M/S MEGHA TECHNICAL & ENGINEERS PVT LTD vs GM/ N F RLY

Coram: Leena Sarma, Member (Technical) Mahtab Ahmad, Member (Judicial) Date of Judgement: 25.10.2023 O.A.

No.

Applicant Respondent Applicant’s counsel Respondent’s counsel III-234/2013 [OA(III)/GHY/2013/0279] M/s.

Purbanchal Cements Ltd., Megha Phaza, 2nd Floor, Basistha Charali, Guwahati- 781029, Assam GM, N.

F.

Railway & GM, E.

Railway Shri K.

P.

Maheshwari Shri P.

S.

Deka III-85/2014 [OA(III)/GHY/2014/0085] M/s.

Jain Bijay & Co.

Pvt.

Ltd., Thakuria Building, 3rd Floor, F.

A.

Road, Kumar Para, Guwahati-781001, Assam GM, N.

Railway & GM, W.

Railway - do - Shri P.

Deka III-12/2021 [OA(III)/GHY/12/2021] M/s.

Megha Technical & Engineers Pvt.

Ltd., Mayur Garden, 2nd Floor, G.

Road, Guwahati-781005, Assam GM, N.

Deka By Mahtab Ahmad, Member (Judicial) JUDGEMENT 1.

Since in these three claim applications, more or less similar issues are involved, therefore for the purpose of convenience, these applications are being decided together by a common judgement.

2.

Consignment details and claim of the applicant against each OA, are as follows:- O.A.

Invoice no./RR no., date of booking & consignment Claim for refund of overcharges on account of III-234/2013 [OA(III)/GHY/2013/0279] 52/212000951 dated 19.01.2013 ex.

Siuri to Digaru.

2655 MT of Dry Fly Ash packed in 76000 bags in trainload.

Consignment weighed enroute in weighbridge, in which overloading was alleged to have been found. (a) Punitive Undercharge of Rs.10,698/- at destination station; & (b) Terminal Charges (OTC & DTC)/Calculation Mistake of Rs.2,51,113/-.

III-85/2014 [OA(III)/GHY/2014/0085] 02/212003393 dated 07.07.2012 ex.

Halved to Jorhat Town.

2576 MT of Iodized Salt packed in 69016 packets in trainload. (a) Terminal Charges (OTC & DTC)/Calculation Mistake of Rs.2,91,071; & (b) Trainload Calculation Mistake on NTR of Rs.82,241/- III-12/2021 [OA(III)/GHY/12/2021] (i) 01/212000002 dated 21.01.2012; (ii) 02/212000004 dated 06.02. ted 06.02.2012 & (iii) 03/212000016 dated 16.01.2013 ex.

Manigram to Digaru & (iv) 53/212000953 dated 20.01.2013 ex.

Total chargeable weight as per CC = 10623 MT of Dry Fly Ash packed in 304000 bags in trainload.

Terminal Charges (OTC & DTC)/Calculation Mistake of Rs.9,50,312/-.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 2 3.

As per Railway Receipt, in all the above cases, the applicants are the consignee of the subject consignment, as stated in the above table.

They have served notice under Section 106 of the Railways Act, 1989 upon the respondents for refund of the alleged overcharges under heads, as stated above.

Their claims were either decided negatively or were not responded; consequently the claim applications before this Tribunal have been filed under Section 16 of the Railways Act, 1989.

4.

Regarding punitive undercharge, the applicant of OAIII-234/2013 [OA(III)/GHY/2013/0279] has asserted that in the Forwarding Note, all details regarding the said consignment was given, such as, weight, quantity, value, description, etc. and accordingly the booking railway accepted the consignment for carriage and after charging freight and other charges, Railway Receipt was issued.

Loading was carried out under the supervision of the Railway staff, therefore the question of overloading does not arise.

But at destination station, the railway wrongly and illegally levied and collected punitive charge from the applicants under Section 73 of the Railways Act, 1989 on allegation of overloading found on weighment enroute.

