Madras High Court
Petitioner In Both The Writ Petitions vs The Tariff Authority For Major Ports on 21 March, 2018
Author: P.D.Audikesavalu
Bench: P.D.Audikesavalu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 21.03.2018
CORAM
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P. Nos. 21854 and 21855 of 2002
Archean Industries Private Limited,
having its Registered Office at Haveli Ground floor,
No.32-D, North Crescent Road, T. Nagar,
Chennai 600 017 represented by its Director
(Amended as per Order dated 04.12.2017 in
WMP Nos.6366 and 6367 of 2017)
.... Petitioner in both the Writ Petitions
Vs.
1. The Tariff Authority for Major Ports,
Ministry of Surface Transport,
Gate No.30,
Second Floor (North Block),
Jawahar Lal Nehru Stadium,
New Delhi 110 003
2. Madras Port Trust, having its registered
Office at Rajaji Salai, Chennai 600 001
represented by its Chairman
.... Respondents in both the Writ Petitions
W.P.No.21854 of 2002: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records of the Second Respondent relating to the demand in its letter No.EDC/3117/2002/AR dated 18.05.2002 and quash the same.
W.P.No.21855 of 2002: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the Notification dated 24.11.99 Published in Gazette India No.95 dated 24.11.1999 in S.L.No.6.1 of the First Respondent dated 29.10.1999 in case No.TAMP/6/98-CHPT and quash the same insofar as it states that excess collected by the Second Respondent need not be paid and consequently direct the Second Respondent to refund to the Petitioner a sum of Rs.56,51,465/-.
For Petitioner : Mr.T. Ravichandran
For 1st Respondent: Mr.S. Haja Mohideen Gisthi
For 2nd Respondent : Mr.R. Karthikeyan
Standing Counsel
COMMON ORDER
The Petitioner in these Writ Petitions has been exporting Cobble Stones through the Port of Chennai, and is liable to pay fees charged for the same to the Second Respondent under Section 42 of Major Port Trusts Act, 1963. According to the Petitioner, Cobble Stones ought to be charged at the rate of Rs. 11.30 PMT falling under the classification Ores and Minerals in Bulk for Export as per Item 64-B of Chapter II of the Scale of Rates. However, the Second Respondent had made demands for the export of the Cobble Stones by the Petitioner either at the rate of Rs. 38.50 PMT treating it as Stones Sculptural, Engraved slabs dressed in terms of Item 77 of Chapter II of the Scale of Rates or at the rate of Rs. 20 PMT treating it as Sized Kerb stones/Cobble stones shipped in bulk in terms of Item 77-A as per the amendment made vide Notification No. VI 3(a)/63/97 published in the Tamil Nadu Government Gazette dated 25.06.1997. The First Respondent by Order dated 29.10.1999 which was published in the Gazette of India on 24.11.1999, ultimately accepted the representation made by the Petitioner and other exporters who were similarly placed for charging fees for export of Cobble Stones through the Second Respondent at the rate of Rs. 11.30 PMT as per Item 64-B under the revised nomenclature Ores and minerals of all kinds in bulk for exports including Kerb Stones, Cobble Stones, and small Granite pieces, but it was ruled therein that it would apply only prospectively with effect from the date of its Notification and for the earlier period from January 1995 till the date of Notification, the export of Cobble Stones would be charged at the rate of Rs. 20.00 PMT as per Item 77-A mentioned supra. In pursuance thereof, the Second Respondent by a Notice bearing No. EDC/3117/2002/AR dated 18.05.2002 called upon the Petitioner to remit the differential charges amounting to Rs. 18,98,597/- for the period between 25.06.1997 and 28.02.1999 for the export of Cobble Stones.
2. Aggrieved thereby, the Petitioner has filed Writ Petition bearing W.P. No. 21855 of 2002 impeaching the Order dated 29.10.1999 issued by the First Respondent published in the Gazette of India on 24.11.1999 in so far as it enables the Second Respondent to charge for export of Cobble Stones at the rate of Rs. 20.00 PMT as per Item 77-A mentioned supra for the period from January 1995 till the date of that notification and for consequential direction to the Second Respondent to refund the sum of Rs. 56,51,465/- excessively collected from the Petitioner during that period. In another Writ Petition bearing W.P. No. 21854 of 2002, the Petitioner has challenged the demand for remittance of differential charges of Rs. 18,98,597/- made in the Notice No. EDC/3117/2002/AR dated 18.05.2002.
3. Heard the Learned Counsel appearing for the Petitioner as well as the Respondents and perused the pleadings and documents placed on record.
