ORDER The order in this case will also govern Miscellaneous Civil Case No. 4 of 1953. 2. These are references under section 23 of the Central Provinces and Berar Sales Tax Act, 1947. Miscellaneous Civil Case No. 65 of 1952 was made under sub-section (1) of section 23 by which two questions, question No. 1 at the instance of the State and question No. 2 at the instance of the assessee, have been referred to this Court. The questions are :- "(1) Are sums which the assessee in this case called 'commission to agents', but which the assessing officer considered as 'trade discount' liable to exclusion from the turnover ?" "(2) An assessee-dealer quotes rates 'F.O.R. destination' in his contract with his customer-vendee. He despatches goods, however, 'freight to pay', and consequently the customer-vendee pays the freight separately to a third party, namely, the railway company. The net amount billed to him by the assessee-dealer also excludes the railway freight paid separately by the customer-vendee. In such circumstances, can the cost of railway freight be considered as 'separately charged' for the purpose of the definition contained in section 2(h)(i) of the Sales Tax Act ?" 3. In Miscellaneous Civil Case No. 4 of 1953 the reference was made under sub-section (3) of section 23 at the instance of the assessee who moved this Court and obtained an order to the Board of Revenue for referring the following question to this Court :- "Whether the transactions between the petitioner and its selling agents outside the Province were 'sales' within the meaning of the Act." 4. The assessee is a concern manufacturing and dealing in biris in Jabalpur. For the purposes of assessment of sales tax on its dealings it submitted a return in respect of the period 1st June, 1947, to 12th November, 1947. In that return it showed (omitting annas and pies) Rs. 12,71,817 as the gross turnover of the business by way of sales other than in execution of contracts. From that gross turnover it claimed deductions of Rs. 16,147 by way of cost of freight, delivery, etc., Rs. 16,453 on account of cash discount (commission to agents), and Rs. 12,38,597 on account of specified goods sold to registered dealers, exported for sales outside the Province. Thus, the deductions amounted to Rs. 12,71,198, leaving only Rs. 619 as the taxable turnover. 16,147 by way of cost of freight, delivery, etc., Rs. 16,453 on account of cash discount (commission to agents), and Rs. 12,38,597 on account of specified goods sold to registered dealers, exported for sales outside the Province. Thus, the deductions amounted to Rs. 12,71,198, leaving only Rs. 619 as the taxable turnover. On this return the Assistant Commissioner of Sales Tax, Jabalpur, determined the taxable turnover as Rs. 12,55,513 after deducting Rs. 25,622 under section 2(j)(b) of the Act. He assessed the tax payable by the assessee at Rs. 39,233 after giving him credit for the small amount of Re. 1 odd already paid with the return. Against the assessment the assessee filed an appeal to the Sales Tax Commissioner. Central Provinces and Berar, who by his order dated the 10th May, 1949, dismissed the appeal. Before him only two points had been raised by the assessee in support of the appeal, viz., (1) that railway freight had not been excluded from the taxable turnover, and (2) that the sales of biris were made outside the Province and the case was one of export, pure and simple. He overruled both these contentions holding that the railway freight was not separately charged to the purchaser as contemplated by section 2(h), and that on the facts found the actual transfer of property in the goods took place within the Province. 5. Against this order of the Sales Tax Commissioner the assessee made an application in revision to the Board of Revenue. Before the Board the case was heard in the first instance by Shri H. S. Kamath, President, and Shri N. P. Shrivastava, Member. The Board's decision is printed as ruling No. 11 at page 61 of Volume I of rulings under the Sales Tax Act, 1947, printed under the authority of the Madhya Pradesh Government. The Board relying chiefly upon the statement made on solemn affirmation before the Assessing Officer by its authorised representative Maksudali came to the conclusion that the contracts of sale were all made when the goods were situated in the Province. The Board relying chiefly upon the statement made on solemn affirmation before the Assessing Officer by its authorised representative Maksudali came to the conclusion that the contracts of sale were all made when the goods were situated in the Province. It also held that in cases where full payment had been received in advance even the actual transfer of property had taken place within the Province when the goods were railed and in other cases where the actual transfer of property may have taken place outside the Province the sale will be deemed to have taken place within the Province inasmuch as the contract of sale had been made when the goods were in the Province. The Board also made reference to the fact that it was not prepared to attach any importance to the additional evidence sought to be adduced in the form of four affidavits filed before it, two by its authorized agent one Khan Mohammad and the other two by persons in Uttar Pradesh. The Board took the view that these affidavits were belated attempts to go back upon the statements contained in the solemn affirmation of Maksudali before the Assessing Officer. This matter forms the subject-matter of the reference in Miscellaneous Civil Case No. 4 of 1953. 