JUDGMENT : 1. These five sales tax revision petitions are directed against orders of the Rajasthan Tax Board dt.12/10/2009,12/10/2012, 12/10/2012, 12/10/2012 and 12/10/2012respectively relating to Assessment Year 1999-2000, 2006-07,2007-08, 2008-09 and 2009-10 respectively. Since the facts are identical in all the petitions, therefore, for the sake of convenience, the same are being decided by this commonorder. 2. Brief facts are that the petitioner is an Oil Companyand is a Public Sector Undertaking of the Union of India. Duringthe year under reference, the petitioner-assessee sold diesel to the Railways. The dispute revolves on a short point about thediesel being delivered by Road through containers by the petitioner-assessee to the Railways at the delivery point andwhether the freight should be included as part of the sales turnover or not. While the mode of transport was eitherthrough Railways or by road but in so far as the mode through Railways is concerned, there is no dispute. The dispute noticed above and raised by the respondent-Revenue finds support and all the three authorities in unison have come to theconclusion that in so far as the freight by road is concerned, itforms part of the sales turnover for the purposes of levy ofsales tax and freight is required to be included in the salesturnover and thus sales tax is required to be levied. 3. The Assessing Officer (for short, 'AO'), afteranalyzing the evidence on record and the agreements enteredinto by and between the petitioner-assessee and the Railways,came to the conclusion that freight, being part of the bill(invoice), is required to be added while levying sales tax.However, contention of the petitioner-assessee all throughoutis that freight is entirely different and is separatelyreimbursable by the Railways and thus it cannot be added forthe purposes of levy of sales tax. 4. Dissatisfied with the aforesaid finding and additionthereon, the matter was carried in appeal before the DeputyCommissioner (Appeals) (for short, 'DC(A)') by the petitionerassesseeand the DC(A) came to the conclusion that underSection 2(36) of the Rajasthan Sales Tax Act (for short, 'RSTAct'), the petitioner-assessee was unable to satisfy that thefreight charges were separately reimbursed, the freight waspart of the bill amount and accordingly dismissed the appeal. 5. The matter was further carried in appeal by thepetitioner-assessee before the Rajasthan Tax Board (for short,'Tax Board'). 5. The matter was further carried in appeal by thepetitioner-assessee before the Rajasthan Tax Board (for short,'Tax Board'). The Tax Board also, after analyzing the materialplaced on record, the clauses of the agreements and theauthorities cited before it, sustained claim of the respondent-Revenue in so far as the freight is concerned. However, in sofar as penalty under Section 65 is concerned, it was deleted. 6. Ld. counsel for the petitioner contended that onperusing the terms and conditions of the agreement, which hasbeen placed on record by the petitioner-assessee, reading ofSection 2(36) of the Rajasthan Value Added Tax Act, 2003 (forshort, RVAT Act') and terms of delivery goes to show thatfreight was reimbursable by the Railways separately. Counselfurther contended that since the petitioner-assessee does nothave its own containers to carry diesel for delivery at thedestination, therefore, it hired services of containers fromcontainer owners on cost basis which was paid to thetransporters. Counsel drew attention of this Court to the termsof contract and in particular the terms of delivery in theagreement. It was contended that the delivery of goods was atselling point and that the petitioner-assessee was required tosend the goods (diesel) to various places. He contended thatthe terms and conditions with regard to transportation by roadspecified that supplies made in trucks/tank lorries fromrefinery/MI/pipeline, Taps/Depot gates shall be charged as peractual. Highlighting the terms and conditions, he further laidstress that as per Clause 14 of the agreement, it specified thatthe dispatches will be made freight prepaid basis and the pricepayable will be normal MI/refinery/MI/Pipeline Tap off point tothe destination. It further transpired that the transportrisk/insurance was entirely on the assessee and it had to bearother expenses which was reimbursable. He further contendedthat Clause 12(b) of the agreement specifically stated thatother elements like freight etc. will be extra. He also drewattention of this Court to Clause 16.3 of the agreement whichclearly specifies that “the reimbursement of freight will be onactual road freight or the freight rate as per Industry ratewhichever is lower.” Counsel stressed that on conjoint readingof the aforesaid clauses, it goes to show that the freight wasreimbursable separately and