TaxTMI 
TaxTMI 
2012 (6) TMI 464
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....The respondent-company is carrying on business of manufacturing readymade garments, spinning, knitting, weaving or manufacturing of wool or woollen products or dealing in cotton and other fibrous substances and preparations thereof and dyeing or colouring of any of the said substances. The respondent-company also imports the yarn and dress materials and prepares readymade garments and exports the same to the various countries of the world. The respondent-company also engaged in manufacturing the garments for sale in the indigenous market also. 4. In the petition, the petitioner has contended that the respondent-company approached the petitioner-company to act as an agent to forward and custom clear its cargo for Voyages to various clients abroad. As and when the cargo were entrusted to the petitioner, the petitioner has evinced all the interest and case in booking space for the cargo that are to be Voyages in the ship and getting the cargo custom cleared and forward the same for Voyages to its destinations. The respondent-company having availed the services of the petitioner-company for shipment of the materials of respondent-company to different locations around the Globe in a ....
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....ed to this Court and to pay the dues of the petitioner-company. 6. The respondent entered appearance and filed their statement of objections. In the objections, the respondent has contended that the petition filed for winding up of the respondent-company is not maintainable either in law or on facts. The respondent is not the debtor and there is no contract between the petitioner and the respondent. Further at no point of time, the respondent approached the petitioner and asked to act as an agent to forward and clear its cargo for Voyages to the various clients in abroad. 7. The respondent has contended that they are engaged in the business of manufacturing readymade Garments (Sweaters) on the basis of the orders of different companies Aigle, France; Gymborce Corporation, USA; Billabong, Germany; Fila, Italian; Fenchurch, UK, Duck & Cover, UK and making supply of the same to the destination as required by the Purchaser or otherwise. The respondent is also engaged in the manufacture of Garments for the sale in the indigenous market also. The respondent does cater to the export markets in the area of garments as required by the customers as finished items of dress materials. Th....
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.... & M Hennes & Mauritz AB and not of the respondent. 10. Since there is no contract or agreement between the petitioner and the respondent, there is no obligation on the part of the respondent to settle the dues. The petitioner instead of raising invoice against the H & M Hennes & Mauritz AB raised an invoice against the respondent. In fact, some times on the instructions of H & M Hennes & Mauritz AB, the respondent has paid the amounts i.e. for special cases on the instructions of the customers of the respondent and there is no contract or agreement between the petitioner and respondent. Hence the question of paying the dues of H & M Hennes & Mauritz AB does not arise. As per the FOB, the supplier's responsibility is till the port for export and all other costs and risks on the goods pass thereafter to the buyer till the goods are transported to the buyer's dock. The arrangement between the respondent and H & M Hennes & Mauritz AB as evidenced in the invoice and shipping bill was on FOB basis. Hence, the liability of payment of freight charges rests with the H & M Hennes & Mauritz AB, the principals of the petitioner. The responsibility of the respondent was only to hand over th....
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....g the debts does not arise hence sought for dismissal of the winding up petition. 13. The petitioner filed their rejoinder to the objection statement filed by the respondent contending that the petitioner-company has been nominated as Cargo and Forwarding Agents by H & M Hennes & Mauritz AB vide letter dated 15-1-2007 and as per the instructions received by H & M Hennes & Mauritz AB, the petitioner-company were to move the cargo to various destinations at the agreed rates. Since the H & M Hennes & Mauritz AB has given instructions to the respondent to pay the amounts towards the Air Shipments, it is the responsibility of the respondent to pay the amounts to the petitioner-company and at this stage they cannot deny their liability. It is further contended that it is obliged to raise an invoice against the respondent because of INCO terms adopted by the respondents in e-booking is CPT (Carriage paid to). Further, the respondent by E-mail message dated 31-12-2007 had confirmed the Reconciliation Statement of Account for the balance amount to be paid by it to the petitioner. Hence, the respondent has to pay the amount. 14. Sri S. Shivanand, learned counsel appearing for the petit....
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....ds of the respondent-company for Voyage to various countries of the world and delivered the materials in safe and sound Condition without any adverse remarks and performed their contractual obligation to the satisfaction of the companies. The petitioner-company sent the invoice to the respondent-company for payment. However, respondent-company refused to pay the same on the ground that there is no agreement between the respondent and the petitioner-company. The respondent-company is doing business of manufacturing of readymade garments (sweaters) as per the orders of the H & M Hennes & Mauritz AB and supply the finished goods to the H & M Hennes & Mauritz AB as per the agreement dated 31-1-2007. It is the responsibility of H & M Hennes & Mauritz AB to send the goods to its customers in various countries. As per the agreement, the H & M Hennes & Mauritz AB has to pay the freight charges. There is an agreement between the petitioner and the H & M Hennes & Mauritz AB for payment of freight charges and respondent is not liable to pay the amount. The case of the respondent is that as per the order issued by the H & M Hennes & Mauritz AB, they will stitch the garments as per their specif....