Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3905 OF 2012

(Arising out of SPECIAL LEAVE PETITION (CIVIL) NO. 17943/2008)

Rashtriya Ispat Nigam Limited … Appellant

Versus

M/s Dewan Chand Ram Saran …

Respondent

J U D G E M E N T

H.L. Gokhale J.

Leave granted.

2. This appeal is directed against the judgment and

order dated 25.2.2008 rendered by a Division Bench of the

Bombay High Court in Appeal No.188/2006 confirming the

decision of a single Judge of that court dated 4.7.2005 in

Arbitration Petition No.364/2004, whereby the High Court

has set aside the award dated 25.5.2004 passed by a sole

Page 2 arbitrator which award had dismissed the Claim Petition of

the respondent against the appellant herein.

3. The questions involved in this appeal are two-fold,

(i) firstly, whether under the relevant clause 9.3 of the terms

and conditions of the contract between the parties, the

appellant was right in deducting the service tax from the

bills of the respondent and, (ii) secondly, whether the

interpretation of this clause and the consequent award

rendered by the arbitrator was against the terms of the

contract and therefore illegal as held by the High Court, or

whether the view taken by the arbitrator was a possible, if

not a plausible view.

The contract and the relevant clause:

4. The appellant – a Govt. of India undertaking is

engaged in the manufacture of steel products and pig-iron

for sale in the domestic and export markets. The respondent

is a partnership firm carrying on the business of

transportation of goods. In the year 1997, the appellant

appointed the respondent as the handling contractor in

2

Page 3 respect of appellant’s iron and steel materials from their

stockyard at Kalamboli, Navi Mumbai. A formal contract was

entered into between the two of them on 17.6.1998. ‘Terms

and conditions for handling of iron and steel materials’

though recorded in a separate document, formed a part of

this contract. Clause 9.0 of these terms and conditions was

concerning the payment of bills. Clause 9.3 thereof read as

follows:-

“9.3.The Contractor shall bear and pay

all taxes, duties and other liabilities in

connection with discharge of his obligations

under this order. Any income tax or any other

taxes or duties which the company may be

required by law to deduct shall be deducted at

source and the same shall be paid to the Tax

Authorities for the account of the Contractor

and the Company shall provide the Contractor

with required Tax Deduction Certificate.”

Evolution of service tax:

5. Service Tax was introduced for the first time under

Chapter V of the Finance Act, 1994. Section 66 of the Act

was the charging section and it provided for the levy of

service tax at the rate of five per cent of the value of the

taxable services. “Taxable service” was defined in Section

3

Page 4 65 to include only three services namely any service

provided to an investor by a stockbroker, to a subscriber by

the telegraph authority, and to a policy-holder by an insurer

carrying on general insurance business. Section 68 required

every person providing taxable service to collect the service

tax at specified rates. Section 69 of the Finance Act, 1994

provided for registration of the persons responsible for

collecting service tax. Sub-sections (2) and (5) indicated that

it was the provider of the service who was responsible for

collecting the tax and obliged to get registered.

6. By the Finance Act, 1997 the first amendment to

Section 65 of the Finance Act, 1994 was made, inter alia, by

extending the meaning of “taxable service” from three

services to 18 different services categorised in Section

65(41), sub-clauses (a) to (r). Sub-clause (j) made service to

a client by clearing and forwarding agents in relation to

clearing and forwarding operations, a taxable service.

Similarly, service to a customer of a goods transport

operator in relation to carriage of goods by road in a goods

carriage was, by sub-clause (m), also included within the

4

Page 5 umbrella of taxable service. The phrases “clearing and

forwarding agent” and “goods transport operator” were

defined as follows:

“65. (10) ‘clearing and forwarding agent’

means any person who is engaged in

providing any service, either directly or

indirectly, connected with clearing and

forwarding operations in any manner to any

other person and includes a consignment

agent;

***

(17) ‘goods transport operator’ means

any commercial concern engaged in the

transportation of goods but does not include a

courier agency;”

7. The service tax was brought into force on

5.11.1997 vide Notification No.44/77 with effect from

16.11.1997. Consequent thereupon, the appellant deducted

5% tax on the bills of the respondent for the period

30.11.1997 to 6.8.1999. The respondent, however, refused

to accept the deductions, and raised a dispute for arbitration

under clause 15 of the terms and conditions mentioned

above. This dispute was referred for the arbitration of a sole

arbitrator, a retired Judge of the Delhi High Court.

