JUDGMENT Hon’ble Bharati Sapru, J.—Heard learned Standing Counsel for the revisionist State and Sri Krishna Agrawal for the assessee. 2. Since the controversy involved in these revisions are identical, the same are being decided by a common judgment and order treating Trade Tax Revision No. 1418 of 2000 as leading case. 3. The questions of law referred to in revision No. 1418 of 2000 is as under : “(i) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold that the amount of freight would not form part of the turnover? (ii) Whether on the facts and In the circumstances of the case, the Trade Tax Tribunal was legally justified to reduce the selling rate of coal from Rs. 1700 to Rs. 720/- per ton of coal for the impugned year? (iii) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to direct the refund of security which had been demanded towards penalty for imported goods in contravention of provisions of Sections 28-A?” 4. By the impugned order dated 29.5.2000, the Tribunal has recorded a finding of fact that the assessee was a commission agent and from the entire papers of the transactions relating to the same, which were produced before the department, it was abundantly clear that the assessee had only charged price for commission and no other charge was made by him and therefore, the freight would not form part of the turnover of the assessee. 5. The facts of the case are that the opposite party dealer carried on the business of the purchase and sale of the coal. 6. In the assessment order, there were two points of the dispute—firstly that the assessee had not included cost of freight in his taxable turnover and secondly the assessee had disclosed the selling rate of the coal at Rs. 6.20 per metric ton whereas the assessing authority had determined the sale of coal at Rs. 22.95 per metric ton and in view of the direction of the Commissioner of Trade Tax, the selling rate of the coal had been determined at Rs. 17 per metric ton. 7. 6.20 per metric ton whereas the assessing authority had determined the sale of coal at Rs. 22.95 per metric ton and in view of the direction of the Commissioner of Trade Tax, the selling rate of the coal had been determined at Rs. 17 per metric ton. 7. Being aggrieved by the assessment order, the assessee preferred a first appeal before the Deputy Commissioner who dismissed the appeal of the assessee by his order dated 30.1.1999 and affirmed the order of the Assessing Officer. 8. The assessee being aggrieved by the order of the first appellate authority preferred a second appeal and the Trade Tax Tribunal accepted the second appeal of the assessee and came to the conclusion that freight would not form part of the taxable turnover and the Tribunal determined the selling rate of the coal at Rs. 720 per metric ton. 9. Learned Standing Counsel Sri B.K. Pandey has vehemently argued that tribunal has wrongly relied upon the judgment of the Apex Court in the case of MIs Vinod Coal Syndicate v. Commissioner of Sales Tax, 1988 U.P.T.C. 218, because the facts of the present case are entirely different, for reasons that in the above case, the assessee had acted as a commission agent whereas in the present case, there was no evidence on record to show that the assessee had acted as a commission agent. In fact his argument is that no written agreement was produced to show that the assessee was a commission agent and In absence of there being any agreement to establish this factum, the assessee could not have been said to be a commission agent but he was, in fact, a principal and had acted as a principal. 10. In support of his argument, learned Standing Counsel has placed reliance on a decision of this Court rendered in the case of Commissioner of Trade Tax v. S/s Ramapati Tewari Jainath Tewari, 2005 U.P.T.C.76 in which this Court had relied on its earlier decision rendered in the case of Commission of Trade Tax v. Sunil, Kumar Coal Agent, 2003 U.P.T.C. 1036 in which this Court had come to the conclusion that in absence of written contract or agreement which was produced by the assessee, it could not be said that there was adequate proof of his being a commission agent. Therefore he was to be treated as a principal. 11. Therefore he was to be treated as a principal. 11. In reply to this argument of the learned Standing Counsel, Sri Krishna Agrawal, learned counsel for the assessee has relied upon a decision of the Apex Court in the case of M/s Vinod Coal Syndicate (supra), which is the decision on the basis of which, the tribunal has also come to the conclusion that where the assessee was acting as a commission agent and record of the case also reflected that only commission was being charged from him, cost of freight would not be included in his turnover. 12. In order further substantiate his argument, learned counsel for the assessee has placed reliance on the provision of Section 2 (i) of the U. P. Trade Tax Act, 1948 which is quoted herein below : "2 (i) `Turnover’ means the aggregate amount for which goods are supplied or distributed by way of sale or are sold, by a dealer) either directly or through another, on his account or on account of others, whether for cash or deferred payment or other valuable consideration : Explanation I.—(omitted by U.P. Act No. 12 of 1979 with effect from 1.6.1975) Explanation II.—Subject to such condition and restrictions, if any, as may be prescribed in this behalf : (i) the amount for which goods are sold or purchased shall include the price of the packing material in which they are packed, and any sums charged for anything done by the dealer in respect of the goods sold, at the time of or before the delivery thereof, other than, cost of freight or delivery or cost of installation or the amount realised as trade tax on sale or purchase of goods, when such cost or amount is separately charged; (ii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover; and (iii) where for accommodating a particular customer, a dealer obtains from another dealer and immediately disposes of the same without profit to the customer mer, the saIes in respect of such goods shall be included in the turnover of the latter dealer alone.” 13. Learned counsel for the assessee has argued that upon a plain reading of the above section, it is abundantly clear that there was no requirement under the Act that freight if charged separately, it could only be done by way of an agreement, which has been reduced in writing as has been argued by learned Standing Counsel. On the contrary he has argued that the section itself contemplated that freight could be charged separately and where freight is charged separately and it is so established from the record, it will not form part of the turnover. 14. Having heard both sides and having perused the material on record as well as the law cited before this Court, I am of the opinion that the finding of the fact as recorded by the tribunal contains no error of law, rather the tribunal has recorded categorical finding of fact that as the cost of freight were mentioned separately and charged separately, it could not be said that the assessee was acting as a principal or that the cost of freight could be included in his turnover as principal. There is force in the submissions made by the learned counsel for the assessee that it is not necessary that every agreement should be reduced to writing. 15. The questions of law are thus answered in favour of the assessee and against the department. 16. The revisions are dismissed. No costs.