JUDGMENT Rajes Kumar, J.
1. All these revisions are directed against the order of Tribunal dated February 6, 1992 relating to the assessment years 1985-86, 1986-87 and 1987-88 under the Central Sales Tax Act, 1956 and for the assessment years 1987-88 under the U.P. Sales Tax Act, 1948.
2. In all the revisions following question of law has been raised :
Whether on the facts and in the circumstances of the case the Sales Tax Tribunal was legally justified to hold that amount of freight deducted in bills not to be part of turnover despite the fact that it was charged in the bills and ownership of the goods was of the seller till the delivery taken by the purchaser of the destination?
3. In the revision relating to the assessment year 1987-88, apart from the above question, one more question has been raised--
Whether on the facts and circumstances of the case learned Tribunal was justified to accept the books of account of the dealer for the assessment year 1987-88 despite the fact incriminating evidences detected by Sales Tax Officer 'M.S.' on June 26, 1987 reveal suppressed sales?
4. The dealer-opposite party was registered dealer under the U.P. Sales Tax Act, 1948 and engaged in the business of purchase of milk and sale of manufactured panir, sterlised thick cream, milk and other allied milk products. For the assessment year 1985-86 and 1986-87 books of account and disclosed turnover have been accepted. For the assessment year 1987-88, books of account have been rejected by the assessing authority and the turnover was enhanced. First appellate authority had accepted the books of account and disclosed turnover. Commissioner of Sales Tax filed appeal before Tribunal, which was rejected. Against the acceptance of books of account, present revision has been filed. In all the revisions, the main dispute is whether the amount of freight deducted from the bills shall form part of taxable turnover or not under the Central Sales Tax Act, 1956. The assessing authority had treated the amount of freight deducted from the bill as part of turnover. First appeal was rejected in this respect. Tribunal has allowed the appeal and held that the amount of freight deducted in bill does not form the part of turnover.
5. Heard Sri B.K. Pandey, learned standing counsel and perused the order of Tribunal. Tribunal has found that the dealer maintained uniform catalogue all over the country and sent the goods to outside destination by R.R. with freight "To pay" and in the bill, the amount of freight was deducted. Tribunal has referred condition No. 5 of the contract of catalogue entered in the parties, which reads as follows :
Every care is being taken while dispatching the goods. Our responsibility ceases as soon as the goods are handed over to the carriers. Customers in their own interest should tally the weight stated on the R/R or T/R with the actual weight of the parcel and should check the number of packages and marks of the consignment before taking the delivery.
Tribunal further observed as follows :
From the perusal of the conditions of the contract, it is manifest that there is nothing in the language of the contract that it was the responsibility of the seller to send the goods up to the destination and that freight was to be paid by the seller or by the purchaser on behalf of the seller. Under the terms of the contract, there was no obligation on the part of the assessee to pay the freight and the price received by the assessee in the sale of goods was the invoice amount less freights. As such it may be said that the delivery of the goods was completed at the loading station when the goods were delivered to the carriers and all the risks including damages, theft, pilferage, fire, accident were passed on to the buyers. Thus on the perusal of the terms of the contract, the freight included in the F.O.R. destination price and payable by the purchaser, as the goods were to be carried by the carriers from the loading station to the destination station on all the risks of the buyers hence the same deducted from the bills shall not form the part of the sale price, received by the appellant/assessee. In such class of cases, the freight was payable by the purchaser, though the price agreed upon was F.O.R. destination. The price of the goods receivable in such cases is F.O.R. destination price less the amount of freight. From the nature of preparation of bills, it reveals that the price shown in the bills is the F.O.R. destination price less freight. The honourable Supreme Court in S.L.P. (Civil) No. 9424 of 1982, Commissioner of Sales Tax v. Geep Flash Light Industries has held that even if the contract for sale between the dealer and its purchasers was on the basis of price F.O.R. destination, the freight cannot be included in the turnover of the dealer because the seller under the terms of the contract ceased to be the owner of the goods, the goods are handed over to the carriers. This principle is squarely applicable in the instant case and the learned appellate authority has wrongly held that the site of the sale was destination station.
6. Admittedly, the applicant has not received any amount towards the freight from the customers and, therefore, treating the amount deducted in bill from the catalogue amount price fixed F.O.R. destination cannot be treated as part of the turnover. It is not the case where the price F.O.R. destination was charged and the same was paid by the purchaser and in the account, the amount of bill and freight are separately shown. In the present case, the amount of freight has not at all been paid by the customers. Therefore, the question of its inclusion in the turnover does not arise. While arriving on the conclusion that the amount of freight deducted in bill will not form part of the turnover. Tribunal has relied upon the decision of apex Court in S.L.P. (Civil) No. 9424 of 1982, Commissioner of Sales Tax v. Geep Flash Light Industries, the decision of apex Court in the case of Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh reported in [1969] 24 STC 487, the decision of Punjab and Haryana High Court in the case of State of Haryana v. Janki Das and Co. reported in [1990] 79 STC 1, decision of Madras High Court in the case of Orient Paper Mills Ltd. v. Commissioner of Sales Tax [1983] 54 STC 195 and the decision of this Court in the case of Commissioner of Sales Tax v. Amritsar Oil Works reported in 1989 UPTC 1187. Learned standing counsel is not able to assail the finding recorded by the Tribunal and is not able to make out any case that on the facts and circumstances, the amount deducted towards the freight in the bill form part of turnover. I do not find any error in the view of Tribunal.
7. So far as books of account relating to the assessment year 1987-88 is concerned, Tribunal found that adverse inference drawn from chalan No. 238, on the ground, that it differs in writing is erroneous. Tribunal observed that in respect of the chalan No. 238, bill No. 213 dated June 25, 1987 was issued and the necessary entry was made in the books of account. Finding of Tribunal are findings of fact and needs no interference.
8. In the result, all the revisions fails and are dismissed.