JUDGMENT : SAMAPTI CHATTERJEE, J. 1. The issues to be determined in the present writ petition are :- (i) Whether fee can be levied for the goods manufactured by the petitioners which is neither agricultural product nor is sold and marketed through the market point specified under the West Bengal "agricultural produce" Marketing (Regulation) Act, 1972 (hereinafter referred to as said Act) ? (ii) Whether notices dated 9th August, 2006 and 5th April, 2007 are dehors the provision of the West Bengal "agricultural produce" Marketing (Regulation ) Act and are thereby null and void ? (iii) Whether both impugned notices, imposing market fee on Plywood and Veneer are beyond the scope of the said Act of 1972 ? (iv) Whether two products manufactured by the petitioners are products of agriculture, horticulture, sericulture, pisciculture, forestry or animal husbandry or any other produces specified to the schedule and therefore levy of fee on Plywood and Veneer is justified or not ? Fact of The Case 2. The case of the petitioner in a nutshell is as follows :- The petitioner no.1 is a company incorporated under Companies Act, 1956. The petitioner no.2 is a shareholder and director of the petitioner no.1. The petitioner no.1 carries on business of manufacturing Plywood and Veneer in and from its factory situated at Diamond Harbour Road, Bishnupur, South 24-Parganas. For purpose of manufacturing Plywood as well as Veneer petitioner imports timber logs from Malaysia and Mayanmar. Those timber logs are raw materials which are used for manufacturing Plywood and Veneer. It is submitted that petitioner does not procure any raw material locally for the purpose of manufacturing activities and the entire raw materials are imported. It is revealed that for the purpose of manufacturing Plywood and Veneer those timber logs are processed at the factory of the petitioners and out of the said timber logs through the manufacturing process Veneer is obtained. Thereafter, the Veneer is further processed in a mechanical manner at the factory premises of the petitioners for the purpose of manufacturing Plywood. The said Plywood and Veneer which are manufactured at the factory of the petitioners thus are obtained purely by way of mechanical process and are neither "agricultural produce" nor fall in the category of any of the scheduled items under the West Bengal "agricultural produce" Marketing (Regulation) Act, 1972. The said Plywood and Veneer which are manufactured at the factory of the petitioners thus are obtained purely by way of mechanical process and are neither "agricultural produce" nor fall in the category of any of the scheduled items under the West Bengal "agricultural produce" Marketing (Regulation) Act, 1972. Those Plywood and Veneer are excisable item, and the petitioners are regularly paying excise duties in accordance with law. The petitioners are carrying on business from various branches all over India. After manufacturing those manufactured materials are transferred by way of stock transfer to various branches of the petitioners all over India for purpose of selling the same through its dealers. Therefore, it is evident that the goods manufactured by the petitioners are neither "agricultural produce" nor are sold and marketed through the market points specified under the said Act of 1972. Sometime in the year 2004, an attempt was made by the respondent to impose market fee on the Plywood and Veneer manufactured by the petitioners. Against that the petitioners made representation before the concerned authority. On the basis of the representation the West Bengal Government on 20th January, 2005 exempted market fee on Plywood and Veneer vide a Notification no.169- M.W. & C/9M-49/2000. Thereafter again on the basis of the representation dated 11th February, 2005 the West Bengal Government exempted the market fees on Plywood and Veneer vide a Notification no.391-M.W. & C/9M-49/2000. On 9th August, 2006 Plywood was included in the schedule to the said Act of 1972. The items of Plywood was included under category XII (Miscellaneous). Against such inclusion on 15th July, 2006 the petitioners made a detailed representation wherein the petitioners refused to pay market fee on Plywood. All on a sudden on 12/14th April, 2007 four trucks being nos. WB23-A-5581, AP 11-U21441, WB 23-A7931, WB 39-7716 carrying Plywood and Veneer from the factory of the petitioners situated at Diamond Harbour Road to South 24 Parganas Jengira Bazar RMC were stopped by the men and agents of the respondent no.4. Against that on 17th April, 2007 the petitioner through his learned Advocate made a representation for releasing all those trucks. Assailing such action on the part of the respondent authority the petitioner filed the present writ for cancellation and/or setting aside the impugned notifications dated 9th August, 2006 and 5th April, 2007 issued by the respondent no.1. Against that on 17th April, 2007 the petitioner through his learned Advocate made a representation for releasing all those trucks. Assailing such action on the part of the respondent authority the petitioner filed the present writ for cancellation and/or setting aside the impugned notifications dated 9th August, 2006 and 5th April, 2007 issued by the respondent no.1. In the said representation petitioners also prayed for refund the sum of Rs. 74580/- illegally realised from the petitioners towards market fee under the said Act of 1972 and also for declaration that Section 2 (1) of the West Bengal "agricultural produce" Marketing (Regulation) Act, 1972 is ultravires the Constitution and bad in law. Submissions of The Learned Advocates 3. Mr. Saptansu Basu, learned senior counsel appearing for the petitioners vehemently argued that the said two impugned notifications imposing market fee on Plywood and Veneer is beyond the scope of the said Act of 1972. 