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TMI Blog1987 (9) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... ax under the Orissa Sales Tax Act, 1947?" 2.. The periods involved in these three cases are the assessment years 1972-73, 1973-74 and 1974-76. The facts may be stated in brief: The opposite party, M/s. B.D. Patnaik, is a registered dealer under the Act carrying on business at Keonjhargarh. During the relevant assessment years, the dealer was operating two mines, one at Jaidega and the other at Jharbeda, with head office at Rourkela. The dealer entered into transaction of sale of some mineral ores with M/s. Hindustan Steel Limited, Rourkela. A proceeding under section 12(5) of the Act was initiated against the dealer by the assessing officer, who levied tax of Rs. 24,133.44 for the year 1972-73, Rs. 31,735.35 for 1973-74 and Rs. 26,984.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the sale price. The Tribunal accordingly directed that the gross turnover should be redetermined by deleting the transport charges and stacking charges for three years in question. 5.. Let us now see the relevant provisions of the Act. The definition of "sale price" at the relevant time (before its amendment in the year 1976) read as follows: "'Sale price' means the amount payable to a dealer as consideration for the sale of any goods, 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 installat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount charged by the dealer as stacking charges was on account of anything done by him in respect of the goods in question either "at the time of or before the delivery thereof" or subsequent to the same. In other words, the matter depends upon the simple fact as to whether the selling dealer had to incur this expenditure on behalf of the purchasing dealer before the actual delivery of the goods was made or subsequent thereto, obviously for the simple reason that after the delivery is effected, the title in the goods passes to the purchaser and the selling dealer himself is not liable to incur any expenditure and, therefore, these expenses will appertain to the sale price. The situation, however, would be different where in order to effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice of the mineral ore per ton was Rs. 27.25 besides the stacking charges of Rs. 2. The purchaser, however, wanted bifurcation of this figure for the facility of computation of sales tax on the basic price of the materials alone. The selling dealer, therefore, made the following break-up: (i) Basic purchase price ... Rs. 17.00 (ii) Transport charges ... Rs. 10.25 (iii) Stacking charges ... Rs. 2.00 According to the terms of the agreement, the bills were to be prepared in the same manner showing all the items separately. It may further be mentioned that the order of acceptance of the tender of the dealer indicated that the rates were inclusive of transport charges at the place of delivery, i.e., at the site. The Tribunal has quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice". The contention advanced to the contrary by the learned Standing Counsel has, therefore, no substance. 8.. Before parting with the case I would, however, notice some of the decisions cited at the Bar. At the outset, I must say that there is no decision touching upon "stacking charges". Mr. Pasayat appearing for the opposite party placed strong reliance on the case of Orient Paper Mills Ltd. v. State of Orissa [1975] 35 STC 84 (Orissa). That was also a case of freight. The cases where charges are realised on account of freight apparently stand on a different footing because, ordinarily, freight is incurred in course of transportation of the goods and is payable separately by the purchaser. The only requirement under the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard paid by the purchasers directly to the truck owners was a part of the sale price. Examining the scheme of the U.P. Sales Tax Act, 1948, the court held that the amount paid to the truck owners as freight inward represented a part of the aggregate amount payable to the dealer and, therefore, would be a part of his turnover liable to tax in his hands. Bharat Varnish Mfg. Co. v. State of Maharashtra [1983] 53 STC 365 (Bom.) was also a case of deduction of freight from the sale price. On the facts, it was found that it could not be established that the freight was agreed to be charged separately by the seller. Therefore, there being no agreement to charge freight separately and the price charged being a lump sum price, the assessees could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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