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As the learned Judges pointed out in the earlier decision, the whole control order proceeds on the footing that the freight charges are to be met by the producer and that he was entitled to a cosolidated price irrespective of the freight he may have incurred. Ratio |
In this view of the matter, the sale price, on the terms of the Central sales Tax Act, could only be the controlled price as fixed by the cement control Order. Ratio |
We find that the factual position in these cases is also not as described by the learned counsel for the assessee. Ratio |
The assessee 's arguments in this regard were sought to be highlighted by the production of one of the invoices by which certain goods were despatched by Dalmia cements to Karaikal. Ratio |
It is interesting to see that this invoice mentions F.O.R. cement price as the controlled price stipulated in the Cement Controlled Order, and this is also what is contemplated by condition 4 set out earlier. Ratio |
To this is added a central Excise Duty. Ratio |
Thereafter, the assessee purports to give credit for railway freight and a net price, which is described as net price F.O.R. with a liability on the purchasers to bear the railway freight the invoice need not have contained all the details which it purports to contain including all the above calculations starting with ... |
In such an event all that the assessee need have done was to invoice the purchasers at the net price F.O.R. Works Siding and despatch the goods under 'freight to pay ' . Ratio |
It is also interesting to see that the invoice specifically includes a deposit to " cover any levy of sales tax on freight" . Ratio |
It is clear that the invoice has been drawn up in terms of the control order. Ratio |
The price charged by the assessee is F.O.R. Central Excise Duty has been added on this footing. Ratio |
The invoice mentions the amount of railway freight and permits it to be deducted only because the freight will be paid to the Railways by the Purchasers on behalf of the assessee and credit is given therefor in the invoice. Ratio |
This process is necessary because the amounts of freight for which credit has been given have to be eventually adjusted while settling accounts between the manufacturer of cement and obtaining reimbursement, if any , from the pool account. Ratio |
The producer will have to satisfy the concerned authorities that, in certain instances, the freight paid is in excess of the freight which a producer can be called upon to pay in terms of para 9 of the Cement Control order. Ratio |
In our opinion the invoice placed before us only reinforce the factual and legal position outlined by this Court in the Hindustan Sugar Mills Ltd. case in regard to the purpose and effect of the terms of the Cement Control Order. Ratio |
For the reasons above mentioned, we are of the opinion that the High court was fully justified in applying the decision in Hindustan Sugar Mills Ltd. to the present case and denying the benefit of deduction of freight charges from the controlled price to arrive at the turnover of the assessee for the purpose of the Cen... |
Turning now to the appeals filed by the state, the contention, as earlier mentioned, is that the High court should have arrived at the same conclusion on the provisions of the Tamil Nadu General Sales Tax Act and Additional sales Tax Act as it did under the Central Sales Tax Act and that in view of the decision of this... |
In coming to a different conclusion on the provisions of the local sales Tax Act from that reached in respect of the Central Act, the High Court has relied upon the fact that the local sales tax is charged not on the turnover of the dealer but only on his taxable turnover. Ratio |
The explanation 'taxable turnover ' has been defined in section 2(p) as follows: "2(p) 'taxable turnover ' means the turnover of which a dealer shall be liable to pay tax as determined after making such deduction from his total turnover and in such manner as may be prescribed . STA |
" The Tamil Nadu General sales Tax Rules, 1959, have prescribed rules for the determination of the taxable turnover. Ratio |
Rules 6 reads thus: " Rules 6 The tax or taxes under section 3,4 or 5 shall be levied on the taxable turnover of the dealer . Ratio |
In determining the taxable turnover, the amount specified in the following clause shall, subject to the conditions specified in the following clauses shall, subject to the conditions specified therein, be deducted from the total turnover of a dealer (a) all amounts for goods specified in the Third Schedule to the Act a... |
(i) when charged for by the dealer separately without including such amounts in the price of the goods sold in respect of the goods liable to tax at the hands of the assessee; and (ii) whether or not such amounts are specified and charged for by the dealer separately, in respect of the goods not liable to tax the hands... |
The High Court has held that since freight is one of the items specified in clause (i) of rule 6(c) and since the assessee have specified and charged for freight separately in their invoices, they ar entitled to the deduction of the freight in the computation of the taxable turnover. Ratio |
This is the short ground on which the High court has reached, in respect of the local Act, a conclusion different from that reached in respect of the central Act. Ratio |