5

Page 6 8. Rules 2 (xii) and 2 (xvii) of the Service Tax Rules,

1994 as amended in 1997 made the customers or clients of

clearing and forwarding agents and of goods transport

operators as assesses. These amended rules were

challenged and were held ultra vires the Act by this Court in

Laghu Udyog Bharati vs. Union of India reported in 1999

(6) SCC 418. The Court examined the provisions of the Act

and particularly Section 68 and the definition of “person

responsible for collecting the service tax” in Section 65(28)

and in terms held in paragraph 9 that “the service tax is

levied by reason of the services which are offered. The

imposition is on the person rendering service.”

9. To overcome the law laid down in Laghu Udyog

Bharati (supra), the Finance Act 2000 brought in an

amendment on 12.5.2000 (effective from 16.7.1997) in the

manner indicated in Section 116 which reads as follows:

“116. Amendment of Act 32 of 1994.

— During the period commencing on and

from the 16th day of July, 1997 and

ending with the 16th day of October,

1998, the provisions of Chapter V of the

Finance Act, 1994 shall be deemed to

6

Page 7 have had effect subject to the following

modifications, namely—

(a) in Section 65,—

(i) for clause (6), the following clause had

been substituted, namely—

‘(6) “assessee” means a person liable

for collecting the service tax and

includes—

(i) his agent; or

(ii) in relation to services provided by

a clearing and forwarding agent, every

person who engages a clearing and

forwarding agent and by whom

remuneration or commission (by

whatever name called) is paid for such

services to the said agent; or

(iii) in relation to services provided by

a goods transport operator, every person

who pays or is liable to pay the freight

either himself or through his agent for

the transportation of goods by road in a

goods carriage;’

(ii) after clause (18), the following clauses

had been substituted, namely—

‘(18-A) “goods carriage” has the

meaning assigned to it in clause (14) of

Section 2 of the Motor Vehicles Act, 1988;

(18-B) “goods transport operator”

means any commercial concern engaged in

the transportation of goods but does not

include a courier agency;’;

(iii) in clause (48), after sub-clause (m), the

following sub-clause had been inserted,

namely—

7

Page 8 ‘(m-a) to a customer, by a goods

transport operator in relation to carriage of

goods by road in a goods carriage;’;

(b) in Section 66, for sub-section (3), the

following sub-section had been substituted,

namely—

‘(3) On and from the 16th day of July,

1997, there shall be levied a tax at the rate

of five per cent of the value of taxable

services referred to in sub-clauses (g), (h),

(i), (j), (k), (l), (m), (m-a), (n) and (o) of

clause (48) of Section 65 and collected in

such manner as may be prescribed.’;

(c) in Section 67, after clause (k), the

following clause had been inserted, namely—

‘(k-a) in relation to service provided by goods

transport operator to a customer, shall be the

gross amount charged by such operator for

services in relation to carrying goods by road

in a goods carriage and includes the freight

charges but does not include any insurance

charges’.”

Proceedings prior to this appeal:

10. The respondent contended before the learned

arbitrator that its dominant work was of transporting and

forwarding of goods by road, and not of a handling

contractor, and that the mere fact that it may be required to

handle the goods in a manner and to the extent provided in

8

Page 9 the contract between the parties, was merely incidental. The

learned arbitrator, however, noted that the contract between

the parties dated 17.6.1998 referred the respondent as the

‘handling contractor’, who shall undertake the job of

handling iron and steel materials at the yard of the

company on the terms and conditions stipulated therein as

also in the manner and in all respects as mentioned in the

contract. He referred to the notice inviting tender, the

declaration of particulars relating to the tender, the schedule

of rates, the provision relating to scope of work and the

obligations of the contractor detailed in clause 6. In that

connection, he referred to the letter dated 27.11.1997

received from the office of Commissioner of Central Excise,

Chennai wherein he had also held the work of the handling

contractor as that of the clearing and forwarding agent liable

to pay service tax. The arbitrator therefore held that the

respondent was forwarding and clearing contractor.

