J. S. VERMA, C. J. - (1.) THIS is a revision against the order of a Division Bench of the Board of Revenue dated 6th February, 1976. The only point involved for decision is, whether the market area cess collected by the assessee from the purchaser of the goods sold within the market area for being paid to the market area committee can be included in the sale price of the goods for computing the taxable turnover of the assessee. The Board of Revenue has accepted the assessee's contention that the cess collected by the assessee on behalf of the market area committee from the purchaser of the goods does not form part of the sale price. Hence this revision by the department.
(2.) ON behalf of the department reliance was placed on the Supreme Court decision in [1980] 46 STC 477 (Anand Swarup Mahesh Kumar v. Commissioner of Sales Tax) to contend that the cess collected by the assessee from the purchaser must form part of the sale price since the liability for payment of the cess is on the assessee who is the seller of the goods within the market area. This contention is untenable. The aforesaid decision of the Supreme Court itself negatives the contention. After referring to the earlier decisions on the point, the test applicable in such cases was indicated as under : " From the observations made in the decisions referred to above, it follows that where a dealer is authorised by law to pass on any tax payable by him on the transaction of sale to the purchaser, such tax does not form part of the consideration for purposes of levy of tax on sales or purchases but where there is no statutory provision authorising the dealer to pass on the tax to the purchaser, such tax does form part of the consideration when he includes it in the price and realises the same from the purchaser. The essential factor which distinguishes the former class of cases from the latter class is the existence of a statutory provision authorising a dealer to recover the tax payable on the transaction of sale from the purchaser. " It follows from the above test that in case liability for payment of the cess is on the purchaser of goods under the statute and not the seller, i. e. , the assessee, then the amount of cess collected from the purchaser by the assessee cannot be included in the sale price. Obviously, in such a situation the assessee merely collects the cess on behalf of the market area committee from the purchaser and passes on that amount to the committee. Such a mode is prescribed merely to facilitate collection of the cess. The relevant statutory provisions are contained in the Rajasthan Agricultural Produce Markets Act, 1961 and 1963 Rules framed thereunder. Section 17 of the Act provides that the market committee shall collect market fees from the licensees in the prescribed manner on agricultural produce brought or sold by them in the market area at the rates specified by the State Government. Rules 58 and 59 of 1963 Rules framed under the Act are relevant. Rule 58 provides for collection of cess, i. e. , market fees by the market committee on agricultural produce brought and sold in the market area. Sub-rule (2) of rule 59 expressly provides that the cess referred in rule 58 shall be paid by the purchaser of the agricultural produce. The proviso then says that where the purchaser cannot be identified, the cess shall be paid by the seller. These provisions clearly indicate that the liability to pay cess is on the purchaser and not on the seller of the goods. This being so the test indicated by the Supreme Court in the above decision leaves no doubt in the present case that the cess collected by the assessee from the purchasers and then paid to the market committee cannot form a part of the sale price for computing the taxable turnover of the assessee. There is thus no infirmity in the conclusion of the Board of Revenue. The revision is, therefore, dismissed. No order as to costs. Petition dismissed. .;