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TMI Blog2013 (7) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case, the Tribunal is legally correct in having held that excise duty not levied at the time of the sale transaction cannot be postponed subsequently which is contrary to the decision reported in 107 STC 212 in the case of Mohan Breweries ?" 2. It is seen from the papers placed before this Court that the assessee herein is a manufacturer of plastic components. On the impression that the activity did not attract excise duty provisions, the assessee did not include the duty component in the sale consideration. However, subsequently, there was an inspection by the Central Excise Authorities on 22.10.1986. The assessee got the license under the Central Excise provisions on 27.10.1986. During the period from 22.10.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently paid under the stated circumstances and if duty payment had been passed on to the purchaser as by way of additional invoice, then, certainly, the same would be included in the taxable turnover of the dealer ; however, since the facts stated therein were not clear enough to show as to whether the excise duty paid subsequently was passed on to the purchaser for the disputed period or not, the Assessing Officer was directed to verify as to what was the sale price till October 1986 and what was the sale price after October 1986. The Assessing Officer was also directed to verify as to whether the payment of Excise duty of Rs. 8,90,250/- was passed on to the customer by raising any debit note or not. 4. Rejecting the plea of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of asking the assessee to prove the negative aspect would not arise. In the circumstances, the Sales Tax Appellate Tribunal pointed out that it was not the case of the assessee that they collected the amount as part of the sale consideration, thus, referring to the earlier order of the Tribunal, the assessee's appeal was allowed. Hence, the present Tax Case Revision by the Revenue. 8. We do not find merit in the contentions of the Revenue that irrespective of whether duty element had been passed over or not, the turnover was necessarily to include the excise duty element. 9. Learned Government Advocate placed reliance on the decision reported in the case of Mohan Breweries and Distilleries Ltd Vs. Commercial Tax Officer, Madr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 installation in cases where such cost is separately charged" Thus the turnover for purposes of assessment includes the aggregate amount for which the goods are bought or sold or disposed of in any of the ways referred in the definition of sale. When the contemplation of the Act is to include the totality of the consideration alone and in the price charged in the invoice as a sale consideration did not include any sum, it being not the amount for which the goods are bought or sold, cannot be brought in within the definition of sale. Thus taking the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the portion of such payment has been passed over to the customer as a part of the consideration. The disputed tax cannot be passed over to the taxable turnover. Hence, we do not find any merit in the present Tax Case Revision as against the order in TA.No.493/2003 dated 01.11.2007 when a finality attached to the order dated 28.03.2001 in TA.No.1015/99 has not been challenged either by the Revenue or by the assessee. Hence, the same stands dismissed. We do not find any justification in the reliance placed on by the Revenue in the decision of the Apex Court reported in 107 STC 212 (Mohan Breweries and Distilleries Ltd Vs. Commercial Tax Officer, Madras and Others), since the said decision has no relevance to the facts of the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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