11. Thereafter, he dealt with the question of liability to

pay the service tax, and by a detailed award dated

25.5.2004 rejected the contentions of the respondent and

9

Page 10 dismissed the Claim Petition. In the penultimate paragraph,

the learned arbitrator held as follows:-

“Clause 9.3 of the Tender Terms and

Conditions of the Contract, to my mind is clear

& unambiguous. Thus it is the Respondent

who is the assessee. It is also true that

liability is of the Respondent to pay the tax.

But then, under the contract, under clause 9.3

to be more precise, it was agreed that it would

be the claimant who shall bear “all taxes,

duties and other liabilities” which accrue or

become payable “In connection with the

discharge of his obligation.” Service tax was

one such tax/duty or a liability which was

directly connected with “the discharge of his

obligation” as the clearing & forwarding agent.

It is this contractual obligation which binds the

claimant and though under the law it is the

respondent who is the assessee, it can &

rightly did deduct the service tax from the bills

of the claimant in terms of the said contractual

obligation, the validity and legality of which

has not been challenged before me.”

12. This award led the respondent to file a petition

under Section 34 of the Arbitration and Conciliation Act,

1996 being Arbitration Petition No.364/2004 before the High

Court of Judicature at Bombay. A Learned Single Judge of

the High Court allowed that petition, and set aside the award

with costs by judgment and order dated 4.7.2005. The

learned Judge while arriving at that conclusion referred to

1

Page 11 the definition of the term “assessee” and held that insofar as

service tax under the Finance Act, 1994 is concerned, the

appellant as the assessee was liable to pay the tax. The

learned Judge observed as follows:-

“The purpose of clause 9.3 is not to shift

the burden of taxes from the assessee who is

liable under the law to pay the taxes to a

person who is not liable to pay the taxes under

the law. In my opinion, the award therefore

suffers from total non-application of mind and

therefore, it is required to be set aside.”

13. The appellant preferred an appeal to a Division

Bench of Bombay High Court against the said judgment and

order. The appeal was numbered as Appeal No. 188/2006.

The Division Bench dismissed the appeal by holding as

follows:

“16. ……..As noted, the Respondents are

not “Assessee” under the Service Tax Act.

The Appellants are, being recipients, resisted

and have filed the return. It is, therefore, the

appellant’s obligation to pay the Service Tax

and not that of the Respondents, there is no

specific clause that such service tax, liability

would be deductible from the amount payable

by the Appellants to the Respondent pursuant

to the contract in question. The deduction as

claimed and as directed by the award in

absence of any agreement or clause,

therefore, is not correct.”

1

Page 12 14. Being aggrieved by the said judgment and order,

the present appeal has been filed. Mr. S. Ganesh, learned

Senior Counsel has appeared for the appellant, and Mr. K.K.

Rai, learned Senior Counsel has appeared for the

respondent.

Submissions on behalf of the appellant:

15. As stated at the outset, the question involved

before the arbitrator and in the offshoots therefrom, is with

respect to interpretation of the above referred clause No.9.3.

