MFA 45/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The instant appeal witnesses a challenge to the judgment and order dated 18.11.2 010 rendered by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati (f or short, hereinafter referred to as ’the Tribunal’) in Claim Application No. OA . 1214/07. 2. I have heard Mrs U Chakraborty, learned Standing Counsel, NF Rai lway for the appellant and Mr A Goyal, learned counsel for the respondent. 3. The learned counsel for the parties having been heard at length for the admission of the instant appeal, it is considered appropriate to dispose of the same at this stage. 4. The respondent had approached the learned Tribunal claiming refu nd of freight under the Incentive Scheme for Incremental Traffic (for short, her einafter referred to as ’the Scheme’) envisaged in the package of Freight Incent ive Schemes of the Railways as well as for freight over charge due to wrong dist ance vis-à-vis its consignments. It pleaded that being encouraged by the scheme circulated by the Circular No. TCR/1078/2006/4 dated 28.3.2006 and the Corrigend um dated 19.5.2006 assuring freight incentives thereunder it booked consignments covered by various invoices during 18.8.2006 to 17.3.2007 to different destinat ions. It, thereafter, applied to the Railways on 17.8.2006 and also the Chief Co mmercial Manager (Rates), NF Railway, Maligaon on 13.11.2006 indicating its part icipation in the scheme so as to be extended the benefit thereunder. According t o the respondent, the Railways accepted its enlistment but dithered to arrive at an appropriate decision in its favour. The respondent on 18.5.2007 submitted a reminder to the Railways reiterating its request for the incentives under the Sc heme. According to it, the details of the consignments covered by the Scheme for which it was entitled to the benefit under the Scheme were also furnished. It w as further averred that out of the 25 rakes of coal loaded from 18.8.2006 to 31. 3.2007, 19 fell during the Busy Season (1.11.2006 to 31.3.2007) and the remainin g 6 in the Lean Season (1.7.2006 to 31.10.2006). The respondent stated that the refund benefit under the scheme was sanctioned at the rate of 10% of total freig ht during the Lean Season and 5% during the Busy Season and on the basis thereof it was entitled to an amount of Rs. 17,19,658/- and Rs. 26,13,299/- by way of r efund respectively. The respondent further mentioned that out of the 25 coal rak es it had been overcharged on freight in 8 of them due to mistake of booking res ulting in collection of excess freight on higher distance. That vide letter No. C/486/RG/RRP(GM)/Pt.II(L) dated 26.7.2007 of the office of the CCM (Rates) NF Ra ilways its claim was considered and forwarded to the office of the Deputy CCM/. Claim, N.F. Railway for arranging refund was also referred to in the application . The respondent in the application before the learned Tribunal inter alia disclos ed it to be a new customer as contemplated in the Corrigendum dated 19.5.2006 . It also laid claim before the learned Tribunal on the failure of the Railways to refund freight on account of its mistake at the booking station vis-à-vis the distance to be covered by the corresponding 18 coal rakes resulting in excess c harge therefor. In all, on both these counts the respondent claimed an amount of Rs. 47,49,737/- as its dues together with litigation costs and interest thereon . 5. The Railways in its written statement raised a preliminary objec tion with regard to the jurisdiction of the learned Tribunal to entertain the cl aim contending it to be beyond the purview of its functions as outlined by the Railway Claims Tribunal Act, 1987 (for short, hereinafter referred to as ’the Ac t’). It pleaded as well that though the respondent had vide its letters dated 17 .8.2006 and 13.11.2006 applied for availing the concession under the Scheme, it was not entitled to any as the commodity ’coal’ was excluded from the domain the reof. The Railways, therefore, questioned the validity of the respondent’s claim for freight refund under the Scheme. Vis-à-vis its claim on account of mistak en realization for wrong distance, it contended that for the omission on the par t of the respondent to furnish the necessary particulars the competent authority of the NF Railway had repudiated the claim and that, therefore, its grievance t o that effect was also not sustainable in law and on facts. The claim was repudi ated also for want of proper notice. 