JUDGMENT Prakash Krishna, J. - The present revision is directed against the order dated April 7, 2000 passed by the Trade Tax Tribunal in Second Appeal No. 1170 of 1994-95 whereby and where under it has fixed the turnover of coal at Rs. 3,24,000. The dealer - opposite party carries on the business of purchase and sale of food-grains, oilseeds, rice bran, coal, etc. The dispute in the present revision is confined with regard to turnover of coal only which was assessed at Rs. 7,20,000 by the assessment order dated March 30, 1998. The said order was confirmed by the first appellate authority by the order dated December 7, 1998 and has been modified by the Tribunal by the order under revision. In the memo of revision, the following questions of law have been sought to be raised : "(i) Whether the Trade Tax Tribunal was legally justified to hold that the inward freight paid for the purchase of coal is not part of the turnover ? (ii) Whether the Trade Tax Tribunal was legally justified to allow the adjustment and refund of amount deposited at check-post for composition of offence on contravention of the provisions of section 28A of the U.P. Trade Tax Act, 1948 as compounding amount ? (iii) Whether the Trade Tax Tribunal was legally justified to determine the selling rate of coal lower than the declared rate by the dealer ?" So far as question Nos. 1 and 3 are concerned, the assessing authority was of the view that inward freight paid for the purchase of coal is part of the turnover. Before the assessing officer, it disclosed the purchase of 9340.8 tons of coal from colliery. The dealer - opposite party has paid the freight for transportation of coal from colliery situate outside the State of U.P., to the coal depot. It claimed that it made the purchases as commission agent on behalf of purchasers of coal. The said plea was not found favour by the assessing officer as in the purchase order names and addresses of purchasers were not disclosed. No agreement of agency was filed. In the absence of relevant material, the assessing officer took the view that the purchases were made by the dealer - opposite party in his own account and commission was charged by way of profit. No agreement of agency was filed. In the absence of relevant material, the assessing officer took the view that the purchases were made by the dealer - opposite party in his own account and commission was charged by way of profit. Even if the freight has been charged separately in the bills, it will not change the nature of transactions and it is the case of sale of coal from principal to principal. The Tribunal took the view that as the dealer has imported coal from outside the State of U.P. and has charged the freight separately in the bills and the freight has been paid by the purchasers. Even if the dealer has paid the freight which was his obligation to facilitate the import of coal, it will amount to purchase of coal in his own account of the dealer and as such, it excluded the freight from the turnover. Having considered the arguments of the learned counsel for the parties, it is difficult to agree with the view taken by the Tribunal. Nature of such transactions has been examined by this court in depth in Commissioner of Trade Tax v. Sunil Kumar Coal Agent, Gorakhpur [2003] UPTC 1036. In this case the judgment of the apex court in Vinod Coal Syndicate [1989] 73 STC 317 which was followed in Bhartiya Coal Traders v. State of U.P. [1989] UPTC 778 and Commissioner of Sales Tax v. Baba Rice and Dal Mills [1999] UPTC 56 has been considered. After consideration of various cases, it was held that in the absence of any evidence or material of agency, the supply of coal by such persons, like the dealer - opposite party, does not create a relationship of agent and principal. There is no finding by the Tribunal that who placed the purchase orders to the collieries and took the delivery of coal. The delivery was taken by the dealer on his own behalf. There is no evidence to show any privy of contract in between the dealer and the brick-kiln owners. The copies of purchase orders given to the colliery have not been filed. Paragraphs 14 and 15 from the judgment of Sunil Kumar Coal Agent [2003] UPTC 1036 is reproduced below : "14. There is no evidence to show any privy of contract in between the dealer and the brick-kiln owners. The copies of purchase orders given to the colliery have not been filed. Paragraphs 14 and 15 from the judgment of Sunil Kumar Coal Agent [2003] UPTC 1036 is reproduced below : "14. The dealer - opposite party has miserably failed to place any evidence on the record to show that he took the delivery of coal as an agent of the brick-kiln owners. The dealer has not filed copy of purchase orders given to collieries. It is not the case of the dealer that the purchase orders of coal were given to collieries by the alleged principals, i.e., by the brick-kiln owners in their names through the dealer as agent. There is no privity of contract in between the brick-kiln owners, who ultimately purchased the goods, and the colliery. From the facts emerging from the record it is a case of sale of coal by one principal, i.e., the dealer to brick-kiln owners. The Tribunal without appreciating the law of agency has held the dealer as an agent of brick-kiln owner. Indisputably except the allegations that the dealer - opposite party has acted as agent of brick-kiln owners there is nothing on the record to substantiate the plea. In view of the above, the finding of the Tribunal that the dealer - opposite party has acted as agent of brick-kiln owners is legally not sustainable. 