Calcutta High Court (Appellete Side)
Trimula Sponge Iron (P) Ltd vs Union Of India & Ors on 2 January, 2020
Author: Subrata Talukdar
Bench: Subrata Talukdar
1
35.
02.01.2020.
Ct. No. 26.
F.B/b.r.
W.P. 11844 (W) of 2012
Trimula Sponge Iron (P) Ltd.
-Vs.-
Union of India & Ors.
Mr. Rajnish Kumar Kalawatia,
Mr. Soumya Ray
..... For the Petitioner.
Mr. Deepak Kumar Singh
..... For the Respondents.
Party/Parties is/are represented in the order of their name/names as printed above in the cause title.
This writ petition is of the year 2012. From the order sheets connected to the present writ petition as attached to Paper Book Part-II (PB-II), it transpires that the writ petition was dismissed twice for non-appearance of the writ petitioner and restored twice. The final order of restoration dated 6th of December, 2019 was qualified with the condition that the petitioner shall prepare the requisite number of Informal Paper Book(s), serve advance copies of the same on Learned Railway Counsel and the matter will return for consideration under the heading "For Orders".
2The matter has so returned and is taken up for consideration today.
Mr. Kalawatia, Learned Advocate for the petitioner, submits that the Petitioner is a Company engaged in the production of Sponge Iron out of iron ore procured from different mines in the country. The products of the petitioner do not fall within the export category.
For the transportation of its products, particularly iron ore, the petitioner hires rakes from the Railways and, in this case from the South Eastern Railways (for short SER).
The petitioner is aggrieved by two Demand Notices (at pages 186 and 187 of Paper Book-I (PB-I) which, inter alia, pertain to the period 2012. Learned Advocate for the petitioner submits that by the two Demand Notices the products of the Petitioner Company have been charged by the SER under the export category. Such charge is erroneous and contrary to all documents filed in support of such products by the petitioner.
It is also the case of the petitioner that since the classification of the said products has been wrongly charged under the export category, following Section 37 of the Railways 3 Act, 1989 (for short the 1989 Act), the Railway Tribunal is excluded from exercising jurisdiction in such matters.
Hence, this writ petition.
The attention of this Court is further drawn to an interim order dated 3rd of June, 2014 passed in this writ petition by the Hon'ble Single Bench which, reads as follows:
"So far as the prayer for interim order is concerned, keeping in view of the demand at pages 176 and 177 of the writ petition, which is about 1.46 crores, if the petitioner secures 60% of the said demands by furnishing a bank guarantee of a nationalised bank to the satisfaction of the Chief Commercial Manager, South Eastern Railway, Kolkata, the respondent no. 3 within three weeks from the date of communication of this order, let there be an interim order in terms of prayer (H) and (I) till 26th November, 2014 or until further order whichever is earlier. Let there be an unconditional stay of the said demands for a period of three weeks".
It is submitted by the petitioner that the Bank Guarantee directed to be furnished in terms of the interim order, 4 still subsists at present being renewed by the petitioner from time to time.
On behalf of the Respondents/Railways, Mr. Singh, learned Counsel, submits that although it was argued by learned Advocate for the petitioner that the basis of the claims at Pages 186 and 187 of P.B.-I being the Railway Board Circular dated 1st of June, 2009 having expired w.e.f. 6th of December, 2009, the correct factual position is that the said Circular dated 1st of June, 2009 was extended from time to time upto 2012, i.e. the relevant period during which the petitioner/Company booked the railway wagons. It is also the relevant period during which the Demand Notices (at pages 186 and 187(supra) of PB-I) were raised qua the petitioner by the SER.
Learned Railway Counsel also takes this Court to the Affidavit-in-Opposition filed on behalf of the Railways/SER, to plead that the petitioner did not co-operate in answering the queries raised by the Railway-Respondents.
It is pointed out that although the petitioner availed of all concessions in respect of its products, the documentation qua the two rakes was deliberately left incomplete, prompting the Railway Authorities to levy charges without applying the 5 concessional rate. It is also submitted on behalf of SER that appropriate disciplinary action has been taken against the concerned handling clerk. Finally, Learned Railway Counsel refers to the pendency of a Review Petition filed by the Railways before the Hon'ble Apex Court qua SLPs filed by separate entities on the similar issue, but not covering the present petitioner.
Having heard the parties and considering the materials placed, this Court arrives at the following findings:-
A) That the impugned Demand Notices (at Pages 186 and 187(supra) of PB-I) appear to be merely in the nature of charts scribbled by hand;
B) That the impugned notices do not show reflection of mind by the appropriate authority of the SER on the issue sought to be raised in this writ petition;
C) That it is also evident that the documents sought to be relied by the petitioner could not be so relied upon before the appropriate Railway Authority and such would appear from the representation filed by the petitioner before the Respondent-Railways dated 18th of May, 2012 (at Page 192 of PB-I).
Accordingly, this Court is of the view that the Respondent No.3/the Chief Commercial Manager, SER shall hear the petitioner and consider such documents necessary 6 while answering the representation dated 18th May, 2012 by a reasoned order.
Let the reasoned order be communicated to the petitioner. However, the final decision of the Respondent No.3, if adverse to the petitioner, shall not be given effect to for a period of two weeks from the date of actual receipt of its communication by the petitioner.
Considering the unreported judgment of this Hon'ble Court in WP 7568(W) of 2008 (Sri Kunal Agarwala -vs- South Eastern Railways & Ors.) dated 21st of June, 2008 since the Headquarters of the SER i.e. within the jurisdiction of this Court and part of the cause of action, as reflected by the reminder notice dated 19th of February, 2013 was issued to the petitioner on behalf of the Respondent No.3 within the jurisdiction of this Court (at Page 207 of P.B.-II) the maintainability of this Writ Petition is answered in the affirmative.
The Bank Guarantee shall be kept renewed by the petitioner for a period of twelve weeks from date. 7
The above directed exercise be completed by the Respondent No.3 within a period of eight weeks from the date of communication of this order.
WP No. 11844 (W) of 2012 stands accordingly disposed of.
Urgent Photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.
(Subrata Talukdar, J.)