TaxTMI 
TaxTMI 
2012 (9) TMI 849
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....rda. The work was named as "Operation of Surda Mine and Mosaboni Concentrator Plant of HCL". The appellant being an Australian party became successful in obtaining the tender. The tender would stipulate bid to be given in two parts being Techno Commercial Bid and Price Bid. On January 2, 2007, appellant submitted their first bid that was opened on January 18, 2007. Their Techno Commercial Bid was accepted in a meeting held on January 18/19, 2007. After crossing the first hurdle, appellant got opportunity to participate in the price bid that was opened on January 19, 2007. On negotiation appellant gave their second bid on January 27, 2007. HCL asked for clarification that was replied to. The modified terms were given on February 13, 2007.....
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...., the issue would still remain unresolved. The arbitrator, a retired Judge of this Court held, it was the obligation of the appellant. The learned Single Judge affirmed. Hence, this appeal by the appellants. Mr. Surajit Nath Mitra, learned Senior Advocate, while referring to the relevant dates mentioned above, would contend, the parties knew that the bid initially given by the appellant would exclude Excise Duty as categorically mentioned in their price bid. He would refer to page 123 wherein we find the following clause : "Royalty will be reimbursed separately as actual. Any Excise Duty/Service Tax or levy presently applicable or any variation or new levy in future to be reimbursed on actual basis" Citing the aforesaid clause, Mr.....
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....uced Mr. Eoin Rothery as their witness when HCL did not give any suggestion to Rothery to contend that the appellant's local representative Mr. Ahlawat deleted the clause that would obligate them to bear the Excise Duty. Such evidence came through Mr. Sengupta, the second and last witness of HCL. Hence, the appellant did not get any opportunity to contradict the same by calling Mr. Ahlawat. Mr. Mitra would say, learned Judge committed an error in observing that appellant did not call Ahlawat to adduce evidence. According to him, question would only come when the respondent would put their case to the appellant-witness as and by way of suggestion. The appellant was rather taken aback when Sengupta for the first time contended so. He refer....
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....e set aside if it is contrary to : a) Fundamental Policy of Indian Law; or b) the interest of India; or c) justice or morality, or d) in addition, if it is patently illegal." According to Mr. Mitra, the arbitrator overlooking the above aspect would result in miscarriage of justice that would come within the scope and ambit of judicial scrutiny. Mr. Mitra would refer to page 124 of the main Paper Book to contend, learned arbitrator did not dispose of the application made by the appellant inter alia praying for consideration of the minutes of the meeting held on January 18 and 19, 2007. Initially, the appellant asked HCL to produce the original minutes of the said meeting to which they expressed their inability. Hence, the a....
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.... the work. Hence, their subsequent claim on Excise Duty incorporated in the invoice was without any authority of law. He contended that the price bid was to be given in a format that having no such clause incorporated, incorporation at an insignificant place would have no consequence. According to him, the appellant knew about the controversy. Having knowledge of the same, they did not produce Ahlawat as their witness. Having not done so, they could not contend otherwise. While replying, Mr. Mitra contended, Format F referred to by Mr. Bose was restricted to Techno Commercial Bid and would have no relation to the price bid. He referred to question 46 at page 98 of the Supplementary Paper Book wherein Mendiratta, the General Manager, O....
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....t was refused by the learned single Judge. Learned Single Judge in His Lordship's judgment and order appearing at pages 293-299 observed as follows :- "The arbitrator has passed his award on not only the deposition of the witnesses but has examined the documents annexed to the pleading and has also considered its relevancy. The arbitrator has found that Mr. Rothery the only witness of the claimant had signed the work order whose terms was in consonance with the clauses in the NIT and based his award thereon. No document was found on record by the arbitrator disputing the authorization of Ahlawat. It is only not cross-examination that Mr. Rothery stated that Mr. Ahlawat was not authorized but this again according to the arbitrator i....