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TMI Blog2024 (10) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... ors the question of correctness of the classification adopted, this, in itself, would have been sufficient to allow the respondent s claim on this account. There are no reason to interfere with the manner in which the learned arbitrator has dealt with the documentary evidence placed before him. The assessment of evidence, and weight to be attached thereto, are ordinarily matters within the domain of the arbitral tribunal, which in the present case, has come to entirely reasonable and justifiable conclusions. In the present case, the underlying legal argument was admittedly raised and contested during the course of hearing. The judgments cited in the impugned award, elaborate and elucidate upon the argument being analyzed in the award, but do not per se go to the root of the award. An award is liable to be interfered with, only if it contains errors which go to the root of the matter - Two caveats may, however, be placed. The first is that factual material must be disclosed to all parties, and the second is that it would remain open to the parties to assail the arbitral tribunal s reliance upon the authorities and the conclusions derived therefrom, within the parameters provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is liable to pay excise duty at the rate of 12.36%. The respondent wrote several letters to the petitioner bringing this on record, and also requesting issuance of amended POs. This was not done, but the petitioner nonetheless paid the respondent s invoices only partially. 5. In addition to the difference in excise duty on this account, the respondent also claimed difference in central sales tax and other deductions made by the petitioner. 6. The respondent, therefore, raised the following claims in arbitration: (i) Claim of Rs.67,26,437/- against refund of deductions made on account of excise duty, central sales tax, entry tax and testing charges in respect of Package A; (ii) Claim of Rs.1,85,70,315/- against refund of deductions made on account of excise duty, central sales tax, entry tax and testing charges in respect of Package F; (iii) Claim of Rs.9,97,58,113/- being interest at the rate of 18% till 29.02.2020; and (iv) Claim of Rs.26,54,043/- towards interest on excess margin money deposited with the bank for issuance of PBG, extra commission paid to the bank for issuance of PBG and interest on extra commission paid to bank for the issuance of PBG. 7. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the impugned award, the learned arbitrator has referred to authorities, including a judgment of the Supreme Court in Forward Construction Co. v. Prabhat Mandal (Regd.) (1986) 1 SCC 100., which are distinguishable from the facts of the present case, having been rendered in an entirely different context. He argues that the petitioner did not have an opportunity to distinguish the said cases before the learned arbitrator, as the cases were neither cited by the respondent in argument, nor put to the parties by the learned arbitrator. 13. In support of these contentions, Mr. Kumar relies upon certain authorities, which are dealt with at the appropriate place below. C. Analysis 14. The arguments advanced by Mr. Kumar, require determination of the following three issues: a. Whether the disputes between the parties were arbitrable? b. Whether the respondent s claims were on account of a change in taxes, within the meaning of Clause III.12.2 of the NIT, or whether the same constituted a revision in the POs? c. Whether the respondent was entitled, on facts, to recover the price alongwith excise duty at the rate mentioned in the invoices raised by it? 15. On the first question, i.e. whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision on this aspect turns on an interpretation of Clause III.12 of the NIT, which provides as follows: III.12 PRICES III.12.1. Prices charged by the supplier for goods delivered and services performed under the contract shall not be higher than the prices quoted by the Supplier in its Bid except for variation caused by change in taxes/ duties as specified in Clause-12.2 mentioned below. III.12.2 For changes in taxes/ duties during the scheduled delivery period, the unit price shall be regulated as under: (a) Prices will be fixed at the time of issue of purchase order as per taxes and statutory duties applicable at the time. (b) In case of reduction of taxes and other statutory duties during the scheduled delivery period, purchaser shall take the benefit of decrease in these taxes/ duties for the supplies made from the date of enactment of revised duties/ taxes. (c) In case of increase in duties/ taxes during the scheduled delivery period, the purchaser shall revise the prices as per new duties/ taxes for the supplies, to be made during the remaining delivery period as per terms and conditions of the purchase order. III.12.3 Any increase in taxes and other statutory during/ levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsulated (including enamelled or anodised) wire, cable (including co-axial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors xxxx xxxx xxxx Head 9001 Optical fibers and optical fiber bundles; optical fiber cables other than those of heading 8544; sheets and plates of polarising material; lenses (including contact lenses), prisms, mirrors and other optical elements, of any material, unmounted, other than such elements of glass not optically worked. 23. On the basis of the technical specification provided in the POs, and relying upon the judgment of the Authority for Advance Rulings, New Delhi, in Re: Alcatel India Ltd. 2006 SCC OnLine AAR-IT 26., the learned arbitrator found that the proper classification of the goods is under Tariff Head No. 90011000. 24. Mr. Kumar submitted that the learned arbitrator had effectively given a declaration as to the proper classification of the goods for excise purposes, for which there was neither any prayer in the statement of claims, nor any jurisdiction vested in the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent, the learned arbitrator found no grounds to disbelieve its contents. 27. The above analysis in the impugned award also does not suffer from arbitrariness or perversity, so as to justify interference under Section 34 of the Act. The respondent had anticipated the controversy, and kept the petitioner notified of the possibility of additional excise duty becoming payable on the goods. The evidence on record, including the certificate dated 30.09.2015, was sufficient to support the conclusion that the revenue authorities had, in fact, recovered excise duty at the rate of 12.36%, in respect of the goods in question. Even de hors the question of correctness of the classification adopted, this, in itself, would have been sufficient to allow the respondent s claim on this account. I do not find any reason to interfere with the manner in which the learned arbitrator has dealt with the documentary evidence placed before him. The assessment of evidence, and weight to be attached thereto, are ordinarily matters within the domain of the arbitral tribunal, which in the present case, has come to entirely reasonable and justifiable conclusions. 28. The only remaining ground of cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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