TMI Blog1982 (12) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... n the amount received by him towards the transport and other charges from the railways. However, for the assessment years 1972-73 and 1974-75, the assessee's appeal was dismissed by the Assistant Commissioner (Judicial), who upheld the order of the Sales Tax Officer. In respect of the assessment years 1972-73 and 1974-75, the assessee went up in appeal to the Sales Tax Tribunal, where as in respect of the other years, the department went up in appeal before the Sales Tax Tribunal. The Sales Tax Tribunal has allowed the appeals by the department and dismissed the appeals by the assessee. In these circumstances, the assessee has come in revision. Tenders had been invited by the Railway Administration. These tenders are in standard form. The tenders contained various clauses, including special conditions. Special conditions of clauses 28, 29 and 30 are reproduced below: "28. The rate quoted by the contractor/contractors should be an all inclusive through rate, i.e., the rate for the material delivered at site. No lead, lift, sales tax or royalty or any other taxes that may be levied by the Government or by the local bodies will be paid. They will also themselves arrange and pay fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite. 2.. Rate of supply of ballast will include stacking 200 ft. or 60.96 metre at sites convenient for loading and approved by the Assistant Engineer-in-Charge of the section. 3.. Quantity within 5 per cent more or less than contracted for may be accepted against this contract. 4.. The railway will not entertain any request for supply of wagons at any station for loading of ballast. The contractor will make his own arrangement for transport of ballast." In the tender, there was a column No. 1-A. Rate of supply including stacking of 40 mm. gauge stone ballast at Etawah Railway Station including all charges for loading, carting to site, unloading, handling, stacking, etc. The unit of rate was allowed at per cubic metre. Thereafter, the rate was to be quoted in cubic metre. The assessee had made the following entry as against the third column: "1. Rs. 16.00 per cubic metre of ballast at quarry. 2.. Rs. 54.00 per cubic metre carriage from quarry to Etawah Station. Thereafter, was the total which mentioned the price of Rs. 70.00 per cubic metre." In one of the tenders, which was opened on 9th March, 1973, there is under the above entry by the assessee as against the col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. Etawah. Dear Sirs, Reg: Contract for supply of 10,000 cm. stone ballast of 40 mm. size duly stacked at Phaphund. Ref. Your letter dated 21-6-79. In continuation of this office letter even No. dated 21-6-79, the rates quoted by you. The above tender as accepted is given below for your information: 1.. Supply of 1,00,000 cu.m. stone (a) Cost of ballast at quarry Rs. 17.48 ballast of 40 mm. gauge duly per cm. stacked at Phaphund Rly. (b) Carriage from quarry to distance, Station. unloading, stacking, etc., Tender opened on 7-9-73. Rs. 52.44 per cm. Yours faithfully, Sd/-Illegible For Divisional Railway Manager, Allahabad." The Tribunal after referring to clauses 28, 29 and 30 of the contract between the parties has come to the conclusion that what the assessee had quoted and what the Railway Administration had accepted was an all inclusive rate, i.e., the rate for the material at the site to be paid to the assessee. It went on to hold that the assessee undertook the responsibility for delivering the material at the site where the goods were to be inspected and passed by an engineer. It further found that the property in the ballast remained vested in the assessee t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference was also made to the letters from the Railway Administration which indicated that the tender accepted showed clearly that the cost of ballast and the other charges were accepted and paid by the Railway Administration separately. It was pointed out that before the Assistant Commissioner (Judicial) before whom the letters from the Railway Administration dated 21st June, 1979, and 18th July, 1979, were produced, the department did not challenge their authenticity nor did they challenge the authority of the officer who signed the letters on behalf of the Divisional Railway Manager, Allahabad. It was submitted that the Tribunal while deciding the case was in error in ignoring these letters on the ground that they had not been signed by the Railway Manager and that it was against the terms of the contract including special conditions of clauses 28, 29 and 30. Before this Court, on behalf of the assessee, a letter from the Divisional Superintending Engineer for the Divisional Manager, Northern Railway dated 16th March, 1982, has been filed which confirms what was stated in the earlier letters. Even apart from the letter of the Divisional Superintending Engineer, the letters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the assessee. But in this case apart from the fact that in the contract the rate of ballast at the quarry and the rate of cartage, etc., are separately mentioned, we have the letters of the Railway Administration that the cost of the ballast and the amount paid for expenses incurred by the assessee were separately entered into. This would indicate that there were in effect two types of contracts entered into between the parties: one for the supply of ballast at the site and there was a condition provided in the contract that the assessee would transport the ballast from the quarry to the site where the ballast was required and do the necessary work there; the price of the ballast at the quarry and the other costs were separately provided for. Where the assessee is being paid price for the ballast separately and is being separately paid for the transport and other charges, the assessee cannot be taxed on anything other than the price of the ballast that he has been paid which had necessarily to be included in his turnover. Counsel for the assessee has referred to a decision of this Court in the case of Commissioner of Sales Tax v. Goel Trading Co., Gorakhpur 1979 UPTC 1139. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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