TMI Blog2016 (9) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... /inspection of goods as the same is not the part of sale price? - Held that: - The pre-sale inspection or performance testing though was done at the site of the factory of the assessee, it was being done at the instance of the purchaser for which the purchaser had separately paid and the inspection was being carried out by third party agency. Though the terms of the contract also referred to inspection as part of the sale consideration, the same when appreciated in connection with other conditions would show that such inspection was after installation inspection and did not refer to presale inspection - the test performed for the inspection was neither done by the assessee nor was charged by the assessee and would therefore not be included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available. Appeal dismissed - decided against Revenue. - TAX APPEAL NO. 359 of 2013 - - - Dated:- 15-9-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR HARDIK VORA, AGP FOR THE OPPONENT : KUNTAL A PARIKH, ADVOCATE, MR PARESH M DAVE, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This appeal is filed by the State Government challenging the judgment of The Gujarat Value Added Tax Tribunal (`the Tribunal' for short), in which the following questions of law have been framed: (A) Whether on the facts and in the circumstances of the case, the tribunal has rightly held that, the appellant cannot levy tax on performance test/inspection of goods as the same is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee approached the Tribunal after failing before the Appellate Commissioner. The Tribunal noted that the assessee was awarded a contract by one Indraprastha Gas Ltd. for supplying machinery and execution of project for a total contract price of 20.90 crores (rounded off) on F.O.T.site basis. The contract price would remain fixed till complete execution of the work order. The contract price would include packing, forwarding, freight, insurance, inland transportation upto destination including unloading at site, erection, testing, commissioning and maintenance for one year upto warranty period and all taxes. The Tribunal, referring to a decision of Rajasthan Bench of the Tribunal in case of Commercial Taxes Officer, Special Circle I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler in respect of the goods at the time of or before delivery thereof, other than the cost of insurance for transit or of installation when such cost is separately charged and includes,--.... It is not even the case of the revenue that the instance falls under the `includes portion' of the definition which therefore we have not reproduced. If we therefore refer to the main body of this definition, it provides that the sale price means the amount of valuable consideration paid or payable to a dealer for any sale made including any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof other than the cost of insurance for transit or of installation when it is separately charged. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STC 238 and allowed the assessee's appeal. 6. Rule 44 of the Sales Tax Rules refers to drawback, set off or refund of the tax for the purchase of the goods sold in course of intrastate trade or commerce or of export out of the territory of India or transported to a place outside State of Gujarat. Subject to the conditions specified in Rule 44, this Rule envisages set off, drawback or refund of tax in respect of purchase of goods sold in course of intra-state trade or commerce or export out of the territory of India or transported to a place outside the State of Gujarat. In this context, the question arises whether in case on hand, the assessee had sold the packing material while selling the main product. In case of Rajsheel (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on a consideration of several components including the value of the packing material, nonetheless the price is the price of the goods. It is not open for anyone to say that the value of different components which have entered into a determination of the price of the goods should be separated nor different rates of tax could be applied according to the component used. Section 6(C) merely clarifies and explains that the components which have entered into determining the price of the goods cannot be treated separately from the goods themselves. Section 6(C) was therefore not unconstitutional. It was further observed that the transaction of sale may consist of a sale of the product and a separate sale of the container housing the product w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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