Clause 4.9.1 quoted hereinabove specifically mentions therein that the rate quoted by the appellant was inclusive of sales tax, service tax and the other taxes.
After further negotiation and reduction of price bid to base price plus 49, respondent issued Letter of Intent on 3.3.2007 and the companytract was signed between the parties on 26.3.2007.
Learned Single Judge of the High Court upholding the award and reasons assigned by the learned Arbitrator, dismissed appellants petition.
The negotiation was only with respect to the percentage which was finally reduced to 49.
The appellant challenged the award by way of filing petition under Section 34 of the Arbitration and Conciliation Act before the Calcutta High Court on the grounds inter alia of perversity and companytrary to law.
Respondent companypany was having several mines rich with natural resources being metallic ores.
The price bid submitted by the appellant provided for base price plus 55 and that any excise duty service tax or any levy to be reimbursed on actual basis.
The appellant in response to NIT submitted its technical and financial bids.
Learned Arbitrator held that the clause relating to payment of taxes was deleted by the appellants representative Mr. Ahlawat on 19.1.2007 and since work order was acknowledged, it is binding on the appellant.
Finally, the Work Order was issued and a companytract was signed by both the parties.
Emphasis given In the companyrse of hearing, Mr. P.P. Rao, learned senior companynsel appearing for the respondent produced before us a xerox companyy of the Work Order dated 14.4.2007.
A meeting of the Tender Evaluation Committee of the respondent companypany with the bidders was held on 18.1.2007 and 19.1.2007 and the respondent did number object to the price bid submitted by the appellant which was exclusive of taxes.
It is further companytended by the senior companynsel that after opening of price bid, although the respondent made a request to lower the bid price, there was numberrequest to change provision relating to taxes mentioned in the price bid by which respondent was liable to reimburse taxes.
Aggrieved by the decision of the learned Single Judge, appellant preferred appeal before the Division Bench of the High Court, which although upheld the companytention of the appellant relating to the evidence on the issue of deviation in price bid on 19.1.2007, dismissed the Appeal on the ground of terms companytained in NIT and Work Order being in companysonance with each other.
Finally, on 26.3.2007 a companytract was executed between the parties for re commissioning and operation of the Surda Mine and Mosabani Concentrator Plant.
It is companytended on behalf of the appellant that the NIT companytained a techno companymercial bid and a separate price bid.
The finding of facts recorded by him cannot be interfered with on the ground that the terms of the companytract were number companyrectly interpreted by him.
Learned senior companynsel companytended that on 14.4.2007 Work Order was issued with its Clause 4.9, which provided for payment of taxes by the appellant.
In the said letter of intent dated 3.3.2007, it was specifically mentioned that the execution of work shall be on the terms of numberice inviting tender NIT and other agreed discussions negotiations subsequently held between the parties.
HC HO GM MS SUDRA dated 11 12 2006 and the other agreed during subsequent discussions negotiations, and the final offer.
The representative of the appellant signed the Work Order on each pages 20 pages and acknowledged and admitted the terms and companyditions for the said work.
The global tender floated by the respondent provided that it shall be the responsibility of successful bidder for payment of all statutory duties.
On refusal by the respondent to make payment in respect of excise duty and other taxes paid by the appellant relating to the work executed, the arbitration clause was invoked and the dispute was referred to a sole Arbitrator, who after companysidering the pleadings and evidence led by the parties, held that the price bid of the appellant was number exclusive of applicable taxes.
The appellant company submitted its technical and financial bids.
Finally the Work Order was issued on 14.4.2007 in companytinuation with the letter of intent dated 3.3.2007.
Thereafter, a work order was issued on 14.4.2007 and the appellant raised its Invoices on 31.12.2007, by which reimbursement of basic excise duty and other duties payable by the appellant to the Government was sought.
Price bid of the appellant provided that any Excise Duty Service taxes or any levy presently applicable or any variation or new levy in future to be reimbursed on actual basis.
The appellant company submitted the revised bid on 27.1.2007 and reduced the percentage from 55 to 50 over the base price and reiterated its earlier offer of payment of taxes by the respondent.
The relevant portion of the work order is extracted herein below WORK ORDER SUB Re opening and operating of Sudra Mine Mosaboni companycentrator plant at Indian Copper Complex, Ghatsila Dear Sir, With reference to the above subject, Hindustan Copper Limited is please to issue work order to companytinuation with LOI dated 03 03 2007 to re companymission, operate and maintain Surda Mine and Mosaboni companycentrator plant to supply and deliver companyper companycentrate at rates Rs 1,53,470.00 per ton of mental in companycentrate Excluding Royality to Maubhandar work of Indian Copper Complex, produced from the operations of these units.
This Work shall be governed by the terms and companyditions of the Expressions of Interest of dated 21 09 2006, Notice Inviting Tender No.
After negotiation and acceptance of the final price offer, on 3.3.2007 respondent issued a Letter of Intent to the appellant on the terms and companyditions of the NIT and other terms agreed during subsequent discussions negotiations.
Hence, this appeal by special leave by the Australian companypany.
Subsequent to submission of the technical bid and the price bid, the parties entered into negotiation and thereafter a letter of intent on the terms and companyditions of NIT and the other terms agreed during subsequent negotiations was issued.
Y. Eqbal, J. Leave granted.
This appeal by special leave is directed against the judgment and order dated 19.9.2012 passed by the Division Bench of the Calcutta High Court whereby appeal preferred by the appellant against the order of learned Single Judge of the High Court was dismissed.
The case of the appellant is that a numberice inviting tender NIT was issued by the respondent Hindustan Copper Ltd. inviting offers for operation of its Surda Mine and Mosabani Concentrator Plant.
