MS SUKHJIT STARCH CHEMICALS LTD. V. AGRICULTURE PRODUCE MARKET COMMITTEE UNA

CWP/1473/2009

AI Insights

The case revolves around a dispute between M/s. Sukhjit Starch and Chemicals Ltd. and the Agriculture Produce Market Committee, Una, concerning the applicability of market fees under the Himachal Pradesh Agricultural & Horticultural Produce Marketing (Development and Regulation) Act, 2005. The petitioner contended that its manufacturing activities do not fall under the 'processing' category as defined by the Act, and thus, it should not be required to register under Section 40 of the Act or pay market fees. The respondent argued that the petitioner was engaged in processing agricultural produce, specifically maize, and thus liable for market fees. The court examined the definitions of 'manufacturing' and 'processing' and concluded that the petitioner's activities constituted manufacturing, not processing, thereby exempting it from the fees under Section 44(ii) of the Act.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 726655 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 29-03-2017
• Assessment Year: misc
• Other Referred Cases: Orient Paper & Industries Ltd. Vs. State of M.P., Manganese Ore India Ltd. Vs. State of M.P, Edward Keventer Pvt. Ltd. Vs. Bihar State Agricultural Marketing Board, M/s. Vardhman Textiles Ltd. & etc. Vs. State of H.P. and others, Godavari Sugar Mills Limited Vs. State of Maharashtra and others, U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. and another, Suganmal Vs. State of M.P., Orissa Cement Ltd. Vs. State of Orissa
• Laws Referred To: Himachal Pradesh Agricultural & Horticultural Produce Marketing (Development and Regulation) Act, 2005
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: NAVLESH VERMA
• Assessee Lawyers: ARJUN LAL
• Keywords: Manufacturing Unit; Market Fee; Processing activity; Refund of market fee
• Section: 44; 40

Judgement Text

" 1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.: 1473 of 2009 Reserved on: 11.01.2017 Date of Decision: 29.03.2017 ______________________________________________________________________ M/s. Sukhjit Starch and Chemicals Ltd. ….Petitioner. Vs. The Agriculture Produce Market Committee, Una , Himachal Pradesh, through its Secretary …..Respondent. Coram: The Hon’ble Mr. Justice Ajay Mohan Goel, Vacation Judge Whether approved for reporting?1 Yes. For the petitioner: Mr. Arjun K. Lal, Advocate. For the respondent: Mr. Navlesh Verma, Advocate. Ajay Mohan Goel, Judge: By way of this writ petition, the petitioner has inter alia prayed for issuance of directions to the respondent-Committee not to call upon the petitioner-Company and/or its manufacturing unit to register itself under the provisions of Section 40 of the Himachal Pradesh Agricultural & Horticultural Produce Marketing (Development and Regulation) Act, 2005 and for issuance of a mandamus to the effect that the petitioner-Company and/or its manufacturing unit is not required to pay any market fee to the respondent qua its manufacturing activities being carried out through its manufacturing unit known as Sukhjit Agro Industries at Village Gurplah, Tehsil Haroli, District Una. Petitioner has Whether the reporters of the local papers may be allowed to see the Judgment? 2 also prayed for a direction to the respondent Market Committee not to raise any demand of market fee from the petitioner-Company and/or its manufacturing unit, i.e., Sukhjit Agro Industries at Village Gurplah, Tehsil Haroli, District Una and also for a direction to the respondent Market Committee to refund a sum of `22,52,535/- alongwith interest @11.5% per annum from 25th October, 2007 to the petitioner-Company which has been realized from the petitioner-Company illegally by the respondent-market ommittee on account of market fee. 2. The case of the petitioner-Company is that it is a Company incorporated under the provisions of the Indian Companies Act, 1956 and is having several manufacturing units including a unit, i.e. Sukhjit Agro Industries at Village Gurplah, Tehsil Haroli, District Una, Himachal Pradesh. As per the petitioner, its manufacturing unit, i.e. Sukhjit Agro Industries is exclusively engaged in the business of manufacture of Liquid Glucose, Dextrose, Monohydrate, Liquid Malto Dextrine, Malto Dextrine Powder, Maize Glutane, Maize Germ and Maize Husk out of Maize at Village Gurplah, Tehsil Haroli, District Una. It is further the case of the petitioner-Company that its aforesaid unit is registered under the Central Sales Tax (Registration Turnover) Rules, 1957 and the said unit is also registered under the Himachal Pradesh General Sales Tax Act, 1970 and certificates issued in this regard by the authorities demonstrate that the business of the unit is manufacturing of Maize Starch, Liquid Glucose, Dextrose, Monohydrate, Liquid Malto Dextrine, Malto Dextrine Powder, Maize Glutane, Maize Germ and Maize 3 Husk out of Maize. It is further the case of the petitioner that General Manager, District Industries Centre, District Una has also issued a certificate in Form-1 for the year 2007-2008 in favour of the petitioner- Company, dated 23.09.2008 (Annexure-PE), wherein it has been certified that Sukhjit Agro Industries is a manufacturing unit of Sukhjit Starch and Chemicals Ltd. for the manufacture of Liquid Glucose, Dextrose, Monohydrate, Liquid Malto Dextrine, Malto Dextrine Powder, Maize Glutane, Maize Germ and Maize Husk out of Maize. On these bases, it has been contended by the petitioner-Company that the Company and its unit in issue is only engaged in the manufacture of abovementioned items alone and it is not engaged in any activity which could be said to be covered by the provisions of Section 40 of the Himachal Pradesh Agricultural & Horticultural Produce Marketing (Development and Regulation) Act, 2005 and none of the manufacturing activities being carried out by the unit of the petitioner-Company attract the necessity of registration under the provisions of the Himachal Pradesh Agricultural & Horticultural Produce Marketing (Development and Regulation) Act, 2005. It is further the case of the petitioner-Company that its unit is not engaged in the processing of any agriculture produce in District Una and that the petitioner-Company at no point of time has operated in the past, neither it is operating in the market area as a trader, commission agent, weighman, hamal, surveyor, ware houseman, contract farming sponsor, owner or occupier of a processing factory or any other market functionary. Further, as per the petitioner-Company, its unit is not 4 engaged in the business of “Processing” as defined in Section 2(zg) of the Act nor the unit is engaged in the business of processing any agricultural product or a scheduled item under the Act and thus the provisions of Section 44 of the Act are not attracted as far as the petitioner or its unit is concerned. As per the petitioner, in its mistaken belief, it applied for renewal of its registration in the year commencing 1st April, 2009 up to 31.03.2010 to the respondent-Market Committee, but after it realized the illegality of the acts of omission and commission of the respondent- Market Committee, it withdrew its application for renewal by issuing a legal notice dated 21.04.2009, which included the details of inter-State maize purchased and quantity wise details of market fee deposited. According to the petitioner-Company, an amount of `22,52,535/- stood illegally recovered