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2013 DIGILAW 914 (PAT)

Salasar Trading Company v. Union of India

2013-07-31

JYOTI SARAN

body2013
ORDER As these two appeals arise from a common order dated 20.10.2011 passed in Claim Case Nos. OC 00021 and OC 00022 of 2010 passed by the Railway Claims Tribunal, Patna Bench, Patna hence both the appeals have been taken up together with a view to its final disposal with consent of the parties. 2. Heard Mr. Krishna Mohan Murari, learned counsel for the appellant in the two cases and Mr. Anil Kumar Sinha, learned counsel for the Union of India-Ministry of Railways. 3. The only issue that falls for consideration in these two appeals is as to whether ‘paddy husk’ would fall within the tariff entry, ‘fodder and husk’ in terms of the Goods Tariff No. 45 part 1(Vol.II) under Group No. 25, Division-D and thus would be entitled to 50% concession at the time of booking. 4. The facts are not in dispute and thus are not being discussed. Suffice it to say that the appellant had loaded ‘paddy husk’ by railway from Sasaram Railway Station to Khanna in the State of Panjab. As the goods packed in the Jute bags were labled as ‘paddy husk’, the railways receipts also mentions the same. Since according to the respondents, ‘paddy husk’ is not an item of concession in terms of the Goods Tariff No. 45 under Group No. 25, Division-D, hence the appellant was held not entitled to 50% concession on the freight charges. 5. It is not in dispute that a perusal of the Goods Tariff No. 45, a relevant extract whereof has been enclosed in the counter affidavit filed today placed at Annexure-R/2 manifests that whereas some of the goods are entitled to 50 % concession on freight charges at the time of booking the others are not entitled to this benefit. The relevant entry falling under Group No. 25 Division-D has an entry ‘fodder and husk’ and which includes ‘Bhoosa’, ‘Chari’ and ‘dry grass’. All these three items are marked by ‘asterix’ which means that they would be entitled to 50% concession on freight charges at the time of booking. 6. Since the consignment was labled as ‘paddy husk’ hence the railway authorities not finding the said entry within Group Tariff No. 25 subjected the appellant to payment of full freight charge and which has since been paid also by the appellant. 6. Since the consignment was labled as ‘paddy husk’ hence the railway authorities not finding the said entry within Group Tariff No. 25 subjected the appellant to payment of full freight charge and which has since been paid also by the appellant. However being aggrieved, the appellant moved the Railway Claims Tribunal, Patna seeking 50% concession and which has since been rejected by the common order impugned and hence these appeals. 7. As already discussed at the outset the only issue which requires determination by this Court is whether the goods ‘paddy husk’ would fall within the entry ‘fodder and husk’ falling under Group No. 25 of the Goods Tariff No. 45, part 1 (Vol II). 8. The counter affidavit filed on behalf of the railways today apart from discussing the factual aspects has simply tried to contest the claim of the appellants on grounds that since ‘paddy husk’ is not mentioned in the Goods Tariff No. 25, hence it was not entitled to the concession. It is again not in dispute that the said goods found its entry into the concessional rate when it was included under a Railway Board Circular with effect from 6.5.2009 which position has been taken note of by the Tribunal in its impugned order while discussing the issue No.1. 9. On query Mr. Sinha, learned counsel for the Railways could not satisfy this Court on the issue that if the goods ‘paddy husk’ were not to fall within the category of ‘fodder and husk’ and was not entitled to concessional rate of tariff then under which other category it would be charged. The written statement filed in the Tribunal and the counter affidavit filed before this Court does not address on this issue. After all the goods ‘paddy husk’ has to fall under some category. It is apparent from Goods Tariff No. 45 relevant extract of which is placed at Annexure-R/2 that the only entry under which the goods in question would fall is under the heading ‘Fodder and Husk’ which includes ‘Bhoosa’ and ‘dry grass’ also. The contest sought to be made by Mr. It is apparent from Goods Tariff No. 45 relevant extract of which is placed at Annexure-R/2 that the only entry under which the goods in question would fall is under the heading ‘Fodder and Husk’ which includes ‘Bhoosa’ and ‘dry grass’ also. The contest sought to be made by Mr. Sinha in trying to distinguish between these items and the goods in question by submitting that whereas the items under Group No.- 25 are used as fodder for cattle, the goods in question ‘paddy husk’ is used for industrial purpose, also would not bail out the railways, in view of the own circular of the Railway Board clarifying ‘paddy husk’ as a concessional item under the Good Tariff with effect from 6.5.2009. The Tribunal even while taking note of this legal position has rejected the claim on grounds that the goods in question had been booked prior to 6.5.2009. 10. The Tribunal has clearly misdirected itself since the Railway Board Circular has merely clarified the entitlement of the goods ‘paddy husk’ to a concessional rate although a general entry ‘Fodder and Husk’ was already existing in the Goods Tariff. 11. The said aspect leaves no room for doubt that the goods in question were covered under the heading ‘Fodder and Husk’ falling under Group No. 25 of Goods Tariff No. 45 and which position has merely been clarified under the clarification issued by the Railway Board on 12.10.2011 enforced retrospectively w.e.f. 6.5.2009. 12. For the reasons aforesaid, the orders impugned cannot be upheld and are accordingly set aside. The appellant is held entitled to 50% freight concession on the goods which was subject matter of the two claim cases and as a consequence whereof is also held entitled for refund of the excess freight charged by the Railways, which should be refunded to him within three months from the date of receipt/production of a copy of this order. 13. These appeals are allowed.