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TMI Blog2007 (9) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the applicant that under condition No. 3 the contractor is obliged to return unused materials in good condition and is not entitled to take away unused materials and will distinguish the ratio of the case of N.M. Goel & Co. [1988 (10) TMI 106 - SUPREME COURT OF INDIA ]is misconceived. The condition No. 3 further stipulates that on failure of return of unused goods the cost of sale shall be deducted from the contractor's bill at double the rate for cement and one-and-half times that for steel and allied goods, runs counter to the argument of learned counsel for the applicant. Thus such contract amounts to sale of materials supplied by the contractee to the contractor. Revision dismissed. - - - - - Dated:- 25-9-2007 - PRA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the applicant, has placed reliance upon the terms of the contract entered into in-between the applicant and its contractor. Emphasis has been placed by him on condition No. 3 of he contract. Relevant portion of the said agreement reads as under: Following materials shall be issued to the contractor at the rate and place specified in the condition as follows. The cost of these materials shall be recovered from the contractor's bill: . . . (1) Empty cement bags will have to be returned to Parishad Stores in sound condition failing which (Rs. 2) per bag will be deducted from the contractor's bill for 70 per cent bags and Rs. 0.40 per bag for the remaining 30 per cent bags not returned. No credit will however be given fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials so supplied and consumed from the final bills by the Public Works Department, amounts to sale of the materials so supplied to the contractor by the Public Works Department. Learned counsel for the applicant submitted that clause (10) of the contract in that case was materially different. He submitted that under clause (10) it was provided that all materials so supplied to the contractor shall remain exclusive property of the Government and any such material remaining unused and in perfectly good condition at the time of completion of the contract shall be returned to the Engineer-incharge at the place directed by him, if by notice in writing under his hand, he shall so require; but the contractor shall not be entitled to return an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the supply of materials and recovery of cost of the materials from the contractor's bill there is a sale in the hands of the dealer. The argument of the learned counsel for the applicant that under condition No. 3 the contractor is obliged to return unused materials in good condition and is not entitled to take away unused materials and will distinguish the ratio of the case of N.M. Goel Co. [1989] 72 STC 368 (SC); [1990] UPTC 865 is misconceived. The condition No. 3 further stipulates that on failure of return of unused goods the cost of sale shall be deducted from the contractor's bill at double the rate for cement and one-and-half times that for steel and allied goods, runs counter to the argument of learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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