2009 (4) TMI 840

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....os.759 of 2000, 534 of 2000, 1027 of 1999, 1011 of 1999, 757 of 2000, 1010 of 1999, 1243 of 1999, 1012 of 1999 and 1083 of 2000 relating to the assessment years 1993-94, 1994-95, 1991-92, 1989-90, 1995-96, 1988-89, 1996-97, 1990-91 and 1996-97 respectively bringing the so called demurrage charges or cylinder holding charges for taxation under Section 3-A of the Tamil Nadu General Sales Tax Act (hereinafter referred to as "TNGST Act"), the present revisions in T.C.Nos.432, 433, 435, 436, 464, 519, 530, 537 and 587 of 2006 have been filed under Section 38 of the TNGST Act. 2. The only question for consideration before us in these cases is, "Whether the amount received by the assessee, which is termed as "demurrage or cylinder holding ch....

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.... another reported in 121 STC 405 considered an identical issue with reference to the identical terms of the agreement and held that "possession and custody of the cylinders by the customers for 14 days was permissible but beyond 14 days was without authority for which the assessee was charging certain amount. In other words, after 14 days, there was no permission for keeping in possession and custody of the cylinder. Therefore, the consideration received was by way of penalty. The term "transfer of the right to use" denotes an agreement between two parties. Here, there was an agreement of transfer of right to use the cylinders for the first 14 days only. Beyond 14 days, the detention was without authority or in total disregard of the terms ....

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....ex Court had upset the decision of the High Court by holding that "the medical-oxygen/industrial gases could not be sold without the containers. The property in goods (oxygen/gas) could not be passed to the customers without such containers. Therefore, containers constituted an integral part of the medial oxygen and industrial gases. Section 2(g)(iv) of the Orissa Sales Tax Act provided that the sale shall mean any transfer of property in goods for cash or defer payment or for any other valuable consideration and that it shall include transfer of the right to use such goods for any purpose, whether or not for specified period for cash, deferred payment or any other valuable consideration. Hence the amount collected by the assessee would com....