Union Of India vs Bharat Forge Limited

CIVIL APPEAL NO.___________ OF 2022 (Arising out of SLP(C) No.4960 of 2021)

UNION OF INDIA & OTHERS …APPELLANT (S)

VERSUS

BHARAT FORGE LTD. & ANOTHER …RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. Leave granted.

2. By the impugned Judgment, High Court has disposed

of the Writ Petition filed by the first respondent

(hereinafter referred to as the “Writ Petitioner”) with

the following directions:

“We, therefore, find it expedient to Issue a direction to respondent no.2 namely, the General Manager, Diesel Signature Not Verified Locomotive Works, Varanasi that if the Digitally signed by JAGDISH KUMAR Date: 2022.08.16 GST value is to be added in the base price to arrive at the total price of offer for 17:16:45 IST Reason:

the procurement of products in a tender and is used to determine Interse ranking 1 in the selection process, he would be required to clarify the Issue, If any, with the GST authorities relating to the applicability of correct HSN Code of the procurement product and mention the same in the NIT (Notice inviting tender) tender/ bid document, so as 'to ensure uniform bidding from all participants and to provide all tenderers/bidders a 'Level Playing Field'.”

3. The appellants take exception to both the reasoning

employed by the High Court and the final direction, as

aforesaid.

4. A global tender was published on 11.04.2019 by the

third appellant (Diesel Locomotive Work through its

Manager, Varanasi). E-tenders were invited for

procurement of turbo wheel impeller balance assembly

2BLW Part No. 16080385 (hereinafter referred as, ‘the

product’). The writ petitioner was one of the

tenderers. So were among others Respondents 6 to 8 in

the Writ Petition. Respondent No. 6 in the Writ

Petition is arrayed as respondent No. 2 in this appeal.

Respondent No.7 and 8 in the Writ Petition were

initially arrayed as Respondents 3 and 4 in the Special

Leave Petition but later deleted on the request of the

appellants.

2

5. On the basis of the tabulation carried out by the

third appellant, respondent no.2 in the appeal emerged

as L1 whereas respondent nos. 7 and 8 to the writ

petition emerged as L2 and L3, respectively. The writ

petitioner emerged only as L4. It is thereupon that the

first respondent filed the writ petition praying for

the following reliefs:

“ i.a writ order or direction in the nature of mandamus commanding and directing the Respondent No.1, i.e., the Tendering Authority to clarify that the Procurement Product must be taxed @ 18% under the Relevant HSN Code, i.e., 84148030, to ensure a Uniform Bidding from the parties, and also to ensure a level playing field for all Bidders/ Suppliers; ii.a writ order or direction in the nature of mandamus commanding and directing the respondents stay the effect of the opening of the Subject Tender No. 10191001 by the Respondent No.1 and subsequent awarding of the category/rank from L1-L6 to the various parties to the Tender;

iii. a writ order or direction in the nature of mandamus commanding and directing the respondents in light of the incorrect GST Rate /HSN Codes, as ought to have been correctly specified by the Bidders/ Suppliers to the Subject Tender, this Hon'ble Court may also be pleased to declare the opening of the Tender a nullity, and issued a Writ of Mandamus, directing the Tendering Authority, i.e., Respondent No.1, to invite fresh bids with the HSN Code duly specified;

iv.writ order or direction in the nature of mandamus commanding and directing the

3 respondents disqualify those Suppliers/Bidders who are not entering the correct HSN Code/GST Rate specification and are, thus, paying a GST of only 5%, as against the applicable rate of 18%.”

THE CASE OF THE WRIT PETITIONER

6. The complaint of the Writ Petitioner can be

noticed at this stage as follows:

A reading of the Notice Inviting Tender

(hereinafter referred to as, the ‘NIT’), would

reveal that the bidders were directed to specify

the percentage of local content of the material

being offered, in accordance with the ‘Make in

India’ Policy. In terms of the said Policy,

preference would be given to those projects, which

have at least 50 per cent local content ordinarily,

such purchase preference being limited to a margin

of 20 per cent. The sixth respondent in the writ

petition (2nd Respondent in this appeal) (L1) is a

trader, importing the product from Walbar

Corporation, Mexico. It was contended that the

tabulated statement of all the financial bids,

would show that the entities, which emerged as L1

4 to L3, had quoted their payment of GST at a rate

of 5 per cent on the base rate. The writ petitioner

had quoted its GST rate as 18 per cent. The writ

petitioner, in fact, had quoted its base price as

rupees seven lakh and three thousand. L1 had quoted

its rate as rupees six lakhs. There is a difference

of just about 17.1 per cent in the base price of

L1 and the writ petitioner. But only on account of

the fact that L1 has shown the rate of GST at five

per cent whereas the writ petitioner has shown with

GST liability at 18 per cent, the total price of

the writ petitioner became Rs. 8,29,540/- whereas

the total price of the L1 became Rs.6,30,000/-. On

account of this, a unilateral act of L1 in showing

the GST rate at 5 per cent, generated a difference

of about 31.6 per cent in the total price quoted

by L1 and the writ petitioner. It is the further

case of the writ petitioner that the GST rates of

each product and service have been duly clarified

by the GST Council (for short, ‘the Council’),

using the Harmonised System of Nomenclature (for

short, ‘the HSN Code), in accordance with Chapter

5

84. It is the case of the writ petitioner that the

Council has declared in the Code that as far as

the product is concerned, the rate has been shown

as 18 per cent. The further case of the writ

petitioner is that, neither the NIT nor the bid

documents, mention the relevant HSN Code

applicable to the product. It has sabotaged the

preservation of the level playing field. This is

for the reason that while the writ petitioner

honestly revealed the correct GST rate, L1 to L3

showed the GST rate at a far lower rate, viz., 5

per cent. This has distorted the tendering process.

Though the writ petitioner had given, on earlier

occasion, representation to the appellants about

earlier instances of such unfair practices, in the

subject NIT, no corrective steps were taken, thus,

culminating in the writ petitioner being relegated

to the position of L4. It also had the propensity

to completely frustrate the ‘Make in India’ Policy

and deprive local manufacturers of the legitimate

preference, it was otherwise entitled.

6

7. The appellants joined issue and filed their

pleadings opposing the reliefs sought by the writ

petitioner. Rejoinder and further affidavits were

filed. The High Court, in the impugned Judgment,

found, inter alia, as follows:

It refers to Clauses 2.7.6, 2.8.6.2, besides

Clause 2.9.2 of the Tender Document, which we shall

advert to in detail. It was found that there is no

dispute that the writ petitioner is a local

manufacturer included in the list of Approved

Vendors. It was further found that the opening of

the subject tender may not be possible as the offer

period had expired due to the interim order passed

by the High Court. Moreover, a subsequent tender

in regard to the product was granted to the writ

petitioner. Prayer nos. 2 and 3 have become

infructuous. However, thereafter the Court posed

the question as to whether there was any flaw in

the procedure adopted by the appellants. The

dimension about the ‘Make in India’ Policy engaged

the attention of the Court. The case of the

appellants that they are not concerned with the

7 GST rates and it was the responsibility of the

bidders to quote the HSN number and GST rate was

found not sound as the GST rate is integral to the

tendering process. Noting that a contract is a

commercial transaction, it was found that the Court

cannot examine the detail of the terms of the

contract. The High Court articulated the

limitations on the Court exercising power of

judicial review. Thereafter, the Court has found

that the Court can certainly examine as to whether

the decision-making process was reasonable,

rational and not arbitrary. Support was drawn from

Judgment of this Court in Reliance Energy Ltd. and

another v. Maharashtra State Road Development

Corpn. Ltd. and others1. Thereafter, it was found

that the bid documents contemplated that the

applicable GST has to be deducted from the bid of

the successful tenderer under the reverse charge

mechanism and the deposit of the same is to be made

with the concerned Tax Authority. There will be

disparity in the total price offered on account of

1 (2007) 8 SCC 1 8 the difference in the GST rate, thus, denying fair

competition or level playing field. The mentioning

of the concerned HSN Code is necessary to determine

the GST rate, which is to be added to the base

price to arrive at the final price. Applying the

said process, it was found that the rate quoted by

the writ petitioner was more than 20 per cent of

the rate quoted by L1 and also L2 and L3, on account

of writ petitioner quoting much higher rate, which

was the correct rate, whereas L1 to L3 did not

quote the correct rate. It was further found that,

if the GST value is to be added in the base price,

to arrive at the total price, and it is used to

determine the inter se ranking in the selection

process, it was the duty of the appellants 1 and 2

to clarify the HSN Code. It is further found that,

mentioning of the HSN Code in the tender document

itself, will resolve ‘all disputes’ relating to

fairness and transparency, by providing a level

playing field in the true spirit of Article

19(1)(g) of the Constitution of India. It is on

9 this reasoning that the relief, as already noted,

was granted.

