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2021 (11) TMI 821 - HC - GSTBurden to bear the GST amount - Arbitration award- supply of the elevators - Reimbursement of amount payable on account of GST as stated in the tax invoices raised by Kone - input tax credit - contravention of provisions of Section 171 of CGST Act, 2017 or not - jurisdiction/scope of authority of the Hon’ble Arbitral Tribunal as per the provisions of the Arbitration and Conciliation Act, 1996 - Whether GST or DVAT is applicable for the transaction between the parties under the Contract Agreement? - principles of unjust enrichment - Claimant or Respondent is entitled to interests and/or costs or not? HELD THAT:- It is apparent that the principal dispute before the Arbitral Tribunal remains unadjudicated. The issue struck by the Arbitral Tribunal was whether Kone had erred in not claiming the Input Tax Credit. Thus, the Arbitral Tribunal was required to address the question whether Kone was entitled to claim Input Tax Credit in respect of the Excise duty paid for the lifts in question prior to 30.06.2017 and if so, whether DMRC was obliged to reimburse the GST, notwithstanding, that Kone had not availed of such benefits - It is seen that the Arbitral Tribunal found both the parties wanting for not engaging in joint discussions for exploring the possibility of availing Input Tax Credit under the CGST Act. Accordingly, the Arbitral Tribunal reasoned that both the parties should equally bear the amount of Input Tax Credit that may have been possibly available. This Court is of the view that since the impugned award does not address the dispute, the impugned award in this regard is liable to be set aside. It is also relevant to refer to Section 28(2) of the A&C Act. The Arbitral Tribunal might decide “ex aequo et bono or as amiable compositeur” only if the parties have expressly authorized it to do so and not otherwise. The phrase “ex aecquo et bono” means according to equity and conscience. It empowers the arbitrator to dispense with consideration of the law and to take decisions on notions of fairness and equity. The term ‘amiable compositeur’ is a French term and means an unbiased third party who is not bound to apply strict rules of law and who may decide a dispute according to justice and fairness. In view of Section 28(2) of the A&C Act, the Arbitral Tribunal was required to decide the disputes in accordance with law and not render a decision in disregard of the same, in the interest of justice and equity. It is relevant to note that there was no dispute that Kone had, in fact, paid the GST. It is also not in dispute that DMRC was required to reimburse the GST in addition to the price as fixed. The Arbitral Tribunal had rejected DMRC’s contention that DVAT was payable. In view of the Arbitral Tribunal’s findings, the onus to establish that Kone was entitled to an Input Tax Credit in respect of the Excise duty of ₹1,27,30,042/- rested with DMRC - The Arbitral Tribunal has not rendered any decision in respect of the aforesaid issues and has in fact left the disputes in this regard undecided. Petition disposed off.
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