6. The learned Tribunal by the impugned judgment and order on a con sideration of the pleadings of the parties and the documents introduced in evide nce allowed the claim of the respondent to the extent of Rs. 47,49,737/- togethe r with interest at the rate of 6% per annum from the date of filing of the appli cation before it. It ordered payment of the amount awarded within three months w ith the rider that on the failure to do so, the same would carry interest at the rate of 7% per annum till realization. The proportionate cost of the applicatio n fee of Rs. 2,34,250/- and legal practitioner’s fee of Rs. 3000/- was also awar ded. 7. Mrs Chakraborty has emphatically urged that as in terms of the A ct the learned Tribunal has no jurisdiction to examine and entertain the claim o f refund of freight under the Scheme, the impugned judgment and order is non-est in law and is liable to be adjudged as such. Referring to the Scheme, the learn ed Standing Counsel has argued that the eligibility to avail the benefits thereu nder is not a matter of course and that as the concerned authority of the Railwa ys had not determined the respondent to be so, the learned Tribunal had fallen i n error in concluding to the contrary. She insisted that ’coal’ was not covered by the Scheme for according the benefit of incentives thereunder and, thus, the respondent’s claim was misconceived. As the learned Tribunal had overlooked thi s vital aspect of the matter, the impugned judgment and order ought to be annull ed, she urged. She contended that the claim is per se unsustainable for want of prior valid notice to the Railways. Mrs. Chakraborty has further argued that a s the respondent had not paid the aggregate freight of Rs. 50 Crores in the year preceding the one of booking of the consignments, it was even otherwise not eli gible for the freight refund benefits under the Scheme and that the finding to t he contrary of the learned Tribunal is, thus, patently flawed and is liable to b e interfered with. 8. Mr. Goyal, in reply, has argued with reference to the Scheme as circulated by the Circular No. TCR/1078/2006/4 dated 28.3.2006 and the Corrigend um dated 19.5.2006 that the respondent having staked its claim for the freight b enefit under the Scheme as a ’new customer’ the condition precedent of payment o f aggregate freight of Rs. 50 Crores in the preceding year is not attracted. As the Railways admittedly had failed to communicate its decision rejecting the res pondent’s claim for the benefit under the Scheme as required under Clause-9 of t he Circular dated 28.3.2006, it was open for it to approach the learned Tribunal , the cause of action therefor having arisen for such failure of the Railways. A ccording to Mr. Goyal, both in the Circular dated 28.3.2006 as well as the Corri gendum dated 19.5.2006, coal in covered wagons booked by the NF Railway was well within the purview of the Scheme and, thus, the plea to the contrary is wholly misconceived. Further, this being the only ground taken in the written statement by the Railways to resist its claim, it is estopped from raising any other plea in the instant appeal. The Railways having admitted receipt of the application dated 17.8.2006 of the respondent intending to participate in the process envisa ged under the Scheme and the consignments being within the domain thereof, the l earned Tribunal rightly awarded its claim on the two counts to the extent as ind icated in the impugned judgment and order. 9. The pleadings of the parties with the essential documents as ref erred to hereinabove as well as the arguments have received the due consideratio n of this Court. The preamble to the Act proclaims it to be an enactment for the establishment of a Railway Claims Tribunal for inquiring into and determining c laims against a railway administration for loss, destruction, damage, deteriora tion or non-delivery of animals or goods entrusted to it to be carried by railwa y or for the refund of fares or freight or for compensation for death or injury to passengers occurring as a result of railway accidents (or untoward incidents) and for matters connected therewith or incidental thereto. Section 13 which fin ds place under Chapter-III of the Act with the caption Jurisdiction, Powers and Authority of Claims Tribunal enjoins that the Tribunal would exercise, on an d from the appointed day, all such jurisdiction, powers and authority, as were e xercisable immediately before that day by any civil Court or a Claims Commission er appointed under the provisions of the Act, amongst others, in respect of clai ms for refund of fares or part thereof or for refund of any freight paid in resp ect of animals or goods entrusted to a railway administration to be carried by r ailway. 10. In view of the above categorical and unambiguous mandate of the legislation, the plea of want of jurisdiction of the learned Tribunal, in the op inion of this Court, is wholly unconvincing and is, thus, rejected. 11. Admittedly, the consignments of coal were booked between 18.8.20 06 and 17.3.2007. The respondent had applied for the benefit under the Scheme on 17.8.2006. 12. That a notice under Section 106 of the Railways Act, 1989 was no t an essential pre-condition for laying the instant claim was held by the learne d Tribunal, amongst others, with reference to the Railway Board’s letter No. TCI V/2001/4700/8/Refund dated 15.5.2002 which is extracted hereinabelow: The matter has been examined in this Ministry in consultation with Legal Advise r, Railway Board. It is clarified that the provisions of Section 106(3) of the R ailways Act, 1989 will not be applicable in case of rebate which is specifically granted in specific conditions and consequently question of such claims of refu nd of rebate becoming the suit-barred or time-barred will not be governed by the provision of this section of the Railways Act as the same are granted in accord ance with specific administrative instructions issued from Railway Board from ti me to time. . 