8. We heard Shri N. Venkataraman, the learned

Additional Solicitor General (ASG), appearing on behalf

of the appellant, Shri Amar Dave, learned Counsel

appearing on behalf of the writ petitioner and Shri

Girdhar Govind, learned Counsel, appearing on behalf

of the second respondent.

9. Shri N. Venkataraman, learned ASG, would point out

that the High Court has issued a Mandamus. A Writ of

Mandamus can be issued, if there is a statutory duty.

There is no statutory duty with the appellants to do

the things, which have been directed in the impugned

Judgment. He would further point out that a proper

appreciation of the Clauses in the bid document, would

reveal the following:

The bidders, on the one hand, undoubtedly, are

called upon to declare the tax rate, as applicable

(Clause 2.7.6). However, a perusal of Clause 2.9.2

would reveal that, in case, the information about

the tax liability is not forthcoming in the bid,

the bid will be considered as inclusive, and any

10 liability on account of such tax, would be payable

by the concerned bidder. It is further pointed out

that Clause 2.8.6.2 declared that the appellants

will not be responsible for payment of taxes and

duties paid by the bidder on a misclassification

or misapprehension of law. In other words, the

contention of the appellants is that the terms of

the bid contemplated that it is expected of the

bidders to bid the correct rate of tax. If the rate

of tax was expressed in the bid, then, the bid

would be evaluated on the consideration of the base

price, after adding the tax component. Should the

bid of such a tenderer be selected, the appellants

would, necessarily, have to pay the price to the

bidder and absorb the tax also. On the other hand,

in the case of a bidder, who does not reveal the

rate of tax separately and merely quotes the base

price, then, if he is selected, he would be

entitled only to the payment of the amount quoted.

In other words, the duty to pay the GST, being an

indirect tax, is on the seller or supplier. He

would have to file the return and assess the tax

11 on self-assessment basis and pay the tax. This

would equally be the position of the tenderer, who

may quote the rate, which may not be the correct

rate but a lesser rate. In both the cases last

mentioned, viz., where the tenderer does not

include the tax component separately, or includes

it, but shows tax rate at a lower rate, the tax

element would have to be absorbed by the bidder.

That is not the look out of the appellants. The

appellants are concerned only with selecting the

lowest of the bidders, who is, no doubt, otherwise

compliant with the norms. The view taken by the

High Court creates considerable impediments, is

unworkable and would lead to greater problems. It

also involves the appellants being obliged to seek

clarification regarding the HSN Code under the GST

Act. There are Authorities under the concerned

taxing Statute, viz., the GST Act, who are charged

with the duty of assessing and collecting the tax

under the Act. The impugned Judgment casts the

burden to discharge duties, which are essentially

to be shouldered by the Taxing Authorities under

12 the Taxing laws. While enviable advance has been

made by the Courts in entertaining application

seeking judicial review, even in contractual

matters, the impugned Judgment represents a case,

where the High Court has erred and overstepped its

limits. He would submit that the judgments of this

Court do not support the impugned Judgment of the

High Court. The impugned judgment, in fact, runs

counter to the law declared by this Court. He would

contend that an indirect tax is ordinarily capable

of being passed on. The liability, in the case of

the indirect tax in question, is on the seller (the

bidders). This is a liability, which it can,

undoubtedly, pass on to the buyer under a contract

but it may instead absorb it. On a conspectus of

the terms, it is, however, clear that no liability

is undertaken by the appellant to pay the tax

except as provided in the terms. The liability

remains the responsibility of the successful

tenderer.

10. Shri Girdhar Govind, learned Counsel for the second

respondent, adopts the contentions of the learned ASG

13 and he would contend that, on facts, there is no

occasion to pass the impugned Judgment. A short counter

affidavit is also filed in this Court.

11. Shri Amar Dave, learned Counsel appearing on behalf

of the Writ Petitioner, would address the following

submissions:

He would support the impugned Judgment and he

contends that all that the High Court has directed,

is that, there must be a level playing field, in

the matter of award of largesse by the State, an

inevitable result of applying Article 14. He would

contend that the crucial aspect is that when the

appellants specifically contemplated the addition

of the tax liability to the base price for

determining the question as to who is to be the

successful tenderer, then, it is imperative that

there should be clarity and certainty about the

tax rate and the HSN Code. This would produce

actual equality of treatment as between the

tenderers. The facts of the case exemplify a

situation where tendering process becomes a

mockery, having regard to the wide disparity

14 between the rate of tax quoted by the writ

petitioner and L1 to L3. A huge difference of 13

per cent has completely impaired and derailed the

fair bid of the writ petitioner and, what is more,

defeated the sublime object sought to be achieved

in the ‘Make in India’ Policy. He would emphasise

that what has been going on, before the High Court

stepped in with the impugned Judgment, was clearly

an unfair trade practice. The stand of the writ

petitioner promotes the fundamental value of

honesty. A bidder, who does not disclose the

correct rate of tax, despite the injunction

contained in Clause 2.7.6, will walk away with a

contract, having indulged in a completely unfair

practice. The implementation of the impugned

Judgement would result in the extinguishment of

this wholly undesirable practice. He would further

contend that the appellants had, in fact, brought

out tender notices, implementing the direction of

the High Court. It is not something, which is

incapable of being achieved. He next drew our

attention to the circumstance, that even the

15 appellant has purchased the product, showing the

tax rate at 18 percent, as is evident from the

document dated 21.03.2017. He would further

contend that the Government of India, in the

Ministry of Defence, has been showing the correct

HSN Code, thus, facilitating the uniform

disclosure of correct rate of tax for all the

bidders. He next relied on Circular dated

31.12.2018 issued by the Government of India in

the Ministry of Finance, Department of Revenue (Tax

Research Unit). Therein, he points out the

following:

“12.3 Turbo charger is specifically classified under chapter HS code 8414 80 30. It continues to remain classified under this code irrespective of its use by Railways. Therefore, it is clarified that the turbo charger is classified under heading 8414 and attracts 18% GST.”

He would, therefore, contend that there is no

impediment, in law or on facts, for the appellants

to comply with the impugned Judgment. He next drew

our attention to the Public Procurement

(Preference to ‘Make in India’) Order, 2017 dated

16 15.06.2017. He emphasised the definition of the

word ‘local content’:

“'Local content' means the amount of value added in India which shall, unless otherwise prescribed by the Nodal Ministry, be the total value of the item procured (excluding net domestic indirect taxes) minus the value of Imported content in the item (including all customs duties) as a proportion of the total value, in percent.”

12. The learned Counsel for the writ petitioner would

also seek to support the direction of the High Court

with reference to Section 168 of the Goods and Services

Act, 2017. This is apart from pointing out that there

is a provision for advance tax ruling contained in

Section 96 of the GST Tax. Therefore, it is not a case

where the appellants can object to the impugned

direction, on the basis that there is no provision to

‘seek clarification’.

13. In the Rejoinder submission, the learned ASG would

submit as follows:

He would contend that it is the Assessing

Officer, relevant to the supplier of goods and not

the Assessing Officer relevant to the purchaser,

17 who would have authority in the matter and this

adds to the woes of the appellants if they are

compelled to comply with the impugned directions.

As far as the Order dated 15.06.2017 is concerned,

he would contest the version of the writ petitioner

based on the definition of the word ‘local content’

and would point out that the maker of the Order,

viz, the Government of India had, in fact,

contemplated excluding the net domestic taxes. As

far as the subsequent tenders issued is concerned,

it is sought to be justified with reference to the

action of the appellants seeking to comply with

the impugned directions. He would contend that the

impugned directions are wholly impracticable and

far from putting an end to the disputes, it will

only engender unending disputes.

14. Learned ASG would contend that the no reliance can

be placed on the publication in the Business Standard

about tax invasion in the Railways and the purport of

the complaint can only be that if there is evasion, the

Tax Authorities must be awake to their duty and

vigorously pursue the evaders as per law.

18 ANALYSIS

SCOPE OF WRIT OF MANDAMUS

15. The learned ASG contended that the High Court erred

in issuing the direction, which is in the nature of the

Writ of Mandamus. It is his case that a Writ of Mandamus

would lie only when a Statute imposes a duty and there

is failure in discharge of duty. We would think that

this is not a matter which is res integra. As early as

in Comptroller and Auditor General of India, Gian

Prakash, New Delhi and another v. K.S. Jagannathan and

another2 , a Bench of three learned Judges of this Court

had this to say:

“18. The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission—both with respec t to the order of the Division Bench and the purpose and scope of the writ of mandam us. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in th e exercise of its jurisdiction under Articl e 226 of the Constitution. Under Article 22

2 (1986) 2 SCC 679 19 6 of the Constitution, every High Court has the power to issue to any person or authori ty, including in appropriate cases, any gov ernment, throughout the territories in rela tion to which it exercises jurisdiction, directions, orders, or writs including writ s in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Righ ts conferred by Part III of the Constitutio n or for any other purpose. In Dwarkanath v . ITO [AIR 1966 SC 81: (1965) 3 SCR 536, 54 0] this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts “to reach injustice wherever it is found” and “to mould the reliefs to meet the peculiar and complicated requirements of this country.” In Hochtief Gammon v. Sta te of Orissa [(1975) 2 SCC 649 : 1975 SCC (L&S) 362 : AIR 1975 SC 2226 : (1976) 1 SCR 667, 676] this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government or its officers.

xxx xxx xxx

20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the

20 discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred.

