JUDGMENT B. P. Saraf, J. By this reference under section 61(1) of the Bombay Sales Tax Act, 1959, read with section 9(2) of the Central Sales Tax Act, 1956, the Maharashtra Sales Tax Tribunal has referred the following question of law to this Court for opinion at the instance of the Revenue : "Whether on the facts and circumstances of the case, the Tribunal was justified in law in excluding from sale price, the freight charges paid by the buyer ?" The assessee is a manufacturer of paper, straw board and exercise books. To maintain uniform price of the paper manufactured by it all throughout the country, the assessee fixed the price F.O.R. destination. The procedure followed was that the assessee despatched the goods to its outstation customers by rail under railway receipts with "freight to pay", made out invoices at the catalogue rate, deducted discount from it, added excise duty, charged Sales Tax on the balance and then gave credit for the amount of freight to be paid by the customers at the destinations. In its returns under the Central Sales Tax Act, 1956 ("the Act"), of the periods July 1, 1962 to June 30, 1963 and July 1, 1974 to June 30, 1975, the assessee claimed that the amount of freight paid by the customers at the destination railway stations, for which credit had been given to them in the invoices made out by it did not form part of its sale price. The Sales Tax Officer did not accept this contention of the assessee as he was of the opinion that the price of the goods having been fixed f.o.r. destination, freight formed part of the sale price of the goods and hence, the assessee was liable to pay sales tax on the price of the goods inclusive of freight. Accordingly, the Sales Tax Officer added the amount of freight to the turnover of the assessee. Against the above order of the Sales Tax Officer, the assessee appealed to the Assistant Commissioner of Sales Tax, who confirmed the order of the Sales Tax Officer and dismissed the appeal of the assessee. The assessee went in further appeal to the Maharashtra Sales Tax Tribunal ("the Tribunal"). The contention of the assessee before the tribunal was that railway freight did not form part of the "sale price" and hence the same could not be added to its turnover. The assessee went in further appeal to the Maharashtra Sales Tax Tribunal ("the Tribunal"). The contention of the assessee before the tribunal was that railway freight did not form part of the "sale price" and hence the same could not be added to its turnover. The Tribunal, after going through the price lists issued by the assessee from time to time and the terms and conditions noted therein accepted the contention of the assessee that freight did not form part of the sale price and held that the sale price of the goods was the catalogue price less freight, and allowed the appeals of the assessee. Hence this reference at the instance of the Revenue. We have heard the counsel for the parties. The submission of Mr. K. J. Presswala, learned counsel for the Revenue, is that the Tribunal committed a manifest error of law in holding that the amount of freight did not form part of the sale price. According to him there is no contract between the parties in the instant case to show that it is a case of f.o.r. destination rate. His contention is that it is a case of sale f.o.r. destination railway station which would be governed by the ration of the decision of the Supreme Court in Hindustan Sugar Mills Ltd. v. State of Rajasthan (1979) 43 STC 13 and following the same freight paid by the purchasers and deducted from invoice by the assessee would form part of the sale price. On the other hand, the submission of the learned counsel of the assessee is that it is a case of f.o.r. destination rate and the Tribunal has arrived at that finding on perusal of the price list and the terms of supply which govern the transactions between the parties. According to him, the ratio of the decision of the Supreme Court in Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh (1969) 24 STC 487 squarely applies to the facts of the present case and following the same, the Tribunal was justified in holding that freight did not form part of the sale price. We have considered the rival submissions of the counsel for the parties and carefully perused the decisions of the Supreme Court in the cases referred to above. We have considered the rival submissions of the counsel for the parties and carefully perused the decisions of the Supreme Court in the cases referred to above. Both the decisions deal with the question whether in a contract of sale for destination, freight paid by the purchaser and deducted from invoice would form part of the sale price. In Hyderabad Asbestos Cement Product Ltd. (1969) 24 STC 487 , on consideration of the terms of the contract, the Supreme Court held that freight did not form part of the sale price. It was this decision which the Tribunal found applicable to the facts of the present case, and accordingly, decided the controversy in favour of the assessee. The Revenue contends that the Tribunal erred in doing so. According to it, the later decision of the Supreme Court in Hindustan Sugar Mills Ltd. (1979) 43 STC 13 applies to the facts of