6. The Board allowed the assessee's objection relating to "trade discount" as cash discount, both of which the Board was inclined to treat on the same footing. It took the view that there was no distinction between these two under the Sales Tax Act, the reason given being that such a distinction "would appear to be contrary to the spirit behind the entire section 2(h) of the Act". It also took into consideration that "there is the obvious injustice in levying a tax on an amount which not only the dealer has not received, but which he has foregone." The Board, therefore, "both on grounds of law and of equity" held that the assessee was entitled to a deduction on that account. This forms the subject-matter of the first question raised in Miscellaneous Civil Case No. 65 of 1952. 7. On the question whether the assessee was entitled to exclude the amount paid by way of railway freight, the President and Member of the Board of Revenue appear to have differed. This forms the subject-matter of the first question raised in Miscellaneous Civil Case No. 65 of 1952. 7. On the question whether the assessee was entitled to exclude the amount paid by way of railway freight, the President and Member of the Board of Revenue appear to have differed. The President took the view in a number of cases, including the instant case, that the assessee was entitled to the deduction on this account also, the reason for his decision being that the amount of freight paid by the purchaser could not be said to have been received by the seller, the assessee, the amount having gone into the coffers of a third party, in this case, the railway administration. According to him, "sale price" should include whatever amount is actually payable to and received or is expected to be received by the dealer, and in his view railway freight had not been so received. The other member of the Board (Shri N. P. Shrivastava) disagreed with the President on this question. According to him, the contract "F.O.R. destination" was indicative of an all-inclusive price, and the question of freight being charged separately did not arise at all. The fact that in the bill made by the assessee railway freight had been separately shown did not make any difference to the legal position and the payment by the purchaser of the railway freight was in the nature of an advance price made by the purchaser to be given credit for at the final accounting. On account of this difference between the President and the Member of the Board the question was referred to another Member of the Board Shri M. R. Joshi. His opinion is contained in Ruling No. 12 at page 66 of the aforesaid Volume. His opinion was in agreement with the opinion of the dissenting Member of the Board. Thus, he agreed that the cost of the railway freight did not qualify for exclusion or deduction from the sale price and consequently from the taxable turnover. This forms the basis of the second question in Miscellaneous Civil Case No. 65 of 1952. 8. His opinion was in agreement with the opinion of the dissenting Member of the Board. Thus, he agreed that the cost of the railway freight did not qualify for exclusion or deduction from the sale price and consequently from the taxable turnover. This forms the basis of the second question in Miscellaneous Civil Case No. 65 of 1952. 8. In this Court Shri C. K. Daphtary, Solicitor-General of India, who argued the case for the assessee on the most important question from the point of view of the assessee, viz., the reference in Miscellaneous Civil Case No. 4 of 1953, attempted to raise the following five sub-questions as arising out of the single question referred as indicated above. They are :- (1) Is there any evidence for the finding of the Board that the contracts of sale were made when the goods were situate in this Province ? (2) Is it not more in consonance with the evidence that the contracts were made by the agents of the assessee when the goods were out of this Province ? (3) Whether all the transactions had been rightly dealt with on a single basis ? (4) Whether the Board should not be called upon to state a further case in respect of what had actually happened ? (5) Whether this Court had not inherent power to order a fresh investigation of the whole case ? 9. In our opinion, it is now too late to go behind the finding recorded by the Board of Revenue. There is no doubt that the question whether there was any evidence in support of a particular finding is a question of law; but the attempt made by the learned counsel for the assessee to raise that question is belated. He never suggested to the referring authority to frame any such question; at no stage of the proceedings before the Sales Tax Authorities was this question mooted. It is true the assessee made an attempt to show before the Board of Revenue by filing the four affidavits referred to above that the facts were different from what the Assistant Commissioner and the Commissioner of Sales Tax had found. But that attempt proved unsuccessful. The statement of the case as made by the Board does not permit these questions to be raised at this stage. But that attempt proved unsuccessful. The statement of the case as made by the Board does not permit these questions to be raised at this stage. This Court cannot go behind the finding that the contracts were made when the goods were situate in the Province. It is not for this Court to investigate whether that finding is correct. We have to give our answer to the questions raised on the basis that the findings of the Sales Tax Authorities are correct. We do not, therefore, think it necessary to call for any further case to be stated; nor are we satisfied that there is any "inherent power" in this Court functioning under section 23 of the Sales Tax Act to order a fresh investigation. Our function is confined to answering the questions raised and referred to this Court. 