Gauhati High Court
Hcc-Cpl (Jv) vs The Union Of India And 7 Ors on 24 March, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/5
GAHC010072562021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2683/2021
HCC-CPL (JV)
A JOINT VENTURE GROUP HAVING ITS PROJECT OFFICE SITUATED AT
MADAN MOHAN APARTMENT, NEAR SHANI MANDIR, JAIL ROAD
(SHILLONG PATTY), SILCHAR-01, ASSAM, REP. BY THE REGIONAL HEAD
(NE) SRI SHAIK MOULALI, S/O. JOHN SAHEB, R/O. BLOCK NO.3, FLAT
NO.302, NEW MALHAR SAHARA ESTATES MANSOORABAD, LB NAGAR,
RANGAREDDI, TELANGANA-500068.
VERSUS
THE UNION OF INDIA AND 7 ORS.
REP. BY THE SECRETARY, MINISTRY OF RAILWAYS, RAILWAY BOARD,
ROOM NO.256-A, RAIL BHAVAN, RAISINA ROAD, NEW DELHI, DELHI-
110001, INDIA.
2:THE GENERAL MANAGER
CONSTRUCTION
N.F. RAILWAY
MALIGAON
GUWAHATI
ASSAM
PIN-781011.
3:THE CHIEF ADMINISTRATIVE OFFICER
CONSTRUCTION-III
N.F. RAILWAY
MALIGAON
GUWAHATI
ASSAM
PIN-781011.
Page No.# 2/5
4:THE CHIEF ENGINEER
CONSTRUCTION-VII
N.F. RAILWAY
MALIGAON
GUWAHATI
ASSAM
PIN-781011.
5:THE CHIEF ACCOUNTS OFFICER/C-1
N.F. RAILWAY
MALIGAON
GUWAHATI
ASSAM
PIN-781011.
6:THE PRINCIPAL FINANCIAL ADVISOR
CONSTRUCTION
N.F. RAILWAY
MALIGAON
GUWAHATI
ASSAM
PIN-781011.
7:THE DY. FINANCIAL ADVISOR AND CAO/CONSTRUCTION-II
N.F. RAILWAY
MALIGAON
GUWAHATI
ASSAM
PIN-781011.
8:THE DIRECTOR
CIVIL ENGINEERING (G)
RAILWAY BOARD
ROOM NO.256-A
RAIL BHAVAN
RAISINA ROAD
NEW DELHI
DELHI-110001
INDIA.
9:RAILWAY BOARD
INDIAN RAILWAY
Page No.# 3/5
REPRESENTED BY ITS DIRECTOR
NEW DELHI
Advocate for the Petitioner : MR. D MOZUMDER
Advocate for the Respondent : SC, NF RLY
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 24.03.2022 Heard Mr. D. Mozumder, learned senior counsel assisted by Mr. B.D. Deka, learned counsel for the petitioner and Mr. G. Goswami, learned Standing Counsel, NF Railway for all the respondents.
2. During the course of submissions advanced by the learned counsel for the parties, they have referred to Clause-11 of the Notification dated 22.05.2020 of the Northeast Frontier Railway. The Notification has mentioned that for working out price variation, the rate of "steel" without considering any taxes on pre-GST and post-GST period may be taken for such contracts while evaluation of all PVC bills [excluding final PVC bill] till issuance of policy guidelines on the issue.
3. A stand has been taken on behalf of the respondent Railway authorities to the effect that by a notification dated 24.02.2021, the Ministry of Railways/Railway Board on the subject :- 'Price Variation in Works Contract', has issued a series of clarifications on the matter of price variation appearing in Clause 46.A.7 of the GCC. The Board's clarification is on Clause
46.A.7 to the following effect :
Clarification Sought by Board Clarification Railways Page No.# 4/5 1] For contracts with price For payment of PVC for steel, variation clause 46.A.7 of if the base period is of before GCC-2013 or earlier GST implementation i.e. guidelines issued from the before 01.07.2017 and period Railway Board, for "Steel", it under consideration is post has been mentioned in the GST implementation i.e. after PVC clause that, SAIL's ex- 01.07.2017, Railways can work work price plus Excise duty out PVC for steel, considering thereof [in rupees per ton] for steel cost exclusive of excise the relevant category of the duty before 01.07.2017, and steel supplied by the steel cost exclusive of GST contractor, as prevailing on after 01.07.2017, keeping in the first day of the month in view the provisions of Para which the "steel" was 1265 of Engineering Code. purchased by the contractor or as prevailing on the first day of the month in which "steel" was purchased by the contractor or as a prevailing on the first day of the month in which "steel" was brought to the site by the contractor, whichever is lower, is shall be taken.
GST was implemented w.e.f.
1st July, 2017. Under GST, all the Central and State taxes are subsumed and a single tax is levied on all commodities. In post-GST period, excise duty does not exist.
If the "base period" falls in pre-GST period and "Period under consideration" falls in post-GST period, then how to calculate PVC, needs to be clarified.
4. Para 1265 of the Engineering Code requires consent of the actual parties to the contract to vary a term in the contract and after variation of a term in the original contract in such manner, a subsidiary agreement has to be executed between the parties.
5. Clause-12 of the Joint Procedure Order [JPO] dated 16.12.2019 has provided as under :-
Page No.# 5/5 "It is reiterated that payment of price adjustment is to be made strictly as per provisions of Clause 46A of GCC as provided in contract agreement and as per applicable guidelines from Railway Board. Above guidelines are only clarification and not meant to supersede contract conditions or Railway Boards' guidelines. If any clarification in this JPO contradicts Railway Board's guidelines or the Contract conditions, the later shall prevail. In case of conflict of instructions or ambiguity, matter should be referred to NFR/Con/HQr for clarification."
6. In view of the above, Mr. Goswami, learned Standing Counsel, NF Railway shall obtain further clarification from the Ministry of Railways/Railway Board in respect of the part underlined above.
7. List the case again on 21.04.2022.
JUDGE Comparing Assistant