the present case and hence freight would form part of the sale price. We have perused the facts of the present case and the terms of contract of sale between the parties. On a careful consideration of the same, we find that the facts of the present case are identical to the facts of Hyderabad Asbestos Cement Products Ltd. case (1969) 24 STC 487 (SC) and the Tribunal was correct in applying the ratio of the said decision and arriving at a conclusion that freight did not form part of the sale price of paper sold by the assessee. The decision of the Supreme Court in Hindustan Sugar Mills Ltd. (1979) 43 STC 13 has no application to the facts of the present case. In that case, the Supreme Court arrived at a different conclusion in view of the scheme and provisions of Cement Control Order which governed all contracts of sales of cement. While doing so it was specifically pointed out by the Supreme Court that if the terms and conditions of the contract had stood alone the assessee might have been entitled to succeed in excluding the freight charges on the principle of Hyderabad Asbestos Cement Products Ltd. case (1969) 24 STC 487 (SC) but that relief could not be given to the assessee in view of the scheme and provisions of the Cement Control Order and their implications. F.O.R. contracts may be of two types. F.O.R. contracts may be of two types. First, it may be a contract of sale F.O.R. destination railway station. Second, it may not be a contract of sale F.O.R. destination railway station, but the price alone may so. In the first type of F.O.R. contracts, the seller undertakes an obligation to put the goods on rail and arrange to have them carried to the destination railway station at his expense. The delivery of the goods to the purchaser in such a case is complete at the destination railway station and till then the risk continues to remain with the seller. The freight is payable by the seller since he has to arrange for the delivery of the goods at the destination railway station. The agreed price being inclusive of freight, it would be merely a matter of convenience whether the seller pays the freight and charges the agreed price which includes freight, or obtains a railway receipt at the time of taking delivery of the goods from the railway at the destination railway station and gives the purchaser credit for the amount of the freight against the agreed price. When the purchaser pays the freight in such a case, it would be as a part of the agreed price and not as freight vis-a-vis the seller. The amount of freight paid by the purchaser and shown in the bill as deducted from the agreed price would, in such a case, form part of the "sale price". The position would, however, be different in the second type of F.O.R. contracts, where the contract of sale is not F.O.R. destination railway station but the price alone is so. In such a case, the contract does not have all the incidents of an F.O.R. destination railway station contract, but merely the price is stipulated on that basis. The terms of such a contract may provide that the delivery shall be complete when the goods are put on rail and thereafter it shall be at the risk of the purchaser. Such a stipulation would make the railway the agent of the purchaser for taking delivery of the goods. The freight in such a case would be payable by the purchaser though the price agreed upon is f.o.r. destination railway station. Such a stipulation would make the railway the agent of the purchaser for taking delivery of the goods. The freight in such a case would be payable by the purchaser though the price agreed upon is f.o.r. destination railway station. The price of goods receivable by the dealer would in that event, be the F.O.R. destination railway station price less the amount of freight being payable by the purchaser would not be included in the "sale price". The position would be the same even if the seller pays the freight and obtains railway receipt "freight pre-paid" and claims the full F.O.R. destination railway station price in the bill. The amount representing freight would not be payable as part of the consideration for the sale of goods but by way of reimbursement of the freight which was payable by the purchaser but in fact disbursed by the seller and hence it would not form part of the sale price. (Hindustan Sugar Mills Ltd. (1979) 43 STC 13 (SC)). Hyderabad Asbestos Cement Products Ltd. case (1969) 24 STC 487 (SC) was a case of the second category, There, the assessee maintained a uniform catalogue rate all over the country in respect of its manufactures and the catalogue rate obviously included freight in transporting goods to the customers. The assessee dispatched goods to the customers by rail under railway receipts with "freight to pay" and made out invoices at the catalogue rate, deducted discount from it and charged sales tax on the balance and then gave credit for the amount of freight to be paid by the customers. The question arose in the assessment of the assessee to sales tax whether the amount of freight formed part of the "sale price" and was, therefore, includible in the turnover of the assessee. The terms of the contracts with the customers were in a printed form and clauses (4) and (16) thereof provided as follows : "(4) The price of the said productions supplied to the stockists shall be the current general gross list price charged by the company, free on rail, less such discount as may be fixed by the company from time to time ......... (16) ..... (16) ..... the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the stockists at the destinations and the amount of freight shown on the railway receipt shall be deducted from the invoice of the company." It will be seen that under clause (4) the price of the goods was stipulated to be "the current general gross list price charged by the company free on rail", but clause (16) made it clear that "the date of delivery shall mean the date of the railway receipt" and though the goods may be sold free on rail destination, "the railway freight shall nevertheless be payable by the stockists at the destinations and the amount of freight ... shall be deducted from the invoice of the company". The combined reading of clauses (4) and (16) clearly showed that it was only the price which was f.o.r. destination and the delivery to the customers was complete as soon as the goods were put on rail and payment of freight was the obligation of the customers as between them and the assessee. The Supreme Court held : "If clause (4) stood alone the price charged by the company may be deemed to be the catalogue rate less the discount payable to the purchaser. But by clause (16) the purchaser clearly undertook to pay railway freight which was deducted from the invoice made out by the company. By clause (16) the company received the catalogue rate less the railway freight as price of the goods sold. We are unable to agree with the High Court that 'the term relating to the price in the contract between the company and the stockists envisaged by this clause (Clause 16) implies an obligation on the part of the company to pay the railway freight'. We are unable to agree with the High Court that 'the term relating to the price in the contract between the company and the stockists envisaged by this clause (Clause 16) implies an obligation on the part of the company to pay the railway freight'. In our judgment, under the terms of the contract there is no obligation on the company to pay the freight, and under the terms of the contract the price received by the company for sale of goods is the invoice amount less the freight." In Hindustan Sugar Mills Ltd. case [1979] 43 STC 13, the Supreme Court reiterated and reaffirmed the ratio of its earlier decision in Hyderabad Asbestos Cement Products Ltd. case [1969] 24 STC 487 but arrived at a different conclusion in view of the provisions of the Control Order governing the sales of cement which having statutory force and authority had an overriding effect over the terms and conditions of the contract between the parties. This is evident from the following observations : ".............. The scheme of the Control Order clearly proceeds on the basis that the freight is payable by the producer and he recover it from the purchaser as part of the f.o.r. destination railway station price. The provision in the contract that the delivery to the purchaser shall be complete as soon as the goods are put on rail and payment of the freight shall be the responsibility of the purchaser is wholly inconsistent with the scheme of the Control Order and must be held to be excluded by it. The Control Order is paramount : it has overriding effect and if it stipulates that the freight shall be payable by the producer, such stipulation must prevail, notwithstanding any term or condition of the contract to the contrary. The conclusion is, therefore, inevitable that the amount of freight forms part of the 'sale price' within the meaning of the first part of the definition." The position was reiterated by the Supreme Court in its recent decision in Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu [1993] 7 MTJ 411 Referring to its decision in Hindustan Sugar Mills Ltd. [1979] 43 STC 13 (SC), it observed : "............ Pvt. Ltd. v. State of Tamil Nadu [1993] 7 MTJ 411 Referring to its decision in Hindustan Sugar Mills Ltd. [1979] 43 STC 13 (SC), it observed : "............ This Court, after referring to the above contentions, pointed out that, if the terms and conditions of the contract had stood alone, the assessee might have been entitled to succeed in excluding the freight charges on the principle of Hyderabad Asbestos Cement Products Ltd. case [1969] 24 STC 487 (SC) but that relief could not be given to the assessee in view of the scheme and provisions of the Cement Control Order and their implications." From the above discussion, it is clear that the ratio of the decision of the Supreme Court in Hyderabad Asbestos Cement Products Ltd. [1969] 24 STC 487 is still valid and binding. Different conclusion was arrived at in Hindustan Sugar Mills Ltd. [1979] 43 STC 13 (SC) and Ramco Cement Distribution Co. Pvt. Ltd. [1993] 7 MTJ 411 (SC), because of the scheme and provisions of the Control Order which, having statutory and binding force and authority, had an overriding effect on the terms of contract. In the present case, the sales of paper, etc., by the assessee were not governed by any Control Order. The question whether freight forms part of the sale price or not would have to be decided having regard to the terms and conditions of the contract. The relevant terms and conditions are contained in the notes appended to the price lists issued by the assessee form time to time. In the price list issued on January 8, 1960, the following notes are relevant : "2. Prices noted above are for delivery f.o.r. destination station. 