JUDGMENT : B.P. Dharmadhikari, J. By this writ petition filed under Article 226 of the Constitution of India, two petitioners pray for quashing and setting aside of communication dated 17.04.2005 issued by the Station Superintendent, Mullanpur (Northern Railways) demanding deficit transit charges/freight charges. There is also a prayer to declare that Gram Husk (Bhusa of Chana) falls under entry fodder Trainload class 90W3 and not under Trainload Class 120 dealing with food grains and pulses. The petition has been amended on 21.06.2016 to incorporate a prayer that Advance Rate Notification No. 83 of 2005 issued on 13.04.2005 cannot be made applicable retrospectively in the case of the petitioners. It is not in dispute that by said notification, which has been labelled as Advance Rate Notification No. 83 of 2005 Gram husk has been shown falling under Trainload Classification No. 120. 2. As the Gram husk loaded by both the petitioners was not being delivered to them by Respondent No. 6 at Mullanpur, appropriate interim prayers were made. Additional freight charges demanded from the petitioners were Rs. 17,48,486/- and this Court on 21.04.2005 while issuing Rule in the matter, formulated the question and by way of interim order, asked the petitioners to pay 50% of additional freight charges and furnish a surety bond for the balance amount. On compliance with this, Respondent No. 6 was directed to deliver the goods to the petitioners. The petitioners accordingly have complied with the order. It has been brought to our notice that they have paid amount of Rs. 7,48,486/- and an indemnity bond for the balance amount has been furnished to the Railways. 3. The facts show that both the petitioners are grain merchants and agents. They booked a rake of goods train on 13.04.2005 for transporting Gram husk from Nagpur to Mullanpur, District – Firozpur, State – Punjab. Petitioner No. 1 booked 14520 bags of Gram husk, weighing 363.505 MT while petitioner No. 2 booked 16364 bags weighing 409.075 MT. At the time of booking, authorities at Nagpur classified Gram husk under 90W3 as fodder and category 29. Petitioner No. 1 paid Rs. 2,84,755/- as freight charges while petitioner No. 2 paid Rs. 2,85,144/-. Receipts were given to them on the same date i.e. on 13.04.2005 itself. This rake reached Mullanpur on 16.04.2005 and it was to be unloaded by the petitioners. Petitioner No. 1 paid Rs. 2,84,755/- as freight charges while petitioner No. 2 paid Rs. 2,85,144/-. Receipts were given to them on the same date i.e. on 13.04.2005 itself. This rake reached Mullanpur on 16.04.2005 and it was to be unloaded by the petitioners. However, the Superintendent and Chief Goods Supervisor there did not allow the petitioners' representative to take delivery and pointed out that they have to pay Rs. 17,48,486/- more than the charges already paid. That is how, the dispute cropped up. 4. We have heard Shri Gosavi, learned counsel for the petitioners and Dr. R.S. Sundaram with Ms. Tanna, learned counsel for the respondents. 5. Shri Gosavi, learned counsel, after narrating the facts, invited attention to the fact that Advance Rate Notification (ARN) No. 67 of 2005 issued with previous sanction of the Central Government on 24.03.2005 came into force from 01.04.2005. As per General Classification of goods stipulated therein fodder appears at Sr. No. 29 and it includes Bhusa, Chari, Dry Grass, kirbi etc. Food grains and pulses fall under next entry i.e. entry No. 30 and includes Rice, Wheat, Bajree, Moong dal, Paddy etc. He states that thus Gram husk which is not food for human consumption cannot fall under Entry 30 and must be treated as fodder. He contends that in fact it was so treated, full freight charges were taken in advance, commodity was received for transport and a valid receipt thereof was issued to each petitioner, thus a concluded contract came into force and its terms and conditions, therefore, could not have been varied thereafter without the consent of the petitioners. He has invited our attention to a communication dated 18.04.2005 sent by the authorities at Nagpur, pointing out that they had correctly classified Gram husk as fodder and Trainload Class No. 90W3. 6. Inviting attention to defence in reply before this Court raised by the respondents, he submits that non availability or non receipt of ARN No. 83 of 2005 is the reason pressed into service for revised/additional demand. This revised ARN dated 13.04.2005 on the subject of classification of commodities with effect from 01.04.2005 cannot operate retrospectively and cannot affect treatment extended to Gram husk transported by the petitioners on 13.04.2005. He states that even otherwise, this notification is not issued in consultation with the Central Government as required by Section 30 of the Railways Act, 1989. 