In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.”

16. Three years thereafter, in the decision reported

in Andi Mukta Sadguru Shree Muktajee Vandas Swami

Suvarna Jayanti Mahotsav Smarak Trust and others v.

V.R. Rudani and others3, while dealing with the word

‘authority’, used in Article 226 and also dealing with

the issue as to whether Mandamus will lie even if the

3 (1989) 2 SCC 691 21 duty is not imposed under a Statute, this court held

as follows:

“20. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Arti cle 12 is relevant only for the purpose of enforcement of fundamental rights under Art icle 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fu ndamental rights. The words “any person or authority” used in Article 226 are, therefo re, not to be confined only to statutory au thorities and instrumentalities of the Stat e. They may cover any other person or body performing public duty. The form of the bod y concerned is not very much relevant. What is relevant is the nature of the duty impos ed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected par ty. No matter by what means the duty is imposed, if a positive obligation exists ma ndamus cannot be denied.

xxx xxx xxx

22. Here again we may point out that mand amus cannot be denied on the ground that th e duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law

22 , custom or even contract.” [ Judicial Revi ew of Administrative Action, 4th Edn., p. 5 40] We share this view. The judicial contro l over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirem ents of variable circumstances. Mandamus is a very wide remedy which must be easily available “to reach injustice wherever it is found”. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the cont ention urged for the appellants on the main tainability of the writ petition.”

17. It is necessary to notice, what a Bench of two

learned Judges spoke about the Writ of Mandamus in the

judgment in Mansukhlal Vithaldas Chauhan v. State of

Gujarat4. Therein, this Court held as follows:

“22. Mandamus which is a discretionary remedy under Article 226 of the Constitutio n is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory du ties, if they are intended to be mandatory in character, are indicated by the use of the words “shall” or “must”. But this is no t conclusive as “shall” and “must” have, so metimes, been interpreted as “may”. What is

4 (1997) 7 SCC 622 23 determinative of the nature of duty, whether it is obligatory, mandatory or dire ctory, is the scheme of the statute in whic h the “duty” has been set out. Even if the “duty” is not set out clearly and specifica lly in the statute, it may be implied as correlative to a “right”.

23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion.”

18. Therefore, it is clear that a Writ of Mandamus or

a direction, in the nature of a Writ of Mandamus, is

not to be withheld, in the exercise of powers of Article

226 on any technicalities. This is subject only to the

indispensable requirements being fulfilled. There must

be a public duty. While the duty may, indeed, arise

form a Statute ordinarily, the duty can be imposed by

common charter, common law, custom or even contract.

The fact that a duty may have to be unravelled and the

mist around it cleared before its shape is unfolded may

not relieve the Court of its duty to cull out a public

24 duty in a Statute or otherwise, if in substance, it

exists. Equally, Mandamus would lie if the Authority,

which had a discretion, fails to exercise it and

prefers to act under dictation of another Authority. A

Writ of Mandamus or a direction in the nature thereof

had been given a very wide scope in the conditions

prevailing in this country and it is to be issued

wherever there is a public duty and there is a failure

to perform and the courts will not be bound by

technicalities and its chief concern should be to reach

justice to the wronged. We are not dilating on or

diluting other requirements, which would ordinarily

include the need for making a demand unless a demand

is found to be futile in circumstances, which have

already been catalogued in the earlier decisions of

this Court.

19. Having cleared the air with regard to the

jurisdiction of the High Court in the matter of a Writ

of Mandamus or a direction in the nature thereof, we

may proceed next to the law relating to the ambit of

the Court’s jurisdiction in judicial review in

contractual matters. It is, undoubtedly, too late in

25 the day to countenance the contention that the mandate

of fairness in State action does not extend to the

realm of contract entered into by the State. We would

not burden our judgment chronicling the catena of

decisions, which have expounded the law in this regard.

We deem it sufficient if we refer to the judgment of

this Court in Reliance Telecom Ltd. and another v.

Union of India and another5. After an exhaustive survey

of case law, this Court, inter alia, held as follows:

“42. In Global Energy Ltd. v. Adani Exports Ltd. [Global Energy Ltd. v. Adani Exports Ltd., (2005) 4 SCC 435], this Court reiterated the principles that: (SCC p. 441, para 10) “10. … the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice.”

xxx xxx xxx

44. In Michigan Rubber (India) Ltd. v. State of Karnataka [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216] , the Court, after referring to Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] and Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa [Tejas Constructions &

5 (2017) 4 SCC 269 26 Infrastructure (P) Ltd. v. Municipal Council, Sendhwa, (2012) 6 SCC 464] , expressed the view that (at SCC p. 229, para

23) the basic requirement of Article 14 is fairness in action by the State, and non-

arbitrariness in essence and substance is the heartbeat of fair play and actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose and if the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities. It further observed that fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers and greater latitude is required to be conceded to the State authorities in the matter of formulating conditions of a tender document and awarding a contract. The Court also laid emphasis on public interest and the prudence in applying the principle of restraint where the action is fair and reasonable and does not smack of mala fides. It was also emphasised that the courts cannot interfere with the terms of the tender prescribed by the Government simply because it feels that some other terms in the tender would have been fair, wiser or logical.”

27

20. This Court also laid down paragraph 46 as follows:

“46. In Census Commr. v. R. Krishnamurthy [Census Commr. v. R.

Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] , a three-Judge Bench of this Court, after noting several decisions, held that (SCC p. 809, para 33) it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved and the courts can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded on ipse dixit offending the basic requirement of Article 14 of the Constitution. It further observed that in certain matters, as often said, there can be opinions but the court is not expected to sit as an appellate authority on an opinion.”

21. We must also bear in mind the judgment which is

relied upon by the High Court in the impugned Judgment.

The High Court has drawn support from the Judgment of

this Court in Reliance Energy Ltd. and another v.

Maharashtra State Road Development Corpn. Ltd. and

others6:

“36. We find merit in this civil appeal. Standards applied by courts in judicial review must be justified by constitutional

6 (2007) 8 SCC 1 28 principles which govern the proper exercise of public power in a democracy. Article 14 of the Constitution embodies the principle of “non-discrimination”. However, it is not a free-standing provision. It has to be read in conjunction with rights conferred by other articles like Article 21 of the Constitution. The said Article 21 refers to “right to life”. It includes “opportunity”.

In our view, as held in the latest judgment of the Constitution Bench of nine Judges in I.R. Coelho v. State of T.N. [(2007) 2 SCC 1] , Articles 21/14 are the heart of the chapter on fundamental rights. They cover various aspects of life. “Level playing field” is an important concept while construing Article 19(1)(g) of the Constitution. It is this doctrine which is invoked by REL/HDEC in the present case. When Article 19(1)(g) confers fundamental right to carry on business to a company, it is entitled to invoke the said doctrine of “level playing field”. We may clarify that this doctrine is, however, subject to public interest. In the world of globalisation, competition is an important factor to be kept in mind. The doctrine of “level playing field” is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest. “Globalisation”, in essence, is liberalisation of trade. Today India has dismantled licence raj. The economic reforms introduced after 1992 have brought in the concept of “globalisation”.

29 Decisions or acts which result in unequal a nd discriminatory treatment, would violate the doctrine of “level playing field” embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of “equality” should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of “level playing field”. According to Lord Goldsmith, commitment to the “rule of law” is the heart of parliamentary democracy. On e of the important elements of the “rule of law” is legal certainty. Article 14 applies to government policies and if the policy or act of the Government, even in contractual matters, fails to satisfy the test of “reasonableness”, then such an act or decision would be unconstitutional.

xxx xxx xxx

38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This “legal certainty” is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment. It may violate doctrine of “level playing field”.”

22. It becomes, however, necessary to notice the

context in the said case, which persuaded the Court to 30 make the aforesaid observations. The case involved a

global tender floated to award a contract, which was

to be done by effecting selection in two stages. The

relevant clause in the tender document, inter alia,

contemplated the fulfilment of certain financial

requirements. We may refer to the following discussion,

which gives the factual context:

“50. Taking into account the above principles, it is clear that there are two methods of “cash flow reporting” i.e., direct and indirect. Both give identical results in the matter of the final total. They differ only in presentation of the data. They differ only in presentation of the data contained in the cash flows from operational activities. No reason has been given by the consultants of MSRDC for rejecting the indirect method invoked by KPMG, chartered accountants of REL/HDEC in their letter dated 12-8-2005. The said method is known as “reconciliation method”.”

