SHANTI ENGGICON PRIVATE LIMITED Vs. NTPC LIMITED

JUDGEMENT

(1.) The arbitrary action on the part of the Respondents threatening and forcing the Petitioner vide Annexure P/8 dated 09.01.2020 to withdraw the bid, despite rating the Petitioner as L-1, with an attempt to forfeit the Earnest Money Deposit (for short 'the EMD') and to blacklist the Petitioner from participating in future Tenders for not having separately mentioned the GST rate in the tender, however taking a differential treatment in the case of the remaining three bidders and to have it awarded to the party of their choice, is put to challenge in this writ petition.

(2.) Annexure P/2 Notice Inviting Tender (for short 'the NIT') was issued by the 2nd Respondent on 09.09.2019 for Talaipalli Coal Mining Project situated in the Raigarh District of the State of Chhattisgarh, which is under the control of the 3rd Respondent. The tender was floated for construction of the road for Coal Evacuation (Section B) and road for Township approach for Talaipalli Coal Mining Project (Section C). The purpose of construction of the above two roads was quite different insofar as Section B road was to be used for coal evacuation which will be located outside the Township area and can be used by the general public as well, whereas Section C road was to be constructed inside the township area, which was strictly to be a private road. As a matter of fact, when the Goods and Service Tax Act, 2017 was introduced from July, 2017, the rate of taxes payable, it being a work contract, was fixed as 18% (9% CGST + 9% SGST). Subsequently, as per Annexure P/4 dated 22.08.2017, pursuant to the meeting of the GST Council, the rate was modified, segregating the rate of tax with reference to the purpose of the road by virtue of which construction of Section B road; was to attract a tax liability of only 12% (6% CGST + 6% SGST), whereas Section C road which was for internal/township purpose, it was to carry a higher rate of 18% (9% CGST + 9% SGST).

(3.) As mentioned above, when Annexure P/2 NIT was issued on 09.09.2019, Annexure P/4 modified rate of GST had already been brought into force from 22.08.2017, but in the relevant column of the form contained in the web portal, there was only one column for mentioning the GST rate. The tender conditions specifically stipulated that the Probable Amount of Contract (for short 'the PAC') was Rs.24,32,45,371.37 and that the rate had to be quoted by the bidder by "percentage " - higher or lower, including all taxes/duties.