could not be part of the saletransaction and thus the lower authorities have grossly erred inadding the freight as part of the turnover. In support of thesaid contention, counsel relied upon the judgments rendered inthe case of Vinod Coal Syndicate Vs. In support of thesaid contention, counsel relied upon the judgments rendered inthe case of Vinod Coal Syndicate Vs. Commissioner of SalesTax : (1989) 73 STC 317 (SC); Board of Revenue (Taxes),Kerala Vs. K.P. Moideenkutty (Decd.): (1993) 90 STC 36 (SC);Hyderabad Asbestos Cement Products Ltd. Vs. State of AndhraPradesh: (1969) 24 STC 487 (SC); Hindustan Sugar Mills Ltd.Vs. State of Raj. & ors.: (1979) 43 STC 13 (SC); AssistantCommissioner Vs. Ajanta Soya Limited: (2007) 8 VAT Reporter205; State of Karnataka and another Vs. Bangalore Soft DrinksPvt. Ltd.: (2000) 117 STC 413 (SC); Commercial Taxes Officer,Jodhpur Vs. Indian Rayon & Industries Ltd.: [2009] 26 VST 299(Raj.) and M/s Mewar Khaniz Udyog Vs. Commercial TaxesOfficer: 11 STO 1994 (Rajasthan). 7. Per-contra, ld. counsel for the respondent-Revenuecontended that a reading of Section 2(36) of the RVAT Act, asa whole, would read that the freight is required to beconsidered as part of the sales turnover. She contended thatthe freight was included in the bill and therefore, once thefreight was part of the bill amount itself, then there was nooccasion of claiming that freight is not part of sales turnoverand that freight was reimbursable separately. She contendedthat there is only one agreement, one bill and no evidence hasbeen placed on record by the petitioner-assessee that freightwas separately paid by the Railways in terms of the agreement,if any. She further contended that the judgments relied uponby counsel for the petitioner-assessee are distinguishable onfacts and submits that the judgments rendered by the Hon'bleApex Court in the case of Hindusthan Sugar Mills Vs. State ofRajasthan & ors.: AIR 1978 (SC) 1496 and India MetersLimited Vs. State of Tamil Nadu: 2010 (9) UJ 4287 supports the claim of the respondent-Revenue and thus she pleadedthat the Tax Board, after analyzing the judgments, has decidedthe controversy correctly and strongly supported the judgmentof the Tax Board. 8. The controversy in brief, as has been noticed earlier, is as to whether freight is part of the sales turnover or not is a mute question to be considered in the matter. 9. 8. The controversy in brief, as has been noticed earlier, is as to whether freight is part of the sales turnover or not is a mute question to be considered in the matter. 9. Admittedly, in so far as the freight by rail transport isconcerned, there is no dispute but the dispute is with referenceto the goods (diesel) being transmitted by road transport tothe destination as would be directed by the buyer i.e. Railways.While the contention of the counsel for the petitioner-assesseeis that freight is separately reimbursable and in actualitywhatever amount has been charged has been paid to thetransport operator who provides vehicles in which the goodsare to be loaded and sent to the destination. The contention isthat the petitioner-assessee for the convenience of the buyerand on the dictates of the buyer had arranged for the vehicle inwhich the goods were to be supplied at the destination and thus, the freight was charged separately which was to be reimbursed separately and therefore, had no concern or connection with the sales turnover. The contention isthat the petitioner-assessee for the convenience of the buyerand on the dictates of the buyer had arranged for the vehicle inwhich the goods were to be supplied at the destination and thus, the freight was charged separately which was to be reimbursed separately and therefore, had no concern or connection with the sales turnover. It would be appropriate to quote Section 2(36) of the RVAT Act which provides ad-infra:- “Section 2 - Definitions 2(36) "sale price" means the amount paid or payable to a dealer as consideration for the sale of any goods less any sum allowed by way of any kind of discount or rebate according to the practice normally prevailing in the trade, but inclusive of any statutory levy or any sum charged for anything done by the dealer in respect of the goods or services rendered at the time of or before the delivery thereof, except the tax imposed under this Act; Explanation I.-In the case of a sale by hire purchase agreement, the prevailing market price of the goods on the date on which such goods are delivered to the buyer under such agreement, shall be deemed to be the sale price of such goods; Explanation II.-Cash or trade discount at the time of sale as evident from the invoice shall be excluded from the sale price but any ex post facto grant of discounts or incentives or rebates or rewards and the like shall not be excluded; Explanation III.