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TMI Blog1973 (12) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ale price charged from its customers and, therefore, did not include it in its turnover. The assessing officer included this amount in its gross turnover stating that "as this amount forms part of the sale proceeds the gross turnover will have to be added by the total amount received on this account". Before the appellate authority the stand taken on behalf of the assessee-company, as evidenced by the grounds of appeal, was that the said amount of cesses did not form part of the value of the coal but was levied on despatches and even on despatches by rail such cesses are realised from the customers and the amounts are not subjected to the provisions of the Act. The appellate authority overruled the objection of the assessee. It purported to follow a decision in M/s. National Cement and Mines Industries v. State of Bihar1961 B.R. & L.J. 62. The appellate authority also took the view that the amount in question formed part of the sale price and was, therefore, chargeable to sales tax. The assessee went up in revision before the Tribunal and was overruled by it also. On being asked to state a case, the Tribunal did it and referred the question of law aforesaid to this court for determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected as rescue cess on despatches of coal and coke. Sub-rule (3) of rule 13 provides for the manner of recovery of the impost from the owner of the mine, when the despatch of coal or coke is otherwise than by rail. Under sub-rule (3)(c), an obligation has been cast on the mine-owner to desposit the impost in the Government treasury under a challan showing a separate head as in the case of railway. If the mineowner does not pay, then the president of the committee has been authorised to recover the unpaid amount of the duty of excise in the same manner as laid down in Chapter IV of the Welfare Fund Rules for the recovery of duty of excise by the Commissioner, that is to say, more or less, as a land revenue. Rule 14 deals with payment, deposit and application of duty of excise collected in accordance with Coal Mines Rescue Rules. The fund has to be applied towards meeting the expenses of the committee and allied works. 4.. The second impost is under section 3 of the Coal Mines Labour Welfare Fund Act, 1947 (Central Act 32 of 1947), which runs as follows: "Section 3. Imposition and collection of duty.-(1) There shall be levied and collected as a cess for the purposes of this Act a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Central Government to make rules providing for the levy, collection and payment of the duties of excise. In exercise of the said power, the Central Government framed the Coal Mines (Conservation and Safety) Rules, 1954. It will be noticed from the provisions contained in Chapter V of these Rules that the procedure for levy and collection of excise duty is almost identical to the one provided for in the Coal Mines Labour Welfare Fund Rules. The object of the Coal Mines (Conservation and Safety) Act is to provide for the conservation of coal and make further provision for safety in coal mines. A board has been established under section 4 of this Act to carry out its purposes. 6.. It would thus be seen in all the three cases of levy of excise duty, which have been collectively described as excise, welfare and rescue cesses, that for specific purposes on despatches of coal or coke certain amount is levied and collected. Section 3(2) of the Coal Mines Labour Welfare Fund Act in express terms and the other provisions by necessary implication create agencies for collection of the various excise duties in question. When the despatches are by rail, collecting agency is the railway ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the consignor or the consignee, it is legitimate to take the view that the amount of excise duty or cess will not form part of the sale price. Does it stand to reason that, merely because, the despatch is by road, the amount paid by the dealer in the first instance and collected by him ultimately from his customer forms part of the sale price? To my mind the answer must be in the negative. Does the dealer realise the amount deposited by him in the Government treasury on account of excise duty and cess as part of the valuable consideration for the sale of the goods? Ordinarily and generally, whatever is expended or invested by the dealer in making the goods in a salable or deliverable state and realised by him from his customer will be treated as valuable consideration in respect of the sale of the goods and, therefore, would mean the sale price. But all sums spent by the dealer for the purpose of facilitating delivery or despatch of the goods to the customer would not necessarily form part of the sale price. If the dealer charges a consolidated amount for whatever he has done from his customer, then the whole amount charged by him may be treated as sale price either within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight and under the terms of the contract the price received by the company for sale of the goods was the invoice amount less the freight. In the instant case, it should be noticed that there is no finding by any of the authorities below that the dealer treated the amount as a part of the price or charged sales tax upon it. There is no finding that in some cases the dealer was realising the amount of excise, welfare and rescue cesses from its customers, and in some cases it was not. On the findings, the position seems to be that invariably the dealer was realising the amount from its customers on despatches of coal made by road. Therefore, by necessary implication, it can be safely inferred that the course of dealing between the parties was that the obligation to pay the amount was ultimately on the customer. I am, therefore, of the opinion that. the sum paid by the dealer on account of excise, welfare and rescue cesses to the tune of Rs. 54,305, in accordance with the three rules aforesaid, and realised by it from its customers, was not a part of the valuable consideration in respect of the sale effected by it, but was something distinct and separate from it. The line of distincti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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