4. Mr. Basu further vehemently urged that under the said Act the State Government has to declare by notification any area as market area. Therefore, it is only within this notified market area, purchase and sale of such "agricultural produce" shall be regulated. But the petitioners are carrying on business of manufacturing Plywood from its factory at Diamond Harbour Road, Bishnupur, Kanchowki, South 24-Parganas. The State Government has not published any notification declaring any area as a market area by way of notification under Section 3 of the said Act of 1972 within which the petitioners are carrying on their business of manufacturing Plywood and Veneer. 5. Mr. Basu further contended that without setting up a market area or a principal market yard or sub-market area under Section 3 (4) of the said Act of 1972, question of realising market fee from the petitioners cannot and does not arise. 6. Mr. Basu further emphasized that imposition of market fee without forming any market area is without jurisdiction and therefore bad in law. 7. Mr. Basu further drew my attention to the definition of the "agricultural produce" which is quoted below :- "2(a) "agricultural produce" means any produce of agriculture, horticulture, pisciculture, (sericulture), forestry or animal husbandry (and includes any related product) specified in the Schedule to this Act. Provided that the State Government may, by notification include any item of agricultural produce in the Schedule or exclude any such item from it. Provided that the State Government may, by notification include any item of agricultural produce in the Schedule or exclude any such item from it. He also submitted that the definition of 'agriculturist' is defined under Section 2 (1) (b) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972, which is quoted below :- "(b) "agriculturist" means a person who ordinarily by himself or by his tenant or hired labourer or otherwise, is engaged in the production and growth of agricultural produce, but does not include a trader or broker in agricultural produce notwithstanding that such trader or broker is also engaged in the production or growth of agricultural produce." Mr. Basu further placed Section 17 of the said Act of 1972 which is quoted below :- "17. Levy of fee by market committee.-(1) Notwithstanding anything contained in the Bengal Finance (Sales Tax) Act, 1941 or any other law relating to taxation of agricultural produce in force, the market committee shall levy fees on any agricultural produce sold in the market area, at a rate which shall not be more than two rupees per one hundred rupees of the amount for which the agricultural produce is sold, whether for cash or for deferred payment or for other valuable consideration, irrespective of the fact that the buyer of the produce is the Central Government or the State Government or any agent of either of them or a corporation constituted under any law for the time being in force. Provided that no fee shall be levied in the same market area, more than once, in relation to the same agricultural produce irrespective of the number of transactions. Explanation.I-For the purpose of this sub-section all agricultural produce taken out, or proposed to be taken out, of a market area shall unless the contrary is proved, be presumed to have been sold within such area. Explanation.II-In the determination of the amount of the fees payable (under this sub-section), any fraction of ten paise less than five paise shall be discharged and any fraction of ten paise equal to or exceeding five paise shall be regarded as ten paise. Explanation. III- For the purpose of this sub-section all agricultural produce stored in the cold storage within the market area shall, unless the contrary is proved, be presumed to have been stored for the purpose of sale. Explanation. III- For the purpose of this sub-section all agricultural produce stored in the cold storage within the market area shall, unless the contrary is proved, be presumed to have been stored for the purpose of sale. (2) The fees referred to in sub-section (1) shall be paid by the purchaser of the agricultural produce concerned in the following manner, namely : (i) when a licensed trader is the buyer of any agricultural produce, he shall pay the fees to the market committee in the prescribed manner within a week from the day of the transaction. (ii) When a licensed trader is the seller of any agricultural produce and the buyer is not licensed, the trader shall recover the fees from the buyer and deposit the same in the prescribed manner with the market committee within a week from the day of the transaction. (iii) The market committee may authorize its officers or staff or (any other person) to realize the fees directly from the buyer." 