23. The observations made by the Court, undoubtedly,

draw inspiration from factual matrix essentially

involved in the culling out of the principle of level

playing field, which was found to be impaired on the

basis of a lack of legal certainty, as found

established by the material available on record. In the

31 course of observations in paragraph-36, this Court held

that Article 19(1)(g) confers a Fundamental Right to

carry on a business to a company. We would accept it,

subject to the caveat that Article 19 confers a right

on the citizens, who are natural persons. However, we

take it that, what the Court had in mind was, a

situation where the company is in the party along with

one or more shareholders, who are citizens of India.

However, there can be no quarrel with the position at

law, having regard to the undeniable and breath-taking

advances made by the Courts, drawing inspiration from

Article 14 that equals must be treated equally and more

importantly, the other facet of Article 14, viz., that

all actions of State must be fair, which constitutes

the major plank of attack against State action in the

arena of contracts. This again is subject to the self-

restraint in matters, the scope of which has been dealt

with in regard to various aspects of the matter,

starting with cases relating to challenge to the very

terms of the tender and culminating in the actual award

of the contract. Unless such actions are found to be

clearly arbitrary, illegal, malafide or contrary to any

32 Statute, the courts would be loathe to fetter even the

limited area of freedom of the State has to take

decisions which are fair in cases relating to

contractual matters.

24. With these observations, the time is ripe to

consider the facts.

THE RELEVANT CLAUSES

25. The Clauses in the Tender Document, which engaged

the attention of the High Court are as follows. Clause

2.7.6 reads as follows:

"All the bidders/tenderers while quoting the rates should clearly indicate the rate of applicable duties and taxes included in the prices quoted by them. Any variation in tax structure/rate due to introduction of GST, shall be dealt with under Statutory Variation Clause."

26. The next provision to be borne in mind is Clause

2.8.6.2:

"The purchaser will not be responsible for payment of taxes and duties paid by the supplier under misapprehensions of law or misclassification."

33

27. Finally, we must advert to Clause 2.9.2:

"Tenderers must familiarize themselves about all the applicable taxes & duties, and in case the same is not indicated explicitly in their offer the same will be considered as inclusive. Any liability on such account will be payable on firms account."

28. We may also note the following Clauses, which is

put into place on the basis of an amendment, which is

described as Amendment No.1 to the Global Tender Bid

Document. Clause 2.7.6 reads as follows:

2.7 Sales Tax/ Value Sales Tax/ Value Added Tax (VAT)/ Added Tax (VAT)/ CST: CST/ GST:

2.7.6 Nil (Added) For the tenders due to open before roll out of GST: All the bidders/tenderers while quoting the rates should clearly Indicate the rate of applicable duties and taxes included in the prices quoted by them. Any variation in tax structure/ rate due to introduction of;

GST, shall be dealt with under

34 Statutory Variation Clause.

29. Clause 2.7.7 reads as follows:

2.7 Sales Tax/ Value Sales Tax/ Value Added Tax (VAT)/ Added Tax (VAT)/ CST: CST/ GST:

2.7.7 Nil (Added) For the tenders opening after roll out of GST: All the bidders/ tenderers should ensure that they are GST compliant and their quoted tax structure/ rates are as per GST Law.

30. At this juncture, we may also notice that there is

a reference to the statutory variation clause. We were

unable to locate a statutory variation clause, as such,

from the tender documents relevant to the bid in

question. However, we would refer to the statutory

variation clause, which is to be found at page 56 of

the counter affidavit (in connection with another

tender) filed by the writ petitioner before this Court

which appears to be the standard clause:

“Statutory Variation In taxes and duties, or fresh imposition of taxes and duties by

35 State/ Central Governments in respect of the items stipulated in the contract (and not the raw materials thereof), within the original delivery period stipulated in the contract, or last unconditionally extended delivery period shall be to Railways account. Only such variation shall be admissible which takes place after the submission of bid. No claim on account of statutory variation in respect of existing tax/duty will be accepted unless the tenderer has clearly indicated in his offer the rate of tax/duty considered in his quoted rate. No claim on account of statutory variation shall be admissible on account of misclassification by the supplier/contractor.”

31. The High Court, in the impugned Judgment, has

correctly noticed the contours of the jurisdiction of

courts in the realm of judicial review of action of

State in matters relating to contracts. It is correctly

found that the Court cannot examine the details of the

terms of the contract. The Judgment is apparently

entirely premised on the observations made by this

Court in Reliance Energy Ltd. (supra). It has proceeded

to support its intervention in the Writ Petition,

placing reliance on paragraphs 36 and 38 which we have

already referred to above. Thereafter it poses the

question, as to whether the classification of the HSN

36 Code is integral to the tendering process and answers

it by holding that it is integral and then founds its

interference in the manner done by finding that fair

competition or level playing field would be denied to

each bidder as someone may bag the tender by quoting

the lesser rate of GST, creating a substantial

difference in the total price. Undoubtedly, selection

is based on aggregating the base price with the tax

(GST). If there is lack of clarity, each bidder would

be in a position to take a shot at the tender by

understating the value of the tax.

32. We are of the view that in the facts of the case,

the High Court has erred. The Court was dealing with a

matter pursuant to the NIT dated 11.04.2019. The

tenderers including the writ petitioner, participated

in the tender and quoted their rates. We cannot be

oblivious to the averments in the writ petition that

even previously the same issue had arisen for the

procurement of the identical product. The bids were

opened on 23.11.2018, wherein, some other bidders

quoted at the rate of 5 per cent as the tax liability.

The writ petitioner had according to it, has written

37 letter dated 07.12.2018, pointing out that the product

fell under Chapter 84 and even the appellants had

imported the same product under HSN Code 84148090

attracting GST at the rate of 18 per cent. It also drew

inspiration from a letter from the Ministry of Finance,

Department of Revenue, dated 30.04.2018, being Circular

No.30/4/2018GST, wherein, it was stated that the

Council took certain decisions. It also referred to

customs invoice dated 21.03.2017, showing import of the

product with GST rate being show at 18 per cent. There

is also reference to a letter dated 04.06.2018, written

by the writ petitioner to the Executive Director of

Public Grievance, Ministry of Railways. Therefore, the

writ petitioner must be treated as aware of the

consequences that would flow from the effect of the

terms of the Notification. We, however, notice that the

writ petitioner went ahead and made its bid pursuant

to the NIT dated 11.04.2017. The case of the writ

petitioner, admittedly is, that the appellants opened

the tender and made a tabulated statement and found

that the writ petitioner would stand ranked at L4.

38

33. Before we embark on the scope of the Clauses, we

have set out, it becomes necessary to refer to the

nature and incidence of tax under the GST Act. The

Central Goods and Services Act, 2017 was published in

the Gazette on 12.04.2017 (hereinafter referred to as

the ‘Central Act’). It provides for an indirect tax.

It is, as the very name of the Act suggests, levied on

transactions of goods and services or both. Section 2

(11) defines the ‘State Goods and Service Tax Act’ as

meaning ‘the respective State Goods and Services Tax

Act, 2017’. State enactments mirroring substantially

similar provisions have been passed.

34. Section 9 of the Central Act provides for levy of

the tax called the Central Goods and Services Tax on

all intra-state supply of goods and services, except

as provided therein. Section 9(3) provides that the

Government, may, on the recommendation of the Council,

notify categories of supply of goods or services or

both, where the tax is to be levied, assessed and

recovered on the reverse charge basis. Section 22

provides that every supplier is duty-bound to be

registered under the Act, in the State or the Union

39 Territory, other than special category States, from

where, he makes taxable supply of goods and services,

subject to a certain limit in regard to the turnover.

This is again made subject to the provisions of Section

24, which provides for compulsory registration. Under

Section 37, there is duty to furnish return. Section

59 of the Central Act provides that every registered

person shall self-assess the taxes payable under the

Act and furnish a Tax Return for each tax period, as

specified in Section 39. Section 60 provides for

provisional assessment. There are elaborate provisions

relating to assessment. Chapter 17 provides for advance

rulings. Section 97 thereunder provides that an

applicant, which person has been defined as ‘any person

registered or desirous of obtaining registration under

the Act’ can make an application in proper form in

regard to the questions which are mentioned in Section

97(2). The questions include a question as to the

classification of any goods or services or both. There

is a detailed procedure, which includes an original

Authority, an Appellate Authority and a National

Appellate Authority for Advance Ruling. Section 102 40 provides for rectification of advance ruling. Section

103 provides that the advance ruling shall be binding

on an applicant and on the concerned officer or

jurisdictional officer in respect of the applicant.

