JUDGMENT : A.S. Bopanna, J. Heard Mr. S. Saikia, learned counsel for the appellants. Also heard Mr. O.P. Bhati, learned counsel for the Respondent. 2. The appellants-Assam State Agriculture Marketing Board, is before this court assailing the order dated 31.7.2018 passed by the learned Single Judge in WP(C) No. 4469/2015. The brief facts which led to the said order passed by the learned Single Judge is that the respondent herein was before the learned Single Judge in the said writ petition contending that the appellants herein are not justified in levying cess on mustard oil imported from outside the State of Assam and in that light the respondent herein had sought for refund of the amount of Rs. 4,22,202 which had been collected by the respondent as cess during the period 4.7.2014 to 10.3.2015. The learned Single Judge having, thus, taken into consideration the rival contentions as also the provisions of law was of the opinion that the appellants herein were not justified in levying cess and has, accordingly, directed for refund of the amount. 3. The learned counsel for the appellant while assailing the order passed by the learned Single Judge has made a detail reference to the provision as contained in section 2(1)(i) of Assam Agricultural Produce Market Act, 1972, for short, the Act, which provides the definition of “Agricultural Produce”, so as to contend that it would mean and include the processed form of agricultural produce also. In that light, a reference made to the Schedule to point out that mustard seed being included in the Schedule at (IV) thereof, the same will also include mustard oil. Reference is also made to the definition of ‘Trade’ and ‘Processing’ as contained in the Act. Hence, the contention is that “Agricultural Produce” would mean and include the processed or non-processed Agriculture, Horticulture, Animal Husbandary, Pisciculture, Sericulture and Forest produce as specified in the Schedule and, therefore, levy of cess is justified. Reference is also made to the definition of ‘Trade’ and ‘Processing’ as contained in the Act. Hence, the contention is that “Agricultural Produce” would mean and include the processed or non-processed Agriculture, Horticulture, Animal Husbandary, Pisciculture, Sericulture and Forest produce as specified in the Schedule and, therefore, levy of cess is justified. The contention that mustard oil also should be considered as an agricultural produce as a processed form of mustard seed is sought to be justified by relying upon the decisions of the Supreme Court in the case of Kishan Lal v. State of Rajasthan, 1990 Supp SCC 742, the case of Krishi Utpadan Mandi Samiti v. Shankar Industries, 1993 Supp (3) SCC 361 (2), and also the decision in the case of Park Leather Industry (P) Ltd. v. State of U.P., (2001) 3 SCC 135 . It is contended that in the said decisions of the Supreme Court, it has also been held that the processed form would also be available for levying of cess. Hence, it is contended that the learned Single Judge without considering this aspect of the matter has erroneously arrived at a conclusion. Alternately, it is contended that even if this court accepts the view taken by the learned Single Judge that mustard oil is not an agriculture produce, the refund as ordered would not be just since the respondent herein has passed on the said burden to the end user and the respondent herein, therefore, is not entitled to the same. The learned counsel for the appellant has sought to rely upon the decision in the case of Shree Digvijay Cement Co. Ltd. v. Union of India, (2003) 2 SCC 614 in that regard. 4. Learned counsel for the respondent, however, seeks to sustain the order passed by the learned Single Judge, contending that the learned Single Judge has taken note of the aforesaid decisions and on due consideration of the decision of the Supreme Court in the case of State of Rajasthan v. Rajasthan Agriculture Input Dealer's Association, (1996) 5 SCC 479 , has arrived at the ultimate decision and, therefore, it is contended that the order passed by the learned Single Judge does not call for any interference. Ultimately, it is contended that mustard oil cannot be considered as agricultural produce and, therefore, levy of cess was not justified. 5. Ultimately, it is contended that mustard oil cannot be considered as agricultural produce and, therefore, levy of cess was not justified. 5. In the background of the rival contentions, we have perused the appeal papers. At the outset, we notice that in the backdrop of the order passed by the learned Single Judge there is no serious dispute in so far as the appellant herein being entitled to levy cess in the market area, and, therefore, the said aspect is not adverted to in details. Only issue for consideration herein is whether the appellants were justified in levying the cess on mustard oil by construing the same as agricultural produce and in that circumstances, whether they are justified in doing so despite the fact that mustard oil is not included in the Schedule to the Act. 6. At this stage, we may refer to the definition of agriculture produce as contained in section 2(1)((i) of the Act, which reads as under: “2(1)(i) “Agriculture Produce” means and includes any produce whether, processed or non-processed of Agriculture, Horticulture, Animal Husbandry, Pisciculture, Sericulture and Forest as specified in the Schedule.” (emphasis supplied) 7. It is, thus, not in doubt, as rightly contended by the learned counsel for the appellant, that Agricultural Produce would mean and include any produce, whether processed or non-processed, however, it should be included in the Schedule. That being the position, the issue that arises is whether the said definition could so loosely be construed to include the processed or non-processed product even if it is not indicated in the Schedule. It is for the reason, in the definition it is also provided that the produce would refer to the products which are specified in the Schedule. 