7. This revised ARN dated 13.04.2005 on the subject of classification of commodities with effect from 01.04.2005 cannot operate retrospectively and cannot affect treatment extended to Gram husk transported by the petitioners on 13.04.2005. He states that even otherwise, this notification is not issued in consultation with the Central Government as required by Section 30 of the Railways Act, 1989. 7. Our attention is also invited to Section 78 of the Railways Act, to urge that said provision enables Railway administration to correct any error or to collect any amount which may have been omitted to be charged. As in the present matter, there is no error whatsoever on 13.04.2005 and no amount was omitted to be charged, the said provision has no application. 8. Inviting attention to copy of ARN No. 83 of 2005 filed by the respondents before this Court, he contends that last printed date on it is 29.04.2005 and as such, it could not have been used before that date. ARN No. 83 of 2005 is issued by the Railway Board itself to clarify the doubts of other Divisions and as there was no doubt raised by Nagpur Division, the same is not applicable in the case of the petitioners or in the case of Nagpur Division. 9. Our attention is also invited to copies of ARN Nos. 67 of 2005 and 96 of 2005 on record to demonstrate that same expressly mention consultation with the Central Government and, therefore, are in consonance with the provisions of Section 30 of the Railways Act. As ARN No. 83 of 2005 does not carry any such mention, it violates Section 30 or then Section 31 of that Act. 10. Our attention is also drawn to Rule No. 202 and 203 of Indian Railway Code for Traffic (Commercial) Department to buttress this submission. Shri Gosavi, therefore, prays for allowing the petition. 11. Dr. Sundaram, learned counsel for the respondents has opposed the petition strongly. According to him, in view of the provisions of Section 78 of the Railways Act, 1989, the Authorities at Mullanpur were justified in correcting the error in classification and in demanding the balance amount. He has further submitted that even as per language of Advance Rate Notification No.67 of 2005, the commodity Gram Husk qualifies as food grains and pulses and it could not have been placed under Entry No.29. He has further submitted that even as per language of Advance Rate Notification No.67 of 2005, the commodity Gram Husk qualifies as food grains and pulses and it could not have been placed under Entry No.29. Trainload Class No.90W3 has been wrongly applied. Our attention is drawn to Clauses 3.1 and 3.2 of Advance Rate Notification No.67 of 2005 to explain that considering large number of commodities and difference therein, only Main Commodity Head has been prescribed. He also points out that specifically instance of Main Head "Gas" has been given with explanation that oxygen though not specifically mentioned, will be covered thereunder. Applying this logic, according to him, Gram Husk needed to be classified always as food grains and pulses i.e. under Item No.30 and Trainload Class No.120 should have been applied to it. 12. He further adds that Advance Rate Notification No.83 of 2005 only clarifies this position and it has been issued with Authority of the Central Government. He invites our attention to the fact that the said Authority finds mention in the said Advance Rate Notification itself. He has also produced the said Authority dated 13.4.2005 for perusal of this Court during hearing. Therefore, the provisions of Section 30 or 31 are satisfied and after taking Central into confidence and with its consultation, the clarification has been issued. Our attention has also been drawn to the fact that Advance Rate Notification No.96 of 2005 which mentions Advance Rate Notification No.67 of 2005 has been made effective from 15.5.2005. Thus, according to him, on 13.4.2005, Gram Husk was forming part of Entry No.30 and, therefore, demand of additional freight, from the petitioners at Mullanpur, is as per law. 13. The fact that on 13.4.2005 when contract was concluded, Gram Husk was treated as commodity falling under Entry No.29 is not in dispute. Perusal of communication dated 18.4.2005, sent by the Office of the Chief Goods Supervisor of Central Railway, Nagpur to the Chief Regional Manager (Commercial), Central Railway, Nagpur, shows an assertion that Gram Husk was rightly treated as fodder on 