JUDGMENT We have heard the learned advocates appearing for the parties. This application is directed against an order passed by the learned Tribunal on July 18, 2008, with regard to the question of disallowance of "facility charges" by the authorities. The petitioner filed an application before the learned Tribunal under section 16 of the West Bengal Taxation Tribunal Act, 1987, for review of the order which was passed by the learned Tribunal in an earlier revision case on November 30, 2007. The learned Tribunal after considering the said point which was urged before the learned Tribunal, came to the conclusion on the admitted facts that the petitioner maintained a factory at Asansol and the petitioner supplied industrial gases from its Asansol factory to the factory of the Indian Iron and Steel Co. Ltd. (hereinafter referred to as, "the IISCO") at Burnpur through pipeline. The petitioner has specifically stated before the learned Tribunal at the time of the review petition filed by it that liquid oxygen was supplied from its Durgapur factory to IISCO at Burnpur and sales were completed after measurement of liquid oxygen at Burnpur. Thereafter, it is claimed in the review application that liquid oxygen was converted into gaseous form with the help of plant and machinery installed at the IISCO site and further the conversion activities were nothing but post-sale activities and therefore, it would not attract the sale price as defined under the Act in question. On November 30, 2007 the learned Tribunal duly considered that aspect of the matter and observed that agreeing with the petitioner as quoted above, that the oxygen in gaseous form is manufactured at its Asansol factory and thereafter supplied to IISCO's works at Burnpur through pipelines. The Tribunal decided the dispute in favour of the Revenue relying on the point that the cost of anything done before sale is complete shall be within the sale price as defined in section 2(h) of the Bengal Finance (Sales Tax) Act, 1941. The assessing officer as well as the appellate authority relied on the definition of "sale price" as envisaged in section 2(h)(i) of the Bengal Finance (Sales Tax) Act, 1941. The petitioner relied on the definition of "sale" as contained in section 2(g)(ii) of the Act. The assessing officer as well as the appellate authority relied on the definition of "sale price" as envisaged in section 2(h)(i) of the Bengal Finance (Sales Tax) Act, 1941. The petitioner relied on the definition of "sale" as contained in section 2(g)(ii) of the Act. According to the Revenue if any sum is charged for anything done by a dealer in respect of any goods before delivery thereof, such sum shall be within the definition of "sale price". The contention of the petitioner is that the plant and machinery and the pipelines were embedded on the earth and hence immovable goods and any consideration received from the use of such immovable goods is not exigible to tax. The learned members of the Board observed in the revision case order dated September 17, 2002 in para 16 that "on examination of the orders so passed by the authorities below, we do not find that the machinery in question used by the customer were embedded to earth". The statement in view of the orders passed by the assessing officer as well as the appellate authority is not fully correct. Both these authorities never raised any question whether the plant and machinery and pipelines were embedded in earth or not. Their approach is different from the approach of the petitioner as well as the learned members of the Board. The Tribunal, in its judgment dated November 30, 2007 has categorically stated "neither the argument of the petitioner nor the direction of the learned members of the Board for causing inspecting to see whether the pipes and other things are embedded in the earth is acceptable to us". The order for inspection appeared to the Tribunal irrelevant. Thus, the Tribunal held "it appears to us that there is neither apparent mistake of fact or mistake of law on this point of dispute in the original judgment dated November 30, 2007". It appears to us that the learned Tribunal duly decided the question at the time of hearing of the application and disposed of the same holding against the petitioner at that point of time. It appears to us that the learned Tribunal duly decided the question at the time of hearing of the application and disposed of the same holding against the petitioner at that point of time. Subsequent thereto, this review petition was filed and the learned Tribunal after considering the facts came to the conclusion as follows : "The present application for review is filed by the petitioner on two points : disallowance of claim of exemption from payment of tax on facility charges received and disallowance of claim of concessional rate of tax against a number of declaration forms produced. The above two points of dispute have already been discussed hereinbefore and it appears to us that there is neither apparent mistake of fact nor mistake of law in the order passed on November 30, 2007. Accordingly, the review application filed under section 16 of the West Bengal Taxation Tribunal Act, 1987, is rejected. Thus, the application is disposed of but under the facts and circumstances of the case without any order as to costs." Being aggrieved, the petitioner filed this application from the said review petition. It has to be noted here that the order and/or the judgment was delivered by the learned Tribunal on November 30, 2007, and at that point of time the petitioner did not take any step to file an appeal from the said order and subsequent thereto, this application was filed before the learned Tribunal for review of its judgment and/or decision which was negated by the learned Tribunal on the ground mentioned in the said judgment which has also been placed in the preceding paragraph by us. The petitioner's point only before us is that the facility charges realized from the buyer are nothing but freight charges and hence, they cannot be included in the "sale price" as it has been defined in the Act in question under section 2(h) of the Bengal Finance (Sales Tax) Act, 1941 as under : "'sale price' means the amount payable to a dealer as valuable consideration for, - (i) the sale, other than that referred to in section 6D, of any goods, less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of, or before, delivery thereof, other than the cost of freight or delivery or the cost of installation or interest when such cost or interest is separately charged;" But such submissions, in our opinion, cannot have any result in fact, because in our considered opinion this sale price will include whatever the price really the