UNION OF INDIA & OTHERS versus BHARAT FORGE LTD. & ANOTHER

Citation: [2022] 17 S.C.R. 1012 · Decided: 16-08-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 17 S.C.R.
   [2022] 17 S.C.R. 1012
1012
UNION OF INDIA & OTHERS
v.
BHARAT FORGE LTD. & ANOTHER
(Civil Appeal. No. 5294 of 2022)
AUGUST 16, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Goods and Services Act, 2017 – Notice Inviting Tender (NIT)
for procurement of product was published – However, neither the
NIT nor the bid documents, mention the relevant HSN Code
applicable to the product – The bidders were also directed to specify
the percentage of local content of the material being offered, in
accordance with the ‘Make in India’ Policy and preference would
be given to those projects, which have at least 50 per cent local
content – The Writ petitioner – 1st Respondent(L4) quoted price with
GST rate @18%, L1 to L3 quoted the price with GST rate at @5%
due to which the total price of Writ Petitioner became
Rs. 8,29,540/- whereas the total price of the L1 became Rs.6,30,000
– Allegedly, the variance in quoted GST rates has distorted the
tendering process – Hence, 1st Respondent filed writ petition –
Meanwhile, a subsequent tender in regard to the product was granted
to the writ petitioner – Hence, the issue left for determination was
whether writ of mandamus can be issued directing the tendering
authoring to clarify that the procurement product must be taxed @
18% under the Relevant HSN Code, to ensure a uniform bidding –
High Court issued a direction to respondent no.2-Appellant(L1) that
if the GST value is to be added in the base price to arrive at the
total price of offer for the procurement of products in a tender and
is used to determine interse ranking in the selection process then
the appellant should get a clarification regarding correct HSN Code
from GST authorities for the procurement product and mention the
same in the bid document, so as to ensure Level Playing Field –
Aggrieved Appellants filed SLPbefore the Supreme Court – Held :
Clause 2.7.6 in Tender document provide that all the bidders/
tenderers while quoting the rates should clearly indicate the rate of
applicable duties and taxes included in the prices quoted by them –
As per Clause 2.7.7, tenderers should ensure that they are GST
compliant and their quoted tax rates are as per GST Law – Clause
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2.8.6, provides that the purchaser (appellants) will not be
responsible for the payment of taxes and duties paid by the supplier,
on the basis of the misclassification or a misapprehension of law –
Clause 2.9.2, provides that the information about the tax liability is
not forthcoming in the bid, the bid will be considered as inclusive –
It provides for a clear duty with the tenderer to acquaint themselves
with all the applicable taxes and duties – Clause 2.9.2, which makes
it clear that a tenderer may quote a rate without including any tax
component – Hence, successful tenderer is, liable to pay the GST
by filing returns and carrying out self-assessment – The Officer,
dealing with the supplier, would have jurisdiction in the matter in
order to ensure that the successful tenderer pays the tax due and to
further ensure that, by not correctly quoting the GST rate, there is
no tax evasion – The appellants shall indicate that the, tenderers
will, in their bids, indicate the details of their Assessing Officers so
that appellants can effectively comply with the direction given –
The judgment of High Court set aside.
Writ of Mandamus – Scope of – Writ of Mandamus would lie
only when a Statute imposes a duty and there is a failure in the
discharge of duty - Mandamus would lie if the Authority, which had
a discretion, fails to exercise it and prefers to act under the dictation
of another Authority – Writ of Mandamus or a direction in the nature
thereof had been given a very wide scope in the conditions prevailing
in this country and it is to be issued wherever there is a public duty
and there is a failure to perform and the courts will not be bound by
technicalities and its chief concern should be to reach justice to the
wronged – The appellants have no statutory duty, which could have
been enforced in the manner done in the impugned Judgment –
There is no public duty which is enforceable.
Allowing the appeal, the Court
Held :1. It is clear that a Writ of Mandamus or a direction,
in the nature of a Writ of Mandamus, is not to be withheld, in the
exercise of powers of Article 226 on any technicalities. This is
subject only to the indispensable requirements being fulfilled.
There must be a public duty

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