Heinz India (P) Ltd., Aligarh and Another vs State of U.P.and Others

Bhanwar Singh, J.—All these petitions involve common issues of facts and law. Further, the parties to all the writ petitions are also the same, therefore, all these petitions have been consolidated for a common decision. Writ Petition No.2323 (M/S) of 1997 is the leading writ petition. In all the petitions, the petitioner, namely Heinz India (P) Limited and its predecessorconcern M/s. Glaxo India Limited have prayed for a writ in the nature of certiorari quashing the revisional order dated 3.7.1997, passed by the Director, Mandi Parishad, Lucknow. Another order sought to be quashed is Annexure2, passed by the Mandi Samiti. The petitioners have also prayed for a suitable writ, order or direction, after recording a finding, that the goods from the petitioners'' unit at Aligarh to outside the State of Uttar Pradesh were by way of stock transfer and therefore, no mandi fee is payable. Yet one more writ in the nature of mandamus commanding the respondents to refund the amount of mandi fee already deposited in pursuance of the impugned orders along with interest at the rate of 24% per annum has also been solicited.

The facts giving rise to these petitions may be recapitulated as below:

The petitioner No.1 Heinz India (P) Ltd. Is a company incorporated under the Indian Companies Act having its registered office at 16, Community Centre, New Friends Colony, New Delhi and it has its manufacturing unit in Manzoorgarhi, District Aligarh. The petitioner No.2 Shri Akhtar Ali is its General Industrial Relation and Legal Manager. This unit is engaged in the business of manufacturing and production of Milk foods/Weaning foods/Energy beverages under the brand names Glacto, Complan, Farex and Glucon D besides Ghee under the brand name ''Sampriti''. The dispute regarding payment of the mandi fee relates to Ghee only in all the writ petitions. As is evident from the title of the petition, eight writ applications were filed on behalf of M/s Glaxo India Private Limited, the predecessor of Heinz India Private Limited. The company has its own godowns in other States and it has appointed Clearing and Forwarding Agents, hereafter referred to as ''C&F Agents�. The goods which are transferred outside the State of U.P. are weighed, packed and despatched directly from the godowns of the manufacturing unit to the godowns situated outside the State. No market fee is payable on transfer of the ghee from the petitioners'' unit at Aligarh to its own godowns, located out of Uttar Pradesh. The petitioners are entitled to gate passes from the Mandi Samiti without making payment of mandi fee on the stock which is proposed to be transferred to its other States'' godowns. Heinz India (P) Limited does not enter into any kind of contract regarding sale of Ghee with any party outside the State of U.P. The sales and marketing activities of the company are looked after by the marketing department located at Bombay and New Delhi. The parties who are interested in buying the Ghee contact the Marketing Staff/C&F Agents of the manufacturing unit at the godowns situated outside the State and negotiate the price. The manufacturing unit keep on transferring goods by way of replenishment of the stock kept in such godowns. The sales are exclusively made by the ''C&F Agents'' out of the existing stock of goods outside the State. The cheques/drafts which the customers issue while purchasing Ghee are issued in the name of the Company and upon payment, the purchasers lift ghee from the godowns. The aforesaid Modus Operendi was duly communicated to the Secretary, Mandi Samiti, Aligarh. The petitioners Heinz India Private Limited have been transferring Ghee outside the State since October 1994 (in case of Glaxo India Private Limited since 1.4.1990) and before they started taking out goods, they had requested the Mandi Samiti to issue the necessary gate passes. The Company supplied various documents to prove that the goods were being transferred outside the U.P. State and are not being sold in any part of the territory of the State of U.P. Such documents included information in FormA, Form 48, consignment note and transfer proforma invoice. The Mandi Samiti had been issuing gate passes without any demand for mandi fee until 21.2.1995. In other words, until then, the Mandi Samiti was convinced that the sale of Ghee had not taken place in the market area of Aligarh. However, after pronouncement of a decision by the Supreme Court in the case of �Krishi Utpadan Mandi Samiti v. Maha Lakshmi Sugar Works and others, 1995 SCC (Supp 3) 433, the Mandi Samiti started insisting that mandi fee should be paid in advance for issuance of the gate passes, even though such goods were being transported outside the State by way of stock transfer. The petitioners'' request for deferment of the demand regarding mandi fee was rejected by Mandi Samiti. They tried to persuade the authorities of the Mandi Samiti by producing additional documents, procedure regarding transfer of goods by way of stock transfer, an agreement entered with C&F Agents of Jaipur, Delhi, Indore and Bhiwandi but the Mandi Samiti without taking into consideration all these documents passed an ex parte order (Annexure2) holding that the transfer of goods from Aligarh to outside the State was not stock transfer but in fact, a sale within the Mandi area of Aligarh and therefore, the Mandi fee was liable to be paid. Such an order is illegal and arbitrary. Aggrieved by all such orders, the petitioners filed revisions under Section 32 of the Act before the Director, Mandi Parishad. On a stay application, the Director granted limited stay order in each case directing the petitioners to deposit 25% of the fee in case and furnish a bank guarantee about the additional 25% of the fee levied. The petitioners complied with such order during the pendency of the revision. In the meantime, the Assistant Commissioner, Central Excise, Aligarh directed to furnish a declaration for the goods being transported to the outside State godowns. However, since ghee was exempted from excise duty, the petitioners were not required to give declaration while transferring the stock of ghee from the factory to its various godowns located outside the State.

