TaxTMI 
TaxTMI 
2023 (5) TMI 424
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the present case." FACTUAL MATRIX 2. The petitioner, Shiga Energy is a private limited company incorporated under the laws of India, having its Registered Office at 207, Chiranjeev Tower, 43 Nehru Place, New Delhi. The petitioner operates as hydro energy generating company. The company specializes in the generation, distribution, management, construction and transmission of hydro-electric power project. The respondent, GE Power (erstwhile Alstom Projects India Ltd. and thereafter Alstom India Ltd.), is a Limited Company, inter alia, engaged in the business of manufacture and supply of Hydro Turbines, Generator, Electro-Mechanical equipment and parts thereof and has its manufacturing unit situated at ERDA Road, Maneja, Vadodara 13, Gujarat. The respondent regularly bids for various power projects in India as well as outside India for supply of plants, equipment, parts, etc. for such projects. 3. The petitioner is a Special Purpose Vehicle for the implementation of Tashiding Hydro Electric Power Project (THEP) located in West Sikkim. The petitioner, after floating tender and inviting bids from various contractors, in which respondent had also participated and succeeded, a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... vide letter dated 22nd March, 2019. Vide letter dated 26th March, 2019, the learned Arbitrator was appointed as the Presiding Arbitrator which was accepted on 27th March, 2019. The Tribunal was, thus, constituted on 27th March, 2019 with the acceptance of the assignment by the Presiding Arbitrator. The parties were directed to file affidavits of their witnesses by 1st August, 2019 and the date of recording the evidence was fixed. The respondent produced one witness namely Mr. Ankur Vinodchandra Nesdi (CW-1) whose affidavit in evidence was filed. He was thoroughly cross examined by the counsel for the petitioner. The petitioner examined two witnesses in support of its case namely Mr. Bimal Agrawal (RW-1) and Ms. Sonia Varma (RW-2). These two witnesses were cross examined by the counsel for the respondent. On the conclusion of evidence, which was completed on 7th October, 2019, the matter was taken up on 22nd October, 2019 and 6th December, 2019. After completion of the submissions on behalf of both the parties, the award was reserved. The parties filed the written submissions on 27th August, 2020. The impugned award was pronounced on 14th October, 2020. 7. The instant petition i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the impugned award, the observations of the Tribunal are fallacious and wrong because they presuppose that the petitioner/employer would have got CENVAT credit with respect of taxes and duties paid by it and therefore, it would not have been at a loss while reimbursing those taxes. It is an admitted fact that no deemed exports benefits were availed by the petitioner/employer in view of the specific withdrawal of the Policy by the Government. 11. It is submitted that as per Article 2 (Contract Price and Terms of Payment) of the Contract and Clause 14 of GCC, the price of the product was to be exclusive of all applicable taxes and duties and levies. It further provides that all taxes and duties as applicable at the time of dispatch, will be reimbursed by the petitioner to the respondent, at actual. 12. The impugned award also failed to correctly interpret the abovementioned clauses, specifically "All taxes and duties applicable". As per the Contract, the reimbursement of applicable taxes, duties and levies which was agreed between the parties, was only applicable on the underlying transaction being the output of the business transaction of respondent and not on the input of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... taxes on BOP items, then the aspect on proofs of such payments actually deposited by the Sub contractors is vital to determine the liability of the petitioner in this regard as the same has to necessarily be reimbursed on "Actuals", which is not possible without supply of the aforementioned document as a proof. 17. Learned counsel appearing on behalf of the petitioner submitted that as per Section 28(3) of the Arbitration Act, the tribunal was bound by the terms of the Contract i.e. Clauses 2.1 of the Contract read with Clauses 14.1 and 14.4 of the GCC read with 11.4 and 11.5 of the SCC and hence, the Tribunal had to necessarily decide the present dispute on the basis of the provisions of the contract. The Tribunal did not take into account the above clauses and their stipulations and simply ignoring the above clauses awarded the claims in favor of the respondent. Hence, the respondent's claim could not have been awarded by the Tribunal except after verifying strict compliance with the above clauses of the contract. 