- (1.) The appellant has preferred this appeal against the judgment dated 17.10.2008 passed by the learned District Judge, Patiala, whereby the objection petition filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') against the award dated 16.05.2005 passed by Hon'ble Mr. Justice Sukhdev Singh Kang (Chief Justice Retd.)- respondent no. 2 was dismissed.
(2.) As per facts of the case, the Excise & Taxation Commissioner, Punjab had invited tenders for the purchase of 10 lakh quintals of molasses. The terms and conditions of the tender had been circulated on 04.02.2000 and the tenders were to be submitted on 08.02.2000. M/s. Superb Agrovet Industries Private Limited-respondent no. 1 (hereinafter referred to as 'the respondent-company') submitted its tender on 08.02.2000 at the following two rates: (i) Rs. 321/- per quintal for distilleries at Patiala and Banur; and (ii) Rs. 330/- per quintal for distilleries at Hamira and Khasa. Both the above rates were inclusive of sales tax at the rate of 8.8% as was applicable on 08.02.2000, as specifically mentioned in the tender. It was also stipulated in Clause 4 of the tender dated 08.02.2000 that in case of any increase or decrease in the rate of Central excise duty or sales tax, the rate quoted in the tender would get changed to the net effect thereto from the date of such increase or decrease. After negotiations/ discussions between the parties, the respondent-company submitted revised offer on 31.03.2000 for supply of 10 lakh quintals of molasses during the year 2000-01 at the revised rate of Rs. 259.25/- per quintal, inclusive of Central excise duty and sales tax for all the four distilleries of Patiala, Banur, Hamira and Khasa. This revised offer was, of course, in continuation of the earlier offer dated 08.02.2000 and was, therefore, inclusive of 8.8% sales tax as was applicable at that time. The offer of the respondent-company being lowest was accepted by the appellant vide acceptance letter dated 12.04.2000. Clearly, the tender offer of the respondent- company for supply of 10 lakh quintals of molasses at the rate of Rs. 259.25/- per quintal was including 8.8% sales tax, as was applicable at that time. Thereafter, a detailed agreement had been entered into between the parties on 26.04.2000 which was duly signed by both the parties. It has been mentioned in the agreement that the respondent-company had offered to supply 10 lakh quintals of molasses at the consolidated rate of Rs. 259.25/- per quintal including tax, excise duty and freight charges. The said tender had been accepted by the appellant. Clause 9 of the said agreement prescribes that if any tax or duty is enhanced by the Central Government or the Punjab Government, the same would be borne by the State of Punjab. It has also been mentioned in the said agreement that in the event of any dispute arising between the parties, the same shall be referred to for arbitration but the parties shall continue to perform their obligation of supply of molasses during the arbitration proceedings. The Department of Excise and Taxation, Punjab vide notification dated 01.04.2000 enhanced the sales tax to 22% including the surcharge from 8.8% and thus enhanced the liability of sales tax to the tune of 13.2% with effect from 01.04.2000. As such, the sugar mills in the State of Punjab, from whom the respondent-company purchased molasses for supply to the appellant-State, started charging sales tax at the rate of 22%. The respondent-company thereafter submitted a detailed representation to the appellant-State on 05.09.2000 requesting that the respondent-company should be paid back the excess amount of sales tax paid by it to the sugar mills in the State of Punjab on the purchase of molasses supplied to the appellant-State. However, the appellant-State did not pay any heed to this request of the respondent-company. Ultimately, the respondent-company made a request for settlement of the claim through arbitration. In view of the arbitration clause in the contract agreement, respondent no. 2 was appointed as the arbitrator. The arbitrator passed the award dated 16.05.2005 whereby he allowed the claim of the respondent-company and directed the appellant-State to pay back/refund to the respondent-company Rs. 1,04,45,957.74/- on account of difference due to enhancement in the rate of sales tax on molasses. The appellant-State was also directed to pay interest at the rate of 8% per annum on the aforesaid amount with effect from 01.04.2001 till the date of the award by the arbitrator, i.e. 16.05.2005 and thereafter at the rate of 10% till the date of payment. Besides, costs of Rs. 50,000/- were imposed upon the appellant-State. The appellant-State filed objections under Section 34 of the Act before the learned Additional District Judge, Patiala. Objection petition has been dismissed by the Additional District Judge vide judgment dated 17.10.2008. Hence, this appeal by the appellant-State.
(3.) I have heard Mr. N.D.S. Mann, Additional Advocate General, Punjab appearing for the appellant and Mr. Naresh Markanda, Senior Advocate, assisted by Ms. Kavita Markanda, Advocate, appearing for respondent no. 1 and have gone through the records of the case.;