8. In the instant case, as noticed, the Schedule includes mustard seed, but does not include mustard oil. There cannot be any dispute that mustard seed is an agricultural produce. Question, therefore, would be whether mustard oil can be subjected to levy of cess without the same being included in the Schedule. In this regard, since the learned counsel for the appellant has placed reliance on the judgment as referred to supra, it would be appropriate for us to take note of the same and arrive at a conclusion. Question, therefore, would be whether mustard oil can be subjected to levy of cess without the same being included in the Schedule. In this regard, since the learned counsel for the appellant has placed reliance on the judgment as referred to supra, it would be appropriate for us to take note of the same and arrive at a conclusion. Insofar as the decision in the case of Kishan Lal (supra), the hon'ble Supreme Court was considering the provisions as contained in the Rajasthan Agricultural Produce Marketing Act, 1961. The issue that arose for consideration therein was as to whether sugar could be considered as an agricultural produce. In the said Act, sugar which is a processed product had been included in the Schedule. It is in that context the Hon'ble Supreme Court was of the opinion that the same being a processed form of agricultural produce and having been specified in the Schedule, the challenge would not be sustainable. 9. Further, in the case of Krishi Utpadan Mandi Samiti (supra), the hon'ble Supreme Court was considering the provisions as contained in the U.P. Krishi Utpadan Mandi Adhiniyam, 1964. Though a similar provision as contained in the Assam Act had arisen for consideration therein, what is necessary to take note of is that the definition of agricultural produce includes admixture of two or more such items and it further includes any item in processed form including “gur” as being subject to levy in the section itself. It is in that circumstance, the hon'ble Supreme Court, while taking note of the contention therein was of the opinion that the product for which charge of cess had been made is a form of “gur” and which was included in the section. Hence, challenge was not accepted. The decision in the case of Park Leather Industry (P) Ltd. (supra) referred to by the learned counsel for the appellant, would also not be of any assistance in as much as the issue that arose for consideration therein was with regard to the form of leather. The hon'ble Supreme Court had taken note that in the Schedule “hides and skins” had been included and in that circumstance, tire argument that tanned leather could not be levied with cess was not accepted holding that even though it may have changed in physical appearance or chemical combination, it still remains a “hide” and “skin”. 10. The hon'ble Supreme Court had taken note that in the Schedule “hides and skins” had been included and in that circumstance, tire argument that tanned leather could not be levied with cess was not accepted holding that even though it may have changed in physical appearance or chemical combination, it still remains a “hide” and “skin”. 10. Therefore, in our opinion, none of the said decisions would be of any assistance. On the other hand, the decision in the case of Rajasthan Agriculture Input Dealers Association (supra), as noticed by the learned Single Judge would be more appropriate in the present circumstance. Further, as already noticed by us, though the definition in the Act indicates that it would “mean and include” the processed form of agricultural produce, since mustard oil has not been included in the Schedule, the learned Single Judge was justified in arriving at the conclusion that it is mustard seed on which cess is leviable, but not on mustard oil as it cannot be considered as an agricultural produce. 11. Having arrived at the above conclusion, question which requires further consideration is as to whether the learned Single Judge was justified in directing for refund of the cess already levied and collected. 12. In the instant case, though at the first instance it was ordered that payment of the levy would be subject to the decision of the appeal, it was directed that the cess collected on account of mustard oil should be carefully accounted for. The contention of the learned counsel for the appellants would be more appealing to us in as much as the respondent herein had passed on the amount of cess paid by them to the end-user as cost of the product. Therefore, the decision in the case of Shree Digvijay Cement Co. Ltd. (supra), relied upon by the learned counsel for the appellants, would be more appropriate in the instant case. It will be a case of unjust enrichment if the cess amount which was collected from the end-user is directed to be paid to the appellants as no details of refund has been indicated with specific reference to the manner in which it will be refunded to the end-user. Therefore, the direction of the learned Single Judge to refund the levy of cess collected would not be justified. Therefore, the direction of the learned Single Judge to refund the levy of cess collected would not be justified. Hence, though the order passed by the learned Single Judge on merits is upheld, the direction to refund is set aside in terms of the above discussion. The appeal is accordingly allowed in part. In view of the disposal of the appeal, I.A. No. 3624/2018 is unnecessary to be considered and, accordingly, disposed.