FAO No. 4077 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.19025-CII of 2009 and FAO No. 4077 of 2009 (O&M) Date of decision: 3.12.2009 Union of India and others .. Appellants v. Gujarat Ambuja Cement Limited .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Puneet Kumar Jindal, Advocate for the appellants. Mr. Vishal Sodhi, Advocate for the respondent. ... Rajesh Bindal J. CM No. 19025-CII of 2009 This is an application for condonation of delay of 170 days in filing the appeal. For the reasons mentioned in the application, delay of 170 days in filing the appeal is condoned. The application stands disposed of. FAO No. 4077 of 2009 Northern Railway is in appeal against the judgment dated 24.11.2008, passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh (for short, `the Tribunal), whereby the respondent has been held entitled to refund of Rs. 58,820/- on account of excess freight paid to the appellants along with costs and interest @ 6% per annum from the date of filing of the claim petition till realisation thereof. Briefly, the facts, as noticed by the Tribunal in the impugned judgment, are that the respondent, who is a manufacturer of cement, is having its manufacturing unit at village Daburji, Rupnagar. In regular course of business, the respondent despatches cement to various places in the country. On 5.7.2005, Ministry of Railways, Railway Board issued Circular No. 40 granting concession of 15% on the freight for the Incremental Traffic booked from siding by the consignor during non-peak period from July to September. This concession was FAO No. 4077 of 2009 [2] available in terms of rakes beyond 110% loaded during the corresponding month of the previous year. In September, 2004, the respondent had booked 10 rakes for transportation of cement, whereas in September, 2005 it had booked 11.5 rakes for transportation of cement. As the same was more than 110%, if compared with the rakes loaded in September, 2004, the respondent applied for refund of the freight in terms of the circular by way of letter/notice dated 7.10.2005. The excess freight paid, according to the respondent, was Rs. 58,820/-. The claim having been rejected, the matter came to the Tribunal. The Tribunal having accepted the claim of the respondent, Northern Railway is before this Court. Learned counsel for the appellants submitted that the respondent was not entitled to the benefit of the circular as the same did not have retrospective application. He further submitted that even if it is considered that the circular was applicable in the case of the respondent, still it did not comply with the pre- conditions thereof as the Incremental Traffic, as was required to be eligible for the benefit, was not there. It is specifically provided for in the circular that fraction of rake was to be reckoned as one rake. The earlier rakes booked by the respondent being `10', 110% thereof would be 11.1 and if the fraction of a rake is considered as full, there was, in fact, no traffic beyond 110%, for which the respondent could claim refund of the freight as the rakes booked by it for transportation of cement in September, 2005 were merely 11.5. Another argument raised was that the claim having not been made at the time of booking of the rakes could not be raised later on, as the respondent had foregone its claim for the same. On the other hand, learned counsel for the respondent submitted that the case of the respondent is squarely covered under the circular. To contend that the respondent is seeking benefit for any period prior to the issuance of the circular is totally misconceived as the circular is dated 5.7.2005, whereas the material was despatched by the respondent in September, 2005. As regards calculation also, it was submitted that the calculation projected by the appellants is totally wrong, as even in terms of the example given in the circular, 110% of 10 would come out to 11 and the respondent having booked 11.5 rakes, it was certainly entitled to concessional rate for .5 rake beyond 11 rakes. The prayer is for dismissal of the appeal. Heard learned counsel for the parties and perused the paper book. As the claim of the parties in the present case revolves around the interpretation of the terms used in circular dated 5.7.2005, it would be relevant to extract the same, which is as under: FAO No. 4077 of 2009 [3] “3.0 Other terms and conditions. 3.1 The aforementioned concessions will be admissible to traffic originating from siding. 3.2 The aforementioned concessions will be admissible for traffic in rakes consisting of covered wagons like BCN/ BCNAHS/BCZ/BCXN etc. including two point rakes booked to approved combination of destination point. 3.3 “Incremental Traffic” for granting the above freight concession shall be the traffic, in terms of rakes, beyond 110% of the number of rakes loaded during the corresponding month of the previous year. For this purpose, fraction of a rake shall be reckoned as one rake. For example, if the traffic loaded from a siding in July, 2004 was 12 rakes, freight concession will be granted if the loading in July 2005 exceeds 14 rakes (12 rakes x 110% = 13.2 rakes; rounded off to 14 rakes) and the freight concession will be applicable from 15th rake onward at the time of booking.” As far as facts of the case are concerned, it is not disputed that in September, 2004, the respondent booked 10 rakes for transportation of cement and in September, 2005, it booked 11.5 rakes. It was also not disputed that except the interpretation of clause 3.3 of the circular, the respondent fulfilled all other conditions to be eligible to claim benefit of concessional freight under the circular. Clause 3.3 of the circular, which is the root cause of the dispute between the parties, provides that “Incremental Traffic” for granting the benefit of concessional freight shall be the traffic, in terms of rakes, beyond 110% of the number of rakes loaded during the corresponding month of the previous year. For this purpose, fraction of a rake is to be reckoned as one rake. The clause even gives an example as to how calculation of 110% is to be made and also how fraction of a rake has to be dealt with. It provides that in case on earlier occasion 12 rakes were booked and at subsequent stage, the booking exceeds 14 rakes (12 rakes x 110%= 13.2 rakes; rounded off to 14 rakes), the freight concession will be applicable from 15th rake onward at the time of booking. In the present case, the respondent had booked 10 rakes in September, 2004. It is totally misconceived to present a calculation stating that 110% of 10 would be `11.1' and in case, the fraction is to be rounded off to next higher number, the same will be `12' and the booking in the corresponding subsequent period by the respondent being only `11.5', it will not be entitled to the FAO No. 4077 of 2009 [4] benefit of concessional freight. The fact remains that 110% of 10 would be `11' and not `11.1', as is sought to be projected and the same in round figure for any booking thereafter, the respondent would be entitled to concessional freight, which in the present case, is 11.5 and the respondent raised claim for concessional freight only qua the load beyond 11 rakes which, in my opinion, could not be rejected by the Railways and claim for refund to that effect has rightly been accepted by the Tribunal. As far as the contention of learned counsel for the appellants that the circular in question could not be applied retrospectively is concerned, the same does not carry any weight, as the circular is dated 5.7.2005, whereas the claim for concessional freight has been made by the respondent for the rakes loaded in September, 2005, which is after the issuance of the circular. No provision in the circular has been referred to, to raise a plea that it provided for a provision in terms of which the periods which are to be compared for “incremental traffic” should be after the issuance of the circular. Even the third contention raised by learned counsel for the appellant regarding the claim having not been made at the initial stage is also to be noticed and rejected, considering the fact that no provision of the circular has been referred to, to submit that in case the claim is not made at the time of booking, the same shall be deemed to be foregone. For the reasons stated above, the present appeal is dismissed being without any merit. Considering the fact that there was total non-application of mind at the time of taking decision for filing appeal in a petty matter and projecting a wrong calculation, in my opinion, the appellants deserve to be burdened with costs, which are quantified at Rs. 10,000/-. (Rajesh Bindal) Judge 3.12.2009 mk