Section 103(1A) inserted by the Finance Act, 2019,

amplifies the scope of advance ruling, as provided

therein. An advance ruling can become void in certain

circumstances, which includes fraud or suppression of

material or misrepresentation of facts (see Section

104). Section 105 provides for the powers of the Civil

Court under the CPC in respect of discovery and

inspection, enforcing attendance of any person and

examining him on oath and issuing commission and

production of books of account and other records. We

may also notice Section 168, which has been relied upon

by the writ petitioner. It reads as follows:

“168. Power to issue instructions or directions. — (1) The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the implementation of this Act, issue such orders, instructions or directions to the central tax officers as it may deem fit, and thereupon all such officers and all other persons employed in the implementation of this Act shall observe and follow such orders, instructions or directions. 41 (2) The Commissioner specified in clause (91) of section 2, sub-section (3) of section 5, clause (b) of sub-section (9) of section 25, sub-sections (3) and (4) of section 35, sub-section (1) of section 37, sub-section (2) of section 38, sub-section (6) of section 39, sub-section (5) of section 66, sub-section (1) of section 143, sub-section (1) of section 151, clause (l) of sub-section (3) of section 158 and section 167 shall mean a Commissioner or Joint Secretary posted in the Board and such Commissioner or Joint Secretary shall exercise the powers specified in the said sections with the approval of the Board.”

At this juncture, we may notice that the Uttar Pradesh

Goods and Services Act, 2017 essentially mirrors the

Central Act. No doubt, the corresponding provision of

Section 168 in the State Act (Uttar Pradesh) reads as

follows:

“Section 168. Power to issue instructions or directions-

The Commissioner may, if he considers it necessary or expedient so to do for the purpose of uniformity in the implementation of this Act, issue such orders, instructions or directions to the State tax officers as it may deem fit, and thereupon all such officers and all other persons employed in the implementation of this Act shall observe and follow such orders, instructions or directions.”

42

35. It is clear that the GST, be it under the Central

Act and the State Goods and Services Act, are indirect

taxes imposed on the supply of goods and services or

both. Except in a case falling under the reverse tax

mechanism, it is the supplier of the goods and

services, who would remain liable to pay the tax. The

supplier is obliged to file the returns which includes

monthly returns and annual return. He is to self-assess

and pay the tax in accordance with the provisions.

There is provision for provisional assessment of tax

in Section 60. It becomes the duty of the Taxing

Authority to assess and recover the tax due. No doubt,

under the reverse tax mechanism, in regard to the

specified transactions and persons covered thereunder,

it would be the recipient of the goods and services or

both, which would be liable to pay the tax due on the

supply of goods or services or both, to it. Having

borne in mind the above brief overview of the tax regime

under the Central Act and the State Act, we may not

proceed to consider the case in greater detail.

36. What is involved before the Court is not a direct

challenge to the terms of the tender. The writ

43 petitioner did not choose to challenge the terms of the

NIT dated 09.04.2019 despite admitted understanding of

the working of similar tender notification leading to

some of the bidders showing the GST rate at 5 per cent

and even writing about it. The writ petitioner chose

to participate in it and filed its bid, showing the tax

rate at 18 per cent. The entities, which were shown as

entitled to rank as L1 to L3, have shown the tax GST

liability as 5 per cent on the product. It is thereafter

that the Writ Petition was filed seeking the reliefs,

we have already noticed.

37. The appellants stand in the shoes of a purchaser

of goods and services. By the global tender floated by

the appellants, the appellants called for e-tenders

from intending suppliers of the goods. The terms of the

tender were well-known to the tenderers. Under Clause

2.7.6, undoubtedly, the bidders and the tenderers,

while quoting the rates, were to clearly indicate the

rate of applicable duties and taxes included in the

price quoted by them. Let us pause for a moment and

analyse its true meaning. Under the said Clause, the

bidders were to quote the rate of applicable duties and

44 taxes, which were included in the price quoted by them.

This Clause must be read in conjunction with Clause

2.8.6, which provides that the purchaser (appellants)

will not be responsible for the payment of taxes and

duties paid by the supplier, on the basis of the

misclassification or a misapprehension of law. This

would mean that the appellants as purchaser was making

it clear that it will have no liability to shoulder,

in the payment of tax if it is found that, while

indicating the rate of applicable duty or tax by the

tenderer, it has wrongly quoted a rate which is lower

than the rate, which it was liable to pay in law. The

quoting of the rate, in other words, by the tenderer,

within the meaning of Clause 2.7.6, would bind the

tenderer and he would not be heard to say that he had

arrived at the rate and made the bid and which stood

accepted, on the basis of misapprehension of law or

misclassification. On the one hand, Clause 2.7.6 gives

the impression that all the bidders/tenderers should

clearly indicate the rate of the applicable duty and

tax in the price quoted by them. We must however read

it in conjunction with Clause 2.9.2. The said Clause

45 provides for a clear duty with the tenderer to acquaint

themselves with all the applicable taxes and duties.

It further provides that in a case, where the taxes and

duties are not indicated explicitly in their offer, the

same will be considered, which means, the offer will

be considered as inclusive. The meaning of this Clause

can only be that while ordinarily the tenderer would

and should include in the tender not only the base

price but the taxes and the rate of tax and arrive at

the global sum at which he is making the bid, Clause

2.9.2 provides for the contingency of the tenderer not

indicating about the applicable taxes and duties. In

other words, he merely quotes a sum without

specifically mentioning about the taxes and duties or

the rates. This is pointed out by the learned ASG to

contend that the fallacy committed by the High Court

lies in it, not giving full meaning to the said Clause.

We would understand that the working of the

statutory variation clause would be as follows:

The successful tenderer must clearly indicate

the rate of tax/duty in his offer. There must be a

variation in the tax and duty, which takes place

46 after the submission of the bid. There cannot be

any claim for such statutory variation on account

of misclassification by successful tenderer. If

these conditions are met, then, the purchaser,

under the statutory variation clause, would appear

to undertake the liability, to pay to the

successful tenderer, the differential tax or duty.

A perusal of Clause 2.7.7, which is the result of

the first amendment would appear to indicate that

for the tenders opening after roll out of GST, all

the bidders, tenderers must ensure that they are

GST compliant and their quoted tax structure/rates

are as per the GST norms. This Clause again must

be read in conjunction with Clause 2.9.2, which

makes it clear that a tenderer may quote a rate

without including any tax component.

38. It is clear that the Clauses read together will

yield the following result, bearing in mind also the

GST regime. The liability to pay tax under the GST

regime is on the supplier. He must make inquires and

make an informed decision as to what would be the

relevant HSN Code applicable to the items and the rate

47 of tax applicable. Thereafter, when he makes the bid,

the issue of competition for winning the bid, would

come into clear focus. The goal of the bidder

ordinarily is to emerge successful and bag the

contract. The extent of profit that he would earn, is

a matter, which is essentially a matter to be decided

by him. He may, for germane reasons, wish to bag a

contract, with situations ranging from one extreme end

of the spectrum, viz., even when the prospect of a loss

stares at him, or a slightly brighter outcome, viz.,

the contract working on a break-even basis or moving

on to an even more optimistic possibility, namely, of

the contract earning him profit, which he is willing

to take at a modest rate or a rate which he considers

as reasonable in his understanding and circumstances.

This is a matter to be left to the commercial expediency

of the bidder. Now, when the matter is viewed from the

perspective of the purchaser, the purchaser seeks to

buy goods and services or both by awarding the contract

to the lowest bidder. When the purchaser happens to be

the State, it would be not fair or reasonable to not

expect it to accept the bid of the lowest bidder unless

48 it decides to not accept the bid of the lowest bidder

for reasons which are fair and legal. No doubt, it is

not the law that the Government is bound to accept the

lowest bid. It is always open to the Government for

relevant, valid and fair reasons, to not accept even

the lowest bid.

39. The terms of the bid cannot be said to be afflicted

with the vice of legal uncertainty. This is not a case

where the principle as enunciated in Reliance Energy

(supra) would be apposite. It is elementary that

principles enunciated in the facts of a case are not

be likened to Euclid’s Theorem, having an inexorable

operation divorced from the facts which arise for

consideration. In this case, the interplay of the three

Clauses, which we have referred to, and its conjoint

operation, could not have left the bidders or the

purchasers (appellants) in any uncertainty.

40. The appellants relied on the judgment of this court

in Sarvesh Refractories (P) Ltd. v. Commissioner of

Central Excise and Customs7. In the said case the

7 (2007) 13 SCC 601 49 product in question was classified by the officer

having jurisdiction over the manufacturers factory as

falling under a particular heading. The case of the

appellants therein was that the heading should be

different. The appellant was the consumer of the goods.