The Director, vide order dated 24.10.1996, partly allowed the revision and reduced the Mandi fee from Rs.3,54,362.85 to Rs.1,77,182. Against that portion of the order by which the relief sought for by the petitioners was refused by the Director, the petitioner filed a writ petition before this Court. This Court vide its judgment dated 3.4.1997, allowed the petition and quashed the Director''s judgment in revision dated 24.10.1996 in so far as the relief that was refused against the petitioner but remanded the matter back to the director to decide it aresh in the light of the observations and directions given in the judgment. In pursuance of the remand order, fresh hearing took place on 4.6.1997. The Director, Mandi Parishad again held that the transfer of ghee by the petitioners from their factory to the factory godown located outside the State of U.P. was not a stock transfer but a sale made within the Mandi area of Aligarh. As alleged, such a decision of the Director is wholly erroneous and based on surmises and conjectures. The Director further erred in holding that the documents filed by way of rebuttal are incomplete, unreliable, manufactured and also contradictory. The Director held that it was made out from Forms A and 48 that the sale of ghee had taken place at Aligarh. The vital piece of evidence, such as transporter''s receipts of freight charges was wrongly rejected by the Director. Amongst other grounds of rejecting the petitioners'' claim of stock transfer relied upon by the Director are that certain columns of the invoice were incomplete; invoicecumchallan bills were in loose forms; the invoice bills do not have serial number or book number; the signatory of the invoice bills was not known; the details of payment are missing; the time of the handing over of the bank drafts was not clear; some sale invoices were prepared prior to the arrival of goods and that ghee was sold to bulk purchaser and not to C&F Agents. Such findings were perverse and based on misconception of law. The order of the Director is against the material evidence on record. All the documents put up by the petitioners were genuine documents. The other documents, namely octroi receipt, Mandi receipt, Bank''s statements, Form F, stock ledger etc. have been rejected by the Director on the ground that each such document by itself does not indicate the stock transfer of the goods. The defects in the documents pointed out in the judgment of the Director were never conveyed to the petitioners. As the petitioners have no permanent address at Jaipur, the sale is controlled from Aligarh. The finding of the Director that once the goods reached the godown, the agreement between the petitioners and the C&F Agents comes to an end and a new secret agreement comes into existence is purely imaginary. It is also wrong to hold that the C&F Agents handle the goods as a principal by becoming the owner thereof. The value shown in the invoice bills is only a tentative price for assessment of the excise duty but it does not indicate that it was a sale price. As a matter of fact, according to the agreement, C&F Agent has to receive the goods and store it in the godown. The Agent will sell the goods to the purchaser on receipt of the cheque/pay order in advance. The bill is raised by the C&F Agent on the stationery of the company. If the C&F Agent would be deemed to act independently, pay orders or cheques would be issued in his name but neither the cheques and pay orders were issued in his name nor he handed over receipts as the principal seller. The recitals of the agreement with the C&F Agent of Rajasthan M/s Marudhar Sales Corporation were clear indication that the said Corporation was not the owner of the stock transfer or principal seller thereof. The Corporation had no authority to negotiate or enter into any contract on or on behalf of the company. Therefore, the finding of the revisional authority that the C&F Agent is the first purchaser is wholly erroneous. The godowns are rented by the company and the rent is paid by the C&F Agent on behalf of the petitioners and such payments are reimbursed by the company. The company has paid the sales tax of the other State and Form F. is the proof to show that the sales of stock were made in Rajasthan and not in U.P., so the petitioners cannot be made liable to pay sales tax or trade tax in the State of U.P. and therefore, the Mandi fee will not be chargeable on that ground alone. The Director in its order has wrongly held that the liability to pay Mandi fee was on the purchaser and therefore, C & F Agent is liable to pay it. The Company paid the sales tax and Mandi fee as levied by the State of Rajasthan and therefore, it should not be asked to pay double such fees. The Director has misconstrued various clauses of the agreement while holding that the C&F Agents are the first purchasers of the goods. As a matter of fact, the Mandi Samiti is not rendering any service to the petitioners. There is no element of quid pro quo between the petitioners and the respondents which is a necessary element for payment of fee. However, the Director did not appreciate the point raised by the petitioners about there being no service being rendered by the respondents so as to entitle it to realize fee. The petitioners rebutted the presumption under Section 17 (iii) (b) of the U.P. Krishi Utpadan Mandi Adhiniyam that the goods were sold in the Mandi Samiti area of Aligarh but the Director failed to appreciate the documentary evidence produced by the company. In this way, the Director has committed a manifest error in holding that the liability for payment of Mandi fee remains on the petitioners in spite of the fact that the petitioners have not realized the same from the purchaser and he has further erred by holding that the C&F Agent was the principal purchaser of the goods.

In the light of the above averments, the petitioners have prayed for quashing of the two orders (Annexures 1 and 2).

A counter affidavit was filed on behalf of the opposite parties 2 to 4 in the leading petition. Mr. Sunil Kumar Sharma, the Mandi Supervisor, Krishi Utpadan Mandi Samiti, Aligarh asserted in his counter affidavit that a detailed counter affidavit had already been filed in writ petition No.2320 (M/S) of 1997 Glaxo India Limited and others v. State of U.P. and others. Shri Sharma supplemented further that the same counter affidavit may be taken to be as the true account of their defence version. It is significant to note that Shri Sunil Kumar Sharma is the depondent of the said counter affidavit also and although the heading of the said affidavit is ''short conter affidavit'', yet taking it to be correct version of their case and ignoring whether it is short or detailed counter affidavit, the averments made therein may in short be reproduced as below:

