2018 (2) TMI 1548

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.... For the Respondent(s) : Mr. Amit Sharma, Adv., Mr. Sandeep Singh, Adv., Mr. Ankit Raj, Adv., Ms. Indira Bhakar, Adv. And Ms. Ruchi Kohli, AOR JUDGMENT Deepak Gupta J. 1. Leave granted. 2. Since a common question of law arises in these appeals, they are being disposed of by this common judgment. Briefly stated the facts are that the appellant-assessee manufactures cylinders for storage of Liquefied Petroleum Gas (LPG). At the relevant time, the entire production was for supply to Government owned companies viz. M/s. Indian Oil Corporation Ltd.(for short 'the IOC'), M/s Bharat Petroleum Corporation Ltd., and M/s Hindustan Petroleum Corporation Ltd.. It is not disputed that the cost of the cylinders was determined by the Minist....

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....yments due to the assessee. Thereafter the assessee approached the Assessing Authority for refund of the sales tax paid on the excess sale amount i.e. Rs. 37/. The case of the assessee was that he had paid tax on the provisional price of Rs. 682/per cylinder. After the price had been reduced to Rs. 645/, he was only entitled to Rs. 645/. The oil companies had taken refund of the amount of Rs. 37/and, therefore the tax paid on the excess amount be refunded to him. The assessee also urged that this amount of Rs. 37 should not be counted in its total turnover. 7. The Assessing Officer rejected the claim of the assessee on the ground that there is no provision under the Act for reducing or refunding the amount of tax once the amount of tax h....

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....d shown separately in the sale bill/cash memorandum or in the accounts shall not form part of turnover." 10. The High Court held that since the words 'paid', 'payable', 'amount received' and 'or receivable' have been used in the aforesaid two sections, the assessee was entitled to receive the amount of Rs. 682/per cylinder and if he has given any discount, he cannot claim refund of the same and the price of the cylinder cannot be said to be Rs. 645/per cylinder. The High Court also held that the goods were delivered at Rs. 682/per cylinder and this amount was collected and therefore, no amount should be refunded. 11. We have heard learned counsel for the parties and a number of decisions have been cited. 12. In IFB Industries Limit....

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....he assessee. It held that even though the credit note may have been issued on the basis of the provisional price, the price to be taken into consideration for calculating the turnover and the sale price must be the actual price received by the assessee. 14. Learned counsel for the respondent has relied upon a judgment of this Court in the case of MRF Ltd. v. Collector of Central Excise, Madras (1997) 5 SCC 104. We are of the opinion that this judgment has no relevance to this case since it is a judgment arising out of the Excise Act where the tax is attracted the moment the goods are removed from the factory gate. 15. In our view, a bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines "sale price" clearly indica....