IN THE HIGH COURT OF JUDICATURE AT PATNA L.P.A.No.505 of 2008. 1. THE STATE OF BIHAR through the Secretary-cum- Commissioner, Road Construction Department, Bihar, Patna 2. the Secretary, Road Construction Department, Bihar, Patna 3. The Director, Purchase an Transport, Road Construction Department, Bihar, Patna 4. The Engineer-cum-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, Bihar, Patna 5. The Chief Engineer, Road Construction Department, Bihar, Patna 6. The Executive Engineer, Mechanical, National Highway Mechanical Division, Road Construction Department, Bihar, Patna.-------- Appellants. Versu M/S GUJRAT APOLO EQUIPMENTS LTD. Prishram E-D, Rashmi Sec Mithakhali Circle Navrangpura, Ahmadabad.-------- Respondent ----------- For the appellants : Mr. Krishna Kant Singh JC to G.P.5 For the respondent : Mr. Sandeep Kumar, Advocate --- 5. 04.9.2009. Heard learned counsel for the appellants and learned counsel for the sole respondent. Through writ petition, the respondent prayed for two reliefs. One was in respect of first consignment of goods for which he was paid substantial amount, but the final payment of balance amount on delivery and installation was not made. The second relief was in respect of second consignment in relation to which a dispute arose with regard to increase in the Central Excise Duty in between the contract date and the 2 delivery. So far as the relief granted to the respondent/writ petitioner in respect of first claim is concerned, the appellants’ contention do not carry much weight. Their only objection is that the delivery was made after some delay and that created difficulties in payment and for claiming such payment, the writ petitioner should have filed a money suit. We are satisfied that on the basis of admitted facts, particularly, in view of the fact that the first consignment although delivered belatedly and beyond the stipulated date was accepted by the appellant and the goods were appropriated, a direction to pay balance amount requires no interference. The main grievance of the appellants is in respect of a finding given by the writ court that although contractual price was inclusive of Central Excise Duty and other taxes, it makes no difference in view of Section 64A of the Sale of Goods Act, 1930 and the State cannot deny to pay the duty on account of increase in the Central Excise Duty. In order to appreciate the stand of the appellants that the second relief could not have 3 been granted by the writ court in view of clear stipulation in the agreement which is available on record of the writ case as Annexure-A to the counter affidavit. In view of express provisions in Section 64 of the Sales of Goods Act, we have gone through the agreement as well as relevant provisions of law. It is clearly mentioned in the agreement what shall be the price of various articles and the first term and condition is to the effect that the price is inclusive of Excuse Duty, Sales Tax, Freight, Transit Insurance Charge, Erection and commissioning charge etc. The delivery date is also mentioned as one of the terms and conditions. Although there was delay in making delivery of the goods but since the goods were accepted, its price had to be paid by the appellants but in view of clear term that the price is inclusive of various charges and taxes including the Central Excise Duty, in our view, section 64A of the Act cannot help the claim of the respondent that the State is liable to make extra payment on account of increase in Central Excise Duty. Section 64A of the Act runs as follows : “64A. In contracts of sale, amount of increased or decreased taxes to be added or deducted.- (1) Unless a 4 different intention appears from the terms of the contract, in the event of any tax of the nature described in sub- section(2) being imposed, increased, decreased or remitted in respect of any goods after the making of any contract for the sale or purchase of such goods without stipulation as to the payment of tax where tax was not chargeable at the time of the making of the contract, or for the sale or purchase of such goods tax-paid where tax was chargeable at that time,- (a) if such imposition or increase so takes effect that the tax or increased tax, as the case may be, or any part of such tax is paid or is payable, the seller may add so much to the contract price as will be equivalent to the amount paid or payable in respect of such tax or increase of tax, and he shall be entitled to be paid and to sue for and recover such addition; and (b) if such decrease or remission so takes effect that the decreased tax only, or no tax, as the case may be, is paid or is payable, is paid or is payable, the buyer may deduct so much from the contract price as will be equivalent to the decrease of tax or remitted tax, and he shall not be liable to pay, or be sued for, or in respect of, such deduction.” Sub-section (1) (a) of Section 64A of the Act is explicit and clear that ‘if such imposition or increase in tax is payable to the seller, unless a different intention appears from the terms of the contract, the seller may add it to the contract price. In the present case, on going through the terms and conditions of the contract, as noticed 5 above, we find that there is different intention and the parties had agreed for a fixed price inclusive of tax and charges regardless of any increase or decrease in Central Sales Tax and Excise Duty etc. In view of the aforesaid discussion, the appeal is allowed in part and the finding of the writ court to the effect that the State cannot deny increased Central Excise Duty and is required to pay the same, is set aside. The direction that the required payment should be made by the State within a period of two months from the date of the order under appeal is also modified only to the extent that the period of two months shall be from the date of this order. With the aforesaid modifications in the order under appeal, this appeal is disposed of as allowed in part only. There shall be no order as to costs. ahk (Shiva Kirti Singh,J.) (Jyoti Saran,J.)