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TMI Blog2005 (12) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner has its plant in the State of Rajasthan and branch offices all over India. The petitioner has a branch office in the State of Gujarat at Ahmedabad and storage godowns (known as dumps) located at several places in the State of Gujarat. It is the claim of the petitioner that petitioner brings cement in the State of Gujarat by branch transfer and stores the same at various dumps in the State of Gujarat. The petitioner sells the cement to its buyers in the State of Gujarat at the ex-dump price, i.e., the delivery of the stock is effected at the dump. The stock thereafter is transported to the buyer at the cost and risk of the buyer. In case the buyer has no facility of transport, the petitioner arranges such transport on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delivery is effected at the place of the buyer, the sale price includes the freight. The petitioner in that case pays sales tax over the sale price which includes the transport charges. However, in cases where the stock is sold at the dump the freight is borne by the buyer. However, in the event the buyer has no facility to transport the stock, the petitioner makes arrangement to transport the stock to the place of the buyer at the cost and risk of the buyer. In such case, the charges paid to the transporter is recovered from the buyer. Such transport charges not being part of the sale price are not liable to the tax under the Act. He has submitted that of the total sale only 28 per cent of the sale is effected at the dump where transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Soft Drinks Pvt. Ltd. [2000] 117 STC 413, of this Court in the matter of Batliboi Co. Ltd. v. Sales Tax Officer (I), Class-1, Division 1, Surat [2000] 119 STC 583 and of Karnataka High Court in the matter of Narayani Rao v. Commissioner of Commercial Taxes in Karnataka, Bangalore [1994] 93 STC 247. 6.. The petition is contested by Mr. Pancholi. He has submitted that in view of passage of time the challenge to the order of provisional attachment shall not survive. Besides, the petitioner has availed of the alternative remedy of statutory appeal against the said order. The present petition preferred under article 226 of the Constitution of India is, not maintainable. He has next submitted that until an order of provisional assessment is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof, other than the cost of insurance for transit or of installation when such cost is separately charged and includes, ". He has emphasised upon the words "anything done by the dealer in respect of the goods at the time of or before delivery thereof" occurring in the above definition and has submitted that the above words are of wide amplitude and would include the transport charges paid by a dealer, may be on behalf of the buyer. 8.. In support of his arguments Mr. Pancholi has relied upon the judgments in the matters of Laxmi Cement Distributors Pvt. Ltd. v. Sales Tax Officer (2), Jamnagar [1998] 110 STC 188 (Guj), of Bla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piry of a period of six months from the date of the order made under sub-section (1): Provided that the Commissioner may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as he thinks fit so however that the total period shall not in any case exceed one year." Undoubtedly, section 41B of the Act envisages formation of opinion by the Commissioner with respect to the dealer having evaded the tax. Thus, for any action taken under section 41B of the Act, the formation of opinion by the Commissioner that the dealer has evaded the tax is a prerequisite and a sine qua non. In the present case, the impugned notices are self-explanatory. They do refer to the formation of opinion that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seller, the freight is borne by the purchaser, the amount of freight does not form part of the sale price; in such cases the amount of freight shall not form part of the taxable turnover. In that case such amount shall not be exigible to tax under the Act. However, as recorded hereinabove, there is a serious dispute raised by the respondents-authorities in connection with the claim made by the petitioner. According to the respondentsauthorities, the sale price charged by the petitioner does not reflect the true value; part of the sale price is recovered by separate debit note in form of freight. Besides, though called upon, the petitioner did not produce the relevant record before the respondents-authorities. Unless the entire record i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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