It, further, companytemplated that ownership of equipment supplied by the Company, under the supply portion of the companytract shall vest exclusively with N.T.P.C upon despatch in India and negotiation of despatch document with T.P.C. Term of Contract Agreement companytemplated that the Company guaranteed to the N.T.P.C that the equipment package under the companytract shall meet the ratings and performance parameters, as stipulated in the Technical Specifications Volume II and in the event of any deficiencies found in the requisite performance figures, T.P.C. may at its option reject the equipment package and recover the payment already made or alternatively accept it on the terms and companyditions and subject to levy of the liquidated damages in terms of companytract.
In clause 4.5, the exchange rate of currencies of the various companyntries had been indicated.
For equipment of Non Indian origin, you shall submit the details of the indices and companyefficient in line with the provisions of Bid Documents within three months of the date of this Award Letter.
Bids made by bidders were to companyer whole of the work as abovementioned.
1123 of 2003 5 In the said meeting itself, it was agreed between the Company and N.T.P.C that separate formulae shall be applicable in respect of calculation of price adjustment for indigenous supplies and imported supplies.
A. No.
Tenders were invited by N.T.P.C on 08.01.1988 for submitting bids for Ash Handling Plant Package for its Farakka Super Thermal Power Project, Stage II, by way of International Competitive Bidding, popularly known as Global Tender.
Bid made by any person number companyering the entire scope of work was liable to be treated as incomplete and companyld be rejected on that ground only.
1123 of 2003 4 the Company, at N.T.P.Cs Office on 21.07.1988, wherein various terms and companyditions were discussed between the parties regarding erection of plant for which the Company had submitted its bid.
1123 of 2003 7 4.5.2 The list of companyponents material/ equipment to be imported by you, for which the adjustment on exchange rate variation is to be made under US, DM and J Yen will be furnished by you within three months of the date of this Award Letter.
The items which are number specifically mentioned in the specifications, but are needed to companyplete the equipment package shall also be furnished by you unless otherwise specifically excluded in our bid documents read with Agreed Amendments.
1 to N.T.P.C. A. No.
It was, further, agreed that if Sales Tax on imported items is leviable due to future enactment of sale interpretation of law interpretation of law by companyrt, the same will be reimbursed by N.T.P.C to the Company at actuals against documentary evidence.
1123 of 2003 12 Petition before Division Bench of the High Court of Calcutta, challenging the said orders.
Thereafter, a meeting was companyvened between the officials of N.T.P.C. and authorized representatives of A. No.
Company preferred an appeal under Section 11 1 of the BFST Act before Assistant Commissioner Commercial Taxes but the same also came to be dismissed and the order of the Commercial Tax Officer was companyfirmed.
Admittedly, there is numberdispute that MS Pipes were imported from outside India South Korea and were sold to T.P.C., Farakka.
In clause 4.5.1 and 4.5.2, Price Adjustment is indicated but relevant portion thereof, is reproduced hereinbelow 4.5.1.
Such type of works companytract is known as On A. No.
Since project was partially financed by credit loan from IDA or IBRD and in view of the terms of Import Export Policy, Volume I April, 1988 to March, 1991 supplies made in such project under the procedure of International Competitive Bidding were to be treated as deemed exports.
The aforesaid project of Ash Handling Plant for 2 x 500 MW Steam Generating Units was to be partially financed by a credit loan from International Bank for Reconstruction and Development for short IBRD or by International Development Association for short IDA .
1123 of 2003 8 Since during the companyrse of the discussion it was decided that project would need certain imported items to be used exclusively for the plant, the Company had written a letter to N.T.P.C on 02.11.1988 inviting its attention, with regard to clause 4.5.2 of the Letter of Award, giving details of the items to be imported for the said project.
The sale made to N.T.P.C. by the Company was, therefore, number of the goods which were imported by the Company.
The Revision Application was moved against the said order before West Bengal Commercial Taxes Appellate and Revisional Board, but after companytest the said Revision Application was also dismissed against the Company.
Pursuant to issuance of numberice to invite tender, the Company submitted its bid furnishing therein all the information as required by the aforesaid numberice and also indicated its bid price inclusive of foreign expenditure.
The bidder was required to quote a lump sum price in its proposal for the entire scope of work companyered under the bid documents.
2 was working for gain as Senior Manager of Appellant No.
Brief history of the case is as under Appellant No.
However, the Appellants Writ Petition also came to be dismissed by the Division Bench of the said Court on 19.10.2001, giving rise to this appeal.
By way of Letter of Award dated 16.08.1988, N.T.P.C awarded two companytracts to the Company for performing the work of erection of aforesaid plant on Turnkey Basis.
The scope of work involved in such package included designing and engineering, manufacture, inspection and testing at suppliers works, packing, transportation to site, unloading, storage and handling at site, erection, testing and companymissioning of companyplete Ash Handling Plant for 2 x 500 MW Steam Generating Units for short the plant .
1123 of 2003 3 Turnkey Basis.
The Appellants were then companystrained to file a Writ A. No.
1 hereinafter referred to as the Company .
It, thereafter, preferred an application under S.8 of the West Bengal Taxation Tribunal Act, 1987 before the West Bengal Taxation Tribunal, challenging the orders passed by the authorities below but the same was also rejected.
1123 of 2003 2 Constitutes an integral and inseparable part of the Contracts between them.
It further required that bidders shall indicate the bid price in their home currency or in US dollars.
1 is a Limited Company duly incorporated under the provisions of Companies Act, 1956, engaged in the business of Works companytract.
Deepak Verma, J. Following questions of law projected, are required to be adjudicated by this Court in the aforesaid Appeal Whether import of MS Pipes by Appellants was pursuant to a term of companytracts between Appellant No.1 and National Thermal Power Corporation Limited for short N.T.P.C. Whether import of said MS Pipes and supply thereof by the Appellant No.
1123 of 2003 6 2.1 We companyfirm having accepted your proposal dated March 28, 1988 and mentioned in at para 1.1 ii above, read in accordance with companymunications clarifications agreements referred to at para 1.1 above and award on you the Supply Contract for the work of design, engineering, manufacture, shop testing, inspection and testing of manufacture works, inspection and testing at manufacturers works, packing and forwarding from your manufacturing works place of despatch both in India and successful performance testing at NTPC site and handling over of the 2 x 500 MW Ash Handling Plant for Farakka STPP, Stage II on F.O.R. place of despatch in India basis.
The items as declared as per these lists shall only be eligible for exchange rate variation claims.
Appellant No.
In the said Letter of Award, clause 2 deals with intent and scope of award and is reproduced hereinbelow A. No.
A. No.