8. On the point of manufacturing Mr. Basu relied on a Hon'ble Supreme Court decision reported in 2001 (7) SCC Page-525 (Aspinwall & Co. Ltd v. Commissioner of Income Tax, Ernakulam) Paragraphs-13, 14, 15 & 16. Mr. Basu also relied on a Hon'ble Supreme Court decision reported in 2000 (9) SCC Page-68 (Britannia Industries Ltd v. T.N. Pollution Control Board And Another) Paragraph-4. On the point of original produce processed through different tiers Mr. Basu relied on a Hon'ble Supreme Court decision reported in 2006 (12) SCC Page-468 (Orient Paper & Industries Ltd v. State of M.P. And Others) Paragraphs-11, 16 and 22. 9. Mr. Basu further contended that no levy is imposed on the import of raw wood. On that point Mr. Basu relied on two unreported decisions of this Hon'ble Court delivered on September 4, 2013 in W.P. No. 17867 (W) of 2013 (Shree Renuka Sugars Limited And Another v. The State of West Bengal And Others) and on May 6, 2014 in W.P. No.9466 (W) of 2007 (Aurangadabad Biri Merchants' Association & Ors v. The State of West Bengal & Ors). 10. Per contra, Mr. Prithu Dudhoria, learned counsel appearing for the State strongly argued that the petitioners carried on business of processing, storage and sale of Plywood and Veneer at Diamond Harbour Road, Bishnupur, South 24-Parganas which is located within the notified market area of the respective market committee. 11. 10. Per contra, Mr. Prithu Dudhoria, learned counsel appearing for the State strongly argued that the petitioners carried on business of processing, storage and sale of Plywood and Veneer at Diamond Harbour Road, Bishnupur, South 24-Parganas which is located within the notified market area of the respective market committee. 11. Mr. Dudhoria further contended that the said Act of 1972 never suggested that the market fee cannot be levied on transaction of agricultural produce within the notified market area though the said agricultural produce is not produced in a particular market area. Therefore, the South 24-Pgs regulated market committee is empowered to collect levy on sale transaction of Plywood and Veneer, processed from imported timber within the notified market area. It is further submitted by him that since the petitioner company being a licensed trader is under obligation to submit Return of its turnover for payment of the market fees as provided under Section 17A of the said Act of 1972 but the petitioner only deposited Rs. 20,000/- as market fees for sale of the Plywood and Veneer. 12. Mr. Dudhoria further vehemently urged that the petitioner company being a licensed trader under notified market area is liable to pay the market fees on Plywood and Veneer being processed by the petitioner company. 13. Mr. Dudhoria further strongly submitted that there is no illegality or ambiguity to collect the levy of fees in aid of Explanation-I to Section 17 (1) of the said Act of 1972 while Plywood and Veneer of the petitioner company are being taken out of the notified market area. Mr. Dudhoria further vehemently submitted that the officers of the South 24-Parganas Regulated Market Committee in exercise of power under Section 17B and 17 C of the said Act of 1972 have every right to stop the offending vehicle loaded with Plywood of the petitioner company for inspection of its records. He further contended that the petitioner company failed to produce any document to establish that those Plywood were not sold within the notified market area. 14. Mr. He further contended that the petitioner company failed to produce any document to establish that those Plywood were not sold within the notified market area. 14. Mr. Dudhoria further submitted that declaration of a principal market yard and sub-market yard would not be a pre-condition for obtaining a licence as provided under Section 13 (1) of the said Act of 1972 for processing and storage of the agricultural produce within the notified market and for collection of levy of fees on sale transaction of agricultural produce within the notified market area under Section 17 (1) read with Explanation-I of the said Act of 1972. He further strongly argued that there is no illegality or infirmity in imposing market fee on the products of the petitioner as envisaged under the said Act of 1972. 15. Mr. Dudhoria further contended that Mr. Basu mistook and misread the definition of the "Agricultural Produce" thereby explaining that "Agricultural Produce" means any produce of agriculture, horticulture, pisciculture, sericulture, forestry or animal husbandry produced and grown by an agriculturist. 16. In conclusion Mr. Dudhoria submitted that there is no infirmity, illegality or ambiguity in the impugned notices which deserve interference of this Hon'ble Court. He submitted that the writ petition should be dismissed. Decision with Reasons 17. Considering the submissions advanced by the learned counsels appearing for the respective parties and after perusing the records I find that neither Plywood nor Veneer is an agricultural produce grown or produced by an agriculturist. Therefore, no market fee could be levied under said Act of 1972 on Plywood and Veneer. 