13. It further referred to Clause 3(10) of the Circular dated 28.3.2 006 to conclude that in the facts and circumstances of the case the concerned au thorities of the Railways were aware of the fact that the respondent was transpo rting coal in a covered wagon. It also took note of the fact that the respondent had by its notice dated 24.7.2007 informed the Railways of such transportation. According to it, the Railways having acknowledged receipt of this notice, no ot her information/ notice was required. This finding, considering the materials fo rming the foundation thereof needs no interference. 14. With regard to the respondent’s entitlement to the incentives un der the Scheme, the learned Tribunal took notice of the application dated 17.8.2 006 submitted by it expressing its intention to participate in the process envis aged thereunder. It recorded that the respondent followed-up the said applicatio n by one dated 13.11.2006 to the same effect to the Chief Commercial Manager (Ra tes), NF Railway, Maligaon and that though the said request was processed, it re mained pending with the Railway Board. The following extract from the written st atement of the Railways was quoted : That applicant vide his letter dated 10.07.06 applied to the Divisional Railway Manager, N.F. Railway, Rangiya Division for getting concession under freight in cremental scheme and to the Chief Comml. Manager, N.F. Railway under long term s pecial incentive. As per Para 4.0(1) of Rates Circular No. 25 of 2006 under ince ntive scheme for incremental traffic, the coal consignments are completely exclu ded from granting of concession. As such, the claim application for the benefit of freight incentive on the coal consignment under long term special incentive s cheme is not maintainable and liable to be dismissed. 15. Vis-à-vis the respondent’s eligibility, the learned Tribunal ref erred to a letter dated 2.4.2009 of the Govt. of India, Ministry of Railways, Ra ilway Board to the following effect: As per the instructions in Rates Circular No. 44 of 2006, the under Long Term Special Incentive Scheme was applicable to coal loaded in North East Frontier Ra ilway in covered wagons only. It was not available for coal loaded in open wagon s. Coal has been excluded from the purview of Long Term Special Incentive Scheme w.e.f 01.04.07. . 16. The learned Tribunal noticed that the Railways had not denied th at the respondent had booked the consignments and transported the coal in covere d wagons and concluded that in view of the Scheme circulated by the Circular dat ed 28.3.2006 and the Corrigendum dated 19.5.2006 it was entitled to the refund o f freight. That the Railways had admitted the correct distance between JPZ to MS SG to be 1350 Km vide letter dated 19.6.2007 issued by the Dy. CCM/Claims,NFR/ML G was also brought on record. 17. The findings and reasonings recorded by the learned Tribunal are apparently borne out by the materials on record and can by no means be repudiat ed as absurd or in defiance of logic. The applicability of the Long Term Special Incentive Scheme as contemplated under the Circular dated 28.3.2006 extends to all terminals with the exception of coal, raw materials to steel plants and iro n ore, however, with the rider that coal from NF Railway in covered wagons would stand retained within the scope of the benefits thereof. The said relaxation wa s carried over by the Corrigendum dated 19.5.2006. As at all relevant times the Circular dated 28.3.2006 and the Corrigendum dated 19.5.2006 held the field and it being not denied by the Railways that the consignments involved had been tran sported in covered wagons, the respondent’s entitlement to the benefit under the Scheme in absence of any other overwhelming material on record cannot be doubte d. 18. According to Mr. Goyal, the respondent had registered its claim for the benefit under the Scheme in the category All other customers including new customers . The Corrigendum dated 19.5.2006 apparently conceives of two cate gories of such beneficiaries under the Scheme-i) those who had given freight ear ning of more than Rs. 50 Crores in the previous financial year; and ii) other re siduary group including new customers. Vis-à-vis the second group, their entitle ment to the benefit under the Scheme on BG systems is discount in freight rates upto 5% in the Busy Season and upto 10% in the Lean Season for a duration upto 3 years. The Corrigendum was supposed to be in force with effect from 1.6.2006. A dmittedly, the Circular dated 28.3.2006 was to remain in force for a period of t hree years. The respondent’s claim for the benefit under the Scheme was thus squ arely within the period of validity thereof. A plain glance of the computation m ade by the learned Tribunal to quantify the relief awarded to the respondent wou ld demonstrate that the same had been consciously done by bearing in mind the re spondent’s entitlement under the Scheme in the second category as enumerated her einabove. 19. On a totality of the considerations as above, I am of the unhesi tant opinion that the impugned judgment and order does not warrant any interfere nce in the instant appeal. 20. The appeal lacks in merit and is, therefore, dismissed. No costs .