-Where according to the termsof a contract, the cost of freight and otherexpenses in respect of the transportation ofgoods are incurred by the dealer for or onbehalf of the buyer, such cost of freight andother expenses shall not be included in the saleprice, if charged separately in the invoice; 10. The explanation III, appended to Section 2(36)would provide that if according to the terms of a contract, thecost of freight and other expenses in respect of transportationof goods, are incurred by the dealer for or on behalf of thebuyer, such cost of freight and other expenses shall not beincluded in the sale price but the burden of such proof shall lieon the dealer which in effect means that if the terms of acontract provide that the said amount is reimbursable, theburden is shifted to the assessee to prove that the said amountwas separately reimbursable. 11. 11. The note appended to Schedule-A, which is a rate contract between the assessee and the Government of India, Directorate General of Supplies and Disposals, New Delhi and other relevant clauses read as under:- “Note:-The prices are subject to change andprices ruling on the date of supply will bepayable. The prices are ex-storage point pricesat Refineries/Installations and are exclusive ofexcise duty. Transportation from Refineries todepots/Terminals and consignee destinations.Sales Tax/VAT, State specific cost, octroi duty,local levies, entry tax etc. shall be charged extraas applicable.” “6.Terms of Delivery : FOR EX-MI-Refineries. 7. Excise Duty : Excise duty will be charged onactual rate basis on date of supply and is extraover the quoted price and other cast elementsas per excise rules. In case of downwardrevision of excise duty, actual of excise dutyshall be charged/billed to the purchaser by thesupplier. All such adjustments shall also includerelief exemption, concession etc., if anyobtained by the supplier.” “17.Place where the stores are tendered for inspection:Mumbai/Panipat/Vizag/Chennai/Mangalore/Haldia/Cochin/Narimanam/Koyali/Mathura/BRPL/NRL/Palam/Lucknow/Allahabad/Fursatganj/Kanpur/Jammu/Bhuvaneshwar/Calcutta/Guwahati/Jamshedpur/Patna/Ahmedabad/Santacruz/Bhopal/Indore/Nagpur/Dabolim/Bangalore/Begumpet/Dindugal.” “4.1 Prices: Prices of all items of the RateContract have been deregulated with effect from01.04.2002 and are being fixed by Oilcompanies on import parity principle or anyother basis considered appropriate, from time totime, depending on the market driven factors.The Master Price Lists (MPL) will be submittedby individual PSUs duly certified by theirauditors to DGS&D with a copy to ChiefController of Accounts, New Delhi.” “CONSTITUENTS OF THE RATE BUILT UP a) Prices Ex-refinery/MI/Pipeline Taps/Depot rates b) Railway FreightNotional Railway Freight for all supplies made byrail from normal source of supply. ActualRailway Freight for alternate source of supply asper MOP&NG/OCC directives. Difference ofActual Railway Freight and Notional RailwayFreight to be borne by the suppliers and claimsubsidy from the OCC. However, if productscome in Free Trade and Freight Subsidy iswithdrawn by MOP&NG/OCC, the Actual RailwayFreight shall be borne by the consignee. c) Excise Duty As per rates and applicability provided for by Government from time to time. d) Transportation by Road: Supplies made in Tank, Trucks by road from Refineries/MI/Pipeline/Tops/Depot shall be charged as certified by company officer. e) All taxes applicable, i.e. Sales Tax, StateSurcharges, Octroi/ Municipal levies/ Entry Taxor any other tax levied by Central/ StateGovernment Municipal Bodies, etc., shall becharged & billed at actuals. Notifications of thetaxes applicable and revisions, if any, from timeto time shall be conveyed to the Chief Controllerof Accounts, New Delhi/ State Paying Authorityby means of a certificate from the Internal AuditOfficer of the firms. Notifications of thetaxes applicable and revisions, if any, from timeto time shall be conveyed to the Chief Controllerof Accounts, New Delhi/ State Paying Authorityby means of a certificate from the Internal AuditOfficer of the firms. Bills submitted will beaccording to Master Price Lists (MPLs).” “12.Transit Risk/Insurance: The firm shall be responsible and liable for anyshortage, damages of deterioration to theconsignment in transit if the same is to becarried in their own or Contractor trucks/tanklorries to the destination station in case of Railconsignments, the firm shall be responsible andliable for, such shortage, damage ordeterioration only if the consignment has beenbooked under “said to contain” RR as a fullwagon load and the Railway seals of the wagonsare found intact at the destination station in thatcase a notice of the seals of the wagon beingfound intact and the details of shortage,damage or deterioration as the case may be asearly as