C and F Agents (Annexure-4 to the writ petition), the agreements between the petitioner and the Redistribution Stockists (Annexure-5 to the writ petition], the Stock Transfer Notes (Annexure SA-8), application for issue of gate pass (Annexure SA-11), Form F Declaration under the Central Sales Tax Rules (Annexure-Sa-3) Form A submitted by the petitioner to the Mandi Samiti (Annexure RA-2 to the rejoinder affidavit). Sates Invoice issued by the Depot to the Redistribution Stockist (Annexure-RA-9) cheque issued by the latter in favour of the petitioner (Annexure RA-9), the depot account of the petitioner (Annexure-RA-7). Sales Tax Assessment (Annexure-RA-5), etc.
35. The situs of the sale, in our opinion, was clearly at the depot and not at the factory gate and hence, we are of the opinion that no transaction of sale took place within the market area of the Mandi Samiti. Etah. In fact market fee is paid at the depots to the other Mandi Samiti concerned videAnnexures-RA-11 and RA-12.
36. In the impugned order dated 22.7.1998 (Annexure-2 to the writ petition), reference has been made to Article 366(29A). We do not see what relevance has Article 366(29A) to this case. That provision relates to Tax on the Sale or Purchase of Goods, and has extended the definition of sale for the purpose of sales tax was made in view of the decision of the Supreme Court in State of Madras v. Gannon Dunkerly, AIR 1958 SC 560, by which the Supreme Court invalidated the definition of sate in the Madras Sales Tax Act which had included Works Contract. In our opinion, there is a distinction between fee and a tax. Mandi fee is a fee and not a tax, and we are unable to see that what relevance Article 366(29) has to this case.
37. In paragraph 8 of the impugned order. It has been observed that the petitioner has not adduced any evidence of declaration in respect of Excise. In this connection. It has been pointed out by Sri Shanti Bhusan, learned counsel for the petitioner that ghee was not an excisable item at the relevant time. It became an excisable Hem in June. 1988 for a short period, and thereafter again it became non-excisable.
38. In paragraph 10 of the impugned order. It has been observed that the sale takes place at the Etah factory, but this observation is wholly without any basis. No reference has been made to the provisions of the Sale of Goods Act which have been referred to above. The observation that there is some secret stipulation between the redistribution stockist, the C and F Agents and the petitioner is wholly without any basis. Thus, in our opinion, the impugned order proceeds on conjectures and surmises and cannot be sustained. The petitioner pays Mandi fee on sales made at the depots to which the stock transfer has taken place from the Etah factory.
39. On the facts and circumstances of the case, we set aside the impugned order dated 22.7.19,98 and hold that there is no sale within the market area of Etah and the sale only takes place at the Company's depots which are all outside the market area of Etah.
40. The Mandi Samiti, Etah is hence, restrained from levying or collecting any market fee from the petitioner. We allow this writ petition and quash the impugned order dated 22.7.1998 passed by the Mandi Samiti.
41. By an interim order dated 17.8.1998 passed by this Court in this case, the petitioner had been directed to deposit half of the principal amount with the Mandi Samiti, Etah which was to be put in a Fixed Deposit by the Samiti at once and the remaining half had to be deposited by the petitioners as Bank guarantee to the credit of the MandiSamiti, and subject to the above conditions the impugned order was stayed.
42. Since we have allowed this petition, we direct that any amount deposited by the petitioner in pursuance of the aforesaid interim order shall be refunded to the petitioner with interest @ 12% per annum from the date of deposit within two months the date of this judgment and the Bank Guarantee furnished by the petitioner shall stand discharged.