TMI Blog2011 (3) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... een allowed to become final by the Revenue vide the order produced before this court, this court is of the view that the Revenue cannot now contend that either the matter deserves to be remanded back to the assessing authority or such optional service charges realised by the assessee in after sales separate contract while selling the refrigerators, deserves to be included in the selling price. The controversy stands concluded in favour of the respondent-assessee and, therefore, the present revision petition filed by the Revenue is found to be devoid of merit and the same is accordingly dismissed. - S.B. Sales Tax Revision Petition Nos. 47, S. B. Sales Tax Revision Petition Nos. 49 of 2005 - - - Dated:- 30-3-2011 - DR. VINEET KOTHARI J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after sale service and repairs to such refrigerators, treating the same as part of assessable value under the Central excise law. The learned counsel appearing for the Revenue, Mr. R. B. Mathur urged that a coordinate Bench of this court in the later case of Commercial Taxes Officer v. Weston Electroniks Ltd. [1992] 87 STC 522 (Raj) and in the case of Commercial Taxes Officer v. Kelvinator India [1993] 90 STC 336 (Raj) remanded similar cases back to the assessing authority for finding as to whether such warranty charges or optional service charges were really optional on the part of the customers or not and, therefore, in the absence of any such finding where the assessing authority in the present case has found that more than 90 per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard. In the considered opinion of this court, the controversy in hand as to whether the optional service charge at ₹ 175 per refrigerator realised by the assessee is taxable in the hands of respondent-assessee or not as part of sale price or not, is no longer res integra and the same stands concluded by the judgments cited at the Bar by learned counsel for the respondent-assessee. In Collector of Central Excise, Delhi v. Kelvinator of India Ltd. [1988] 69 STC 427 (SC), the apex court held, on the basis of the evidence before it, that more than 91 per cent of the purchases made by the consumers of such refrigerators had opted for the said warranty contract and had paid such optional service charges to the dealer, still the apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion later, as and when the dealer anticipated further demand from his customers. The Tribunal on an analysis of the evidence came to the conclusion that it was after-sale service and it was optional. Therefore, such service charges were not includible in the assessable value of the respondents herein. The principle under which these will be includible has been laid down in Union of India v. Bombay Tyres International Ltd. [1984] 1 SCR 347, where Pathak, J. as the learned Chief Justice then was, inter alia, observed as follows:- ' . . .expenses incurred by the assessee up to the date of delivery on account of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal set aside the order of the Collector of Central Excise (Appeals) and allowed the appeals. The contract for four years warranty service was optional, which was entered into later on. This is clearly after-sale facility, and cannot be indudible in the assessable value of the refrigerators. In the aforesaid view of the matter, the Tribunal was right in the view it took. These appeals fail and are accordingly dismissed. In Commercial Taxes Officer v. Kelvinator India [1993] 90 STC 336 (Raj) a coordinate Bench of this court while remanding the case back to the assessing authority held as under (pages 339 and 340 in 90 STC):- I have considered over the matter. In the case of Commercial Taxes Officer v. Weston Electroniks Ltd. [199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Kotwani that the definition as given under the Central Excises Act for the purpose of cost cannot be applied nor the decision thereof have any relevancy because the Rajasthan Sales Tax Act, is a self-contained code and in view of the specific definition the assistance from the other Act cannot be taken. In these circumstances, I am of the view that if the payment in respect of warranty was voluntary in nature and has separately been charged then it will not form the part of the sale price. The assessee has neither produced the books of account, nor the information required was furnished before the assessing authority and the Tribunal has proceeded only on the basis of one bill. It would be proper to send the matter back to the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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