TaxTMI 
TaxTMI 
1991 (7) TMI 299
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner. Accordingly, we omit to consider the claim relating to excise duty. 2.. The assessing authority held that packing charges and the labour charges for packing were eligible for exemption under a Notification G.O. Ms. No. 3291, Revenue, dated October 1, 1960 only up to January 30, 1974. Therefore in the assessment year 1973-74 he had included the turnover under these headings for the period from January 30, 1974 to March 31, 1974. The assessing authority held that packing charges and labour charges for packing would certainly attract liability because these charges are incurred by the dealers in respect of goods sold at the time or before the delivery thereof He therefore held that these charges properly formed part of the sale....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which in this case happened to be Karuppur/Salem railway station. It is also seen from another order dated January 16, 1975, that the terms of delivery were f.o.r. Karuppur railway station, that the goods should be packed in single gunny bag and properly marked at no extra cost. If double gunny bags were to be used an extra cost of 50 paise per metric tonne was provided. There is one significant clause in all the despatch advices and invoices which reads as follows: "Our responsibility ceases the moment consignment is handed over to the carrier and a R.R./L.R. is obtained for the goods. Claims for delay, shortage, damage to or loss of goods in transit should be made by the buyers against the carrier direct." These terms of the contract c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....been accepted. On the other hand there is enough authority to conclude against the assessee on the facts of the present case. 4.. We feel that the only question that has to be answered in this case is whether there was an agreement to sell the packing material, having regard to the facts and circumstances of the case and the nature of the goods. This is a pure question of fact and this question cannot be decided on the basis of fiction or surmise, nor can the question of fact be allowed to be lost sight of or side-tracked by copious citations. We have already pointed out that the delivery in this case is at the despatching railway station. The goods to be sold cannot be sold in a naked condition, but have to necessarily be packed in gunny ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13 (SC) dealing with the definition of the word "sale price" and the exclusion clause in the later part of the definition on which much reliance is placed by the petitioner. To repel the argument the Supreme Court has observed as follows: "This exclusion clause does not operate as an exception to the first part of the definition. It merely enacts an exclusion out of the inclusive clause and takes out something which would otherwise be within the inclusive clause. Obviously, therefore, this exclusion clause can be availed of by the assessee only if the State seeks to rely on the inclusive clause for the purpose of bringing a particular amount within the definition of 'sale price'. But if....