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2020 (12) TMI 944 - HC - GSTSeeking quashing of the selection of the respondent No.4 as L-1 bidder - seeking declaration that the bid of the respondent No.4 should be rejected as being non-responsive - It is the contention of the petitioner that the bid of the respondent No.4 does not comply with the tender conditions viz Clause 6.10.3, Clause 6.10.5 and 18 of the “Instructions to the Bidders” and it ought to have been rejected as non-responsive - HELD THAT:- The bidder had to indicate the exact rate of customs duty and applicable item of custom tariff under which it is covered. The amendment dated 04.01.2019 whereby a new Clause 6.10.5 was introduced, mandated that the tenderer had to state in its offer, the GST etc. whichever is applicable in India, over and above the prices being quoted. Instruction 7 of Annexure-1 prescribed that the bidders must not indicate the separate discount, if any. A perusal of the technical bid shows that the petitioner has indicated the rate of the GST which was applicable. However, in the commercial bid, respondent No.4 has indicated "000" against the column "total amount of GST/IGST" meaning thereby, that respondent No.4 was not passing on the tax element to the respondent No.1 to 3/Prasar Bharti. As rightly submitted by Mr. Sharma, learned counsel for the respondent No.1 to 3/Prasar Bharti that there is nothing in the tender which shows that it is mandatory for a bidder to pass on the tax element to respondent No.1 to 3/Prasar Bharti. It is up to the bidder to decide whether or not to pass on the tax element to the respondent No.1 to 3/Prasar Bharti. It is not mandatory in law that a dealer has to collect the tax from the purchaser and pass it on to the Government. A dealer is permitted to absorb the tax element in the price offered. The Government is only interested in getting the tax payable on the sale and is not concerned as to whether the tax element is passed on to the consumer or not. In this view of the matter, there are no anomaly in the decision making process adopted by the respondent No.1 to 3/Prasar Bharti. Since it is not necessary to pass on the tax element to the consumer and the respondent No.4 has decided to absorb the tax element in the cost of the products itself, respondent No.1 to 3/Prasar Bharti was justified in coming to the conclusion that the respondent No.4 is L-1 - there are no fault in the approach adopted by the respondents No.1 to 3/Prasar Bharti. There are no flaw in the decision making process adopted by the respondent No.2. Nor can the decision of the authority be said to be so arbitrary or irrational, that would warrant interference under Article 226 of Constitution of India - petition dismissed.
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