SENIOR DIVISIONAL COMMERCIAL MANAGER, SOUTH EASTERN RAILWAY THROUGH KALI SHANKAR MUKHERJEE, SENIOR DIVISIONAL COMMERCIAL MANAGER, ADRA DIVISION OF SOUTH EASTERN RAILWAY, DISTRICT PURULIA Vs. BIHAR SPONGE IRON LIMITED, CHANDIL, P.O., P.S.-CHANDIL, DISTRICT SINGHBHUM-EAST.

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) This L.P.A. has been preferred by the Senior Divisional Commercial Manager, South-Eastern Railway to challenge the Judgment / order dated 13.05.2008 passed by the learned Single Judge of this Court whereby the writ petition of the Respondent seeking quashing of the order dated 22.04.1996 passed by the Chief Rates Manager, South Eastern Railway imposing penalty of Rs. 56,71,916/- was allowed and said liability has been set aside in writ petition being C.W.J.C. No. 925 of 1996(R).

(3.) Learned Counsel for the Appellant vehemently submits that it is an admitted case, as has been admitted by the Respondent Petitioner, that the Respondent-Petitioner miss-described the commodity and got it booked and paid the lower freight and same matter came up earlier to this Court as Respondent-Petitioner preferred a writ petition being C.W.J.C. No. 1144 of 1995 (R) which was decided by this Court vide order dated 04.12.1995 and according to the learned Counsel for the Appellant, in view of the said order/ Judgment of this Court passed in the writ petition filed by the Respondent-Petitioner, the writ Petitioner cannot state that it was not a case of miss-description of commodity. It is also submitted that when fact of Petitioner's miss-describing the goods and lower payment of freight came to the knowledge of the railway authority, a demand was raised against the writ Petitioner for making payment of the difference in freight charges which the Petitioner voluntarily without any protest paid to the railway administration. In view of this reason also, it was a clear case of deliberate miss-description given by the Petitioner so as to mislead the railway authorities to charge lesser amount of freight charges. It is also submitted that the learned Single Judge though, has proceeded to decide the matter on the basis of finding recorded by the railway authority that there was no mens rea in the act of the Petitioner so as to cause loss to the railway and gain for itself, whereas, the plea of mens rea is not available in the light of the language used in Rule 126(1)(a) of the Goods Tariff General Rules. It is also submitted that the authority concerned has no discretion to levy less amount of the penalty than prescribed in Rule 126(1)(a), therefore, also it clearly indicates that the Rule was mandatory with intention to give no discretion to the authority concerned in the matter of imposing of penalty and therefore, the plea of mens rea which prevailed before the Single Bench has no application to the facts of the case. It is also submitted that the writ Petitioner is a company already engaged in the trade of Sponge Iron since long and cannot be say to have no knowledge of the name of its own product.