TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 1252
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....a. Accordingly, the Respondent became liable to pay a sum of Rs. 24,93,96,292.00. The invoices were raised on 26th October, 2012. The Respondent did not make payments but made part payments. Apparently, the petitioner continued to send reminders but of no avail. On 30th July, 2013 the Respondent is believed to have approached the Petitioner seeking reduction in sale price for the said cargo as a result of which the price was reduced to Rs. 22,519.30 per MT. On 31st July, 2013, the Petitioner sent to the Respondent a copy of Respondent's account in Petitioner's ledger account. The Respondent vide email addressed to the Petitioner confirmed that a sum of Rs. 3,92,15,352/- was due and payable by the Respondent to the Petitioner. In the meantime the Respondent also sought a balance confirmation letter from the Petitioner for the audit purposes. Subsequently, the Petitioner sent a balance confirmation letter required by the Respondent.It is Petitioner's case that vide email on 27th August, 2013 the Petitioner sent revised invoices amounting to Rs. 26,20,62,578.00. These 24 invoices are annexed to the Petition and are stated to be relating to the aforesaid cargo delivered at ....
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.... Mr. Sakhardande then relied upon the contents of Exhibit-F which is an email from the Respondent addressed to the Petitioner and several other persons. It sets out the balance payable to the Petitioner as on 31st March, 2013. 5. Thereafter he drew my attention to the ledger account of the Respondent in books of the Petitioner which shows a closing balance. Exhibit-G is the confirmation of accounts. He also relied upon an email from the Petitioner to the Respondent dated 27th August, 2013 informing the Respondent that they are sending revised invoices which were apparently sent and the copies of which are annexed to the petition. Mr.Sakhardande then relied upon the statement of accounts for the period 1st April, 2012 to 31st March, 2013 appearing at Exhibit-K which is signed by both the Petitioner and Respondent-company thereby leaving no manner of doubt that these amounts were due to the Petitioner. He relied upon a chain of emails appearing at Exhibit-L and Exhibit-R in support of his contention that only after several reminders a sum of Rs. 40,00,000/- was paid. However, the balance payment of Rs. 3,92,15,213.00. was not forthcoming and ultimately the statutory notice was sent.....
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....er. Mesopotamia FZE had receivables from Agrozan Dubai arising out of said sale product and in pursuance of the contract entered into between Mesopotamia FZE and Agrozan Dubai, the Petitioner sold yellow peas to the Respondent and raised invoice at the rates, initially agreed. The rate came to be revised on account of market conditions and since the Respondent had sold yellow peas at lower price, it is contended that the Respondent is only acting as the sales representative only for providing the sales service and the respondent has sent price difference invoices to the petitioner. The yellow peas were subsequently sold by the Petitioner to the Respondent and after reduction of the price the Respondent made payment of Rs. 22,28,46,365/- to the Petitioner and only a portion of the amount of Rs. 3,92,15,213/- is claimed in statutory notice. Further payment of Rs. 40,00,000/- was made and therefore balance stood reduced to Rs. 3,52,15,213/-. In accordance with the commercial deal Mesopotamia FZE sells products to Agrozan Dubai which then sells products to the Petitioner and thereafter the Petitioner sold the same to the Respondent. In effect to act as the sales representative of Mesop....
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.... commercial transaction was recorded after having discussed with their auditors. The Point No.2 reads as follows : "(1) .... .... .... (2) The process continues as follows, both Agrozan DMCC and Agrozan India settle their liabilities with the collection of money. Let me express this once more, we cannot assume the risk of a third party you have chosen while our liability to you is still continued. We cannot make merchandise transfer before payment is received. We should have merchandise remaining in hand in return for the figure observed as our payable. If there is no merchandise, we should not have any payable. What needs to be done at this stage is a sales agreement between Agrozan India Pvt. Ltd. and Agri Trade and, in this agreement; a. Agrozan India sells 14600 MTS to Agri Trade on EXW Kanpur, Mundra and Mumbai basis. b. You many determine the price as Indian Rupee. c. A term of max. 60 days (or 90, up to you) to lift the cargo in included in the contract. He has the right to lift the desired partial tonnages with max. 3 days' pre-advises. He advises on the tonnage he wants to be delivered and pays 95 percent to the total amount, we issue a delivery order; the remaini....
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.... in the statutory notice. 12. Mr.Sakhardande has disputed the aforesaid contention of the Respondent. However, on a query from the Court as to whether the debit note was received, he replied in the affirmative. The debit note was received along with email dated 11th March, 2014 and 13th March, 2014, the copies of which appears at Exhibit-H. These emails are addressed to the principals of the Respondent in Singapore and to the officers and Executives of the Petitioner-company including Nilesh Mehta and N.Poonevala. Copies of the emails are also marked to Ozan Ozturk and Mr.Suleyman of Tiryaki, apart from other executives of the group companies. The Petitioner has not been able to put forward any reasonable explanation as to why the debit note and email were not dealt with by them if indeed they were not to be given effect to. A specific query was put to counsel as to why, in face of demand that Agrozan issue a credit note against the debit note raised by the Respondent, no protest was registered by the Petitioner with the Respondent. The Petitioner had no answer to this query. However, Mr.Sakhardande attempted to term the Debit Note as unexplained or of doubtful veracity because th....
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....nied in sur-rejoinder. The sur-rejoinder discloses further document to effectively supplant the Respondent's defences. In paragraph 77 of the sur-rejoinder, reference is made to the business arrangement resulting in a Stock carry and Sale service contract dated 15th May, 2012 which has been referred to earlier in the affidavit in reply. A copy of the said Stock carry and Sales service contract is annexed and it clearly shows that references are made to role played by the Petitioner-company in the transaction. Clauses (1), (2) and (4) of the said Stock carry and Sale service contract are material for our purposes and are reproduced below : "1) In Mundra, 9650 MTS of Canadian Whole Yellow peas, will be discharged landed, warehoused and bagged (if needed) and will be arranged for local deliveries to final destinations. 2) In Mumbai, 5000 MTS of Canadian Whole Yellow peas, will be discharged landed, warehoused and bagged (if needed) and will be arranged for local deliveries to final designations. 3) All customs, clearance formalities and import permits will be done and arranged by Agrozan India Pvt Ltd on account of Mesopotamia. Goods will land in India and be ready for domestic....