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TMI Blog2013 (7) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... nter Claim could not have been allowed merely on a hypothetical basis or on the basis of a generalised submission or conjecture absent documentary evidence. Thus the Appellant clearly, failed to discharge the burden of doing so. In these circumstances, the rejection of the Counter Claim cannot be faulted. - Appeal No. 345 of 2012 In Arbitration Petition No. 455 of 2010 - - - Dated:- 11-6-2013 - Dr. D. Y. Chandrachud And A. A. Sayed, JJ. For the Petitioner : Mr. Minoo Siodia with Ms Jenita Lale i/b. Rustamji Ginwala For the Respondent : Mr. Ram Kakkar i/b. Dutt Menon Dunmorrsett JUDGMENT (Per Dr. D. Y. Chandrachud,J.) This appeal arises from a decision of a learned Single Judge dated 4 April 2012 on a petition un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge has dismissed the petition filed by the Appellant under Section 34 for setting aside the Award. 5. In this appeal, the Appellant has contested the decision of the learned Single Judge and resultantly the legality of the Award on two aspects: (i) the grant of claim no.1 for the payment of Rs.60,93,323/- which was withheld by the Appellant; and (ii) the rejection of the Counter Claim. For convenience of reference, the submissions in respect of these heads can be taken up separately. Claim no.(1): 6. The Appellant had deducted an amount of Rs.60.93 lakhs while effecting payment to the first Respondent. The basis of this was that whereas the contract quantified the C.I.F. value of imported components at Rs.8.16 crores, the first Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and/or other statutory variations, if any, thereon. f. Variation in price due to customs duty rate will be dealt with separately against documentary evidence after receipt of equipment/material at site. The Arbitrator held that the C.I.F. value of the imported components was fixed at Rs.816 lakhs in order to place a cap on the liability of the Appellant arising as a result of any variation in the rate of customs duty. According to the Award, the first Respondent had quoted a lump sum price which was to be fixed or firm barring statutory variations in the rate of customs duty. It was for this reason that clause 6 stipulated that the quoted prices were inclusive of a built in import content of a maximum C.I.F. amount of Rs.816 lakhs base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribe a cap on the liability of the Appellant should there be an increase in customs duty or statutory variations. In the present case, the amount of Rs.60.93 lakhs was not withheld on the ground of a variation in the rate of customs duty but on the ground that the import content was less than what the contract envisaged. The Arbitrator was, in our view, justified in holding that this action could not be sustained on a correct interpretation of the contract, having regard to the fact that the contract in question stated that the price was fixed and firm subject to statutory variations in the rate of customs duty. The interpretation of the relevant conditions by the Arbitrator is evidently correct. In any event, it cannot be regarded as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short imports (Already deducted): Rs. 60,93,323 - Claim of 10% (Average) being the variation in Custom duty. Variation as per merit rate of custom duty as per PO for Rs.598 Lacs. Rs. 59,80,000 Interest on Rs.59.80 Lacs not deducted due to Vendor delight. Rs. 8,80,000 Total Counter Claim : Rs.1,29,53,323 Amount Already Deducted : Rs. 60,93,323 Balance Counter Claim recoverable from Vendor : Rs. 68,60,000 Since the amount was not available in this purchase order therefore using clause number 25 of GPC we have deducted the amount from PO number 5000098-OQ- 48009. As can be seen from above considering the deduction made are as per PO terms conditions rather considering vendor relations vendor delight, the deductions on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount could not be worked out in the absence of documentation for imported components. There is no dispute about the fact that the Appellant chose to lead no evidence in respect of its Counter Claim. The burden lay on the Appellant to establish, by leading cogent evidence, that there was a variation in the rate of customs duty and that as a result of a reduction in the rate of customs duty, the Appellant was entitled to the benefit thereof. The Counter Claim could not have been allowed merely on a hypothetical basis or on the basis of a generalised submission or conjecture absent documentary evidence. The Appellant clearly, in our view, failed to discharge the burden of doing so. In these circumstances, the rejection of the Counter Claim can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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