Shri Sunil Kumar Sharma conceded that ''Ghee'' is a specified agricultural produce and the petitioners being the licensee of Krishi Utpadan Mandi Samiti, Dhanipur, Aligarh are liable to pay the market fee on the transaction of sale of the aforesaid commodity held within the market of Aligarh Mandi Samiti area. It is in order to evade the market fee that the petitioners are taking shelter of transfer of goods as stock transfer to outside the State, although the fact is that all transactions for sale of Ghee take place within the aforesaid market area of Mandi Samiti. In other words, it is not a stock transfer of ghee but a clear sale and therefore, the Mandi Samiti is entitled to levy the market fee on the goods taken out from the market area. According to rules and the principles laid down by the Supreme Court, the petitioners are liable to pay the market fee immediately at the time of obtaining gate pass. However, if the petitioners prove by way of valid rebuttal that it is not a sale but a stock transfer, question of levying market fee does not arise. As a matter of fact, the petitioners have failed to give any evidence that it was a replenishment of stock by way of transfer. The transactions of sales were negotiated and completed within the market area of Aligarh and goods were delivered by the petitioners to the purchasers on receipt of the bank drafts. The petitioners are having bank account at Jaipur with a permanent address of Aligarh. The parties who are interested in buying the goods directly contact the marketing department and sales staff of the petitioners at Aligarh. The petitioners have not been able to prove that the delivery was effected through ''C&F Agents''. Prior to the Supreme Court judgment dated 2.2.1995 in, �M/s. Maha Lakshmi Sugar Works, gate passes were being issued to traders who took out the goods subject to the submission of evidence of rebuttal within the time prescribed and if such evidence was not submitted, the market fee was levied but after the above said judgment of the Supreme Court, evidence in rebuttal has to be given at the time of the goods being taken out from the market area and if satisfactory explanation was not given, the market fee was levied. According to the terms and conditions of the agreement between the petitioners and the alleged ''C&F Agents'', namely Reema Overseas and Marudhar Sales Corporation, the agents offered to provide storage, delivery and distribution service of Ghee manufactured by the petitioners. As a matter of fact, the agreements did not confer any right upon the agents to transact sale of the production either at Jaipur, Delhi, Bombay or elsewhere. In most of the cases, the goods were delivered after receiving bank drafts at Aligarh and it is also proved from record that the purchasers were known to the petitioners at Aligarh. The orders for delivery were also received at Aligarh and the offers for purchase were also accepted by the petitioners at Aligarh. The combination of these factors would go to show that the sale was held at Aligarh and it was only the delivery of goods which was effected through ''M/s Marudhar Sales'' or ''Reema Overseas''. With reference to the order dated 24.10.1996, passed by the Director against the petitioners, Shri Sunil Kumar Sharma stated that as a matter of fact, the entire order was challenged by the petitioners and the same was remanded for reconsideration. Therefore, the petitioners are now stopped from taking the plea that only half portion of the aforesaid order was challenged before the High Court. However, that order merged in the final order which is under challenge in the present writ petitions. The petitioners in pursuance of the High Court''s direction were given opportunity of hearing afresh and thereafter, a detailed order was passed. In these writ petitions, the issues of facts cannot be determined nor the finding of fact given by the revisional authority be interfered with. The Director considered all the relevant records, material and evidence and the order was made on merit. Since the petitioners had given a declaration before the Excise Authority about the sale, they are liable to pay the market fee of the Mandi Samiti. They cannot, therefore, be permitted to retract from their admissions. Forms F&C are being obtained from the traders just to evade the traders of sales tax and market fee. According to the provisions contained in the explanation to Section 17 of the Mandi Samiti, unless contrary is proved, any specified agricultural produce when taken out or proposed to be taken out of the market area shall be presumed to have been sold within the said market area. It is definitely in case of deemed sale and by all means, it may be presumed that sale was complete and conclusive at Aligarh. The transactions of sale conducted by the petitioners fall within the ambit of clauses (a) (c) and (f) of Clause 29A of Article 366 of the Constitution of India. According to the decision of Supreme Court in Agricultural Marketting Committee v. Shalimar Chemicals, 1997 (5) SCC 516, if the notified agricultural produce moved out of notified area, a presumption is drawn that such agricultural produce was either purchased or sold within the notified area. The petitioner''s contention that they paid market fees in the State of Rajasthan has no relevant bearing as sale being complete at Aligarh, the market fee of the Mandi Samiti is payable to Aligarh Mandi Samiti. Therefore, in view of these counter averments, the findings recorded by the Director, Mandi Parishad cannot be reviewed and reversed through the present writ petitions.

I have heard Mr. Bharat Ji Agarwal, learned counsel for the petitioners and Mr. B.D. Madhyan, learned counsel for the respondents and perused the record.

It is perhaps the third round of litigation between the parties. Not once but twice, they have raised the relevant issues before this Court and the Supreme Court. The crucial question which arose for determination earlier and which is still alive is as to whether the Mandi fee is or is not levyable on the Ghee which is being produced by Heinz India Private Limited at Aligarh. Whereas the manufacturing unit has come forward time and again before this Court with the averment that since the Ghee being manufactured at the Aligarh Unit on being packed in tins is transferred to other States by way of stock transfer, mandi fee cannot be imposed upon it as the transaction of stock transfer by no stretch of reasoning can be termed to fall within the ambit of sale, the respondents'' contention is that the stock transfer is a sham transaction, virtually it is a sale to various wholesale dealers in other States and in view of the proof that the sale was monitored at Aligarh, the petitioners are liable to pay Mandi fees on the entire produce.

It may be recalled that the U.P. Krishi Utpadan Mandi Adhiniyam (hereinafter to be referred as Adhiniyam) was enacted for regulation of sale and purchase of agricultural produce in U.P. The provisions of the Act, though challenged were upheld to be as valid by the Hon''ble Supreme Court in, �Ram Chandra Kailash Kumar & Co. and others v. State of U.P. and another, AIR 1980 Supreme Court 1124. As directed by the Apex Court in that case, the State Government has not so far been able to constitute an appropriate forum for adjudication of the disputes arising under the Adhiniyam. In view of Rule 66 of U.P. Krishi Utpadan Mandi Niyamawali, 1865 (hereinafter to be referred as Niyamawali), which was declared as redundant, the Mandi Samiti realized Mandi fee even on stock transfer of the goods from one place to another. Explanation to Section 17(iii)(b) was added and Rule 66 was substituted and a Division Bench of this Court in, �Mahalaxmi Sugar Works v. State of U.P., 1987 UPLBEC 957, held that if the goods are moving out of the market area for sale, it could not be subjected to market fees under the explanation. Certain guidelines were formulated for compliance by manufacturing units which were subsequently modified in Ram Karan v. Krishi Utpadan Mandi Samiti, Saharanpur, (1994) 2 UPLBEC 1405. Certainly, these guidelines are the determining factors of the issues under consideration and therefore, it would be of immense help to quote them as follows:

�We have given our anxious consideration to these matters. We find that the State Government has failed to provide full machinery provisions in the Adhiniyam inspite of the observations made by the Supreme Court in the case of Ram Chandra Kailash Kumar (supra) and by this Court in the case of Shri Mahalakshmi Sugar Works (supra). We are also conscious of the fact that unscrupulous persons should not be permitted to get away from the liability of the fees if it is due. In these circumstances, while allowing these writ petitions in so far as they relate to reassessment of the market fees in respect of the years 198889 to 199192 and quash the assessments and the demand notices issued in that behalf, modify the directions given by this Court in the case of Shri Mahalakshmi Sugar Works and issue additional directions which shall be applicable to the Mandi Samitis situated in the State which cumulatively would read as follows:

(1) Every trader proposing to take out the goods manufactured or produced in the market area shall be entitled to issue of gate passes from the Mandi Samiti if he produces documents to establish that the goods were being taken out of the market area. Necessary entries shall be made by Mandi Samiti in records maintained by it.

(2) A trader taking out goods shall file a statement before the Mandi Samiti within twelve weeks indicating therein that the goods were sold by the commission agents or by the petitioners themselves inside or outside the market area.

(3) In case the traders do not file the statement the Mandi Samiti shall issue notice to the traders after expiry of twelve weeks to file the statement within 10 days of receipt of notice.

(4) If the return is filed, the same shall be scrutinized by the Mandi Samiti within 3 months of its filing and if it is satisfied about its correctness, then it shall pass appropriate orders levying fee. If the sale has been made in the market area and exempting in case, it has been made outside the market area.

(5) In case the return of trader is found to be incorrect or he orders to file his return despite notice by Mandi Samiti then the Mandi Samiti shall levy market fee on trader on the goods which had been taken out and for which gate pass had been issued.