18. I also cannot ignore the fact that the timber used for manufacturing Plywood and Veneer is not produced in India. The petitioner company imports those timber from outside India. It is a fact that under the said Act of 1972 the State Government has to declare by notification any area as market area. That being the scenario it is only within that notified market area, purchase and sale of such agricultural produce shall be regulated. Admittedly in the case in hand the State Government has not published any notification declaring any area as a market are by way of notification under Section 3 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 within which petitioner company carried on business of manufacturing Plywood and Veneer. Admittedly in the case in hand the State Government has not published any notification declaring any area as a market are by way of notification under Section 3 of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 within which petitioner company carried on business of manufacturing Plywood and Veneer. Therefore, in my opinion imposition of market fees without forming any market area is without jurisdiction. Section 3 of the said Act of 1972 is quoted below :- "3. Declaration of market area-(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, the State Government may, by notification, declare any area as a market-area within which purchase and sale of such agricultural produce as may be specified in the notification, shall be regulated. (2) On the publication of such notification under sub-section (1), or with effect from such later date as may be specified therein, no local authority or other person shall, notwithstanding anything to the contrary contained in any law for the time being in force, within the market area, or within such distance thereof as may be declared by notification in this behalf, set up, establish or continue or allow to be set up, established or continued any place for the purchase or sale of such agricultural produce as has been specified in the notification under sub-section (1), except in accordance with the provisions of this Act and the rules made thereunder. (3) The State Government may, by notification, include or exclude any area in or from a market area, as the case may be, or include or exclude any agricultural produce in or from the list of agricultural produce. (4) The State Government may, by notification, declare that a market area declared as such under sub-section (1) shall cease to be a market area with effect from such date as may be specified in the notification. (4) The State Government may, by notification, declare that a market area declared as such under sub-section (1) shall cease to be a market area with effect from such date as may be specified in the notification. When a market area thus ceases to be a market area any market established, declared or notified in such market area shall cease to be a market and the market committee constituted for the said market area shall stand dissolved with the following consequences :- (a) the members of the market committee shall be deemed to have vacated their offices, and (b) the unexpended balance of the Market Committee Fund and other properties and liabilities shall vest in the State Government free from all encumbrances and in such manner as may be prescribed : Provided that the liability of the State Government shall be limited to the extent of the unexpended balance of the market Committee Fund and the value of the property vesting in the State Government as may be determined in the manner prescribed." 19. A bare reading of Clause (A) of Section 2 of the Act of 1972 "agricultural produce" is defined to mean any produce of agriculture, horticulture, pisciculture, sericulture, forestry or animal husbandry specified in the schedule of this Act. In Clause (B) of Section 2 of the said Act "agriculturist" means a person who ordinarily either by himself or by his labourers or otherwise perform the production and growth of agricultural produce but does not include trader or broker in agricultural produce or trader or broker engaged in the production or growth of agricultural produce. 20. I also find that under Section 3 of the said Act of 1972 the State Government has got the power to declare by notification any area as a market area within which purchase and sale of such agricultural produce, as being specified in the notification shall be regulated. The State Government is also empowered to alter the market area and modify the list of agricultural produce. The Act prescribes under Section 4 for declaration of principal market yard and sub-market yeard or years for a market area. Section 12 of the Act provides the duties and functions of the market committee. Section 12 A provides provisions for market committee. Section 13 empowered the Government to issue or renew licences under the said Act of 1972. The Act prescribes under Section 4 for declaration of principal market yard and sub-market yeard or years for a market area. Section 12 of the Act provides the duties and functions of the market committee. Section 12 A provides provisions for market committee. Section 13 empowered the Government to issue or renew licences under the said Act of 1972. Section 13 (1) of the said Act of 1972 is quoted below :- "13.Licence-(1) After six months from the declaration of any area