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TMI Blog2006 (11) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Act, 1956 with the Assessing Authority, Agra. It appears that the goods were received by way of stock transfer from principal, M/s. T.P.R. Compound, and the same were sold within the State of U.P. to various parties. It appears that in bill, the applicant has charged the value of the goods fixed by the principal and the amount of freight relating to the transportation of goods from Ahmedabad to Agra. applicant claimed that the freight from Ahmedabad to Agra since being charged separately in the bill, would not be a part of the turnover in view of Explanation of section 2(i) of the Act which defines "turnover". The assessing authority had not accepted the plea of the applicant and included the amount of freight relating to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of buyer for further delivery of the goods from selling point to the buyer destination. In support of his contention, he relied upon the decisions of this court in the cases of Commissioner of Trade Tax, U.P., Lucknow v. Sharma Coal Company, Azamgarh reported in [2008] 16 VST 517 [App]; [2005] NTN 69, Commissioner of Trade Tax v. Ramapati Tewari Jainath Tewari reported in [2005] UPTC 76 and Commissioner of Trade Tax, U.P., Lucknow v. Vardhaman Trading Company, Meerut reported in [2006] 29 NTN 96. Having heard learned counsel for the parties and perused the order of the Tribunal and the authorities below. There is no dispute that the applicant had sold the goods to various parties from its place of business at Agra after receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consequence that subsequently recovers from the buyers." In the case of Dyer Meakin Breweries Ltd. v. State of Kerala [1970] 26 STC 248 (SC), company was engaged in the manufacturing of liquor at various places in U.P. and Haryana, transported the goods from its breweries and distilleries to its place of business in Ernakulam and sold them there. While selling liquor to the customers the appellant made out separate bill for ex-factory price and for "freight and handling charges". The appellant claimed that the amount charged for "freight and handling charges" incurred by it in transporting the goods from the breweries and distilleries to the warehouse in Kerala were eligible for deduction under rule 9(f) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onent of the price, expenditure incurred by the dealer which he had to incur before sale and to make the goods available to the intending customer at the place of sale." The aforesaid decision has been followed by the apex court in the case of D.C. Johar & Sons (P.) Ltd. v. Sales Tax Officer, Ernakulam reported in [1971] 27 STC 120 (SC). Both the aforesaid decisions have been relied upon in the case of Ramco Cement Distribution Co. Pvt. Ltd., Tamil Nadu v. State of Tamil Nadu reported in [1993] 88 STC 151 (SC); AIR 1993 SC 123. In the case of Hindustan Sugar Mills Ltd. v. State of Rajasthan reported in [1979] 43 STC 13 (SC); [1979] UPTC 37, the section 2(p) of the Rajasthan Sales Tax Act which defines "sale price" has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The cost of freight or delivery or the cost of installation certainly represents an amount charged for transportation or installation of the goods at the time of or before the delivery thereof and would, therefore, fall within the inclusive clause on its plain terms but it is taken out by the exclusion clause, 'other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged'. This exclusion clause does not operate as an exception to the first part of the definition. It merely enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a separate item in the invoice. Where the cost of freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part has no application." In the case of Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh reported in [1969] 24 STC 487, apex court held "that the form in which the invoice was made out was not determinative of the contract between the company and its customers". The substance of transaction is to be considered. Present case is not a case where during the course of movement of goods from Ahmedabad to Agra, sale was made by transfer of documents in favour of the buyer. If this would be the case, position could be enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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