15. It is a case of transaction by one principal with another. The dealer - opposite party camouflaging the bill-book, etc., and by charging the freight separately in the bills has tried to evade the payment of trade tax on the freight. The dealer incurred all the expenditures up to the stage of delivery of coal to the brick-kiln owners. The title in the coal passed to brick-kiln owners only at the time of delivery of coal and not earlier to it." On the basis of the above discussions, it is clear that if it is a case of transaction by one principal with another different consideration will arise. By camouflaging the bill-book, etc., and by charging the freight separately in the bills a dealer may try to evade the payment of trade tax on the freight. By camouflaging the bill-book, etc., and by charging the freight separately in the bills a dealer may try to evade the payment of trade tax on the freight. Such dealer who has incurred all the expenditures up to the stage of delivery of coal to the brick-kiln owners is not an agent but a principal. The title in the coal passes to brick-kiln owners only at the time of delivery of coal and not earlier to it. The aforesaid principle of law has been reiterated by this court, time and again. For example Commissioner of Trade Tax v. Ramapati Tewari Jainath Tewari [2005] UPTC 76 and Commissioner of Trade Tax v. Sharma Coal Co., Azamgarh [2008] 16 VST 517 (All) [App.]; [2005] UPTC 1165, etc. It may be noted that in the case of Vinod Coal Syndicate [1989] 73 STC 317 (SC), the controversy involved therein was as to whether the amount paid by way of freight by the principal to the dealer who was a commission agent was liable to be included in the taxable turnover of the dealer or not. The learned counsel for the dealer - opposite party laid much emphasis on Commissioner of Sales Tax v. Anuj Coal Agency [1988] UPTC 1015 and Sharma Coal Co., Azamgarh v. Commissioner of Sales Tax [1993] UPTC 881. In the case of Anuj Coal Agency [1988] UPTC 1015, there is no much discussion on the point. It has simply followed the judgment of the apex court in the case of Vinod Coal Syndicate [1989] 73 STC 317. So far as the judgment in Sharma Coal Co. [1993] UPTC 881 is concerned, nothing was decided by the High Court and the matter was remanded to the Tribunal for determining whether the freight added by the Tribunal in the order under revision is for "inward journey" or for "outward journey". No ratio has been laid down therein. Then reliance was placed on Commissioner of Trade Tax, U.P., Lucknow v. Vardhaman Trading Co., Meerut [2006] 29 NTN 96. This case was decided on a different fact situation. The case of the dealer therein was that the delivery of coal was taken by the brick-kiln owners after payment of railway freight and the coal was sold by endorsement on goods receipts. This case was decided on a different fact situation. The case of the dealer therein was that the delivery of coal was taken by the brick-kiln owners after payment of railway freight and the coal was sold by endorsement on goods receipts. On this fact-situation, the High Court remanded the matter to the Tribunal to find out as to whether the sale has been effected by endorsement of goods receipts in favour of the brick-kiln owners and the brick-kiln owners have taken delivery of goods from the railway on payment of freight. It was held that if the freight was paid by the brick-kiln owners and the delivery of coal was taken by them, then the position would be entirely different. Coming to the facts of the case on hand, here the factual position is entirely different. Even otherwise also, the view, which I am proposing to take in the present case, is not in any manner in violation of the afore-stated judgment delivered in Commissioner of Trade Tax v. Vardhaman Trading Co., Meerut [2006] 29 NTN 96. The said case, therefore, does not advance the case of the dealer - opposite party any further. Definition of the word "turnover" as defined in section 2(i) of the U.P. Trade Tax Act, 1948 is pari materia with definition of words, "sale price" as contained in section 2(h) of the Central Sales Tax Act, 1956. For the sake of convenience section 2(h) of the Central Sales Tax Act, 1956 is reproduced below : "Section 2(h). 'Sale price' means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged." The aforesaid section came up for consideration before the Supreme Court in Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13; [1979] UPTC 37, wherein the apex court has observed that the "sale price" as defined under the Rajasthan Sales Tax Act is in material part is the same as defined under the Central Sales Tax Act. It was held therein that the definition of sale price is in two parts. It says that the sale price means the amount payable to a dealer as consideration for the sale of any goods less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in cases where such cost is separately charged. Further, while dealing with the second limb of the definition clause (h) their Lordships have observed as follows : "... The second part enacts an inclusive clause. It says that 'sale price' includes 'any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged'. Therefore, any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof is to be regarded as part of 'sale price', even if it does not fall within the first part of the definition. But there is an exception carved out of this inclusion. Not all sums charged for something done by the dealer in respect of the goods at the time of or before the delivery thereof are covered by the inclusive clause. The cost of freight or delivery or the cost of installation certainly represents an amount charged for transportation or installation of the goods at the time of or before the delivery thereof and would, therefore, fall within the inclusive clause on its plain terms but it is taken out by the exclusion clause, 'other than the cost of freight or delivery or the cost of installation in case where such cost is separately charged'. This exclusion clause does not