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TMI Blog2013 (5) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... er referred to as the ONGC) is directed against the judgment dated 13th August, 2008 passed by a learned Single Judge of this Court in W. P.(C) No. 310 of 2007 whereby he allowed the writ petition filed by Sri Swapan Kumar Paul (hereinafter referred to as the petitioner) and directed the ONGC to reimburse the service tax to the writ petitioner. 2. The undisputed facts are that the parties entered into a contract whereby the writ petitioner provided motor vehicles as motor cabs to the ONGC on contract. This contract was entered into pursuant to a Notice Inviting Tender (NIT) issued on 22-2-2002. The portion of the NIT with which we are concerned is Clause 10.2, which reads as follows : Service tax/sales tax applicable if any, to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned single Judge relied upon three grounds (i) that finally it is the liability of the consumer to pay service tax, (ii) that when extension of the same contract was granted in the year 2006, the ONGC had reimbursed the service tax paid by the writ petitioner and therefore this meant that the ONGC had admitted that it was liable to reimburse the petitioner in respect of service tax liability which arose prior to the extension of the contract also and (iii) The learned Single Judge had also held that Clause 10.2 of the NIT was against the provisions of the Service Tax Act. 7. With due respect, we are unable to agree with the reasoning given by the learned Single Judge. There is no manner of doubt that finally the consumer can be asked t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another or; the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. 10. Section 23 envisages four situations where the consideration and object of a contract would be considered to be unlawful making the contract void. a. The first is when such consideration is forbidden by law. This is obviously not applicable in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a businessman should have been aware that he is quoting a rate which is inclusive of the service tax leviable at the relevant time. 12. The third ground relied upon by the learned single Judge is that when the contract was extended, if in the extended period the ONGC refunded the tax it was bound to refund the tax for the earlier period also. We are unable to find the rationale behind this portion of the judgment. No doubt the contract was extended in 2006 and true it is, that no fresh tender was invited and the extension was out of the same NIT. However, what we fail to understand, is which is the law which prevents the parties to a contract from mutually modifying the terms of the contract. There is no law which lays down that the par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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