TMI Blog2008 (8) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... ack to the Tribunal to rehear and redecide the appeal afresh in the light of the observations made above in accordance with law - 433,434, 435,436 of 2003 - - - Dated:- 14-8-2008 - PRAKASH KRISHNA , J. PRAKASH KRISHNA J. The above four revisions were heard together and are being disposed of by a common judgment. They relate to the assessment years 1990-91, 1991-92, 1992-93 and 1993-94. The dealeropposite party is a society and carries on the business of coal. It has supplied coal to its members who are brick-kiln owners. The only question raised in these revisions is whether inward freight is part of turnover or not. In the memo of revision, the following common question of law has been framed: (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold that inward freight is not part of turnover, only on the ground that it was charged separately? The assessing authority held that inward freight is part of turnover and the dealer is not the agent of the brick-kiln owners, the purchasers of the coal. This part of the assessment order has been set aside by the first appellate authority. Shri Om Prakas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt then the freight will form part of the turnover and will be added in the price of the coal. The assessing authority has found that there is no material on record to show that the dealer-opposite party made purchases as an agent on behalf of the brickkiln owners to whom the coal was allegedly sold. Neither the first appellate authority nor the Tribunal addressed the above finding of the assessing authority and they simply followed the judgment of the apex court in the case of Vinod Coal Syndicate [1989] 73 STC 317; [1988] UPTC 218. The nature of such transactions has been examined by this court in depth in Commissioner of Trade Tax v. Sunil Kumar Coal Agent, Gorakhpur [2003] UPTC 1036. In this case the judgment of the apex court in Vinod Coal Syndicate [1989] 73 STC 317; [1988] UPTC 218 which was followed in Bhartiya Coal Traders v. State of U.P. [1989] UPTC 778 and Commissioner of Sales Tax v. Baba Rice and Dal Mills [1999] UPTC 56 has been considered. After consideration of various cases it was held that in the absence of any evidence or material of agency, the supply of coal by such persons, like the dealer-opposite party, does not create a relationship of agent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise. By camouflaging the bill-book, etc., and by charging the freight separately in the bills a dealer may try to evade the payment of trade tax on the freight. Such dealer who has incurred all the expenditures up to the stage of delivery of coal to the brick-kiln owners is not an agent but a principal.8 The title in the coal passes to brick-kiln owners only at the time of delivery of coal and not earlier to it. The aforesaid principle of law has been reiterated by this court, time and again. For example Commissioner of Trade Tax v. Ramapati Tewari Jainath Tewari [2005] UPTC 76 and Commissioner of Trade Tax v. Sharma Coal Co., Azamgarh [2008] 16 VST 517 (All); [2005] UPTC 1165, etc. It may be noted that in the case of Vinod Coal Syndicate [1989] 73 STC 317 (SC); [1988] UPTC 218, the controversy involved therein was as to whether the amount paid by way of freight by the principal to the dealer who was a commission agent was liable to be included in the taxable turnover of the dealer or not. At this juncture, the learned counsel for the dealer-opposite party relied upon the case of Indian Aluminium Cable Co. Ltd. [1999] 115 STC 444 (All); [195] UPTC 705 wherein the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than the cost of freight or delivery or the cost of installation in case where such cost is separately charged'. Therefore, 'any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof' is to be regarded as part of 'sale price', even if it does not fall within the first part of the definition. But there is an exception carved out of this inclusion. Not all sums charged for something done by the dealer in respect of the goods at the time of or before the delivery thereof are covered by the inclusive 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 som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India Ltd. v. Assistant Commissioner of Sales Tax, Indore AIR 1980 SC 807 and Ramco Cement Distribution Co. Pvt. Ltd., Tamil Nadu v. State of Tamil Nadu [1993] 88 STC 151 (SC); AIR 1993 SC 123. Even otherwise also, the assessing authority has found that there is no evidence of payment of freight by the brick-kiln owner. No document in support of the said plea was produced. The two authorities below, without reversing the said finding recorded by the assessing authority, have set aside said part of the assessment order on the basis of the case of Vinod Coal Syndicate [1989] 73 STC 317 (SC); [1988] UPTC 218. Even for the applicability of the case of Vinod Syndicate [1989] 73 STC 317 (SC); [1988] UPTC 218 necessarily a finding that freight was separately charged in the bills is required for its exclusion from turnover . Neither the Tribunal nor the first appellate authority have examined this aspect of the case, therefore, it is desirable that the matter should go back to the Tribunal to re-examine the matter again and to record a finding with regard to the question of charging of freight separately, also. By way of clarification it is added that any observation made on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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