JUDGMENT Rajes Kumar :- This revision under section 11 of the U.P. Trade Tax Act, 1948 (called the, "Act" for short) is against the order of the Tribunal dated July 22, 2003 for the assessment year 1997-98. Apart from other items, the applicant was carrying on the business of manufacture and sales of beer. It appears that the applicant, in the bill itself, has charged security at the rate of Rs. 42 per dozen bottle from its purchasers. The said security was refundable on the return of the bottles and in case bottles would not be returned, the security would be forfeited. The assessing authority levied tax on the entire amount of security following the decision of the apex court in the case of Kalyani Breweries Ltd. v. State of West Bengal reported in [1997] 107 STC 190 (SC). Being aggrieved by the order, the applicant filed an appeal before the Deputy Commissioner (Appeals). The Deputy Commissioner (Appeals) has confirmed the levy of tax on the security amount. The applicant filed second appeal before the Tribunal. Before the Tribunal it was contended that the scheme of charging security has been started with effect from April 1, 1997 and in respect of which the letter dated March 25, 1997 has been written to the sole selling agent, M/s. Max Trading Company, against which M/s. Max Trading Company had written an acceptance letter dated March 28, 1997. On the basis of the aforesaid communication a sum of Rs. 42 per dozen bottle has been charged towards security. Therefore, the said amount of security was not liable to tax in view of the law laid down by the apex court in the case of United Breweries Ltd. v. State of Andhra Pradesh reported in [1997] 105 STC 177 (SC). It was further submitted that the entire amount of security could not be subject to tax. At the most, the amount, which has been forfeited, would be liable to tax in case of non-return of the bottles. The Tribunal, by the impugned order, has remanded back the matter to the assessing officer. The Tribunal has held that the assessing authority has committed a mistake in levying the tax on the entire amount of security. At the most, the amount, which has been forfeited, would be liable to tax in case of non-return of the bottles. The Tribunal, by the impugned order, has remanded back the matter to the assessing officer. The Tribunal has held that the assessing authority has committed a mistake in levying the tax on the entire amount of security. It is further observed that the assessing authority has not examined the books of account and has not determined that how much amount has been forfeited and how much amount has been returned. The Tribunal, however, has held that the security amount, which has been forfeited on account of non-return of the bottles, is liable to tax in view of the decision of the apex court in the case of Kalyani Breweries Ltd. [1997] 107 STC 190 (SC). Being aggrieved by the order of the Tribunal, the present revision has been filed. Heard Sri Bharat Ji Agrawal, senior advocate, assisted by Sri Piyush Agrawal, learned counsel for the applicant, and Sri B. K. Pandey, learned standing counsel. The learned counsel for the applicant submitted that the aforesaid two letters, dated March 25, 1997 written by the applicant to its sole selling agent, M/s. Max Trading Company and the letter dated March 28, 1997 written by M/s. Max Trading Company, accepting the scheme of charging security shows that the scheme has been duly communicated to the purchasing dealer and it was within their knowledge and, therefore, in view of the law laid down by the apex court in the case of United Breweries Ltd. [1997] 105 STC 177 the amount of security which was forfeited on account of the non-return of the bottles was in the nature of damages and not in the nature of sale price. He further submitted that the facts in the case of Kalyani Breweries Ltd. [1997] 107 STC 190 (SC) were entirely different. In that case the apex court has observed that "Now, there is nothing on record which indicates that the terms under which the deposits would be repaid were communicated to the assessee's customers. There is no suggestion that there was an oral communication of such terms to the customers or that there was any trade usage in this behalf. ..." On this basis the amount of security which has been forfeited has been held as "sale price". There is no suggestion that there was an oral communication of such terms to the customers or that there was any trade usage in this behalf. ..." On this basis the amount of security which has been forfeited has been held as "sale price". He submitted that both the decisions of the apex court, viz., United Breweries Ltd. [1997] 105 STC 177 (SC) and Kalyani Breweries Ltd. [1997] 107 STC 190 (SC) have been considered by this court in the case of Digboi Petrolium Limited v. Commissioner of Trade Tax, Lucknow reported in [2005] UPTC 819 and the law in this regard has been laid down. Therefore, the view of the Tribunal that the amount of security, which has been forfeited, is liable to tax is not justified. The learned counsel for the applicant further submitted that till date no assessment order has been passed in pursuance of the impugned order of the Tribunal. Sri B. K. Pandey, learned standing counsel, submitted that the letter dated March 25, 1997 and the letter dated March 28, 1997 on which the emphasis is made by the applicant to establish that there was a communication about charging of security and the refund of security on the return of the bottles have not been referred in the assessment order. It is doubtful whether these two letters are part of the assessment record. It is also not clear that whether any pleading in this regard has been made by the applicant before the assessing authority. Therefore, let the assessing authority may examine this issue afresh in the light of the law laid down by this court in the case of Digboi Petrolium Limited [2005] UPTC 819 in which both the decisions of the apex court have been considered and explained. He further submitted that none of the authorities has recorded any finding either way that the scheme of charging security and its refund on the return of bottles and its forfeiture in case of non-return has been communicated to the assessee. Therefore, this aspect of the matter requires consideration by the assessing authority. Having heard learned counsel, I have perused the impugned order of the Tribunal and the authorities below. Therefore, this aspect of the matter requires consideration by the assessing authority. Having heard learned counsel, I have perused the impugned order of the Tribunal and the authorities below. In my view the observation of the Tribunal that the amount of security, which has been forfeited on account of non-return of bottles is liable to be taxed in view of the decision of the apex court in the case of Kalyani Breweries Ltd. [1997] 107 STC 190 (SC), is liable to be set aside. This aspect of the matter requires re-consideration in the light of the law laid down by this court in the case of Digboi Petrolium Limited [2005] UPTC 819. The assessing authority may examine whether the letters dated March 25, 1997 and March 28, 1997, referred herein above, are part of the record and whether any pleading has been made by the applicant in this regard and whether charging of the security and its refund on the return of the bottles and the forfeiture in case of non-return of the bottles has been communicated to the customer from whom the security has been charged or not and whether the aforesaid two letters and pleadings are afterthought and thereafter decide the matter in the light of the law laid down by this court in the case of Digboi Petrolium Limited [2005] UPTC 819 on a consideration of the aforesaid two decisions of the apex court. In the result, the revision is allowed in part. The assessing authority is directed to pass a assessment order in the light of the observations made above and the direction of the Tribunal.