10. A good deal of argument was devoted to the proper construction to be placed on the provisions of Articles 286, 301, 304 and 305 of the Indian Constitution. Those questions have been mooted at great length by this Court in Messrs. Shriram Gulabdas v. Board of Revenue ([1952] 3 S.T.C. 343; I.L.R. 1953 Nag. 332) and as we are generally in agreement with the conclusions reached in that case, we do not think it necessary to repeat the reasons for those conclusions. We would therefore answer the question raised in this reference in the affirmative. 11. Now coming to Miscellaneous Civil Case No. 65 of 1952, the first question raised at the instance of the Department relates to "trade discount" or cash discount, which has been decided in favour of the assessee by the Board. We would therefore answer the question raised in this reference in the affirmative. 11. Now coming to Miscellaneous Civil Case No. 65 of 1952, the first question raised at the instance of the Department relates to "trade discount" or cash discount, which has been decided in favour of the assessee by the Board. The answer to this question depends upon the construction of section 2(h), which defines "sale price" in these terms : "'sale price' means the amount payable to a dealer as valuable consideration for - (i) the sale of any goods, less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof other than the cost of freight or delivery or the cost of installation when such a cost is separately charged; or (ii) the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials used in carrying out such contract, as may be prescribed." The Board has proceeded on the footing that the amount covered under this head was not actually payable to or received by the dealer. The facts have not been properly stated so far as this question goes; but the learned Advocate-General who argued this part of the case on behalf of the Department did not ask for any further or fresh statement. We must therefore go upon the consideration that the facts as stated by the Board are that the amount in question was not as a matter of contract between the parties payable to or receivable by the dealer. It was for the Department to show clearly that the basis for the decision of the Board, so far as this question is concerned, was wrong, and as we are not satisfied on that score we must answer the question in the affirmative, that is to say, in favour of the assessee. 12. It was for the Department to show clearly that the basis for the decision of the Board, so far as this question is concerned, was wrong, and as we are not satisfied on that score we must answer the question in the affirmative, that is to say, in favour of the assessee. 12. It remains now to consider the second question referred, whether the amount covered by railway freight actually paid by the purchaser is liable to be excluded from "sale price." The first sentence in the question as framed itself answers the question; that is to say, if the contract between the parties was that it was to be a free delivery, all costs incidental to handling the goods up to the other end was to be included in the sale price. The Member, Board of Revenue, who was inclined to take a view favourable to the assessee based his opinion on the consideration that the amount of railway freight did not actually find its way into the pocket of the assessee in the sense that it became his property. That such a consideration is not always the guiding factor in determining the question is illustrated by Jethalal v. The State ([1953] 4 S.T.C. 125; I.L.R. 1953 Nag. 634). In that case a Division Bench of this Court (to which one of us, Sinha, C.J., was a party) took the view that sales tax separately charged by the dealer was part of the sale price as defined under section 2(h) of the Act. In taking that view this Court followed the decision of the Division Bench of the Calcutta High Court in Bata Shoe Co., Ltd. v. Member, Board of Revenue ([1949] 1 S.T.C. 193; 53 C.W.N. 278). In that case, as in the instant case, it was sought to be argued that the amount so included in the sale price did not become the property of the dealer. That argument was negatived in view of the definition of sale price in section 2(h) of the Act. 13. It is true the railway freight paid by the purchaser is separately shown in the bill made by the dealer. That argument was negatived in view of the definition of sale price in section 2(h) of the Act. 13. It is true the railway freight paid by the purchaser is separately shown in the bill made by the dealer. But that would not make any difference to the legal position so long as the contract was, as is assumed in the question referred, that railway freight was included in the price quoted to the purchaser and in pursuance of which contract goods were despatched by the dealer to the purchaser. Instead of paying the railway freight at the