as a market area, no person shall, within the market area, carry on business or act as a trader, commission agent, broker, weighman, measurer, warehouseman or surveyor, or sell or purchase agricultural produce or engage in processing or preservation of agricultural produce or set up establish or continue a place for storage sale or purchase of any agricultural produce, except, under and in accordance with the prescribed terms and conditions of a licence issued in this behalf by the market committee notwithstanding anything contained in any other law for the time being in force and irrespective of any licence required and issued under any law for the time being in force : Provided that nothing in this sub-section shall apply to any sale by a producer of his own produce, to retail sale and to purchase by an individual for his own consumption. (2) Any person desiring to obtain a licence under sub-section (1) may make an application to the market committee in such form and on payment of such fee not exceeding rupees two hundred, as may be prescribed. (3) On receipt of an application under sub-section (2), the market committee may issue the licence in such form, subject to such terms and conditions and for such period as may be prescribed. (4) Any licence issued under sub-section (3) may be renewed for such period as may be prescribed by the market committee from time to time on application made in this behalf by licensee and on payment of a fee equal to the fee payable for the issue of the licence in the first instance on payment of such fee not exceeding rupees two hundred as the market committee may fix. (5) The market committee may refuse to issue or renew any, licence under this section in favour of any person if it is satisfied that such person has previously been convicted by a court of law for an offence punishable under this Act. (6) The market committee may, after giving the holder of a licence under this section an opportunity of showing cause in such manner as may be prescribed, cancel his licence or suspend it for such period as it thinks fit for any breach of the terms and conditions of the licence or for any contravention of the provisions of this Act. (6A) When a licence is cancelled or suspended under sub-section (6), the licensee may appeal, in such manner as may be prescribed, to an officer of the State Government not below the rank of a Superintendent of Agricultural Marketing having jurisdiction over the area, as may be specified by the State Government by an order issued in this behalf, and the decision of such officer shall be final. (7) Where a licence is cancelled or suspended under sub-section (6) the licensee shall not be entitled to any compensation therefor, nor shall he be entitled to the refund of any fee paid by him for the licence. (8) When a licence is lost, destroyed, torn or defaced, the market committee shall, on application made in this behalf by the licensee, and on payment of such fee as may be prescribed, issue a duplicate licence in the manner prescribed." The key object of this Act is to provide for the regulation of marketing of the agricultural produce in West Bengal. It is not disputed that the timber is agricultural produce but after processing the said timber in different tier when the Plywood and Veneer are manufactured, those Plywood and Veneer cannot be treated as agricultural produce. Therefore, manufacturing process includes processing of raw materials which is integral part of the manufacturing the end product. The definition of agricultural produce does not include "manufacture" or "processing of manufacture". Therefore, neither "manufacture" nor "processing for manufacture" do fall under the preview of "agricultural produce". Therefore, Plywood and Veneer which are the end product cannot be equated with the agricultural Produce under Section 13 of the said Act of 1972. Therefore, necessity of payment of fees under Section 17 of the said Act of 1972 would not arise. 21. Therefore, neither "manufacture" nor "processing for manufacture" do fall under the preview of "agricultural produce". Therefore, Plywood and Veneer which are the end product cannot be equated with the agricultural Produce under Section 13 of the said Act of 1972. Therefore, necessity of payment of fees under Section 17 of the said Act of 1972 would not arise. 21. I find that the imported timber which is the agriculture produce have been used by the petitioner company for manufacturing Plywood and Veneer after undergoing various process for making such Plywood and Veneer from imported timber. It is also evident that neither Plywood nor Veneer are agricultural produce as various raw materials and chemicals are used for preparation of Veneer and Plywood which are in fact the end product through agricultural and scientific process. Further I find for preparing Plywood phenol formaldehyde, Paraformaldehyde, costic soda etc are used in a complex manufacturing process to obtain the end product i.e. Plywood and Veneer. 