CHAUHAN, J. - (1.) THE instant revision has been filed against the order of the Division Bench of the Rajasthan Tax Board, Ajmer, dated 24. 7. 2001, by which it has held that the inspection charges paid by the assessee but subsequently reimbursed by the purchaser, shall not form part of the sale price.
(2.) THE facts and circumstances giving rise to this case are that the respondent-assessee had entered into an agreement with the public Health & Engineering Department, Rajasthan, for the sale of A. C. Cement Pressure Pipes and inspection charges had to be paid by the purchaser subsequently. THE Assessing Authority, when made the assessment for the years 1987-88, 1990-91 and 1991- 92, held that the said inspection charges formed part of the turn over being an integral part of the sale price and the tax was imposed. Subsequently, appeals were filed, which had been accepted by the Appellate Authority vide judgment and order dated July 15/16, 1998, against which further appeals were preferred before the Rajasthan Tax Board, which have been rejected vide impugned judgment and order dated 24. 7. 2001. Hence this revision. The only legal question involved in the revision is : whether inspection charges paid by the dealer-assessee and subsequently reimbursed by the purchaser would form a part of "sale price" within the meaning of Section 2 (p) of the Rajasthan Sales Tax Act, 1954 (hereinafter called "the Act, 1954") and could be included in the turn over within the meaning of Section 2 (p) of the Act, 1954. The provisions of Section 2 (p) of the Act, 1954 are analogous to the provisions of Section 2 (39) of the Rajasthan Sales Tax Act, 1994 and the definition is para-materia with the definition of the term given in Central Sales Tax Act and reads as under :- " `sale price' means the amount payable to a dealer as consideration for the sale less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged and the expression `purchase price' shall be construed accordingly. . . . " The said provision makes it clear that the sale price means the consideration, for which a title of the property has been transferred and it may not include discount or rebate given according to the practice prevailing in the trade, but would include any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof. Therefore, the question does arise as to whether the "inspection charges" could be included in the sale price and to determine the said issue, it may also be relevant to find out as to whether inspection was necessary/mandatory requirement of some statutory of some statutory provision for giving effect to the sale. The expression "sale price' has been considered by the Courts from time and again. The Hon'ble Supreme Court in Hindustan Sugar Mills Ltd. vs. State of Rajasthan & Ors. (1), considered the issue as to whether the freight paid by the purchaser and deducted from invoice could be included in the sale price under the provisions of Section 2 (p) of the Act, 1954 or Section 2 (h) of the Central Sales Tax Act, 1956. As per the then existing statutory provisions, i. e. Cement Control Order, 1967, the freight stood included in the sale price and it was shown separately recovered from the purchaser b the dealer assessee, it was found to be in contravention of law, i. e. the Control Order. The Hon'ble Supreme Court observed that the definition was in two parts; the first part provided that the sale price was a consideration for the sale of any good, therefore, actual or real sale price in such eventuality became irrelevant and the test to determine as what was the sale price, was held to be as what was the consideration passing from the purchaser to the dealer for the sale of good.
(3.) THE sale price will take within its ambit the excise duty etc. being the component of the sale price and in such an eventuality, the dealer-assessee does not have any option except to reimburse the producer for the excise duty already paid by him on the manufacture of the goods, but it would be a part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for sale of the goods that the amount representing excise duty would be payable by the purchaser. THE Court further observed as under:- " THEre is no other manner of liability statutory or otherwise, under which the purchaser would be liable to pay the amount of excise duty to the dealer. . . . but as the freight under the Control Order was to be paid by the seller, it had to form the part of the sale price. " The Court further held that as the definition was inclusive and exclusive both, the Revenue must show that the particular amount falls within the first part of the definition and is, therefore, part of the sale price. The exclusion clause cannot avail the assessee to take the amount out of the amount of sale price. The exclusion clause is not intended to apply to a case where the cost of the freight is part of the sale price but the dealer chooses to split up the price and claims the amount of freight as a separate item in the invoice. Where the cost of the freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part has no application. The case was basically of an interpretation of statutory requirement where the freight charges stood included in the sale price by the Control Order and the Hon'ble Supreme Court held that the provisions of the Act, 1954 had to be read in consonance with the Control Order. It is settled legal proposition that the contract has to be read in consonance with the law and not otherwise. (Vide Union Territory, Chandigarh Administration & Ors. vs. Managing Society, Goswami GDSDC, (2) and V. Karnal Durai vs. District Collector, Tuticorin & Anr. ;