Crl.O.P.No.1436/07 PRAYER CRL.O.P.1436/07 Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, to call for the records pertaining to the Calender Case in C.C.No.813 of 2006, pending on the file of Judicial Magistrate No.II, Dindigul and quash the same.
!For Petitioners ... Mr.S.D.Venkateshwaran ^For Respondent ... Mr.R.Janakiramulu, SGP :COMMON ORDER These petitions are filed under
Section 482 of Cr.P.C., to call for the records pertaining to the Calender Cases in C.C.Nos.813, 815, 814, of 2006, respectively in Crl.O.P.Nos.1436, 1437, 1438 of 2007, pending on the file of the learned Judicial Magistrate No.II, Dindigul, and Calender Cases in C.C.Nos.84,83,85,86 of 2007 respectively in Crl.O.P.(MD)Nos.8187, 8237, 8243, 8244, of 2007, pending on the file of the learned Judicial Munsif-cum-Judicial Magistrate, Vedasundur, and to quash the same.
2.The brief facts of the case is as follows:-
The petitioners are the Spinning Mills located in and around Dindigul District. They are registered and licensed under the Tamil Nadu Agricultural Produce Marketing Regulation Act, 1987. The petitioners are producing cotton yarn in the above said mills. The respondent is the Dindigul Market Committee, which is a Statutory Body under the Tamil Nadu Agricultural Produce Marketing Regulation Act, 1987. The petitioners are granted licence and they are periodically submitted the returns as per rules. The petitioners' Mills are producing cotton yarn and the waste cotton generated during the process of spinning the yarn, when sold outside is subject to levy of marketing fees at the rate of not less than one rupee for every hundred rupees at the aggregated amount. The petitioners are remitting the marketing fee in the case of sale of waste cotton as per the provision of the Act. Instead of selling the entire waste cotton in the outside market, the petitioners have been utilizing some quantity of the waste cotton for further conversion into Open End Yarn (OE yarn) from the Open End Spinning Mills, on job work basis. Such waste cotton, converted into OE yarn will be returned back in the form of yarn to the petitioners' Mills. The respondent have erroneously considered this conversion and accordingly issued notice to the petitioners to remit the market fee on the value of the quantity of waste cotton sent for conversion process. The respondent had initiated criminal prosecution by preparing complaints and the learned Magistrate has taken on file for an offence under Sections 48(1)(a)(c) of the Tamil Nadu Agricultural Produce Marketing Regulation Act, 1987. There is no justification for invoking
section 48(1)(a) and (c) of the above said rules and therefore, the petitioners prayed to call for the records pertaining to all the case pending in the Judicial Magistrate Courts and to quash the same. The following table would reveal the case details.
3.Heard the learned counsel appearing for the petitioners as well as the learned Special Government Pleader appearing for the respondent.
4.The learned counsel for the petitioners would submit that the waste cotton generated during the production of cotton yarn if sold outside market, the respondent collects fee of Rs.1 for every 100 rupees. The learned counsel pointed out that when the waste cotton is utilized for further conversion in to open end yarn from the open end spinning mill on job work basis, the question of sale does not arise and it does not attract levy of Rs.1 for ever Rs.100/-. The petitioners have been regularly filing returns and have been paying the levy but, the respondents have subjecting the above said utilization of waste cotton for further conversion as outside sale and it is erroneous. The learned counsel pointed out that the waste cotton is converted into low quality yarn and is returned back to the Mills and therefore, it would not attract levy. The learned counsel pointed out that the petitioners are filing return in Form XX on the job work basis and not for sale.
5.Section 24 of the Tamil Nadu Agricultural Produce Marketing (Regulation)Act, 1987 deals with levy of fee by market committee.
Section 48 deals with penalties and sub section (a) deals with evading payment of any fee due under the Act and sub Section (c) deals with furnishing false information. Rules 33(1) deals with levy of fee shall be Rs.1/- (Rupee one only) for every hundred rupees of the aggregate amount of the notified agricultural produce, which is bought or sold in the notified market area. Sub clause (2) provides the fee referred to in sub-rule(1) shall be payable only in respect of first purchase or sale.
6.The case of the petitioners in all these petitions is that there is no sale of waste cotton and it is processed on a job work basis and returned back to the Mills as open end yarn. The petitioners have also filed a delivery notes under Form XX, which would show not for sale and returned back after conversion. A chalan under Rule 12(b) of the Central Excise Rules, 2002 is also filed by the open end division i.e., the mills which are doing the job work. It is filed to show that the waste cotton was returned back after conversion. The delivery chalan by the said open end division is also filed to show that the open end cotton yard was delivered to the petitioners after conversion. The petitioners have also filed Form IX for monthly transactions. However, the respondent has sent a notice to the petitioners stating that the petitioners' mill have to pay the fee on the waste cotton, which was sent for job work and they have initiated such proceedings in various case before the Judicial Magistrate Court.
7.The following are the details of the case pending and the fees payable:
8.Under
Section 24(1), of the Tamil Nadu Agricultural Produce Marketing Regulation Act, 1987, the market committee shall levy a fee on any notified agricultural produce bought or sold in the notified market area. Under Rule 33, the fee on a notified agricultural produce leviable under sub-section (1) of section 24 of the Act, shall be Re.1 (Rupee one only) for every hundred rupees of the aggregate amount of the notified agricultural produce, which is bought or sold in the notified market area.
9.If the waste cotton is bought or sold in the notified area, it would be subjected for levy as prescribed. The burden is on the petitioners to prove that the waste cotton sent for conversion is not bought or sold and it is not subjected to for levy. The petitioners have produced the Delivery Notes under Form XX and delivery chalans and a monthly returns to show that the waste cotton has been sent for conversion into open end yarn and they have received back after conversion and in my considered view, this transaction will not come under the definition "the produce bought or sold" and therefore, will not attract levy of fee.
10.The levy payable is only on the produce bought or sold in the notified area. If the waste cotton is sent out of the premises of the mills for a conversion on job basis into open end yarn and is received back after such conversion, there is no sale or purchase to attract the levy under
Section 24(1), of the Tamil Nadu Agricultural Produce Marketing Regulation Act, 1987,.
11.Therefore, in the light of the foregoing discussion, I am of the considered view that the transaction of waste cotton being subjected for conversion on a job work basis with different mill and returned back to the Mills as open end yard and there is no actual sale or purchase took place during the transaction to attract levy. Therefore, the prosecution launched by the respondent is without any basis and it is abuse of process of law. Therefore, to meet the ends of justice, it is fit case to be interfered with.
12.In the result, the petitions are allowed and the Calender Cases in C.C.Nos.813, 815, 814, of 2006, respectively in Crl.O.P.Nos.1436, 1437, 1438 of 2007, pending on the file of the learned Judicial Magistrate No.II, Dindigul, and Calender Cases in C.C.Nos.84,83,85,86 of 2007 respectively in Crl.O.P.(MD)Nos.8187, 8237, 8243, 8244, of 2007, pending on the file of the learned Judicial Munsif-cum-Judicial Magistrate, Vedasundur, are quashed. Consequently, connected miscellaneous petitions are closed.
MPK To
1.The Superintendent Regulated Market Begambur (Post) Dindigul Market Committee Dindigul - 2.
2.The Judicial Magistrate No.II, Dindigul.
3.The District Munsif-cum-Judicial Magistrate, Vedasandur.