It is also asserted that neither excess goods were delivered to the applicant, nor any indemnity bond for the same under Rule 1879(a) of the Indian Railways Commercial Manual Volume-II of 1991 was taken.

Also no load adjustment or unloading was carried out in transit as per second part of Section 73 of the Railways Act, 1989.

Act, 1989.

As such, the question of overloading and consequential levy and collection of punitive undercharge does not arise.

4.1 It is further asserted that the rakes carrying the subject consignment was weighed at Railway weighbridge, whose fitness on the basis of information gathered by the applicant is doubtful.

Respondents have to prove that the subject weighbridge was in fit and sound condition for taking weighment and its maintenance was carried out in accordance with relevant rules and regulations.

No show-cause notice before imposition of the impugned punitive charge was given and no opportunity of hearing was also provided, which is in sheer violation of principles of natural justice.

In support of the above, the applicant cited certain case laws, reference of which shall be given in the discussion portion.

It is asserted that impugned punitive charge is bad and illegal and applicant is entitled to get refund of the same.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 3 4.2 As far as levy and collection of impugned terminal charge is concerned, the applicants have first challenged the same on the ground that the goods sheds regarding which the impugned terminal charge was levied and collected were not notified as terminal goods sheds having facilities as required through Railway Board’s Circular no.2007/PL/25/1 dated 05.06.2007.

Therefore, levy of terminal charge regarding those goods sheds are unauthorized and illegal.

Secondly, the applicants have asserted that their consignments were bagged consignments.

In the light of Railway Board’s, Rates Circular no.58 of 2007 No.TCR/1078/2007/6 dated 29.05.2007, Rates Circular no.

74 of 2007 no.TCR/1078/6 dated 19.07.2007 and Rates Circular no.92 of 2007 No.TCR/ 1078/2007/6 dated 18.09.2007, bagged consignments do not attract levy of terminal charge.

This position remained unchanged even after Rates Circular no.92 of 2007 No.TCR/1078/2007/6 dated 18. dated 18.09.2007, as Railway Board’s Circular no.TCR/ 1078/ 2007/6 dated 17.07.2007 was not superseded by that Rates Circular and it still hold good.

Since the subject consignments were bagged consignments, therefore imposition of terminal charge on them is unauthorized and bad and required to be refunded to the applicants.

4.2.1 In furtherance, it is also asserted that Railway Board’s Circular no.2007/PL/ 25/1 dated 05.06.2007 is still in operation as per information provided by the Railway Board in response to RTI application by learned counsel of the applicants Shri K.

Maheshwari, Advocate.

Further, the Rates Circulars are stated in those circulars itself as rules, but they were not laid down before the Parliament for required approval under Section 199 of the Railways Act, 1989 and in absence of such statutory Parliamentary approval, they cannot be said to be operative in the present.

Therefore charging of terminal charges under said Rates Circulars is also not permissible and is without authority.

4.3 Overcharge due to calculation mistake is also raised in the above claim applications by the applicants and refund of the same is sought for.

5.

The respondents in those claim applications are the Railway Administration of originating/destination terminal station.

They were sent notices and in response to the notices, they contested the claim applications by filing separate written statements, but their defense in their written statement are more or less same against the claimants’ claim.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 4 The respondents have challenged the maintainability of the claim applications assailing the legal entity of the applicants’ company and authority of the persons, who verified, signed and filed the claim applications for and on behalf of the applicants’ company. ’ company.

Further, legality and authority of notice under Section 106 of the Railways Act, 1989, sent to the Railway Administration through advocate for and on behalf of the applicants’ company is also challenged.

Their defence regarding punitive charge is that the Railway Receipt issued for the subject consignment was issued under ‘Said to Contain’ endorsement and loading was not supervised by the Railway staff.

Therefore, whatever weight and other descriptions given by the consignor in the Forwarding Notes lose its importance and it is applicant’s burden to prove the correctness of the weight.

The weighbridge, on which the subject weighment was carried out, was in fit condition and was maintained as per relevant rules and regulations.

