TMI Blog1977 (2) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the order dated 29th June, 1972, of the Assistant Commissioner of Commercial Taxes (Assessment), Bangalore, in regard to the inclusion of freight turnover from the taxable turnover. The Commissioner of Commercial Taxes by his order under appeal modified the order of the Deputy Commissioner of Commercial Taxes (Appeals) and restored that of the Assistant Commissioner of Commercial Taxes holding that the assessee-company was not entitled to the exclusion of freight turnover from the taxable turnover in regard to the year in question, i.e., assessment year 1963-64. Learned counsel for the appellant sought to assail the order under appeal on the ground that the same was against the ratio of the decision of their Lordships of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conditions of any railway receipt shall be binding on the stockists and the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the stockists at the destinations and the amount of freight shown on the railway receipt shall be deducted from the invoice of the company." Their Lordships, disagreeing with the view of the Andhra Pradesh High Court, held as follows: "If clause (4) stood alone the price charged by the company may be deemed to be the catalogue rate less the discount payable to the purchasers. But by clause (16) the purchasers clearly undertook to pay railway freight which was deducted from the invoice m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Cement Control Order, 1961, which is in the following terms: "6. (2)(a) The price at which the Corporation may sell cement other than rapid hardening cement and low heat cement to any person shall be Rs. 94.00 per metric ton free on rail destination railway station plus the excise duty paid thereon." The perusal of the aforesaid provision would show that the price fixed is inclusive of freight charges; for it clearly envisages "price free on rail destination", that is, the buyer shall receive the delivery of the goods from the railway without paying freight charges. The learned counsel for the appellant, however, sought to argue that under the Cement Control Order, 1961, only fair price was fixed leaving to the seller freedom of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ips in this regard been different, the position would have been otherwise. For the above view, we find support from a Division Bench decision of this Court in State of Mysore v. Panyam Cements and Mineral Industries Ltd.[1974] 33 S.T.C. 407. , wherein the facts involved were identical with the facts of the present case. The learned Chief Justice who delivered the Bench decision distinguished the ratio of the Supreme Court decision in Hyderabad Asbestos case[1969] 24 S.T.C. 487 (S.C.). with the following observations: "5. In the instant case, the facts are distinguishable. Under the Cement Control Order, the price fixed is f.o.r. and, therefore, there is an obligation on the seller to pay the freight. It is a matter of arrangement betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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