JUDGMENT
Aftab Alam, J.
1. CWJC No. 2201/92 (R) is filed at the instance of M/s. Ranchi Timber Traders Association (Petitioner No. 1) and another person. Petitioner No. 1 of this case is a society registered under the Societies Registration Act and describes itself as an association of members engaged in the sale and purchase of “cut and finished timber” CWJC Nos. 432/1992 (R) and 2777/1992 (R) are similarly filed at the instance of different saw mills and their proprietors and persons carrying on business in timber.
2. In all the three writ petitions question is raised regarding the validity of the Gazette notification fixing the rate of cess at three percentum on the sale price of forest produce timber. Also come under challenge the demands of cess made against the petitioners on cut and finished timber’ purchased by them on the basis of the impugned notification.
3. The petitioners in all the three writ petitions claim that they purchase only cut and finished timber from the depots of the Forest Department/Bihar Forest State Trading who sell them in lots on the basis of auction. It is stated that the trees in the forest are cut by the Forest Department/Bihar Forest State Trading. From the forest, timber in cut and finished form was brought to the depots of the Forest Department/Bihar Forest State Trading where it was sold to timber merchants, like the petitioners. According, to the petitioners cut and finished timber cannot be held to be immoveable property by any stretch of imagination and hence the petitioners, the purchasers of timber in moveable from cannot be saddled with the imposition of cess and the impugned notification, in so far it allows levy of cess on moveable cut and finished timber is ultra vires Section 4 of the Bengal Cess Act, 1880.
4. Mr. Merathia, learned G.P. II submitted at the out set that the points raised in these writ petitions were directly covered by the decision of this Court in M/s. Bajrangbali Saw Mill v. State of Bihar and
Ors. 1993 (2) PLJR 512. In the case of Bajrangbali Saw Mill a Bench of this Court (of which one of us Aftab Alam, J was a member) held that cut and finished timber was amenable to the levy of cess on the basis of the impugned notification dated 28.8.1991. In coming to this inference the decision placed reliance on an earlier Division Bench judgment in Someshwar Prasad v. State of Bihar 1974 BLJR 348, which was re-affirmed by a Full Bench judgment in . The Western India Match Company Limited v. Collector, Cess, Bettiah 1981 BLJR 657.
5. Ms. Anubha Rawat, learned Counsel for the petitioners, however, submitted that the decision in Bajrangbali Saw Mill
(supra), was not correctly rendered and the judgment in that case required re-consideration. Learned Counsel submitted that the earlier decisions in the cases of Someshwar Prasad and . Western India Match Company Limited (supra) on which reliance was placed dealt with imposition of cess on cutting of trees and standing timber. Those decisions, therefore, could have no application for justifying the imposition of cess on cut and finished timber. She further submitted that the Supreme Court decision in the State of Orissa v. Titaghur Paper Mills Company Limited , had laid to rest any doubt that cut timber would not qualify as immovable property. She submitted that though the Supreme Court decision was noticed by the Division Bench in Bajrangbali Saw Mill (supra), it was distinguished on erroneous grounds and according to her though the Supreme Court decision was under the Orissa Sales Tax Act, the observations and findings made there would nevertheless apply for interpreting the definition of immovable property under the Cess Act.
6.We heard Ms. Rawat with pleasure and we deeply appreciated the persuasive manner in which she urged before us the need to reconsider the decision in M/s. Bajrangbali Saw Mills (supra) but I am unable to agree with her that the earlier Bench decision on this issue was rendered incorrectly. 1 find that all the points advanced and the decisions relied upon by her were duly considered in the judgment in the case of Bajrangbali Saw Mill (supra) and the decision in that case concludes the controversy.
7. I further find that the matter can be looked at from another point of view and if viewed from that angle, the whole controversy based on the question whether cut and finished timbre is movable or immovable within the meaning of the Cess Act becomes completely irrelevant.
8. At this stage, it would be appropriate to take a look at the impugned notification dated 28.8.1991. The notification reads as follows:
S.O. 406-In exercise of the powers conferred under Clause (d) of Section 6 of the Cess Act, 1880 (Bengal Act IX of 1880), the Governor of Bihar is pleased to fix the rate of cess at 3 per centum on the sale price of forest produce timber only.
2. It shall come into force with effect from 1st September, 1991.
9. As quoted above, the notification uses the expression “forest produce timber” and, therefore, there is no reason to suggest that the imposition of cess is on cut pieces of timber. In other words, the imposition of cess is on trees and standing timber and the taxing event takes place when trees and standing timber are fell down. There is, however, nothing in the law to restrain the licensee/the person cutting the tree to pass on the liability of cess to the purchaser of the cut timber and this is exactly how it works out in the cases in hand. It is to be noted that after the sale of the lot of cut timber on the basis of auction the purchaser is given the sale note which gives the sale price of the lot besides the amount of sales tax and various other taxes and cess @ 3% shown separately. By the sale letter the purchaser is asked to make payment of the total amounts shown under different heads. It is thus evident that the licensee, cutting the trees is simply passing on the liability of case to the purchaser (exactly in the same way as the liability of sales tax). No provision was brought to our notice which would make the transmitting of the charge of case impermissible in the eye of law. It is, thus, to be seen that the whole question whether cut and finished timber is movable or immovable property does not arise at all.
10. For the reasons discussed above, I see no merit in these writ petitions. These are accordingly dismissed. With the dismissal of these cases, the interim orders passed in all the three writ petitions stand vacated.