It was found by the Tribunal that the appellant as a

consumer could not get the classification changed from

that of the officer having jurisdiction over the

seller. This Court approved the said view. Therefore,

the appellants would contend that since the liability

to pay the tax is on the successful tenderer (supplier)

and Sections 59 and 60 of the GST Act casts the burden

on the tenderers to file return, self-assess and pay

the tax, it is the jurisdictional officer relevant to

the supplier who can make the proper classification.

The appellants would stand in the shoes of a purchaser.

The appellants cannot therefore be expected to find out

the HSN Code and announce it so as to bind the tenderers

or fetter the power of jurisdictional officer of the

supplier.

41. Learned Additional Solicitor General purportedly

drew support from the judgment of this court in

50 Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Saran8.

In the said case, the appellant who was the

manufacturer of certain products entered into handling

contract with the respondent. A clause in the contract

inter alia provided that the respondent was to bear and

pay all taxes, duties and other liabilities in

connection with the discharge of his obligation. The

clause, in question, also permitted the appellant to

deduct taxes or duties at source in the matter of

payment of bill to the respondent. The appellant

deducted 5 per cent towards Service Tax. Thereafter,

in accordance with the law, as it stood, there was a

retrospective amendment by which the liability to pay

the service tax stood shifted to the recipient of

service. The Arbitrator, appointed to resolve the

dispute raised by the respondent that he was not liable

to pay the tax on the goods, rejected the contention.

The award was set aside by the High court. What is of

relevance are the observations in paragraphs 37 and 39.

It reads as under:

8

(2012) 5 SCC 306 51 “37. As far as the submission of shifting of tax liability is concerned, as observed in para 9 of Laghu Udyog Bharati [(1999) 6 SCC 418], service tax is an indirect tax, and it is possible that it may be passed on. Therefore, an assessee can certainly enter into a contract to shift its liability of service tax.”

“39. The provisions concerning service tax are relevant only as between the appellant as an assessee under the statute and the tax authorities. This statutory provision can be of no relevance to determine the rights and liabilities between the appellant and the respondent as agreed in the contract between the two of them.

There was nothing in law to prevent the appellant 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. ”

It was further found that the clause properly read

could not support the case of the respondent.

42. It is the contention of the appellants herein that

even though GST is an indirect tax, it does not mean

that the tax should be passed on to the buyer. It is

their further case that a contract to the contrary

either by way of absorption of taxes or quoting the

reduced rate of taxes including zero taxes will not,

52 in any way, interfere with the statutory levy and

payment of GST in the hands of the supplier. While the

law does not prohibit the passing of the incidence of

tax to the buyer, it is the case of the appellants that

it is not a pre-condition for either charging the tax

or remitting the same by the supplier.

43. The argument of the writ petitioner, which has

found favour with the High Court and reiterated before

us by Shri Amar Dave, learned Counsel for the writ

petitioner is that since the tender conditions

contemplate the adding of the tax to the base price for

the purpose of arriving at the ranking, which, in turn,

will determine, as to who will be the successful

bidder, there is the unfair trade practice indulged in

by some of the bidders to understate the rate of tax.

There is an eminent need for the State (appellants) to

indicate the HSN Code. Once it is indicated, it becomes

a panacea, as it were, to the evil, which has been

perceived and successfully pressed by the writ

petitioner. Is that so? The answer to this question,

has both legal and factual dimensions. As far as the

legal aspects are concerned, the fundamental question,

53 we must pose is, whether there exists any public duty

with the appellants to indicate the HSN Code when they

float a public tender. Here the learned ASG is correct,

when he points out that there is no statutory duty cast

on the appellants to indicate the HSN Code in a tender

of the kind we are concerned with. Proceeding on the

basis that a public duty may emerge, not merely from a

Statute but in various other ways, which has been

touched upon, in Andi Mukta (supra) as also, in Mansukh

Lal (supra) and even on an expansive exploration, does

such a duty flow from any other legitimate source?

THE CIRCULAR OF THE RAILWAY BOARD DATED 05.09.2017

44. The writ petitioner, no doubt, lays store by the

Communication dated 05.09.2017. It is, undoubtedly,

issued by the Railway Board. We may advert to the same:

“BHARAT SARKAR MINISTRY OF RAILWAYS RAILWAY BOARD New Delhi

No: 2008/RS(G)/777/l Date:05.09.2017

The General Manager, All Indian Railways/PUs,

54 NF(C), CORE The DG/RDSO/ Lucknow & NAIR/Vadodara CAOs, DMW/Ratiala', WPO/Patna, COFMOW/N. Delhi, RWP/Bela

Sub: Evaluation of offers under GST Regime

1. After implementation of GST Act, various representations have been received from the field units and vendors, regarding evaluation of offers under GST regime mentioning that different vendors are quoting different GST rates for same item in same tender. The representations have been examined and the following instructions are issued.

2. Purchaser may Incorporate HSN number in the tender document However, it shall be the responsibility of the bidders to quote correct HSN number and corresponding GST rate.

3. Where however, bidders quote different GST-rates in offers, during transition phase, following conditions may be incorporated as part of tender conditions:

I. The offers shall be evaluated based on the GST rate as quoted by each bidder and same will be used for determining the inter se ranking. While submitting offer, it shall be the responsibility of the bidder to ensure that they quote correct GST rate and HSN number.

II. Purchaser shall not be responsible for any misclassification, of HSN number or incorrect GST rate If quoted by the bidder.

III. Wherever the successful bidder invoices the goods at GST rate or HSM number which is different from that incorporated in the purchase order;

55 payment shall be made as per GST rate which is lower of the GST rate incorporated in the purchase order or billed.

IV. Vendor is informed that she/he would be required to adjust her/his basic price to the extent required by higher tax billed as per Invoice to match the all inclusive price as mentioned in the purchase order. V. Any amendment to GST rate or HSN number in the contract shall be as per the contractual conditions and statutory amendments in the quoted GST rate and HSN number, under SVC.

4. Determination of transition period may be arrived at by the Zonal Railway/Production Unit.

5. Tender cases already finalized need not be reopened.

6. This is issued with the concurrence of Finance Directorate of the Railway Board.

Sd/-

(Santosh Mittal) Dy. Director Railway Stores (G), Railway Board”

45. The Communication, no doubt, indicates that the

purchaser may incorporate HSN Number in the tender

document. While the use of the word ‘may’ in a statute

is capable of being interpreted as mandatory and

assuming that we can apply such a principle to a

circular we would hold that having regard to the

context, the consequences that follow, the tax regime

56 and the public interest, a mandatory duty cannot be

spelt out. On the one hand, the writ petitioner would

draw support from the same to contend that all that the

High Court has done is to direct the appellants to

implement the communication issued by the Railway Board

itself. On the other hand, learned ASG would lay

emphasis on the word ‘may’. He would also draw

attention to the next following sentence and emphasised

that it is responsibility of the bidder to quote the

correct HSN number and corresponding GST rate.

46. We are of the view that when read in a holistic

manner, the purport of the Railway Board is that it is

the responsibility of the bidder to quote the correct

HSN Number and the corresponding GST rate. We have

already unravelled the true scope of the relevant

Clauses and wide range of results that would follow on

its true construction. It may be true that the circular

permits the purchaser to indicate the HSN Number. The

purchaser may indicate it. That is a far cry from

holding that the communication enshrines a public duty

which can be enforced by way of Mandamus. While it is

true that in a given case, when a Public Authority is

57 vested with a discretionary power under a Statute, it

can be directed to exercise a discretion, it may not

be legal to direct even a statutory functionary to

exercise the discretion in a particular manner. The

very idea of a discretionary power would suffer

annihilation, if it ceases to be discretionary in the

hands of a Court ordering a Mandamus. No doubt, there

may be cases where the facts are such that the court

is not powerless to direct the Authority to do a thing

which it considers absolutely necessary and just and

legal to perform the act even when the Authority seeks

shelter on the basis that what is conferred on it, is

a mere discretion. The other terms of the circular

clearly appear to indicate that the rate even if

indicated by the appellants will not detract from the

tenderers quoting the rate which is up to them. It is

the rate quoted by the tenderers which governs. It is

the same which will be used to carry out the ranking.

The other terms also militate against a public duty

with the appellants as directed. The appellant seeks

to protect its best interest as a player in the

commercial field. The clauses are self-evident.

58

47. In this regard, we must not overlook the

consequences of reading the word may in the letter

dated 05.09.2017 as casting a mandatory duty. This

would bring us to frontally face the question of how

the purchaser would go about implementing such a

direction. Sections 96 to 103 of the Central Act, as

also of the State GST Act do provide for the mechanism

of advance ruling. If the purchaser is to include the

HSN Code, there must be a mechanism to give effect to

what is directed by the High Court, viz., “to clarify

the issue with the GST Authorities relating to the

applicability of the correct HSN Code of the product

and thereafter mention in the NIT”. To describe this

as impractical and the direction given being without

bearing in mind the conspectus of the statutory

provisions of the GST Acts, cannot but be correct.

