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TMI Blog2017 (7) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The core issue involved in the two appeals was: whether freight, cylinder charges and handling charges were required to be included in the taxable turnover of the Respondent/Assessee. 4. The contention of the Revenue before the authorities below was that they were pre-sale expenses. The Tribunal, however, it appears, examined the sale bills, which were shown to it, during the course of the hearing and thereafter, recorded a finding of fact that freight and other charges were shown separately in the sale bills. 4.1. In so far as the cylinder holding charges were concerned, the Tribunal relied upon the judgment of the Kerala High Court: West coast Industrial Gases V. State of Kerala, 132 STC 177, in support of its conclusion, which, int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the ld. Appellate Assistant Commissioner has recorded the fact that the appellants have recorded in their Trading Account, the collection of incidental charges. As per the argument of the ld. Counsel, the incidental charges are related to cylinder handling charges collected by the dealers from various customers for the retention of the cylinders. By relying on the case law reported in 132 STC 177 (Ker) in the case of West Coast Industrial Gases v. State of Kerala, the ld. Counsel has stated that the collection of rent for retention of industrial gas cylinders beyond the stipulated period cannot be treated as turnover received for transfer of the right to use the cylinders, and the rent received for the delayed return of the cylinder is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department has not proved the fact that whether the dealer-appellants have transferred the effective control of the cylinders to their customers. It is common understanding that the gases filled in cylinders are used by the customers till it is exhausted. During the period of use, the customers are not having any right over the cylinders and it only a temporary possession of the goods at the hands of the transferee and there is no transfer of effective control. In view of the above facts and circumstances of the cases and the case law relied on, we find the incidental charges collected by the dealer-appellants from their customers cannot be includible in the taxable turnover as pre-sale expenses. Therefore, we set aside the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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