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TMI Blog2022 (8) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... if the Authority, which had a discretion, fails to exercise it and prefers to act under dictation of another Authority - A Writ of Mandamus or a direction in the nature thereof had been given a very wide scope in the conditions prevailing in this country and it is to be issued wherever there is a public duty and there is a failure to perform and the courts will not be bound by technicalities and its chief concern should be to reach justice to the wronged. Ambit of the Court s jurisdiction in judicial review in contractual matters - HELD THAT:- It is, undoubtedly, too late in the day to countenance the contention that the mandate of fairness in State action does not extend to the realm of contract entered into by the State - The observations made by the Court, undoubtedly, draw inspiration from factual matrix essentially involved in the culling out of the principle of level playing field, which was found to be impaired on the basis of a lack of legal certainty, as found established by the material available on record. In the course of observations in paragraph-36, this Court held that Article 19(1)(g) confers a Fundamental Right to carry on a business to a company. We would acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be discretionary in the hands of a Court ordering a Mandamus. No doubt, there may be cases where the facts are such that the court is not powerless to direct the Authority to do a thing which it considers absolutely necessary and just and legal to perform the act even when the Authority seeks shelter on the basis that what is conferred on it, is a mere discretion. The other terms of the circular clearly appear to indicate that the rate even if indicated by the appellants will not detract from the tenderers quoting the rate which is up to them. It is the rate quoted by the tenderers which governs. It is the same which will be used to carry out the ranking. The other terms also militate against a public duty with the appellants as directed. The appellant seeks to protect its best interest as a player in the commercial field. The clauses are self-evident. Make in India Order - contention of the writ petitioner is that unless the appellant found out the correct HSN Code and also the tax rate applicable for the product, the local content, as defined in the Order, could not be determined - HELD THAT:- When a successful bidder invoices the goods with the GST rate or HSN Number di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the lowest tender, then there can be no question of public interest being prejudiced. If on the other hand, the tax rate is included and the clause provides for deduction of the actual rate from the bill, then also public interest may not be affected. This is all the more reason for the tenderer specifically including the tax component indicating the correct rate of tax. This is a matter where the first appellant can consider giving appropriate instructions. Thus, the appellants have made out a clear case for our interference with the impugned Judgment. There remains, however, one aspect. It is the case of the appellants that the supplier of the goods and services, i.e., the successful tenderer is, indeed, liable to pay the GST by filing returns and carrying out self-assessment - in order to also ensure that the successful tenderer pays the tax due and to further ensure that, by not correctly quoting the GST rate, there is no tax evasion, it is considered necessary to direct that, in all cases, where a contract is awarded by the appellants, a copy of the document, by which, the contract is awarded containing all material details shall be immediately forwarded to the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent filed the writ petition praying for the following reliefs: i.a writ order or direction in the nature of mandamus commanding and directing the Respondent No.1, i.e., the Tendering Authority to clarify that the Procurement Product must be taxed @ 18% under the Relevant HSN Code, i.e., 84148030, to ensure a Uniform Bidding from the parties, and also to ensure a level playing field for all Bidders/ Suppliers; ii.a writ order or direction in the nature of mandamus commanding and directing the respondents stay the effect of the opening of the Subject Tender No. 10191001 by the Respondent No.1 and subsequent awarding of the category/rank from L1-L6 to the various parties to the Tender; iii. a writ order or direction in the nature of mandamus commanding and directing the respondents in light of the incorrect GST Rate /HSN Codes, as ought to have been correctly specified by the Bidders/ Suppliers to the Subject Tender, this Hon'ble Court may also be pleased to declare the opening of the Tender a nullity, and issued a Writ of Mandamus, directing the Tendering Authority, i.e., Respondent No.1, to invite fresh bids with the HSN Code duly specified; iv.writ order or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner is that, neither the NIT nor the bid documents, mention the relevant HSN Code applicable to the product. It has sabotaged the preservation of the level playing field. This is for the reason that while the writ petitioner honestly revealed the correct GST rate, L1 to L3 showed the GST rate at a far lower rate, viz., 5 per cent. This has distorted the tendering process. Though the writ petitioner had given, on earlier occasion, representation to the appellants about earlier instances of such unfair practices, in the subject NIT, no corrective steps were taken, thus, culminating in the writ petitioner being relegated to the position of L4. It also had the propensity to completely frustrate the Make in India Policy and deprive local manufacturers of the legitimate preference, it was otherwise entitled. 