TaxTMI 
TaxTMI 
2001 (5) TMI 926
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....petroleum products are fixed by the Government of India on the basis of prices worked out on the recommendation of Oil Pricing Committee, set up by the Ministry of Petroleum, vide Resolution No. J-11011/8/72-PPD, dated March 16, 1974. The recommendation of the Oil Pricing Committee was adopted by the Government, which requires a dealer to sell its products at the prices fixed by the Central Government, and the prices so fixed by the Central Government includes the surcharge to be collected from the buyers and deposited to the Oil Co-ordination Committee Pool Account. The appellant Co., had to sell its products at the prices fixed by the Central Government on the basis of the recommendation of the Oil Pricing Committee, and while fixing such prices, an amount on account of surcharge has been included, which is to be collected by the dealer as surcharge and is to be returned to the Oil Co-ordination Committee Pool Account. The appellant Co., is to sell the products at the prices fixed by the Government of India and to contribute to the Oil Co-ordination Committee Pool Account a fixed amount to be collected as surcharge on the direction of the Central Government and it is stated that ....
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....l Government and deposited into the Oil Co-ordination Committee Pool Account. 5.. Thereafter, by a notice dated February 17, 1996, issued by the Senior Superintendent of Taxes requiring the appellant Co., to produce accounts and records relating to purchase and sale of BRPL products from July 1, 1993 to February 18, 1996. Another notice dated March 28, 1996 was issued to the appellant Co., to show cause as to why penal action should not be initiated against the appellant Co., under section 23(g) of the Assam General Sales Tax Act, 1993, on the ground that the appellant Co., though liable to pay tax on the sale of products purchased from BRPL being selling agent as per section 8(1)(a) of the Assam General Sales Tax Act, 1993 read with rule 12 of the Assam General Sales Tax Rules, 1993. Being aggrieved, the appellant Co., has preferred Civil Rule No. 1939 of 1996, which was dismissed on November 2, 1998. Hence, the present appeal. 6.. We have heard Dr. A.K. Saraf, learned counsel for the appellant as well as Mr. G.N. Sahewalla, learned counsel for the respondents. 7.. It is contended by Dr. Saraf that the total price at which the goods are to be sold by the appellant ....
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....ch goods or class of goods, the resale by such other person shall subject to rules if any, framed in this behalf, be deemed to be at the first point of sale within the State." (Emphasis* supplied). Rule 12 of the Assam General Sales Tax Rules, 1993, reads: "12. Charge of tax and rates.-Under section 8(1)(a) where a person after purchasing goods covered by Schedule II under clause (a) of sub-section (1) of section 8 sells such goods in such manner as mentioned in the 'Explanation' to the aforesaid clause and if the price charged on such resale exceeds forty percentum of the original sale or purchase price, in respect of such goods or class of goods, the resale of such goods by such person shall be deemed as first point of sale within the State and the rates of tax shall be as specified in Schedule II for such items." (Emphasis supplied). 9.. Before we proceed further, we may at this stage point out that from the chart prepared by the appellant and as referred to above, would clearly show that the resale price exceeds forty percentum of the original sale or purchase price of the goods. 10.. A fascicule reading of section 8(1)(a) of the Act and rule 12 of the Rules would c....
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.... contract but excluding;............................ (i) the cost of outward freight, delivery, or installation or interest when such cost or interest is separately charged, subject to such conditions and restrictions as may be prescribed, and (ii) any sum allowed as a cash discount according to ordinary trade practice: Provided that in a case where there is no bill of sale or the sale bill is, in the opinion of the assessing authority, for an amount substantially lower than the market price of the goods, the valuable consideration receivable by the dealer shall be taken to be the market price determined in the prescribed manner. Explanation-1. Any tax, cess or duty which is liable to be paid in respect of any goods before the buyer can obtain delivery and possession of such goods and all costs, expenses and charges incurred before the goods are put in a deliverable state shall, notwithstanding any agreement, covenant or understanding that such tax, cess, duty, costs, expenses or other charges be borne or paid by the buyer or any other person, be included in the sale price. ................................" (Emphasis* supplied). 12.. Dr. Ashok Saraf strenuo....