It is further asserted that Section 73 of the Railways Act does not stipulates for giving show-cause notice and opportunity of hearing to the applicants before levy and collection of punitive charge for overloading of the subject consignments.

Moreover, charges under Section 73 for overloading, though termed as ‘charge by way of penalty’, it is not of punitive nature, rather it is of compensatory nature.

Therefore, the need to give show-cause notice does not arise in absence of express provision for the same.

As far as, collection of terminal charges is concerned, Railway Board’s Circular no.2007/PL/25/1 dated 05.06.2007 has no connection to this charge.

This circular is meant for development and upgradation of certain terminals with certain facilities, for which draft plan was directed to be prepared to the concerned Railway Administration.

Terminal charge on Railway owned goods shed was introduced by Rates Circular no.58 of 2007 No.TCR/1078/2007/6 dated 29.05.2007, which was partially modified by Rates Circular no.

74 of 2007 no.TCR/1078/6 dated 19.07.2007.

The terminal charge was initially levied only on bulk and loose consignments.

For clarification of the same, the Railway Board had issued other Circular no. rcular no.TCR/1078/2007/6 dated 17.07.2007, by which, it was clarified that terminal charge would be imposed only on bulk and loose goods, and commodities packed in bag, tin, carton, drum, bale or crate, do not attract liability of terminal charge.

On the same way, it is also clarified that private siding is exempted from the liability of terminal charge.

By Rates Circular no.92 of 2007 No.TCR/1078/2007/6 dated 18.09.2007, the above Rates Circular no.74 of 2007 no.TCR/1078/6 dated 19.07.2007 was superseded and new III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 5 category with new rate was given.

This Rates Circular no.92 of 2007, re-categorized the traffic for the purpose of terminal charge as (i) Iron Ore traffic, (ii) All other traffic, and (iii) Container traffic, fixing the rate of terminal charge per terminal @ Rs.40/- per tonne, Rs.10/- per tonne and nil respectively.

Later on, the rate of item no.(ii) i.e., ‘All other traffic’ was enhanced @ Rs.20/- per tonne per terminal vide Railway Board’s Corrigendum to Rates Circular no.92 of 2007 no.TCR/1078/2007/6 dated 17.01.2008.

As such, all the consignments which are ‘Iron ore traffic’ and ‘All other traffic’, whether bulk and loose traffic, terminal charges is leviable.

This new circular does not differentiate imposition of terminal charge in the form of bulk and loose consignment or bagged consignment.

It is contended that the above Rates Circulars are not rules as subordinate legislation framed under Section 198 of the Railways Act, 1989 and as such they are not required to be tabled before the Parliament for approval under Section 199 of the Act.

Only inadvertent reference as rules in any of above circulars, cannot make their nature as rules framed under Section 198 of the Act. f the Act.

In fact, those Rates Circulars were issued under the authority given by Section 30 of the Railways Act to the Union Government represented by Railway Administration, which do not require to be placed before the Parliament under Section 199 of the Act.

As far as calculation mistake is concerned, the respondent railways have contended that freight was correctly charged and no refund is due to the party on account of error in distance, freight calculation, terminal charges and concession.

Accordingly, the claim applications were prayed to be dismissed.

6.

On the basis of pleadings of the parties, the following issues were framed in all these four cases separately, which were similar, as under: 1.

Whether statutory legal notice under Section 106 of the Railways Act, 1989 has been duly served?

Whether the applicant holds legal title?

3.

Whether the applicant is entitled for compensation as claimed in the claim application and what extent?

Relief and cost?

7.

Both the parties have placed documentary evidence in support of their cases, which will be referred during discussion of the issues, as per relevancy and requirement.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 6 8.

We heard the learned counsel for the applicants as well as learned counsel for the respondents and thoroughly perused the record.

9.

Pleadings of the parties, as narrated herein above, show that on all the above issues, their pleadings and grounds are more or less common.

Therefore, we are taking issues of all the cases for discussion simultaneously.

Discussion and findings on issues 10.

ISSUE NO.1: Whether statutory legal notice under Section 106 of the Railways Act, 1989 has been duly served?

