9911796707
TMI Blog2009 (1) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... SANKAR PRASAD MITRA , JJ. We have heard the learned advocates appearing for the parties. This application is directed against an order passed by the learned Tribunal on July 18, 2008, with regard to the question of disallowance of facility charges by the authorities. The petitioner filed an application before the learned Tribunal under section 16 of the West Bengal Taxation Tribunal Act, 1987, for review of the order which was passed by the learned Tribunal in an earlier revision case on November 30, 2007. The learned Tribunal after considering the said point which was urged before the learned Tribunal, came to the conclusion on the admitted facts that the petitioner maintained a factory at Asansol and the petitioner supplied indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition of sale as contained in section 2(g)(ii) of the Act. According to the Revenue if any sum is charged for anything done by a dealer in respect of any goods before delivery thereof, such sum shall be within the definition of sale price . The contention of the petitioner is that the plant and machinery and the pipelines were embedded on the earth and hence immovable goods and any consideration received from the use of such immovable goods is not exigible to tax. The learned members of the Board observed in the revision case order dated September 17, 2002 in para 16 that on examination of the orders so passed by the authorities below, we do not find that the machinery in question used by the customer were embedded to earth . The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points of dispute have already been discussed hereinbefore and it appears to us that there is neither apparent mistake of fact nor mistake of law in the order passed on November 30, 2007. Accordingly, the review application filed under section 16 of the West Bengal Taxation Tribunal Act, 1987, is rejected. Thus, the application is disposed of but under the facts and circumstances of the case without any order as to costs. Being aggrieved, the petitioner filed this application from the said review petition. It has to be noted here that the order and/or the judgment was delivered by the learned Tribunal on November 30, 2007, and at that point of time the petitioner did not take any step to file an appeal from the said order and subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the IISCO is nothing but after transformation and at that point of time it has to be stated that the sale is complete when it is being delivered in such form to the consumer and not before. Therefore, the sale price has to be included by way of such transformation of the liquid oxygen in gaseous form and/or the purchase has to be made by the IISCO at that point of time and not before. In a decision reported in Black Diamond Beverages v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta [1997] 107 STC 219 (SC) where the court has held as follows: 9. The other contention of the learned counsel for the appellant that section 2(h) of the 1941 Act expressly excluded 'freight charges' and for that reason the 1954 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar to the first part of section 2(p) of the Rajasthan Sales Tax Act, 1954. 10.. If, therefore, the first limb of section 2(d) of the Act is similar to section 2(p) of the Rajasthan Sales Tax Act, 1954, the question then is as to what was actually decided in Hindustan Sugar Mills' case [1979] 43 STC 13 (SC); [1978] 4 SCC 271. In that case, this court held that this part of the definition of 'sale price' meant the amount payable to a dealer as consideration for the sale of any goods. It was pointed out that the test was as to what was the consideration passing from the purchaser to the dealer for the sale of goods. It was immaterial to enquire as to how the amount of consideration was made up, whether it included excise duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This court held that the amount of 'freight and handling charges' would be payable by the purchaser not under any statutory or other liability but as part of the consideration for the sale of the goods and would form part of 'sale price'. That is the ratio of Hindustan Sugar Mills case [1979] 43 STC 13 (SC); [1978] 4 SCC 271. In the discussion by this court in the above case reference was made to the freight expenses of a dealer who transported goods from the factory to his place of business. But this does not mean that this court did not intend that freight expenses up to the point of delivery were not to be included in 'sale price'. As rightly pointed out by the Tribunal (in para 32(b) of the order), this court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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