TMI Blog1975 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... had to pay charges according to a certain scale of rates to the Bombay Port Trust. These charges have been referred to before the sales tax authorities and the Tribunal as dock charges and we also propose to refer to them as such. No contract regarding the sale of these aerated waters was produced before any of the sales tax authorities nor was there produced any correspondence which would indicate the terms on which the aerated waters were agreed to be sold to the shipping companies in the dock area. However, in the bills, which the respondent presented to the shipping companies for the aerated waters sold to them, such dock charges were charged separately. In the assessment for the assessment periods from 1st April, 1956, to 31st March, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent supplied goods to the shipping companies for a consideration which included dock charges, because without the dock charges being paid the goods could not have been taken to the shipping companies. On this ground the Tribunal rejected the contention of the respondent that the said dock charges were not a part of the sale price. The Tribunal also rejected the contention of the respondent that the said dock charges have been paid by the respondent on behalf of the purchasers. The Tribunal, however, further held that as the respondent had to pay these dock charges in order to reach the destination for delivering the goods they constituted the cost of delivery; and, as these dock charges had been charged separately in the bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has already been held by the Tribunal that the said dock charges form part of the sale price. This finding of the Tribunal has not been disputed before us. No question has been raised in this connection and, therefore, we must proceed on the footing of this finding. The first submission of Mr. Sanghvi, the learned counsel for the applicant, was that these dock charges were really in the nature of expenses which had to be incurred by the respondent for the purpose of carrying on the business of selling aerated waters in the dock area and they could not be said to constitute the cost of delivery or delivery charges as such. On the other hand, it was contended by Mr. Munim, the learned counsel for the respondent, that these charges had to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o anything in respect of the goods at the time of or before delivery thereof, any sum charged by him in respect thereof is to be included in the sale price except in the one case provided for in the said clause, namely, the cost of freight or delivery or the cost of installation, when such cost is separately charged. Before, however, a dealer can separately charge his purchaser for any particular item there must be a right in the dealer to make such a charge and a liability on the part of the purchaser to be so charged. This right and corresponding liability can only be a matter of contract between the seller and the buyer. If it is not a matter of contract, then there is no right in a seller to raise a separate charge against the purchaser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be determined only on the terms of the contract, and not from the invoice issued by the person entitled to receive money under the terms of the contract. The invoice did not represent any transaction, nor did it evidence a contract for work or for sale of goods. In view of these decisions, it appears to us that although the respondent had made a separate charge for the dock charges in the bills submitted by it to the purchasers, as the respondent has failed to prove that there was any contract under which it was entitled to make such a separate charge, the respondent is not entitled to get a deduction in respect of these dock charges on the ground that they constitute cost of delivery and were separately charged. Whether there was any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the contract between the assessee and the purchasers. It was next submitted by Mr. Munim that the decisions in Arun Electrics v. Commissioner of Sales Tax[1966] 17 S.T.C. 576 (S.C.). and Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh[1969] 24 S.T.C. 487 (S.C.)., referred to earlier, were distinguishable on the ground that, in those cases, there appeared to be written contracts, whereas in the case before us there is no written contract but there must have been oral contracts between the respondent and the shipping companies purchasing the goods. In our view, this circumstance can make no difference. If there was an oral contract or contracts under which the respondent was entitled to charge dock charges separately, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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