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TMI Blog2008 (8) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of the dealer-opposite party as Rs. 4,67,956 as against the admitted liability of Rs. 3,34,585.50. The matter was ultimately carried to the Tribunal. The Tribunal by the order under revision has allowed the appeal filed by the dealer-opposite party. In the memo of the revision the following questions have been sought to be raised by the Department: "1. Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to hold that transportation charges and sales tax amount, not separately charged by the dealer from the customers, were not part of the turnover of the dealer? 2.. Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to allow exemption to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the learned standing counsel for the Department with regard to question No. 1 is that the transportation charge is part of the "turnover" as defined under section 2(i) of the U.P. Trade Tax Act, 1948. The contention of the dealer-opposite party is that in view of the Explanation 1 to section 2(i) of the Act since the transportation charges have been charged separately, the transportation charges are liable to be excluded from the turnover. The Tribunal has accepted the contention of the dealer-opposite party. A bare perusal of the order of the Tribunal would show that the Tribunal has proceeded on the assumption that the dealer-opposite party has charged the transportation charge and the sale price separately in the account books. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the Tribunal for fresh consideration. Now, I take up question No. 2. The controversy involved therein is no longer res integra and has been set at rest by the apex court in Kalyani Breweries Ltd. v. State of West Bengal [1997] 107 STC 190; [1997] 8 JT 166 wherein it has been held that non-return of the empty bottles and forfeiture of the security amount, amounts to sale under the Sales Tax Act. It was a case under the Bengal Finance (Sales Tax) Act. The definition of "sale" as contained therein is almost identical to the definition of "sale" as contained in the U.P. Trade Tax Act. The Tribunal has relied upon its one earlier decision given in the case of M/s. Moon Braveries to hold that ownership of the bottles is never transferred. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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