B. N. Kirpal, J. ( 1 ) THE Appellate Tribunal, Sales Tax, Delhi has, under ,section 45 of the Delhi Sales Tax Act, 1975 referred one question of law to thiscourt in respect of the assessment year 1963-64. ( 2 ) BRIEFLY stated, the facts are that the dealer is carrying on thebusiness of coal, coke etc. Initially assessment for the said period was made- OK 28/03/1964 and an additional demand of Rs. 3,078. 07 was created. ;subsequently a notice under Section 20 (3) of the Bengal Finance (Sales Tax)Act, 1941 as then extended to the Union Territory of Delhi, was issued on 13th IMarch, 1968 proposing to revise suo moto the said assessment on the groundthat a portion of turnover had escaped assessment. The dealer raised objectionthat the notice was too short and it was vague as it did not indicate preciselywhat portion of the dealer s turnover had escaped assessment. It was alsocontended that the proper course was to proceed under Section 11 (A)and notunder Section 20 (3) if the turnover of the business of the dealer had escapedturnover. It was also stated that the sale figures of coal were duly accountedfor and properly taxed and the assessment order was quite valid. The learnedrevisional authority Shri B. K. . Sharma, Commissioner, Sales Tax rejected theplea raised by the dealer and observed that the dealer had disposed of wagonsin bulk after having taken delivery of the same from the railway and it becomesliable for payment of sites tax on the sale proceeds of all such wagons includingfreight and octroi etc. He, therefore, directed that full enquiry be made in allaspects of coal transactions made by the dealer and to pass fresh, assessmentorder. ( 3 ) AFTER remand, the sale of the dealer was estimated at the rate ofrs. 1. 425. 00 per wagon on an average including freight and octroi charges etc. ( 4 ) AN appeal was filed against the order of the Commissioner of Salestax before the Tribunal. The Tribuna did not allow the dealer to plead thatno tax should have been levied on the sale of coal under the local Act and thatthe same should be treated as a sale in the course of inter-State trade andcommerce. ( 4 ) AN appeal was filed against the order of the Commissioner of Salestax before the Tribunal. The Tribuna did not allow the dealer to plead thatno tax should have been levied on the sale of coal under the local Act and thatthe same should be treated as a sale in the course of inter-State trade andcommerce. ( 5 ) THE Tribunal, however, came to the conclusion that freight andoctroi charges should not be included in the sale price of the wagons for thepurpose of levy of tax on the dealer. In arriving at this conclusion, the Tribunalnoted that there was no entry in the account books of the dealer of realisationof freight and octroi. The cash book only indicated price of the "soft coke". It was also observed that in case the dealer had realised freight and octroicharges from the retailers, then there would have been no reason why he hadnot shown the same in the books of occounts. ( 6 ) ON an application under Section 45 being made, at the instance ofthe Commissioner of Sales Tax, the following question of law has been referredto this Court: "whether on the facts and circumstances. of the case thetribunal was right in holding that freight and octroi should not beincluded in the sale pries of the wagons for the purpose of levy ofsales tax on the dealer. " ( 7 ) AS is noted in the order of the Appellate Tribunal, the dealerpurchased coal from the collieries. It is not in dispute that the freight andoctroi in respect to the coal which was despatched from the collieries to Delhi,did not form part of the sale price of the collieries. The question of such aprocedure being adopted for purchase, sale and movement of coal was thesubject of control with the promulgation of the Colliery Control Order. Thedealer could not make any sales except to the persons who were authorised toact as retailers of the Civil Supplies Department of the Delhi Administration. Itis these retailers who took physical delivery of the coal and paid railway freightand octroi to the railway authorities. ( 8 ) IT is contended by the learned counsel for the Commissioner that theliability to pay freight and octroi was that of the dealer. Itis these retailers who took physical delivery of the coal and paid railway freightand octroi to the railway authorities. ( 8 ) IT is contended by the learned counsel for the Commissioner that theliability to pay freight and octroi was that of the dealer. The retailer , whopurchased the coal from the dealer took upon itself to discharge the liabilityof the dealer and therefore, the freight and octroi really and in effect formedpart of the sale price. ( 9 ) AS we have already noted, it is not in dispute that