Freight and insurance charges, if charged separately by the assessee-dealer, are not includible in the taxable turnover of the assessee.

These revisions under section 11 of the U. P. Sales Tax Act 1948 (hereinafter referred to as "the Act") have been preferred by the Commissioner, Trade Tax, U. P. , Lucknow, against the order dated April 8, 1993 passed by the Sales Tax Tribunal, Ghaziabad, relating to assessment years mentioned in the order of the Tribunal under the U. P. Sales Tax Act, 1948 and Central Sales Tax Act, 1956.

The relevant facts giving rise to the present revisions may be stated.

2. The assessee-opposite party is a limited company carrying on the business of manufacture and sale of A. C. S. R. conductors, wire, etc. The assessee in its returns for assessment years under the U. P. Sales Tax Act and Central Sales Tax Act disclosed its taxable turnover. The amount received on account of freight and insurance charges from the purchasers was not included in the taxable turnover. A plea was taken that the amounts recovered as freight and insurance charges, which were billed separately, do not fall in its taxable turnover. The excise duty was also stated to be not a part of the taxable turnover. The above plea of the assessee did not find favour with the assessing authority. The excise duty and the freight and insurance charges were included in the taxable turnover and the assessee was accordingly assessed. The assessee feeling aggrieved against the order passed by the assessing authority preferred appeals under section 9 of the Act before the Deputy Commissioner (Appeals), Sales Tax, Ghaziabad Range, Ghaziabad. The appellate authority rejected the appeals. The assessee challenged the orders by preferring second appeals under section 10 of the Act before the Sales Tax Tribunal, Ghaziabad Bench, Ghaziabad. The Tribunal after hearing the parties and quoting the relevant provisions of the Act as well as giving a specimen of the bill of the assessee-opposite party held that excise duty charged by the assessee was part of the taxable turnover and accordingly it was rightly included in the turnover. However, as regards the freight and insurance charges are concerned, the Tribunal held that the same having been charged separately by the assessee-dealer was not part of the taxable turnover. Accordingly, Appeal No. 314 of 1988 was rejected and the other appeals were partly allowed.

3. The department feeling aggrieved has preferred the revisions. The assessee has not preferred any revision against that part of the order passed by the Tribunal, by which its plea that excise duty was not includible in the taxable turnover has been rejected. Thus the only question that arises in these revisions is as to whether the handling and freight charges, which have been charged separately by the assessee-dealer, could be included in the taxable turnover of the assessee or not.

4. I have heard the learned Standing Counsel appearing on behalf of the department and Sri R. R. Agarwal, Senior Advocate, for the assessee-dealer.

5. The learned Standing Counsel has argued that the view taken by the Tribunal that freight and insurance charges are not part of the taxable turnover is wholly erroneous. According to him, the said view is contrary to the provisions contained in section 2 (i) of the U. P. Sales Tax Act and section 2 (h) and 2 (i) of the Central Sales Tax Act. The learned Standing Counsel has submitted that the said finding of the Tribunal is not based on any evidence and that the Tribunal could not legally ignore law. According to the terms of the contract between the opposite party-dealer and the purchasing dealer itself, all the responsibilities in relation to the sale and delivery of goods were of the opposite party-dealer till the delivery of goods. The learned Standing Counsel has further submitted that thus the order of the Tribunal is contrary to the law laid down by honourable the Supreme Court in the case of Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13; 1979 UPTC 37.

6. The learned counsel for the respondent has submitted that th