JUDGMENT A. K. MATHUR, AG. C.J. - This is a reference under section 44 of the M.P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act"), read with section 13 of the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (hereinafter referred to as "the Entry Tax Act") at the instance of the assessee and the following questions of law have been referred by the Board of Revenue for the answer of this Court : (1) Whether, the Board is justified in the facts and circumstances of the case, in determining the market value-cum-sale price at Rs. 117 per metric tonne by including transport charges and others in it ? (2) Whether, the Board is justified in the facts and circumstances of the case, in maintaining imposition of penalty under section 17(3) as just and legal though inadvertently stated under section 43(1) ? (3) Whether, in the facts and circumstances of the case, the Board is justified in maintaining the orders of lower authorities including penalty by discarding the order of Board of Revenue on the same matter for the year 1977-78 ? 2. The brief facts giving rise to this reference are : The applicant, M/s. Bharat Aluminium Company Ltd., Korba, is a registered dealer under the Act. The applicant-company was assessed for the period from April 1, 1978 to March 31, 1979 by the Assistant Commissioner of Sales Tax, Bilaspur, in assessment case No. 5/1978-79 wherein the assessment order was on December 31, 1982. The applicant-company did not file any return during this period. However, at the time of assessment proceedings, a purchase list and books of accounts were produced. Total purchases were determined at Rs. 25,92,67,681 which is according to books maintained by the applicant-company. After allowing deduction of Rs. 6,47,57,146, taxable purchases of Rs. 19,45,10,535 were determined. The company raised bauxite from its mines in Amarkantak and Phutkapahad. It purchases bauxite from Manikpur also and such purchases were 10,057 metric tonnes. The total quantity of bauxite entered into BALCO during the period was 2,83,268 metric tonnes. There is a difference in the value of the bauxite raised from its mines and those purchased from Manikpur. Total value of these bauxite as shown in the books, properly audited, was taken by the assessing officer for the purpose of assessment of tax. Total entry tax of Rs. 43,61,660.60 was assessed. There is a difference in the value of the bauxite raised from its mines and those purchased from Manikpur. Total value of these bauxite as shown in the books, properly audited, was taken by the assessing officer for the purpose of assessment of tax. Total entry tax of Rs. 43,61,660.60 was assessed. The applicant-company did not explain the circumstances in which returns were not filed. Therefore, a penalty of Rs. 1,50,000 was imposed under section 13 of the Entry Tax Act read with section 17(3) of the Act. Then a first appeal was filed before the Appellate Deputy Commissioner of Sales Tax, Bilaspur, and it was submitted that while determining the market value of bauxite, transportation charges have not been excluded and it was contended that a transportation charges are not excluded the value of bauxite raised from its mines comes to Rs. 117 per metric tonne and those purchased from Manikpur comes to Rs. 101.53 per metric tonne and if it is excluded the value of bauxite raised from its own mines would reduce to Rs. 70 and those purchased from Manikpur would reduce to Rs. 45 per metric tonne. This plea was not accepted by the Appellate Deputy Commissioner as the company itself has shown the value of bauxite at Rs. 117 per metric tonne in the books without making any distinction between the bauxite raised from its mines and those purchased from Manikpur. The appeal was accordingly dismissed. Thereafter, the applicant went in second appeal before the Board of Revenue which also confirmed the findings of both the authorities below. Hence this reference has been made at the instance of the assessee before this Court and the aforesaid questions have been referred for answer of this Court. 3. The appeal was accordingly dismissed. Thereafter, the applicant went in second appeal before the Board of Revenue which also confirmed the findings of both the authorities below. Hence this reference has been made at the instance of the assessee before this Court and the aforesaid questions have been referred for answer of this Court. 3. Shri Shrivastava, learned counsel for the assessee has invited our attention to the definition of "value of goods" as contained in section 2(1)(1) of the Entry Tax Act which reds as under : "(1) 'value of goods' in relation to a dealer or any person who has effected entry of goods into a local area shall mean the purchase price of such goods as defined in clause (o) of section 2 of the Sales Tax Act and shall include excise duty and/or additional excise duty if levied under the Central Excises and Salt Act, 1944 (No. 1 of 1944) and the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (No. 58 of 1957), or the market value of such goods if, they have been acquired or obtained otherwise than by way of purchase." According to this definition, "value of goods" shall mean the purchase price of goods as defined in clause (o) of section 2 of the Sales Tax Act. Clause (o) of section 2 of the M.P. General Sales Tax Act at the relevant time reads thus : "(o) 'sale price' means the amount payable to a dealer as valuable consideration for the sale of any goods less any sum allowed as cash discount, according to ordinary trade practice but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery there of other than the cost of freight or delivery or the cost of installation when such cost is separately charged and the expression 'purchase price' shall be construed accordingly." As per this definition, "sale price" would not include cost of freight or delivery or cost of installation when such cost is separately charged. It is further clarified that the expression "purchase price" shall be accordingly construed. 4. It is further clarified that the expression "purchase price" shall be accordingly construed. 