the freight andoctroi in question did not form part of the sale price of the colliery whichdespatched the coal to the dealer at Delhi. The reason for this is that according to the terms of the Colliery Control Order and the Notification issued thereunder, the prices of coal were fixed for delivery FOR at the loading pointnearest to the colliery or free on tramway or road vehicle at the colliery. Theimplication of this was that the title in the goods, in law, would pass to thepurchaser atleast when the coal was loaded at the loading point. Thereafterthe property in the coal stood transferred to the dealer and if any loss had beensuffered in respect thereto, that would have been to the account of the dealer. To put it differently, the carrier, which was the railways in the present case,acted as an agent of the dealer. Therefore, freight and octroi charges whichwere payable after the goods had been loaded, did not form part of the saleprice of the colliery. The dealer did not pay to the colliery any money inrespect to the freight and octroi charges of the goods. ( 10 ). From the facts found by the Tribunal, it is clear that the dealersold the coal to the retailers before taking physical delivery of the coal from therailways. The retailers were required to pay to the dealer the price fixedunder the Colliery Control Order. What was paid to the dealer by the retailerswas the price of coal which bad been charged by the colliery plus the commission which the dealer was entitled to charge under the provisions of the saidorder. Freight and octroi charges were not included in the invoice value. Thedealer did not receive any money by way of freight or octroi nor did it payfreight or octroi to railway authorities. Freight and octroi charges were not included in the invoice value. Thedealer did not receive any money by way of freight or octroi nor did it payfreight or octroi to railway authorities. Thus after the title in the coal hadstood transferred to the retailers, it is they who took physical delivery of thecoal. The liability to pay the freight and octroi charges was of the person whotook physical delivery from the railways. It was never the intention of thecontracting parties viz, the dealer and the retail purchasers that the freightand octroi charges were to form part of the sale price of the coal. ( 11 ) IN this connection it would be relevant to refer to some of theprovisions of the Colliery Control Order. Clause 4 provides that the Centralgovernment may, by notification, fix the price at which the coal may be soldby the colliery owner Clause 5, which is important, inter alia, states that nocolliery owner or his agent shall sell and no person shall purchase coal at aprice which is in excess of the maximum or below the minimum fixed underclause 4. According to clause 6, a middleman employed by a colliery owner isnot to receive a commission exceeding thirty seven paise per tonne. ( 12 ) THE dealer in the present case was a del credere agent and according to clause 6 (2) of the said Order, he could only receive from his customerthe price fixed under clause 4 plus the commission fixed under clause C (2 ). Thesaid order does not contain any provision with regard to payment of freightand octroi charges by the del credere agent or the customer except thatclause 12b, inter alia, provides that no person to whom coal has been allotted,shall divert or transfer such coal to any other person except under a writtenauthority from the Central Government and at such price as may be fixed bythat Government. It is while fixing the said price that it is stipulated in thesaid clause that the Central Government shall have due regard to the pricesfixed under clause 4 of the Order and the freight, cesses, taxes, middlemen scommission and other incidental charges eic. paid by the original allottee. Thereis nothing in this Order to show that the freight was at any point of timeregarded as a part of the sale price under the provisions of the Colliery Controlorder. paid by the original allottee. Thereis nothing in this Order to show that the freight was at any point of timeregarded as a part of the sale price under the provisions of the Colliery Controlorder. The entire sale and purchase was regulated by the provisions of thisorder, read in conjunction with the notification which was issued under clause 4of the said order, fixing the prices of coal. The prices which were fixedfor station or place of despatch and not FOR destination. This also showsthat the freight was not to be regarded as an element of sale price. ( 13 ) WHEN this freight was not to be considered as a part of the sellingprice of the colliery, it would stand to reason that in a subsequent transactionunder the provisions of the Colliery Control Order, the