18. It is submitted that when material evidence is not considered in the award, which would go to the root of the matter, the award cannot be allowed to stand, a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fact, paid/reimbursed to the respondent the taxes, duties and levies on BOP at actual. These tax invoices are admitted documents and reflect the actual amount of taxes, duties and levies which the petitioner is obligated to reimburse to the respondent. It is also an admitted position that the petitioner had issued C-Forms acknowledging the actual amounts of taxes, duties and levies on BOP. It is vehemently submitted that this finding has not been challenged by the petitioner. 23. It is trite law that a party is precluded from raising mutually destructive pleas. Before the learned Tribunal, it was argued that the taxes, duties and levies have been deposited by the sub-contractor with the exchequer and the respondent has included these costs. Before this Court, the petitioner has argued that the evidence of payment of these taxes, duties and levies has not been furnished as per Clause 11.4(c) of SCC. Learned counsel for the respondent submitted that both these pleas, being mutually destructive, are impermissible in law. 24. It is submitted that the petitioner's reliance on SCC Clause 11 is erroneous. Clause 11 of the SCC does not deal with the obligation of the petitioner t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....A (2015) 3 SCC 49 held that findings on merits are within the domain of the arbitral tribunal and courts exercising jurisdiction under Section 34 of the Act do not act as courts of appeal. The arbitrator is the ultimate master of the quantity and quality of evidence before him. Findings on merits, even if based on little evidence or evidence which does not measure up to the legally trained mind, cannot be interfered with by courts under Section 34 of the Act. It is submitted that the award is unanimous and does not suffer from any patent illegality. Therefore, this Court may not interfere in the impugned award. 31. Learned counsel for the respondent further submitted that the unanimous award is detailed, well-reasoned and based on evidence. The Award does not suffer from any patent illegality or any infirmity whatsoever which would warrant interference therewith under Section 34 of the Act. Hence, the instant petition is devoid of any merit and is liable to be dismissed. FINDINGS AND ANALYSIS 32. I have heard the learned counsel appearing on behalf of the parties and gone through the material on record as well as the arbitral award. 33. Before proceeding further, I find....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t paid by the sub-contractors to the Exchequer. It is also argued that Statement of Defence (SOD) only clarifies about the onus of payment and not about the actual proof of payment. It is also argued that it is not the case of the petitioner that it was not aware that sub-contractors had to deposit the taxes to the Exchequer. It is the case of the petitioner that proof of actual payment of taxes by sub-contractors on BOP sales was not examined by the Arbitral Tribunal while affixing the contractual obligation on the petitioner to reimburse these taxes. This argument has not been taken by the petitioner before the learned Arbitral Tribunal. 38. Before I proceed to deal with the merits of the present case, I find it convenient to refer, in brief, to the principles elucidated in the case laws cited by the learned counsel appearing on behalf of the parties. In my view, the difficulty does not lie so much in gathering or enunciating the principles, but in applying them to a particular situation in hand. The ground on which an award can be challenged and constrained is Section 34 of the Act. 39. There are essentially three areas in which the arbitral award is likely to be challenge....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ral procedure was conducted. As per Section 34 of the Act, an award can be challenged when the party making the application was not given proper notice of the appointment of an Arbitrator or of the arbitral proceedings or was otherwise unable to present his case. (a) Lack of due process:-procedural irregularity: Certain minimum procedural standards may be observed in the fair and proper conduct of arbitration. These procedural standards are designed to ensure that the Arbitral Tribunal is properly constituted that the arbitral procedure is in accordance with agreement of the parties, and that the parties are given proper notice of the proceedings, hearings and awards. In other words, the aim is to ensure that the parties are treated with equality and are given fare hearing with proper opportunity to present their respective cases. (b) Further Procedural Issues: An award is also at risk of challenge where the composition of the Arbitral Tribunal and the procedure adopted in the arbitration are not in conformity with the agreement of the parties or failing such agreement, with the law. Substantive Grounds 42. If the Tribunal has jurisdiction, the correct proce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of Rs. 1,45,331/ (Rupees One Lac Forty Five Thousand Three Hundred and Thirty One Only). As per the claimant, the said payment corresponded to the Tax Invoice for BOP at Pages 143 & 144 of Volume I of the Statement of Claim. In this regard, the Claimant sought to project