JUDGMENT
R.K. Vijayvargiya, J.
1. By this reference under Section 44 of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as the State Act), the Board of Revenue has referred the following questions of law for the opinion of this Court:
(1) Whether, on the facts and circumstances of the case, deduction on account of freight and delivery charges shown separately in sale bills was admissible deduction within the scope and meaning of Section 2(o) of the M. P. General Sales Tax Act and whether remanding of the case by the Tribunal on the point was justified ?
(2) Whether, on the facts and circumstances of the case, the sale of Rs. 1,80,000 representing the value of goods supplied to M/s. R. R. Contractors, Indore, should be treated as intra-State sales or sales in the course of inter-State trade or commerce ?
2. The material facts giving rise to this reference as set out in the statement of the case are these : The assessee is a registered dealer and is engaged in the business of wholesale petrol, kerosene, lubricants having its office at Mhow, Indore district. For the period 1st January, 1964, to 31st December, 1964, the assessee declared a gross turnover of Rs. 9,63,85,922.78 under the State Act and Rs. 9,23,005.29 under the Central Sales Tax Act (hereinafter referred to as the Central Act). The taxable turnover declared by the assessee under the State and the Central Acts respectively were Rs. 3,37,22,970.13 and Rs. 9,23,905. The Sales Tax Officer determined the taxable turnover at Rs. 3,44,01,990 and Rs. 7,54,623 respectively under the State and the Central Acts. The Sales Tax Officer did not allow the freight and delivery charges at 12 paise per kilolitre per kilometre claimed by the assessee under the State Act. The Sales Tax Officer also did not accept the contention of the assessee that a sum of Rs. 1,80,000 representing the value of sales made to one M/s. R. R. Contractors was inter-State and was not liable to be assessed under the State Act. The assessee preferred two appeals against the order of the Sales Tax Officer. The first appellate authority allowed the claim of the assessee on account of freight and delivery charges to the extent of 9.913 paise per kilolitre per kilometre and dismissed the appeal in respect of the contention that the sum of Rs. 1,80,000 represented the value of sales in the course of inter-State trade and commerce. The assessee challenged the order of the first appellate authority by preferring two separate appeals before the Board of Revenue. The Board of Revenue allowed the appeal of the assessee under the M. P. General Sales Tax Act and held that the freight and delivery charges claimed by the assessee fell into two parts-one 9.913 paise paid by the assessee to the transport contractors per kilolitre per kilometre and the other part consisting of various incidental expenses incurred on loading and unloading kerosene at the depot and later into carrier vehicles. It was further held that the assessee was not given proper opportunity to furnish satisfactory proof in support of the claim for deduction on account of freight and delivery charges. The Board of Revenue, therefore, maintaining the order of the first appellate authority to the extent that it went, directed that the assessee’s claim for deduction on account of freight and delivery charges should also be examined with reference to that portion of the claim which pertained to incidental charges, i.e., other than actual freight, paid after considering the proof that the appellant may produce in support of its claim. The matter was, therefore, remanded by the Board of Revenue for further investigation in the light of the order passed by the Board.
3. Under the Central Act the Board allowed the appeal and held that the goods of the value of Rs. 1,80,000 were delivered to M/s. R. R. Contractors within Madhya Pradesh as common carriers and not as distributors and, therefore, the sale was in the course of inter-State trade and commerce and it was directed that the assessment under the Central law should accordingly be revised and suitable adjustments be made by refund, if necessary. At the instance of the Commissioner of Sales Tax the aforesaid two questions of law have been referred for the opinion of this Court.
4. We have heard the learned counsel for the parties. Section 2(o) of the State Act is as follows:
2. (o) ‘Sale price’ means the amount payable to a dealer as valuable consideration for the sale of any goods less any sum allowed as cash discount according to ordinary trade practice but inclusive of 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 when such cost is separately charged and the expression ‘purchase price’ shall be construed accordingly ;
…
It cannot be disputed that the cost of freight or delivery cannot be included in the sale price of the goods as defined by the State Act. The assessee claimed 12 paise per kilolitre per kilometre as freight and delivery charges. It so happened that the assessee paid 9.913 paise per kilolitre per kilometre to the transport contractors which has been allowed by the first appellate authority and maintained by the Board. However, the assessee claimed the remaining amount as other incidental expenses incurred by the assessee as freight and delivery charges including loading and unloading of the goods. The Board observed that no proper opportunity was given by the assessing officer or the first appellate authority to the assessee to produce the material to prove its claim for other incidental expenses. In the circumstances the Board has jurisdiction to remand the case for ascertaining the actual incidental expenses incurred by the assessee as freight and delivery charges. Therefore, no question of law is involved in the first question referred to us and the said question has to be answered in the affirmative and against the department.
5. As regards the second question it has been found as a fact that M/s. R. R. Contractors, Indore, are area distributors of the assessee for places outside Madhya Pradesh and they also hold a transport contract with the appellant. It has been also found as a fact by the Board that the goods of the value of Rs. 1,80,000 were delivered to M/s. R. R. Contractors within Madhya Pradesh in their capacity as common carriers and not as distributors and it is not the case of the department that there is no evidence in support of the said finding. The assessee had charged freight and delivery charges separately from M/s. R. R. Contractors for goods delivered to them which ultimately were sold by them in places outside Madhya Pradesh. In view of this finding relying upon a decision of this Court in Amalgamated Coalfields Limited v. State of Madhya Pradesh [1966] 18 S.T.C. 251 the Board held that the delivery of the goods of the value of Rs. 1,80,000 by the assessee to M/s. R. R. Contractors was in the course of inter-State trade and commerce. This also is a finding of fact and no question of law arises. Our answer to question No. (2), therefore, is that on the facts and circumstances of the case, the sale of Rs. 1,80,000 representing the value of the goods supplied to M/s. R. R. Contractors, Indore, should be treated as sales in the course of inter-State trade and commerce.
6. In the circumstances of the case there shall be no order as to costs of this reference.