transfer of title by thedealer in favour of the authorised customers was also to be of the same natureviz. , the freight was not to form part of the selling price. At this juncture, itwould be pertinent to refer to the decision of the Supreme Court in the case ofhindustan Sugar Mills Ltd. v. State of Rajasthan, 43 STC 13. While considering the question as to whether the freight formed part of the slae price or not,where cement was despatched by the manufacturer under the provisions of thecement Control Order, the Supreme Court also examined a case like the present,where the delivery of the goods took place when the goods were put on rail atthe work siding. It was held by the Supreme Court that the risk, in such a case,would then pass to the purchaser and the payment of freight would be hisresponsibility. The Supreme Court observed at page 33 of the judgment andthat: "this would be the position apart from the provisions of thecontrol Order and, on this position, there can be no doubt, forreasons already discussed, that the amount of freight would not formpart of the "sale price". " ( 14 ) AS already observed, the freight did not form part of the saleprice of the colliery and when further sale took place in accordance with theprovisions of the Colliery Control Order, the only price which could be realisedby the dealer was the price fixed under clause 4 of the Colliery Control Orderand his commission. The order does not envisage freight and octroi charges. being received by the dealer. The order does not envisage freight and octroi charges. being received by the dealer. Of course, if the dealer had taken delivery ofthe goods after paying the freight and octroi charges and had then sold thecoal, then in all probability, the freight so paid would form part of the saleprice charged by him. But such is not the case here because the dealer soldthe goods to its customers on the clear understanding that it is the retailerswho were under legal obligation to take delivery of the goods after paying thefreight and octroi charges. ( 15 ) BEFORE concluding, we would like to refer to the decision of thedivision Bench of this Court in the case of Arjun Dass Gupta and Bros v. Commissioner of Sales Tax, 45 STC 52. This was also a case under the Delhicoal Control Order and the main contention which was raised was whetherthe sale made by the dealer, who was a del credere agent, in favour of acustomer, was an inter-State sale or not. We are not concerned with thatquestion here. Another question which was raised was whether the freightcharges which were paid by the coal retailers, were liable to be included in thesale price and turn over of the dealer. In respect thereto, this Court observedas follows: "the words cost of freight "separately charged" occurring insection 2ch) connote that the intention of the parties (as disclosed inthe contract of sale) must unequivocally be that freight charges willnot form part of the sale price. In the absence of any such evidenceproduced by the dealer, our view is that freight charges should beincluded, in the sale price, since, as a commercial transaction, it isunconceivable that a dealer will bear the freight charges himself. However, in this case, the department may examine whether thedealer is entitled to the benefit of the circular referred to in para 7 ofthe order of the Deputy Commissioner (M. D. Singh) dated 2 5/10/1972. " ( 16 ) THIS Court, therefore, held, as is evident from the above, that it isnot in every case that freight charges would form part of the sale price. If itwas unequivocally disclosed in the contract of sale that freight charges will notform part of the sale price, then no sales tax would be payable in respectthereto. " ( 16 ) THIS Court, therefore, held, as is evident from the above, that it isnot in every case that freight charges would form part of the sale price. If itwas unequivocally disclosed in the contract of sale that freight charges will notform part of the sale price, then no sales tax would be payable in respectthereto. The Court decided against the dealer in that case because there wasno proof with regard to the question as to whether the freight charged werepayable by the dealer or the customer. ( 17 ) IN the present case, however, it is clear that the contract of salebetween the parties as interpreted iu the light of the provisions of the Collierycontrol Order clearly provided that the freight and octroi charges were not toform part of the sale price. The Tribunal was, therefore, right in coming to theconclusion that no sales tax was payable on freight and octroi. ( 18 ) FOR the aforesaid reasons, the question of law referred to us isanswered in the affirmative and in favour of the dealer. ( 19 ) THERE will be no order as to costs.