- (1.) By way of this petition, the petitioners have made following prayers : (a) to issue an appropriate writ, order or direction to declare that order-sheet dated 06.07.2015 whereby decision not to pay the service tax amount to the petitioner be quashed and directions be given to Respondent No.3 to pay the service tax amount in accordance with law. (b) to issue an appropriate Writ, order or direction to declare the provisions of Finance Act, 1994 read with Central Excise Act, 1944 as unconstitutional if they do not permit payment of service tax by the service recipient.
(2.) Mr. Sameer Jain, appearing for the petitioners has taken us to Clause 23 of the contract which reads as under : "Clause 23. Standing committee for settlement of Dispute : if any question, difference or objection, whatsoever shall arise in any way, in connection with or arising out of this instrument, or the meaning of operation of any part thereof, or the rights, duties or liabilities of either party then, save in so far, as the decision of any such matter, as herein before provided for, and been so decided, every such matter constituting a total claim of Rs. 5,000/- or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated, or has been rightly terminated, and as regards the rights or obligations of the parties, as the result of such termination, shall be referred for decision to the empowered standing committee, which would consist of the following : (i) Administrative Secretary concerned (ii) Finance Secretary or his nominee, not below the rank of Deputy Secretary. (iii) Law Secretary or his nominee, not below the rank of Joint Legal Remembrance. (iv) Chief Engineer-cum-Addl. Secretary of the concerned department. (v) Chief Engineer concerned (Member-Secretary) The Engineer-in-charge, on receipt of application along with non-refundable prescribed fee, (the fee would be two percent of the amount in dispute, not exceeding Rs. One lac) from the contractor, shall refer the disputes to the committee, within a period of three months from the date of receipt of application."
(3.) After the clause 23, the counsel has taken us to Clause 36A, 36B, 36C, 36D and also clause 51 of the contract which read as under : Clause 36A : The liability, if any, on account of quarry fees, royalties, octroi and any other taxes and duties in respect of materials actually consumed on public work, shall be borne by the Contractor. Clause 36B : The cost of all water connections, necessary for the execution of work, and the cost of water consumed and hire charges of meters and the cost of electricity consumed in connection with the execution of work, shall be paid by the contractor, except where otherwise specifically indicated. Clause 36C : Payment of Sales Tax, and any other Taxes ; Royalty or other tax on materials, issued in the process of fulfilling contract, payable to the Government under rules in force, will be paid by the Contractor himself. Clause 36D : In respect of goods and materials procured by the Contractor, for use in works under the contract, sales tax will be paid by the Contractor himself. But in respect of all such goods manufactured and supplied by the Contractor and works executed order the contract, the responsibility of payment of sales tax would be that of the Engineer-in-charge. Clause 51 : Jurisdiction of Court : In the event of a dispute arising between the parties hereto, in respect of any of the matters comprised in this agreement, the same shall be settled by a competent court having jurisdiction over the place, where agreement is executed and by no other court, after completion of proceedings under clause 23 of the Contact.;