The truck hire or freight having been actually borne by the buyers and it being the legal burden of the seller who imported coal, the amount of freight was includible in the sellers turnover.

( 1 ) THESE five revision petitions under Sec. 11 of the U. P. Trade Tax Act raise identical issues. They were, therefore, heard together and are being disposed of by this common judgment.

( 2 ) IN TTR Nos. 65 to 68 of 1999, there is a common revisionist and these petitions relate to assessment years 1991-92, 1992-93, 1993-94 and 1994-95.

( 3 ) IN TTR No. 63 of 1999, the revisionist is M/s. Pathak Coal Agency and revision petition relates to assessment year 1982-83.

( 4 ) I have heard Sri Bharat Ji Agarwal, learned Senior Advocate assisted by Sri Kunwar Saxena, Advocate for the revisionist in the first group of revision petitions and Sri Alok Kumar, Advocate for the revisionist in TTR No. 63 of 1999. Sri Surya Prakash, learned Standing Counsel argued the matters on behalf of the Commissioner of Sales Tax.

( 5 ) THE revisionists are coal merchants. Coal is an essential commodity under the Essential Commodities Act, 1955 which was enacted to provide, in the interest of general public, for the control of production, supply and distribution of trade and commerce in certain commodities. In pursuance of the Act, the Government of Uttar Pradesh promulgated the U. P. Coal Control Order, 1977 to regulate trading in coal and distribution of this essential commodity in a proper manner. In all these cases, the dealers revisionists had claimed that they worked as commission agents for the purchases of coal for them and charged commission. Coal is imported from places outside the State of U. P. like Dhanbad in Bihar from where it is transported by motor truck to the places where these revisionists carry their business. The truck hire is claimed to have been paid directly by the buyers to the transporters on the arrival of the goods and, therefore, the truck hire was not included in the turnover by the dealers. The books of accounts were rejected and the turnover was determined by best judgment assessment by estimating the quantity of coal imported, the purchase price thereof, the freight and other charges incurred thereon and the margin of profit expected to be earned by the revisionist. The contention that the truck hire is not includible in the turnover was rejected by the authorities below holding that it was not established that the dealers acted as agents and the truck hire was paid by the purchasers. It was also held in some of the orders that even if the truck hire was paid by the purchasers directly to the transporters, the same was includible in the turnover because it was the burden of these revisionists to pay the truck hire and the principle laid down by the Honble Supreme Court in Mc Dowell and Company Ltd. v. CTO, 1985 UPTC 747 : (AIR 1986 SC 649) were invoked. The Tribunal has upheld the inclusion of the estimated truck hire in the turnover of these dealers.

( 6 ) THE main question that has been agitated in these revision petitions, therefore, is whether the truck hire is includible in the turnover. The learned Counsel for the revisionists placed strong reliance on the provisions of the U. P. Control Order, 1977. Admittedly, these dealers hold licences in Form B prescribed under this order. The Order defines a dealer as under :" "dealer" means a person carrying on as a principal agent, whether separately or in conjunction with some other business, the business of import, purchase or storage for sale and sale of coal, in wholesale and granted a licence in Form b and commonly known and herein referred to as Coal Agent or in retail and granted a licence in Form c and commonly called and referred to herein as coal Depot Holder but does not include a consumer who imports, purchases or stores coal for his own use. "licensee has been defined as under :" "licensee" means a person holding a licence under the provisions of this Order in Form b or Form c or Form d appended to this Order. " (a) Rule 4 of the Order provides that no person shall import coal and carry on business as a coal agent, carry on business as a Coal