TMI Blog1991 (7) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... 941, as then extended to the Union Territory of Delhi, was issued on 13th March, 1968, proposing to revise suo motu the said assessment, on the ground that a portion of turnover had escaped assessment. The dealer raised objection that the notice was too short and it was vague as it did not indicate precisely what portion of the dealer's turnover had escaped assessment. It was also contended that the proper course was to proceed under section 11A and not under section 20(3) if the turnover of the business of the dealer had escaped turnover. It was also stated that the sale figures of coal were duly accounted for and properly taxed and the assessment order was quite valid. The learned revisional authority Shri B.K. Sharma, Commissioner, Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 being made, at the instance of the Commissioner of Sales Tax, the following question of law has been referred to this Court: "Whether, on the facts and circumstances of the case, the Tribunal was right in holding that freight and octroi should not be included in the sale price of the wagons for the purpose of levy of sales tax on the dealer?" As is noted in the order of the Appellate Tribunal, the dealer purchased coal from the collieries. It is not in dispute that the freight and octroi in respect of the coal which was despatched from the collieries to Delhi, did not form part of the sale price of the collieries. The question of such a procedure being adopted for purchase, sale and movement of coal was the subject of control with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys in the present case, acted as an agent of the dealer. Therefore, freight and octroi charges which were payable after the goods had been loaded, did not form part of the sale price of the colliery. The dealer did not pay to the colliery any money in respect to the freight and octroi charges of the goods. From the facts found by the Tribunal, it is clear that the dealer sold the coal to the retailers before taking physical delivery of the coal from the railways. The retailers were required to pay to the dealer the price fixed under the Colliery Control Order. What was paid to the dealer by the retailers was the price of coal which had been charged by the colliery plus the commission which the dealer was entitled to charge under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision with regard to payment of freight and octroi charges by the del credere agent or the customer except that clause 12B, inter alia, provides that no person to whom coal has been allotted, shall divert or transfer such coal to any other person except under a written authority from the Central Government and at such price as may be fixed by that Government. It is while fixing the said price that it is stipulated in the said clause that the Central Government shall have due regard to the prices fixed under clause 4 of the order and the freight, cesses, taxes, middlemen's commission and other incidental charges, etc., paid by the original allottee. There is nothing in this order to show that the freight was at any point of time regarded as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court observed at page 33 of the judgment that: "This would be the position apart from the provisions of the Control Order and, on this position, there can be no doubt, for reasons already discussed, that the amount of freight would not form part of the 'sale price'." As already observed, the freight did not form part of the sale price of the colliery and when further sale took place in accordance with the provisions of the Colliery Control Order, the only price which could be realised by the dealer was the price fixed under clause 4 of the Colliery Control Order and his commission. The order does not envisage freight and octroi charges being received by the dealer. Of course, if the dealer had taken delivery of the goods after p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conceivable that a dealer will bear the freight charges himself. However, in this case, the department may examine whether the dealer is entitled to the benefit of the circular referred to in para 7 of the order of the Deputy Commissioner (M.D. Singh) dated 25th October, 1972." This Court, therefore, held, as is evident from the above, that it is not in every case that freight charges would form part of the sale price. If it was unequivocally disclosed in the contract of sale that freight charges will not form part of the sale price, then no sales tax would be payable in respect thereto. The court decided against the dealer in that case because there was no proof with regard to the question as to whether the freight charges were payable b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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