and received by the respondent-Market Committee from the petitioner and its manufacturing unit, which the respondent- market committee was liable to refund back to the petitioner alongwith interest. In this background, the petitioner-Company has filed this writ petition praying for the following reliefs: “(a) Issue directions to the respondent to the effect that the petitioner/company and/or particularly its Manufacturing Unit i.e. Sukhjit Agro Industries at village Gurplah, Tehsil Haroli, District Una, Himachal Pradesh being a manufacturer, was at no point of time earlier and even at present, is not required to register itself under the provisions of The Himachal Pradesh Agricultural 5 & Horticultural Produce Marketing (Development and Regulation) Act, 2005. (b) Further direct the respondent not to call upon or require the petitioner Company, and/or its manufacturing unit, to register itself under Section 40 of The Himachal Pradesh Agricultural & Horticultural Produce Marketing (Development and Regulation), Act, 2005 and consequently it is not required to pay any market fee to the respondent for and qua its (petitioner’s) manufacturing activities carried out through its Manufacturing Unit Sukhjit Agro Industries at Village Gurplah, Tehsil Haroli, District Una, Himachal Pradesh. ( c) Direct the respondent Market Committee not to raise any demand against the Petitioner Company and/or its manufacturing unit, i.e. Sukhjit Agro Industries at Village Gurplah, Tehsil Haroli, District Una, Himachal Pradesh, in any manner whatsoever or to demand or receive any market fees from the petitioner Company and particularly its manufacturing unit known as Sukhjit Agro Industries, Gurplah, Tehsil Haroli, District Una, Himachal Pradesh. (d) Direct the respondent Market Committee to refund a sum of Rs. 22,52,535/- alongwith interest @ 11.5% per annum from 25th of October, 2007 till the date of payment to the petitioner Company through its manufacturing unit i.e. Sukhjit Agro Industries, Gurplah, Tehsil Haroli, District Una, Himachal 6 Pradesh, realized by it (Respondent Market Committee) on account of market fees. (e) Call upon the respondent to produce the entire record pertaining to the case and also the subject matter touching upon the same. (f) Allow any other relief deemed fit by this Court in favour of petitioner and against respondents in the peculiar facts and circumstances attending to the case. (g) All costs of the petition in favour of the petitioner and against the respondents” 3. It its reply, the stand taken by the respondent- Committee is that the petitioner is dealing in agricultural produce and is bringing, selling and purchasing Notified Agricultural Produce within the market area of the respondent-Committee and therefore, the market committee is duty bound to levy, charge and collect market fee on the sale and purchase of its Notified Agricultural Produce as per the provisions of Section 44 of the Act. It is further the case of the respondent-Committee that item “Maize” (Makki) is a specified “Agricultural Produce” within the terms of the Act and petitioner is thus obliged under Section 27 of the Act not to use any place in the area for the purpose of marketing of Notified Agricultural Produce except in accordance with the provisions of the Act and Rules or by laws framed thereunder and the petitioner being “purchaser” and a “trader” and market functionary is thus duty bound to deposit the market fee within 14 days and to submit annual accounts qua the statement of 7 transactions undertaken by or through it during the previous Financial Year. Respondent-Committee has denied that the business of the petitioner unit is that of manufacturing and as per the respondent- Committee, petitioner was processing the maize and obtaining maize starch, maize glutane, maize germs and maize husk out of the said maize. It is further the case of the respondent-Committee that the petitioner- Company was dealing in the business of purchasing, selling, stocking, processing, transporting and value auditioning of agriculture produce, i.e. “Maize”, which was a scheduled agricultural produce under item head No. 1 viz cereals and Sr. No. 4 thereof in the schedule under Section 2(a) and Section 71 of the Himachal Pradesh Agricultural and Horticultural Produce Marketing (Development & Regulation) Act. 4. By way of its rejoinder, petitioner-Company reiterated its case put forth in the petition and denied the stand of the respondent- Committee. 5. I have heard the learned counsel for the parties and have also gone through the pleadings on record. 6. Though a preliminary objection has been taken in its reply by the respondent-Committee about petitioner having alternative remedy, however, this point was not stressed and both the parties addressed the Court on merit. 7. The moot issue involved in this writ petition is whether the activity being carried out by the petitioner-Company, subject matter of the writ petition, for which the petitioner-Company as per its version is 8 purchasing maize, which is a Notified Agricultural Produce, is a “manufacturing activity” or is it a “processing activity” being carried out by it. 8. As per the petitioner-Company, it has a manufacturing unit at Village Gurplah, Tehsil Haroli, District Una, Himachal Pradesh and is engaged in the business of manufacture of Maize Starch, Liquid Glucose, Dextrose, Monohydrate, Liquid Malto, Dextrine, Malto Dextrine Powder, Maize Glutane, Maize Germ and Maize Husk etc. out of the Maize and for said manufacturing purpose, the said Company purchases maize which is a Notified Agricultural Produce from outside the State of Himachal Pradesh and which thereafter is brought within the market area only for the purpose of manufacturing and besides this, for the maize which is purchased from within the market area for the purpose of manufacturing, petitioner-Company deposits market fee with the Committee. As per the respondent, the activity being carried out by the petitioner with the said Notified Agricultural Produce, is a “processing activity”. 9. Before proceeding further, it is relevant to refer to the statutory provisions of the Himachal Pradesh Agricultural and Horticultural Produce Marketing (Development and Regulation) Act, 2005, which are germane for the adjudication of the present writ petition. 10. Act defines “agricultural produce” as: “2(a) “agricultural produce” means all produce and commodities, whether processed or unprocessed, of agriculture, horticulture, 9 apiculture, sericulture, livestock and products of live stock, fleeces (raw wool) and skins of animals, forest produce and fisheries as are specified in the Schedule to this Act or declared by the Government by notification under section 19 of this Act and also includes a mixure of two or more than two such products;” business as: “2(d) “business” means purchase, sale, processing, value addition, storage, transportation and connected activities of agricultural produce;” buyer as: “2(e) “buyer” means a person, a firm, a company or a Cooperative Society or Government Agency, Public Undertaking/ Public Agency or Corporation, commission agent, who himself or on behalf of any other person or agent buys or agrees to buy agricultural produce in the notified market area;” committee as: “2(i) “Committee” means an Agricultural Produce Market Committee established under section 29;” market as: “2(u) “market” means a market established under section 19 of this Act