9911796707
TMI Blog2023 (2) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... ther under the facts and circumstances of the present case, the Rajasthan Tax Board was justified in ignoring the submission that if at all the levy of tax on element of freight was to be upheld, then the rate thereon had to be the same as levied on goods against Form "C" in view of the provisions of Section 8(1) of the Central Sales Tax Act, 1956?" 3. It is submitted on behalf of the petitioner-assessee that the petitioner-assessee is carrying on business of manufacturing and sale of PVC Cables, ACSR Conductors and other kinds of cables; and majority of their sales are to the State Electricity Boards across India who purchased the material for generation, transmission and distribution of electric power. It is further submitted that regular assessment was duly carried out under Sections 23/24 of the Rajasthan Value Added Tax Act, 2003 (for short, "RVAT Act") read with Section 9 of the Central Sales Tax Act, 1956 (for short, "CST Act") for the year under consideration. While making regular assessments, the element of freight which was collected separately and not included in the assessor's value for consideration of the purchase order was duly approved. The cause of action arose w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... के तथ्यों को दृष्टिगत रखते हुए एवं संविदा की शर्तों तथा ऊपर वर्णित माननीय उच्चतम न्यायालय के निर्णयों में प्रतिपादित सिद्धान्तों के आलोक में माल की F.O.R. Destination Delivery पाये जाने तथा माल की मार्गस्थ जोखिम अपीलार्थी की ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Industries (Rolling Mill) Ltd. Vs. Commercial Taxes Officer (SB STR No.317/2008, decided on 23/11/2016); Asstt. Commissioner Vs. M/s Rajasthan Cylinder and Containers Ltd. (SB STR No.262/2008, decided on 08/01/2015) and Commercial Taxes Officer Vs. M/s Roca Bathroom Products Pvt. Ltd. (DB STR No.282/2018, decided on 19/01/2022). Alternatively, without prejudice to his main arguments, learned counsel for the petitioner-assessee submitted that if the sale is at concessional rate against Form 'C', then the tax on the freight should be levied at concessional rate. In support of this contention, learned counsel has placed reliance on judgments rendered in Commissioner of Sales Tax Vs. Steel Tubes of India Ltd.: (1984) 55 STC 245 (MP) and Orient Paper Mills Ltd. Vs. State of Orissa: (1975) 35 STC 84 (Orissa). 8. Per-contra, learned counsel for the respondent-Revenue submitted that no question of law worth consideration arises in the present STRs. The concurrent findings given by the authorities below have adjudicated upon the question of facts and have arrived at the only possible logical conclusion. Learned counsel further submitted that the goods were delivered at F.O.R. destinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng market price of the goods on the date on which such goods are delivered to the buyer under such agreement, shall be deemed to be the sale price of such goods; Explanation II.-Cash or trade discount at the time of sale as evident from the invoice shall be excluded from the sale price but any ex post facto grant of discounts or incentives or rebates or rewards and the like shall not be excluded; Explanation III.-Where according to the terms of a contract, the cost of fright and other expenses in respect of the transportation of goods are incurred by the dealer for or on behalf of the buyer, such cost of freight and other expenses shall not be included in the sale price, if charged separately in the invoice; Emphasis supplied" 11. On perusal of the provisions of Section 2(36) of the RVAT Act and Section 2(h) of the CST Act, as referred above, it is beyond doubt that as per the Explanation III of Section 2(36) of the RVAT Act, the cost of freight, and other related expenses like insurance, would not be included in the sale price if the same are charged separately in the invoice, even if the same are included by the dealer for or on behalf of the buyer. Similarly, as provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Hindustan Sugar Mills Ltd. (supra), relied upon by learned counsel for the respondent-Revenue, is also distinguishable as the said case pertained to commodity cement, which was under the control order. The control order is under different statute which has an overriding effect over the definition of sale price and therefore, the Apex Court has taken a deviated view, but at the same time with the caveat that answer to question qua exclusion of freight would clearly be in favour of the assessee if we have regard to the terms and conditions of the contract without taking into account the provision of the control order. The relevant part of the judgment of Hindustan Sugar Mills Ltd. (supra), is reproduced below: "10. This would plainly and indubitably be the position where the contract of sale entered into by the dealer is for destination railway station. But here it is necessary to bear in mind a rather important distinction. There may be a case where the contract of sale may not be for destination railway station, but the price alone may be so. Where such is the case, the contract does not have all the incidents of a for destination railway station contract, but merely the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be complete as soon as the goods are put on rail at the place of despatch ? The answer to this question would clearly be in favour of the assessee if we have regard only to the terms and conditions of the contract without taking into account the provisions of the Control Order. Clause (8) of the "General Terms and Conditions of Supply" incorporated in the contract provided that once the goods are handed over to the railway and a railway receipt is obtained, the responsibility of the assessee shall cease and the risk shall pass to the purchaser and, therefore, if there is non-delivery or shortage or delay in delivery, it is the purchaser who, according to this clause, shall be entitled to make a claim against the railway. If there were over-charge of freight then again under Clause (11) it is not the assessee but the purchaser who would be entitled to lodge a claim with the railway authorities. The specimen invoice produced by the assessee also made it clear that the responsibility of the assesses for shortage, loss, delay or damage shall cease as soon as the goods are delivered at the Work Siding and all such claims may be preferred by the purchaser against the railway and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