that since the sum total of the Tax figures appearing in the last row at Page 144, added up to Rs. 1,45, 331, it should be taken & assumed that the said payment was made towards taxes on BOP. Further, for another entry appearing at Page 54 of Annexure A/Ex-RW2, being entry dated 31.10.2016 for an amount of Ra. 17,00,000/- ..... Xxxx 7.26 According to Mr. Khurana, the aforesaid evidence clearly reflected that the respondent had not made any payments of taxes towards BOP at any stage. From that he endeavoured to submit that the parties clearly understood that taxes regarding BOP were not to be reimbursed so far as this contract is concerned, as a result of specific omission of Schedule 7 in the instant contract, the contra-distinct with DANS contract. He submitted that these few factors viz, deletion of Schedule 7 and making of reimbursement of taxes on BOP at all from the very beginning would mak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sue/dispute of payment of Excise Duty and CST is to be decided on the interpretation of Clause 14 of GCC. The other peripheral issues viz, whether respondent in fact initially made payment towards taxes on BOP or the effect of the judgment in DANS Energy in incidental and pressed into service by the claimant as supporting factors. Therefore, the Arbitral Tribunal is of the view that since Clause 14 of GCC, which is the relevant clause to decide this issue, needs to be interpreted in the first instance to find an answer to the main issue. 8.2 Though this clause has already been reproduced in the beginning while taking note of the relevant clauses of the agreement as well as GCC and SCC, for the sake of continuity in discussion, we would like to reproduce the clause once again, which reads as under: 14. Taxes and Duties: (Page 503 (Volume 2A-GCC) 14.1 All Taxes and Duties (Excise Duty, Central Sales Tax, Customs Duty and Service Tax) applicable are indicated in Schedule 7 and will be paid/reimbursed by the Employer at actual. All State and local (State Government, Municipal, etc., such as Entry Tax / Octrol / VAT / Works Contact Tax/any other local taxes, d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reated as direct transaction between Employer and the Contractor. 14.3 If any Lax exemptions, reductions, allowances or privileges may be available to the Employer in the country where the Site is located, the Contractor shall extend all help to enable the Employer to benefit from any such tax savings to the maximum allowable extent. 14.4 For the purpose of the Contract, it is agreed that the Contract Price specified in Article 2 (Contract Price and Terms of Payment) of the Form of Contract Agreement is based on the taxes, duties, levies and charges prevailing on the date of signing of Contract (hereinafter called 'Tax' in this GCC Sub-clause 14.4). If any rates of Tax are increased or decreased, a new Tax is introduced, an existing Tax is abolished, or any change in interpretation or application of any Tax occurs in the course of the performance of Contract, which was or will be assessed on the Contractor, in connection with performance of the Contract, an equitable adjustment of the Contact Price shall be made to fully take into account any such change by addition to the Contract Price or deduction therefrom, as the case may be, in accordance with GCC Clause 36 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ost of imported raw material: 3. The above prices are considering the Deemed Export Benefit Status of the Project and Project Authority Certificate for same shall be made available by customer." 8.6 Being a Deemed Export project, the employer was entitled to get benefit of such taxes and duties paid by it to the claimant by virtue of Import Export policy 2008-2009. There is a specific mention about this policy in Clause 14.2 of GCC and not without the purpose. It is stated therein that the employer shall be eligible for Deemed Export benefits because of the said policy; albeit, the responsibility for receiving such benefits is cast on the employer. In the form of these Deemed Export benefits, the employer would have got CENVAT credit in respect of taxes and duties paid by it and was therefore, not to be a loser while reimbursing these taxes and duties to the contractor. The obligation to pay/reimburse all taxes and duties was, thus, devised keeping in view the aforesaid scheme and that is more than obvious. 8.7. Clause 11 of the SCC specifically deals with Deemed Export Benefit. Clause 11.1 thereof, mentions that the contract is for "supply" of power gene....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. There is no such distinction created in the contractual provisions. It is stated at the cost of repetition that the contract specifically recognised that part of the supplies would be made through sub-contractors. In spite thereof, Clause 14.1 of GCC did not exclude the payment of taxes and duties in respect of BOP, which makes the intention of the parties very clear. 