In all the above three cases, we found that notices under Section 106 of the Railways Act, 1989 were given by Shri K.

Maheshwari, Advocate for and on behalf of the applicant companies. companies.

Notices were got received by/served by speed post on the respondent railway administration within stipulated time of six months under Section 106 of the Act.

Shri K.

Maheshwari is a registered advocate and legal practitioner.

By law, he is authorized to send notice for claims for and on behalf of his clients to the opposite party.

Therefore, his competency to send notice is also unquestionable.

Though in two cases, supplementary notices were found given after six months, but such supplementary notice is permissible and does not vitiate the original notice.

It is also mentioned that all the original notices contained all the necessary facts regarding the subject claims.

Accordingly Issue no.1 is decided affirmatively in favour of both the applicants and against the respondents.

11.

ISSUE NO.2: Whether the applicant holds legal title?

On perusal of records, we found that in all the cases, Railway Receipts available on record are in the name of the applicants as consignee.

Here it is also mentioned that the applicants have taken delivery of the consignment at destination by submitting the original Railway Receipt to the concerned Railway authorities.

Therefore, under Section 74 of the Railways Act, 1989, the applicants hold all rights and liabilities regarding the subject consignments and hold title to file the impugned claim before this Tribunal.

In all the claim applications, the respondents have also challenged the authority of the persons who have verified, signed and filed the instant claim applications as well as legal entity of III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 7 the applicants’ business concern for filing the claim applications under their verification and signature.

The applicants have brought on record documents, which shows that the applicants’ business concern are registered company and therefore, they are entitled to sue and to be sued in their own name. own name.

The signatories of the claim applications have filed affidavits, stating on oath all the facts stated in the claim applications.

To prove the above fact, relevant and satisfactory documentary evidence have been produced on record by the applicants’ business concern.

Therefore we hold that all the applicants hold legal title.

Accordingly Issue no.2 is decided affirmatively in favour of the applicants and against the respondents.

12.

ISSUE NO.3: Whether the applicant is entitled for compensation as claimed in the claim application and to what extent?

In OAIII-234/2013 [OA(III)/GHY/2013/0279], the claim of the applicant is on account of wrong levy and collection of punitive undercharge (PUC), terminal charges and calculation mistake.

While in two other cases i.e., OAIII-85/2014 [OA(III)/GHY/ 2014/0085] and OAIII-12/2021 [OA(III)/GHY/12/2021], terminal charges and calculation mistake are under challenge.

The above cases are taken up for discussion, OA-wise, herein below: 12.1 Punitive Undercharge (PUC): This issue is involved only in OAIII-234/2013 [OA(III)/GHY/2013/0279].

12.1.1 As far as fitness of the weighbridge and weighment of the subject weighment therein is concerned, on perusal of the record, we found that the respondents have failed to file any document regarding fitness of the concerned weighbridge as well as correctness of the subject weighment therein.

12.1.2 The applicant has referred decision of the Hon’ble Gauhati High Court in WP(C) No.6021 of 1999 Nirmal Traders vs.

Union of India & Ors. decided on 08.04.2023 [(2003) 2 GLR 429], in which, it is held that railway must satisfy the Court that weighment taken is correct.

Penalty can be imposed only when overloading is proved.

Mere fact that weighment has been taken at Railway weighbridge cannot be a reason for imposing penalty without giving opportunity for showing cause to the person concerned. concerned.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 8 12.1.3 Further, in MFA 32/2013 Union of India through General Manager, N.

Railway versus M/s.

Unique Coal Traders decided on 07.06.2018, the Hon’ble Gauhati High Court has held in para 10, as under: “Regarding fitness of the weighbridge, the Railway ought to have produced the inspection register along with the report of the station master with respect to the status of the said weighbridge.

Non-production of the said materials even after seeking the said documents to be produced, a presumption arose against the Railway/appellant with respect to the correctness of the weighbridge.