Under the provisions relating to advance ruling, while

it is true that the question which can become the

subject matter of advance ruling includes questions

relating to classification of goods and services, there

is a detailed procedure provided in the matter. The

matter does not rest with the decision of the original

59 Authority. A right of appeal is provided. The matter

may travel to the Supreme Court. The provisions

contemplate powers of a civil court in the matter of

discovery, adducing of evidence etc. In other words,

it is long drawn and elaborate procedure and the

direction to ‘clarify’ with the GST Authorities, as

directed by the High Court, can hardly square with the

cumbersome and elaborate process detailed in the

Chapter relating to the advance ruling. The advance

ruling, we notice, is binding on the applicant

ordinarily. No doubt, it has a wider impact in

circumstances detailed in Section 103(1A). We are at a

loss to further understand how in the name of producing

a level playing field, the State, when it decides to

award a contract, would be obliged to undertake the

ordeal of finding out the correct HSN Code and the tax

applicable for the product, which they wish to procure.

This is, particularly so when the State is not burdened

with the liability to pay the tax. The liability to pay

tax, in the case before us, is squarely on the supplier.

There are adequate safeguards and Authorities under the

60 GST Regime must best secure the interests of the

Revenue.

48. Shri Amar Dave, learned Counsel for the writ

petitioner would contend that the Section 168 of the

Central Act can be understood as the fountainhead of

statutory power, using which, the appellants can comply

with the impugned direction. The power is vested with

the Board, it is pointed out. The appellants have

floated a global tender. It means that the bidders can

be located at any place. The Officers, who would be the

Jurisdictional Officers of the bidders, may not even

be known to the appellant.

It is difficult to accept the case of the writ

petitioner that appellants must seek the

‘clarification’ contemplated in the impugned Judgment

by resorting to Section 168 of the Central Act or the

State Act. Section 168 does not expressly provide for

right to any person to seek a direction as contemplated

therein. Further, we may notice that there is an

express power provided in the provisions relating to

advance ruling. There is an elaborate procedure to be

followed and even right of appeal. At any rate, power

61 under Section 168 is essentially meant for officers to

seek orders, instructions or directions besides the

Board itself on its own passing orders, in the interest

of maintaining uniformity in the implementation of the

Act.

49. We cannot ignore the case of the appellant that

the Circular cannot bind the supplier and the Circular

can be challenged in an appropriate proceeding.

Appellants contend that it does not represent a final

view, and does not bind the court and a circular which

is in the teeth of the statute can have no existence

in law. In this regard our attention is drawn to the

judgment of this Court in (2008) 13 SCC 1. It is

further contended that the circular cannot bind the

appellants who are only purchasers of the product.

There is no duty cast on the Board under the Central

Act or on the Commissioner under the State Act to issue

any clarification, as directed in the impugned

Judgment. There is no duty cast on the appellants to

seek such direction. Therefore, the appellants are

right in contending that there is no statutory duty,

which could have been enforced in the manner done in

62 the impugned Judgment. There is no public duty which

is enforceable.

THE CUSTOMS INVOICE DATED 21.03.2017

50. As far as the reliance placed on a customs invoice

dated 21.03.2017, it is pointed out on behalf of the

appellants that the importer on its understanding,

entered the rate (18%). Proceeding on the basis that

it was a unit of the railways, this by itself cannot

bind the appellants to comply with the impugned

judgment. The nature of the clauses and the liability

to pay tax detract from the appellants being bound,

particularly in the absence of any public duty. We

agree with the appellants.

THE CASE OF THE SECOND RESPONDENT (L1)

51. The second respondent (L1) has filed a short

Counter Affidavit in this Court. Therein, reliance is

being placed on Sections 59 and 60 of the CGST. While,

Section 59 provides for self-assessment by a registered

dealer, Section 60, contemplates a dealer making a

request to the proper Officer, in writing, giving

63 reasons for payment of tax on a provisional basis,

thus, leading to the tax being permitted to be paid on

such rate as is specified by the Officer. According to

L1, the Officer can determine the rate of tax. Thus,

any bidder who would be the supplier of goods or

services, is provided with a mechanism to enter the

correct rate of tax in the bid. L1 has a case that the

product in question falls squarely under Chapter 86 of

the GST Tariffs and, therefore, the rate quoted by L1

was correct. It is further contended that the Writ

Petition was filed with delay. Second respondent even

alleges collusion between the appellants and the writ

petitioner and contends that the case is meant only to

defeat the right of L1. The second respondent (L1)

would contend that the appeal deserves to be allowed.

52. In this case, the second respondent has been found

to be L1 for 593 pieces of turbo wheel impeller balance

assembly. We see from the Counter Affidavit, filed in

the High Court, by the appellants, that it was, inter

alia, contended that the tendered product is Turbo

Wheel Impeller Assembly and not Turbo Super Charger.

In the Rejoinder Affidavit, filed by the writ

64 petitioner, we noticed at page-764 onwards of the SLP

Paper Book that the writ petitioner has joined issue

and contended that the stand of the appellants in the

Counter Affidavit was without appreciating that the

product is the most integral part of Turbo Charger,

without which, the Turbo Charger is rendered

commercially redundant. The end item is a Turbo

Charger, which houses the Impeller Wheel Assembly and

is not an associated product but rather a component of

Turbo Charger itself. We further notice the specific

stand of the writ petitioner that in the light of the

fact that the functionality and commercial purpose of

both these products are the same, they have to be

classified under the same Head and taxed at 18 per

cent. A Chartered Engineers’ Certificate was produced.

So was the diagram. In fact, having regard to the nature

of the dispute about the product, it brings into sharp

focus, the complex nature of the problem, which appears

to have been oversimplified in the matter of issuing

the impugned direction. We have already noticed that

the second respondent (L1) projected this dispute, even

in this Court as well.

65 MAKE IN INDIA; ORDER DATED 15.06.2017

53. As far as the ‘Make in India’ Policy is concerned,

relied upon by the writ petitioner, which is dated

15.06.2017, it is, no doubt, true that it is a very

significant move by the Government to promote the

manufacture of goods and services in India, thereby

effectively dealing with the problem of unemployment

and increasing the income of its people. There is no

dispute also that the writ petitioner is an approved

local supplier within the meaning of the Order. It is

equally true that a preference is contemplated for

local suppliers as defined in the Order. The margin of

difference between L1 and the local supplier cannot

exceed 20 per cent. It is also not in dispute that on

the basis of the total price quoted, the margin of

purchase preference is much more than 20 per cent. The

contention of the writ petitioner is that the rights

of the writ petitioner under the Government Order stand

frustrated on account of L1 to L3 quoting the tax rate

at 5 per cent. Emphasis was placed on the definition

of the word ‘local content’. The words ‘local content’

is defined as follows:

66

“'Local content' means the amount of value added in India which shall, unless otherwise prescribed by the Nodal Ministry, be the total value of the item procured (excluding net domestic indirect taxes) minus the value of Imported content in the item (including all customs duties) as a proportion of the total value, in percent.”

54. The contention of the writ petitioner is that

unless the appellant found out the correct HSN Code and

also the tax rate applicable for the product, the local

content, as defined in the Order, could not be

determined. This was countered by the learned ASG by

pointing out that the definition of the word ‘local

content’ excludes the ‘domestic indirect taxes’. In

this connection, we may also notice the definition of

‘L1’. ‘L1’ has been defined as meaning the lowest

tender or the lowest quotation, inter alia, as adjudged

in the valuation process as per the tender or other

procurement solicitation. Thus, L1 is, undoubtedly, to

be determined, based on the terms of the tender.

55. In the definition of the word ‘local content’, it

may be true that, when the value of the imported content

in the item is calculated, all the customs duties must

67 be included. The claim of the writ petitioner is that,

when the HSN Code, for the purpose of calculating the

custom duty, is to be found out for determining the

local content, then, there can be no reason to not

include the HSN Code for the item for the purpose of

GST. We are unable to agree. Proceeding on the basis,

that for determining the local content, the HSN Code

of the item, for the purpose of custom duty, is to be

found, that may not justify the writ petitioner from

contending that the HSN Code for the GST must be

included in the tender conditions. This is for the

reason that, apart from the absence of any duty with

the appellants to indicate compulsorily the HSN Code,

we would have to overlook the operation of the terms

of the tender. Under Clause 2.9.2, we have noticed that

a tenderer can make his bid without adding any tax

component. It is open to the bidder, wholly or partly,

to absorb the tax effect. In other words, being an

indirect tax, while it is open to a bidder to pass it

on to the buyer (the appellant), nothing stands in the

way of the bidder, partly or wholly, absorbing the tax.