4. The learned counsel for the assessee submitted that in the present case all the three authorities below have not properly examined the matter and he invited our attention to a statement showing the nature of bauxite consumed during the year 1978-79 in which the figures were the audited figures from the cost audit report dated October 26, 1979 issued by M/s. R. J. Goel, Cost Accountant, Delhi. The said document has been signed by K. B. Gurha, Dy. F.A. and C.A.O. This was placed on record and the learned counsel submitted that in respect of bauxite which has been transported by the assessee from its own mines at Amarkantak and Phutkapahar it would appear from the statement that the freight charges were Rs. 46.85 per metric tonne and the actual cost of the bauxite raised at the minehead was Rs. 70.79 per metric tonne and the total landed cost at the company came to Rs. 117.64. In respect of bauxite purchased from Manikpur, it is pointed out that the ropeway expenses was Rs. 23.04 and railway freight Rs. 22.98, i.e., total Rs. 46.02 and the landed cost of the bauxite at the plant has been given as Rs. 101.53. As far as the present case is concerned, Shri Shrivastava has confined his submissions to the supply of bauxite from the mineshead to the planthed from Amarkantak and Phutkapahar. The learned counsel has submitted that we are not concerned with the rates of the Manikpur supply and, therefore, we confine ourselves to the supplies made from mineshead of the applicant-assessee, i.e., Amarkantak and Phutkapahar to their plant. In the statement it has been clearly mentioned that Rs. 117 per metric tonne was the actual landed cost at the plant site and in that it has been shown that the average rate of transportation, i.e., freight per metric tonne was Rs. 46.85 and, therefore, the actual cost of the goods would be Rs. 70.79 per metric tonne. All the authorities below have proceeded on the basis of so-called balance sheet and other books of account placed before them. Learned counsel for the assessee submits that all those records did contain this statement but somehow it has not been so referred and the authorities have only taken the landed cost at the plant at the rate of Rs. All the authorities below have proceeded on the basis of so-called balance sheet and other books of account placed before them. Learned counsel for the assessee submits that all those records did contain this statement but somehow it has not been so referred and the authorities have only taken the landed cost at the plant at the rate of Rs. 117 but no attention was paid to the break-up. Therefore, the learned counsel has brought to our notice the said fact from the record which is the statement showing the nature of bauxite consumed and this document seems to have been taken notice of by the first appellate authority in its order. As such, we can take this statement into account for considering whether the landed cost of the bauxite at the plant should the taken at Rs. 117 per metric tonne or it should the minus the freight charges per metric tonne. 5. Having regard to the facts and circumstances of the case, we are of the opinion that as per definition of the "value of goods" as defined in section 2(o) of the M.P. General Sales Tax Act, the freight charges have to the excluded for working out the sale price of the goods for the being subjected to entry tax. In the present case Rs. 117 per metric tonne was the landed cost of the bauxite of the assessee and that included the freight charges also which is shown to be average at the rate of Rs 46.85 per metric tonne. This has to be excluded and the authorities seem to have not looked into the matter from that view and have taken Rs. 117 as market value of the goods. That approach by the authorities below was not correct. The authorities should have examined the matter and should have properly apprised themselves of the record before arriving at their conclusion. In fact, partly the applicant-assessee itself is responsible for this because it did not file return. If it had filed a detailed return perhaps this mistake would not have resulted. However, after going through the statement showing the nature of the bauxite consumed and the nature mentioned therein, we are of the opinion that Rs. 117 per metric tonne was the landed rate at the plant which included freight charges at the rate of Rs. 46.85 per metric tonne. However, after going through the statement showing the nature of the bauxite consumed and the nature mentioned therein, we are of the opinion that Rs. 117 per metric tonne was the landed rate at the plant which included freight charges at the rate of Rs. 46.85 per metric tonne. Therefore, after deducting this as per section 2(o) of the Sales Tax Act, the price will come to Rs. 70.79 per metric tonne and the assessee-company is assessable at this rate of the goods brought by it as entry tax. Therefore, questions Nos. 1 and 3 are answered in favour of the assessee and against the Revenue. 6. As regards question No. 2 relating to imposition of penalty, it is submitted that in fact the assessee-company was under the misapprehension that they had already entered into contract with the SADA, Korba, for payment of octroi that they will pay Rs. 3 lacs to SADA annually and, therefore, they thought that they are not assessable to entry tax. This contention was not accepted and the assessee had approached this Court by filing a writ petition and thereafter the matter was taken to the Supreme Court also, but ultimately the Supreme Court also rejected this contention of the assessee and it was finally decided by the Supreme Court on November 26 [Reported as Western Coalfields Ltd. v. Special Area Development Authority AIR 1981 SC 697 .], 1981. However, before that the assessee had already paid Rs. 27,48,703 towards entry tax. Therefore, it is submitted that the applicant-assessee was bona fide pursuing its remedy and they should not have been Subjected to penalty. It is true that they were pursuing their bona fide remedy, therefore, they should not have been subjected to penalty. But, they are definitely liable to pay interest on the amount which was retained by them towards the entry tax, if there is any. We have already held above that the assessee-company will be liable to pay entry tax on the bauxite brought by them at the rate of Rs. 70.79. Therefore, after working out that if any amount remains, on that amount the assessee-company will pay interest according to law. However penalty is set aside. Question No. 2 is answered accordingly. Reference answered accordingly.