Page 65 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] SHANTI ENGGICON PVT. LTD. v. NTPC LTD. 151
tioned, it cannot have any bearing with regard to the evaluation of the bid, more
so when power is vested upon the awarder of the contract to evaluate the bid in
terms of clause 23.3, read with clause 23.2.3 of the ITB. The case projected by the
Petitioner has to be analysed in the above background.
8. As mentioned already, by virtue of the different rates stipulated as
per Annexure P/4, dated. 22-8-2017 (amended rate) providing for a lower rate of
tax at 12% for construction of roads having public purpose (Section-B) of Annex-
ure P/2 NIT and higher rate of tax of 18% in respect of construction of roads for
internal/private purpose (Section-C) of Annexure P/2 NIT, and further since the
terms of the tender clearly stipulated that quoting of the bid amount was to be by
excluding the GST and further that satisfaction of the GST was always to be the
liability of the awarder/employer, the petitioner quoted the bid at
Rs. 18,24,58,353.06 and the column for mentioning the rate of GST was left blank.
On submitting the tender as above, the Petitioner was served with Annexure
P/5, dated 27-12-2019 pointing out that the petitioner, having not mentioned the
rate of GST, the quote of Rs. 18,24,58,353.06 was treated as inclusive of GST and
hence, deducting the GST, the quote was brought down to 15,46,25,723/-; which
was noted as below 36.43% of the estimated rate of Rs. 24,32,45,371.32 and hence
was branded as ‘Abnormally Low Rate’. By virtue of the specific instructions
given to the bidders (ITB), the Petitioner was asked to furnish additional perfor-
mance security undertaking for providing additional performance security to the
tune of Rs. 2,21,54,912/- if the work was awarded to the Petitioner. On receipt of
the said communication, the Petitioner submitted Annexure P/7 reply dated
8-1-2020 pointing out that the bid quoted by the Petitioner excluding GST was
Rs. 18,24,58,353.06 besides such other vital particulars. However, without any
regard to the said reply, the Petitioner was served with Annexure P/8, dated
9-1-2020 virtually threatening the Petitioner of coercive action and forcing to
withdraw the bid with an intent to forfeit the EMD and to blacklist the petitioner
from participating in the future transactions. This made the petitioner to ap-
proach this Court challenging Annexure P/8 and the course of action sought to
be pursued by the respondents.
9. When the matter came up for consideration before this Court on
15-1-2020, urgent notice was issued to the respondents, also granting interim or-
der of status quo with regard to the forfeiture of the EMD till the next date of
hearing, which came to be extended further. On receipt of notice, the respond-
ents have entered appearance and filed reply, seeking to sustain their action in
issuing Annexure P/8, for the reason that the petitioner had failed to quote the
rate of GST despite the clear stipulation in this regard. In the said circumstance,
the GST had to be carved out from the rate quoted, thus reducing the quote from
Rs. 18,24,58,353.06 to Rs. 15,46,25,723/- which was far below the estimated price
(abnormally lower rate), leading to such other consequences as mentioned there-
in. It is also contended that the writ petition is not maintainable by virtue of lack
of territorial jurisdiction, as the tender has been issued from Ranchi in the State
of Jharkhand. The Respondents further contend that the stipulations in the ten-
der have been correctly understood by the other participants who have submit-
ted their tenders quoting the GST separately and that the writ petition is only
liable to be dismissed as devoid of any merit at all.
10. The petitioner has filed a rejoinder virtually reiterating the conten-
tions raised in the writ petition and seeking to controvert the contents of the re-
turn filed by the respondents.
GST LAW TIMES  11th June 2020  65