TMI Blog2010 (1) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... ause 18 of the contract, which is on the record of the paper book, which records clearly that the fare and freight charges shall be born by the contractor. Thus, in view of this clause the Tribunal has rightly included freight in the turnover of the assessee. In so far as the second issue is concerned with regard to the evidence under section 3D, the Tribunal was not correct in rejecting the four forms dated March 22, 1994. The assessee has produced these four forms before the first appellate authority, but these four forms had contained cuttings. The cuttings were thereafter rectified by the assessee by producing a certificate of the railways to show the correct position. In so far as the third issue is concerned the assessee has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee as a manufacturer as the assessee is not a manufacturer within the meaning of section 2(e) of the U.P. Trade Tax Act. The questions of law sought to be answered are hereunder: (i) Whether, on the facts and in the circumstances of the case, the learned Tribunal was correct not to delete the cost of cartage from the payments of supply of ballast which has been separately charged as per Schedule of rates and as per clause (10) of the agreement? (ii) Whether the learned Tribunal was correct to hold that freight is the part of turnover only on the ground that the applicant has not submitted any bill for payment of the same to the railways ignoring clause 16 of the special conditions of contract which provides the mode of measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draw adverse inference that the production of stone ballast made by the applicant was duly recorded in the books and non-verifiability of the production and raw material where sales of manufactured goods are made to second party? (viii) Whether the Tribunal was correct to make enhancement in turnover when no enquiry was made from the railways that payment certificate was issued by the railways was verifiable (See New Era Processor v. Commissioner of Sales tax [1993] UPTC 213)? (ix) Whether the learned Tribunal was correct to reject four forms IIID dated March 22, 1994 issued by the railways on the ground that the same was not filed before the Tribunal when the applicant filed additional evidence specifically stating that the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee by producing a certificate of the railways to show the correct position. The Tribunal should have looked into this aspect of the matter and should have verified the genuineness of the four forms IIID produced by the assessee. In respect of the third issue, that is the opinion of the Tribunal, that the assessee was not maintaining the account books in accordance with section 12(2) of the Act is concerned, it is my opinion, that too was not correct. The provisions of section 12(2) of the Act have application only to an assessee, who is a manufacturer. The assessee, in the present case, is not a manufacturer. He is only a contractor, who is carrying the stone ballast to the railways. He is not involved in any manufacturing activit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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