Page 63 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] SHANTI ENGGICON PVT. LTD. v. NTPC LTD. 149
to duties/taxes payable open for respondents to have ‘re-evaluated the bid’ in
terms of clause 23.3 read with clause 23.2.3 of ITB to work out actual quote and
to identify bidder - Proceedings sought to be pursued hastily without consid-
ering objection/explanation raised by petitioner - Order/proceedings dated 9-1-
2020 not sustainable and set aside - Open to respondents to re-evaluate bid
submitted by all participants including petitioner and to work out actual bid
amount - Article 226 of Constitution of India. [paras 16, 17]
Petition allowed
CASES CITED
A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies — (1989) 2 SCC 163 — Referred .......................... [Paras 13, 14]
C.A. George v. State of Kerala — AIR Online 2019 Ker 713 — Referred .......................................... [Para 15]
Election Commission of India v. Saka Venkata Rao — AIR 1953 SC 210 — Referred .................... [Para 14]
Millipore India Private Ltd. v. Govt. of India — AIR 2002 Karnataka 280 — Referred ................. [Para 14]
REPRESENTED BY : Shri Vikram Sharma, Advocate, for the Petitioner.
Shri B.D. Guru, Advocate, for the Respondent.
[Judgment per : P.R. Ramachandra Menon, C.J. (CAV)]. - The arbitrary
action on the part of the Respondents threatening and forcing the petitioner vide
Annexure P/8, dated 9-1-2020 to withdraw the bid, despite rating the petitioner
as L-1, with an attempt to forfeit the Earnest Money Deposit (for short ‘the EMD’)
and to blacklist the Petitioner from participating in future Tenders for not having
separately mentioned the GST rate in the tender, however taking a differential
treatment in the case of the remaining three bidders and to have it awarded to
the party of their choice, is put to challenge in this writ petition.
2. Annexure P/2 Notice Inviting Tender (for short ‘the NIT’) was is-
sued by the 2nd Respondent on 9-9-2019 for Talaipalli Coal Mining Project situ-
ated in the Raigarh District of the State of Chhattisgarh, which is under the con-
trol of the 3rd Respondent. The tender was floated for construction of the road
for Coal Evacuation (Section B) and road for Township approach for Talaipalli
Coal Mining Project (Section C). The purpose of construction of the above two
roads was quite different insofar as Section B road was to be used for coal evacua-
tion which will be located outside the Township area and can be used by the
general public as well, whereas Section C road was to be constructed inside the
township area, which was strictly to be a private road. As a matter of fact, when
the Goods and Services Tax Act, 2017 was introduced from July, 2017, the rate of
taxes payable, it being a work contract, was fixed as 18% (9% CGST + 9% SGST).
Subsequently, as per Annexure P/4, dated 22-8-2017, pursuant to the meeting of
the GST Council, the rate was modified, segregating the rate of tax with reference
to the purpose of the road by virtue of which construction of Section B road; was
to attract a tax liability of only 12% (6% CGST + 6% SGST), whereas Section C
road which was for internal/township purpose, it was to carry a higher rate of
18% (9% CGST + 9% SGST).
3. As mentioned above, when Annexure P/2 NIT was issued on 9-9-
2019, Annexure P/4 modified rate of GST had already been brought into force
from 22-8-2017, but in the relevant column of the form contained in the web por-
tal, there was only one column for mentioning the GST rate. The tender condi-
tions specifically stipulated that the Probable Amount of Contract (for short ‘the
PAC’) was Rs. 24,32,45,371.37 and that the rate had to be quoted by the bidder by
“percentage” - higher or lower, including all taxes/duties.
GST LAW TIMES  11th June 2020  63