In fact the R-2 is a certificate issued by the Inspector of Legal Metrology Department, but not by a personnel from the Mechanical Department as required under the Rule 1435 of IRCM, Vol-II, Rule 1 of 1991.....” 12.1.4 The above pronouncement of the Hon’ble Gauhati High Court clearly appears to hold on law that it is for the railway to prove the fitness of the concerned weighbridge and correctness of the subject weighment therein, when a punitive undercharge on allegation of overloading has been levied and collected on the consignor/consignee/endorsee, as the case may be.

As we found above, the respondents have failed to produce any document regarding fitness of the subject weighbridge viz. certificate of Legal Metrology Department, which is imperative before use of a weighbridge or weighing machine; certificate of Mechanical Department on periodical six monthly checking of weighbridge required under Rule 1431 of IRCM Vol-II of 1991; weighbridge register and tally book maintained by the station master on a daily basis by checking weighbridge when coming on duty as prescribed in Rule 1435 of the said IRCM; and break down register of the weighbridge. ighbridge.

Therefore, the respondents have apparently failed to discharge their responsibility in proving the fitness of the subject weighbridge.

The respondents have also not filed the weighment chart, which is the basis of the subject weighment, as such, giving a fair doubt about the correctness of the weighment also.

Lastly, there is no defense of the respondents in response to the pleadings of the applicants that no show- cause notice was given before levying the impugned punitive charge, which is imperative in view of the Full Bench decision of the Hon’ble Gauhati High Court in WA 333/2010 Megha Technical & Engineers (Pvt) Ltd. vs.

Union of India.

Therein, the Hon’ble High Court has held in paras 11 and 19, as under: “11: The process to penalize a party for overloaded wagons must be construed as a quasi-criminal proceedings.

The detection of excess weight could either be for deliberate defiance of the maximum carrying capacity or faulty re-weighment or even a bonafide mistake of the parties.

Therefore in all situations, when re- weighment shows excess loading, punitive levy may not be the only consequence.

The power to penalize should be invoked in appropriate cases and can not be a matter of course, without providing any opportunity to the affected party. such imposition in our view will be arbitrary and fail the test of justice.

19.

The Railway authorities are empowered under Section 73 to recover penalty when a consignment is found to be heavier than the declared weight.

But the section requires the issue to be resolved, before delivery of consignment.

But the figure in the re-weighment should not in our understanding be the cause for penalizing and an opportunity must be provided to the consignor to establish that they should not be fastened with punitive charge.

To insist on adherence to the principles of audi alteram partem before anyone is penalized, would prevent arbitrary penalization and further the cause of justice”. justice”.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 9 12.1.5 In view of the above discussion and the reasons stated herein above, the imposition of punitive undercharge and its collection, appears not just and fair and accordingly the applicant is found entitled to get refund of impugned punitive charge of Rs.10,698/-.

12.2 Terminal Charges: This issue is involved in all the above three OAs.

12.2.1 Regarding their claim of refund of terminal charges, the applicants’ contention is that the originating goods shed Siuri/Halved/Manigram as well as destination goods sheds Digaru/Jorhat Town, though are railway owned goods sheds, but these were not notified as freight terminals having facilities of terminal as prescribed in Railway Board’s Circular no.2007/PL/25/1 dated 05.06.2007.

12.2.2 Moreover, in these cases, the consignments were bagged consignments and in terms of Railway Board’s Rates Circular 58 of 2007 No.TCR/1078/2007/6 dated 29.05.2007, terminal charges are not leviable on bagged consignment.

12.2.3 Both the above contentions raised by the applicants came up before the Hon’ble Gauhati High Court in MFA No.100 of 2011 Union of India versus M/s.

Meghalaya Cement Limited decided on 25.06.2015 (reported at MANU/CG/0280/ 2015), in which the Hon’ble High Court has held at para 12 and 13, as under: “12.

After careful perusal of the said letter dated 05.06.2007, it does not transpire that before imposing the Terminal Charges, it is mandatory to have such facilities as desired as per the letter dated 05.06.2007.

The facilities mentioned in the letter dated 05.06.2007 is desirable and not mandatory to hold that for Terminal Charges, such facilities are required to be complied with.