possible, but in any case before theexpiry of 30 days from the date of takingdelivery from the Railway, has to be given bythe consignee to the supplier. In all other casesof rail consignments the firm will not beresponsible and liable for any shortage loss,damage or deterioration accruing in transit andthe matter will be taken up by the consigneeexpeditiously with the concerned RailwayAdministration. For ex MI/Depot supplies theresponsibility of the firm for supplies will ceaseonce the product leaves the oil companypremises.” “14.Supplies from Alternative Sources in Tank Wagons: The rate of Sales Tax will vary with the sourceof actual supply of product from time to timedepending Supplies from the normal pricingsource will be made on freight to pay basis. Incase, however, supplies are made from sourcesother than the main Installation/ Refineries/Pipelines, Tap off points as authorized from theMinistry of Petroleum & Natural Gas from timeto time. The despatches will be made freightprepaid basis and the prices payable will benormal MI/Refinery/Pipeline Tap off points priceplus national Railway Freight from the normal MI/Refinery/Pipeline Tap Off point to the Destination. However, in case, the Government decides to withdraw subsidy on additional Railway Freight, the same shall be borne by the Buyer. The despatches will be made freightprepaid basis and the prices payable will benormal MI/Refinery/Pipeline Tap off points priceplus national Railway Freight from the normal MI/Refinery/Pipeline Tap Off point to the Destination. However, in case, the Government decides to withdraw subsidy on additional Railway Freight, the same shall be borne by the Buyer. If supply point is changed at the instance of the buyer to avail CST or other benefits, thebuyer will bear the actual Rail Freight.” Price build up will be as under: a) Ex-Depot price plus delivery charges/ Octroi / Local levies/ Surcharges Transportation charges at actual Sales Tax and any other levy as applicable from time to time. b) Un country supplies: For delivery in bulk tank wagons/ buyer's tank lorries/ containers Exfirm's operated depot: Firm's depot selling prices as applicable to the general trade on the date of delivery.” “27.Deliveries AT Consignee's Premises: i) In call cases, quantities filled and dispatched/delivered Ex-your depots above will count for payment. Variation in volume after despatch will be to the buyer's account. The consignee may, if desired, verify (supervise) the filling at your depot and check your seals on the vehicles and may also put additional seals of their own, if considered necessary. ii) Supplies will be subject to accessibility by road and suitability of Bridges. iii) if supplies are made from longer route because of closure of normal/ shorter route, extra transportation charges shall be borne by the consignee on certification by IOC's authorised officers attestation. iv) Handing and decantation of product from the Tank trucks into buyers containers at the consignee's premises will be the buyer's responsibility. v) IOCs Tank trucks will be released by the consignee within a reasonable time of arrival at the destination & they will not be subject to any inordinate detention. The firm shall, if desired, charge detention charges, if the tank trucks is delayed beyond reasonable time. vi) Deliveries will be in full truck loads only. For indenting delivery of a lesser quantity, the transportation charges for full truck, load as may be certified by your authorised officer will be charged. vii) For returning the tank truck without taking delivery of the product for any reason whatsoever, delivery charges will be payable by the CCA at the applicable rates on the basis of your authorised officers certificate. vii) For returning the tank truck without taking delivery of the product for any reason whatsoever, delivery charges will be payable by the CCA at the applicable rates on the basis of your authorised officers certificate. viii) When supplies cannot be undertaken to consignee's premises for any reason, the buyer's shall draw their requirement from your supplying Depots under their own management. For such supplies, Ex-Depot rates will apply. ix) Distance between MI/Refinery/PipelineTop/Depot and consignee's storage/consumerpumps as certified by Corporation's authorisedofficer in the bills will be treated as final andaccepted by the CCA for purpose of payment ofbills. In the event of dispute regarding thedistance a joint verification will be undertakenby you and the consignee. You agree to adjustthe overdrawal/ under payments based on theagreed final distances.” 