S. N. TIWARI, J. Heard. 2. This revision is directed against the judgment and order dated December 3, 1988 passed by the Sales Tax Tribunal, Bench II, Ghaziabad, as it was then. 3. The dispute in the present revision relates to the assessment year 1976-77. 4. The respondent Modi Industries is a registered dealer. It manufactures vanaspati besides other things. 5. The first controversy raised before this Court relates to the taxability on railway freight amounting to Rs. 6,15,334 which was claimed to be excluded before the assessing authority. The next controversy relates to the rate of tax on cinder ash. 6. The assessing authority in its order dated January 31, 1981 held that the tax is payable on the railway freight also and disallowed the claim of the assessee-respondent that it was not liable to tax. The assessing authority has assessed cinder ash as unclassified and imposed tax at 8 per cent. 7. Feeling aggrieved, the respondent preferred appeal which was allowed in part vide order, dated March 16, 1983. It was held by the appellate authority that the amount of freight amounting to Rs. 6,15,334 should not be included in the taxable turnover of the assessee. It was further held that the finding of the assessing authority on cinder ash was not being disturbed. Feeling aggrieved both the department and the dealer preferred second appeals being Second Appeal No. 338 of 1983 and Second Appeal No. 101 of 1983. The Tribunal upheld the conclusion of the Deputy Commissioner about tax liability on railway freight. The appeal filed by the dealer was also partly allowed. It was held that cinder ash is taxable as coal ash. The cinder ash and coal ash are the same thing and consequently tax at 4 per cent would be payable on the cinder ash. 8. Feeling aggrieved, the Commissioner of Sales Tax has come up in revision before this Court. 9. The first question for determination is whether the railway freight is liable to tax. The learned Standing Counsel has referred to case of Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13 (SC); 1979 UPTC 37 (SC ). In the case become the honourable Supreme Court, the question involved was whether the freight included in the price of cement in pursuance of the control order would be liable to tax even in the teeth of contract to the contrary. In the case become the honourable Supreme Court, the question involved was whether the freight included in the price of cement in pursuance of the control order would be liable to tax even in the teeth of contract to the contrary. It was observed that 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 terms or conditions 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. 10. Para 9 (page 30 of STC) of the aforesaid judgment, which deals with the cases not covered by the control order but only by the agreement, is reproduced as follows : " This would plainly and indubitably be the position where the contract of sale entered into by the dealer is f. o. r. destination railway station. But here it is necessary to bear in mind a rather important distinction. There may be a case where the contract of sale may not be f. o. r. destination railway station, but the price alone may be so. Where such is the case, the contract does not have all the incidents of a 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 agent of the purchaser for taking delivery of the goods. The freight in such a case would be payable by the purchaser thought the price agreed upon is f. o. r. destination railway station. The price of the goods receivable by the dealer would, in that even, be the f. o. r. destination railway station price less the amount of freight payable by the purchaser. The freight in such a case would be payable by the purchaser thought the price agreed upon is f. o. r. destination railway station. The price of the goods receivable by the dealer would, in that even, be the f. o. r. destination railway station price less the amount of freight payable by the purchaser. That would be the consideration payable by the purchaser to the dealer for the sale of the goods and the amount of freight being payable by the purchaser would not be included in the sale price within the meaning of the first part of the definition. The position would be the same even if the dealer 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 the goods but by way of reimbursement of the freight which was payable by the purchaser but in fact disbursed by the dealer and hence it would not form part of the sale price. " It was clearly observed that the amount representing freight would not form part of the sale price if the freight was payable by the purchaser. 11. In the present case, there is no control order which fixes the responsibility on the producer for payment of freight. On the contrary, the supply has been made according to the terms of the contract between the parties to the sale. The Deputy Commissioner, Sales Tax, referred to some portion of para 9 of the aforesaid decision and the agreement between the parties to the sale and held that no tax is payable on the freight and it is not part of the price. He referred to the dealership agreement according to which the sale was not f. o. r. destination but it was a f. o. r. price destination. It was further held that the freight is charged in the bills initially but subsequently the freight is deducted from the sale price. It was further observed that the above procedure was followed because all the purchasers should get vanaspati on the same price and the case of the dealer is covered by the case of Commissioner, Sales Tax v. Jeep Flash Light (1982) STD 223. It was further observed that the above procedure was followed because all the purchasers should get vanaspati on the same price and the case of the dealer is covered by the case of Commissioner, Sales Tax v. Jeep Flash Light (1982) STD 223. The contention of the dealer was accepted and it was held that, in the circumstances of the case, the ratio of the decision of the honourable Supreme Court would not apply to the