We agree with the learned counsel for the state of Tamil Nadu that, in coming to the above conclusion, the High court has over looked the significance of the inclusion of the words "without including them in the price of the goods sold" in clause (c). Ratio |
These words make it clear it clear that the freight charges are not to be deducted in the computation of the taxable turnover merely because they are specified and charged for separately by the dealer. Ratio |
A further pre requisite for their deduction is that these charges should not have been included in the price of the goods sold. Ratio |
This takes us back to the consideration as to whether the price charged for by the assessee includes freight or not, which we have discussed elaborately in respect of the levy of Central sales tax. Ratio |
once we comp to the conclusion as we have that freight has been included as part of the price sold and that the liability to pay the freight remains with the dealer, though permitted to be set off against the sale price by the purchaser or consumer, it follows that the deduction of the freight as a separate items in th... |
Rule 6(c) will apply only in cases where the sale price charged does not include the freight charges and the dealer separately collects freight from the consumer without including the same in the sale price. Ratio |
IN fact this aspect has been made clear in three decisions of this court dealing with similar rules. Ratio |
In Tungabhadra Industries Ltd. vs Commercial Tax officer, Kurnool, (1960) 11 S.T.C. 827, the dealer claimed deduction of railway freight form the amount of price of the goods sold as stated in the bill on the strength of rule 5(1) (g) of the madras General sales Tax (Turnover and Assessment ) Rules, 1939, which is in p... |
The claim was negative by this court. PRE |
It observed : "The appellant claimed exemption on a sum of Rs. 3,88, 377 13 3 on the ground that it represented the freight in respect of the ground that it represented the freight in respect of the goods sold by the appellant, asserting that they had been charged for separately. PRE |
The assessing officer rejected the claim and this rejection was upheld by the departmental authorities and by the High Court in revision. PRE |
It would be seen that in order to claim the benefit of this exemption the freight should (i) have been specified and charged for by the dealer separately, and (ii) the same should not have been included in the price of the goods sold. PRE |
The learned Judges of the High Court held that neither of these conditions was satisfied by the bills produced by the appellant. PRE |
We consider, the decision of the High Court on this point was correct. PRE |
In the specimen bill which the learned counsel for the appellants has placed before us, after setting out the quality sold by weight (23, 760 lb.) the price is specified as 15 annas 9 pies per lb. PRE |
and the total amount of the price is determined at Rs. 23,388 12 0. PRE |
From this the railway freight of Rs. 1,439 12 0 is deduced and the balance is shown as the sum on which sales tax has been computed. PRE |
From the contents of this invoice it would be seen that the appellant has charged a price inclusive of the railway freight and would therefore be outside the terms of rule 5(1) (g) which requires that in order to enable a dealer to claim the deduction it should be charged for separately and not included in the price of... |
The conditions of the rule not having been complied with, the appellant was not entitled to the deduction in respect of freight. PRE |
" The same conclusion was reached by this Court in Dyer Meakin Breweries Ltd. vs State of Kerala, (1970) 26 S.T.C. 248. PRE |
Here, the appellant company which manufactured 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. PRE |
When selling liquor to the customers the appellant made out separate bills for ex factory price and for "freight and handling charges". PRE |
The appellant claimed that the amount charged for "freight and handling charges" incurred by it in transporating the goods from the breweries and distilleries to the warehouse in Kerala were eligible for deduction under rule 9(f) of the Kerala General Sales Tax Rules, 1963, a rule which is in the same terms as rule 6, ... |
This claim was negatived by this Court. PRE |
The Court obvserved: "It is common ground that the sale of the liquor took place in Ernakulam. PRE |
The company arranges to transport liquor for sale from the factories to its warehouse t Ernakulam. PRE |
It was not brought for any individual customer. PRE |
All the expenditure incurred s prior to the sale and was evidently a component of the price for which the goods were sold. PRE |
it is true that separate bills were made out for the price of the goods ex factory and for" freight and handling charges". PRE |
But, in our judgment, the Tribunal was right in holding that the exemption under clause (f) of rule 9 applied when the freight and charges for packing and delivery are found to be incidental to the sale and when they are specified and charged for by the dealer separately and expenditure in curred for freight and packin... |
Rule 9(f) seeks to exclude only those charges which are incurred by the dealer either expressly or by necessary implication for and no behalf of the purchaser after the sale when the dealer undertakes to transport the goods and to deliver the same or where the expenditure is incurred as an incident of sale. Ratio |
It is not intended to exclude forms the taxable turnover any component 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. Ratio |
