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TMI Blog2008 (8) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the Trade Tax Tribunal was legally justified to allow the adjustment and refund of amount deposited at check-post for composition of offence on contravention of the provisions of section 28A of the U.P. Trade Tax Act, 1948 as compounding amount? (iii) Whether the Trade Tax Tribunal was legally justified to determine the selling rate of coal lower than the declared rate by the dealer?" So far as question Nos. 1 and 3 are concerned, the assessing authority was of the view that inward freight paid for the purchase of coal is part of the turnover. Before the assessing officer, it disclosed the purchase of 9340.8 tons of coal from colliery. The dealer-opposite party has paid the freight for transportation of coal from colliery situate outside the State of U.P., to the coal depot. It claimed that it made the purchases as commission agent on behalf of purchasers of coal. The said plea was not found favour by the assessing officer as in the purchase order names and addresses of purchasers were not disclosed. No agreement of agency was filed. In the absence of relevant material, the assessing officer took the view that the purchases were made by the dealer-opposite party in his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods, and the colliery. From the facts emerging from the record it is a case of sale of coal by one principal, i.e., the dealer to brick-kiln owners. The Tribunal without appreciating the law of agency has held the dealer as an agent of brick-kiln owner. Indisputably except the allegations that the dealeropposite party has acted as agent of brick-kiln owners there is nothing on the record to substantiate the plea. In view of the above, the finding of the Tribunal that the dealer-opposite party has acted as agent of brick-kiln owners is legally not sustainable. 15.. It is a case of transaction by one principal with another. The dealer-opposite party camouflaging the bill-book, etc., and by charging the freight separately in the bills has tried to evade the payment of trade tax on the freight. The dealer incurred all the expenditures up to the stage of delivery of coal to the brick-kiln owners. The title in the coal passed to brickkiln owners only at the time of delivery of coal and not earlier to it." On the basis of the above discussions, it is clear that if it is a case of transaction by one principal with another different consideration will arise. By camouflaging the bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the brick-kiln owners and the delivery of coal was taken by them, then the position would be entirely different. Coming to the facts of the case on hand, here the factual position is entirely different. Even otherwise also, the view, which I am proposing to take in the present case, is not in any manner in violation of the aforestated judgment delivered in Commissioner of Trade Tax v. Vardhaman Trading Co., Meerut [2006] 29 NTN 96. The said case, therefore, does not advance the case of the dealer-opposite party any further. Definition of the word "turnover" as defined in section 2(i) of the U.P. Trade Tax Act, 1948 is pari materia with definition of words, "sale price" as contained in section 2(h) of the Central Sales Tax Act, 1956. For the sake of convenience section 2(h) of the Central Sales Tax Act, 1956 is reproduced below: "Section 2(h). 'Sale price' means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perate 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 part 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 the view taken by us the amount of freight forms part of the 'sale price' within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. It may be pointed out that even if the exclusion clause were read as an exception to the first part of the definition which, as we have pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the deposit of such amount as unregistered dealer was by way of payment of penalty at the check-post and the same is not liable to be adjusted. The said amount was deposited as composition fee in lieu of penalty. The averments made in the receipts also show that the amount was deposited as composition fee. Thus, it was inferred by the assessing officer that such amounts are not liable to be adjusted towards the liability of the dealer-opposite party. The Tribunal has failed to address the said finding of the assessing authority and straightway allowed the adjustment of the amount deposited at the check-post towards outstanding liability of the dealer-opposite party. Before doing so, it was incumbent upon the Tribunal to have determined the nature of the deposit made by the dealer at the check-post. The Tribunal has failed to examine as to whether the said deposit was made as composition fee in lieu of assessment as penalty or as a security for importing the coal in excess of permitted quantity. Since the Tribunal has decided the issue without addressing itself to the real point, it is desirable that the Tribunal should re-examine the matter afresh in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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