KALPATARU POWER TRANSMISSION Vs. UNION OF INDIA

JUDGEMENT

(1.) The matter seems to us to be identical to Writ Petition 668 of 2019 in which we have just delivered a short judgment. This matter also arises under that the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Cess Act 1996 and the corresponding Rules of 3 and 4 of 1998. We have briefly heard learned AGP on the question of whether or not this Writ Petition is fully covered by the decision of Supreme Court in Uttar Pradesh Power Transmission Corporation Limited & Anr vs CG Power and Industrial Solutions Limited & Anr.,(2021) 6 SCC 15.

(2.) Briefly, the facts. The 1st Petitioner was identified by the 3rd Respondent, MSETCL, as a strategic alliance partner and was a successful bidder for developing transmission infrastructure. This was in 2009. On 27/8/2009, there were two implementation agreements. There were also two Letters of Award issued by MSETCL to the 1st Petitioner. There followed separate and divisible contracts dtd. 20/11/2011. Under these, the 1st Petitioner was a contractor for fabrication and supply of equipment and material required for setting up power transmission infrastructure projects. Several agreements came to be executed in that regard. 42 separate work orders came to be issued to the 1st Petitioner. Each of these covered, broadly stated, two categories of works for each project, viz., (i) equipment and material supply and (ii) erection and construction of transmission towers and associated civil works. The 1st Petitioner registered itself under the Cess Act 1996.

(3.) The submission on behalf of the Petitioners by Mr Khandeparkar is that clearly the Cess Act can only apply to construction contracts and has no application to contracts regarding supply. Despite this MSETCL has made a 1% deduction of Cess on the total project costs, including the supply component.