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TMI Blog2011 (5) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... er refrigerator charged by the opposite-party/dealer in effect is not towards warranty which may be included in the turnover. The said amount is realisable separately at the option of the customer towards service/maintenance charges for the next four years after expiry of one year warranty. All the three points raised and argued . Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority, the Commissioner, Trade Tax, preferred appeals to the Tribunal. The appeals have been dismissed vide order dated October 23, 2003, affirming the order of the first appellate authority. Hence, the Commissioner, Trade Tax, has preferred these revisions. I have heard Sri U.K. Pandey, learned standing counsel for the revisionist and Sri Ashok Kumar, learned counsel for the opposite-party/ dealer. The revisionists propose to raise the following questions of law: "(i) Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified to hold that the amount of ₹ 395 (correct amount is ₹ 450) in bills, is not part of turnover? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified to hold that packing material of refrigerator is taxable at six per cent? (iii) Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified to allow the acceptance of form IIID as additional evidence, without giving opportunity to Department for verification or rebuttal?" The first argument of Sri Pandey is that the first appellate authority was not justified in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, undoubtedly, opportunity was given to the representative of the Commissioner, Trade Tax, which is sufficient compliance of section 12B of the Act as it stood prior to March 5, 2001. The order was passed by the appellate authority on July 31, 1991 when opportunity was required to be given to the Commissioner/its representative and not to the assessing authority. The words "assessing authority" have been substituted in the above provision subsequently. In view of above, no illegality has been committed by the first appellate authority in accepting the additional evidence adduced by the oppositeparty/dealer and the Tribunal has rightly affirmed the same. The question of law No. (iii) as proposed is without substance and stands rejected accordingly. The second argument of learned counsel for the revisionist is that secondary packing material of the refrigerator was taxable as part of the turnover at the same rate as refrigerators at the rate of 12 per cent. It is admitted on record that the opposite-party/dealer had sold some refrigerators with secondary packing and most of them with only primary packing, which had no value. The value of the secondary packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act was not mandatory in nature and was dependent upon the wishes of the customers. In view of above finding the sum of ₹ 450 per refrigerator charged by the opposite-party/dealer in effect is not towards warranty which may be included in the turnover. The said amount is realisable separately at the option of the customer towards service/maintenance charges for the next four years after expiry of one year warranty. In an identical case in Commissioner of Sales Tax, Lucknow v. Kelvinator of India Ltd. [2006] 146 STC 651 (All); [2004] 25 NTN 681, relating to sale of refrigerators, where warranty charges for subsequent years were found to be optional, single judge of this court held that in view of the fact that the said warranty was optional the amount realised in that respect cannot be added in turnover. Earlier to the above decision, even the apex court in Collector of Central Excise, Delhi v. Kelvinator of India Ltd. [1988] 69 STC 427 (SC); [1988] UPTC 780, in connection with the sale of refrigerators held that a contract for four year warranty/service which was optional and entered into later on is clearly an after sale facility and cannot be included in the taxable valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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