8.10 Same reasoning would apply in respect of Central Sales Tax as well and the contention of the respondent predicated on the provision of CST Act cannot be countenanced. In view of the aforesaid interpretation given by us to Clause 14.1 of GCC (when read in conjunction with other clauses of the contract), judgment of Guwahati High Court in Pradip Kumar Roy's case cited by the respondent would be of no avail. That apart, the judgment of the Guwahati High Court was rendered in altogether different fact situation. Admittedly, in the said case, the tendered rates were to be inclusive of all taxes and levies payable under the respective statutes. Position herein is just the opposite as the bida were to be submitted exclusive of taxes and duties. DHC judgment. 8.11 Ld. Counsel for the respondent h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on or a conscious omission. However, it is not necessary to discuss the same. Fact remains that Schedule 7 has not found its place in the contract. This Schedule was part of the contract between the claimant and DANS (We may mention that except this difference, the present contract and contract between the claimant and DANS are identical. Therefore, Schedule 7 of DANS contract also has been produced on record and the parties agreed that reference to Schedule 7 in Clause 141 is about this very schedule. This schedule contains Estimated Tax Sheet/Supply". It mentions estimated taxes relating to Custom Duty, Excise Duty, CST, etc. There are four notes appended to the Schedule which are as under: "a) Zero Customs Duty indicated above is based on the basic assumption that Deemed Export benefits will be available for the project and the Purchaser shall make available to the contractor Project Authority Certificate or relevant documents to avail the Advance License Benefits and import of raw materials under zero Custom Duty. In case of non-availability of the above mentioned documents the full custom duty on merit rate basis shall be charged for the imported items. b) Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ory spares supplied from outside India, mainly from Europe. USA and Canada on CIF basis: CIF (Indian part of Entry) price - II. Plant, Equipment and Mandatory spares supplied from India, (Employer's country) on Ex-Works basis: II. Plant, Equipment and Mandatory spares supplied from India, (Employer's country) on Ex-Works basis: INR 975,250,853 (INR Nine hundred seventy five million two hundred fifty thousand eight hundred fifty three only). INR 1,206,301,023 (INR One thousand two hundred six million Three hundred One thousand Twenty three only) As per the Price Schedule annexed as Appendix 10 and/or such other sums as may be determined in accordance with the terms and conditions of the contract. The above prices are excluding all applicable and duties and levies. All taxes and duties and levies as applicable at the time of dispatch are to be paid (reimbursed by Employer to the contractor at actual, as per the contract/refer indicative taxes and duties annexed as Appendix 10, Schedule 7, Estimated Taxes & Duties) As per the Price Schedule annexed as Appendix 10 and/or such other sums as may be determined in accordance with the terms and conditions of the contract. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....5, that is the statement prepared on the basis of amounts received by the claimant, there is no dispute insofar as receipt of these amounts is concerned. The dispute only pertains to the issue as to whether the payments were towards BOP or manufactured items. We may reproduce the relevant portion of CW-1/5 again, reflecting these payments: Month BOP DB note raised Product DB note raised Total DB note raised Payment received Receipt Date Feb '15 1,73,375 16,45,560 18,18,935 Mar '15 18,31,441 4-Mar -15 Apr '15 2,61,797 2,61,797 May '15 2,49,291 4-Mar -15 Total 20,80,732 20,80,732 June '15 1,45,114 13,27,500 14,72,614 July '15 24,78,000 40,41,500 65,19,500 14,72,614 01.07.16-Rs. 292614 and 27.07.15 Rs. 11,80,000 Aug '15 59,000 61,06,500 61,65,500 65,19,500 19.08.16 Rs. 65,19,500 8.21 The above table reflects that the total amount of taxes, duties and levies for the months of February 2016 till April 2016, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....In Annexure A to the statement of defence, the respondent had shown payment of Rs. 17,00,000 made on 31.10.2016. Though it in argued by the claimant that no supporting invoice is produced by the respondent to show that it was on account of manufactured items only, even the claimant has not filed any document. Therefore, it is not possible to come to a definite conclusion that payment of Rs. 17,00,000 made on 31.10.2016 was on account of reimbursement of taxes qua BOP. There is one more reason to arrive at this conclusion. As per the claimant itself, vide letter dated 07.10.2016, the respondent had denied any liability of taxes on BOP. It, therefore, becomes unimaginable that after the denial on 07.10.2016, the respondent would have made payment on account of taxes on BOP on 31.10.2016. Xxxx 8.26 One more argument of the Ld. Counsel for the respondent needs to be addressed. It was argued that in case se payments towards taxes on BOP were made, there was no reason for the claimant