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of <h1>Cess Levy Under Assam Agricultural Produce Market Act Declared Unconstitutional Post 101st Amendment</h1> <h3>Bhatter Traders And Another Versus State of Assam And Others</h3> Bhatter Traders And Another Versus State of Assam And Others - (2023) 118 G S.T.R. 470 Issues Involved:1. Whether the respondent Board had the authority to levy cess post the 101st Constitutional Amendment and the enactment of the CGST Act, 2017 and AGST Act, 2017.2. Whether the petitioners are entitled to a refund of the cess collected by the respondent Board.Issue 1: Authority to Levy Cess Post-GST RegimeThe petitioners challenged the levy and collection of cess under the Assam Agricultural Produce Market Act, 1972 (the Act of 1972) post the GST regime. The court examined the provisions of the Act of 1972, particularly Section 21, which empowers the market committees to levy cess on agricultural produce bought or sold in the market area. The court noted that the power to levy such cess was originally traceable to Entry 52 and Entry 54 of List II of the Seventh Schedule of the Constitution.Post the Constitution (101st Amendment) Act, 2016, Entry 52 was omitted, and Entry 54 was substituted, limiting the State's power to levy tax only on certain specified goods. The court concluded that the respondent Board or the Market Committees could not levy cess after the enactment of the CGST Act, 2017 and the AGST Act, 2017, as these Acts subsumed the cess collected under the Act of 1972. The court held that the levy of cess by the respondent Board post-GST regime was unconstitutional and ultra vires.Issue 2: Entitlement to RefundThe court examined whether the petitioners were entitled to a refund of the cess collected from them. It was noted that the petitioners did not aver that the cess collected was not passed on to their customers. The court referred to the doctrine of unjust enrichment and the principles laid down in the case of Mafatlal Industries Ltd., which requires proof that the burden of the duty was not passed on to another person.Given the lack of such averments, the court held that the petitioners were not entitled to a refund. Additionally, considering the financial condition of the respondent Board, the court opined that directing the State to recover the amount from the respondent Board would not be in the interest of justice and would hamper the functioning of the Board.ConclusionThe court disposed of the writ petitions, holding that the respondent Board had no authority to levy cess post-GST regime and the petitioners were not entitled to a refund of the cess collected.
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