9911796707
TMI Blog1976 (4) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... 7A. Pursuant to a tender for the supply of paddy straw to the Government Dairy Farm at Haringhata, the said firm, whose tender was accepted, had supplied about 50,000 quintals of paddy straw by instalments during the year in question. The price of the said paddy straw was worth about Rs. 4,30,000 and from the bills as produced in the proceeding, it appears that they included a sum of Rs. 4,07,346.03 as delivery charges and carrying costs. Thereafter, a notice in form VI was issued by the Commercial Tax Officer concerned under the provisions of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the said Act), for final examination of the books of account of the said firm. It is also an undisputed fact that on or about 5th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges were not taxable and as such the assessment which was made on that basis was incorrect. Such objections of the said firm were of course overruled by the appellate authority. After the said determination, the said firm obtained the connected rules and the contentions which were raised before the appellate authority were also urged once more before this court. In their turn, the respondents submitted that the price quoted was inclusive of delivery charges and the said tender form would leave no scope for the supplier to bill for delivery charges separately. It was further contended by the respondents that whatever amount the said firm received from the Haringhata Dairy Farm was in payment of the "sale price" of straw and the latter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout notice or opportunity to the said firm have been taken into consideration. Apart from these, the said firm also contended that rules 44 and 47 of the Rules framed by this Court for furnishing of security as a condition precedent for obtaining interim orders in revenue matters are ultra vires under article 226 of the Constitution. The points, as mentioned hereinbefore, have, of course, been negatived by the learned Judge in the trial court and answered against the said firm. In this appeal before us, Mr. Das has not, of course, argued the point regarding ultra vires. But he has argued that (1) since straw is a "cereal" so the same is totally exempted under section 6 read with item 6 of Schedule I of the said Act, as cereal has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved by the Supreme Court in the case of Motipur Zamindary Co. (Private) Ltd. v. State of Bihar [1962] 13 S.T.C. 1 (S.C.)., has to be understood in a taxing statute as in common parlance, certain class of vegetables, which are grown in kitchen-garden or in a farm and are used for the table. Apart from the above case, the Supreme Court had occasion to deal with the meaning of "vegetables" earlier in the case of Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola[1961] 12 S.T.C. 286 (S.C.)., and it has been observed there that the word "vegetables" must be construed neither in a technical sense nor from the botanical point of view; it should be understood as in common parlance. It has also been observed that a word, which is not defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears to us that the said firm did not separately charge for the delivery charges but the same was included in the "sale price". This fact was, however, detected by the authorities concerned on inspection of the records from the Haringhata Dairy Farm, which has been alleged to be violative of the principles of natural justice as the firm has contended that such information was received behind their back and without any opportunities to them. However, on the basis of the definition of "sale price" in section 2(h) of the Act, according to us, there is no room for doubt that the same would not include the delivery charges or freight costs as claimed by the said firm. In support of the third branch of his submissions, Mr. Das contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts. The view, which we have taken, also finds support from the determination of the Supreme Court in the case of Tungabhadra Industries Ltd. v. Commercial Tax Officer[1960] 11 S.T.C. 827 (S.C.). , wherein it has been observed that in order to enable a dealer to claim the deduction, the freight should be charged for separately and not included in the price of goods sold. In view of the above, we hold that the submissions of Mr. Das are of no substance. This appeal, therefore, fails and is dismissed. The judgment and order of the learned Judge in the trial court is affirmed. It may be recorded that no point other than the points as mentioned above was urged by Mr. Das. Since the facts and points of law involved in F.M.A. No. 780 of 1975, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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