7. The appellants joined issue and filed their pleadings opposing the reliefs sought by the writ petitioner. Rejoinder and further affidavits were filed. The High Court, in the impugned Judgment, found, inter alia, as follows: It refers to Clauses 2.7.6, 2.8.6.2, besides Clause 2.9.2 of the Tender Document, which we shall advert to in detail. It was found that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process, it was the duty of the appellants 1 and 2 to clarify the HSN Code. It is further found that, mentioning of the HSN Code in the tender document itself, will resolve all disputes relating to fairness and transparency, by providing a level playing field in the true spirit of Article 19(1)(g) of the Constitution of India. It is on this reasoning that the relief, as already noted, was granted. 8. We heard Shri N. Venkataraman, the learned Additional Solicitor General (ASG), appearing on behalf of the appellant, Shri Amar Dave, learned Counsel appearing on behalf of the writ petitioner and Shri Girdhar Govind, learned Counsel, appearing on behalf of the second respondent. 9. Shri N. Venkataraman, learned ASG, would point out that the High Court has issued a Mandamus. A Writ of Mandamus can be issued, if there is a statutory duty. There is no statutory duty with the appellants to do the things, which have been directed in the impugned Judgment. He would further point out that a proper appreciation of the Clauses in the bid document, would reveal the following: The bidders, on the one hand, undoubtedly, are called upon to declare the tax rate, as applicable (Clause 2.7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the Courts in entertaining application seeking judicial review, even in contractual matters, the impugned Judgment represents a case, where the High Court has erred and overstepped its limits. He would submit that the judgments of this Court do not support the impugned Judgment of the High Court. The impugned judgment, in fact, runs counter to the law declared by this Court. He would contend that an indirect tax is ordinarily capable of being passed on. The liability, in the case of the indirect tax in question, is on the seller (the bidders). This is a liability, which it can, undoubtedly, pass on to the buyer under a contract but it may instead absorb it. On a conspectus of the terms, it is, however, clear that no liability is undertaken by the appellant to pay the tax except as provided in the terms. The liability remains the responsibility of the successful tenderer. 10. Shri Girdhar Govind, learned Counsel for the second respondent, adopts the contentions of the learned ASG and he would contend that, on facts, there is no occasion to pass the impugned Judgment. A short counter affidavit is also filed in this Court. 11. Shri Amar Dave, learned Counsel appearing on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing: 12.3 Turbo charger is specifically classified under chapter HS code 8414 80 30. It continues to remain classified under this code irrespective of its use by Railways. Therefore, it is clarified that the turbo charger is classified under heading 8414 and attracts 18% GST. He would, therefore, contend that there is no impediment, in law or on facts, for the appellants to comply with the impugned Judgment. He next drew our attention to the Public Procurement (Preference to Make in India ) Order, 2017 dated 15.06.2017. He emphasised the definition of the word local content : 'Local content' means the amount of value added in India which shall, unless otherwise prescribed by the Nodal Ministry, be the total value of the item procured (excluding net domestic indirect taxes) minus the value of Imported content in the item (including all customs duties) as a proportion of the total value, in percent. 12. The learned Counsel for the writ petitioner would also seek to support the direction of the High Court with reference to Section 168 of the Goods and Services Act, 2017. This is apart from pointing out that there is a provision for advance tax ruling con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in the exercise of its jurisdiction under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate cases, any government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. ITO [AIR 1966 SC 81: (1965) 3 SCR 536, 540] this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts to reach injustice wherever it is found and to mould ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. xxx xxx xxx 22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law , custom or even contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that a duty may have to be unravelled and the mist around it cleared before its shape is unfolded may not relieve