TMI Blog2018 (2) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... rove was that the purchaser had paid only the sum originally charged less the discount and that this should be a regular practice in the trade. A bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines “sale price” clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of ‘turnover’ means the aggregate amount received or receivable by a dealer. In the instant case, when the orders were placed with the assessee, the price was not finalized by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AOR JUDGMENT Deepak Gupta J. 1. Leave granted. 2. Since a common question of law arises in these appeals, they are being disposed of by this common judgment. Briefly stated the facts are that the appellant-assessee manufactures cylinders for storage of Liquefied Petroleum Gas (LPG). At the relevant time, the entire production was for supply to Government owned companies viz. M/s. Indian Oil Corporation Ltd.(for short the IOC ), M/s Bharat Petroleum Corporation Ltd., and M/s Hindustan Petroleum Corporation Ltd.. It is not disputed that the cost of the cylinders was determined by the Ministry of Petroleum and Natural Gas (for short the MoP NG ) under the pricing policy. 3. On 04.05.2000, the IOC placed an order for sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess sale amount i.e. ₹ 37/. The case of the assessee was that he had paid tax on the provisional price of ₹ 682/per cylinder. After the price had been reduced to ₹ 645/, he was only entitled to ₹ 645/. The oil companies had taken refund of the amount of ₹ 37/and, therefore the tax paid on the excess amount be refunded to him. The assessee also urged that this amount of ₹ 37 should not be counted in its total turnover. 7. The Assessing Officer rejected the claim of the assessee on the ground that there is no provision under the Act for reducing or refunding the amount of tax once the amount of tax has been paid. It was also observed that the arrangement of the assessee with the oil companies was in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that since the words paid , payable , amount received and or receivable have been used in the aforesaid two sections, the assessee was entitled to receive the amount of ₹ 682/per cylinder and if he has given any discount, he cannot claim refund of the same and the price of the cylinder cannot be said to be ₹ 645/per cylinder. The High Court also held that the goods were delivered at ₹ 682/per cylinder and this amount was collected and therefore, no amount should be refunded. 11. We have heard learned counsel for the parties and a number of decisions have been cited. 12. In IFB Industries Limited v. State of Kerala (2012) 4 SCC 618 , the issue was with regard to the definition of turnover . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued on the basis of the provisional price, the price to be taken into consideration for calculating the turnover and the sale price must be the actual price received by the assessee. 14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd . v. Collector of Central Excise, Madras (1997) 5 SCC 104 . We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate. 15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines sale price clearly indicates that it is the price which is either paid or payable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has actually received is only ₹ 645/per cylinder. What was legally receivable by it was the amount to be finally fixed by the MoP NG i.e. ₹ 645/per cylinder. In the supply order only a provisional price was fixed. We have also taken into consideration the fact that the price fixation is not in the hands of the assessee. It is not even in the hands of the oil companies. The price is fixed by the MoP NG and in such an eventuality, the amount actually payable is the amount to be fixed by the MoP NG and that is also the amount which the assessee is legally entitled to receive. 18. In view of the above discussion, we allow the appeals, set aside the judgment of the High Court and direct that the assessee shall be refunde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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