which includes 10 market area, market yard/ sub yards and principal market yard;” market area as: “2(v) “market area” means area notified under section 19 of this Act;” market charges as: “2(w) “market charges” includes charges on account of or in respect of commission, brokerage, weighing, measuring, hamaling (loading, unloading or carrying), cleaning, drying, sieving, stitching, stacking, hiring, gunny bags, stamping, bagging, storing, warehousing, grading, surveying, transporting and processing;” notified agricultural produce as: “2(zc) “notified agricultural produce” means any agricultural produce notified under section 19 of this Act;” producer as: “2(ze) “producer” means a person, who in his normal course of avocation, grows, manufactures, rears or produces, as the case may be, agricultural produce personally, through tenants or otherwise, but does not include a person who works as a trader or a broker or who is a partner of a firm of traders or brokers is otherwise engaged in the business of disposal or storage of agricultural produce other than that grown, manufactured, 11 reared or produced by himself through his tenants or otherwise: Provided that no person shall be disqualified from being a producer merely on the ground that he is a member of a Co-operative Society; Explanation.– The term “producer” shall also include tenant; [ processing as: ‘2(zg) “processing” means any one or more of a series of treatments relating to powdering, crushing, decorticating, dehusking, parboiling, polishing, ginning, pressing, curing, cleaning, or any other manual, mechanical, chemical or physical treatments to which raw agricultural produce or its product is subjected to;” seller as: “2(zn) “seller” means a person who sells or agrees to sell any agricultural produce;” trader as: “2(zo) “trader” means a person who in his normal course of business buys or sells any notified agricultural produce and includes a person engaged in processing of agricultural produce but does not include an agriculturist;” 11. Section 40 of the Act provides as under: “40. Registration of market functionaries.- (1) Every person who, in respect of notified agricultural produce, desires to operate in the market area as trader, commission agent, 12 weighmen, hamal, surveyor, ware housemen, contract farming sponsor, owner or occupier of processing factory or any other market functionary, shall apply to the Secretary of the Committee for registration or renewal of registration in such manner and within such period as may be prescribed. The Secretary of the Committee shall be the authority to grant registration certificate with the prior approval of the Committee: Provided that any person may buy agricultural produce in the Market yard/ sub- market yard on day to day basis even without getting registered: Provided further that any person who desires to trade or transact or deal in any notified agricultural produce in more than one market area, shall get registered, for respective function from the Managing Director of the Board. (2) No broker, trader, weighmen, surveyor, godown keeper or other functionaries shall, unless duly registered, carry on his occupation in a notified market area in respect of the notified agricultural produce under this Act. (3) Every application for such registration shall be accompanied with such fee as may be prescribed. (4) The Committee may register or renew the registration or refuse registration or 13 renewal of the registration or cancel the registration on any of the following grounds:- (i) if the applicant is a minor; (ii) if the applicant has been declared defaulter; or (iii) if the applicant has been found guilty under this Act, the rules and byelaws made thereunder.” 12. Section 44 of the Act provides as under: “44. Levy of Market fee.- Every Committee shall levy, charge and collect market fee in the manner as may be prescribed on ad- valorem basis at the rate not exceeding two rupees for every one hundred rupees as may be fixed by the State Government,- (i) on the sale or purchase of notified agricultural produce, whether brought from within the State or from out side the State into the market area; and (ii) on the notified agricultural produce whether brought from within the State or from out side the State into the market area for processing. 13. Section 44 thus authorizes a Committee constituted under this Act to levy, charge and collect market fee in the manner as may be prescribed on sale or purchase of the notified agricultural produce, whether brought from within the State or from outside the State into the market area; and on notified agricultural produce whether brought from within the State or from outside the State into the market area for 14 processing. In other words, under the provisions of this Section, market fee can be collected by the committee; (a) on the sale or purchase of notified agricultural produce, which takes place in that market committee irrespective of the fact whether notified agricultural produce is brought from within the State or from outside the State into the market area; and (b) on notified agricultural produce whether brought from within the State or from outside the State into the market area for the purpose of processing. 14. It is neither the case of the petitioner nor the case of the respondent-State that the notified agricultural produce in this particular case, which is maize, is being brought by the petitioner-unit into the market area for the purpose of sale per se. Therefore, the petitioner-unit is not liable to pay any market fee on account of sale of notified agricultural produce by it in the market area. 15. As far as the factum of petitioner-unit being liable to pay market fee on notified agricultural produce which is being purchased by it within the market area is concerned, during the course of arguments, learned counsel for the petitioner-unit fairly stated that because Clause (i) of Section 44 envisages charges and collection of market fee by committee on purchase of notified agricultural produce 15 which finds place inside the market area irrespective of its end use, therefore, petitioner-unit cannot escape from its liability of paying market fee to the respondent-committee qua that notified agricultural produce, which is purchased by it in the market area itself. 16. Therefore, in this background, the issue which remains for the purpose of adjudication is whether the notified agricultural produce which is being brought by the petitioner-unit into the market area may be from within the State or from outside the State, is being utilized by it in the activity being carried out by it for the purpose of processing, as is the case of the market committee or the same is being brought by it for the purpose of manufacturing as is the case put forth by the petitioner. This assumes significance for the reason that Section 44 of the Act does not confer any authority on the committee to purchase and collect market fee of notified agricultural produce whether brought from within the State or from outside the State into the market area for the purpose of manufacturing. 