12(b)Price payable on the date of supply(i)The prices are subject to variation withoutnotice and the revision in the list prices asapplicable from time to time will be advised byM/s IOC, HPC, BPC and MRPL to Zonal Railways.In support of these prices and revision thereto,Master Price List (MPL) duly signed by yourinternal auditor will be submitted. In case ofvariation in the price of M/s IOC, HPC, BPC andMRPL the lowest of the four will be applicable.However, the ex-supply location price payableto M/s IOC, HPC, BPC & MRPL on the date ofsupply will be lowest of the ex-supply locationprice of the MPLs of M/s IOC, HPC, BPC & MPRLminus a discount of Rs.150,00 per KI (beforeExcise duty & Sales tax). State specific cost forthe product destination state is inclusive andother elements like freight etc. will be extra.PSUs should indicate the ex-supply locationprice, and state specific cost and other chargesseparately in their MPL.” “16.Freight shall be payable as under:- 16.1 In case Dispatches by Rail transport:HSD Oil when consigned to the Railways will beexempted from the condition of pre-payment offreight and will be booked as freight to paywithout levy of 'To pay' surcharge on freight asdestination. The other surcharges whereverapplicable shall also be leviable (autority Railwayboard's letter No.TCR/1078/2006/15dt.4.12.2006). 16.2.In case of dispatches by rail, the date of RR (Railway-Receipt) will be taken as the date of delivery. 16.3.In case of delivery by Road: (a)Delivery charges of Rs.44/kl are included inprice for delivery within 39 km of round tripdistance (RTD). No separate freight chargesshould be claimed for such locations. 16.2.In case of dispatches by rail, the date of RR (Railway-Receipt) will be taken as the date of delivery. 16.3.In case of delivery by Road: (a)Delivery charges of Rs.44/kl are included inprice for delivery within 39 km of round tripdistance (RTD). No separate freight chargesshould be claimed for such locations. (b)Any location beyond 30 Kms round tripdistance (RTD) the freight charges at applicablerates will be as per prevailing industry practice.The reimbursement of freight will be on actualroad freight or the freight rate as per Industryrate whichever is lower. Supply orders placingDDOs (Railways) will place supply orderskeeping in view that option of the Roadtransport to the exercised only after Railtransport has failed subject to following: i.Transit Risk/Insurance will be to the suppliers account. ii.Octroi duty will be applicable a per Clause 15 iii.Payment shall be made on receipt of material as per specification and in satisfactory condition. 16.4 For dispatches by road, the date of receipt of material by consignee(s) will be taken as date of delivery.” “WEIGHTS AND MEASURES: Weights/Measures as shown in the delivery/despatch documents will be subject to Clause 8- Transit Risk. The purchaser may have the weights/ measurements checked before the products leave firm's premises, if he so desire.” “7.TRANSIT RISK: a)Firm shall be responsible and liable for any shortages, damages or deterioration to the consignment in transit if the same is to be carried in their own or contractor's trucks/ tanks/ lorries to the destination. b)In case of rail consignments, firm shall beresponsible and liable for such shortage,damage or deterioration only if the consignmenthas been booked under “said to contain RR” asa full wagon load and the Railway seals of thewagons are found intact at the destinationstation. In that case a notice is to be served onthe supplier by Regd. Post indicating the date ofthe seals of the wagons being found intact andthe details of shortage, damage or deterioration,as the case may be, as early as possible, but inany case before the expiry of 30 days from thedate of taking delivery from the Railway. “ 12. In that case a notice is to be served onthe supplier by Regd. Post indicating the date ofthe seals of the wagons being found intact andthe details of shortage, damage or deterioration,as the case may be, as early as possible, but inany case before the expiry of 30 days from thedate of taking delivery from the Railway. “ 12. On a conjoint reading of the aforesaid clausesentered into by and between the parties, in my view, as perterms and conditions in the contract, when the seller wasrequired to deliver the goods at the destination after takinginto consideration the transit risk and all other liability namely;delivery charges plus sales tax plus octroi duty plus localtax/levies etc, in transit and at destination on the corporationselling price to the general trade on the date of delivery foreach supply and when there is a specific reference of deliveryat consignees storage/consumer pumps in corporation/transporters in bulk and for delivery at consignees' storage/consumer pumps, it prescribes that price built up will be exdepotprice plus delivery charges/octroi/local levies/Surcharges, Transportation charges at actual Sales Tax and anyother levy as applicable from time to time and it will be theresponsibility of the