13.4.2005. He has also mentioned that as per earlier ARN in practise, vide Goods Tariff No.43 Part-II, Gram Husk was similarly treated. Thus, he has pointed out that upto 31.3.2004, Gram Husk was classified under Entry No.29 only. 14. He has also mentioned that as per earlier ARN in practise, vide Goods Tariff No.43 Part-II, Gram Husk was similarly treated. Thus, he has pointed out that upto 31.3.2004, Gram Husk was classified under Entry No.29 only. 14. The reply filed by the respondents shows an assertion in paragraph No.2 that notification No.83 of 2005, i.e. Advance Rate Notification No.83 of 2005, dated 13.4.2005 was not available with the Chief Goods Supervisor of the Central Railway at Nagpur. Therefore, on the basis of available notification, Trainload Classification was mentioned as 90W3. 15. This reply and communication dated 18.4.2005, mentioned supra, therefore, militates with the submission of learned counsel for the respondents that Gram Husk was even otherwise classified under Item No.30 of Advance Rate Notification No.67 of 2005. On the contrary, it shows that in absence of Advance Rate Notification No.83 of 2005, there could not be an occasion to change earlier practise of treating Gram Husk as forming part of Entry No.29. 16. Along with re-joinder, the petitioners have produced Advance Rate Notification No.96 of 2005. This Advance Rate Notification appears to be issued on 12.5.2005 and has been made effective from 15.5.2005. It mentions sanction of the Central Government whereby a note has been added to the IRCA Goods Tariff and in Advance Rate Notification No.67 of 2005. Clause 1.2 thereof deals with Advance Rate Notification No.67 of 2005 and Trainload Class No.90W3. Vide Clause No.2, it is stipulated that accordingly the classification for Gram Husk and Toor Husk will be Class 90W2 in supersession of classification issued vide Advance Rate Notification No.83 of 2005 dated 20.4.2005. We are required to mention this because it highlights the confusion then prevailing. The fodder and pulses are identified as Trainload Class No.120 and not as Trainload Class No.90W2. Thus, this later notification to amend Advance Rate Notification No.67 of 2005 itself brings on record position contrary to the respondents' contention that Gram Husk always formed part of Entry No.30 i.e. food grains and pulses. 17. The next important thing to be noted is, Clause No.2 of Advance Rate Notification No.96 of 2005 mentions date of Advance Rate Notification No.83 of 2005 to be 20.4.2005. According to learned counsel Shri U.A. Gosavi for the petitioners, said date is 29.4.2005 while according to learned counsel Dr. (Shri) R.S. Sundaram for the respondents that date is 13.4.2005. 17. The next important thing to be noted is, Clause No.2 of Advance Rate Notification No.96 of 2005 mentions date of Advance Rate Notification No.83 of 2005 to be 20.4.2005. According to learned counsel Shri U.A. Gosavi for the petitioners, said date is 29.4.2005 while according to learned counsel Dr. (Shri) R.S. Sundaram for the respondents that date is 13.4.2005. The Authority produced by the respondents, during arguments, would show that Advance Rate Notification No.83 of 2005 has been issued with proper approval of the Central Government, is itself dated 13.4.2005. 18. In this situation, it is difficult to accept that Advance Rate Notification No.83 of 2005 is also issued on very same date. Date 13.4.2005 is significant in the present matter because the petitioners have entered into a concluded contract with the respondent for transporting their goods on that day. If date 20.4.2005, mentioned in Clause No.2 of Advance Rate Notification No.96 of 2005, is accepted as correct, it follows that Advance Rate Notification No.83 of 2005 warranting re-classification of Gram Husk was not in force on 13.4.2005 or 16.4.2005. 19. The relevant entries, on which the respondents have placed, now are to be looked into. Item No.29 deals with fodder and it includes Bhusa, Chari, Dry Grass, Kirbi Kutti (Kutar), etc. In Hindi version for last word, the vernacular word used is "Kirbi Kutti" (Kutar). The next entry, i.e. Entry No.30, is food grains and pulses which includes Rice, Wheat, Bajree, Moong Dal, Paddy etc. Thus, these entries are to be construed as Main Head or Main Commodity as per Clauses 3.1 and 3.2. When entry of food grains and pulses is seen, it definitely contains commodities which can be consumed by human beings. The fodder, on the other hand, does not contain any such commodity. Various sub-commodities therein are not fit for human consumption. The petitioners have, in their