M.Y.EQBAL, J. - (1.) THE short question that falls for consideration is as to whether petitioner being Hard Coke manufacturer is entitled to the "handling charges" in respect of sale of the hard coke manufactured by it.
(2.) PETITIONER is carrying on business of manufacturing hard coke and for that purpose owns a beehive hard coke over plant at Nichitpur Collery, Bansjora in the district of Dhanbad. In 1974 an agreement was entered into by and between the petitioner and the respondent -BCCL whereby and whereunder it was agreed that the respondents BCCL (in short Company) will supply coal suitable for manufacture of hard coke to the, extent of 1500 tonnes per month on market price to the petitioner at plant site. The petitioner will pay market price in advance to the company in accordance with the usual terms of sale. The petitioner after manufacturing hard coke will hand over to the Company at 12 -1/2% less than the company 'sselling price. Petitioner at his own cost load the hard coke in trucks at the site of Coke Ovens or Nichitpur Colliery siding. The said agreement was subsequently modified and the commission payable to the petitioner was reduced to 6 -1/4% with effect from July, 1975. Petitioner 'sfurther case is that in the process of manufacturing hard coke, petitioner is performing the function of removing the coal from pit head of the company, processing of raw coal and manufacture of hard coke and delivery of the same to the company. Petitioner is therefore entitled to handling charges, which is being recovered by the company from the purchasers. Mr. M.M. Banerjee, learned counsel for the petitioner fully relied upon the decisions of the Supreme Court in the case of Bharat Coking Coal Ltd. v. Steel Abrasers and Allied Products Ltd. 1994 Supp (3) SCC 361. According to the learned counsel, petitioner since doing the essential function in the process of manufacturing and selling of hard coke it is entitled to the handling charges which has been admittedly recovered by the company from the purchasers of hard coke.
(3.) MR . A.K. Mehta, learned counsel for the respondents -BCCL drawn my attention to the counter affidavit and submitted that the petitioners are performing the required function for the purpose of manufacturing hard coke as per the terms and conditions of the agreement in terms whereof any separate handling charges is payable to the petitioner. As a matter of fact, it is the respondent - BCCL who is doing the work of processing, marketing, bookings, indenting, allotment, placement etc. and for that it is entitled to handling charges.;