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3rd February, 2014 UNION OF INDIA THROUGH MINISTRY OF RAILWAY ..... Appellant
Through: None.
Through: Ms. Ranny, Advocate.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. No one was present for the appellant on the first call. No one is present for the appellant even on the second call although it is 2.30 P.M. I have therefore heard the counsel for the respondent and after perusing the record I am proceeding to decide the appeal.
2. The present appeal has been filed under Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) for setting aside the impugned order dated 17.12.2011 which has dismissed 2014:DHC:646 the objections filed by the appellant under Section 34 of the Act and upheld the Award dated 22.8.2006.
3. The Award was passed with respect to the claim of the respondent herein for MODVAT benefits which were specifically fixed in the contract at Rs.2.74/- for each ERC Mark-III. The relevant observations of the Arbitrator in this regard read as under:- “1. There is a specific provision in the contract, that the MODVAT benefits as available on the inputs as on date of opening of the tender, which has been indicated as Rs.2.74 for each ERC Mark-III will be retained by the supplier. Though clarification was sought from Railway Board, no instruction was issued/action suggested for change in MODVAT Clause. Supplementary agreement was also not made.
2. Railway Board and the firm have not subsequently entered into contractual modification of the MODVAT clause.
3. Where a fixed amount has been indicated to be retained by the firm, downward variation of Excise Duty does not affect the fixed amount so indicated.
4. The Respondent shall release to the claimant the differential amount of MODVAT to be calculated by the Respondent as per award ruling under (1) to (3) above.
5. The claimant M/s. Kalimata Ispat Industries Pvt. Ltd. and the Respondent represented by General Manager, Eastern Railway, Kolkata shall pay 50% towards the arbitrators fee and expenditure towards clerkage, stationary and misc. expenses.
6. The payment should be made within four months failing which the interest @ 8% (eight percent) is to be paid to the party from the date of publication of this award.”
4. I do not find any violation of law or the contract or perversity in the Award of the Arbitrator for the objections to have been accepted. In fact, Arbitrator has correctly proceeded by holding that the parties are bound by the specific and categorical terms of the contract. Respondent was therefore held entitled to the MODVAT benefits.
5. In view of the above, the appeal is without any merit and the same is therefore dismissed, leaving the parties to bear their own costs.
FEBRUARY 03, 2014 VALMIKI J. MEHTA, J. Ne