TMI Blog2004 (11) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... against its own form 31 and supplied coal to various parties mainly to the brick kiln owner. Freight incurred in bringing coal from colliery to its destination was separately shown in the bill. It is claimed that the amount of freight was paid directly by the purchaser, but this fact had not been accepted, but it was not disputed that in the bill, freight was separately mentioned. It was claimed that freight charges which were incurred for bringing coal from colliery to the destination of the dealer were not liable to be included in the turnover on the ground that the dealer was a coal agent and charged 2 per cent commission from its customers apart from the value of coal. Assessing authority had not accepted the plea of dealer and included the amount of freight incurred in bringing the coal from colliery to its destination in the turnover. In the first appeal, the appellate authority also upheld the view of the assessing authority treating the freight incurred prior to sale as part of the turnover. Dealer filed appeals before the Tribunal. Tribunal vide impugned orders, allowed the appeals and held that freight would not be part of the turnover. Learned Standing Counsel submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax), was filed which was allowed and the apex Court remanded back the matter to the Tribunal for reconsideration on the question whether the assessee was or was not a commission agent. He submitted that after remand, the Tribunal vide order dated March 15, 2004 rejected the appeal filed by the Commissioner of Sales Tax and upheld the order of first appellate authority, in which, freight was not included in the turnover. He submitted that the Tribunal held that the dealer acted as a coal agent relying upon the decision of the Tribunal for the assessment year 1984-85. He further submitted that under section 2(i) freight charged separately would not be part of the turnover and in support of his submission, the decision of the apex court in the case of Vinod Coal Syndicate v. Commissioner of Sales Tax [1989] 73 STC 317; [1988] UPTC 218, has been relied upon. In view of the aforesaid submissions, it is prayed that the revisions filed by the Revenue, be dismissed. Having heard counsel for the parties, I have perused the order of the Tribunal and the authorities below. Section 2(i) defines turnover as follows: 'Turnover' means the aggregate amount for which goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s eligible for deduction under rule 9(f) of the Kerala General Sales Tax Rules, 1963, a rule which is in the same terms as rule 6. This claim was negatived by the apex court. The court observed: It is common ground that the sale of the liquor took place in Ernakulam. The company arranges to transport liquor for sale from the factories to its warehouse at Ernakulam. It was not brought for any individual customer. All the expenditure incurred is prior to the sale and was evidently a component or the price for which the goods were sold. It is true that separate bills were made out for the price of the goods ex-factory and for 'freight and handling charges'. But in our judgment, the Tribunal was right in holding that the exemption under clause (f) of rule 9 applied when the freight and charges for packing and delivery are found to be incidental to the sale and when they are specified and charged for by the dealer separately and expenditure incurred for freight and packing and delivery charges prior to the sale and for transporting the goods from the factories to the warehouse of the company is not admissible under rule 9(f). Rule 9(f) seeks to exclude only those charges whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusive clause. The cost of freight or delivery or the cost of installation certainly represents an amount charged for transportation or installation of the goods at the time of or before the delivery thereof and would, therefore, fall within the inclusive clause on its plain terms but it is taken out by the exclusion clause, 'other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged'. This exclusion clause does not operate as an exception to the first part of the definition. It merely enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of 'sale price'. But if the State is able to show that the particular amount falls within the first of the definition and, is therefore, part of the 'sale price' the exclusion clause cannot avail the assessee to take the amount in question out of the definition of 'sale price', here on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of purchaser. Issue of B licence under the Coal Control Orders, only authorises dealer to act as a coal agent under the U. P. Coal Control Order for the purposes of distribution of coal, but whether dealer in respect of transaction in dispute acted as a coal commission agent of buyers or not, is a question which has to be decided on the basis of the nature of transaction and existence of a contract of agency. The condition of B licence issued in form B to the coal agent shows that the licensee was authorised to import coal and to sell it. It has not been disputed that the dealer has purchased coal from colliery in his own account and imported such coal against its own form 31 and thereafter, sold the coal to the consumer and also charged 4 per cent tax on the value of coal and admitted tax liability of 4 per cent on the value of coal. Perusal of assessment order shows that the dealer had not made any claim that it had acted as a purchasing commission agent on behalf of consumer. A distinction has to be drawn between the coal agent under the Coal Control Order and purchasing coal commission agent. Dealer may be a coal agent for the purposes of Coal Control Order, but need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther charged, that would not be sufficient to treat him as a commission agent. To be commission agent, there must be a contract of agency. Prices charged separately in the invoices, may only be a device with an intent to reduce the sale price. Manner in which bill was made, is not relevant and true nature of transactions has to be examined on the fact of the case. I have perused the order of the Tribunal, which was passed for the assessment years 1988-89 and 1989-90. After remand by the apex court, the Tribunal, only on the basis of order for the assessment year 1984-85, held the dealer as a commission agent without examining the real nature of transaction and without examining whether there was any contract of agency between the parties to make the dealer a commission agent and therefore, order of the Tribunal has no relevance in the present case. In any view of the matter, each year is an independent year and facts of each year have to be examined independently. Tribunal is directed to examine the matter afresh in the light of observations made above. In the result, revisions are allowed in part. Order of Tribunal is set aside and the matter is remanded back to the Tribunal ..... 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