TaxTMI 
TaxTMI 
2009 (2) TMI 229
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....oms duty shall be to the purchaser's account". The appellant could place orders for supply of additional 26 more CFTs on the same prices and terms and conditions during the currency of the said contract dated 6th September 1985. The relevant paragraph 9 of the said contract reads as follows : "9. Price per unit : i. Rs. 21,90,000/- each (firm & fixed) ii. xxxxx iii. xxxxx iv. The above prices are inclusive of custom duty @ 177.8% on CIF value of Rs. 4,55,000/-. Any statutory variation to the custom duty shall be to the purchaser's account.'' (emphasis supplied) 3. Thus, it was made clear in the contract that any statutory variation to the customs duty shall be borne by the purchaser Union of India. Subsequent to the purchase of 44 CFTs as provided in Clause 8 of the aforesaid contract the appellant exercised the option to purchase optional quantity of 26 CFTs. It also desired to purchase an additional quantity of 32 uni....
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.... (iii) Your letter No. CFT-112/194/88, dt. 30-5-88. (iv) This office advanced telegraphic S.O. No. 7(17)/D(S.II)/CPO-1467, dt. 30/31 May 88. Dear Sir, Please refer to your quotation/discussions cited above. These have been accepted and a formal supply order is hereby placed on you for and on behalf of the President of India for the supply of item mentioned in Schedule 'A' and on the terms and conditions mentioned in Schedule 'A', 'B' & 'C' attached hereto. No other terms and conditions will govern the contract. 2. Please acknowledge receipt within 15 days hereof on the proforma attached as Appendix 'I' hereto with a copy to the consignee and the Chairman, Technical Committee. 3. Please quote on all the letters and invoices number and date of this letter for reference. 4. Your quotation mentioned in Clause 4 of Schedule 'A' of this order and the Schedules. Appendix annexed hereto together with your letter of acknowledgment thereto shall be the sole repository of this transaction." 6. The relevant portion of Schedule A to S.O. dated 10th June 1988 reads as follows : "4. Contractor's quotation No. & date : ....
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.... of clearance, produces a certificate from an officer not below the rank of a Deputy Secretary to the Government of India in the Ministry of Home Affairs that the goods are required for fire fighting by any of the aforesaid bodies and recommends grant of the concession. (emphasis supplied) 8. The respondent supplied the 32 CFTs at the fixed price of Rs. 20,45,000/- and received the entire amount. Thereafter, it appears, the appellant sought to made recovery from the respondent of an amount of Rs. 1,77,58,396/- from the respondent on the ground that the respondent had availed of the benefit of customs duty under the aforesaid notification, but had not passed on the said benefit which was to the tune of Rs. 1,77,58,396/- to the appellant. As aforesaid, the learned Arbitrator considered this demand of the appellant of the appellant to be unjustified on his interpretation of the contractual terms, and the learned Single Judge agreed with him leading to the present appeal. 9. The learned counsel for the appellant Ms. Jyoti Singh has contended that the said notification should enure for the benefit of the appellant, as the appellant by giving such a....
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....h the same, merely because the court may have interpreted the agreement differently. If the interpretation given by the arbitrator is plausible, the same shall not be interfered with by the Court. 13. We find that not only the interpretation adopted by the Arbitrator is plausible but in fact the only interpretation possible and the same has rightly been upheld by the learned Single Judge. In our view, the said general conditions contained in Schedule B and C cannot prevail upon the special terms of offer dated 21st March 1988 which were accepted by the appellant and are incorporated in Schedule A. Significantly, in the quotation dated 21st March 1988 in Clause (2) it was clearly provided that as contrasted with Clause 1 where reduction in customs duty was to enure for the benefit of the appellant for 32 CFTs, there was to be no provision for price variation on account of customs duty. Significantly, in the telegram dated 30th/31st May 1988, the appellant has clearly stated in respect of 25 + 7 - 32 CFTs that "it is further confirmed that quotation of 20,45,000/- per unit firm and fixed without any provision for price variation on account of customs duty has been accepted...." Th....