Mr. Ganesh, learned counsel for the appellant submitted that

the entire purpose in providing this clause was to provide

that the contractor will be responsible for the taxes, duties

and the liabilities which would arise in connection with

discharge of the obligations of the contractor. The

obligations of the contractor were laid down in clause 6.0 of

the terms and conditions, referred to above. This clause

provides the details of contractor’s responsibility for

clearance of the consignments of the appellant. The liability

to pay the service tax arises out of the service provided by

1

Page 13 the respondent. There is no dispute that in view of the

above referred amendment of 2000, the appellant as the

recipient of the service is the assessee under the service tax

law. However, there is no prohibition in the law against

shifting the burden of the tax liability. In the instant case,

the tax liability will depend upon the value of the taxable

service provided by the respondent, and therefore clause 9.3

required the respondent to take the burden. Mr. Ganesh

cited the example of sales tax which the assessee can shift

to the customer. In his submission, the phrase, “liabilities in

connection with the discharge of his obligations” under this

clause will have to be construed in that context.

16. The learned counsel submitted that interpretation

of clause 9.3 by the arbitrator was the correct one, and in

any case, was a possible if not a plausible one. The Courts

were, therefore, not expected to interfere therein. He

submitted that the dispute in the present case was

concerning the interpretation of a term of the contract. It

has been laid down by this Court that in such situations,

even if one is of the view that the interpretation rendered by

1

Page 14 the arbitrator is erroneous, one is not expected to interfere

therein if two views were possible. Mr. Ganesh referred to

the following observations of this Court in H.P. State

Electricity Board vs. R.J. Shah reported in [1999 (4) SCC

214] at the end of paragraph 27, which are to the following

effect:-

“27. …… ..The dispute before the

arbitrators, therefore, clearly related to the

interpretation of the terms of the contract.

The said contract was being read by the

parties differently. The arbitrators were,

therefore, clearly called upon to construe or

interpret the terms of the contract. The

decision thereon, even if it be erroneous,

cannot be said to be without jurisdiction. It

cannot be said that the award showed that

there was an error of jurisdiction even though

there may have been an error in the exercise

of jurisdiction by the arbitrators.”

17. It was also submitted by the learned counsel that

the court is not expected to substitute its evaluation of the

conclusion of law or fact arrived at by the arbitrator and

referred to the following observation in paragraph 31 in M/s

Sudarsan Trading Co. vs. Govt. of Kerala reported in

[1989 (2) SCC 38].

1

Page 15 “………… in the instant case the court had

examined the different claims not to find out

whether these claims were within the disputes

referable to the arbitrator, but to find out

whether in arriving at the decision, the

arbitrator had acted correctly or incorrectly.

This, in our opinion, the court had no

jurisdiction to do, namely, substitution of its

own evaluation of the conclusion of law or fact

to come to the conclusion that the arbitrator

had acted contrary to the bargain between the

parties.……….”

Submissions on behalf of the respondent

18. Learned senior counsel for the respondent Mr. Rai,

on the other hand, submitted that the concerned clause

cannot be read to imply a right to shift the tax liability. He

submitted that the appellant was the assessee for the

payment of service tax, and the concerned clause merely

laid down that the contractor will have to pay all taxes,

duties and other liabilities which he was otherwise required

to pay if they arise in connection with discharge of his

obligations under the contract. The appellant was entitled to

deduct only the income tax and other taxes or duties which

it was so required by law to deduct. The disputed

deductions would mean that the contractor had taken over

1

Page 16 the tax liability of the appellant as if the liability was on the

contractor. He referred to the judgment of this Court in

Gujarat Ambuja Cements Ltd. vs. Union of India

reported in [2005 (4) SCC 214]. This judgment discusses the

evolution of the service tax as to how service tax was

introduced by the Finance Act, 1994, how the meaning of

taxable service was extended in 1997, and how the

definition of assessee subsequently included the person who

engages a clearing and forwarding agent, or a goods

transport operator.

19. He drew our attention to paragraph 21 of Gujarat

Ambuja Cement Ltd. (supra) wherein this Court observed

as follows:

“21. As is apparent from Section 116 of

the Finance Act, 2000, all the material portions

of the two sections which were found to be

incompatible with the Service Tax Rules were

themselves amended so that now in the body

of the Act by virtue of the amendment to the

word “assessee” in Section 65(5) and the

amendment to Section 66(3), the liability to

pay the tax is not on the person providing the

taxable service but, as far as the services

provided by clearing and forwarding agents

and goods transport operators are concerned,

on the person who pays for the services. As far

1

Page 17 as Section 68(1-A) is concerned by virtue of

the proviso added in 2003, the persons

availing of the services of goods transport

operators or clearing and forwarding agents

have explicitly been made liable to pay the

service tax.”