17. Section 2 of the Act does not define “manufacturing”, though it defines “processing”. Section 2(zg) defines “processing” as under: “2(zg) “processing” means any one or more of a series of treatments relating to powdering, crushing, decorticating, dehusking, parboiling, polishing, ginning, pressing, curing, cleaning, or any other manual, mechanical, chemical or 16 physical treatments to which raw agricultural produce or its product is subjected to;” 18. The petitioner has appended with the petition Annexure-PB, certificate of registration issued on Form-B under Rule 5(1) of the Central Sales Tax (Registration and Turnover) Rules, 1957, as per which, the unit of the petitioner is registered as dealer under Sections 7(1) and 7(2) of the Central Sales Tax Act, 1956 for the purpose of manufacturing of Maize Starch, Liquid Glucose, Liquid Malta Dextrin, Glucose M.D.P., Glucose D.M.H., Dextrin’s, Maize Gluten, Poultry Feed, Maize Oil, Maize Oil Cake Cattle Feed and Maize Husk Cattle Feed. Petitioner has also placed on record as Annexure-PC, Form S.T.III, which is a certificate of registration issued under Rule 6 of the Himachal Pradesh General Sales Tax Act, 1970, as per which also, the petitioner- unit is registered as a dealer under the Himachal Pradesh General Sales Tax Act, 1968 and whose business is manufacturing of Maize Starch, Liquid Glucose, Liquid Malta Dextrin, Glucose M.D.P., Glucose D.M.H., Dextrin’s Maize Gluten, Poultry Feed, Maize Oil, Maize Oil Cake Cattle Feed and Maize Husk Cattle Feed. Petitioner has also placed on record as Annexure-PE, Form-1 Certificate issued for the year 2007-2008 by the office of General Manager, District Industries Centre, Una, certifying that the petitioner-unit is a registered unit for the purpose of manufacture of Liquid Glucose, Dextrose Monotrydrate, Liquid Malto Dextine, Malto Dextrine Powder, Maize Gluten, Maize Germ & Husk. The above 17 documents demonstrate that the petitioner-unit in fact is registered and acknowledged as a manufacturing unit. 19. A perusal of the aforesaid documents demonstrates that it is not as if the petitioner-unit has been registered as manufacturing and processing unit, it is singularly registered as a manufacturing unit only. 20. Though in order to substantiate that the petitioner-unit is a manufacturing unit, the petitioner has appended the documents which have been referred to above, but there is no material placed on record by the respondent-committee to substantiate its contention that the petitioner-unit in fact is a processing unit. Alongwith its reply, the respondent-committee has appended three annexures, none of which is to the effect that the petitioner-unit is a processing unit. In its reply, the contention of the respondent-committee is that as the petitioner is a processing factory as well as a processor and stockiest of notified agriculture produce, namely maize which is a scheduled item, therefore, the petitioner-company has been rightly and legally registered under the Act. 21. This Court vide its order dated 02.12.2016 had directed Secretary, Agriculture Produce Market Committee, Una to file his personal affidavit mentioning therein as to what is “processing activity” being carried out by the petitioner-unit within the market area. Rather than answering the query which was posed by this Court to the respondent-Committee vide its order dated 02.12.2016, an affidavit has 18 been filed by the Secretary concerned, relevant extract of which is quoted hereinbelow: “4. That “processing” means any one or more of a series of treatments relating to powdering, crushing, decorticating, dehusking, parboiling, polishing, ginning, pressing, curing, cleaning, or any other manual, mechanical, chemical or physical treatment to which raw agricultural produce or its product is subjected to. 5. That keeping in view the above definitions of the word “Processing” and the word “Agricultural Produce” and the treatment given to the specified agriculture produce “Maize” by the writ petitioner the writ petitioner is liable to pay market fee on Maized starch, Maize Gluten, Maize husk which are result of processing activity.” 22. Alongwith this affidavit, respondent has appended a communication addressed to them from Director of Horticulture and on the strength of said communication, respondent-Committee has tried to impress that the activity being carried out by the unit of the petitioner- Company is processing activity. However, no document has been placed on record from which it can be concluded or inferred that the unit in issue is in fact carrying out processing activity only and not manufacturing activity. 23. As I have already mentioned above, the word ‘manufacturing’ has not been defined in the Act. In Black’s Law Dictionary, the word ‘Manufacture’ is defined as under: 19 “Manufacture.: The process or operation of making goods or any material produced by hand, by machinery or by other agency; anything made from raw materials by the hand, by machinery, or by art. The production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations, whether by hand labor or machine.” 24. The word ‘Process’ has been defined in Black’s Law Dictionary as under: “Process: A series of actions, motions, or occurrences; progressive act or transaction; continuous operation; method, mode or operation, whereby a result of effect is produced; normal or actual course of procedure; regular proceeding, as, the process of vegetation or decomposition; a chemical process; processes of nature.” 25. Hon’ble Supreme Court in Orient Paper & Industries Ltd. Vs. State of M.P. and others (2006) 12 Supreme Court Cases 468 has held: “13. The distinction between 'manufacturing' and 'processing' has been examined by this Court in several cases. 14. According to Oxford Dictionary one of the meanings of the word 'process' is \"a continuous and regular action or succession of actions taking place or carried on in a definite manner and leading to the accomplishment of 20 some result\". The activity contemplated by the definition is perfectly general requiring only the continuous or quick succession. It is not one of the requisites that the activity should involve some operation on some material in order to effect its conversion to some particular stage. There is nothing in the natural meaning of the word 'process' to exclude its application to handling. There may be a process, which consists only in handling and there may be a process, which involves no handling or not merely handling but use or also use. It may be a process involving the handling of the material and it need not be a process involving the use of material. The activity may be subordinate but one in relation to the further process of manufacture. Any activity or operation, which is the essential requirement and is so related to the further operations for the end result, would also be a process in or in relation to manufacture. (See: C.C.E. v. Rajasthan State Chemical Works (1991) 4 SCC 473). 15. In Black's Law Dictionary, (5th Edition), the word 'manufacture' has been defined as, \"The process or operation of making goods or any material produced by hand, by machinery or by other agency; by the hand, by machinery, or by art. The production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations, whether by hand labour or machine\". 21 Thus by manufacture something is produced and brought into existence which is different from that out of which it is made in the sense that the thing produced is by itself a commercial commodity capable of being sold or supplied. The material from which the thing or product is manufactured may necessarily lose its identity or may become transformed into the basic or essential properties. (See Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. M/s. Coco Fibres (1992 Supp. (1) SCC 290). 16. Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation. Naturally, manufacture is the end result of one or more processes through which the original commodities are made to pass. The nature and extent of processing may vary from one class to another. There may be several stages of processing, a different kind of processing at each stage. With each process suffered the original commodity experiences a change. Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity; but it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new 22 and distinct article that a manufacture can be said to take place. Process in manufacture or in relation to manufacture implies not only the production but also various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to which the raw material is subjected to that the manufactured product emerges. Therefore, each step towards such production would be a process in relation to the manufacture. Where any particular process is so integrally connected with the ultimate production of goods that but for that process processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture. (See Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan (1991 (4) SCC 473). 17. 'Manufacture' is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commodity whereas in the case of processing it is not necessary to produce a commercially different article. (See M/s. Saraswati Sugar Mills and others v. 23 Haryana State Board and others (1992 (1) SCC 418). 18. The prevalent and generally accepted test to ascertain that there is 'manufacture' is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the process. There might be borderline cases where either conclusion with equal justification can be reached. Insistence on any sharp or intrinsic distinction between 'processing and manufacture', results in an oversimplification of both and tends to blur their interdependence. (See Ujagar Prints v. Union of India (1989 (3) SCC 488). 19. To put differently, the test to determine whether a particular activity amounts to 'manufacture' or not is: Does new and different goods emerge having distinctive name, use and character. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes 'manufacture' takes place and liability to duty is attracted. Etymologically the 24 word 'manufacture' properly construed would doubtless cover the transformation. It is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. (See Empire Industries Ltd. v. Union of India (1985 (3) SCC 314).” 26. In Manganese Ore India Ltd. Vs. State of M.P and others 2016 SCC Online SC 1280, the Hon’ble Supreme Court has held: “20. We are absolutely conscious that noscitur a sociis rule is not applied when the language is clear and there is no ambiguity, which according to us does exist and perceptible in the Explanation in question. A very broad and a wide definition of the term 'processing' if applied, would include manufacture of a new or distinct product. Manufacture normally involves a series of processes either by hand or machine. If a restricted construction is not applied it would create and give rise to unacceptable consequences. It is not the intent to treat and regard manufacturing activities as processing. Manufacturing, as is understood, means a series of processes through different stages in which the raw material is subjected to change 25 by different operations. [For different between process and manufacturing see CIT v. Tara Agency[16], Orient Paper and Industries v. State of M.P. and Anr.[17] and Aspinwall & Co. Ltd. v. Commissioner of Income Tax, Ernakulam[18].] 20………………… 26. Learned counsel for the appellants would contend that in numerous decisions, this Court has reiterated that if a new substance is brought into existence or if a new or different article having a distinctive name, character or use results from particular processes, such process or processes would amount to manufacture. In the case of Gramophone Co. of India Ltd. v. Collector of Customs, Calcutta[19], this Court held:- \"11. The term \"manufacture\" is not defined in the Customs Act. In the allied Act, namely the Central Excise Act, 1944 also, the term \"manufacture\" is not to be found defined though vide clause (f) of Section 2 an inclusive definition is given of the term \"manufacture\" so as to include certain processes also therein. 12. \"Manufacture\" came up for the consideration of the Constitution Bench in Ujagar Prints v. Union of India (1989) 3 SCC 488. It was held that if there should come into existence a new article with a distinctive character and use, as a result of the processing, the essential condition justifying manufacture of goods is satisfied. The following passage in the Permanent Edition of Words and Phrases was referred to with approval in Delhi Cloth and General Mills, AIR 26 1963 SC 791 at p. 795: \"'Manufacture' implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use.\" 13. In a series of decisions [to wit, Decorative Laminates (India) (P) Ltd v. CCE, (1996) 10 SCC 46, Union of India v. Parle Products (P) Ltd. 1994 Supp. (3) SCC 662, Laminated Packings (P) Ltd v. CCE, (1990) 4 SCC 51 and Empire Industries Ltd. v. CCE, (1985) 3 SCC 314] the view taken consistently by this Court is that the moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name whether it be the result of one process or several processes, manufacture takes place; the transformation of the goods into a new and different article should be such that in the commercial world it is known as another and different article. Pre-recorded audio cassettes are certainly goods known in the market as distinct and different from blank audio cassettes. The two have different uses. A pre- recorded audio cassette is generally sold by reference to its name or title which is suggestive of the contents of the audio recording on the cassette. The appellant is indulging in a mass production of such pre-recorded audio cassettes. 27 It is a manufacturing activity. The appellant's activity cannot be compared with a person sitting in the market extending the facility of recording any demanded music or sounds on a blank audio cassette brought by or made available to the customer, which activity may be called a service. The Tribunal was not right in equating the appellant's activity with photoprocessing and holding the appellant a service industry.\" 27. In Aspinwall & Co. Ltd. (supra) this Court has held as follows:- \"13. The word \"manufacture\" has not been defined in the Act. In the absence of a definition of the word \"manufacture\" it has to be given a meaning as is understood in common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article then it would amount to a manufacturing activity. 14. This Court while determining as to what would amount to a manufacturing activity, held in CST v. Pio Food Packers, 1980 Supp. SCC 174 : that the test for determination whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity. It was 28 observed: (SCC p. 176, para 5) \"Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place.\" 15. Adverting to facts of the present case, the assessee after plucking or receiving the raw coffee berries makes it undergo nine processes to give it the shape of coffee beans. The net product is absolutely different and separate from the input. The change made in the article results in a new and different article which is recognized in the trade as a new and distinct commodity. The coffee beans have an independent identity distinct from the raw material from which it was manufactured. A distinct change comes about in the finished product. 