(6) A Mandi Samiti shall have a right to make reassessment in case some material comes into its possession after assessment within six months of passing of the order of assessment for which it shall issue a show cause notice mentioning the grounds therein on the basis of which reassessment is proposed to be made.�

In an unreported decision of the Supreme Court in, �Krishi Utpadan Mandi Samiti v. M/s. Saraswati Cane Crusher and others, delivered in Civil Appeal Nos.17691773 of 1998 with Civil appeal No.1774 of 1998, Civil Appeal No.1775 of 1998 and Civil Appeal No.1776 of 1998, It was held that a fresh and final assessment would be made by the Mandi Samiti in the case of Heinz India Private Limited and another v. State of U.P. and another. In the main judgment, certain instructions repairing the guidelines issued earlier were issued. Those instructions may be quoted as below:

�We are satisfied that the orders of this Court aforereferred to would need some repair work. We treat the said order to be conceiving of a provisional assessment whereafter doors are opened for a final assessment. We conceive that when demands are raised by the Krishi Utpadan Mandi Samiti against a trader before he could ask for transit of goods outside the market area, the trader would be entitled to tender a valid rebuttal to say that no sale had taken place within the notified are and that if the explanation is accepted there and then by the Mandi Samiti, no question of payment would arise as also of withholding the gate passes. If prima facie evidence led by the trader is not acceptable by the Mandi Samiti, the trader or the dealer can be compelled to pay the market fee as demanded before issuance of gate pass. If the trader makes the payment without demur, the matter ends and the assessment finalized. But in case he does so and raises protest, then the assessment shall be taken to be provisional in nature making it obligatory on the trader to pay the fee before obtaining the requisite gate pass. After protest has been lodged and the provisional assessment has been made, a timeframe would be needed to devise making the final assessment. We, therefore, conceive that it innately be read in the order of this Court that a final assessment has to be made within a period of two months after provisional assessment so that the entire transaction in that respect is over enabling the aggrieved party, if any, to challenge the final assessment in the manner provided under the afore Act or under the general law of the land in appropriate form. Having added this concept in this manner in the twoJudge Bench decision of this Court, we declare that what repair has been done instantly would add to the orders of the High Court and the instant corrective decision shall be the governing rule. The Civil Appeals would thus stand disposed of.�

In view of the guiding factors underlined in the above directions, it is abundantly clear that a burden is cast upon the manufacturing unit to prove that the goods being transferred by way of stock transfer are not sale within the market area of Mandi Samiti. In other words, the onus to rebut the presumption of sale in the market area lies upon the manufacturing unit to rebut the presumption of sale in the local area of the manufacturing unit. It is noteworthy that under Clause (iii) of Section 17 of the Adhiniyam, the Committee of the Mandi Samiti is competent to levy and collect such market fees which shall be payable on transaction of sale of specified agricultural produce in the market area at such rates being not less than one per centum and more than two per centum of the price of the agricultural produce so sold. If the produce is sold through a commission agent, such commission agent may realize the market fee from the purchaser. However, if the produce is purchased directly by a trader from producer, he shall be liable to pay the market fee to the Committee and if the produce is purchased by the trader from another trader, the trader selling the produce may realize it from another purchaser and pay to the Committee. It is thus clear that it is the purchaser on whom the liability to pay the market fee has been fastened but it is the trader who shall be liable to pay the market fee to the Committee. The explanation added to Section 17 is of primary importance from present point of view. It postulates that for the purpose of clause (iii), unless the contrary is provided, any specified agricultural produce taken out or proposed to be taken out from a market area 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.

Evidently thus, the petitioners, namely, the Heinz India Private Limited and its predecessor Glaxo India Limited are under an obligation to rebut the presumption that its agricultural produce, namely the Ghee was sold in local market area of Aligarh or in other parts of the State. With a view to determine the subsisting controversy, all the relevant facts and circumstances have to be taken into consideration. Mere one document or the other will not be enough to provide a base for the solution. Therefore, all the documents relied upon by the petitioners in support of their contention that there was no sale of Ghee being manufactured by their Aligarh Unit, have to be scrutinized. The most important of such documents is the agreements entered into between the manufacturing unit and the C&F Agents which are Annexures 6 and 7 to writ petition No.2320 of 1997.

A perusal of these agreements with Marudhar Sales Corporation, Jaipur and M/s. Reema Overseas would reveal that the control regarding sale of Ghee basically lies with the petitioner company at Aligarh. The terms and conditions of agreements between these two C&F Agents are identical. Clause1 of the agreement reveals that the godown of the C&F Agent will be used for storage of company''s products and it shall not be used for any other person, yet the stringent condition is that the sale will be effected by the company. The company is located at Aligarh. The petitioners have not been able to show that either there is a branch of the company''s office at the relevant places where the stock is transferred or some sales representative or staff stay there. In para 3 of the agreements, it is recited that the C&F Agent will store the Ghee as advised by the company and shall promptly forward such goods in lots to the parties as instructed by the company. There is no qualifying clause to make it clear that the company''s staff at the place of storage will issue instructions. There is no doubt that if the company''s sales staff at Aligarh either monitors the sale or issue instructions to the C&F Agents to supply the goods to a particular dealer or trader, sale is transacted in the Mandi market area at Aligarh. The exercise of transferring stock to C&F Agent at various places in accordance with the agreement and issue instructions regarding delivery of goods from Aligarh is a sham transaction of stock transfer. As a matter of fact, it is an onerous task of the company to prove its point of stock transfer and such a proof has to be furnished beyond every possible doubt or suspicion upon the bona fides of the company. Such rebuttal of sale in local market has to be established from all possible angles, particularly the accounts. If the C&F Agents sell the goods at Jaipur, Jodhpur or Delhi or any other place, they have to receive instructions in writing from the Sales Department of the company located at the places of C&F Agents and such instructions have to be in writing. Merely because there is bank account of the company in Jaipur and other places and the C&F Agents deposit the money is not enough to prove that the sale was affected there. With a view to show that the entire transaction of sale takes place outside the State of U.P., the company has to open a sales department at the relevant places and submit a proof that such and such officers or officials are functional at a particular address. If the proof in this respect is lacking, the very bona fide requirement of the company shrouds in suspicion and in absence of such a positive proof of the sales department, it remains a matter for presumption that it is the company''s sales department at Aligarh which is monitoring the sales outside the State. Not a single letter or an iota of correspondence has been produced before the Court by the company to show that C&F Agents deal with other traders without any instructions from the company''s office at Aligarh. It is not the company''s case that its office at Bombay Headquarter also deals with sales. If the goods have moved in accordance with prior agreement or purchase orders received before dispatch of the consignment from Aligarh, it is a sale in the Mandi area. The definition of sale makes it crystal clear that where the property in the goods is transferred from the seller to the buyer, it is a sale. An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled as to which property in the goods is to be transferred.

