1. In the present batch of writ petitions, the seminal issue falling for consideration is whether the freight charges for transporting dolomite by the petitioners to the respondent/Bhilai Steel Plant (for short the BSP) would be a part of sale price and hence exigible to commercial tax or not.

2. Facts of the case, briefly stated, are that the petitioners are carrying on business of selling dolomite, quartzite, runner sand and silica. They have entered into an agreement with the BSP for sale of dolomite, however, as per the petitioners, they have entered into separate contract concerning freight charges. While filing return for the relevant assessment years (assessment years being different in some writ petitions), the petitioners did not include the freight charges in the taxable turnover of the sale price impliedly seeking exemption or deduction. The Assessing Officer (AO) completed the assessment proceeding without including the freight charges in the taxable turn over. The petitioners were subsequently issued notices for initiating escapement proceeding under Section 28 of the Chhattisgarh Vanijyik Kar Adhiniyam, 1994 (for short the Act, 1994) on the ground that the freight charges have escaped the assessment. In the subsequent re-assessment, all the petitioners were held liable to pay commercial tax on the taxable turn over by including the freight charges. The Revision Application preferred by the petitioners before the Deputy Commissioner, Commercial Tax has also been dismissed by a detailed order.

3. Shri Rajeev Shrivastava, learned counsel for the petitioners would submit that since a separate agreement for freight charges has been entered with the BSP, the said freight charges is not a part of the sale price. He would also contend that escapement proceeding under Section 28 of the Act, 1994 can be initiated only on satisfaction of the conditions prescribed therein, which is not satisfied in the present case. Referring to Rule 48 (1)(g) of the Vanijyik Kar Niyam, 1995 (for short the Rules, 1995) read with Form-47 thereof, he would further submit that the AO has to state reasons in the notice as to why escapement proceedings are to be initiated. But in the present case the proceedings have been initiated on the basis of audit objection and not on the basis of satisfaction of the AO. It is further argued that the department having not preferred any appeal or revision, the original assessment order has attained finality, therefore, the escapement proceedings are in the nature of review of the original assessment which is not permissible in law as there is no provision of review. He would lastly submit that if the freight charges are included as a part of sale price, it should be borne by the BSP and not by the petitioners. He would refer to the judgments in the matters of Tarlochan Dev Sharma vs. State of Punjab and Others, (2001) 6 SCC 260, Bharat Agriculture & Mechanical Engineering Co. vs. State of Bihar and Another, (2007) 38 TLD 34, Indure Limited vs. Commissioner of Sales Tax, Cuttack, Orissa and Others, (2007) 38 TLD 50, Dr. Smt. Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others, AIR 1987 SC 2186, Laduram Ramniwas vs. State of M.P. and Others, (1996) 102 STC 240, Straw Products Ltd. vs. Commissioner of Sales Tax, M.P. (1987) 65 STC 20, Shree Rani Sati Mining Traders vs. Sales Tax Officer, Rourkela Circle, Uditnagar and Others, (1983) 53 STC 322, Indian Explosives Ltd. and Another vs. The State of Bihar and Others, (1986) 62 STC 61, Commissioner, Trade Tax, U.P. Lucknow vs. Indian Aluminium Cable Co. Ltd. (1999) 115 STC 444. No other argument has been raised by the petitioners.

4. Per contra, Shri UNS Deo, learned State Counsel would vehemently oppose the submission on contention that the issue is settled by the Supreme Court in the matters of Black Diamond Beverages and