the Court of its duty to cull out a public duty in a Statute or otherwise, if in substance, it exists. Equally, Mandamus would lie if the Authority, which had a discretion, fails to exercise it and prefers to act under dictation of another Authority. A Writ of Mandamus or a direction in the nature thereof had been given a very wide scope in the conditions prevailing in this country and it is to be issued wherever there is a public duty and there is a failure to perform and the courts will not be bound by technicalities and its chief concern should be to reach justice to the wronged. We are not dilating on or diluting other requirements, which would ordinarily include the need for making a demand unless a demand is found to be futile in circumstances, which have already been catalogued in the earlier decisions of this Court. 19. Having cleared the air with regard to the jurisdiction of the High Court in the matter of a Writ of Mandamus or a direction in the nature thereof, we may proceed next to the law relating to the ambit of the Court s jurisdiction in judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers and greater latitude is required to be conceded to the State authorities in the matter of formulating conditions of a tender document and awarding a contract. The Court also laid emphasis on public interest and the prudence in applying the principle of restraint where the action is fair and reasonable and does not smack of mala fides. It was also emphasised that the courts cannot interfere with the terms of the tender prescribed by the Government simply because it feels that some other terms in the tender would have been fair, wiser or logical. 20. This Court also laid down paragraph 46 as follows: 46. In Census Commr. v. R. Krishnamurthy [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L S) 589] , a three-Judge Bench of this Court, after noting several decisions, held that (SCC p. 809, para 33) it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved and the courts can only interfere if the policy framed is absolutely cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of level playing field embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of equality should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of level playing field . According to Lord Goldsmith, commitment to the rule of law is the heart of parliamentary democracy. One of the important elements of the rule of law is legal certainty. Article 14 applies to government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of reasonableness , then such an act or decision would be unconstitutional. xxx xxx xxx 38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This legal certainty is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of level playing field . 22. It becomes, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the contract. Unless such actions are found to be clearly arbitrary, illegal, malafide or contrary to any Statute, the courts would be loathe to fetter even the limited area of freedom of the State has to take decisions which are fair in cases relating to contractual matters. 24. With these observations, the time is ripe to consider the facts. THE RELEVANT CLAUSES 25. The Clauses in the Tender Document, which engaged the attention of the High Court are as follows. Clause 2.7.6 reads as follows: All the bidders/tenderers while quoting the rates should clearly indicate the rate of applicable duties and taxes included in the prices quoted by them. Any variation in tax structure/rate due to introduction of GST, shall be dealt with under Statutory Variation Clause. 26. The next provision to be borne in mind is Clause 2.8.6.2: The purchaser will not be responsible for payment of taxes and duties paid by the supplier under misapprehensions of law or misclassification. 27. Finally, we must advert to Clause 2.9.2: Tenderers must familiarize themselves about all the applicable taxes duties, and in case the same is not indicated explicitly in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted rate. No claim on account of statutory variation shall be admissible on account of misclassification by the supplier/contractor. 31. The High Court, in the impugned Judgment, has correctly noticed the contours of the jurisdiction of courts in the realm of judicial review of action of State in matters relating to contracts. It is correctly found that the Court cannot examine the details of the terms of the contract. The Judgment is apparently entirely premised on the observations made by this Court in Reliance Energy Ltd. (supra). It has proceeded to support its intervention in the Writ Petition, placing reliance on paragraphs 36 and 38 which we have already referred to above. Thereafter it poses the question, as to whether the classification of the HSN Code is integral to the tendering process and answers it by holding that it is integral and then founds its interference in the manner done by finding that fair competition or level playing field would be denied to each bidder as someone may bag the tender by quoting the lesser rate of GST, creating a substantial difference in the total price. Undoubtedly, selection is based on aggregating the base price with the tax (GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantially similar provisions have been passed. 