writ petition, in paragraph No.2, stated that Gram Husk booked by them was fodder and it was not for human consumption and is not fit for human consumption. In paragraph No.4, they have also again disclosed that Gram Husk is not fit for human consumption and it is only meant for consumption by cattle as fodder. This assertion on affidavit has not been denied by the respondents. When word Gram Husk is looked, it is apparent that it is not Gram but it is Husk of Gram. In paragraph No.4, they have also again disclosed that Gram Husk is not fit for human consumption and it is only meant for consumption by cattle as fodder. This assertion on affidavit has not been denied by the respondents. When word Gram Husk is looked, it is apparent that it is not Gram but it is Husk of Gram. Any standard dictionary shows that Husk is outer cover or skin part of fruit or seed. It is not the case of the respondents that under the guise of transporting Husk, the petitioners were in fact sending Gram itself to Mullanpur. The word "etc." used at the end of Main Commodity Head draws colour from the fodder or food grains and pulses. In this situation, interpretation of "etc." has to be in consonance with earlier heads used therein. The Husk of Gram, therefore, needs to be classified as fodder only and it cannot be treated as food grains and pulses. 20. The date of transaction, in the present matter, is 13.4.2005. The commodity was available for lifting by the petitioners at Mullanpur on 16.4.2005. Powers under Section 78 of the Act could have been used till then only. The petitioners are seriously disputing date on which Advance Rate Notification No.83 of 2005 has come into force. The respondents have relied upon text of Advance Rate Notification No.83 of 2005 to urge that it has come into force on that day. However, while mentioning "Authority" for issuing it, the Railway Department has mentioned date of said "Authority" as 13.4.2005. This Advance Rate Notification No.83 of 2005 is issued by the Office of the Central Railway at Nagpur. The authority produced by the respondents is issued by the Joint Director, Traffic (Commercial), Railway Board at New Delhi on 13.4.2005. The petitioners have urged that the said Railway Board is not empowered to authorise such Advance Rate Notification and in view of Sections 30 and 31 of the Railways Act, 1989, it has to be expressly in consultation with the Central Government as is apparent from the other Advance Rate Notifications on record. Perusal of Advance Rate Notification No.83 of 2005 itself shows that on next page its number has been printed and, thereafter, date 29.4.2005 is mentioned. While mentioning the other offices to whom copies are forwarded, against one of the authorities, date 20.4.2005 also appears. Perusal of Advance Rate Notification No.83 of 2005 itself shows that on next page its number has been printed and, thereafter, date 29.4.2005 is mentioned. While mentioning the other offices to whom copies are forwarded, against one of the authorities, date 20.4.2005 also appears. This perusal of Advance Rate Notification No.83 of 2005 and Clause 2 of Advance Rate Notification No.96 of 2005, therefore shows that Advance Rate Notification No.83 of 2005 could not have been used on 13.4.2005 or 16.4.2005. As material on record is not sufficient, we do not, in present case, find it necessary to delve into exercise to record a definite finding on date on which Advance Rate Notification No.83 of 2005 came into force. 21. Taking over all view of the matter, we are satisfied that in case of these petitioners, who had entered into concluded contract on 13.4.2005 itself, Advance Rate Notification No.83 of 2005 could not have been applied. The situation is covered by communication dated 18.4.2005 in its case. Needless to point out that said communication dated 18.4.2005 sent by the Chief Goods Supervisor of Central Railway, Nagpur does not contain even a reference to Advance Rate Notification No.83 of 2005. 22. Hence, we are inclined to grant relief to the petitioners in the present facts. Accordingly, we hold that the demand of additional freight duty from the petitioners by the respondents, including respondent No.6, is unsustainable and unwarranted. The said demand is, accordingly, quashed and set aside. Surety or guarantee, furnished by the petitioners, is discharged. The payment, over and above freight charges, recovered from them because of interim orders passed by this Court shall be refunded to them, as per law, within next three months. 23. The writ petition is thus allowed. Rule made absolute. No costs. Petition allowed.