operate as an exception to the first part of the definition. It merely enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. This exclusion clause does not operate as an exception to the first part of the definition. It merely enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of 'sale price'. But if the State is able to show that the particular amount falls within the first part of the definition and is, therefore, part of the 'sale price', the exclusion clause cannot avail the assessee to take the amount in question out of the definition of 'sale price'. Here, on the view taken by us the amount of freight forms part of the 'sale price' within the meaning of the first part of the definition and it is not necessary for the State to invoke the inclusive clause and in fact the State has not done so. The exclusion clause is, therefore, irrelevant and cannot be called in aid by the assessee. It may be pointed out that even if the exclusion clause were read as an exception to the first part of the definition which, as we have pointed out, cannot be done, it cannot avail the assessee. It is only where the cost of freight is separately charged that it would fall within the exclusion clause and in the context of the definition as a whole, it is obvious that the expression '... cost of freight ... is separately charged' is used in contradistinction to a case where the cost of freight is not separately charged but is included in the price. It is not intended to apply to a case where the costs of freight is part of the price but the dealer chooses to split up the price and claim the amount of freight as a separate item in the invoice. Where the cost of freight is part of the price, it would fall within the first part of the definition and to such a case, the exclusion clause in the second part has no application." On consideration of the above, the following items are excluded from the sale price : 1. Cash discount allowed to buyers according to the practice normally prevailing in the trade. 2. Cash discount allowed to buyers according to the practice normally prevailing in the trade. 2. Cost of freight or delivery, if it is separately charged in the sale bill. 3. When the cost of installation is separately shown in the sale bill. The said judgment of the apex court has been consistently followed in Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, Indore [1980] 45 STC 197 (SC); AIR 1980 SC 346, Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, Indore AIR 1980 SC 807 and Ramco Cement Distribution Co. Pvt. Ltd., Tamil Nadu v. State of Tamil Nadu [1993] 88 STC 151 (SC); AIR 1993 SC 123 . In view of above legal position, the Tribunal was not right in holding that freight will not form part of turnover, as it is case of sale by principal to principal. So far as the second question is concerned, the learned counsel for the dealer - opposite party submits that the amount was deposited at the check-post by way of security in view of various circulars, such as April 15, 1986, August 23, 1986, October 29, 1987 and September 21, 1988 issued from time to time. The order of the Tribunal directing the assessing authority to give adjustment of the amount deposited by the dealer at the check-post in bringing coal in excess of the quantity mentioned in form XXXI is perfectly justified. From a bare perusal of the assessment order, it is evident that major portion of the amount was deposited as unregistered dealer. The assessing officer was of the view that the deposit of such amount as unregistered dealer was by way of payment of penalty at the check-post and the same is not liable to be adjusted. The said amount was deposited as composition fee in lieu of penalty. The averments made in the receipts also show that the amount was deposited as composition fee. Thus, it was inferred by the assessing officer that such amounts are not liable to be adjusted towards the liability of the dealer - opposite party. The Tribunal has failed to address the said finding of the assessing authority and straightway allowed the adjustment of the amount deposited at the check-post towards outstanding liability of the dealer - opposite party. Thus, it was inferred by the assessing officer that such amounts are not liable to be adjusted towards the liability of the dealer - opposite party. The Tribunal has failed to address the said finding of the assessing authority and straightway allowed the adjustment of the amount deposited at the check-post towards outstanding liability of the dealer - opposite party. Before doing so, it was incumbent upon the Tribunal to have determined the nature of the deposit made by the dealer at the check-post. The Tribunal has failed to examine as to whether the said deposit was made as composition fee in lieu of assessment as penalty or as a security for importing the coal in excess of permitted quantity. Since the Tribunal has decided the issue without addressing itself to the real point, it is desirable that the Tribunal should re-examine the matter afresh in the light of the various circulars including those, referred to above as also the legal position in this regard. The matter is restored back to the Tribunal for fresh consideration, in the light of the observations made above. In view of the above discussions, so far as question Nos. 1 and 3 are concerned, the order of the Tribunal is indefensible and the same is hereby set aside. The inward freight, on the facts of the present case, shall form part of the turnover. The matter is remanded back to the Tribunal to consider the nature of deposit made by the dealer at the check-post while importing coal in the State of U.P. in the light of the observations made above in connection with question No. 2 only. In the result, the revision succeeds and is allowed in part, as indicated above. No order as to costs.