GST subsumes market cess levy and bars restitution absent proof that the tax burden was not passed on.

Cess under Section 21 of the Assam Agricultural Produce Market Act, 1972 could not continue after the 101st Constitutional Amendment and the GST framework had subsumed the field of State taxation of intra-State supply; the earlier statutory basis for the levy no longer survived, so the post-GST collection was ultra vires. Refund or restitution was nevertheless refused because the claim was tested against unjust enrichment, and the pleadings did not show that the cess burden had not been passed on to customers. The writ petitions were therefore disposed of without monetary restitution.

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Issues: (i) Whether the respondent authorities had power to levy and collect cess under Section 21 of the Assam Agricultural Produce Market Act, 1972 after the Constitution (101st Amendment) Act, 2016 and the enactment of the GST laws; (ii) Whether the petitioners were entitled to refund or restitution of cess collected after the GST regime came into force.

Issue (i): Whether the respondent authorities had power to levy and collect cess under Section 21 of the Assam Agricultural Produce Market Act, 1972 after the Constitution (101st Amendment) Act, 2016 and the enactment of the GST laws.

Analysis: Cess levied under Section 21 was treated as a tax traceable to the State's taxing entries in the Seventh Schedule. After the 101st Amendment, Entry 52 of List II was omitted and Entry 54 was substituted, while Article 246A and the GST enactments created a comprehensive regime for taxation of intra-State supply of goods and services. The court also noted the notifications exempting services of Agriculture Produce Marketing Committees or Boards, reflecting that the earlier cess had been subsumed within the GST framework. Once that regime came into force, the statutory foundation for the impugned cess levy no longer survived.

Conclusion: The respondent authorities had no power to levy cess after the GST regime came into force, and the levy was unconstitutional and ultra vires.

Issue (ii): Whether the petitioners were entitled to refund or restitution of cess collected after the GST regime came into force.

Analysis: Refund was considered in the light of the doctrine of unjust enrichment and the principle that a refund claim succeeds only if the claimant shows that the burden was not passed on to others. The pleadings did not contain any assertion that the cess burden had not been passed on to customers. The court also noted the severe financial position of the respondent Board and declined to direct restitution from the Board or further recovery for that purpose.

Conclusion: The petitioners were not entitled to refund or restitution of the collected cess.

Final Conclusion: The levy of cess after the GST regime was held invalid, but no monetary restitution was ordered in favour of the petitioners, and the writ petitions were disposed of accordingly.

Ratio Decidendi: A cess that was a State tax under the pre-GST regime could not continue to be levied once the constitutional and statutory GST framework subsumed the field, but refund of illegally collected amounts is barred where the claimant fails to show that the burden was not passed on.

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