time of despatching the goods by rail the dealer called upon the purchaser to pay that amount at the other end on delivery of the goods. That was only an arrangement of convenience between the parties. The purchaser if he so liked could have refused to pay because under the contract it was the duty of the dealer to have paid for the railway freight. But as it did not make any difference to the purchaser whether he paid the railway freight before or after a certain stage was reached in the transaction, he did not raise any such dispute. That the dealer gave the purchaser credit for the amount paid in respect of the railway freight does not make any difference to the legal position. This is shown also by the consideration that the dealer would be bound to give credit to the purchaser for any sums paid in advance towards the price of the goods to be supplied. 14. It may sound a little unjust, as the President, Board of Revenue, observed in his opinion, that the amount covered by railway freight should be charged against the dealer when that amount did not really become his property. But such considerations do not weigh with the Court in construing a fiscal statute where the words of the statute have to be construed in their natural sense, irrespective of considerations of hardship. But such considerations do not weigh with the Court in construing a fiscal statute where the words of the statute have to be construed in their natural sense, irrespective of considerations of hardship. In this connection the following observations of Lord Cairns in Partington v. The Attorney-General ((1869) 4 H.L. 100 at p. 122) are instructive : "I am not at all sure that, in a case of this kind - a fiscal case - form is not amply sufficient; because, as I understand the principle of all fiscal legislation it is this : If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute." 15. If we adhere to the words of the statute, as we are bound to do, the definition of sale price would in the circumstances stated include railway freight, though actually paid by the purchaser. In other words, the determining factor is not the terms in which the bill is made but the terms of the actual contract between the parties, and if the contract was, as stated, "F.O.R. destination" it must mean that the price was intended between the parties to be inclusive of the railway freight. 16. The question as framed makes reference to the phrase "separately charged" thus indicating that it was not the assessee's contention before the revenue authorities that the words in the definition "when such cost is separately charged" had no reference to the cost of freight also. But the learned counsel for the assessee attempted to argue that that clause had reference only to the cost of installation and not to the cost of freight or of delivery. In other words, he contended that the cost of freight could in no circumstance form part of "sale price" as defined in the Act. But the learned counsel for the assessee attempted to argue that that clause had reference only to the cost of installation and not to the cost of freight or of delivery. In other words, he contended that the cost of freight could in no circumstance form part of "sale price" as defined in the Act. In the first instance this contention is not available to the assessee because it is not a part of the question referred to this Court, and secondly though there may be some room for argument based on the construction of the last three clauses in item (i) of section 2(h) of the Act, we are of the opinion that the clause "such cost is separately charged" governs all the three, viz., cost of freight or of delivery or of installation. The learned counsel for the assessee argued that the word "cost" when first occurring in item (i) referred both to freight and to delivery but not to installation and occurring for the second time it referred to cost of installation and therefore when the word "cost" has occurred for the third time it would have reference to the word "cost" used for the second time and not to that used for the first time as inclusive of freight and delivery. It is not for us to say why the legislature framed the sentence in that way; but giving the words their due weight, in our opinion, the clause "when such cost is separately charged" has reference to cost not only of installation but also of freight or delivery, because such cost may or may not form part of the sale price according to the terms of the contract between the parties. The same considerations apply equally to all the three kinds of cost contemplated in the definition. In other words, if the parties to the sale transaction agree that the cost of freight, or of delivery or of installation should be paid for separately, that cost should not form part of "sale price". If, on the other hand, the parties agree that the "sale price" should be all-inclusive, i.e., that the purchaser must bear all the costs up to the stage of installation of the goods purchased and on the responsibility of the seller, the legislature intended to include all those charges in the "sale price". The question must therefore be answered in the negative. The question must therefore be answered in the negative. 17. As the assessee has substantially failed in the reference, except for the small amount relating to trade discount, he must pay the costs of the Commissioner of Sales Tax. Hearing fee Rs. 250. Reference answered accordingly.