20. The respondent relied upon the judgment of this

Court in Bank of India vs. K. Mohan Das reported in [2009

(5) SCC 313] by one of us (Lodha, J.). The issue in that

matter was with respect to the interpretation of some of the

provisions of the voluntary retirement scheme of 2000 of the

appellant bank. In paragraph 32 thereof this Court has

observed as follows:-

“….32. The fundamental position is that

it is the banks who were responsible for

formulation of the terms in the

contractual Scheme that the optees of

voluntary retirement under that Scheme

will be eligible to pension under the

Pension Regulation, 1995, and, therefore,

they bear the risk of lack of clarity, if any.

It is a well-known principle of

construction of a contract that if the

terms applied by one party are unclear,

an interpretation against that party is

preferred (verba chartarum fortius

accipiuntur contra proferentem).”

1

Page 18 Based on this paragraph, it was submitted that the

arbitrator was bound to follow the principle of contra

proferentem in the present case. It was contended that

since the propounder of the contract was the petitioner in

case of vagueness, the rule of contra proferentem will have

to be applied in interpreting the present contract. Therefore,

the liability to pay service tax was on the appellant as the

assessee, and it could not be contended that under Clause

9.3 that liability was accepted by the respondent. The

judgment in Bank of India (supra) was also pressed into

service to submit that clause 9.3 and the contract must be

read as a whole, and an attempt should be made to

harmonise the provisions.

21. It was submitted by the respondent that this

Hon’ble Court very succinctly summarised the legal

principles for setting aside an award in SAIL vs. Gupta

Brother Steel Tubes Ltd. (by one of us – Lodha J.)

reported in [2009 (10) SCC 63] in paragraph 18 wherefrom

principles (i) and (iv) would be attracted. As against that,

the appellant stressed sub-paras (ii) & (vi) of the same

1

Page 19 paragraph 18. We may therefore quote the entire paragraph

which reads as follows:-

“….18. It is not necessary to multiply the

references. Suffice it to say that the legal position

that emerges from the decisions o this Court can

be summarised thus:

(i)In a case where an arbitrator travels

beyond the contract, the award would

be without jurisdiction and would

amount to legal misconduct and

because of which the award would

become amenable for being set aside

by a court.

(ii)An error relatable to interpretation of

the contract by an arbitrator is an

error within his jurisdiction and such

error is not amenable to correction by

courts as such error is not an error on

the face of the award.

(iii)If a specific question of law is

submitted to the arbitrator and he

answers it, the fact that the answer

involves an erroneous decision in

point of law does not make the award

bad on its face.

(iv)An award contrary to substantive

provision of law or against the terms

of contract would be patently illegal.”

(v)Where the parties have deliberately

specified the amount of

compensation in express terms, the

party who has suffered by such

breach can only claim the sum

specified in the contract and not in

excess thereof. In other words, no

award of compensation in case of

1

Page 20 breach of contract, if named or

specified in the contract, could be

awarded in excess thereof.

(vi)If the conclusion of the arbitrator is

based on a possible view of the

matter, the court should not interfere

with the award.”

Consideration of the rival submissions:

22. We have noted the submissions of both the

learned counsel. If we see the evolution of the service tax

law, initially the liability to pay the service tax was on the

service provider, though it is now provided by the

amendment of 2000 that the same is on the person who

avails of the service. It is relevant to note that the

agreement between the parties was entered into on

7.6.1998. The appellant had deducted 5% service tax on the

bills of the respondent for the period 30.11.1997 to 6.8.1999

which in fact it was required to deduct under the service tax

law as it then stood. Subsequently, by the amendment of the

definition of assessee effected on 12.5.2000 (though

retrospectively effective from 16.7.1997) the liability to pay

the service tax was shifted to the person who was availing

the service as the assessee. We must note that it is

2

Page 21 thereafter that the parties have gone for arbitration, and the

respondent has relied upon the changed definition of

assessee to contend that the tax liability was that of the

appellant.