4. It is brought to the notice of this Court by the Learned Counsel that after the filing of these Writ Petitions, the Division Bench of this Court by Judgment dated 06.01.2009 in W.A. No. 2276 of 2004 has upheld the claim of another exporter, viz., M/s. R.R.Stones Private Limited, who is similarly placed to the Petitioner and has categorically ruled therein that the rate of Rs. 11.30 PMT as per Item 64-B under the revised nomenclature Ores and minerals of all kinds in bulk for exports including Kerb Stones, Cobble Stones, and small Granite pieces fixed by the First Respondent in the Order dated 29.10.1999 from the date of its notification in the Gazette of India on 24.11.1999, would also apply to the period even prior to that notification for the export of Cobble Stones through the Second Respondent. Suffice here to refer to the relevant portions of that Judgment, which are extracted below:-
3. At the outset we may refer that we are not concerned under which item the cobblestones should be brought for the purpose of collection of wharfage i.e., whether under Item No.64-B or under Item No.77, as it is purely for the authority concerned to decide. However, if we go even by the admitted position, it is seen that the cobblestones were brought under Item No.64-B for collection of reference to the rates enforced at different period will be deemed to have been regularly made.
4. Insofar as the above contention as to whether the cobblestones should be brought under Item No.64-B or Item No.77, the Tariff Authority in paragraph 11.1 (ii) has agreed that It will be reasonable to reinstate the original tariff of Rs.11.30 per metric tonne for this cargo under item 64-B. Accordingly, the tariff will be reduced from Rs.20.00 per metric tonne to Rs.11.30 per metric tonne with effect from the date of the notification. The above direction would show that even as per the said order, the Madras Port Trust had understood that the cobblestones which are being exported by the appellant should be brought only under Item No.64-B. Paragraph 11.1(ii) makes the position further clear, as it states that the said change in the wharfage is made only To avoid any further confusion in this matter, the nomenclature of this item in the Scale of Rates shall be expanded to state Ores and minerals of all kinds in bulk for exports including Kerb Stones, Cobble Stones, and small Granite pieces.. The reason adduced is not in the public interest and it is only to avoid any further confusion in the matter. Therefore, the Tariff Authority himself has correctly understood that the cobblestones shall be only classified under Item No.64-B and not under Item No.77. But for the purpose of levy of wharfage, the rate of Rs. 11.30 per metric tonne was increased to Rs. 20.00 per metric tonne. Therefore, there is no question of any adjudication by this Court as to whether the cobblestones are to be classified either under Item No.64-B or under Item No.77. Once the said conclusion is arrived that the cobblestones in question are to be classified under Item No.64-B, the appellant is liable to pay wharfage at the rate of Rs. 11.30 per metric tonne till the notification dated 24.11.99 was issued and whatever wharfge paid in excess of the same shall have to be refunded.
5. In that view of the matter, we find merit in the writ appeal. Accordingly, the writ appeal is allowed and the appellant is entitled to the refund of the difference of wharfage collected for the period between 1.1.95 and 24.9.96. The respondent is directed to calculate the said difference amount and pay the same to the appellant within a period of three months from the date of receipt of a copy of this order. Consequently,W.A.M.P.No. 4217 of 2004 is closed. No costs.
5. In view of the aforesaid authoritative pronouncement of the Division Bench of this Court governing the matter, it would follow that the Petitioner herein is also entitled to the same benefit granted in that Judgment and it is accordingly held that the Second Respondent cannot charge any amount in excess of the rate of Rs. 11.30 PMT as provided under Item 64-B of Chapter II of the Scale of Rates for the export of Cobble Stones by the Petitioner even for the period prior to 24.11.1999. The impugned orders are resultantly set aside to that extent and it shall be incumbent upon the Second Respondent to determine the actual liability of the Petitioner in the light of the aforesaid findings and pass appropriate orders afresh on merits and in accordance with law and communicate the decision taken thereon to the Petitioner and file a report of compliance in that regard with the Registrar (Judicial) of this Court on or before 31.07.2018.
6. The Writ Petitions are allowed on the aforesaid terms. No costs.
21-03-2018 sr Speaking Order Index:yes website:yes P.D.AUDIKESAVALU,J., sr To
1. The Tariff Authority for Major Ports, Ministry of Surface Transport, Gate No.30, Second Floor (North Block), Jawahar Lal Nehru Stadium, New Delhi 110 003
2. Chairman, Madras Port Trust, having its registered Office at Rajaji Salai, Chennai 600 001 W.P.Nos.21854 & 21855 of 2002 21-03-2018