JUDGMENT Pankaj Mithal :- Heard Sri Bipin Pandey, learned counsel for the revisionist and Sri Shree Krishna Agrawal, learned counsel for the assessee. The Revenue has filed all the above three revisions against identical orders of the Tribunal holding that the inward freight is not part of the turnover as the assessee is not a commission agent. The revisions pertain to the assessment years 1997-98, 1998-99 and 1999-2000 in relation to the same assessee. In all the revisions identical questions of law have been raised which are as under : (i) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the opposite party - dealer is a commission agent despite the dealer has failed to submit any evidence or contract to prove it ? (ii) Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the inward freight is not part of the turnover, on the basis that it was separately charged in the bills, without verifying as to whether the dealer had paid freight in own account or not ? There is no dispute to the fact that the assessee is carrying on business of coal and is registered under the U.P. Trade Tax Act. According to him he is acting as a commission agent and is importing coal in U.P. on behalf of brick-kiln owners from collieries situate outside U.P. The assessee is importing coal against form XXXI and is paying freight charges for the transport of the goods separately as per the bills and is said to be realizing the same from the brick-kiln owners. The assessing authority had declined to accept the aforesaid plea of the assessee on the ground that the assessee had purchased coal from the collieries and had imported the same in U.P. against its own form XXXI thereafter it has been sold to the brick-kiln owners and in the absence of any evidence to show that the assessee acted as commission agent, the freight would be part of the turnover. The appeal of the assessee to the Deputy Commissioner (Appeals) was partly allowed on March 22, 2002 and the tax liability imposed was reduced to some extent. The appeal of the assessee to the Deputy Commissioner (Appeals) was partly allowed on March 22, 2002 and the tax liability imposed was reduced to some extent. On further appeal to the Trade Tax Tribunal, the amount of inward freight was excluded from the turnover and the appeal was allowed by the impugned order dated January 6, 2003 reducing considerably the tax liability of the assessee further. The submission of the learned standing counsel is that as the assessee had failed to adduce any evidence to establish that he is working as a commission agent for the brick-kiln owners, the assessing authority as well as the first appellate authority has rightly treated the import of coal by it as its own purchases liable to tax on the turnover including the inward freight. In the absence of any material that the assessee had made purchases on behalf of the brick kiln owners the Tribunal is not justified in exempting the inward freight from the turnover of the assessee on presumption that he is a commission agent. Sri Shree Krishna Agrawal, learned counsel for the assessee, has defended the order of the Tribunal first by contending that the finding of the Tribunal that the assessee is not the principal purchaser but a commission agent is a finding of fact and since the inward freight has been shown and charged separately in the bills, it has rightly been excluded from the turnover of the assessee. The aforesaid both the questions sought to be raised have been considered earlier also by this court in the case of Commissioner of Trade Tax v. Sunil Kumar Coal Agent, Gorakhpur [2003] UPTC 1036. This court therein held that a dealer supplying coal to brick-kiln owners claiming to have purchased coal on their behalf and charging freight separately is not entitled for exclusion of the said freight from the turnover when nothing on record was brought to substantiate the plea that the transaction was on behalf of the principals, i.e., brick-kiln owners and that the dealer was acting as an agent. In the said case the dealer had not filed any copy of purchase orders given to the colliery or purchase orders given by the principals, i.e., brick-kiln owners, either in their own names or for purchase through assessee as agent. In the said case the dealer had not filed any copy of purchase orders given to the colliery or purchase orders given by the principals, i.e., brick-kiln owners, either in their own names or for purchase through assessee as agent. In the absence of such evidence, finding of the Tribunal that the assessee acted as an agent of brick-kiln owners was held to be perverse and unsustainable. It was accordingly held liable to be disturbed in revision. A similar view was also taken by another Judge of this court in the case of Commissioner of Trade Tax v. Ramapati Tewari Jainath Tewari [2005] UPTC 76 relying upon the case of Sunil Kumar Coal [2003] UPTC 1036. In the aforesaid case the assessee failed to prove that it acted as a commission agent. No evidence was adduced