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TMI Blog1972 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... f coal was fixed by a notification (annexure D). Relevant part of the notification is Table II which gives a chart fixing the price for different grades of coal, per ton of 2,240 pounds or per ton of 1,000 kilograms. Below this chart, there is an explanation which is as follows: "Explanation-(i) The prices given in the above Tables from I to V..... (a) are exclusive of.......any tax leviable under the sales tax law of any State or under the Central Sales Tax Act, 1956 (74 of 1956) and...... ......................, but inclusive of all other cesses or imposts." 3.. This notification was issued under the Colliery Control Order, 1945. Paragraphs 4 and 5 are as follows: "4. The Central Government may, by notification in the Gazette of India, fix the price at which coal may be sold by colliery owners, and any such notification may fix different prices: (i) for different grades of coal and coke, and (ii) for different collieries. 5.. (i) No colliery owner, and no person acting on behalf of a colliery owner shall sell, agree to sell or offer to sell coal at a price different from the price fixed in that behalf under clause 4 or while purporting to charge a price not differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce but including any sum charged for anything done by the dealer in respect of the goods at the time or before delivery thereof other than the cost of freight or delivery or the cost of installation when such cost is separately charged and the expression 'purchase price' shall be construed accordingly." After consideration of these definitions, it is quite clear that a dealer, when selling his goods, charges a price and whatever he charges for selling his goods, it is included within the term "price" and consequently with the term "turnover" as stated above and the whole of the turnover is "taxable turnover" except those deductions which are not relevant here. 5.. The question which has been referred in these cases, therefore, turns upon this, whether the tax, which has been passed by the assessee on to his customers expressly mentioning it as tax in his contracts, is to be treated as having been realised as tax or as having been realised as part of the price. If it is realised as only a part of the price, it must form a part of it for the purposes of calculating the "turnover" also. But if it is chargeable separately as a tax, then its realisation cannot be treated to be as pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses as may be incurred or the taxes as may have to be paid. Quoting a price exclusive of expenses or taxes does not mean that expenses or taxes, when incurred as charged, do not form part of the price. This notification, therefore, clearly provides, to our mind, that the price which the collieries can charge is the rate mentioned in the chart plus the taxes levied under the States Sales Tax Act or the Central Sales Tax Act. 8.. In this connection, we may also deal with the argument of the learned counsel appearing for the assessee based upon paragraph 12B of the Colliery Control Order, 1945, which is as follows: "12B. A person who has been allotted coal under this Order shall not use it otherwise than in accordance with the conditions contained or incorporated in the document containing the order of allotment and shall not divert or transfer any such coal to any other person except under a written authority from the Central Government and at such price as may be fixed by the Government, and in fixing such price, the Central Government shall have due regard to the price fixed under clause 4 of this Order and the freight, cesses, taxes, middleman's commission and other incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teel (Control) Notification did not form part of the price paid by the customer to the assessee." Thus, their Lordships came to the conclusion that since the customer had paid the tax under the provisions of the notification, it did not form part of the price paid by the customer to the stock-holder. The position in this case is different. Here the notification does not make it a responsibility of the purchaser from the assessee to pay the tax. As stated above, the notification fixed the price and permitted the price to be increased by adding the tax. It did not compel the purchaser to pay the tax. 10.. The ruling relied upon by the learned counsel for the department is Delhi Cloth General Mills Co. Limited v. Commissioner of Sales Tax(1). That was a case which had gone to the Supreme Court from this State and all the definitions of "turnover" and "sale price", which we have quoted above, were also considered. After dealing with these definitions, their Lordships observed as follows: "In view of the definition of sale price all that we have to see is whether the collection of sales tax by the dealer from his purchasers can be considered as valuable consideration received ..... X X X X Extracts X X X X X X X X Extracts X X X X
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