assessee and the IOC/BPC/HPC shall beresponsible & liable for any shortage, damages or deteriorationto the consignment in transit if the same is to be carried intheir own or contractor's truck's/tank lorries to the destinationstation and as per the terms and conditions of DGS & D, therate contract, as noticed earlier and specifically mentionedherein above, it was the duty of the assessee to deliver thegoods at the destination. Therefore, in my view, the Tax Boardhas rightly come to the conclusion that the freight is includablein the sale price and accordingly, in my view, the Tax Boardwas justified in coming to the conclusion to which it hasreached. On perusal of the terms and conditions of DGS & Drate contract, it goes to show that the assessee shall be liableand responsible to pay for any shortage, damage anddeterioration during the consignment of the goods in the wayupto the destination of the purchaser by the assessee himselfor through the truck/tank/lorry of the contractor. On perusal of the terms and conditions of DGS & Drate contract, it goes to show that the assessee shall be liableand responsible to pay for any shortage, damage anddeterioration during the consignment of the goods in the wayupto the destination of the purchaser by the assessee himselfor through the truck/tank/lorry of the contractor. In the samemanner, according to the conditions of the rate contract thatthe sale price of the petroleum products includes the actualdelivery charges, freight and the transit risk of the goods isupon the assessee and as such, the amount received by theassessee from the purchasers towards delivery charges andfreight falls within the definition of Sec. 2(36) of the Act. 13. It is also on record that despite specific query beforethe assessing officer and lower appellate authorities andopportunity having been granted to the assessee to placeadequate material on record about the freight chargesseparately borne by the purchasers (Railways), no suchevidence was led. Therefore, this fact also goes against theassessee as it was neither proved before the AO nor upto theTax Board about the factum that the purchaser (Railways)paid/borne separately the freight charges. Therefore, on thisfactual finding also, when the assessee was unable to lead anyevidence, this view strengthens the claim of the Revenue. Theburden casted on the assessee was not discharged despiteopportunities granted. 14. In my view, the judgment of the Hon'ble Apex Courtin the case of Hindustan Sugar Mills Ltd. (supra), which hasbeen relied upon by both i.e. the Revenue as well as theassessee, supports the contention of the Revenue. It would beappropriate to quote the relevant observations in the aforesaidjudgment, which, in my view, also governs in the instantpetition, which reads ad-infra:- “15. We are of the view that the former, and not thelatter, represents the correct legal position. If theobligation to pay the freight were on the purchaser andin fact the purchaser paid the freight, as happened inboth the cases before us in respect of every transactionof sale of cement, the amount of freight wouldobviously be deducted from the F.O.R. destinationrailway station price in the invoice and only the balancewould be realised by the assessee. There would be noquestion of the assessee realising the amount of freightfrom the purchaser because the purchaser would havepaid the freight in discharge of his own liability and theassessee would have no claim to recover it from thepurchaser. Then how would the terms of Cl. There would be noquestion of the assessee realising the amount of freightfrom the purchaser because the purchaser would havepaid the freight in discharge of his own liability and theassessee would have no claim to recover it from thepurchaser. Then how would the terms of Cl. ( 9 ),proviso to that clause and Cl. (11) of the Control orderbe satisfied ? How would it be possible to give effect toCl. (9) if what is realised by the assessee is not F.O.R.destination railway station price but that price less theamount of freight? How would the assessee claim to beentitled to be reimbursed under the proviso to Cl. (9) ifhe has not incurred any expenditure on the freight'?The entire statutory scheme would becomeunworkable. The scheme of the Control order clearlyproceeds on the basis that the freight is payable by theproducer and he recovers it from the purchaser as partof the F.O.R. destination railway station price. Theprovision in the contract that the delivery to thepurchaser shall be complete as soon as the goods areput on rail and payment of the freight shall be theresponsibility of the purchaser is wholly inconsistentwith the scheme of the Control order and must be heldto be excluded by it. The Control order is paramount: ithas overriding effect and if it stipulates that the freightshall be payable by the producer, such stipulation mustprevail, notwithstanding any term or condition of the contract to the contrary. The conclusion is, therefore, inevitable,- that the amount of freight forms part of the'sale price' within the meaning of the first part of the definition. 