34. Section 9 of the Central Act provides for levy of the tax called the Central Goods and Services Tax on all intra-state supply of goods and services, except as provided therein. Section 9(3) provides that the Government, may, on the recommendation of the Council, notify categories of supply of goods or services or both, where the tax is to be levied, assessed and recovered on the reverse charge basis. Section 22 provides that every supplier is duty-bound to be registered under the Act, in the State or the Union Territory, other than special category States, from where, he makes taxable supply of goods and services, subject to a certain limit in regard to the turnover. This is again made subject to the provisions of Section 24, which provides for compulsory registration. Under Section 37, there is duty to furnish return. Section 59 of the Central Act provides that every registered person shall self-assess the taxes payable under the Act and furnish a Tax Return for each tax period, as specified in Section 39. Section 60 provides for provisional assessment. There are elaborate provisions relating to assessment. Chapter 17 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions with the approval of the Board. At this juncture, we may notice that the Uttar Pradesh Goods and Services Act, 2017 essentially mirrors the Central Act. No doubt, the corresponding provision of Section 168 in the State Act (Uttar Pradesh) reads as follows: Section 168. Power to issue instructions or directions- The Commissioner may, if he considers it necessary or expedient so to do for the purpose of uniformity in the implementation of this Act, issue such orders, instructions or directions to the State tax officers as it may deem fit, and thereupon all such officers and all other persons employed in the implementation of this Act shall observe and follow such orders, instructions or directions. 35. It is clear that the GST, be it under the Central Act and the State Goods and Services Act, are indirect taxes imposed on the supply of goods and services or both. Except in a case falling under the reverse tax mechanism, it is the supplier of the goods and services, who would remain liable to pay the tax. The supplier is obliged to file the returns which includes monthly returns and annual return. He is to self-assess and pay the tax in accordance with the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly quoted a rate which is lower than the rate, which it was liable to pay in law. The quoting of the rate, in other words, by the tenderer, within the meaning of Clause 2.7.6, would bind the tenderer and he would not be heard to say that he had arrived at the rate and made the bid and which stood accepted, on the basis of misapprehension of law or misclassification. On the one hand, Clause 2.7.6 gives the impression that all the bidders/tenderers should clearly indicate the rate of the applicable duty and tax in the price quoted by them. We must however read it in conjunction with Clause 2.9.2. The said Clause provides for a clear duty with the tenderer to acquaint themselves with all the applicable taxes and duties. It further provides that in a case, where the taxes and duties are not indicated explicitly in their offer, the same will be considered, which means, the offer will be considered as inclusive. The meaning of this Clause can only be that while ordinarily the tenderer would and should include in the tender not only the base price but the taxes and the rate of tax and arrive at the global sum at which he is making the bid, Clause 2.9.2 provides for the contingency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reasonable in his understanding and circumstances. This is a matter to be left to the commercial expediency of the bidder. Now, when the matter is viewed from the perspective of the purchaser, the purchaser seeks to buy goods and services or both by awarding the contract to the lowest bidder. When the purchaser happens to be the State, it would be not fair or reasonable to not expect it to accept the bid of the lowest bidder unless it decides to not accept the bid of the lowest bidder for reasons which are fair and legal. No doubt, it is not the law that the Government is bound to accept the lowest bid. It is always open to the Government for relevant, valid and fair reasons, to not accept even the lowest bid. 39. The terms of the bid cannot be said to be afflicted with the vice of legal uncertainty. This is not a case where the principle as enunciated in Reliance Energy (supra) would be apposite. It is elementary that principles enunciated in the facts of a case are not be likened to Euclid s Theorem, having an inexorable operation divorced from the facts which arise for consideration. In this case, the interplay of the three Clauses, which we have referred to, and its conjoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraphs 37 and 39. It reads as under: 37. As far as the submission of shifting of tax liability is concerned, as observed in para 9 of Laghu Udyog Bharati [(1999) 6 SCC 418], service tax is an indirect tax, and it is possible that it may be passed on. Therefore, an assessee can certainly enter into a contract to shift its liability of service tax. 39. The provisions concerning service tax are relevant only as between the appellant as an assessee under the statute and the tax authorities. This statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between the two of them. There was nothing in law to prevent the appellant from entering into an agreement with the respondent handling contractor that the burden of any tax arising out of obligations of the respondent under the contract would be borne by the respondent. It was further found that the clause properly read could not support the case of the respondent. 