23. We are concerned with the question as to what

was the intention of the parties when they entered into the

contract on 7.6.1998, and how the particular clause 9.3 is to

be read. Since clause 9.3 of the contract refers to the

liabilities of the contractor in connection with discharge of

his obligations, one will have to refer to clause 6 of the

“Terms and Conditions for Handling of Iron and Steel

Materials of RINL, VSP” which was an integral part of the

contract between the petitioner and the respondent, and

which was titled “Obligations of the Contractor”. The said

paragraph 6 deals in great details with the work which was

required to be done by the respondent as clearing and

forwarding agent. It is therefore absolutely clear that the

term “his obligations under this order” in clause 9.3 of the

contract denoted the contractor’s responsibilities under

2

Page 22 clause 6 in relation to the work which he was required to

carry out as handling contractor.

24. If we look into this clause 6.0, we find that the

obligations of the contractor are defined and spelt out in

minute details. Clause 6.0 is split into 33 sub-clauses, and it

provides for obligations of the contractor in various

situations concerning the clearance of consignments, and

the services to be provided by the respondent as the

handling contractor wherefrom the tax liability arises. The

contractor is made responsible for pilferage, any loss or

misplacement of the consignments also. Clause 9.0 which

deals with payment of bills, provides in clauses 9.1 and 9.2

that the bills will be prepared on the basis of the actual

operations performed and the materials accounted on the

basis of weight carried and received. Clause 9.3 has to be

seen on this background. The tax liability will depend upon

the value of the taxable service provided, which will vary

depending upon the volume of the goods handled.

2

Page 23 25. It was submitted on behalf of the respondent that

clause 9.3 and the contract must be read as a whole and one

must harmonise various provisions thereof. However, in fact

when that is done as above, clause 9.3 will have to be held

as containing the stipulation of the contractor accepting the

liability to pay the service tax, since the liability did arise out

of the discharge of his obligations under the contract. It

appears that the rationale behind clause 9.3 was that the

petitioner as a Public Sector Undertaking should be thereby

exposed only to a known and determined liability under the

contract, and all other risks regarding taxes arising out of

the obligations of the contractor are assumed by the

contractor.

26. As far as the submission of shifting of tax liability

is concerned, as observed in paragraph 9 of Laghu Udyog

Bharati (Supra), service tax is an indirect tax, and it is

possible that it may be passed on. Therefore, an assessee

can certainly enter into a contract to shift its liability of

service tax. Though the appellant became the assessee due

to amendment of 2000, his position is exactly the same as in

2

Page 24 respect of Sales Tax, where the seller is the assessee, and is

liable to pay Sales Tax to the tax authorities, but it is open to

the seller, under his contract with the buyer, to recover the

Sales Tax from the buyer, and to pass on the tax burden to

him. Therefore, though there is no difficulty in accepting

that after the amendment of 2000 the liability to pay the

service tax is on the appellant as the assessee, the liability

arose out of the services rendered by the respondent to the

appellant, and that too prior to this amendment when the

liability was on the service provider. The provisions

concerning service tax are relevant only as between the

appellant as an assessee under the statute and the tax

authorities. This statutory provision can be of no relevance

to determine the rights and liabilities between the appellant

and the respondent as agreed in the contract between two

of them. There was nothing in law to prevent the appellant

from entering into an agreement with the respondent

handling contractor that the burden of any tax arising out of

obligations of the respondent under the contract would be

borne by the respondent.

