JUDGMENT PRAKASH KRISHNA, J. - The present revision is directed against the order dated December 5, 1996 passed by the Trade Tax Tribunal in Second Appeal No. 334 of 1994 relevant to the assessment year 1989-90 (U.P.). The dealer - opposite party carries on the business of cold drink. The acceptance of the account books of the dealer - opposite party is not in dispute. However, certain exemptions claimed by the dealer - opposite party were disallowed by the assessing authority who determined the tax liability of the dealer - opposite party as Rs. 4,67,956 as against the admitted liability of Rs. 3,34,585.50. The matter was ultimately carried to the Tribunal. The Tribunal by the order under revision has allowed the appeal filed by the dealer - opposite party. In the memo of the revision the following questions have been sought to be raised by the Department : "1. Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to hold that transportation charges and sales tax amount, not separately charged by the dealer from the customers, were not part of the turnover of the dealer ? 2. Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to allow exemption to the dealer on the sums charged from the customers for not returning the empty bottles after consumption of their contents, despite the fact that the definition of 'business' as amended by Act No. 25 of 1985 dated September 13, 1985, included in its ambit ancillary and incidental transactions ? 3. Whether, on the facts and circumstances of the case, the Trade Tax Tribunal was legally justified to allow exemption on the exchange of empty bottles to the dealer, though the definition of 'sale' as contained in section 2(h) of the U.P. Trade Tax Act did not exclude 'exchange' from its ambit ?" The facts of the case in brief are as under : The dealer - opposite party is supplying cold drink in bottles to the customers through its own transport at the customers site. It has charged transportation charges as also the security amount towards the price of the bottles. It has also charged the price of the empty bottles which were not returned. It has charged transportation charges as also the security amount towards the price of the bottles. It has also charged the price of the empty bottles which were not returned. The modus operandi as found by the assessing officer as well as by the first appellate authority is that the dealer - opposite party supplies the cold drinks, etc., at the site of the customers. At the time of the delivery of the goods, a lump sum amount is charged by the delivery man from the customers. Subsequently, while making entry in the account books the transportation charges have been separately shown. On this basis the two authorities below found that the transportation charge shall form part of the turnover. The contention of the learned standing counsel for the Department with regard to question No. 1 is that the transportation charge is part of the "turnover" as defined under section 2(i) of the U.P. Trade Tax Act, 1948. The contention of the dealer - opposite party is that in view of the Explanation 1 to section 2(i) of the Act since the transportation charges have been charged separately, the transportation charges are liable to be excluded from the turnover. The Tribunal has accepted the contention of the dealer - opposite party. A bare perusal of the order of the Tribunal would show that the Tribunal has proceeded on the assumption that the dealer - opposite party has charged the transportation charge and the sale price separately in the account books. On this basis the Tribunal held that since the transportation charge has been charged separately, in view of Explanation 1 to the definition of "turnover", the transportation charge shall not form part of the turnover. The learned standing counsel submits that the said approach of the Tribunal is incorrect in as much as it was found by the two authorities below that the dealer - opposite party has charged a lump sum amount from the customers. Considered the respective submissions of the learned counsel for the parties and perused the record. A bare perusal of the assessment order would show that during the assessment proceeding it was admitted by the dealer that it supplied the goods at the site of the customers and a lump sum amount was charged from the customers. Considered the respective submissions of the learned counsel for the parties and perused the record. A bare perusal of the assessment order would show that during the assessment proceeding it was admitted by the dealer that it supplied the goods at the site of the customers and a lump sum amount was charged from the customers. After return of the delivery man while making entry in the account books the transportation charge has been shown separately. The Tribunal has failed to examine as to whether on the facts of the present case it amounts to charging of the transportation charge separately or not. Since the Tribunal has not examined the relevant material and has proceeded to decide the appeal on the assumptions and presumptions, it is desirable that the matter may be restored back to the Tribunal for fresh consideration in the light of the material available on record to find out the correct factual position in the light of account books and bill book, etc. Therefore, so far as question No. 1 is concerned, the matter is restored back to the Tribunal for fresh consideration. Now, I take up question No. 2. The controversy involved therein is no longer res integra and has been set at rest by the apex court in Kalyani Breweries Ltd. v. State of West Bengal [1997] 107 STC 190; [1997] 8 JT 166 wherein it has been held that non-return of the empty bottles and forfeiture of the security amount, amounts to sale under the Sales Tax Act. It was a case under the Bengal Finance (Sales Tax) Act. The definition of "sale" as contained therein is almost identical to the definition of "sale" as contained in the U.P. Trade Tax Act. The Tribunal has relied upon its one earlier decision given in the case of M/s. Moon Braveries to hold that ownership of the bottles is never transferred. It has not examined the present fact situation. The dealer himself has forfeited the security amount for non-return of empty bottles, which implies the transfer of ownership and sale as well. Respectfully following the said decision, I find sufficient force in the argument of the learned standing counsel that cost of the empty bottles which have not been returned will amount to sale and as such the dealer - opposite party shall be liable to pay tax thereon. Respectfully following the said decision, I find sufficient force in the argument of the learned standing counsel that cost of the empty bottles which have not been returned will amount to sale and as such the dealer - opposite party shall be liable to pay tax thereon. This part of assessment order is therefore legally justified. So far as the third question is concerned, the apex court in the case of Dhampur Sugar Mills Ltd. v. Commissioner of Trade Tax, U.P. [2006] 147 STC 57; [2006] 11 JT 111 has held that barter is conceptually different from the sale. Obviously, as held in the above case, exchange of bottles is not sale and the order of the Tribunal is therefore justified on this issue. In view of the above discussion, the revision succeeds and is allowed in part. The matter is restored back to the Tribunal to record specific finding as to whether the dealer - opposite party has charged transportation charges separately or not. As regards the other matter, they stand concluded by this judgment.