P. N. Bhagwati, J. - (1.) These appeals by special leave arise common questions of law and it would be convenient to dispose them of by a single judgment.
(2.) The assessee effected certain transactions of sale of cement in accordance with the provisions of the Cement Control Order during the assessment period 1st August, 1971 to 31st July, 1972 and in the course of the assessment of the assessee to sales tax under the Madhya Pradesh Generals Sales Tax Act, 1958 and Central Sales Tax Act, 1956, a question arose whether the amount of freight which was included in the 'free on rail destination railway station' price, but which was paid by the purchasers and hence deducted from the price shown in the invoices sent to the purchasers, formed part of the sale price so as to be liable to be included in the taxable turnover of the assessee. The assessee, proceeding on the basis that the amount of freight did not form part of the sale price and was not includable in the taxable turnover, did not show it in the returns, but the Assistant Commissioner of Sales Tax took the view that having regard to the provisions of the Cement Control Order, the amount of freight formed part of the sale price and was includable in the taxable turnover of the assessee and on this view, he passed two orders of assessment, one under the Central Sales Tax Act, 1956 and the other under the Madhya Pradesh General Sales Tax Act, 1958, including the amount of freight in the taxable turnover of the assessee and levying tax upon it and also imposing heavy penalty on the assessee on the ground that the assessee had failed to disclose in its returns the amount of freight as forming part of the taxable turnover. The same position obtained also in regard to the assessment period 15th November, 1971 to 31st July, 1972 and a similar order bringing the amount of freight to tax and imposing heavy penalty on the assessee was passed by the Assistant Commissioner of Sales Tax under the Madhya Pradesh General Sales Tax Act, 1958. Since the question as to whether in respect of transactions of sale of cement governed by the Cement Control Order, the amount of freight formed part of the sale price and was liable to be included in the taxable turnover of the dealer, was pending decision in this Court, the assessee preferred appeals directly to this Court by special leave against the Orders of assessment made by the Assistant Commissioner of Sales Tax. The assessee challenged in the appeals not only the inclusion of the amount of freight in the taxable turnover of the assessee, but also the imposition of penalty for not showing the amount of freight as forming part of the taxable turnover in the returns.
(3.) So far as the first question is concerned, namely, whether the amount of freight formed part of the sale price and was includable in the taxable turnover of the assessee so as to be exigible to sales tax, it stands concluded by a recent decision given by this Court in Hindustan Sugar Mills v. State of Rajasthan, (1979) 1 SCR 276. It has been held by this Court in that case that by reason of the provisions of the Cement Control Order, 1967, which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed partof the sale price within the meaning of the first part of the definition of that term contained in Sec. 2 (p) of the Rajasthan Sales Tax Act, 1954 and Section 2 (h) of the Central Sales Tax Act, 1956 and was includable in the taxable turnover of the assessee.The definition of 'sale price' in S. 2 (o) of the Madhya Pradesh General Sales Tax Act, 1958 is materially in the same terms as Section 2 (p) of the Rajasthan Sales Tax Act, 1954, and this decision must therefore equally apply under the Madhya Pradesh General Sales Tax Act, 1958 and it must be held that the amount of freight formed part of the sale price within the meaning of the first part of the definition of that term in Sec. 2 (o) of the Madhya Pradesh General Sales Tax Act, 1958 and Section 2 (h) of the Central Sales Tax Act, 1956 and was rightly included in the taxable turnover of the assessee.;