BOKAJAN CEMENT FACTORY Vs. UNION OF INDIA

JUDGEMENT

(1.) The instant writ petition has been filed challenging the notice of demand dtd. 2/8/2008 as well as the notice of demand dtd. 27/1/2017 issued by the respondent No.5.

(2.) The relevant facts of the instant case are that the petitioner who is engaged in the business of manufacture and sale of cement procures a commodity by the name of fly ash from various sources which is an essential material for manufacturing cement. The instant writ petition pertains to the consignment of fly ash booked from Kahalgaon to Bokajan Railway Station vide RR No. C147943 dtd. 21/2/2007. The said Railway Receipt has been enclosed as Anenxure-1 to the writ petition. A perusal of the said Railway Receipt reveals that the weight as declared by the petitioner was 2482.90 tones and an amount of Rs.23,89,403.00 was paid as the charges. Further to that, it is also seen from the said Annexure-1 that there was a remark "said to contain 80125 dry fly ash as per forwarding note". The said consignment upon reaching the Bokajan Railway Station, the Railway Authorities on 24/2/2007 permitted the petitioner to unload the said consignment of fly ash which related to the Railway Receipt No. C147943 without exercising any lien over the said goods. It is also an admitted fact that prior to unloading of the goods, the Railway Administration did not issue any demand notice nor informed about any re-weighment done during transit.

(3.) On 2/8/2008, a notice of demand was issued by the respondent No.5 intimating the petitioner that the petitioner is liable to pay an additional amount of Rs.12,09,775.00 as punitive charges on the ground that on re-weighment done at Railway Weigh Bridge, Maldah, it was found that in respect to the consignment pertaining to Invoice being RR No. C147943 dtd. 21/2/2007, there was overloading of 249.76 tones as per the E/sheet enclosed to the said notice of demand. The petitioner was thereupon asked to make payment of the said amount. It is not known what transpired thereafter but on 18/3/2010, the Deputy General Manager, Production of the petitioner had issued a communication to the Divisional Railway Manager (C) denying the allegation made in the notice of demand and further stating that there might be a mechanical error in the Weigh Bridge showing abnormally high rate which is practically not possible. It is further seen that thereupon vide another communication issued by the Manager, Production, an appeal/request was made to write of the undercharge amount of Rs.12,09,775.00 on the ground that the undercharge amount was received by the petitioner after a lapse of more than 2 years. It was further mentioned that at the time of delivery of the rakes, the Weigh Bridge weighment sheet along with RR was not received nor any error sheet as mentioned in the claim by the Railway Authorities. Under such circumstances, it was again requested to write of the undercharge amount of Rs.12,09,775.00. It is further seen that subsequent thereto, another communication was written on 1/10/2015 by the HOD, Production requesting to waive of various amounts including the punitive charges on the basis of RR No. C147943 dtd. 21/7/2007. Although such representations were submitted but the Railway Administration did not accept the request of writing of the amount of Rs.11,11,662.00 which was the amount later on found by the Railways payable as the wagons used were 40 and not 41. Subsequent thereto, vide another communication dtd. 27/1/2017 which has also been put to challenge in the instant proceedings, the petitioner was again directed to pay the amount of Rs.11,61,687.00 along with other amounts.