16. Submission of the learned counsel for the Revenue that the assessee was doing only the processing work and was not involved in the manufacture and production of a new article cannot be accepted. The process is a 29 manufacturing process when it brings out a complete transformation in the original article so as to produce a commercially different article or commodity. That process itself may consist of several processes. The different processes are integrally connected which results in the production of a commercially different article. If a commercially different article or commodity results after processing then it would be a manufacturing activity. The assessee after processing the raw berries converts them into coffee beans which is a commercially different commodity. Conversion of the raw berry into coffee beans would be a manufacturing activity. 28. This Court in Servo-Med Industries Pvt. Ltd. v. Commissioner of Central Excise[20] has held as under:- \"27.(1) Where the goods remain exactly the same even after a particular process, there is obviously no manufacture involved. Processes which remove foreign matter from goods complete in themselves and/or processes which clean goods that are complete in themselves fall within this category.\" \"27.(4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place.\" 27. In Orient Paper & Industries Ltd. Vs. State of M.P., (2006) 12 SCC 468, it has been held by the Hon’ble Supreme Court while 30 interpreting the provisions of M.P. Krishin Upaj Mandi Adhiniyam Act 1972, provisions of which are akin to the local Act of this State that: “16. Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation. Naturally, manufacture is the end result of one or more processes through which the original commodities are made to pass. The nature and extent of processing may vary from one class to another. There may be several stages of processing, a different kind of processing at each stage. With each process suffered the original commodity experiences a change. Whenever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity; but it is only when the change or a series of changes takes the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place. Process in manufacture or in relation to manufacture implies not only the production but also various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to which the raw material is subjected to that the manufactured 31 product emerges. Therefore, each step towards such production would be a process in relation to the manufacture. Where any particular process is so integrally connected with the ultimate production of goods that but for that process processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture. (See Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan (1991 (4) SCC 473). 17. 'Manufacture' is a transformation of an article, which is commercially different from the one, which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable. The essential point thus is that in manufacture something is brought into existence, which is different from that, which originally existed in the sense that the thing produced is by itself a commercially different commodity whereas in the case of processing it is not necessary to produce a commercially different article. (See M/s. Saraswati Sugar Mills and others v. Haryana State Board and others (1992 (1) SCC 418). 18. The prevalent and generally accepted test to ascertain that there is 'manufacture' is whether the change or the series of changes brought about by the 32 application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the process. There might be borderline cases where either conclusion with equal justification can be reached. Insistence on any sharp or intrinsic distinction between 'processing and manufacture', results in an oversimplification of both and tends to blur their interdependence. (See Ujagar Prints v. Union of India (1989 (3) SCC 488). 19. To put differently, the test to determine whether a particular activity amounts to 'manufacture' or not is: Does new and different goods emerge having distinctive name, use and character. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes 'manufacture' takes place and liability to duty is attracted. Etymologically the word 'manufacture' properly construed would doubtless cover the transformation. It is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially 33 known as such from that point of view is a question depending upon the facts and circumstances of the case. (See Empire Industries Ltd. v. Union of India (1985 (3) SCC 314).” 28. In Edward Keventer Pvt. Ltd. Vs. Bihar State Agricultural Marketing Board, (2000) 6 SCC 264, it has been held by the Hon’ble Supreme Court that even if the basic ingredients might be the same, but the end product is a different commodity, then it has to be treated as a separate item and if the product loses its initial identity, then the end product will not fall under the first category and it would amount to manufacture. 29. Relying upon the above two judgments of the Hon’ble Supreme Court, the Division Bench of this Court in M/s. Vardhman Textiles Ltd. & etc. Vs. State of H.P. and others, AIR 2006 Himachal Pradesh 53 while dealing with a similar situation, which had also arisen under this very Act has held as under: “18. The provisions of the H.P. Agricultural Produce Markets Act, 1969 which was repealed by the Act now in consideration were considered by the Apex Court in Himachal Pradesh Marketing Board and others vs. Shankar Trading Co. Pvt.Ltd. and others, (1997) 2 SCC 496. In that case though katha was a distinct and separate product derived from the agricultural produce (Khair wood), the Court held that even katha was included since the 34 State had included katha in the schedule to the Act. It is nobody’s case that cotton yard has been included in the Act. This judgment, therefore, does not help the respondent. Even under the present Act katha is included. Katha is not raw agricultural produce but it is the end product of a raw agricultural produce, namely, khair wood. The State has included it in the schedule and therefore it would be agricultural produce within the meaning of the Act. 19. Reliance has been placed by Sh.Navlesh Verma on a Division Bench judgment of the Punjab and Haryana High Court rendered in M/s.Bindra Feed Mills vs. State of Haryana and others, 1994 PLJ 188. However, before we refer to this judgment it would be apposite to mention that the Punjab Agricultural Produce Markets Act as initially enacted was considered by a Division Bench of the Punjab and Haryana High Court in Parkash Woollen Industries Panipat vs. The State of Haryana and others, 1980 PLJ 54. The Court held that a dealer who brings agricultural produce for the purpose of manufacturing is not liable to pay market fees under the provisions of the Act. The Court held that giving the ordinary meaning to the word “processing”, there was distinction between processing and manufacture. The Court held that the processing means ‘such treating of an agricultural commodity so as to make it consumable while the commodity remaining substantially the 35 same’ while ‘manufacturing’ envisages turning of original commodity into a different commodity with different use and marketable character thereof being different and distinct from that of the original agricultural commodity. With a view to over come this judgment the legislature amended the definition of the word processing and the new definition included “manufacturing out of an agricultural produce”. It is thus obvious that the legislature by definition created a legal fiction and included manufacturing in the definition of processing. It is due to this definition that in Bindra Mills case the Punjab and Haryana High Court upheld the levy of market fee on goods brought for processing though the processing is an interim stage of manufacturing. 