TMI Blog2016 (2) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to pay the tax may have been on the FCI under law but while quoting the rate a contractor can very clearly state what is the rate being quoted by him. This Court can take notice of the fact that in many such tenders or contracts where sales tax etc. are to be taken into consideration, the contractors are asked to quote rates either inclusive of tax or exclusive of tax. If they are inclusive of tax then the contractor is liable to pay all the taxes therein. - No merit in the writ petition of the appellant - Decided against the appellant. - WP(C) NO.269 of 2010 along with WP(C) NO.270 of 2010 along with WP(C) NO.284 of 2010 along With WP(C) NO.421 of 2010 - - - Dated:- 30-6-2015 - MR. DEEPAK GUPTA, CJ AND MR. S C DAS, J For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use in view of the amendment to the Service Tax Act made by the Finance Act of 2000 in relation to service providers and their agents providing goods transport services, the assessee is now the service receiver and this amendment is effective from 1997. Therefore, there can be no manner of doubt that the assessee for all intention and purposes would be the Food Corporation of India. 6. We may only refer to the following observations of the Apex Court in Gujrat Ambuja Cement Vs. Union of India, (2005) 4 SCC 214 which read as follows : 20. As we read the decision in Laghu Udhyog Bharati, the basis was the patent conflict between Sections 65, 66 , 68(1) and 71 of the Finance Act, 1994 as amended in 1997 on the one hand and Rules 2(1) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made liable to pay the service tax. 22. As we have said, Rule 2(1)(d) (xii) and (xvii) had been held to be illegal in Laghu Udhyog Bharati only because the charging provisions of the Act provided otherwise. Now that the charging section itself has been amended so as to make the provisions of the Act and the Rules compatible, the criticism of the earlier law upheld by this Court can no longer be availed of. There is thus no question of the Finance Act, 2000 overruling the decision of this Court in Laghu Udhyog Bharati as the law itself has been changed. A legislature is competent to remove infirmities retrospectively and make any imposition of tax declared invalid, valid. This has been the uniform approach of this Court. Such exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d held that in view of the amendment of the law it is the service receiver who is liable to pay the tax. However, in Rashtriya Ispat Nigam s case the Apex Court went on to hold that the parties by agreement have agreed that the contractor shall bear all taxes, duties and other liabilities. Clause 9.3 which was the subject matter of the decision in the said case read as follows : 9.3. The Contractor shall bear and pay all taxes, duties and other liabilities in connection with discharge of his obligations under this order. Any income tax or any other taxes or duties which the company may be required by law to deduct shall be deducted at source and the same shall be paid to the Tax Authorities for the account of the Contractor and the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant from entering into an agreement with the respondent handling contractor that the burden of any tax arising out of obligations of the respondent under the contract would be borne by the respondent. 27. If this clause was to be read as meaning that the respondent would be liable only to honour his own tax liabilities, and not the liabilities arising out of the obligations under the contract, there was no need to make such a provision in a bilateral commercial document executed by the parties, since the respondent would be otherwise also liable for the same. In Bank of India (supra) one party viz. the bank was responsible for the formulation of the Voluntary Retirement Scheme, and the employees had only to decide whether to opt for it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to quote the rates inclusive of all taxes, duties, cesses etc. In case rates are quoted in a manner other than mentioned above the tenders are liable to be ignored. The tenderers should not incorporate any condition in the tenders as conditions of tenders are likely to be ignored. Dealing with this clause the contention of Mr. Somik Deb learned counsel for the petitioner is that what this clause contemplates is that the liability which is that of the contractor shall be borne by him and the liability which is that of the Corporation shall be borne by it. He, therefore, contends that since now the law is clear that the liability to pay the service tax is of the FCI, it is the FCI which had to pay the service tax and the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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