Contractual GST computation remains arbitrable, but awards cannot apply unincorporated EPC tax guidelines to item-rate contracts.

Contractual disputes over the inter se calculation, reimbursement or bearing of GST may be arbitrable where they do not require determination of statutory tax liability or bind tax authorities. The note distinguishes an item-rate contract from an EPC contract and explains that technical incorporation of MoRTH specifications does not, without clear stipulation or agreement, incorporate MoRTH tax arrangements. It states that GST recomputation must follow the contract's tax clause, applicable State Government instructions and transitional GST provisions, supported by evidence of any tax shortfall, interest or penalty. It also addresses severability, allowing independent portions of an arbitral award, including Dispute Review Expert fee claims, to be preserved where legally and practically separable.

---

---

Issues: (i) Whether the dispute concerning the contractual methodology for calculating GST was arbitrable; (ii) Whether the arbitral award applying the MoRTH SOP to an item-rate contract and granting GST, penalty and interest could be sustained; (iii) Whether the invalid portions of the award could be severed while preserving the independent award relating to the Dispute Review Expert's fee.

Issue (i): Whether the dispute concerning the contractual methodology for calculating GST was arbitrable.

Analysis: A contractual dispute concerning which party must bear, reimburse, or calculate the tax impact under agreed contractual arrangements is distinct from a statutory tax dispute requiring determination of taxability, classification, rate, exemption, assessment, or rights against the taxing authority. The controversy concerned the inter se contractual choice between the MoRTH SOP and State Government Orders for computing GST impact; it did not require determination of statutory tax liability or bind the taxing authority. The objection to arbitrability was also not raised before the Arbitral Tribunal under the statutory jurisdictional mechanism.

Conclusion: The GST-calculation dispute was arbitrable and this finding is against the assessee.

Issue (ii): Whether the arbitral award applying the MoRTH SOP to an item-rate contract and granting GST, penalty and interest could be sustained.

Analysis: The contractual incorporation of MoRTH specifications was confined to technical requirements for road construction and did not incorporate MoRTH tax arrangements. The contract contained its own tax clause, while the State Government Orders governing GST computation were binding executive instructions for the department. The MoRTH SOP was directory, was framed for EPC contracts, and did not become applicable to the item-rate contract without a clear contractual stipulation, material evidence, or mutual agreement. The award did not cogently address the applicable State Government Orders, the GST transitional provisions, or evidence establishing that a quantified tax shortfall, interest, and penalty were actually incurred by the contractor due solely to the department's default. Making the awarded amounts subject to future GST assessment also left the determination indeterminate.

Conclusion: The findings awarding GST, penalty and interest on the basis of the MoRTH SOP were patently illegal and were set aside, in favour of Revenue.

Issue (iii): Whether the invalid portions of the award could be severed while preserving the independent award relating to the Dispute Review Expert's fee.

Analysis: An arbitral award may be modified only where the offending and valid portions are legally and practically severable. The GST-related claims were the dominant but separable component of the award. The finding that the contract was item-rate based was consensual, and the award of the department's unpaid share of the Dispute Review Expert's fee was independent of the GST adjudication.

Conclusion: The GST-related findings were severed for fresh adjudication, while the award of Rs. 66,500 with stipulated interest towards the Dispute Review Expert's fee and the consensual finding on the nature of the contract were preserved, partly in favour of Revenue.

Final Conclusion: The contractual tax dispute remains capable of arbitral determination, but its recomputation must proceed under the contractual terms, applicable State instructions, and relevant GST transitional framework rather than an unincorporated MoRTH EPC guideline.

Ratio Decidendi: A contractual dispute over the inter se computation or reimbursement of tax is arbitrable, but an arbitral award is vulnerable to patent illegality where it imports an inapplicable tax guideline into the contract, disregards binding contractual and regulatory material, and awards tax consequences without cogent evidentiary findings.

---