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TMI Blog2009 (1) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was passed by the learned Tribunal in an earlier revision case on November 30, 2007. The learned Tribunal after considering the said point which was urged before the learned Tribunal, came to the conclusion on the admitted facts that the petitioner maintained a factory at Asansol and the petitioner supplied industrial gases from its Asansol factory to the factory of the Indian Iron and Steel Co. Ltd. (hereinafter referred to as, "the IISCO") at Burnpur through pipeline. The petitioner has specifically stated before the learned Tribunal at the time of the review petition filed by it that liquid oxygen was supplied from its Durgapur factory to IISCO at Burnpur and sales were completed after measurement of liquid oxygen at Burnpur. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immovable goods is not exigible to tax. The learned members of the Board observed in the revision case order dated September 17, 2002 in para 16 that "on examination of the orders so passed by the authorities below, we do not find that the machinery in question used by the customer were embedded to earth". The statement in view of the orders passed by the assessing officer as well as the appellate authority is not fully correct. Both these authorities never raised any question whether the plant and machinery and pipelines were embedded in earth or not. Their approach is different from the approach of the petitioner as well as the learned members of the Board. The Tribunal, in its judgment dated November 30, 2007 has categorically stated "n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved, the petitioner filed this application from the said review petition. It has to be noted here that the order and/or the judgment was delivered by the learned Tribunal on November 30, 2007, and at that point of time the petitioner did not take any step to file an appeal from the said order and subsequent thereto, this application was filed before the learned Tribunal for review of its judgment and/or decision which was negated by the learned Tribunal on the ground mentioned in the said judgment which has also been placed in the preceding paragraph by us. The petitioner's point only before us is that the facility charges realized from the buyer are nothing but freight charges and hence, they cannot be included in the "sale price" as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial Tax Officer, Central Section, Assessment Wing, Calcutta [1997] 107 STC 219 (SC) where the court has held as follows: "9. The other contention of the learned counsel for the appellant that section 2(h) of the 1941 Act expressly excluded 'freight charges' and for that reason the 1954 Act must have contained an express provision including 'freight charges' is equally untenable. Now the first part of section 2(h) defining 'sale price' in the 1941 Act, as well as the first part of section 2(d) of the 1954 Act and the first part of section 2(p) of the Rajasthan Sales Tax Act, 1954 (interpreted in Hindustan Sugar Mills Ltd. case [1979] 43 STC 13 (SC); [1978] 4 SCC 271) are similar. In our view, the exclusionary w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer as consideration for the sale of any goods. It was pointed out that the test was as to what was the consideration passing from the purchaser to the dealer for the sale of goods. It was immaterial to enquire as to how the amount of consideration was made up, whether it included excise duty or sales tax or freight. 'The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the sale and not as to what is the net consideration retainable by the dealer'. It was further held that the concept of real price or actual price retainable by the dealer was irrelevant. Reference in that connection was made by this court to what Goddard, L.J. stated in Love v. Norman Wright (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho transported goods from the factory to his place of business. But this does not mean that this court did not intend that freight expenses up to the point of delivery were not to be included in 'sale price'. As rightly pointed out by the Tribunal (in para 32(b) of the order), this court had also referred in Hindustan Sugar Mills case [1979] 43 STC 13 (SC); [1978] 4 SCC 271 (at page 29 of STC) to the freight charges 'at the place of sale', which would clearly be referable to the freight charges up to the point of delivery." Therefore, the apex court has specifically stated and which has been rightly pointed out by the learned Tribunal that the charges which has been paid by the consumer at the place of sale would be nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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