The Superintending Engineer, Fishing Harbour Projects vs Andhra Civil Construction Company

Mishra, J.—This appeal is preferred against the order passed by the learned Single Judge in Application No. 6413 of 1991 in O.P. No. 37

of 1989 dated 10.3.1992 to refer two additional issues to arbitration for adjudication by a retired Chief Justice of Gujarat High Court.

The respondent in Application No. 6413 of 1991, viz., Superintending Engineer, Fishing Harbour, is the appellant. The respondent is Andhra

Civil Constructions. It is averred in the petition filed by the respondent herein that they entered into a contract with the appellant for the

construction of a rubble-cum-dolosse protection (eastern breakwater) at the Chinnamuttom Fishing Harbour in Kanyakumari and an agreement

dated 157.1984 was entered into between the parties. The above work was completed on 30.9.1987. During the course of execution of work,

certain disputes arose between the applicant and the respondent and as there was an arbitration clause and wanted to refer the dispute to

arbitration. However, the appellant herein filed O.P. No. 37 of 1989 before this Court, u/s 33 of the Arbitration Act contending that the disputes

could not be referred to arbitration. During the hearing of the above O.P., both parties filed a memo before the learned Single Judge of this Court,

for the appointment of Justice P.R. Gokulakrishnan (Retired Chief Justice of the Gujarat High Court), as the sole arbitrator to hear and decide the

disputes between the parties. Accordingly, as per an order dated 18.2.1991, the learned Single Judge appointed Justice P.R. Gokulakrishnan as

the sole arbitrator and the arbitration proceedings started with regard to the disputes between the parties. Later, the respondent Andhra Civil

Constructions Company, filed another application-Application No. 6413 of 1991-for referring two additional issues for arbitration,

(1) the liability, if any, for the payment of excise duty on do losses is that of the respondent and is not the Government bound to discharge such

liability and help the contractor indemnified against the same and

(2) Whether the respondent is liable to refund the Security Deposit of Rs. 5.56 lakhs to the applicant to the arbitration of Mr. Justice P.R.

Gokulakrishnan?

The appellant herein filed objections to refer the above two additional issues to arbitration. The learned Single Judge, however, held as follows

It is not the case of the Department that the dispute now raised by the petitioner in this application is not referable to the Arbitrator. The only

reason given was that it is unnecessary to bring this matter before the Arbitrator when an appeal is pending before the duly constituted appellate

authority. In my view, to avoid multiplicity of proceedings, the disputes referred to in paragraph 6(1) and (2) have to be referred to the same

Arbitrator which will avoid multiplicity of proceedings. That apart, the Arbitrator is dealing with the terms of the agreement and other factual

considerations exhaustively with reference to the present disputes. It will be advantageous to both parties to have an adjudication of the two

disputes now raised, also before the same Arbitrator. That apart, since a lot of documentation, including the agreement are already with the learned

Arbitrator, duplication of such documents can also be avoided.

Aggrieved by the above order, the appellant herein has preferred this appeal. It is contended by the learned Additional Government Pleader that

the order of the learned Single Judge is unsustainable in law. In any event, the learned single Judge erred in law in referring the following additional

dispute, viz,

The liability, if any, for the payment of excise duty on dolosse is that of the respondent and is not the Government bound to discharge such liability

and help the contractor indemnified against the same.

It is stated that in terms of the contract between the parties, one of the items of work to be done by the respondent was the casting of a concrete

protection to the breakwater, termed as dolosse. These dolosses were to be cast by the respondent at the casting yard provided by the appellant

in the vicinity of the breakwater and then transported and laid on the breakwater. The Collector of Central Excise, Madurai issued a show cause

notice to the respondent on 20.10.1989. The respondent herein replied to the Collector on 30.10.1989 rebutting the contention that casting of

dolosses attracted excise duty. It appears that by an order dated 31.10.1990, the Collector of Central Excise, has held that casting of dolosses

was a manufacturing activity attracting the levy of excise duty thereon and also levied a sum of Rs. 14,58,530.46 towards such excise duty

together with a sum of Rs. 1,00,000 as penalty. Aggrieved by the said order, the respondent herein filed an appeal before the Tribunal and the

same is pending. It is contended by the learned Additional Government Pleader that the learned Single Judge erred in law in referring the above

dispute for arbitration. It is contended that the payment of excise duty is a statutory liability arising out of the Central Excises and Salt Act, 1944

and it cannot be adjudicated in arbitration proceedings. He also contended that the appellant is entitled to deduct a sum of Rs. 2,00,000 as repair

charges for Demag Crane from the security deposit of Rs. 5.56 lakhs as the respondent has not returned the Marshall Demag V-72 Crane in good

working condition.

