TMI Blog2021 (11) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... cord to show that the transportation charges were in fact collected by the Petitioner, it is not possible to sustain the above conclusion of the Tribunal - the question is answered in the negative, in other words, in favour of the dealer and against the Department. It is held that the Tribunal was not justified in directing addition of the transportation charges to the sale price of the goods under the OST Act - the order of the ACST is restored. The revision petition is disposed off. - STREV No.74 of 2006 - - - Dated:- 17-11-2021 - DR. S. MURALIDHAR CHIEF JUSTICE AND A.K. MOHAPATRA JUDGE Petitioner Mr. Jagabandhu Sahoo, Senior Advocate Opposite Party Mr. S.S. Padhy, ASC ORDER Dr. S.Muralidhar, CJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al cost of the goods including transit and incidental expenditure till the delivery of the goods at the destination point of the purchaser would constitute the actual sale price. It was concluded that the dealer was in fact incurring the transportation charges, but was passing on the same with a view to avoiding tax . 4. The matter then went in an appeal to the Assistant Commissioner of Sales Tax (ACST). The ACST by the order dated 30th March 1991 agreed with the dealer that there is absolutely no evidence that the Appellant used to transport the cement to the customers place and collected freight charges and avoided payment of tax on the same (freight charges). Accordingly, the tax assessed by the STO on transportation charges was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The transactions, i.e. sales of cement, are admittedly intra-State sales. Those are not being inter-State sales it is to be construed that the buyers used to get delivery of the goods only after the goods reached the respective destinations of the buyers inside Orissa. A sale inside Orissa cannot be said to take place when the goods are in another State. Undisputedly, the dealer s agent or staff used to receive the goods from M/s Modi Cement Ltd. at Balodabazar, Madhya Pradesh. So, the only possible and permissible conclusion is that it was the dealer who, in fact, caused the goods to be transported to be delivered to the buyers in Orissa and the payment of transportation charges must be deemed to have been borne by the dealer. So, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly by the principals. The High Court erred in including the cost of freight in the taxable turnover of the appellant. 11. In the present case also from the order of the ACST, it is plain that there was no evidence to show that the dealer had separately charged and collected the transportation charges. The impugned order of the Tribunal proceeds on surmises. Particularly the conclusion of the Tribunal that the payment of transportation charges must be deemed to have been borne by the dealer is unacceptable in the absence of any documentation to support such an assumption. 12. With there being no evidence placed on record to show that the transportation charges were in fact collected by the Petitioner, it is not possible t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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