42. It is the contention of the appellants herein that even though GST is an indirect tax, it does not mean that the tax should be passed on to the buyer. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;, WPO/Patna, COFMOW/N. Delhi, RWP/Bela Sub: Evaluation of offers under GST Regime 1. After implementation of GST Act, various representations have been received from the field units and vendors, regarding evaluation of offers under GST regime mentioning that different vendors are quoting different GST rates for same item in same tender. The representations have been examined and the following instructions are issued. 2. Purchaser may Incorporate HSN number in the tender document However, it shall be the responsibility of the bidders to quote correct HSN number and corresponding GST rate. 3. Where however, bidders quote different GST-rates in offers, during transition phase, following conditions may be incorporated as part of tender conditions: I. The offers shall be evaluated based on the GST rate as quoted by each bidder and same will be used for determining the inter se ranking. While submitting offer, it shall be the responsibility of the bidder to ensure that they quote correct GST rate and HSN number. II. Purchaser shall not be responsible for any misclassification, of HSN number or incorrect GST rate If quoted by the bidder. III. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic duty which can be enforced by way of Mandamus. While it is true that in a given case, when a Public Authority is vested with a discretionary power under a Statute, it can be directed to exercise a discretion, it may not be legal to direct even a statutory functionary to exercise the discretion in a particular manner. The very idea of a discretionary power would suffer annihilation, if it ceases to be discretionary in the hands of a Court ordering a Mandamus. No doubt, there may be cases where the facts are such that the court is not powerless to direct the Authority to do a thing which it considers absolutely necessary and just and legal to perform the act even when the Authority seeks shelter on the basis that what is conferred on it, is a mere discretion. The other terms of the circular clearly appear to indicate that the rate even if indicated by the appellants will not detract from the tenderers quoting the rate which is up to them. It is the rate quoted by the tenderers which governs. It is the same which will be used to carry out the ranking. The other terms also militate against a public duty with the appellants as directed. The appellant seeks to protect its best inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Amar Dave, learned Counsel for the writ petitioner would contend that the Section 168 of the Central Act can be understood as the fountainhead of statutory power, using which, the appellants can comply with the impugned direction. The power is vested with the Board, it is pointed out. The appellants have floated a global tender. It means that the bidders can be located at any place. The Officers, who would be the Jurisdictional Officers of the bidders, may not even be known to the appellant. It is difficult to accept the case of the writ petitioner that appellants must seek the clarification contemplated in the impugned Judgment by resorting to Section 168 of the Central Act or the State Act. Section 168 does not expressly provide for right to any person to seek a direction as contemplated therein. Further, we may notice that there is an express power provided in the provisions relating to advance ruling. There is an elaborate procedure to be followed and even right of appeal. At any rate, power under Section 168 is essentially meant for officers to seek orders, instructions or directions besides the Board itself on its own passing orders, in the interest of maintaining unif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further contended that the Writ Petition was filed with delay. Second respondent even alleges collusion between the appellants and the writ petitioner and contends that the case is meant only to defeat the right of L1. The second respondent (L1) would contend that the appeal deserves to be allowed. 