22. I also find that Plywood is a sheet material manufactured from thin layers or plies of wood Veneer that are glued together. It is an engineered composite material completely different from agricultural process as raw material like wood. I also find that adjacent layers are assembled having their grain rotated by 90 degrees to one another. This alternation of the grain is called cross-graining and brings a change of the following properties when compared to normal wood Further it reduces the tendency of wood to split when nailed at the edges; Further it reduces expansion and shrinkage, providing improved dimensional stability. Further it makes the strength of the panel consistent across all directions. 23. It is not out of place to mention that there is usually an odd number of plies, so that the sheet is balanced which reduces warping to which wood is not stable. Because plywood is bonded with grains running against one another and with an odd number of composite parts, it is very hard to bend it perpendicular to the grain direction of the surface ply when compared to normal wood. In plywood manufacture, the choice of adhesive will determine not only the physical properties such as strength, but also the product's ability to withstand the degrading effects of any environment to which it might be subjected in service. 24. In plywood manufacture, the choice of adhesive will determine not only the physical properties such as strength, but also the product's ability to withstand the degrading effects of any environment to which it might be subjected in service. 24. I also find that the notified agricultural produce i.e. imported timber inside the market area is not used for the purpose of processing and the end user is the manufacturer who are producing Plywood and Veneer. Therefore, the Plywood and Veneer which are the manufacturing product cannot be described as agricultural produce. That being the scenario the imposition of market fee on the Plywood and Veneer treating the same as agricultural produce is not sustainable. But here the end product is the Plywood and Veneer after various chemical and manufacturing process. Had it been the case of the respondent that the petitioner company has brought agricultural goods into the notified area and without using the same for processing and/or manufacturing the Plywood and Veneer from the agricultural produce i.e. imported timber then the respondent authority may have some case. But unfortunately in the present case the petitioner brought the exported timber into the notified market area and thereafter using those agricultural produce for preparing/manufacturing Plywood and Veneer after going through the several process. Then the said Plywood and Veneer cannot be treated as agricultural produce. 25. It is also not out of place to mention that in "Orient Paper" case (supra) similar provision contended in the M.P. Krishi Upaj Mandi Adhiniyam, 1972 was applied and the market committee imposed market fee but the Hon'ble Apex Court rejected the plea of the market committee thereby holding that notified agricultural produce brought within the market are where the end user is the manufacturer do not attract levy of market fee. Therefore, in view of the above discussions and after perusing the decisions cited by Mr. Basu in Britinnia Industries case (supra), Aspinwall & Co Ltd case (supra) & Orient Paper case (supra) I have no hesitation to hold that the impugned notifications dated 9th August, 2006 and 5th April, 2007 being Annexure P2 and P4 to the writ application by which Plywood and Veneer have been included in the schedule containing the agricultural produce as specified under West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 cannot be sustained in the eye of law. Therefore, the import of raw timber by the petitioner company for manufacturing of Plywood and Veneer through different process would not attract the levy of market fees under the said Act of 1972. In the result, it is declared that said Act of 1972 would not be applicable to the import of raw timber by the petitioner company for its manufacturing of Plywood and Veneer through different process. Thus, no levy of market fees under the said Act of 1972 would be attracted either for the import of the raw timber of the petitioner company or the sale of such manufactured product i.e. Plywood and Veneer from the imported raw timber. 26. Therefore, the impugned notifications dated 9th August, 2006 issued by the Secretary, Government of West Bengal, Department of Agriculture as well as notification dated 5th April, 2007 issued by the Secretary to the Government of West Bengal, Department of Agriculture are hereby quashed and set aside. 27. Consequently respondents and each of them more particularly the South 24- Parganas regulated market committee are hereby restrained from levying or demanding any market fees from the petitioner no.1 in respect of raw timber imported by the petitioner company or the sale of manufactured product i.e. Plywood and Veneer by the petitioner company by utilizing such imported timber. 28. Accordingly the respondents are directed to refund a sum of Rs. 74580/- to the petitioners which was realised towards market fee from the petitioner under the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 forthwith. 29. Resultantly, this writ petition stands allowed with the declaration and directions as above. 30. Urgent photostat certified copy of this order, if applied for, be supplied to the parties after fulfilling all the formalities. Writ petition allowed.