- (1.) B. K. SINGH, J. These revisions under section 11 of the U. P. Sales Tax Act 1948 (hereinafter referred to as "the Act") have been preferred by the Commissioner, Trade Tax, U. P. , Lucknow, against the order dated April 8, 1993 passed by the Sales Tax Tribunal, Ghaziabad, relating to assessment years mentioned in the order of the Tribunal under the U. P. Sales Tax Act, 1948 and Central Sales Tax Act, 1956. The relevant facts giving rise to the present revisions may be stated.
(2.) THE assessee-opposite party is a limited company carrying on the business of manufacture and sale of A. C. S. R. conductors, wire, etc. THE assessee in its returns for assessment years under the U. P. Sales Tax Act and Central Sales Tax Act disclosed its taxable turnover. THE amount received on account of freight and insurance charges from the purchasers was not included in the taxable turnover. A plea was taken that the amounts recovered as freight and insurance charges, which were billed separately, do not fall in its taxable turnover. THE excise duty was also stated to be not a part of the taxable turnover. THE above plea of the assessee did not find favour with the assessing authority. THE excise duty and the freight and insurance charges were included in the taxable turnover and the assessee was accordingly assessed. THE assessee feeling aggrieved against the order passed by the assessing authority preferred appeals under section 9 of the Act before the Deputy Commissioner (Appeals), Sales Tax, Ghaziabad Range, Ghaziabad. THE appellate authority rejected the appeals. THE assessee challenged the orders by preferring second appeals under section 10 of the Act before the Sales Tax Tribunal, Ghaziabad Bench, Ghaziabad. THE Tribunal after hearing the parties and quoting the relevant provisions of the Act as well as giving a specimen of the bill of the assessee-opposite party held that excise duty charged by the assessee was part of the taxable turnover and accordingly it was rightly included in the turnover. However, as regards the freight and insurance charges are concerned, the Tribunal held that the same having been charged separately by the assessee-dealer was not part of the taxable turnover. Accordingly, Appeal No. 314 of 1988 was rejected and the other appeals were partly allowed. The department feeling aggrieved has preferred the revisions. The assessee has not preferred any revision against that part of the order passed by the Tribunal, by which its plea that excise duty was not includible in the taxable turnover has been rejected. Thus the only question that arises in these revisions is as to whether the handling and freight charges, which have been charged separately by the assessee-dealer, could be included in the taxable turnover of the assessee or not. I have heard the learned Standing Counsel appearing on behalf of the department and Sri R. R. Agarwal, Senior Advocate, for the assessee-dealer.
(3.) THE learned Standing Counsel has argued that the view taken by the Tribunal that freight and insurance charges are not part of the taxable turnover is wholly erroneous. According to him, the said view is contrary to the provisions contained in section 2 (i) of the U. P. Sales Tax Act and section 2 (h) and 2 (i) of the Central Sales Tax Act. THE learned Standing Counsel has submitted that the said finding of the Tribunal is not based on any evidence and that the Tribunal could not legally ignore law. According to the terms of the contract between the opposite party-dealer and the purchasing dealer itself, all the responsibilities in relation to the sale and delivery of goods were of the opposite party-dealer till the delivery of goods. THE learned Standing Counsel has further submitted that thus the order of the Tribunal is contrary to the law laid down by honourable the Supreme Court in the case of Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13; 1979 UPTC 37. The learned counsel for the respondent has submitted that the definition of "turnover" given in section 2 (i) of the U. P. Sales Tax Act and section 2 (h) and (i) of the Central Sales Tax Act itself excludes the freight and insurance charges as part of the turnover. The learned counsel has submitted that now it is settled that in case the freight and insurance charges are charged separately from the purchasers, the same cannot be included in the taxable turnover of the assessee. In support of his contention, the learned counsel has relied upon the judgments of the honourable Supreme Court in Vinod Coal Syndicate v. Commissioner of Sales Tax U. P. [1989] 73 STC 317; 1988 UPTC 218, Deputy Commissioner of Sales Tax (Law) v. K. P. Moideenkutty [1993] 90 STC 36, J. P. Cement, Bareilly v. Commissioner of Sales Tax, U. P. 1989 UPTC 752 (All.) and M. P. Traders v. sales Tax Tribunal, U. P. , Allahabad [1990] 76 STC 194 (All. ). The learned counsel has further pointed out that the law laid down in the case of Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13 (SC); 1979 UPTC 37 is on a different issue and the benefit was not granted because the price of the commodity, i. e. , cement in the said case was regulated by the Cement Control Order. As such, the taxable turnover with reference to cement could not be applied to the facts of the present case. It has further been submitted that the honourable Supreme Court in a later decision in Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu [1993] 88 STC 151 has explained the position. According to the learned counsel, it has been held that but for the scheme and provisions of the Cement Control Order and their implications the assessee might have been entitled to succeed in excluding the freight charges in case the terms and conditions of the contract had stood alone. For this principle the case of Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh [1969] 24 STC 487 (SC) was referred. The learned counsel submitted that in view of the above legal position, the submission of the learned Standing Counsel is wholly untenable and the revisions should be dismissed.;