- (1.) This revisional application is directed against an order no. 67 dated April 23, 2007 passed by the learned 5th Bench, City Civil Court at Kolkata in Misc. Case no. 1421 of 2006 whereby dismissing an application for review filed by the petitioner. The opposite party invited tender for supply of 36 k.m. of 80 m.m. diam brass jacketed strainers and other documents. The tender submitted by the petitioner was accepted and a standard contract was executed. The petitioner quoted the rate at Rs. 604 per metre which includes all charges excluding the excise duty and sales tax together with Rs. 74.90 per mrtre as excise duty amounting to Rs. 26,96,400/-. It was further contended that Clause 10 of the Standard Contract provides that taxes, duties, licenses and other charges levied by the authorities in the buyer's country on the goods shall be borne by the buyer and for such taxes, duties, licenses or levies for which the seller is liable will be reimbursed by the buyer upon due proof of liability and payment which means that the payment of excise duty is admissible only on production of authenticated document. It was the further case of the opposite party that excise duty levied on a brass jacketed strainer is up to Rs. 20 lakhs shall be nil but from Rs. 20 lakhs to Rs. 75 lakhs shall be @ 5% with surcharge @ 5% on excise duty and above Rs. 75 lakhs shall be Rs. 2,88,750/- plus duty on the value exceeding Rs. 75 lakhs @ 15% plus 5% surcharge on excise duty. In view of such governing law relating to excise duty the petitioner has received an excess payment of Rs. 6,13,867/- from the opposite party.
(2.) On the basis of the aforesaid fact the opposite party filed the suit for recovery of the said sum of Rs. 6,13,867/- together with interest of Rs. 2,76,240.15 p aggregating to Rs. 8,90,107.15 p and decree for further interest @ 18% from the date of institution till its realization.
(3.) The opposite party initially contested the said suit by filing the written statement, the primary defence taken was that the agreement provides for payment on account of excise duty @ Rs. 74.90 p. per metre. It is further contended that the opposite party cannot resile from the agreement.;