to claim entire amount of Rs. 3,92,92,680 and even the claimant itself has not excluded/adjusted these payments. However, we find that after making the payment initially, the respondent ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of manufactured items. It is important to note that the respondent, thereafter, started making on account payments and did not make the payments specifically towards any Debit notes. In these circumstances, the claimant could presume that the respondent was acknowledging that, reimbursement of taxes and duties for BOP is also accepted by the respondent, more so when such liability was not disputed/refuted by the respondent. It is only vide letter dated 07.10.2016 that the respondent, denied this liability In the aforesaid factual situation, it can be stated that the cause of action accrued on 07.10.2016, when the respondent changed its stance by joining the issues, for the first time, with the contention that reimbursement of taxes on account of BOP supplies was not permissible in terms of the contract. The claims are raised within a period of three years therefrom and therefore, are not time barred. 8.32 Argument of the respondent that limitation should start after the expiry of 15 days from the date of invoices, in view of the above discussions, cannot be accepted. We thus hold that the entire claim made by the claimant is within the period of limitation. 8.33 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ven DANS had interpreted the agreement in the same manner and had reimbursed the taxed on BOP initially and changed its stand later on. Even the discussion on conduct part is excluded, the interpretation given to Clause 14 will still remain the same. In any case, we have come to our conclusions un the interpretation of Clause 14 of GCC. 8.35 Likewise, the Court specifically dealt with the contention of DANS predicated in Section 6 of the CST Act (which was the same contention as raised before us by the respondent herein). Discussion in that behalf is contained in paras 15 and 10 of the Ld. Single Judge, which makes the following reading. "15. The learned counsel for the petitioner further relied upon Section 6(2) read with Section 9A of the Central Sales Tax Act 1956 to contend that only a registered dealer can collect tax in respect of sale of goods in the course of inter-State trade or commerce. Further relying upon the judgment of the Supreme Court in T. STanes & Co Ltd vs. State of T.N. (2006) 9 SCC 305, it is submitted that if there is a bar to collect tax, it cannot be recovered in form of purported recoupment or recovery. 16. Though, the legal prin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Excise Duty and CST paid by the Claimant to the Sub-Contractor was not expressly agreed to be reimbursed by the Respondent like import duty, the same cannot be recovered in any manner whatsoever from the Respondent. An ambiguous interpretation cannot be assigned to the term 'applicable tax', which was relevant only with respect to the underlying transaction being the output leg of the supply of made by the Claimant. iii. 'At Actuals' the taxes should have been actually paid by the Claimant to the exchequer. Since, in the input leg of the transaction (for the Claimant), the tax amount is collected by the Sub-Contractor (or the Claimant's supplier) and it is this Sub-Contractor, and not the Claimant, who deposits the tax with the exchequer, thus, the Respondent has no liability with regards to the payment of tax by the Sub-Contractor on supply made to the Claimant. iv. Further, and most pertinently the Contract envisages that the Contract Price is based on the taxes and duties, which was or will be 'assessed on the Contractor.' On a combined reading of the aforesaid Clauses pertaining to following three key aspects o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or the taxes that he was never liable to pay to the government. Allowing a person to recover something as 'tax', which is admittedly not leviable or applicable on such transaction or person under law, is clearly against the public policy. Reference to Schedule 7 by Claimant erroneous and misconceived (j) Reference by the Claimant to a 'Schedule 7' (more specifically in Para 28 of its Statement of Claim), to submit that the Respondent. Relevant Terms of Contract dated 21 May 2010 between the Claimant & the Respondent and the contract between the Claimant & Dans Energy Private Limited dated 07 August 2009 46. In the instant case, the dispute pertains to the taxes and levies in respect of BOP goods which were procured by the respondent from the approved sub-contractor as enunciated in the appendix to the contract. The other types of goods are manufactured goods which are directly manufactured by the respondent. The invoices in this aspect were raised as the consignee invoice to the respondent. The sub-contractor supplies the BOP along with invoice and after that the respondent sales in transit to the applicant takes places in accordance w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Arbitral Tribunal has rightly rejected the argument of the applicant on the aspect that reimbursement of taxes on account of BOP supplies was not made by the petitioner on 4th March, 2015 and 15th May, 2015. The petitioner acknowledged reimbursement of taxes and duties for BOP and such liability was not disputed/refuted by the petitioner. 