On the other hand, learned Counsel for the respondent, Mr. T. Raghavan submitted that the contract between the parties specifically provided

for settlement by arbitration of any dispute that may arise between the parties to the contract. The respondent is entitled to refund of security

deposit of Rs. 5.56 lakhs without any deduction from the appellant. The learned Judge has referred the two additional disputes to the arbitrator

and there is no infirmity in the impugned order passed by the learned Single Judge and the appeal preferred ought to be dismissed.

We are of the view that there is substance in the first contention of the learned Additional Government Pleader to the effect that payment of

Excise duty is a statutory liability arising out of the Central Excises and Salt Act, 1944 and it cannot be adjudicated in arbitration proceedings by

the Arbitrator. It is only the authorities specified under the Central Excises and Salt Act who have the jurisdiction to decide whether excise duty is

attracted for casting of dolosses and whether the same is manufacturing process. As per the Central Excises and Salt Act, excise duty is levied on

manufacture of excisable goods, the person who is liable to pay, is the manufacturer, viz., the persons who manufacture excisable goods. The

Collector of Central Excise has already passed an order holding that casting of dolosses was manufacturing activity attracting levy of excise duty

thereon. It is stated that though the show cause notice was issued to both the appellant and the respondent, the Collector of Excise has proceeded

only against the respondent. The respondent has already preferred an appeal before the Central Excise Appellate Tribunal constituted under the

Act. We are of the view that a statutory liability imposed under an Act has to be decided only by the authorities specified under the Act and the

same cannot be decided in arbitration proceedings before the arbitrator. It is not open to contracting parties to oust the jurisdiction of authorities

specified under the Act and confer jurisdiction to decide the matter in arbitration proceedings before the arbitrator. The first additional issue

therefore cannot be referred to arbitration and the learned Single Judge erred in law in referring the same to be decided by the arbitrator. Further,

the appellate authority constituted under the Act has taken cognizance of the matter. We are of the view that under the Central Excises and Salt

Act, it is the authorities specified under the Act Who have the jurisdiction to decide whether a particular item is chargeable to the excise duty or not

and the hierarchy of authorities specified under the Act alone have to decide the matter. We have not been unaware that parties themselves can

create a contract and make obligatory on either of them payment of taxes etc., and such a condition in the contract can be a subject of arbitration,

if it is so provided in the contract. We have, however, not been persuaded to accept the extreme contention that a contract of this kind shall also

mean a determination of the obligation of the either party which would ultimately bind a statutory authority. The jurisdiction in this behalf created

under a statutory authority shall remain unaffected and the authority concerned shall always proceed against the party obliged under the law

concerned to pay the taxes. We are, therefore, of the view that the first additional issue cannot be decided in arbitration proceedings. It is only the

authorities specified under the Central Excises and Salt Act who have the jurisdiction to decide such matter and the incidence of the levy and

payment will be on the persons specified under the Act. By agreement and mutual consent, no other party can be substituted before the authority

and escape the liability to pay excise duty or any other incidental levy thereon. The learned Judge has erred in law in referring the above dispute to

arbitration We are of the view that a liability under the statute cannot be referred to arbitration and the arbitrator has no jurisdiction to decide such

issue. The learned Judge has erred in law in referring the above dispute for arbitration.

The learned Counsel has also contended that there are specific provisions under the contract to refer such disputes to arbitration. The copy of

the contract has not been placed before us and the learned Counsel has not pointed out any provisions in the said contract. In any event, as we

have taken the view that the statutory liability cannot be decided by any outside authority, viz., the arbitrator and it ought to be decided only by the

authorities specified under the Act and we, therefore, reject the contention of the learned counsel for the respondent.

With regard to the second additional issue, we are of the view that the learned Single Judge was right in referring the same to the arbitration as

the learned Judge felt that it will be advantageous to refer the dispute for adjudication to the same arbitrator as all the documents including the

agreements are already with the arbitrator and duplication of such documents can be avoided. It is the case of the respondent that he has preferred

an appeal against the order of the Collector of Central Excise dated 31.10.1990 and the appeal is pending before the Central Excise Appellate

Tribunal and the payment of excise duty will be subject to the final orders of the appellate authority. However, we observe that it is open to the

respondent after the excise duty is finally decided by the authorities under the Act and after payment of the excise duty, to lake any appropriate

proceedings contending that as per the terms and conditions of the contract, the respondent is entitled for reimbursement of excise duly paid, from

the appellant. Accordingly, the impugned order of the learned Single Judge is set aside with regard to the first additional issue and as far as the

second additional issue is concerned, the order of the learned Single Judge is confirmed, In view of the peculiar facts and circumstances of the

case, there will be no order as to costs.