16. This renders it unnecessary to consider thesecond part of the definition, but the latter clause ofthe second part was strongly relied upon on behalf ofthe assessee to support the exclusion of the amount offreight from 'sale price' and hence we must proceed toconsider it. The second part enacts an inclusive clause.It says that 'sale price' includes "any sum charged foranything done by the dealer in respect of the goods atthe time of or before the delivery thereof other thanthe cost of freight or delivery or the cost of installationin case where such cost is separately charged." Therefore, 'any sum charged for anything done by thedealer in respect of the goods at the time of or beforethe delivery thereof' is to be regarded as part of 'saleprice', even if it does not fall within the first part of thedefinition. But there is an exception carved out of thisinclusion. Not all sums charged for something done bythe dealer in respect of the goods at the time of ortherefore the delivery thereof are covered by theinclusive clause. The cost of freight or delivery or thecost of installation certainly represents an amountcharged for transportation or installation of the goodsat the time of or before the delivery thereof and would,therefore, fall within the inclusive clause on its plainterms but it is taken out by the exclusion clause, "otherthan the cost of freight or delivery or the cost ofinstallation in case where such cost is separatelycharged". This exclusion clause does not operate as anexception to the first part of the definition. It merelyenacts an exclusion out of the inclusive clause andtakes out something which would otherwise be withinthe inclusive clause. Obviously, therefore, this exclusionclause can be availed of by the assessee only if theState seeks to rely on the inclusive clause for thepurpose of bringing a particular amount within thedefinition of 'sale price`. But if the State is able to showthat the particular amount falls within the first part ofthe definition and is, therefore, part of the 'sale price',the exclusion clause cannot avail the assessee to takethe amount in question out of the definition of 'saleprice'. Here on the view taken by us, the amount offreight forms part of the 'sale price' within the meaningof the first part of the definition and it is not necessaryfor the State to invoke the inclusive clause and in factthe State has not done so. The exclusion clause is,therefore, irrelevant and cannot be called in aid by theassessee. We 'may point out that even if the exclusionclause were read as an exception to the first part of thedefinition which, as we have pointed out, cannot bedone, it cannot avail the assessee. It is only where thecost of freight is separately charged that it would fallwithin the exclusion clause and in the context of thedefinition as a whole, it is obvious that the expression".... cost of freight.... is separately charged” is used incontradiction to a case where the cost of freight is notseparately charged but is included in the price. It is notintended to apply to a case where the cost of freight ispart of the price but the dealer chooses to split up theprice and claim the amount of freight as a separateitem in the invoice. is separately charged” is used incontradiction to a case where the cost of freight is notseparately charged but is included in the price. It is notintended to apply to a case where the cost of freight ispart of the price but the dealer chooses to split up theprice and claim the amount of freight as a separateitem in the invoice. Where the cost of freight is part ofthe price, it would fall within the first part of thedefinition and to such a case, the exclusion clause inthe second part have no application.“ 15. The judgment in the case of India Meters Limited Vs.state of Tamil Nadu (supra) also relied upon by counsel for theRevenue had also an occasion to consider identical issue andafter placing reliance on the judgment of the Hon'ble ApexCourt in the case of Hindustan Sugar Mills (Supra) and alsoseveral other authorities, is also applicable on the facts of theinstant case wherein it has been held that when transfer of theproperty or the goods is at the place of the buyer to which theseller is under obligation to transport the goods, the freightand insurance charges form part of the sale price. In theinstant case as well, as per the terms and conditions, specifiedherein above, the ownership of the liabilities as noticed aboveremained with the supplier i.e. the assessee till they aredelivered at the destination station. Therefore, the judgment ofIndia Meters Limited is applicable on the facts of the instantcase. 