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TMI Blog2016 (2) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... X OFFICER, KOTA [ 1978 (8) TMI 186 - SUPREME COURT ] where it was held that The amount of freight forms part of the sale price within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. Appeal dismissed. - Mr. Shiva Kirti Singh And Mr. R.K. Agrawal, JJ. For Appellant(s) Mr. Dhruv Mehta, Mr. Rajesh Kumar, Mr. Gaurav Kumar Singh, Mr. Rakesh Chaurasiya, for M/s Mitter Mitter Co. For Respondent(s) Mr. Soumik Ghosal, Mr. Parijat Sinha, ORDER Heard Mr. Dhruv Mehta, learned senior counsel appearing for the appellant and Mr. Soumik Ghosal, learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st part of Section 2(d) of the 1954 Act as also the first part of Section 2(p) of the Rajasthan Act, 1954 are similar. It was also noticed that the first part of such provisions were interpreted by this Court in the case of Hindustan Sugar Mills Vs. State of Rajasthan Others [(1978) 4 SCC 271]. This view also runs totally against the appellant's case. In order to avoid any scope for confusion, we would like to extract paragraphs 9 and 16 of the judgment in the case of Hindustan Sugar Mills (supra), which are as follows: 9. We may now take another example which is very much near to the one which we have already discussed. The dealer may, instead of transporting the goods from his factory or his place of business and selling them there, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would merely be a convenient mode of paying the agreed price. Since it is the obligation of the dealer to deliver the goods free on rail destination railway station, the dealer is liable to pay the freight as between him and the purchaser and the purchaser can very well refuse to accept the railway receipt which is not freight pre-paid but freight to pay . But he may, ordinarily as a reasonable businessman he would, accept such railway receipt and pay the amount of freight on behalf of the dealer. When the purchasers pay the amount of freight in such a case, it would be as part of the agreed price and not as freight vis-a-vis the dealer. The amount of freight paid by the purchaser and shown in the bill as deducted from the agreed price wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of 'sale price'. But if the State is able to show that the particular amount falls within the first part of the definition and is, therefore, part of the 'sale price', the exclusion clause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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