2008 (8) TMI 176 - HC - Service Tax

AS per the contract between ONGC and Contractor - Service-tax/sales-tax applicable if any, to the service under this contract shall also be responsibility and payable by contractor - on the basis on this clause ONGC refused to reimburse service tax to the contract - HC ordered ONGC to reimburse the service tax to the contractor as per the terms of the work order

Summary

Issues: Interpretation of tax liability clause in the contract, reimbursement of service-tax by ONGC to the contractor, applicability of Finance Act provisions, extension of contract period, maintainability of writ petition.

Interpretation of Tax Liability Clause:
The petitioner, a contractor for ONGC, sought reimbursement of service-tax deposited on the basis of a work order issued in 2002. The clause in the NIT related to tax liability was scrutinized, indicating the contractor's responsibility to pay service-tax. The Finance Act provisions were cited to establish the contractor as the collecting agent of service-tax, with the consumer liable to bear the tax. Discrepancies between work orders of 2002 and 2006 regarding service-tax were noted, emphasizing the need for alignment with statutory provisions.

Reimbursement of Service-Tax:
Arguments were presented by both parties regarding the contractor's liability to pay service-tax and the obligation of ONGC to reimburse. While the contractor contended that ONGC's reimbursement in a subsequent work order estopped them from denying liability, ONGC maintained that the contractor was responsible for the tax payment. The court analyzed the terms of the work orders and NIT to determine the reimbursement obligation, eventually ruling in favor of the contractor.

Extension of Contract Period:
The court examined the extension of the contract period beyond three years, as referenced in the work order of 2006. It was inferred that if ONGC accepted liability for service-tax reimbursement in the extended work order, the same benefit should apply to previous work orders under the same NIT. The court emphasized aligning contract terms with statutory provisions to ensure consistency and fairness.

Maintainability of Writ Petition:
A technical objection on the maintainability of the writ petition, citing arbitration clause in the NIT for dispute resolution, was raised. The court dismissed this objection, noting the timing of the objection and ONGC's failure to invoke arbitration despite receiving notice from the petitioner. The court upheld the writ petition's validity and proceeded to rule on the reimbursement issue.

Conclusion:
The court held ONGC liable to reimburse the service-tax to the contractor, emphasizing alignment with statutory provisions and fairness in contract interpretation. The writ petition was allowed, and the interim order was vacated, affirming the contractor's entitlement to reimbursement as per the judgment.