20. We cannot accept the contention of Sh. Navlesh Verma that cotton yarn is agricultural produce and is only produced by way of a process. As noted above certain Acts such as the Karnataka and Punjab Acts have included the word “manufacture” and “manufacturing” in their Acts and therefore even when agricultural produce is used for manufacturing a new product market fees may be levied. However, the legislature in the present case has purposely not used the words manufacture or manufacturing. The words process and processing have been used in the various definition clauses as well as the sections but the legislature in its wisdom chose 36 not to use the words manufacture and manufacturing. 21. Every manufacture will necessarily include a series or number of processes. If agricultural produce is only processed and the resultant product is not very different then the resultant product may also be included in the definition of agricultural produce. However, as held by the Supreme Court in Edward Keventer’s and Orient Paper & Industry’s cases (supra) where the end product has a distinct and separate identity then it cannot be said that the notified agricultural produce is only being processed. It is by a series of processing being manufactured into something new; something having a totally different identity. 22. Petitioners have alleged which fact is not denied that when the cotton bales are brought into their spinning mills they are first taken to the blow room then carding is done thereafter combing takes place then the product goes through the various processes of being drawn through the draw frame, speed frame and ring frame and the resultant product which is cotton yarn is then wound and packed. It has been urged by Sh.Navlesh Verma that no chemical processes are involved unlike in the case of manufacture of paper from wood. However, this is not what is crucial to decide whether the processes amount to manufacture or just amount to processing. We have quoted in detail the judgment of the Apex Court giving the 37 vital difference between the two. The main point of differention between processing and manufacturing is whether the end product has a totally different identity. In our considered view cotton yarn has a totally different identity from cotton. The series of process which are undertaken when combined together result in the manufacture of a totally different product, namely, cotton yarn. 23. In view of the above discussion we are of the considered view that the petitioners are manufacturing a non-agricultural product, namely, cotton yarn from agricultural produce and therefore do not fall within the ambit of the Act. We accordingly allow the writ petitions and hold that the petitioners are not liable to get themselves registered under Section 40 of the Act and they are not liable to pay market fees on the manufacture of cotton yarn. We consequently quash the notices issued to the petitioners to get themselves registered and to pay market fees.” 30. Therefore, it is evident from the judgments which have been referred to above that in fact the essential difference between manufacturing and processing is that in the case of manufacturing, there is a complete transformation in the original article so as to produce a commercially different article or commodity, which is marketable as such and there is a transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and 38 name, whereas in the case of processing, the identity of the goods remain exactly the same and though the goods may undergo certain processes, however, the original identity of the good so processed remains the same. 31. Coming to the facts of the present case, the notified agricultural produce, which is maize in the present case, when is subjected to manufacture by the petitioner-company, the produce so manufactured by it are recognized differently both in terms of commercial marketability and usage as compared to notified agricultural produce, which is maize. 32. Therefore, what emerges from the law discussed above is that what is crucial to be decided is whether the process which is undertaken by the petitioner amounts to manufacturing or just amounts to processing. The main point of differention between processing and manufacturing is whether the end product has a totally different identity or not. In the present case, the end product being manufactured by the petitioner-company is Maize Starch, Liquid Glucose, Dextrose, Monohydrate, Liquid Malto Dextrine, Malto Dextrine Powder, Maize Glutane, Maize Germ and Maize Husk etc. No material has been produced on record by the respondent-committee from which it can be inferred that the end product which is so manufactured by the manufacturing activity undertaken by the petitioner–company does not has a totally different identity as compared to notified agricultural produce, i.e. maize, whereas in my considered view, the end produce so manufactured by the petitioner-unit in fact results in a totally different 39 product being manufactured, i.e. Maize Starch, Liquid Glucose, Dextrose, Liquid Malto Dextrine etc. 33. Accordingly, in view of the discussion held above as well as law cited above, it is evident that the petitioner is not undertaking the activity of “processing” but is undertaking the activity of “manufacturing”, which results in the manufacture of a totally different product in the shape of Maize Starch, Liquid Glucose, Dextrose, Monohydrate, Liquid Malto Dextrine, Malto Dextrine Powder, Maize Glutane, Maize Germ and Maize Husk etc. and therefore, the petitioner-unit is not liable to pay any market fee for manufacturing of the said produce under Section 44 of the Act. Held accordingly. 34. As far as the applicability of Section 40 of the Act is concerned, in my considered view, it is in fact incumbent for the petitioner-unit to get itself registered under Section 41 of the said Act, because though I have held that the petitioner-unit is not engaged in any process activity and the activity with which it is engaged is a manufacturing activity, which is not registered under Section 41 of the Act, but still because the petitioner-unit is purchasing notified agricultural produce within the market area as well as from outside, so it does fall within the definition of ‘trader’ as defined under Section 2(zo) and for this limited purpose it has to get itself registered and it is also liable to pay market fee to the Market Committee for the purchase of notified agricultural produce within the market area. 40 35. Now, I will address the issue as to what relief can be granted to the petitioner-unit qua prayer made by it for issue of a writ of mandamus to the respondent-Committee to refund a sum of `22,52,535/- deposited by it alongwith interest. 