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TMI Blog2025 (4) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent in the arbitration. 2. In O.P.No.128 of 2024, the petitioner therein, who was the claimant in the arbitration, was unsuccessful in the arbitration, as their claim for enforcement of the statutory variation clause on account of non-release of 7% differential GST amount by the respondent subsequent to the revision of the rate of GST was rejected on the ground that the petitioner might have included 13% differential GST in their quoted price for getting the award in their favour. However, in the remaining OPs, namely, Arb.O.P.(Com.Div.) Nos.602 of 2023, 74, 423 to 429 of 2024 and 92 & 172 of 2025, the respondents in those OPs are the claimants in the arbitration. They also sought for release of 7% differential GST amount and sought for enforcement of the statutory variation clause in the contract. The Arbitral Tribunal, which had passed the respective arbitral awards in their favour, had held that the respondents, who are the claimants in those OPs, are entitled for release of 7% differential GST amount as per their arbitral claim. 3. Since the issue involved in all these OPs is one and the same, this Court is disposing of all the OPs by a common order. For the sake of conveni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, increase in GST rate amendments shall be considered for quoted HSN only, against documentary evidence, provided such increase of GST rates takes place after the date of tender opening. The benefit of reduction in GST rate shall have to be passed on to railways. 2.8 While quoting the rates, the tenderer shall pass on, by way of reduction in prices, the full input tax credit that may become available in respect of all the inputs used in the supply of final goods/or services under GST scheme and submit a declaration in their offer of the same. 3.0 Statutory Variations: 3.1 Statutory variation will be considered during the original delivery period and against documentary evidence only. However increase in taxes or duties on account of misclassification or misapprehension of law shall not be allowed. Tenderers are thus advised to include Statutory Variations Clause correctly and explicitly in their offers." 6. The respective Arbitral Tribunals which had passed the impugned arbitral awards in favour of the contractors had held that Clause 3.0 (statutory variation) of the GCC favours to the contractors for the following reasons:- (a) Statutory variation clause applies to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned ASG is not a part of the contract and therefore, the respective contractors never contractually agreed to the same. 9. The respective Arbitral Tribunals, which had passed the impugned arbitral awards, in favour of the respective contractors, had also held based on the evidence available on record that no additional ITC benefit accrued to the respective contractors due to output GST rate increase. Therefore, the respective Arbitral Tribunals held that the claim of ICF that the respective contractors were obligated to reduce prices as per Clauses 2.8 and 2.9 of the GCC read with Clause 3 of the respective POs is misplaced and untenable. The respective Arbitral Tribunals had also taken note of the fact that ICF had fully honoured the arbitral award in favour of M/s.Kineco Limited on the same issue by refunding the sum pertaining to withheld GST. 10. As per the GST scheme, the availability of ITC is always understood in the context of better availment of ITC and not better utilization of ITC. The availment and utilization constitute two different legs of ITC under the GST regime, which is evident from the following: (a) Section 16 provides the conditions for availing ITC o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir favour on account of increase in output GST rate with effect from 01.10.2009, when there was no change in the input tax regime. To disprove the Chartered Accountant certificate filed by the respective contractors before the respective Arbitral Tribunals, no iota of evidence has been produced by ICF. The Chartered Accountant was also not summoned by ICF for cross-examination. The respective Arbitral Tribunals had therefore rightly interpreted that benefit of ITC would arise only if there is change in the ITC scheme and not on account of change in output tax structure. A certificate obtained from the Chartered Accountant also clarifies that accumulated ITC is not forming part of bid price quoted by the respective contractors in the tender stage. Only based on the evidence available on record, the respective Arbitral Tribunals had come to the right conclusion that no accumulated ITC has been factored/included in the basic price offered by the respective contractors to ICF, while submitting their respective bids. 13. The entire case of ICF before the Arbitral Tribunals as well as before this Court is based on its internal JPO No.1/2019, dated 30.09.2019, which is not binding on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to revision in the rate of GST subsequent to the date of the contract, the respective contractors have been compelled to enforce the statutory variation clause. They cannot be left high and dry for no fault of theirs, as it seen from the evidence available on record, they would not have factored unexpected revision in the rate of GST from 5% to 12% while they had quoted their price through their respective bids. The respective Arbitral Tribunals has rightly considered and passed the impugned arbitral awards in favour of the respective contractors. None of the grounds raised in these petitions fall within the parameters required for setting aside the arbitral awards insofar as the arbitral awards passed in favour of the respective contractors are concerned. Therefore, the arbitration OPs filed by ICF in Arb.O.P.(Com.Div.) Nos.602 of 2023, 74, 423 to 429 of 2024 and 92 & 172 of 2025, do not deserve any merit and there is no scope for interference by this Court under Section 34 of the Act. Unless and until the impugned arbitral awards passed in favour of the respective contractors suffer from perversity and are patently illegal and have been passed without any evidence and contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;input tax credit that may become available' nor clause 2.9 which refers to 'additional input tax credit' has happened in the facts of the present case. The variation was not in respect of inputs, but, in respect of final products. Therefore, neither of the said clauses are applicable to the case on hand. 19. Even though the Arbitral Tribunal which had rejected the claim of one of the contractors, noticed the submission of the contractor that ITC is never treated as part of the cost and is charged to the profit and loss account, the Arbitral Tribunal failed to appreciate its import and purport. ITC is not to be treated as a cost and it is accounted as an asset in the books of account as laid down in the accounting standards. The Guidance Notes issued by the Institute of Chartered Accountants provides that input credit is liable to be treated as an asset and cannot be forming part of cost inventory. Similarly, the Cost Accounting Standard-4 and the Cost Accounting Standard-22 issued by the Institute of Cost Accountants of India (ICAI) provides that ITC is not to be factored in the costing of goods. 20. The Hon'ble Supreme Court in the case reported in 1999 (7) SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopt arbitrary, whimsical and unreasonable approach even in the realm of private contracts. 24. From the foregoing reasons, it is clear that the impugned arbitral award rejecting one of the contractors claim which is the subject matter in Arb.O.P.No.128 of 2024, suffers from perversity and is patently illegal for the following reasons:- (a) The impugned arbitral award suffers from infirmity on account of misapplication and misreading of the clear terms of the bid document. (b) The impugned arbitral award disregards the settled position of law regarding ITC under the GST regime. (c) The impugned arbitral award is an unreasoned award and therefore, is violative of Section 31(3) of the Act. (d) The impugned arbitral award is passed in ignorance of the vital evidence and therefore, is absolutely perverse in law. (e) The impugned arbitral award is in conflict with the public policy of India, since the arbitrator has failed to take note of the fact that the contractor involved in the said arbitral award has established beyond reasonable doubt based on the contractual provision that the said contractor is also entitled for an arbitral award in their favour in respect of increas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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