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TMI Blog2008 (8) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of the observations made above in connection with question No. 2 only. - - - - - Dated:- 18-8-2008 - PRAKASH KRISHNA , J. PRAKASH KRISHNA J. The present revision is directed against the order dated April 7, 2000 passed by the Trade Tax Tribunal in Second Appeal No. 1170 of 1994-95 whereby and whereunder it has fixed the turnover of coal at Rs. 3,24,000. The dealer-opposite party carries on the business of purchase and sale of foodgrains, oilseeds, rice bran, coal, etc. The dispute in the present revision is confined with regard to turnover of coal only which was assessed at Rs. 7,20,000 by the assessment order dated March 30, 1998. The said order was confirmed by the first appellate authority by the order dated December 7, 1998 and has been modified by the Tribunal by the order under revision. In the memo of revision, the following questions of law have been sought to be raised: (i) Whether the Trade Tax Tribunal was legally justified to hold that the inward freight paid for the purchase of coal is not part of the turnover? (ii) Whether the Trade Tax Tribunal was legally justified to allow the adjustment and refund of amount deposited at check-pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of coal by such persons, like the dealer-opposite party, does not create a relationship of agent and principal. There is no finding by the Tribunal that who placed the purchase orders to the collieries and took the delivery of coal. The delivery was taken by the dealer on his own behalf. There is no evidence to show any privy of contract in between the dealer and the brick-kiln owners. The copies of purchase orders given to the colliery have not been filed. Paragraphs 14 and 15 from the judgment of Sunil Kumar Coal Agent [2003] UPTC 1036 is reproduced below: 14. The dealer-opposite party has miserably failed to place any evidence on the record to show that he took the delivery of coal as an agent of the brick-kiln owners. The dealer has not filed copy of purchase orders given to collieries. It is not the case of the dealer that the purchase orders of coal were given to collieries by the alleged principals, i.e., by the brick-kiln owners in their names through the dealer as agent. There is no privity of contract in between the brickkiln owners, who ultimately purchased the goods, and the colliery. From the facts emerging from the record it is a case of sale of coal by one p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the judgment of the apex court in the case of Vinod Coal Syndicate [1989] 73 STC 317. So far as the judgment in Sharma Coal Co. [1993] UPTC 881 is concerned, nothing was decided by the High Court and the matter was remanded to the Tribunal for determining whether the freight added by the Tribunal in the order under revision is for inward journey or for outward journey . No ratio has been laid down therein. Then reliance was placed on Commissioner of Trade Tax, U.P., Lucknow v. Vardhaman Trading Co., Meerut [2006] 29 NTN 96. This case was decided on a different fact situation. The case of the dealer therein was that the delivery of coal was taken by the brick-kiln owners after payment of railway freight and the coal was sold by endorsement on goods receipts. On this fact-situation, the High Court remanded the matter to the Tribunal to find out as to whether the sale has been effected by endorsement of goods receipts in favour of the brick-kiln owners and the brick-kiln owners have taken delivery of goods from the railway on payment of freight. It was held that if the freight was paid by the brick-kiln owners and the delivery of coal was taken by them, then the positio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged'. Therefore, 'any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof' is to be regarded as part of 'sale price', even if it does not fall within the first part of the definition. But there is an exception carved out of this inclusion. Not all sums charged for something done by the dealer in respect of the goods at the time of or before the delivery thereof are covered by the inclusive clause. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax, Indore [1980] 45 STC 197 (SC); AIR 1980 SC 346, Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, Indore AIR 1980 SC 807 and Ramco Cement Distribution Co. Pvt. Ltd., Tamil Nadu v. State of Tamil Nadu [1993] 88 STC 151 (SC); AIR 1993 SC 123. In view of above legal position, the Tribunal was not right in holding that freight will not form part of turnover, as it is case of sale by principal to principal. So far as the second question is concerned, the learned counsel for the dealer-opposite party submits that the amount was deposited at the checkpost by way of security in view of various circulars, such as April 15, 1986, August 23, 1986, October 29, 1987 and September 21, 1988 issued from time to time. The order of the Tribunal directing the assessing authority to give adjustment of the amount deposited by the dealer at the check-post in bringing coal in excess of the quantity mentioned in form XXXI is perfectly justified. From a bare perusal of the assessment order, it is evident that major portion of the amount was deposited as unregistered dealer. The assessing officer was of the view that the deposit of such amount as unregistered deale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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