Commissioner Directorate Of Logistics vs M/S Almighty Techserv

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020 (@SPECIAL LEAVE PETITION (C) DIARY NO. 1321 OF 2020)

Commissioner, Directorate of Logistics …Petitioner(s)

Versus

M/s. Almighty Techserv, Proprietor Mr. Manish Dalmia & Anr. …Respondents(s)

ORDER

Deepak Gupta, J.

Delay condoned.

2. The Central Board of Excise and Customs (CBEC), through

the Directorate of Logistics floated an e­tender for supply,

installation and maintenance of 74 videoscopes at various field Signature Not Verified

formations of CBEC. Various bids were received. The tender was Digitally signed by MADHU BALA Date: 2020.02.28 16:14:42 IST Reason:

awarded in favour of M/s. ASVA Power Systems India Pvt. Ltd.

1 The award of this tender was challenged by the unsuccessful

bidder M/s. Almighty Techserv on various counts. The High

Court vide impugned judgment has held that the award of tender

in favour of M/s. ASVA Power Systems India Pvt. Ltd. is illegal

and according to the calculation of the High Court, the tender of

the writ petitioner should have been treated as the lowest tender

and the loss caused to the Government is roughly about 63

lakhs. The order of the High Court has been challenged by the

Department as well as by M/s. ASVA Power Systems India Pvt.

Ltd.

3. At this stage, we are only dealing with the issue of interim

relief. Mr. Aman Lekhi, learned Additional Solicitor General

appearing for the Department urges that 74 videoscopes are

urgently required by the Department. He submits that the

judgment of the High Court is wholly incorrect. He also submits

that since these equipments are urgently required by the

Department and have already been imported into India and are

ready for installation, the order of the High Court be stayed.

4. Shri K.V. Viswanathan, learned senior counsel appearing for

M/s. ASVA Power Systems India Pvt. Ltd. has not only

2 supported the arguments of Mr. Lekhi, but has also highlighted

the fact that the tender of his client was the lowest tender since it

was inclusive of all customs charges and that the High Court

erred in holding that the landing charges could not have been

added to the bid price of M/s. Almighty Techserv.

5. On the other hand, Mr. Gopal Sankaranarayanan, learned

senior counsel submits that the judgment of the High Court is

absolutely correct. There is no error in the same. He also

submits that the successful bidder has made various false

statements in the High Court from time to time and therefore, is

not entitled to any discretionary relief.

6. At this stage, we are not going into the merits of the case

which will require detailed hearing. We, however, cannot lose

sight of the fact that the tender in question was floated in the

year 2018. The High Court has cancelled the tender and ordered

re­tender. The tender has not been awarded in favour of M/s.

Almighty Techserv. Fresh tendering may lead to long delay in

procuring all these videoscopes which are urgently required by

customs authority to scan the imported goods. If a fresh tender

for supply of videoscopes is floated we are not even sure whether

3 the Government will gain or lose in monetary terms. In our view,

public interest requires that the Government be permitted to

procure the videoscopes from M/s. ASVA Power Systems India

Pvt. Ltd. and we permit the Department to do so. However, we

direct that out of the payment to be made to M/s. ASVA Power

Systems India Pvt. Ltd., a sum of Rs.63 lakhs shall be deducted

and orders with regard to that amount shall be passed after

hearing the parties in detail at the time of final hearing. In case

M/s. ASVA Power Systems India Pvt. Ltd., insists on full payment

at this stage then there shall be no interim stay and the

Department will have to float fresh tender.

7. The interim relief is granted in the aforesaid terms.

…………………………….J. (Deepak Gupta)

……………………………..J. (Aniruddha Bose)

New Delhi February 28, 2020

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