TMI Blog1997 (9) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court was delivered by M. JAGANNADHA RAO, J.- The West Bengal Taxation Tribunal, by order dated 26th September, 1991, dismissed the applications R.N. Nos. 354 of 1990, 130 of 1991, 415 of 1989 and 431 of 1989 and Civil Appeals Nos. 1083 to 1086 of 1992 are filed against the dismissal of the said applications. 2.. The issue involved in these appeals is whether the freight and handling charges, hereinafter described as "freight charges" or "delivery charges", are to be treated as included within the words "money consideration" in section 2(d) of the West Bengal Sales Tax Act, 1954 (hereinafter called "the 1954 Act") which defines "sale price". 3.. According to the appellants, "freight charges" cannot be included in the meaning of the word "money transaction" in the definition of "sale price" in section 2(d) inasmuch as it was not the intention of the Legislature to treat the said charges as part of the "money consideration". It is the case of the appellants that the material on record and the conduct of the parties and in particular, the Cash Memo No. 97751 exhibited in the case which shows that delivery charges were separately collected as distinct from the cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 25 of that Act. On the other hand, the 1941 Act is a general statute providing for multi-point levy of sales tax on commodities not covered by the 1954 Act. Sub-clause (d) of section 2 of the 1954 Act reads as follows: "Section 2(d): ' Sale price' used in relation to a dealer means the amount of the money consideration for the sale of notified commodities manufactured, made or processed by him in West Bengal, or brought by him into West Bengal from any place outside West Bengal for the purpose of sale in West Bengal, less any sum allowed as cash discount according to trade practice, but includes any sum charged for containers or other materials for the packing of notified commodities." 6.. We shall first deal with the contention of the appellants' counsel based upon the non-inclusion of "freight charges" in the definition of sale price in section 2(d) of the 1954 Act. 7.. It is clear that the definition of "sale price" in section 2(d) uses the words "means" and "includes". The first part of the definition defines the meaning of the word "sale price" and must, in our view, be given its ordinary, popular or natural meaning. The interpretation thereof is in no wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic things which were otherwise within the first part or such exclusion could also be ex abundante cautela. The non- inclusion of "freight charges" expressly in the 1954 Act has no impact on the natural meaning of the first part of section 2(d) just as the exclusion of "packaging charges" in section 2(d) does not have any impact on the first part of the same section 2(d). The first part of the definition remains to have its natural meaning unaffected by what other things are expressly included in the second part; and is also unaffected by what is not expressly included. Therefore, neither the inclusion of "package charges" in section 2(d) of the 1954 Act nor the exclusion of "freight charges" from section 2(h) of the 1941 Act and the absence of any such express inclusion of freight charges in the 1954 Act does not, in our view, alter or affect whatever meaning is to be attributed to the first part of the 1954 Act which is similar to the first part of section 2(p) on the Rajasthan Sales Tax Act, 1954. 10.. If, therefore, the first limb of section 2(d) of the Act is similar to section 2(p) of the Rajasthan Sales Tax Act, 1954, the question then is as to what was actually decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factory to his place of business. But this does not mean that this Court did not intend that freight expenses up to the point of delivery were not to be included in "sale price". As rightly pointed out by the Tribunal [in para 32(b) of the order], this Court had also referred in Hindustan Sugar Mills case (at page 29 of STC) to the freight charges "at the place of sale", which would clearly be referable to the freight charges up to the point of delivery. 11.. Having referred to the true meaning of the first limb of section 2(d) of the 1954 Act, we shall now refer to the Tribunal s findings. The majority of the Tribunal found that the venue of the sale was the place of the buyer and the time of the sale was the point of delivery. The purchase orders were placed mostly there, the goods were received by the buyer there. Payment and receipt of the goods was simultaneous. The Tribunal held that collection of delivery charges separately was only notional in nature rather than real. It was stated that the appellant also admitted that defective goods returned by the buyer were taken back and thus defects during transportation were not at buyer's risk. The appellant's case that the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