2

Page 25 27. If this clause was to be read as meaning that the

respondent would be liable only to honour his own tax

liabilities, and not the liabilities arising out of the obligations

under the contract, there was no need to make such a

provision in a bilateral commercial document executed by

the parties, since the respondent would be otherwise also

liable for the same. In Bank of India (supra) one party viz.

the bank was responsible for the formulation of the

Voluntary Retirement Scheme, and the employees had only

to decide whether to opt for it or not, and the principle of

contra proferentem was applied. Unlike the VRS scheme, in

the present case we are concerned with a clause in a

commercial contract which is a bilateral document mutually

agreed upon, and hence this principle can have no

application. Therefore, clause 9.3 will have to be read as

incorporated only with a view to provide for contractor’s

acceptance of the tax liability arising out of his obligations

under the contract.

28. It was pointed out on behalf of the appellant that it is

conventional and accepted commercial practice to shift such

2

Page 26 liability to the contractor. A similar clause was considered

by this Court in the case of Numaligarh Refinery Ltd. vs.

Daelim Industrial Co. Ltd., reported in [2007 (8) SCC

466]. In that matter, the question was as to whether the

contractor was liable to pay and bear the countervailing duty

on the imports though this duty came into force subsequent

to the relevant contract. The relevant clause 2(b) read as

follows:

“2(b) All taxes and duties in respect of

job mentioned in the aforesaid contracts shall

be the entire responsibility of the

contractor…”

Reading this clause and the connected documents, this

Court held that they leave no manner of doubt that all the

taxes and levies shall be borne by the contractor including

this countervailing duty.

29. In any case, assuming that clause 9.3 was capable of

two interpretations, the view taken by the arbitrator was

clearly a possible if not a plausible one. It is not possible to

say that the arbitrator had travelled outside his jurisdiction,

or that the view taken by him was against the terms of

2

Page 27 contract. That being the position, the High Court had no

reason to interfere with the award and substitute its view in

place of the interpretation accepted by the arbitrator. The

legal position in this behalf has been summarized in

paragaph 18 of the judgment of this court in SAIL vs. Gupta

Brother Steel Tubes Ltd. (supra) and which has been

referred to above. Similar view has been taken later in

Sumitomo Heavy Industries Ltd. vs. ONGC Ltd. reported

in [2010 (11) SCC 296] to which one of us (Gokhale J.) was a

party. The observations in paragraph 43 thereof are

instructive in this behalf. This paragraph 43 reads as

follows:

“43. ………The umpire has considered the fact

situation and placed a construction on the

clauses of the agreement which according to

him was the correct one. One may at the

highest say that one would have preferred

another construction of Clause 17.3 but that

cannot make the award in any way perverse.

Nor can one substitute one's own view in such a

situation, in place of the one taken by the

umpire, which would amount to sitting in

appeal. As held by this Court in Kwality Mfg.

Corpn. v. Central Warehousing Corpn*. The

Court while considering challenge to arbitral

award does not sit in appeal over the findings

and decision of the arbitrator, which is what the

High Court has practically done in this matter.

2

Page 28 The umpire is legitimately entitled to take the

view which he holds to be the correct one after

considering the material before him and after

interpreting the provisions of the agreement. If

he does so, the decision of the umpire has to be

accepted as final and binding.”

*[2009 (5) SCC

142]

30. In view of what is stated above, the respondent as

the contractor had to bear the service tax under clause 9.3

as the liability in connection with the discharge of his

obligations under the contract. The appellant could not be

faulted for deducting the service tax from the bills of the

respondent under clause 9.3, and there was no reason for

the High Court to interfere in the view taken by the arbitrator

which was based, in any case on a possible interpretation of

clause 9.3. The learned single Judge as well as the Division

Bench clearly erred in interfering with the award rendered by

the arbitrator. Both those judgments will, therefore, have to

be set-aside.

31. Accordingly, the appeal is allowed and the impugned

judgments of the learned Single Judge as well as of the

Division Bench, are hereby set aside. The award made by

2

Page 29 the arbitrator is upheld. The parties will bear their own

costs.

………… ..

…………………… ..J.

[ R.M. Lodha]

………………………………

…..J.

[ H.L. Gokhale ]

New Delhi

Dated : 25

th

April, 2012

2