consumer is paying to get the goods in question. It is admitted that the oxygen in its liquid form transferred to gaseous form and thereafter it is delivered to the IISCO. Therefore, it has to be taken into account that the end price which has been paid freight by the IISCO is nothing but after transformation and at that point of time it has to be stated that the sale is complete when it is being delivered in such form to the consumer and not before. Therefore, the sale price has to be included by way of such transformation of the liquid oxygen in gaseous form and/or the purchase has to be made by the IISCO at that point of time and not before. In a decision reported in Black Diamond Beverages v. Commercial Tax Officer, Central Section, Assessment Wing, Calcutta [1997] 107 STC 219 (SC) where the court has held as follows : "9. The other contention of the learned counsel for the appellant that section 2(h) of the 1941 Act expressly excluded 'freight charges' and for that reason the 1954 Act must have contained an express provision including 'freight charges' is equally untenable. The other contention of the learned counsel for the appellant that section 2(h) of the 1941 Act expressly excluded 'freight charges' and for that reason the 1954 Act must have contained an express provision including 'freight charges' is equally untenable. Now the first part of section 2(h) defining 'sale price' in the 1941 Act, as well as the first part of section 2(d) of the 1954 Act and the first part of section 2(p) of the Rajasthan Sales Tax Act, 1954 (interpreted in Hindustan Sugar Mills Ltd. case [1979] 43 STC 13 (SC); [1978] 4 SCC 271) are similar. In our view, the exclusionary words in section 2(h) of the 1941 Act were only intended to exclude certain specific things which were otherwise within the first part or such exclusion could also be ex abundante cautela. The non-inclusion of 'freight charges' expressly in the 1954 Act has no impact on the natural meaning of the first part of section 2(d) just as the exclusion of 'packaging charges' in section 2(d) does not have any impact on the first part of the same section 2(d). The first part of the definition remains to have its natural meaning unaffected by what other things are expressly included in the second part; and is also unaffected by what is not expressly included. Therefore, neither the inclusion of 'package charges' in section 2(d) of the 1954 Act nor the exclusion of 'freight charges' from section 2(h) of the 1941 Act and the absence of any such express inclusion of freight charges in the 1954 Act does not, in our view, alter or affect whatever meaning is to be attributed to the first part of the 1954 Act which is similar to the first part of section 2(p) of the Rajasthan Sales Tax Act, 1954. 10. If, therefore, the first limb of section 2(d) of the Act is similar to section 2(p) of the Rajasthan Sales Tax Act, 1954, the question then is as to what was actually decided in Hindustan Sugar Mills' case [1979] 43 STC 13 (SC); [1978] 4 SCC 271. In that case, this court held that this part of the definition of 'sale price' meant the amount payable to a dealer as consideration for the sale of any goods. In that case, this court held that this part of the definition of 'sale price' meant the amount payable to a dealer as consideration for the sale of any goods. It was pointed out that the test was as to what was the consideration passing from the purchaser to the dealer for the sale of goods. It was immaterial to enquire as to how the amount of consideration was made up, whether it included excise duty or sales tax or freight. 'The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the sale and not as to what is the net consideration retainable by the dealer'. It was further held that the concept of real price or actual price retainable by the dealer was irrelevant. Reference in that connection was made by this court to what Goddard, L.J. stated in Love v. Norman Wright (Builders) Ltd. [1944] 1 All ER 618. This court then observed that if the dealer transported goods from his factory to his place of business and sold them at a price which was arrived at after taking into account 'freight and handling charges' incurred by him in transporting the goods, then the said charges would obviously be part of the 'sale price' because it would be payable by the purchaser to the dealer as part of the consideration for the sale of goods. It was also observed that the same would be the position even if the 'freight and handling charges' were shown separately in the bill and added to the price of the goods, for the character of the payment would be the same. If on the facts, the 'freight and handling charges' represented the expenditure incurred by the dealer in making the goods available to the purchaser at the place of sale, then those charges would contribute an addition to the cost of the goods to the dealer and would clearly be a component of the price charged from the purchaser. This court held that the amount of 'freight and handling charges' would be payable by the purchaser not under any statutory or other liability but as part of the consideration for the sale of the goods and would form part of 'sale price'. This court held that the amount of 'freight and handling charges' would be payable by the purchaser not under any statutory or other liability but as part of the consideration for the sale of the goods and would form part of 'sale price'. That is the ratio of Hindustan Sugar Mills case [1979] 43 STC 13 (SC); [1978] 4 SCC 271. In the discussion by this court in the above case reference was made to the freight expenses of a dealer who transported goods from the factory to his place of business. But this does not mean that this court did not intend that freight expenses up to the point of delivery were not to be included in 'sale price'. As rightly pointed out by the Tribunal, this court had also referred in Hindustan Sugar Mills case [1979] 43 STC 13 (SC); [1978] 4 SCC 271 to the freight charges 'at the place of sale', which would clearly be referable to the freight charges up to the point of delivery." Therefore, the apex court has specifically stated and which has been rightly pointed out by the learned Tribunal that the charges which has been paid by the consumer at the place of sale would be nothing but the sale price of the said goods. Accordingly, we do not have any hesitation to come to the conclusion that there is no illegality or irregularity in respect of the order so passed by the learned Tribunal and in our considered opinion, no case has been made out by the petitioner to interfere with the order so passed by the learned Tribunal. Accordingly, this application must fail and is hereby dismissed.