16. In the judgment, relied upon by counsel for theassessee in the case of Vinod Coal Syndicate Vs. Commissionerof Sales Tax, U.P. Lucknow (U.P.) (supra), the facts wereclearly proved from the material placed on record by theassessee that freight was separately charged and was paidseparately, by the principals and the Hon'ble Apex Court wentinto the plain language of the Act. However, in the presentcase, the assessee, as observed herein above, even despiteopportunities having been granted, was not able to provide thematerial to claim that the freight was separately charged andwas paid separately by the principals (Railways). 17. In the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Kerala Vs. However, in the presentcase, the assessee, as observed herein above, even despiteopportunities having been granted, was not able to provide thematerial to claim that the freight was separately charged andwas paid separately by the principals (Railways). 17. In the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Kerala Vs. K.P. Moideenkutty (Decd.), the Hon'ble Apex Court had again an occasion to consider a case on a specific finding which was reached by the High Court as under:- “There is abundant material on record which has been referred to by the Tribunal itself and by the Appellate Assistant Commissioner to show that in the cases under consideration the transport charges were specified and charged for separately under the rule”. 17.1 The Hon'ble Apex Court, on the basis of above, agreed with the finding and conclusion of the High Court whereas, as pointed out herein above, the assessee in the instant case was unable to file any material on the basis whereof it can be seen that the freight was charged separately and was paid separately by the principals (Railways). 18. In the case of Hyderabad Asbestos Cement ProductsLtd. Vs. State of Andhra Pradesh (supra), the Hon'ble ApexCourt found that the company sent goods to outstationcustomers by railway under railway receipts with freight to payand the company made out an invoice at the catalogue rate,and the customer paid the amount of the invoice less thefreight for releasing the railway receipt and took delivery of thegoods on payment of the railway freight. The result was thatthe net price received by the company was the catalogue rateless the railway freight charged in respect of the goodstransported to the destination and on such finding of fact, itwas held that there was no obligation on the part of thecompany to pay the freight and the price received by thecompany for the sale of the goods is the invoice amount lessthe freight. 19. Counsel for the assessee has also relied uponjudgment rendered in the case of Hindusthan Sugar Mills Ltd.Vs. State of Rajasthan and ors. (supra), which has also beenrelied upon by counsel for the Revenue and in view of factsgiven herein above, in Para 14, this Court finds that thejudgment on facts rather supports the case of the Revenue asagainst the assessee. 20. State of Rajasthan and ors. (supra), which has also beenrelied upon by counsel for the Revenue and in view of factsgiven herein above, in Para 14, this Court finds that thejudgment on facts rather supports the case of the Revenue asagainst the assessee. 20. The facts of the case rendered by the Hon'ble ApexCourt in the case of State of Karnataka and another Vs. Bangalore Soft Drinks Pvt. Ltd. (supra) were that in that casethe assessee was able to lead evidence that the delivery of theproperty has been made at the site of the factory and thatsubsequent transportation of the goods from the place of saleto the place of buyer was done or made at the instance of thewholesale buyer against the payment of freight charges paidseparately by the buyers and on such finding of fact as well asthe material placed on record that the freight was chargedseparately and paid separately, the Hon'ble Apex Court cameto the said conclusion that the freight is not includible. 21. The other judgments relied upon by counsel for the assessee are also on the same lines and therefore, are inapplicable on the facts of the instant case. 22. Thus, in view of the categorical finding of fact by allthe authorities in unison that the assessee was unable to leadany evidence of the freight being charged separately andhaving been paid separately, in view of the terms, quotedherein above and judgments of Hon'ble Apex Court in Hindustan Sugar Mills and India Meters Ltd., in my view, theTax Board has rightly come to the conclusion that the freight ispart of the turnover and sales tax is leviable on the part of thefreight. 23. Accordingly, the question of law is answered against the assessee and in favour of Revenue with no order as to costs.