It is significant to note that rebuttal under the explanation referred to above is to be made by reliable documents and not the affidavit. The statement on oath may, of course, be relevant to some extent at the time of seeking gate pass giving out clear cut position of the stock at Aligarh and the destination stations, description of the goods being dispatched, any advance payment whether received or not, who shall deal with the sale at the destination station and also all other necessary details but the affidavits filed before the court may prove the point or the contention of the petitioners but such sworn testimony being belated in respect of time is not enough to support the requisite rebuttal. In future, recourse may be had to the affidavit in order to avoid the conflicting state of affairs. As a matter of fact, the High Court is not the proper forum to look into hundreds and thousands of papers including invoicecumchallans, receipts of sale and other documents which are proposed to be relied upon by the two parties. As observed by the Apex Court in para 7 of the decision rendered in Ram Chandra Kailash Kumar''s case (supra), indeed, there should be special tribunals to decide the controversy of fact. This Court in nineteen revisions has perused hundreds of documents which are Photostat copies and with the passage of time have gone blurred. However, their significance and sanctity have been scrutinized and the discussions hereinafter would reveal that the petitioners could not succeed in rebutting the onus on their part.

The first and formost set of documents relied upon by them comprised of a letter of request, FormA, proforma No.48, transport Bilti and declaration under Sections 52A and 173C of the Excise Act. In most of the letters of request for gate passes, the name of the depot to which the consignments were proposed to be transferred have not been disclosed. No doubt, the quantity of the tins and the approximate price of the tins were disclosed but to whom the goods were transferred had not been revealed. It would under such compelling circumstances be, therefore, the responsibility of the Court to find out connectivity with the contents of proformaA. A perusal of that form has no apparent concern with the letter of request as all the details recited in the request have not been disclosed in the said form. For instance, the letter of request dated 14.11.1994 filed in writ petition No.2323 of 1997 appears to indicate that 625 tins were proposed to be transferred but the number of said tins has no where been disclosed in the enclosed formA. Thus, connection between the two is lacking. Then, a look at the proforma 48 prepared on the same date containing stock position shows that 277.30 tins were proposed to be transferred. The figure of 625, transfer for which by way of stock transfer was made is not mentioned in this proforma. It is not the exercise to be done by the Court to compare the arithmetical calculations by picking number of tins from one document, then comparing its contents with the weight recited in the other paper. The bilti of the transport company is also not on tallying terms as the weight of the packages has been shown as 10,000 kgs as against the real weight of 9375 kgs. Moreover, there is overwriting on the number of packages. Further, in the concerned invoice dated 14.11.1994, there is a certificate which reads as follows:

�Certified that the particulars given above are true and correct and the amount indicated represents the price actually charged and that there is no flow of additional consideration directly or indirectly from the buyer.

For Heinz India Pvt. Ltd.�

If the price has been charged or realized, it amounts to sale and there remains no doubt that it was a consignment being transported for delivery to be effected outside the State. The contention that the declaration of the price was with a view to meet the requirement of Section 52A and 173C of the Excise Act is not acceptable in view of the clear cut certificate issued by the factory.

Similar certificates were issued in the consignment of invoice No.122 dated 14.11.1995 (relied upon in writ petition No.2326) and invoice No.104 dated 6.7.1995 (relied upon in writ petition No.2324 (M/S) of 1997). It is not clear from proforma formA as to whether gate passes sought for were granted or not. The bottom part of the form is lying blank without any entry being made thereon. Thus, it is not clear as to whether gate passes were issued or not and even if they were issued, the proof is not available.

As argued by the learned counsel for the parties, unimaginable bunglings may take place in absence of the tallies being accurate on all particulars. If the quantity of 625 Kgs. Ghee is lesser than shown in the bilti, any number of tins by any device may be sold in ways other than the proposed transfer of the consignment.

Keeping in view these infirmities, it may be observed that the petitioners have not brought forth the best, convincing and the clinching evidence in support of the rebuttal.

If the payment has been received and the consignments were thereafter transferred to the dealers, as it appears, it would be deemed that all these sales were conducted at the instructions issued by the factory staff, even though an exercise was taken recourse to by sending, as alleged, the goods to the C&F Agents. In the letters of request for gate passes, the names of the C&F Agents have not been disclosed. In the bilti also, it is not mentioned that the goods of the consignment were being transferred to the C&F Agent and if the consignee''s name is the same as consigner, then address of the consignee is missing.

The following charts would demonstrate that various consignments were transferred by the petitioners on receipt of the price of the goods. Petitionwise chart may be drawn as follows:

Writ Petition No.2320 of 1997

Writ Petition No.2516 of 1997

There is no evidence as to whether the payment was made or not.

Writ Petition No.2517 of 1997

Writ Petition No. 2518 of 1997

Writ Petition No.2519 of 1997

Not applicable

Writ Petition No.2520 of 1997

Writ Petition No.2526 of 1997

Writ Petition No.2527 of 1997

Writ Petition No.2321 of 1997

Writ Petition No.2322 of 1997

No copy of InvoicecumChallans is enclosed.

Writ Petition No.2323 of 1997

Various charts reproduced above would reveal that out of 19 writ petitions, 8 pertain to M/s. Glaxo India Private Limited and the remaining 11 relate to M/s. Heinz India Private Limited. If the consignments have been dispatched on having received orders or price thereof as advance money whether in part or in full, the sale is complete in Aligarh. The very presumption of sales or transactions of sale being supervised or monitored from Aligarh is indicative of the fact that the exercise of dispatching consignments was sham.

In several other invoice papers, the price was not received in advance but that does not mean that it was a transaction falling within the ambit of stock transfer. These invoice papers lack in full particulars. There is no reference that the consignment being transported through these invoices is a part of stock transfer. In numerous documentscumchallan forms, the invoice number has been entered in hand which is indicative of the proof that such invoicecumchallans did not form part of any book but they were loose forms prepared with a view to manufacture documentary evidence in support of the company''s contention regarding stock transfer. There were even cuttings on some of the challans which create a doubt on their genuineness. No reason has been assigned as to why such loose forms were prepared and produced, particularly when the number of invoicecumchallans were taken out of the book with printed invoice numbers. Though it is difficult to reproduce all such loose forms, yet a few may be quoted as below:

(loose forms)

Writ Petition No.2320 of 1997

Writ Petition No.2520 of 1997

Not applicable

Writ Petition No.2526 of 1997

Not applicable

Writ petition No.2326 of 1997

The C&F Agents flouted the provisions of clause 13 of the agreement which required them to obtain receipts from the purchaser at the time of the goods being delivered to them. Receipts, if obtained, must have reflected on the issue and such documentary evidence could be regarded as the appropriate evidence in rebuttal. But no such receipts were obtained nor filed before the Court.