The liability to pay the tax under the GST regime is

68 with the supplier unless it falls under Section 9(3)

of the GST Act. Further, the appellants cannot declare

a GST rate and make it binding on the bidder. The

correctness of the Code/rate can, at best, be the

appellants understanding of the same. This is why, in

the Circular dated 05.09.2017, issued by the Railway

Board, it conferred a discretion on the purchaser, to

incorporate the HSN Number in the tender document. This

is carefully conditioned by the caveat that, the

responsibility to quote the correct HSN Number and

corresponding GST rate, is to be on the bidder. Still

further, the Railway Board has contemplated that during

the transition phase, it was to be provided that offers

will be evaluated, based on the GST rates quoted by

each bidder and the same will be used for determining

the inter se ranking. When a successful bidder invoices

the goods with the GST rate or HSN Number different

from that incorporated in the purchase order, payment

is to be made at the rate, which is lower of the GST

rate, as between what is incorporated in the purchase

order or the invoice. It is further made clear in the

Circular dated 05.09.2017 that if a higher tax rate is

69 billed and an all-inclusive price is mentioned in the

purchase order, then, the basic price would have to be

accordingly adjusted to make it in conformity with all-

inclusive price.

56. We cannot therefore hold that in view of the Make

in India policy as contained in the order dated

15.06.2017, there is duty to declare the HSN code in

the tender and what is more, make the tenderers quote

the rate accordingly.

57. Unless Clause 2.9.2 is done away with (it must be

remembered that there is no challenge to Clause 2.9.2),

the tenderers would be free to quote a lumpsum rate

without including the tax rate. The further and more

important obstacle is the mechanism or rather the

absence of the same by which the purchaser of goods and

services (the appellants) can be compelled to ascertain

the correct HSN Code. The direction by the High Court

is to clarify with the Tax Authorities. We have noticed

that there is no provision for clarification, as such.

The only provision which clearly deals with

classification is provision for advance ruling. We have

noticed the nature of the procedure in the Chapter

70 dealing with advance ruling. We would have to assume

that the appellants will be compelled to go through the

said cumbersome procedure and, at the end of it,

proclaim the HSN Code. The appellants purchase several

goods and services. Each time, the appellants purchase

goods and services or both, if the impugned Order is

to be sustained, the appellants would have to resort

to the prolonged proceedings in a matter where the

appellant had no liability to pay the tax. All of this

is premised on the writ petitioner’s quest for the

perfect level playing field. That apart, we have also

noticed, how the interests of the appellant, which it

pursues as an actor in the commercial world, but

wearing the mantle of State obliging it to act fairly,

would not empower the Court in judicial review to

mandate for a duty, not supported by any Statute, the

terms of the bidding document and any other binding

instrument. We have already found that Circular dated

05.09.2017, issued by the Board, does not provide for

the mandatory duty to specify the HSN Code.

71 OTHER TENDERS BROUGHT OUT BY OTHER UNITS OF THE

RAILWAYS CONTAINING THE HSN CODE

58. In this regard it is contended by the appellants

that as far as the tenders relied upon by the writ

petitioner produced in the counter affidavit as having

been brought out wherein the HSN code is indicated,

they are tenders issued by the other units of the Indian

Railways. Since the first appellant is the Union of

India, we would expect that if it is otherwise

permissible to sustain the impugned judgment, it may

not be fair to not have a uniform policy in the matter

of award of largesse by the various units under it.

However, the appellants do point out that even in the

tenders which have been brought out, the HSN Code

mentioned in the tender is shown as indicative only.

It has been provided in the tenders relied upon by the

writ petitioner that it will be the responsibility of

the bidder to quote the correct HSN Code and the

corresponding GST rate while submitting the offer. We

may notice the relevant clause:

“A. 1. HSN number mentioned in tender 8504 is indicative only. It will be responsibility of the bidders to quote correct HSN number and 72 corresponding GST rate while submitting offer.

2. Even if bidders quote different GST rates in offers, the offers shall be evaluated by IREP3 system based on the GST rate as quoted by each bidder and same will be used for determining the inter se ranking. Bidders may note that I. It shall be the responsibility of the bidder to ensure that they quote correct GST code and HSN number. II. Purchaser shall not be responsible for any misclassification of HSN number or incorrect GST rate if quoted by the bidder. III. Wherever the successful bidder invoices the goods GST rate of HSN number which is different from that incorporated in the purchase order, payment shall be made as per GST rate which is lower of the GST rate incorporated in the purchase order or billed. IV. Any amendment to GST rate or HSN number in the contract shall be as per the contractual conditions and statutory amendments in the quoted GST rate and HSN number, under SVC. B. Are you eligible for availing benefits and preferential treatment extended to Micro and Small Enterprises (MSEs).

If so, the necessary documents as per special conditions for MSEs for claiming benefits and preferential treatment extended to MSEs to be attached. C. In case the successful tenderer is not liable to be registered under CGST/ IGST/ UTGST/ SGST Act, the railway shall deduct the applicable GST from his/their bills under Reverse Charge Mechanism (RCM) and deposit the same to the concerned tax authority. D. Performance statement of orders received and supplies made for last three years for subject item is must for all tenderers including approved sources.”

73

59. Having regard to the terms, we cannot cull out a

public duty to provide for the correct HSN code.

Therefore, we cannot support the impugned judgment

based on the issuance of tenders as contended.

REVERSE CHARGE MECHANISM

60. We have noticed that the appellants have contended

that the liability to pay the GST, an indirect tax,

lies with supplier of goods and services. The exception

which is admitted by the appellants is in cases covered

under Section 9(3) of the GST Act which provides for

reverse charge mechanism. Under the reverse charge

mechanism, the liability to pay tax is on the recipient

of the goods or services or both. This would indeed

mean that if the appellants are in the shoes of persons

who become liable as recipients of goods and services

or both under Section 9(3), then it will be the

liability of the appellants to pay such tax. Strictly

speaking this question does not appear to arise on the

facts. At any rate, we do not see how the writ

petitioner can advance its case on the basis of this

aspect as it is essentially the look out of the

74 appellants. We must not be oblivious to the fact that

the complaint of the appellant is the denial of a level

playing field among the tenderers. It is obvious that

the appellants as purchasers of the goods and services

are obliged to purchase the goods and services which

are otherwise compliant with the tender conditions at

the cheapest rate. In a case where it is liable under

revere charge mechanism, it would be the look out of

the appellant in public interest to ensure that it will

end up purchasing goods at the cheapest rate possible.

It is elementary that even the lowest bidder would not

have right to have his bid accepted and is always open

to the appellants in public interest and in accordance

with the tender condition to reject even the lowest

bid. No doubt if the tax rate in such a case is

separately insisted upon, then on the rate acceptable

to the appellants, the gross outflow can be calculated

consisting the amount to be paid to the successful

tenderer and the amount to be remitted to the revenue.

In this regard, we notice from the tender condition

relied upon by the writ petitioner which we have

extracted at paragraph 58, what is contemplated is that

75 the amount would be deducted at the applicable GST rate

from the bill under the Reverse Charge Mechanism and

deposited with the concerned tax authority. If under

the terms of the tender, what is contemplated is that,

in a case where the tax component is not included or

it is included at a lower rate, the appellants are

entitled to deduct the actual rate of tax as payable

by it under the Reverse Charge Mechanism and the tender

of such a person is accepted being the lowest tender,

then there can be no question of public interest being

prejudiced. If on the other hand, the tax rate is

included and the clause provides for deduction of the

actual rate from the bill, then also public interest

may not be affected. This is all the more reason for

the tenderer specifically including the tax component

indicating the correct rate of tax. This is a matter

where the first appellant can consider giving

appropriate instructions.

61. The upshot of the above discussion is that, we find

that the appellants have made out a clear case for our

interference with the impugned Judgment. There remains,

however, one aspect. It is the case of the appellants

76 that the supplier of the goods and services, i.e., the

successful tenderer is, indeed, liable to pay the GST

by filing returns and carrying out self-assessment.

There is also no dispute that it is the Officer, dealing

with the supplier, who would have jurisdiction in the

matter. In the said circumstances, in order to also

ensure that the successful tenderer pays the tax due

and to further ensure that, by not correctly quoting

the GST rate, there is no tax evasion, we would think

it is necessary to direct that, in all cases, where a

contract is awarded by the appellants, a copy of the

document, by which, the contract is awarded containing

all material details shall be immediately forwarded to

the concerned jurisdictional Officer. It is accordingly

ordered. Towards this end, the appellants shall

indicate that the tenderers will, in their bids,

indicate the details of their Assessing Officers so

that the appellants can effectively comply with this

direction. The Union of India and the Railway Board

shall ensure that this direction shall be complied with

by all units.

77

62. The appeal is allowed, impugned judgment is set

aside and we further direct that the appellants will

comply with the directions given in paragraph-61 of

this Judgment. There is no order as to costs.

……………………………………………J. [K.M. JOSEPH]

……………………………………………J. [HRISHIKESH ROY]

NEW DELHI DATED; AUGUST 16, 2022

78