50. I am also in agreement with the learned Arbitral Tribunal's finding that the Contract between the respondent and DANS have identical terms, the only distinction being omission of Schedule 7. However, the omission of Schedule 7 does not impact the petitioner's liability to pay/reimburse the taxes, duties and levies on BOP. I have perused the entire documents on record and found that the applicant has never contended before the learned Tribunal that the respondent had not furnished the requisite documents for the reimbursement of taxes, duties and levies on BOP. The learned Arbitral Tribunal rightly reached on the conclusion and passed the impugned award, while considering the entire evidence on the record, the statement of claim, the statement of defence and written arguments filed and had given the detailed reasons. As it is a settled law ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....] reasonableness. Furthermore, "patent illegality" itself has been held to mean contravention of the substantive law of India, contravention of the 1996 Act, and contravention of the terms of the contract." 17. A similar view, as stated above, has been taken by this Court in K. Sugumar v. Hindustan Petroleum Corpn. Ltd. [K. Sugumar v. Hindustan Petroleum Corpn. Ltd., (2020) 12 SCC 539], wherein it has been observed as follows: (SCC p. 540, para 2) "2. The contours of the power of the Court under Section 34 of the Act are too well established to require any reiteration. Even a bare reading of Section 34 of the Act indicates the highly constricted power of the civil court to interfere with an arbitral award. The reason for this is obvious. When parties have chosen to avail an alternate mechanism for dispute resolution, they must be left to reconcile themselves to the wisdom of the decision of the arbitrator and the role of the court should be restricted to the bare minimum. Interference will be justified only in cases of commission of misconduct by the arbitrator which can find manifestation in different forms including exercise of legal perversity by the arbitrator....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation of the performance by the Contractor of its obligations hereunder. The Contract Price shall be aggregate of I Plant, Equipment and Mandatory spares supplied from outside India mainly from Europe, USA & Canada on CIF basis:-CIF (Indian Port of entry) price 1 Plant, Equipment 976,453,898 and Mandatory (INR Ninety spares supplied Seven crores and Mandatory (INR Nine spares supplied Hundred from India Seventy five from India Sixty Four Employer's Million Two (Employer's Lakhs Fifty Country) on Ex- works basis: Hundred Country) on Ex-Three Fifty works basis- Thousand Total Thousand Eight Eight Hundred and Hundred Fifty Three Only) 975,250,853 (INR Nine Hundred Seventy Five Million Two Hundred Fifty Thousand Eight Hundred Fifty Three Only) Total Ninety Eight Only) AND 2,443,167 (Euro Two Million Four Hundred Forty Three Thousand one Hundred and Sixty Seven only) 2,443,167 (Euro Two as per the Price Schedule annexed as Appendix 10 and/or such other sums as may be d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Design Works at Customer's end Unpriced Purchase Order copies for major raw material for manufacturing of Turbine and Generator Balance data for Civil Design at Customer's end for Turbine and Generator. and on expiry of 12 months reckoned from the date of release of initial advance, within Fifteen (15) days after the receipt of invoice. 60% of the total or pro rate EXW amount alongwith price variations, if any, within Fifteen (15) days after receipt of Invoice alongwith dispatch documents. All admissible taxes and duties shall be paid as per actuals at this stage. Five percent (5%) of the total or pro rata (machine wise) EXW amount upon issue of the Completion Certificate, within Fifteen (15) days after receipt of Invoice. Five percent (5%) of the total or pro rala EXW amount upon issue of the Operational Acceptance Certificate, within Fifteen (15) days after receipt of Invoice. Ten percent (10%) of the total EXW amount as an interest free advance payment against receipt of invoice and an irrevocable Advance Payment Security for the amount as specified in CL 50 Notification of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he This contract is for supply of Power Employer / Project Authority shall Generation Equipment and placed against be solely responsible for availing the International Competitive Bidding Deemed Export benefits. Procedure. In terms of Foreign Trade Policy, 2009-2014 of GOI the supply qualifies for 11.2 In terms of Foreign Trace Policy "Deemed Export Benefits". It is resolved 2009-2014, Deemed Export that both the parties will cooperate in Drawback is made available as one furnishing the required documents to each of the Deemed Export Benefit. other