The third category of invoicecumchallans is in which the invoice number is in printed form but then gate pass number with date is missing. It is not clearly mentioned in these papers as to when payments had been received nor order numbers etc. were disclosed. How, then in the absence of specific proof of the place of payment with other necessary details, it can be accepted that the sales were conducted at the destination stations. A list of such invoice may be given as below:

Writ Petition no.2320 of 1997

Writ Petition no.2517 of 1997

As in the above challans, no gate pass number is recited, it is difficult to believe that the goods were transferred by way of stock transfer through these invoices. There was violation of the terms of clauses 14 and 16B of the agreements. (M/s. Marudhar Sales Corp. v. Reema Overseas, Filed in W.P. No.2320/MS/97)

Some C&F Agents have themselves purchased the goods. Such purchase is contrary to the agreement between the parties. For instance, M/s. Handia Traders, C&F Agents, purchased vide voucher No.433 dated 10.7.1993, in spite of the fact that they were not authorized under the agreement to make purchases.

It is not clear from the record as to who received the orders at the destination stations, C&F Agents or any one else on behalf of the company. If the functioning of the company was computerized, the computerized statements in respect of all the dealings must have been filed so as to repose confidence therein.

As a matter of fact, there is no legal presumption regarding transfer of goods otherwise than by way of stock transfer and similarly no inference can be drawn vice versa but the important aspect of the matter to be taken note of is that one truck load Ghee would be worth Rs.20 lacs approximately. If the company proposed to transfer a truck load Ghee by way of stock transfer, there should be diminution of stock at the destination or it must be contemplated by the Sales Department of the Company that this much of stock would be sold in a given span of time. The company is not expected to dispatch such costly goods merely on speculation without their demand.

The evidence regarding stock at the destination stations has also been suppressed by the company. No statement of account of receipt of the tins at the destination stations with addition to the previous stock as also the periodical sale has been produced before the court. The mode of instructions issued to the C&F Agents by the Sales Department of the company has also been kept secret. In other words, no link evidence to establish transaction of stock transport with sales etc. was brought forth. Thus the company did not succeed to discharge its burden and rebut the legal presumption as required by the explanation to Section 17(iii)(b) by filing cogent, inherent, logical and connecting materials. Transparency in all the transactions of alleged stock transfer is lacking. Therefore, it may reasonably be held that the company has miserably failed to rebut the presumption of sale at Aligarh.

Under Section 17, market fee is payable on the transaction of sale and purchase and the phrase �sale and purchase� includes the agreement of sale or purchase or the event of delivery of goods under the said agreement or payment of price whether the price is paid at the time of transaction or is postponed to a subsequent date. From the discussions made above and the charts produced, it is evidently clear that the dispatch of the Ghee from Aligarh was in pursuance of either sale or agreement for sale. The fact remains that the petitioners have not been able to rebut the presumption as envisaged under explanation to Section 17. Learned counsel for the opposite parties contended that the issue as regard presumption is legal but that of rebuttal is factual and therefore, this Court while exercising jurisdiction under Article 226 of the Constitution of India should not interfere with the finding of fact arrived at by the Director of Krishi Utpadan Mandi Samiti. In support of his submission, learned counsel relied upon a citation of this Court, �M/s. Shyam Sunder Baldeo Rai v. Director, Rajya Krishi Utpadan Mandi Parishad, U.P. and others, 1995 RD 58�. It was held in this case that no question of law is involved in the issue in question, i.e. pertaining to explanation to Section 17 of the Adhiniyam. The following quotation is relevant on the point:

�It may also be observed that the Explanation of Section 17 of the Adhiniyam raises a presumption of law, it being statutory in nature, but since the statutory presumption under the Explanation pertains to a question of fact, the question whether the presumption has or has not been rebutted, depends on the facts and circumstances of each case and if the authorities under the Adhiniyam have, on a proper self direction to the facts and circumstances of the case, arrived at the conclusion that the statutory presumption has not been rebutted, this Court, in exercise of its certiorari jurisdiction, would be loathe to interfere with the view taken by the statutory authorities except where the Statutory authority is found to have acted arbitrarily and unreasonably.�

Similarly in a decision reported in AIR 1987 SC 135, the Apex Court held that maintaining of judicial review under Article 226 is not the same as to exercise an appellate power.

In another decision, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987 SC 117, Hon''ble Supreme Court held that the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The Supreme Court observed further that the High Court should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings were perverse and not based on any material evidence or it resulted in manifest injustice. Except to this limited extent, the High Court has no jurisdiction to go into the details of the facts and circumstances of the case relating to the appreciation of evidence.

In the case in hand, the Director, Krishi Utpadan Mandi Samiti and the assessing authority at Aligarh both have consistently decided that from the evidence produced before them on behalf of the Heinz India Limited and its predecessor, it was not borne out that the goods were transferred by way of stock transfer, rather it was established from their own record that the dispatch of the consignments was in pursuance of either sale or agreement for sale and the sale in agreement of sale with the actual transfer of property by delivery of goods by seller to the buyer constitutes sale in accordance with the provisions of Section 5 of the Sale of Goods Act. As indicated above, numerous consignments were dispatched on receipt of the price money in advance and this was clear proof of sale. It was immaterial that the delivery was intended to be effected through C&F Agent as it was a device adopted with an ulterior motive of saving or evading Mandi fee.

The above view gets fortified from another decision of the Apex Court in, M/s. Sahney Steel and Press Works Limited and another v. Commercial Tax Officer and others, AIR 1985 SC 1754. In that case, the assessee was a company having its registered office and factory at Hyderabad and having its branch offices in other States. It was engaged in manufacturing of stampings and laminations out of steel sheets for utilization in electric motors, transformers etc. The branch offices on receiving orders from buyers/dealers informed the factory to manufacture goods with particular designs so as to suit the requirement of customers. The goods so manufactured were transported from the registered office at Hyderabad and as a result of a covenant in the contract of sale or an incident of that contract amounted a sale at Hyderabad and accordingly subject to the sales tax there. Although, in the case in hand, it is not the Central Sales Tax in question but on the same analogy, it would be fair and reasonable to hold that the supply of the goods on receipt of the price in advance was a clearcut sale at Aligarh and therefore, such a sale would be subject to payment of Mandi fee.