52. In this case, the second respondent has been found to be L1 for 593 pieces of turbo wheel impeller balance assembly. We see from the Counter Affidavit, filed in the High Court, by the appellants, that it was, inter alia, contended that the tendered product is Turbo Wheel Impeller Assembly and not Turbo Super Charger. In the Rejoinder Affidavit, filed by the writ petitioner, we noticed at page-764 onwards of the SLP Paper Book that the writ petitioner has joined issue and contended that the stand of the appellants in the Counter Affidavit was without appreciating that the product is the most integral part of Turbo Charger, without which, the Turbo Charger is rendered commercially redundant. The end item is a Turbo Charger, which houses the Impeller Wheel Assembly and is not an associated product but rather a component of Turbo Charger itself. We further notice the specific s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd local content excludes the domestic indirect taxes . In this connection, we may also notice the definition of L1 . L1 has been defined as meaning the lowest tender or the lowest quotation, inter alia, as adjudged in the valuation process as per the tender or other procurement solicitation. Thus, L1 is, undoubtedly, to be determined, based on the terms of the tender. 55. In the definition of the word local content , it may be true that, when the value of the imported content in the item is calculated, all the customs duties must be included. The claim of the writ petitioner is that, when the HSN Code, for the purpose of calculating the custom duty, is to be found out for determining the local content, then, there can be no reason to not include the HSN Code for the item for the purpose of GST. We are unable to agree. Proceeding on the basis, that for determining the local content, the HSN Code of the item, for the purpose of custom duty, is to be found, that may not justify the writ petitioner from contending that the HSN Code for the GST must be included in the tender conditions. This is for the reason that, apart from the absence of any duty with the appellants to ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the purchaser of goods and services (the appellants) can be compelled to ascertain the correct HSN Code. The direction by the High Court is to clarify with the Tax Authorities. We have noticed that there is no provision for clarification, as such. The only provision which clearly deals with classification is provision for advance ruling. We have noticed the nature of the procedure in the Chapter dealing with advance ruling. We would have to assume that the appellants will be compelled to go through the said cumbersome procedure and, at the end of it, proclaim the HSN Code. The appellants purchase several goods and services. Each time, the appellants purchase goods and services or both, if the impugned Order is to be sustained, the appellants would have to resort to the prolonged proceedings in a matter where the appellant had no liability to pay the tax. All of this is premised on the writ petitioner s quest for the perfect level playing field. That apart, we have also noticed, how the interests of the appellant, which it pursues as an actor in the commercial world, but wearing the mantle of State obliging it to act fairly, would not empower the Court in judicial review to mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefits and preferential treatment extended to Micro and Small Enterprises (MSEs). If so, the necessary documents as per special conditions for MSEs for claiming benefits and preferential treatment extended to MSEs to be attached. C. In case the successful tenderer is not liable to be registered under CGST/ IGST/ UTGST/ SGST Act, the railway shall deduct the applicable GST from his/their bills under Reverse Charge Mechanism (RCM) and deposit the same to the concerned tax authority. D. Performance statement of orders received and supplies made for last three years for subject item is must for all tenderers including approved sources. 59. Having regard to the terms, we cannot cull out a public duty to provide for the correct HSN code. Therefore, we cannot support the impugned judgment based on the issuance of tenders as contended. REVERSE CHARGE MECHANISM 60. We have noticed that the appellants have contended that the liability to pay the GST, an indirect tax, lies with supplier of goods and services. The exception which is admitted by the appellants is in cases covered under Section 9(3) of the GST Act which provides for reverse charge mechanism. Under the reverse cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est may not be affected. This is all the more reason for the tenderer specifically including the tax component indicating the correct rate of tax. This is a matter where the first appellant can consider giving appropriate instructions. 61. The upshot of the above discussion is that, we find that the appellants have made out a clear case for our interference with the impugned Judgment. There remains, however, one aspect. It is the case of the appellants that the supplier of the goods and services, i.e., the successful tenderer is, indeed, liable to pay the GST by filing returns and carrying out self-assessment. There is also no dispute that it is the Officer, dealing with the supplier, who would have jurisdiction in the matter. In the said circumstances, in order to also ensure that the successful tenderer pays the tax due and to further ensure that, by not correctly quoting the GST rate, there is no tax evasion, we would think it is necessary to direct that, in all cases, where a contract is awarded by the appellants, a copy of the document, by which, the contract is awarded containing all material details shall be immediately forwarded to the concerned jurisdictional Officer. I ..... 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