TMI Blog2009 (2) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant could not constitute evidence to establish payment of the amount towards excise duty. Appeal dismissed. As noticed hereinabove, the appellant could recover (upto a maximum of 10% excise duty on the basic price which was firm and final) only that much amount towards excise duty as it had actually incurred. No material, it appears, was produced either before the Arbitrator, or before the learned single Judge to show that the amount of ₹ 3,10,865/- was, as a matter of fact incurred by the appellant towards excise duty, but not paid by the respondent. Therefore, there is not only a contradiction in the award, as rightly held by the learned single Judge, the award is also contrary to the express terms of the contract. The same has deservedly been set aside. - 2 of 2009 - - - Dated:- 2-2-2009 - Mukul Mudgal and Vipin Sanghi, JJ. [Judgment per : Vipin Sanghi, (J)]. - This appeal is directed against the judgment dated 3-10-2008 passed by a learned single judge of this Court in O.M.P No. 211/2001. By the impugned judgment, the learned single Judge has allowed the objections preferred by the respondent UOI against the Arbitrator's award dated 26-3-2001, made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 10% towards excise duty, as according to the appellant, the payment of 10% towards excise duty was a "firm" and "fixed" contract. Merely because the appellant had obtained excise duty exemption, according to the appellant, the respondent could not seek to derive the benefit of that exemption and the appellant was entitled to retain the said benefit for itself. The appellant, consequently, sought the upward revision of the contract price by 10%. Upon learning of the exemption obtained by the appellant from payment of excise duty, the respondent vide communication dated 4-6-1997 amended the rate contract so as to provide for "nil excise duty". The respondent, therefore, did not agree to the appellant charging an additional 10% towards price of the goods. On 18-6-1997, another amendment to the rate contract was issued whereby excise duty from 1-3-1997 to 31-3-1997 was made payable at 8% on basic price and w.e.f. 1-4-1987 the excise duty was stated to be "nil". 6. In paragraph 8 of the claim petition filed before the Arbitrator, the appellant stated "it be further added that the claimant is entitled for excise duty benefit due to non availability of Modvat benefit and therefore re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the correspondence and the claim petition show that it was the respondent's own case that since it was not billing for the excise duty at 10%, which the petitioner had agreed to pay, the contract price should be increased by 10%. It is thus obvious that no such bills would have been raised. The counsel for the respondent No. 1 has, of course, argued that the matter was not pleaded and considered before the arbitrator as before this court. It is urged that the only plea before the arbitrator was that the petitioner was not liable for excise duty owing to the amendment to the rate contract and the arbitrator has allowed the claim for the reason of the said amendment having not been consented to by the respondent. Even if that be so, under the un-amended agreement, the respondent No. 1 was to become entitled to excise duty only if paid to the excise department and not otherwise The respondent having neither pleaded nor proved any payment of excise duty to the excise department, was under the terms of the agreement not entitled to the excise duty and I thus find the award to be contrary to the terms of the agreement and liable to be set aside on this ground as well. The counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad the amount claimed been in fact paid towards excise duty, there would have been no difficulty in establishing the same by producing challans/receipts of payment. Mere self serving statements showing computation of the amount claimed, relied upon by the appellant could not constitute evidence to establish payment of the amount towards excise duty. 9. For the aforesaid reasons, we find no merit in this appeal and we accordingly reject the same. As noticed hereinabove, the only interpretation to which the aforesaid two clauses are open, is that the appellant could recover (upto a maximum of 10% excise duty on the basic price which was firm and final) only that much amount towards excise duty as it had actually incurred. No material, it appears, was produced either before the Arbitrator, or before the learned single Judge to show that the amount of Rs. 3,10,865/- was, as a matter of fact incurred by the appellant towards excise duty, but not paid by the respondent. Therefore, there is not only a contradiction in the award, as rightly held by the learned single Judge, the award is also contrary to the express terms of the contract. The same has deservedly been set aside. 10. Befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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