" In Johar and sons(p) Ltd. vs Tax officer Ernakulam, (1971) 27 S.T.C.120, The same question arose, again in the context of the Kerala General sales Tax Rules, 1963. PRE |
The court followed the decision in Dyer Meakin Breweries Ltd. case. PRE |
It was pointed out that the decision in Tungabhadra Industries Ltd. had rested on the facts of the case without going into the interpretation of the relevant rule of the Madras General Sales Tax (Turnover and Assessment ) Rules, 1939. PRE |
It was, held that the Dyer Meakin decision would apply to the case before the court. PRE |
A number of subsequent decisions has also held to a like effect : C.C.T. vs Ashoka Marketing Ltd.,(1973) 32 S.T.C. 411, State of Mysore vs Panyam Cements and Mineral Industries Ltd. (1974) 33 S.T.C. state of Tamil Nadu vs parry and company (1976) 38 S.T.C. 122, state of Tamil Nadu vs Chettinad Cement Corporation Ltd.,(... |
The position in regard to packing charges as well as the excise duty on packing charges is also no different. Ratio |
As pointed out by this court in the Hindustan Sugar Mills case and in Commissioner of sales Tax vs Rai Bharat Das & Bros., [1988] 71 S.T.C. 277 (SC), packing charges from part of "sale price" because the expression " any sum charged for anything done by the dealer in respect of the goods" used in the definition in sect... |
Once this is so, it follows that these charges and the excise duty thereon cannot be excluded from the turnover for purpose of the Central sales Tax Act. Ratio |
Nor will, for the reasons earlier discussed in relation to freight charges, the assessee be in a position to claim a deduction in respect of these charges by virtue of rule 6(cc) of the sales Tax Rules. Ratio |
In our view, this position has been correctly set out, applying the decision in the case of Rai Bharat Das and Bros., in state of Tamil Nadu vs Vanniaperumal & co., (1990) 76 S.T.C. 203, Dalmia cement (Bharat) Ltd. vs state of Tamil Nadu, (1991) 81 S.T.C. 327 and Dalmia Cement (Bharat) Ltd. vs state of Tamil Nadu, (199... |
we are, therefore, of the opinion that the packing charges and excise duty thereon cannot also be deducted in computing the taxable turnover for the purpose of the Tamil Nadu Acts. Ratio |
We, therefore, hold (i) That the freight charges could be included in arriving at the taxable turnover for purposes of C.S.T. and T.N.S.T.; and (ii) that packing charges and excise should be included in arriving at the taxable turnover for purposes of both C.S.T. and T.N.S.T. RPC |
The appeals by the state of TAmil Nadu are accordingly allowed and the appeals filed by the assessee ar dismissed. RPC |
There will, however, be no order regarding costs. RPC |
N.P.V. C.A. Nos.2684 90,4043 44/82 315 19/83 dismissed. RPC |
C.A. Nos 5306 36/85 and 280 81/89 allowed. RPC |
APPEAL NOS. 2107 1 1993. FAC |
From the Judgment and Order dated 9.3.1992 of the Punjab and Haryana High Court in Civil Writ Petition Nos.13587, 13588, 13926 of 1991 and L.P.A. No. II 8 of 1992. FAC |
Dipankar Prasad Gupta, Solicitor General, N.N. Goswami and H.K. Puri for the Appellants. FAC |
Ranjit Kumar, Deepak Sibal, Ms. Binu Tamta and Tarun Aggarwal for the Respondents. FAC |
The Judgment of the Court was delivered by MOHAN, J. FAC |
Leave granted. FAC |
All these appeals raise the identical issue as to the interpretation of the Regulations relating to Diploma in Homeopathic Course. Ratio |
Hence, they are dealt with under one and the same judgment. Ratio |
We will refer to the facts of C.W.P. No. 13587/91 which will be enough for appreciating the issues involved. Ratio |
The respondents joints the Homeopathic Medical College, Chandigarh in the year 1987 to secure a diploma in Homeopathic Medicine and Surgery (hereinafter referred to as 'DHMS '). FAC |
The said course is of a duration of four years. FAC |
It is divided into 3 1/2 years of academic study and six months of internship. FAC |
The course of study, their duration and the scheme of examination are regulated by the Homeopathy (Diploma Course) DHMS Regulations, 1983 (hereinafter called the 'Regulations '). FAC |
These Regulations have been framed by the Central Council of Homeopathy under Section 20 of the Homeopathy Central Council Act, 1973. FAC |
Part VI of the Regulations deals with examination. STA |
Regulations 8 to 10 occurring in part VI are relevant for our purpose. STA |
Regulation 8 talks of first First D.H.M.S. examination. STA |
That examination has to be held at the end of 12 months of the Course. FAC |
Regulation 9 deals with second D.H.M.S. examination to be held at the end of second year. FAC |
Regulation 10deals with 3rd D.H.M.S examination, 11/2years subsequent to the passing of the second D.H.M.S. examination. FAC |
The respondents appeared in the first year D.H.M.S. annual examination in 312 June, 1988. FAC |
Since, they did not get required percentage of pass marks two or more subjects, they had to re appear. FAC |
They were permitted to join the 2nd year class after June, 1988. FAC |
Under the interim orders of the High Court made in C.W.P.No 437510/1990, they appeared in the examination. FAC |
The respondents simultaneously took their third chance for the first year D.H.M.S. examination and finally,cleared all the papers. FAC |
They also got re appeared in one or more subjects in the 2nd year D.H.M.S. examination and accordingly, took supplementary examination in June, 1990. FAC |
They were declared 'pass ' in that examination. FAC |
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