TaxTMI 
TaxTMI 
2012 (9) TMI 782
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.... purchase orders between the period from 17.04.2007 to 10.06.2007 upon the petitioner for the supply of 386.140 metric tons of sponge iron lumps at Sinnar, Nasik; the same were accordingly supplied by the petitioner to the respondent company from time to time. The total value of the aforenoted goods was Rs. 62,22,401/-. The entire quantity of the aforenoted goods was supplied by the petitioner to the respondent which were received by the respondent pursuant to which a Form 'C' dated 07.03.2009 was also issued by the Central Sales Tax Department, Government of Maharashtra. 3. Submission of the petitioner company is that it had raised 25 invoices upon the respondent company. Payment of Rs. 22,23,647/- was alone made by the respondent to the ....
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....he defective goods will be removed but inspite of this assurance, the goods were not lifted; Form 'C' was issued only because the goods were lying in the factory premises of the respondent; the petitioner is seeking to take benefit of this Form 'C'; he has wrongly relied upon this document to base the present petition. 7. Along with the reply the affidavit of the Commission Agent has also been filed. There are in fact two affidavits filed by the said Commission Agent. The first affidavit is dated 30.10.2010 and the second affidavit is dated 21.09.2011; submission being that in this affidavit also, the Commission Agent has disclosed that initially the goods supplied by the petitioner contained the iron ore content of 80% but thereafter the ....
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....by the petitioner to the respondent and the goods have been accepted without a demur. Reliance has also been placed upon Paharpur 3P Ltd. v. Dalmia Consumer Care (P.) Ltd. [2008] 88 SCL 298 (Delhi) to support the submission that the defence set up by the respondent at this stage which was at the stage of filing of the reply to the winding up petition which defence is that the goods are defective and there admittedly being no written communication of this defect having been intimated by the respondent to the petitioner is clearly a moonshine and sham defence; it has been set up only to defeat the winding up petition which has been filed by the petitioner. 11. Arguments have been countered. At the outset, learned counsel for the respondent h....
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....ds received under the contract of the supply of goods and the price fixed to be paid for them; submission of the respondent being that the goods were defective and coupled with the fact that the Commission Agent has filed his affidavit supporting the stand of the respondent that the defective goods had been promised to be lifted by the petitioner clearly shows that a dispute has arisen on facts which cannot be answered in this petition. 14. Record has been perused. 15. The transaction between the parties is admitted. Admittedly goods had been supplied by the petitioner to the respondent. It has also come on record that the goods supplied by the petitioner to the respondent were valued at Rs. 62,22,401/-. The Central Sales Tax Form (Form '....
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....nt has been placed on record. In fact there are two affidavits filed by the said Commission Agent. The first affidavit is dated 30.10.2010. In this affidavit it has been stated that Mr. Pramod Avasthi was acting as a commission agent for both the parties and the petitioner had initially supplied material till April, 2008 as per requirement containing an iron ore content of 80% but thereafter the material supplied contained a 50% FE which was a waste; assurance was given by the petitioner that he would lift his defective material and that is why 'C' Form came to be issued two years later. In this affidavit, it has been stated that the material supplied by the petitioner was till September, 2008; as per the respondent it was a typographical e....
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....09 and that is how the 'C' Form came to be issued on 17.03.2009. The defence of the respondent largely based on these affidavits clearly appears to be suspect. 20. The reply of the respondent also clearly and categorically states that he had sent a communication to the petitioner about the defect in the goods; no such communication is on record; this defect relates to a transaction which had taken place in July, 2007 even then the respondent issued 'C' Form on 17.03.2009 i.e. two years later without a demur. 21. No mention of the defect in the goods supplied by the petitioner to the respondent had ever been pointed out to the petitioner right up to November, 2010 i.e. when the reply was filed by the respondent; on 08.09.2010, the Court ha....