FAO No. 4077 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CM No.19025-CII of 2009 and
FAO No. 4077 of 2009 (O&M)
Date of decision: 3.12.2009
Union of India and others
.. Appellants
v.
Gujarat Ambuja Cement Limited
.. Respondent
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Puneet Kumar Jindal, Advocate for the appellants.
Mr. Vishal Sodhi, Advocate for the respondent.
...
Rajesh Bindal J.
CM No. 19025-CII of 2009
This is an application for condonation of delay of 170 days in filing
the appeal.
For the reasons mentioned in the application, delay of 170 days in
filing the appeal is condoned.
The application stands disposed of.
FAO No. 4077 of 2009
Northern Railway is in appeal against the judgment dated
24.11.2008, passed by the Railway Claims Tribunal, Chandigarh Bench,
Chandigarh (for short, `the Tribunal), whereby the respondent has been held
entitled to refund of Rs. 58,820/- on account of excess freight paid to the
appellants along with costs and interest @ 6% per annum from the date of filing of
the claim petition till realisation thereof.
Briefly, the facts, as noticed by the Tribunal in the impugned
judgment, are that the respondent, who is a manufacturer of cement, is having its
manufacturing unit at village Daburji, Rupnagar. In regular course of business, the
respondent despatches cement to various places in the country. On 5.7.2005,
Ministry of Railways, Railway Board issued Circular No. 40 granting concession
of 15% on the freight for the Incremental Traffic booked from siding by the
consignor during non-peak period from July to September. This concession was
FAO No. 4077 of 2009 [2]
available in terms of rakes beyond 110% loaded during the corresponding month
of the previous year. In September, 2004, the respondent had booked 10 rakes for
transportation of cement, whereas in September, 2005 it had booked 11.5 rakes for
transportation of cement. As the same was more than 110%, if compared with the
rakes loaded in September, 2004, the respondent applied for refund of the freight
in terms of the circular by way of letter/notice dated 7.10.2005. The excess freight
paid, according to the respondent, was Rs. 58,820/-. The claim having been
rejected, the matter came to the Tribunal. The Tribunal having accepted the claim
of the respondent, Northern Railway is before this Court.
Learned counsel for the appellants submitted that the respondent was
not entitled to the benefit of the circular as the same did not have retrospective
application. He further submitted that even if it is considered that the circular was
applicable in the case of the respondent, still it did not comply with the pre-
conditions thereof as the Incremental Traffic, as was required to be eligible for the
benefit, was not there. It is specifically provided for in the circular that fraction
of rake was to be reckoned as one rake. The earlier rakes booked by the respondent
being `10′, 110% thereof would be 11.1 and if the fraction of a rake is considered
as full, there was, in fact, no traffic beyond 110%, for which the respondent could
claim refund of the freight as the rakes booked by it for transportation of cement in
September, 2005 were merely 11.5. Another argument raised was that the claim
having not been made at the time of booking of the rakes could not be raised later
on, as the respondent had foregone its claim for the same.
On the other hand, learned counsel for the respondent submitted that
the case of the respondent is squarely covered under the circular. To contend that
the respondent is seeking benefit for any period prior to the issuance of the
circular is totally misconceived as the circular is dated 5.7.2005, whereas the
material was despatched by the respondent in September, 2005. As regards
calculation also, it was submitted that the calculation projected by the appellants is
totally wrong, as even in terms of the example given in the circular, 110% of 10
would come out to 11 and the respondent having booked 11.5 rakes, it was
certainly entitled to concessional rate for .5 rake beyond 11 rakes. The prayer is for
dismissal of the appeal.
Heard learned counsel for the parties and perused the paper book.
As the claim of the parties in the present case revolves around the
interpretation of the terms used in circular dated 5.7.2005, it would be relevant to
extract the same, which is as under:
FAO No. 4077 of 2009 [3]
"3.0 Other terms and conditions.
3.1 The aforementioned concessions will be admissible to traffic
originating from siding.
3.2 The aforementioned concessions will be admissible for traffic
in rakes consisting of covered wagons like BCN/
BCNAHS/BCZ/BCXN etc. including two point rakes booked
to approved combination of destination point.
3.3 “Incremental Traffic” for granting the above freight
concession shall be the traffic, in terms of rakes, beyond
110% of the number of rakes loaded during the corresponding
month of the previous year. For this purpose, fraction of a
rake shall be reckoned as one rake. For example, if the traffic
loaded from a siding in July, 2004 was 12 rakes, freight
concession will be granted if the loading in July 2005 exceeds
14 rakes (12 rakes x 110% = 13.2 rakes; rounded off to 14
rakes) and the freight concession will be applicable from 15th
rake onward at the time of booking.”
As far as facts of the case are concerned, it is not disputed that in
September, 2004, the respondent booked 10 rakes for transportation of cement and
in September, 2005, it booked 11.5 rakes. It was also not disputed that except the
interpretation of clause 3.3 of the circular, the respondent fulfilled all other
conditions to be eligible to claim benefit of concessional freight under the circular.
Clause 3.3 of the circular, which is the root cause of the dispute
between the parties, provides that “Incremental Traffic” for granting the benefit of
concessional freight shall be the traffic, in terms of rakes, beyond 110% of the
number of rakes loaded during the corresponding month of the previous year. For
this purpose, fraction of a rake is to be reckoned as one rake. The clause even
gives an example as to how calculation of 110% is to be made and also how
fraction of a rake has to be dealt with. It provides that in case on earlier occasion
12 rakes were booked and at subsequent stage, the booking exceeds 14 rakes (12
rakes x 110%= 13.2 rakes; rounded off to 14 rakes), the freight concession will be
applicable from 15th rake onward at the time of booking.
In the present case, the respondent had booked 10 rakes in
September, 2004. It is totally misconceived to present a calculation stating that
110% of 10 would be `11.1′ and in case, the fraction is to be rounded off to next
higher number, the same will be `12′ and the booking in the corresponding
subsequent period by the respondent being only `11.5′, it will not be entitled to the
FAO No. 4077 of 2009 [4]
benefit of concessional freight. The fact remains that 110% of 10 would be `11′
and not `11.1′, as is sought to be projected and the same in round figure for any
booking thereafter, the respondent would be entitled to concessional freight, which
in the present case, is 11.5 and the respondent raised claim for concessional freight
only qua the load beyond 11 rakes which, in my opinion, could not be rejected by
the Railways and claim for refund to that effect has rightly been accepted by the
Tribunal.
As far as the contention of learned counsel for the appellants that the
circular in question could not be applied retrospectively is concerned, the same
does not carry any weight, as the circular is dated 5.7.2005, whereas the claim for
concessional freight has been made by the respondent for the rakes loaded in
September, 2005, which is after the issuance of the circular. No provision in the
circular has been referred to, to raise a plea that it provided for a provision in terms
of which the periods which are to be compared for “incremental traffic” should be
after the issuance of the circular.
Even the third contention raised by learned counsel for the appellant
regarding the claim having not been made at the initial stage is also to be noticed
and rejected, considering the fact that no provision of the circular has been referred
to, to submit that in case the claim is not made at the time of booking, the same
shall be deemed to be foregone.
For the reasons stated above, the present appeal is dismissed being without
any merit. Considering the fact that there was total non-application of mind at the
time of taking decision for filing appeal in a petty matter and projecting a wrong
calculation, in my opinion, the appellants deserve to be burdened with costs, which
are quantified at Rs. 10,000/-.
(Rajesh Bindal)
Judge
3.12.2009
mk