that it purchased coal on behalf of the brick kiln owners. Therefore merely for the reason that freight was being charged separately in the invoices, it was held that the amount of freight was not liable to be excluded from the turnover. It was also observed that charging freight separately in the invoices is only a device to reduce the price of coal purchased. The aforesaid both the decisions were followed in two later decisions, i.e., Commissioner of Trade Tax v. Lakhi Chand Ram Kumar [2010] 33 VST 249; [2009] UPTC 79 and B.K. Enterprises v. Commissioner of Trade Tax reported in [2010] 33 VST 240 (All); [2009] UPTC 82. In the instant case the assessing authority has recorded a clear and specific finding that the assessee has failed to produce any account for import of coal from outside the State. He has not even produced any bilti for import or supply of coal to establish purchase on behalf of brick kiln owners. The inward freight has been paid by the assessee though it may have been shown separately in the invoices. The assessee, in fact, has imported the coal inside U.P. on its own behalf for further sale and as such there is no evidence of purchase as commission agent. The Tribunal proceeded on the assumption that the assessee is acting as a commission agent inasmuch as in the invoices freight was being separately charged and as such freight would not form part of the turnover. The Tribunal proceeded on the assumption that the assessee is acting as a commission agent inasmuch as in the invoices freight was being separately charged and as such freight would not form part of the turnover. The aforesaid conclusion of the Tribunal is without disturbing and setting aside the findings of the assessing authority wherein the import of coal in U.P. by the assessee was treated as purchases on its own behalf for further sale. There is absolutely no evidence to show that the purchases of coal were on behalf of the principals, i.e., brick-kiln owners and that freight was actually paid by them or if paid by the assessee has subsequently been released from them. Accordingly, in the absence of evidence on record to substantiate the claim of the assessee that he is working as a commission agent for supply of the coal, in my opinion the conclusion is inevitable that the assessee has failed to prove himself to be a commission agent and as such freight would be part of the turnover and the finding contrary to it of the Tribunal is perverse and cannot be sustained. Sri Shree Krishna Agrawal, learned counsel for the assessee has placed reliance upon a decision reported in Commissioner of Trade Tax v. Transrapsi Ent. Bhatta Kalyan Samiti reported in [2009] UPTC 572 wherein practically on the identical facts and circumstances, this court dismissed the revision of the Revenue holding that the finding assessee was a commission agent was a finding of fact and since the freight was charged separately in invoices, it will not form part of the turnover. However, the facts of the aforesaid case would not be applicable in the present case, inasmuch as, the finding in this connection recorded by the Tribunal is perverse as it is not based on any material coupled with the fact that the Tribunal has not cared to decide the controversy by setting aside the finding recorded by the assessing authority. In view of the above, the questions of law raised in these revisions are answered in favour of the Revenue and against the assessee and it is held that in the absence of any positive evidence to establish that the assessee was working on commission, the freight even if charged separately is not liable to be excluded from his turnover. In view of the above, the questions of law raised in these revisions are answered in favour of the Revenue and against the assessee and it is held that in the absence of any positive evidence to establish that the assessee was working on commission, the freight even if charged separately is not liable to be excluded from his turnover. The learned counsel for the assessee in the end has made an attempt to raise an alternative argument that in view of the definition of the "turnover" contained in section 2(i) of the U.P. Trade Tax Act, the nature of the working of the assessee either as commission agent or as a principal is immaterial and the amount spent on freight and if charged separately is liable to be excluded in calculating the turnover for taxation purpose. I am afraid that such an argument or a question cannot be permitted to be raised in these revisions which have been preferred by the Revenue that too for the first time when not raised before the authorities below. It may, however, be raised in an appropriate case when the occasion arises. In view of the above, revisions succeed and the orders of the Tribunal dated January 6, 2003 passed by Trade Tax Tribunal in Second Appeals Nos. 842 of 2001, 146 of 2002 and 360 of 2002 are set aside and the orders of the first appellate authorities for the assessment years in question are confirmed.