36. I have already held above that the petitioner-company is not liable to pay any market fee to the respondent-Committee, as is envisaged under Section 44 (ii), though the petitioner-company is liable to pay market fee to the respondent-Market Committee as envisaged under Section 44(i). 37. In Godavari Sugar Mills Limited Vs. State of Maharashtra and others, (2011) 2 Supreme Court Cases 439, the Hon’ble Supreme Court has held: “8. The observations in Suganmal related to a claim for refund of tax and have to be understood with reference to the nature of the claim made therein. The decision in Suganmal has been explained and distinguished in several subsequent cases, including in U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. and ABL International Ltd. Vs. Export Credit Guarantee Corpn. of India Ltd. The legal position becomes clear when the decision in Suganmal is read with the other decisions of this Court on the issue, referred to below: (i) Normally, a petition under Article 226 of the Constitution of India will not 41 be entertained to enforce a civil liability arising out of a breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers. (Vide Burmah Construction Co. Vs. State of Orissa.) (ii) If a right has been infringed- whether a fundamental right or a statutory right-and the aggrieved party comes to the Court for enforcement of the right, it will not be giving complete relief if the Court merely declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the Government without the authority of law. (Vide State of M.P. V. Bhailal Bhai.) (iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of the power conferred under Article 226 for payment of money (Vide Suganmal Vs. State of M.P.). 42 (iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment, etc. While a petition praying for mere issue of a writ of mandamus to the State to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes collected was without authority of law and therefore, the respondents had no authority to retain the money collected without any authority of law and therefore the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition. (Vide Salonah Tea Co. Ltd. Vs. Supdt. of Taxes). (v) It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of law and there was no cause of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where collection of cess, levy or tax is held to be unconstitutional 43 or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. (Vide U.P. Pollution Control Board V. Kanoria Industrial Ltd.). (vi) Where the lis has a public law character, or involves a question arising out of public law functions on the part of the State of its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied. (Vide Sanjana M. Wig V. Hindustan Petroleum Corpn. Ltd.). We are therefore of the view that reliance upon Suganmal was misplaced, to hold that the writ petition filed by the appellant was not maintainable. 38. In Orissa Cement Ltd. Vs. State of Orissa, 1991 Supp. (1) SCC 430, the Hon’ble Supreme Court has held that once the principle that the Court has a discretion to grant or decline refund is recognized, the ground on which such discretion should be exercised is a matter of consideration for the Court having regard to all the circumstances of the case. 39. In Suganmal Vs. State of M.P., AIR 1965 SC 1740, the Hon’ble Supreme Court has held: “6. On the first point, we are of opinion that though the High Court have power to pass any appropriate order in the exercise of the powers conferred under article 226 of the Constitution, 44 such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the state to refund taxes illegally collected, but all such had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the courts were moved by a petition under article 226 simply for the purpose of obtaining refund of money due from the State on account of its having made illegal exactions. We do not consider it proper to extend the principle justifying the consequential order directing the refund of amounts illegally realised, when the order under which the amounts had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Art. 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders exercised their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of 45 a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right.” 40. The Hon’ble Supreme Court in U.P. Pollution Control Board and others Vs. Kanoria Industrial Ltd. and another, (2001) 2 Supreme Court Cases 549 has held: “17………It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, in the cases on hand where facts are not in dispute, collection of money as cess was itself without the authority of law; no case of undue enrichment was made out and the amount of cess was paid under protest; the writ petitions were filed within a reasonable time from the date of the declaration that the law under which tax/cess was collected was unconstitutional. There is no good reason to deny a relief of refund to the citizens in such cases on the principles of public interest and equity in the light of the cases cited above….” 41. Thus, the legal principle which has been carved out by the Hon’ble Supreme Court is that while enforcing fundamental or statutory rights, the High Court has the power to give consequential relief by 46 ordering payment of money realized by the Government without the authority of law and a petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right, however, there is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment etc. It is not as if High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected, however, this power can be exercised sparingly depending on facts and circumstances of each case. 42. Now, when we apply the above legal principles enumerated by the Hon’ble Supreme Court to the facts of the present case, the inevitable conclusion is that it is not as if the petitioner has approached this Court praying for issue of writ of mandamus that money which it has deposited as market fee to the Market Committee may be ordered to be refunded in its favour. The main relief which has been sought by the petitioner is for issuance of mandamus to the effect that respondent- Committee is not entitled to levy any market fee on the manufacturing activity being carried out by the petitioner-Company under Section 44(ii) of the Act and the prayer for refund is a consequential relief. Keeping in view the fact that the principal prayer of the petitioner has found merit with this Court, therefore, in my considered view, the petitioner-Company is also entitled for refund of the amount which has been paid by it to the 47 respondent-Committee and which has been illegally collected by the respondent-committee as market fee under Section 44(ii) of the Act. 43. Therefore, while holding that the petitioner-Company is not liable to pay any market fee for the manufacturing activities being carried out by it, respondent-Committee is directed to refund excess market fee which stands deposited with it by the petitioner-Company after deducting the amount, which it is entitled to collect from the petitioner-Company under Section 44(i) of the Act. It is further directed that the said refund shall be made by the respondent-Committee to the petitioner-Company within a period of three months from today, failing which, respondent- Committee shall be liable to pay interest @6% (simple) from the date of judgment. With the said directions, writ petition stands disposed of, so also miscellaneous applications, if any. No order as to costs. (Ajay Mohan Goel) Judge March 29, 2017 (bhupender) "