to enable claim all the benefits Contractor (supplier) is therefore admissible without any delay. The Isit of required to maintain all documents documents would be advised progressively to enable the Employer to claim the at the appropriate time. However, the excise/customs duty paid on inputs Employer/Project Authority shall be solely to the project from DGFT through responsible for availing the Deemed Export drawback route and exemption of benefits. customs duly against Advance License. In terms of Foreign Trace Policy 2009-2014, Deemed Export Drawback is made available as one of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntractor are to give the ER1, duly attested by Jurisdictional Central Excise Authorities or Rule 11 invoice as applicable. Disclaimer Certificate by Contractor/Sub- Suppliers, wherein- All invoices shall mention that the supply is to the contractor A/C. DANS Energy project Jorethang. The Import content (if any) will have to be Imported against duty free license and the Project Authority will the copies of Excise paid assist in obtaining the License. documents to Employer Project authority Certificate/ required for getting the Essentiality certificate shall be Deemed Export Benefits in provided by the Employer. terms of the Foreign Trade Document 2 General Conditions of Contract (GCC) Clause 14- Taxes and Duties General Conditions of Contract (GCC) Clause 19: Subtracting b c Policy of the Government of India The Duty Drawback will be claimed by the Project Authority and suitable Disclaimer Certificate should be issued by the Contractor for enabling to claim the Duty Draw back in full including Disclaimer Certificate stating CENVAT credit f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2008- 2009), at applicable of government of India, goods supplied for the project where procedure of International Competitive Bidding (ICB) has been followed, same shall be eligible for Deemed Export benefits. The Employer shall be solely responsible for obtaining such Deemed Export Benefits. For the Material/Items purchased outside the State of Sikkim Road Permit & Form "C" and other relevant statutory documents to avail the Concessional Rate of Central Sales Tax shall be issued by the Employer. payment The above reimbursement of taxes, duties as defined in Schedule 7 Le. Excise Duty, Customs, Duty, Central Sales Tax and Service tax shall be restricted to the extent of Grand Total amount mentioned in Schedule No. 7 subject to GCC Clause 14.4 & 36. If any material item as per the nomenclature mentioned in Bill of Quantities and invoiced by the Contractor, are coming directly from the works of his duty approved Sub-contractor to the Employer's site in a state different from the state wherein Sub- contractor's work are located, the contractor shall effect Sale in Transit' f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....status of Deemed Export then the custom duty shall be paid by the contractor on applicable merit rates and same shall be reimbursed by the employer within the specified time All Taxes and Duties (Excise Duty, Identical Central Sales Tax, Customs Duty & Service Tax) applicable are indicated in Schedule 7 and will be paid / reimbursed by the Employer at actuals. All State & local (State Government, Municipal etc.) taxes, such as Entry Tax / Octroi / VAT/ works Contract Tax / any other local taxes, duties, levies etc., which are not included in Schedule-7, if levied on the Contract, shall be paid / reimbursed by the Employer on actuals. However, the income tax, whenever applicable on the contractor or the Expatriates deputed by him for the Project, under the purview of this Contract shall be bome by the Contractor. Notwithstanding, CCC Sub-Clause 14.1 above, the Employer shall bear and promptly pay all customs and import duties, imposed on the Plant and Equipment and mandatory spare parts specified in Price Schedule No. 1 and that are to be incorporated into the Facilities by the law of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Price and Terms of Payment) of the Form of Contract Agreement is based on the taxes, duties, levies and charges prevailing on the date of signing of Contract (hereinafter called "Tax" in this GCC Sub-Clause 14.4). If any rates of Tax are increased or decreased, a new Tax is introduced, an existing Tax is abolished, or any change in interpretation or application of any Tax occurs in the course of the performance of Contract, which was or will be assessed on the Contractor, in connection with performance of the Contract, an equitable adjustment of the Contract Price shall be made to fully take into account any such change by addition to the Contract Price or deduction therefrom, as the case may be, in accordance with GCC Clause 36 (Change in Laws and Regulations) hereof. 19.1 Appendix 5 (List of Approved Sub- 19.1 Appendix 5 (List of Approved Sub- Identical contractors) to the Contract Agreement specifies major items of contractors) to the Contract Agreement specifies major items of supply of services and a list of approved Subcontractors against each item, including vendors. Insofar suppl....