N. L. Untwalia, C. J.

1. At the instance of the Commissioner of Commercial Taxes, Bihar, the Commercial Taxes Tribunal has stated a case and referred the following question of law for determination by this court under Sec.25 (1) of the Bihar Sales Tax Act, 1947 (hereinafter called the Act ). Whether, in the facts and circumstances of the case, the Tribunal was justified in holding that the railway freight did not form part of the sale price ? for the assessment year 1958-59, the assessee-company which is a registered dealer dealing in cement had filed a return excluding from the gross turnover the amount of railway freight shown separately in the bills and paid by the purchasers. The Assistant Commissioner of Commercial Taxes, Shahabad, accepted the returned figure and assessed the tax accordingly in his assessment order dated 16th December, 1963. The Commissioner of Commercial Taxes, however, proceeded to revise the assessment suo motu and, accordingly, issued a notice under Sec.24 (4) of the Act read with Rule 36 (5) (a) of the Bihar Sales Tax Rules, 1949. The notice was issued on 21st March, 1966. Before the Commissioner, a stand was taken on behalf of the assessee that the various amounts of railway freight paid by the purchasers and excluded by the assessee from its invoices could not be exigible to sales tax. The assessee stated that in the past in relation to the assessment years prior to the assessment year in question the railway freight had not been treated as a part of the price and sales tax had not been charged on that. The Commissioner of Commercial Taxes overruling the objection of the assessee passed the order dated 31st August, 1966 and held that the railway freight was a part of the sale price and the whole of the amount was chargeable to sales tax. He, therefore, remanded the case to the Assistant Commissioner of Commercial Taxes, Shahabad, for disposal in accordance with the direction given in that order. The assessee went up before the Commercial Taxes Tribunal in Revision Case No.298 of 1966. The Tribunal has set aside the order of the Commissioner by its judgment dated 8th July, 1967 and held that freight will not form part of the sale price. At the instance of the Commissioner, a reference has been made to this court on the question of law already stated.

2. The dealer was selling and despatching cement to its various customers in accordance with the restrictions imposed by the Cement Control Order, 1956. At the relevant time the said Control Order had fixed a uniform rate of Rs.117.50 per ton to be charged by the dealer from his customers. The uniform price was fixed as f. o. r. destination. What actually happened, as it appears from the order of the Tribunal, was that the dealer in its invoice used to show the total amount at the rate of Rs.117.50 per ton including the Central excise but from the said total amount the amount of freight payable was deducted. The freight was ultimately paid by the purchaser.

3. Before I proceed to state the further facts of the case, I may mention that the dealer used to show in its invoice sales tax at the specified rate on the gross value minus the commission only, in other words, the sales tax was being charged by the dealer on the total price including the railway freight. When in the past the amount of railway freight was excluded from the total price for the purpose of charging sales tax, a view was taken by the department that the amount of tax illegally charged by the dealer on the amount of railway freight paid by the purchasers could be realised from the dealer in accordance with Sec.20a of the Bihar Sales Tax Act, 1959. The assessee attacked the said proceeding unsuccessfully in the High Court but ultimately succeeded in the Supreme Court, the decision of which is reported in Ashoka Marketing Ltd. V/s. State of Bihar [1970] 26 S. T. C.254 (S. C. ). I have merely stated these facts to show the different stands taken by the assessee as also by the depa