Mr. Bharat Ji Agarwal, learned counsel for the petitioners referred to the octroi receipts of some of the consignments and the prescribed Form A (prescription suggested by Mandi Samiti) and contended with reference to these documents that ample proof can be gathered from such documents in support of the petitioners'' contention that the ownership of the goods being transported continued with the Heinz India Private Limited. Learned counsel supplemented further that when all the guidelines issued by the Mandi Samiti were being followed in letter and spirit, imposition of Mandi fee amounted to misuse of the provisions of Mandi Samiti Adhiniyam. As a matter of fact, the authorities of the Mandi Samiti intended to create an uphill task for the petitioners to prove by leaps and bounds that the goods were transferred by way of stock transfer and not as a consequence of sale. Learned counsel relied upon a decision of this Court in, Civil Misc. Writ Petition No.5915 of 1999, ITC Limited v. Director, Mandi Parishad and another. It was held in this decision that the object behind the explanation annexed to Section 17(iii)(b) was to check evasion or avoidance of payment of market fee on transaction of sale or purchase of specified agricultural produce by placing burden on the person who is taking out the goods to prove that it was not to be sold in the market area. Such an explanation, as held further, was not intended to create hurdle in free flow of business activities. The following quotation was referred to appreciate the point pressed into service by the learned counsel for the petitioners:

�I have also considered the 18 guidelines provided in the impugned order of Director, Mandi Parishad. The intention appears to create an Himaliyan hurdle which no licensed trader may be able to abscond so as to rebut the presumption once raised under explanation which is neither the purpose nor the object of the explanation. He ought to have left Mandi Samiti free to judge and appreciate independently the material adduced by the trader before it, while requesting for gate pass for removing any stock of agricultural produce outside the market area Director in fact for presented evidence, which Mandi Samiti should ask for, from the trader before issuing gate pass. The object behind providing explanation was to check evasion or avoidance of payment of market fee on transaction of sale or purchase of specified agricultural produce by placing burden on the person who is taking out the goods to prove that it was not to be sold in the market area. It was not intended to create hurdle in free flow of business activities. It appears that explanation is being misused and abused for extracting Mandi fee even in the case like present one where the material was sufficient to indicate that no sale was involved in the market area such an attitude may not be in the interest of trade and business, which is the lifeline for economic upliftment of the State. The respondents are expected to take reasonable view on the basis of the material produced which in the present case does not appear to have been done. It may be mentioned here that under Section 36 of the Act the Secretary of the market area (Mandi Samiti) or any officer authorized by the State Government or by the Board in this behalf may inspect the accounts, register and other documents pertaining to purchase and sale of agricultural produce and for this purpose they can enter into the shops, go down and factories or other places where account books and registers are kept. If the petitioner or any other trader is suspected to be avoiding payment of market fee an action may be taken under Section 36 of the Act but no such effort has ever been made instead over reliance has been placed on a rebuttable presumption provided under Explanation 17(iii)(b) of the Act. In my opinion, petitioner is entitled for relief.�

In the above cited case, Mandi Samiti levied its fee on the consignment of cut tobacco which was being transferred to other factories outside the State and warehouse for manufacturing cigarettes. Obviously, the consignments were not transported and sold in the same shape and form but they were used for the purpose of making cigarettes. A prima facie presumption was there in favour of ITC Limited and the Court on the basis of material on record, particularly the gate passes and transfer of stock of cut tobacco held that there was sufficient evidence to rebut the presumption of the sale of the stock in the market area.

In the case in hand, as is evident from some of the charts reproduced in the earlier part of this judgment, reference and details of the gate passes have not been disclosed, how then transfer of such consignments could be believed to be by way of stock transfer. Moreover, the Ghee was not such a produce which required any processing further at the destination stations as was the case of transfer of cut tobacco required for manufacturing cigarettes. The petitioners before this Court manufactured Deshi Ghee, packed and sealed them in tins and transported them to their C&F Agents. As it was in the case of transfer of cut tobacco and manufacturing of cigarette, no further process of manufacturing or processing of Ghee was required, therefore, the presumption which was available to the ITC Limited may not be helpful in the case of Heinz India Private Limited.

Apart that, the question of rebuttal is a matter of belief and disbelief. It is not necessary that such a rebuttal could have been proved merely by production of invoice, gate pass and octroi receipt etc but as the real intent is, any evidence to rebut the presumption of sale in the market area would have been welcomed. Even the details of the alleged sale at the destination stations had provided a material proof in support of the rebuttal being submitted by the petitioners but except octroi receipt, payment of Mandi fee or sales tax, nothing concrete was filed. These documents are not the conclusive evidence for the simple reasn that if the petitioners would take the plea of there being no sale in the State of U.P., they would be bound by the other side of coin, namely that they will have to pay taxes in the other State. The petitioners failed to bring on record convincing evidence, such as oral or documentary orders of offer and acceptance at the destination stations, registers of sale being maintained there, bound receipt books of sales being maintained there and other relevant entries such as gate passes of the company and C&F Agents being issued at the time of the tins being taken out of the store houses, by the purchasers. However, nothing of the sort was brought forth. As said earlier, factum of rebuttal could be proved by two kinds of evidence with negative and positive; negative by way of negation that no sale had taken place at Aligarh and positive by way of proof that the sale of all the consignments in question took place at the stations of the C&F Agents. Registers and account books of neither of the two places, namely Aligarh or that of the C&F Agents could be thought proper to be adduced before the Director. Learned counsel for the petitioners refuted the contention of the opposite parties that the declaration under Rule 52A and 173C of the Central Excise Rules being mandatory, the price of the goods of consignments had to be mentioned but that was not to be treated as sale money and contended that such a declaration had to be submitted to meet the statutory requirement. Even if the argument of the learned counsel is accepted, the fact remains that the petitioners failed to rebut the presumption of there being no sale at Aligarh by bringing on record the relevant and cogent piece of evidence. However, it is not acceptable that if the name of the consignee of the consignment was mentioned as Heinz India Private Limited, by all means, it was not a sale at the place of factory location. Learned counsel for the opposite parties termed the exercise of writing consignee''s name as indicated above, as a systematic exercise and attempt for evasion of the Mandi fee. When a presumption can be drawn from several dozens of documents on record as referred to in the charts depicted above that the consignments were dispatched in pursuance of the orders having been received at Aligarh, mentioning factory''s name as consignee is of no avail. It rather proves lack of bona fides on the part of the petitioners. As a matter of fact, as per requirement of Section 7 of the Evidence Act, all facts which are in the knowledge of a person have to be disclosed by such person alone and if not, an adverse inference has to be drawn under Section 114(g) of Indian Evidence Act. The petitioners have withheld the original account books being maintained at Aligarh at the factory location and at the destination stations. It has been held by the Apex Court in Ramanbhai Naranbhai Patel and others v. State of Gujarat, JT 1999(9) SC 319 that in absence of original books maintained in due course of business, private extracts are not acceptable. The petitioners Heinz India Private Limited were expected to have filed before both the authorities below the original account books of both the places, namely, Aligarh and the destination stations where consignments were said to be transported by way of stock transfer.

