ORDER (Oral) 1. The petitioner-company is engaged in business of manufacture of spirit. and is having its industrial unit at Village Sejwaya in District Dhar.195 2. Spirit manufactured by the petitioner was earlier produced from molasses, which is bye-produce of sugar mills, and it is the basic raw material for the petitioner industrial unit. According to the petitioner-company, the State Government of Madhya Pradesh is a deficit State for the purpose of production of molasses, and therefore, the said raw material is procured by the petitioner-company from the other States of the country. 3. According to the petitioner-company, since it was facing lot of difficulties in procuring molasses from the other States, therefore, it thought of an alternative source of raw material, and made an application to the Excise Commissioner of the State Government to manufacture spirit from grains, by way of an alternative arrangement. The aforesaid permission was granted to the petitioner-company by the Excise Commissioner. After getting the said permission, it started the purchase of damaged grains of inferior quality from the neighbouring States. 4. According to the petitioner-company, since grains purchased fell into the category of essential commodity, therefore, it became necessary to obtain a licence for storing the grains from the Collector (Food). For the issuance of the aforesaid licence, the petitioner-company was first required by the said authority to obtain requisite licence to purchase/ process the grains from Krishi Upaj Mandi Samiti, Dhar, respondent No.1, and on an application made by it, the requisite permission to purchase/ process the grains was issued by respondent No.3, Secretary of the Mandi Samiti. 5. According to the averments in the petition, thereafter, the petitioner-company commenced purchasing grains from outside market area of Dhar, and said purchased grain was consumed by the industrial unit of the petitioner-company for manufacture of spirit. According to it, grain, which was purchased and bought from outside the State of Madhya Pradesh, was never sold or resold to anyone, but was wholly utilized for manufacture of spirit only. Thus, according to the petitioner-company, there was no sale and purchase of any agricultural produce by the petitioner-company from or within the market area of the respondents. 6. According to it, grain, which was purchased and bought from outside the State of Madhya Pradesh, was never sold or resold to anyone, but was wholly utilized for manufacture of spirit only. Thus, according to the petitioner-company, there was no sale and purchase of any agricultural produce by the petitioner-company from or within the market area of the respondents. 6. Still further, according to the petitioner-company, since grain purchased by the petitioner-company, of inferior quality, was to be used for manufcturing process of spirit, the same was broken into pieces and certain enzmes were used for a faster chemical reaction. This treated grain was stored for few days, and thereafter mixed with hot water, so that proper culture was prepared for utilization of the same for manufacture of the spirit. According to the petitioner-company, manufactured product of the petitioner-c&mpany i.e. the spirit, was totally a new and different product distinct from the grain used by it, and therefore, since the agricultural produce i.e. grains, which had been purchased and brought within the State by the petitioner-company from the neighbouring States, was neither 2009(III) processed or ever re-sold by the petitioner-company, but was actually used for manufacture of spirit, and therefore, there was no market fee leviable, on the aforesaid transaction, by the petitioner-company. 7. However, Secretary, Krishi Upaj Mandi Samiti, respondent No.3, issued various communications to the petitioner-company for the year 2001-02, requiring the petitioner-company to submit its accounts etc. and ultimately, through an order dated May 21, 2004, directed the petitioner-company to deposit the market fee of Rs.5,49,249/- and also a penalty amount of Rs.27,46,245/-. A copy of the aforesaid assessment order has been appended as Annexure P-6 with the petition. 8. The petitioner-company felt aggrieved against the assessment order, and filed an appeal before the Chairman, Krishi Upaj Mandi Samiti, Dhar, respondent No.2. The appeal preferred by the petitioner-company has been dismissed by the appellate authority, vide order dated August 6, 2004. A copy of the said order of appellate authority has been appended as Annexure P-8 with the petition. 9. It is in these circumstances, that the petitioner-company has approached this Court challenging orders Annexures P-6 and P-8. 10. The appeal preferred by the petitioner-company has been dismissed by the appellate authority, vide order dated August 6, 2004. A copy of the said order of appellate authority has been appended as Annexure P-8 with the petition. 9. It is in these circumstances, that the petitioner-company has approached this Court challenging orders Annexures P-6 and P-8. 10. A challenge has primarily been raised by the petitioner-company on the ground that since the agricultural produce i.e. inferior quality of grains, had been purchased by the petitioner-company from outside the State of Madhya Pradesh, and thereafter, the same had been used and consumed by the petitioner-company for the purpose of manufacture, and the grains, as such, had never been sold by it, therefore the aforesaid transaction by the petitioner-company was not covered under the provisions of the Act and did not attract any levy of market fee. 11. The claim made by the petitioner-company has been contested by the respondents. In the reply filed by them, levy of market fee and the imposition of penalty on the petitioner-company by the appellate authority, has been defended. According to the respondents, since the petitioner-company purchased the agricultural produce for process, and in the aforesaid process, washed the agricultural produce and stored the same, and it was only later on, that the same produce was used for manufacture, therefore, the said action of the petitioner-company made it liable for levy of the market fee. 12. I have heard Shri S.c. Bagadia, learned senior counsel for the petitioner-company and Shri G.K. Mandhaniya, learned counsel for the respondents, and with their assistance, have gone through the record of the case. 13. At the commencement of the arguments, Shri S.C. Bagadia, learned senior counsel for the petitioner-company has relied upon a judgment of the apex Court in the case of Orient Paper and Industries Limited v. The State of M.P. and others [ 2008(1) JLJ 183 = 2006(12) SCALE 98 ]. 197Following observations of the apex Court are substantially relied upon by the learned senior counsel for the petitioner-company: "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. 197Following observations of the apex Court are substantially relied upon by the learned senior counsel for the petitioner-company: "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 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 3l4]). 20. These aspects were highlighted in Kores India Ltd. Chennai v.Commissioner of Central Excise, Chennai [ (2005) 1 SCC 385 ]. 21. The stand of learned counsel for the respondents that the levy is under two circumstances i.e. (i) on the buying and selling of notified agricultural produce when brought within the State into the market area; (ii) on the notified agriculture produce when brought from within the State or from outside the State into the market areas. The case at hand, it is submitted, relates to the second category. 22. Had it been only that the goods notified are brought into the market area to be covered by the second category then the stand of the respondents would have been acceptable. But the further condition it must be "used for processing" shows that the emphasis is on end user. In this case that makes the difference. Therefore, the appellant is correct in its stand that levy on the notified agriculture produce being brought within market area where end-user is manufacture does not attract levy of market fee." 14. After taking into consideration, the observations of the apex Court in the case of Orient Paper (supra), I find that the law laid down by the apex Court in the case squarely covers the controversy in the present case also. After taking into consideration, the observations of the apex Court in the case of Orient Paper (supra), I find that the law laid down by the apex Court in the case squarely covers the controversy in the present case also. It is also apparent that the petitioner-company is only using the agricultural produce, having been brought within the market area, for the purpose of manufacture of spirit, and therefore, no market fee is leviable thereupon. 15. Consequently, the present petition is allowed, and the orders Annexures P-6 and P-8 are hereby quashed.