8. We shall not be responsible for any loss or damage once the goods are handed over to the carriers. Claim or damage, if any, should be lodged with the carriers." The forwarding letter reads : "To All Distributors of Shree Gopal Paper Mills Limited and Ballarpur Paper & Straw Boards Mills Ltd. Dear Sirs Our Revised price lists are being sent to you separately. Your would observe that the prices mentioned in the price lists are for delivery F.O.R. destination station, but as per practice in vogue we shall continue to deduct the railway freight in the invoices. Your would observe that the prices mentioned in the price lists are for delivery F.O.R. destination station, but as per practice in vogue we shall continue to deduct the railway freight in the invoices. To be precise railway receipts, will be continued on the basis of 'freight to pay' as already being done, and it would be the responsibility of the distributors to pay railway freight at the destination. Allowance for the incidence of railway freight would, however, he made in the invoice as usual." Note Nos. 2 and 8 in price list dated March 18, 1969 are in identical terms as in price list dated January 8, 1960, which are set out above. In price list dated June 10, 1974, notes 2 and 8 read as follows : "2. Prices noted above are F.O.R. destination by goods train. Railway receipts will, however be obtained on 'freight to pay' basis and it would be the responsibility of the distributors to pay the freight, allowance for which would be made in the invoices. 8. We shall not be responsible for any loss or damage once the goods are handed over to the carriers. Claim for loss or damage, if any should be lodged with the carriers." It appears that what was contained in forwarding letter annexed to the price list dated January 8, 1960, has been incorporated in clause 2 itself. The above terms and conditions are identical to those in Hyderabad Asbestos Cement Products Ltd. case (1969) 24 STC 487 (SC). The delivery in the present case is complete when the goods are put on rail and thereafter the goods are at the risk of the purchaser. It is categorically stated in note 8 that the seller would not be responsible for any loss or damage once the goods are handed over to the carriers and the claim for loss or damage, if any, would have to be logged by the purchaser with the carriers. This is thus not a contract of sale f.o.r. destination railway station. The price is merely stipulated on that basis. It is a case of price f.o.r. destination railway station, which would be governed by the ratio of the decision of the Supreme Court in Hyderabad Asbestos Cement Products Ltd. (1969) 24 STC 487 . This is thus not a contract of sale f.o.r. destination railway station. The price is merely stipulated on that basis. It is a case of price f.o.r. destination railway station, which would be governed by the ratio of the decision of the Supreme Court in Hyderabad Asbestos Cement Products Ltd. (1969) 24 STC 487 . The price received by the assessee under the terms of the contract for the sale of the goods would be the catalogue price less the freight. In view of the above, we answer the question referred to us by the Tribunal in the affirmative and in favour of the assessee. However, before parting with the case, we deem it expedient to observe that our attention was drawn by the learned counsel for the Revenue Mr. Presswala to the fact that sales tax has been collected by the assessee in the present case on the value of the goods without deducting the freight, which according to him was an indicator that freight was intended to be a part of the sale price. We have considered the above submission. We, however, do not find any merit in the same. It appears that similar argument advanced on behalf of the Revenue in Hyderabad Asbestos Cement Products Ltd. [1969] 24 STC 487 was repelled by the Supreme Court. It was observed : "......... the form in which the invoice is made out is not determinative of the contract between the company and its customers. If, apprehending that it may have to pay sales tax on the freight, the company collected sales tax on the freight, the true nature of the contract between the company and the purchasers cannot on that account be altered ........... the State cannot seek to levy tax on railway freight if it is not made a part of the price." The Revenue, however, would be at liberty to take appropriate action including initiation of proceedings for forfeiture of the amount of sales tax, if any, collected by the assessee on the amount of freight which did not form part of the sale price. This reference is answered accordingly in favour of the assessee and against the Revenue. In the facts and circumstances of the case, we make no order as to costs. Reference answered in affirmative.