JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of Constitution of India, to issue a Writ of Certiorari, calling for the records of the second respondent pertaining to the order in M.T.S.A.No.23/99 dated 28.04.2000 and quash the same as illegal.)

1. The prayer sought for herein is for a Writ of Certiorarified Mandamus, calling for the records of the second respondent pertaining to the order in M.T.S.A.No.23/99 dated 28.04.2000 and quash the same as illegal.

2. The State is the petitioner herein, who challenges the order passed by the second respondent, ie., the Tamil Nadu Sales Tax Appellate Tribunal, (Additional Bench), Madurai, dated 28.04.2000.

3. The first respondent dealer/assessee, since suffered with order of assessment, seems to have filed an appeal before the Assistant Commissioner (CT), Madurai (South), in CST No.88 of 1997 relating to the assessment order 1995-96 under the Central Sales Tax Act, 1956 [hereinafter referred to as “CST Act” in short]. The Assistant Commissioner in fact deleted the disputed amount from the assessment made on turnover of Rs.22,27,759/- involving a tax effect of Rs.1,78,221/-.

4. The grounds urged on behalf of the petitioner State before the tribunal are that as per the expression 'turnover' as defined under Section 2(J) of the CST Act, the said deletion made by the appellate authority is bad. The learned Government Advocate also relied upon the earlier order passed by the Tribunal dated 03.08.1988 in the case of Tvl.H.L.C.Limited Neyveli and others.

5. It is the further case of the petitioner State before the Tribunal is that, when the turnover was not reported in Form-1, definitely, levy of penalty would be warranted, since Form-1 is incorrect, as per the decision of this Court made in W.A.No.1013 of 1997 dated 30.04.1998 in the case of Chennai Textile Chemicals Private Ltd.

6. Canvassing these points, the learned counsel appearing for the petitioner State would submit that, all these points were raised before the second respondent tribunal and those issues have not been considered in proper perspective and accordingly, since they have rejected said appeal, the said order, which is impugned herein is liable to be interfered with, he contended.

7. I have considered the said rival submissions made by the learned counsel appearing for the petitioner State and have perused the materials placed before this Court.

8. In the order impugned, the second respondent tribunal has narrated the aforesaid facts as well as the grounds urged by the State and by dealing with the same, the Tribunal has given the following findings:

“6. The only point of determination in this appeal is:

Whether the order of the Appellate Assistant Commissioner (CT) is sustainable?

7. Point:

We have gone through the entire records relating to this appeal in detail. A perusal of records, it is revealed that the Assessing Officer, while making assessment, had taken a turnover of Rs.22,27,759/- being the Charges received by the dealers towards handling and insurance charges. The Assessing Officer also levied penalty under Section 9(2) of the CST Act read with Section 12(3) (b) of the TNGST Act. On appeal, the Appellate Assistant Commissioner (CT) allowed the case against which the appellant / State filed the present appeal before this Tribunal;

8. The close scrutiny of the appeal records revealed that the Appellate Commissioner (CT) had dealt with the case of the respondent in detail and had given his findings as follows:

“... All along the higher judicial forums have propounded that the appellants even if separately charged in the sale bill, it forms part of the sale price as coming the inclusive clause of the definition of sale price. In the instant case, the question is something different. The appellants had proved by a separate agreement with reference to the packing charges. The buyer had described the condition for packing and had allowed 3-5% as charges incurred for such packing. So, the sale price charged by the appellants