Mr. Bharat Ji Agarwal, learned counsel for the petitioners contended that it was difficult to ascertain the goods or in other words to establish specific identity of Ghee and therefore, it was not at all possible to prove the sale of ascertained goods at the places of C&F Agents. The goods could become ascertainable only after they are sold and taken out of the stores of C&F Agents. Making a reference to Section 23 of the Sale of Goods Act, learned counsel for the petitioners argued that the contract of sale would be complete only after the specific goods are appropriated to the contract of sale.

Relying upon the decision in, P.S.N.S. Ambalavana Chettiar and Co. Limited and another v. Express Newspaper Limited Bombay, AIR 1968 SC 741, learned counsel for the petitioners submitted that it is a condition precedent to the passing of the property under a contract of sale that the goods are ascertained. Unless and until a specific portion of the total stock is identified and appropriated to the contract, no property would be deemed to have passed to the buyer. In fact, the legal position as asserted may be accurate but it is for the petitioners to evolve such a full proof procedure which can be correctly practiced and implemented that the goods are said to unascertained at the location of the factory and not only this but also that they are ascertained at the C&F destinations. It is the responsibility of the petitioner company to prove connectivity of the goods of consignments with the goods sold. They must find out ways and means as to how a particular consignment dispatched on a particular date was sold at the destination station. The company cannot be permitted to take advantage of the uncertainty and derive gain. In view of the discussions held above, particularly with reference to the invoice challans containing particulars regarding receipt of the price in advance, it may reasonably be held that the goods were ascertained at the time of dispatch from Aligarh and if at all there was a confusion regarding ascertainment of goods, it was intentionally created by the petitioners with an ulterior motive of evading the Mandi fee. Some of the loose forms have heading under nomenclature �Aligarh Ghee Marketting� but others do not have this kind of specification. At the top of the invoicecumchallans, addresses of the Headquarter and destination locations are also indicative of confusions. Obviously thus, it appears to be extremely difficult to rely upon these loose papers and as held above, taking all the materials on record, there appears to be a positive conclusion that the situs of sale was at Aligarh and not at the depots located outside the State. The petitioners'' contention that preparation of invoices in book form is not possible as such challans were prepared by computer is not acceptable as still registers could have been maintained and if that was not possible as argued, the entire computerized record must have been produced before the Director in support of the contention that the sale was not made at Aligarh. Even the stock registers of the C&F Agents don''t seem to be genuine as daily position of the stock was lacking.

It may be observed that the extended definition of sale is applicable for the purpose of any kind of tax including the fee. By virtue of its majority view in 20th Century Finance Corpn. Ltd. and another v. State of Maharashtra, 2000 (6) SCC 12, the Supreme Court held that the situs of sale is relevant for the purposes of payment all kinds of taxes. The same analogy would be attracted in the case for payment of Mandi fee. The Hon''ble Court while dealing with the phrase, �deemed sale� under Article 366(29A) observed in para 27 of the judgment that if the goods are available irrespective of the fact where the goods are located and a written contract is entered into between the parties, the taxable event on such a deemed sale would be the execution of the contract for the transfer of right to use goods. But in case of an oral or implied transfer of the right to use goods it may be effected by the delivery of the goods.

In the case in hand, it is proved from the material on record that the manufacturing unit at Manjoorgarhi, Aligarh supervised and monitored the entire sale even outside the State through C&F Agents and therefore, obviously, the principle of deemed sale at Aligarh would be attracted irrespective of the fact as to whether the petitioner intended to transport the consignments to their C&F Agents for factual sale at the destination stations or in other states. Article 366(29A) postulates in clear and unambiguous terms that tax on the sale or purchase of goods includes a tax on such transfer, delivery or supply of any goods as it will be a deemed sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. The same analogy of deemed sale would be attracted to the cases in hand. Therefore, the contention that the provisions of the aforesaid Article will have no relevant bearing has no merit, hence rejected.

Categorically, the discussions, held above, may be summarized as below:

The documents relied upon by the petitioners are not enough to prove the petitioners'' case of sales being conducted outside the market area.

Relevant documentary evidence before dispatch of consignments from Aligarh has been withheld. Such necessary proof would have depicted a clear picture of the consignmentswhether a sale or transfer of stock.

It is not established as to where the orders for purchase of Ghee were receivedwhether at Aligarh or at the destination station. However, in certain cases, sale was conducted from Aligarh.

Full proof evidence of the payments to rebut the presumption of sale in the market area not adduced.

Who conducted the sales at destination stations and in what manner, not revealed.

Where the accounts were maintained, is not disclosed.

7.Invoices filed before the court were not issued and maintained in due course of business. Their genuineness was not free from doubt.

The provisions of Clause 13 of the agreement (writ petition No.2323 (M/S) of 1997 with C&F Agent postulate that company is competent to sell goods directly to the purchasers without dealing through the C&F Agent. It shows redundancy of the Agency.

Even some C&F Agents purchased the goods, against the terms of the agreement.

C&F Agents have no independent right to conduct sale. The company or its authorized officers would finalise the deal but there is no evidence of any authorized officer being there at the destination stations. The only resultant inference is that the factory staff at Aligarh struck all the sale transactions.

The C&F Agents did not comply with the terms of Clause 23 of the agreement which required them to obtain receipts of delivery from the purchasers.

No account of the daily or periodical stock of goods with its extent and details of replenishment at the C&F depots furnished.

Details of the financial accounts of the destination stations or that of the factory location, with balance sheet etc. not furnished. Thus, the best evidence required for requisite rebuttal was suppressed.

The long and short of the discussions made above is that the petitioners have miserably failed to rebut the presumption of sale in the market area at Aligarh and therefore, the Director and the assessing authorities rightly levied the Mandi fee on the consignments of Ghee transported by Glaxo and its successor Heinz India Private Limited to other States. The judgments passed by the Revisional Authority are not perverse so as to be interfered with by this Court; rather all the questioned judgments are well discussed and reasoned. In the result, the petitioners are not entitled to claim any relief.

Accordingly, all the petitions being devoid of merit are hereby dismissed with costs.

(Petitions dismissed)