facts of this case. 12. The memo of appeal filed by the revisionist before the Sales Tax Tribunal has not been filed to show whether it has challenged the observation of the Deputy Commissioner, Sales Tax, about the agreement between the parties. Question No. (iii) for decision by this Court has been framed as follows in the memo of revision : " (iii) Whether, on the facts and in the circumstances of the case, the learned members, Sales Tax Tribunal, were justified in granting concession on freight when in fact the amount of freight paid by the purchaser had been deducted from the bills afterwards, and also under the circumstances when the amount of sales tax has been charged on the amount for which the bills have been raised and tax deposited with the State. " 13. From the above, it is clear from the statement of fact that freight paid by the purchaser was included initially in the sale price but had been deducted from the bills though the tax had been charged and deposited for the amount for which the bill has been raised. 14. On the facts mentioned above, this Court has held in the case between the parties, in Commissioner of Sales Tax v. Modi Industries 1989 UPTC 57 that the freight paid by the producer would not be included in its turnover. The following observation was made therein : " The fourth submission made by the learned Standing Counsel is that the Tribunal is in error in deleting the amount of Rs. 4,17,308 on account of railway freight. The Tribunal has found as a fact that the assessee had given a discount of freight and had not realised the said amount from the customers. Admittedly the said discount is an allowable deduction under rule 44 of the U. P. Sales Tax Rules framed under the Act. 4,17,308 on account of railway freight. The Tribunal has found as a fact that the assessee had given a discount of freight and had not realised the said amount from the customers. Admittedly the said discount is an allowable deduction under rule 44 of the U. P. Sales Tax Rules framed under the Act. Under these circumstances, as held by this Court in the case of Commissioner, Sales Tax v. Amrit Vanaspati Company Ltd. 1978 UPTC 680 and as held by me recently in Sales Tax Revision No. 507 of 1987 in the case of the same parties decided on 28th September, 1988 [since reported as Commissioner, Sales Tax v. Amrit Vanaspati Co. Ltd. 1988 UPTC 1427], there was no liability of the assessee under the U. P. Sales Tax Act on the aforesaid amount of freight. In these circumstances the Tribunal was right in law in knocking off the aforesaid amount of Rs. 4,17,308 and there is no force in the contention of the learned Standing Counsel raised on behalf of the Commissioner, Sales Tax. " 15. Similar view was expressed in the case of Commissioner of Sales Tax v. Amrit Vanaspati Company Ltd. 1988 UPTC 1427. 16. Reliance was also placed on the case of Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh [1969] 24 STC 487. In this case the honourable Supreme Court observed as follows : " Railway freight being Rs. 274. 40 was added to the value of the goods and sales tax was collected by the company from the purchasers. That indicated, according to counsel for the respondent, that the true effect of the agreement between the parties was that the price was inclusive of the railway freight. But 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 the account be altered. The company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the company and the purchasers and the State cannot seek to levy tax on railway freight if it is not made a part of the price. " 17. The company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the company and the purchasers and the State cannot seek to levy tax on railway freight if it is not made a part of the price. " 17. The Tribunal below gave several opportunities to the Commissioner, Sales Tax, to produce Vanaspati Control Order, if any, for the period in question. No control order was produced and even today it is not asserted that the price of the vanaspati is regulated by any control order which has any overriding effect as in the case of Hindustan Sugar Mills [1979] 43 STC 13 (SC); 1979 UPTC 37. I feel that the present case is squarely covered by the decision of this Court in the case of Commissioner of Sales Tax v. Modi Industries 1989 UPTC 57, and by the observation made by the honourable Supreme Court in Hyderabad Asbestos Cement Products Ltd. [1969] 24 STC 487. The finding of the Sales Tax Tribunal cannot be disturbed as regards railway freight on the parties. 18. The next controversy relates to tax on cinder ash. It was argued by the learned Standing Counsel that cinder ash is different from coal ash. In this connection he referred to the case of Mahabir Singh Ram Babu v. Assistant Sales Tax Officer, Firozabad [1962] 13 STC 248. It was observed that coal is a mineral as it is dug but while cinder is completely burnt part of the coal which escapes into the atmosphere. It appears that cinder is a left over of the coal. The Commissioner, Trade Tax, admittedly held under section 35 of the Act that the tax on coal ash is generally chargeable at 4 per cent. The Tribunal gave a finding to the effect that cinder ash and coal ash are treated as one and the same thing in commercial parlance. This finding of fact should not be disturbed on the basis of the case law cited by the learned Standing Counsel even if cinder ash is different from coal ash. Being the burnt portion of coal, there must be no difference between the ash of cinder and the ash of coal. Their chemical constituent would be the same. Thus the second ground of challenge has also no force. Being the burnt portion of coal, there must be no difference between the ash of cinder and the ash of coal. Their chemical constituent would be the same. Thus the second ground of challenge has also no force. The finding of the Sales Tax Tribunal about taxability of cinder ash cannot be disturbed. This revision has no force and is dismissed. Parties to bear their own costs. Petition dismissed. .