Be it mentioned that prior to issuance of the said letter vide Rates Circular no.58 of 2007 dated 29.05.2007 the Central Government had accorded sanction for levying of Development Surcharge and Terminal Charges.

13. arges.

13.

Further, it is not in dispute that ‘Changsari’ Terminal/Shed is owned by the Railway and as in Rates Circular no.92 of 2007 dated 18.09.2007 the term ‘all other traffic’ is included and the Terminal Charges levied on all traffic except container traffic, as such it has right levied the Terminal Charges”.

12.2.4 In view of the above decision of the Hon’ble Gauhati High Court, the above contention of the applicants loses their element and therefore not acceptable.

12.2.5 The applicants have also filed information received under RTI Act from the Parliament to the effect that the Railway Board’s Rates Circular 58 of 2007 No.TCR/1078/2007/6 dated 29.05.2007, Rates Circular no.

74 of 2007 no.TCR/1078/6 dated 19.07.2007 and Rates Circular no.92 of 2007 No.TCR/1078/2007/6 dated III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 10 18.09.2007 and Corrigendum to Rates Circular no.92 of 2007 no.TCR/1078/2007/6 dated 17.01.2008 were not laid down before the Parliament for approval as per mandate of Section 199 of the Railways Act.

Therefore the applicants contended that the above Rates Circulars, on the strength of which the terminal charges is levied and collected, were not in existence and they have lapsed.

The applicants further asserted that in the above Rates Circulars, they are termed as ‘rules’, but we find that in Rates Circular no.92 of 2007 No.TCR/1078/2007/6 dated 18.09.2007, the word ‘rules’ is used, but they are not in fact rules framed under the rule making power of the executive under the Act.

Section 30 of the Railways Act, empowers the Central Government to fix rates and other charges and the above Rates Circulars were issued by the Railway Board under the approval of the Central Government, as mentioned in those Rates Circulars.

For reference, Section 30 of the Railways Act, 1989 is given herein below: “30. elow: “30.

Power to fix rates – (1) The Central Government may, from time to time, by general or special order fix, for the carriage of passengers and goods, rates for the whole or any part of the railway and different rates may be fixed for different classes of goods and specify in such order the conditions subject to which such rates shall apply. (2) The Central Government may, by a like order, fix the rates of any other charges incidental to or connected with such carriage including demurrage and wharfage for the whole or any part of the railway and specify in the order the conditions subject to which such rates shall apply”.

12.2.6 On the above discussion and reason stated above, we found that the applicants are not entitled to get refund of Terminal Charges.

12.2.7 In their written submission, the applicants have sought liberty to raise the issue of terminal charges again before this Tribunal in case a decision in favour of the applicants is passed by Hon’ble Apex Court in SLP/Diary no.33852/2018 on terminal charges.

But we find that the above SLP has been filed by the railway against the judgement and order passed in MFA no.27/2016 decided on 07.11.2019.

In the above case, the Hon’ble High Court had only decided the question of admissibility of freight incentive to the new customer under special incentive scheme.

The Hon’ble Gauhati High Court has not given any decision on the question of levy and collection of terminal charges under the above Rates Circulars.

The above judgement of the Hon’ble High Court is under challenge in above SLP and the levy and collection of terminal charge under the aforesaid Rates Circulars is also not in question before the Hon’ble Apex Court and the law laid down in MFA no.100 of 2011 (supra).

Therefore, there is no question to consider the prayer of the applicants to give them liberty to raise the question of levy and collection of terminal charge again before this Tribunal.

Tribunal.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 11 12.3 Calculation mistake due to wrong calculation of NTR: This issue is involved in all the above three OAs.

In these cases, the applicants have given their calculation in their claim applications.

On perusal of their calculation, it is seen that the applicants therein have derived NTR after adding Development Charge and Busy Season Charge with Base Freight and then deducted rebate of N.

E.

State on derived NTR, which is wrong.

As per Rates Circular, only Busy Season Charge should be added with Base Freight, and the sum so arrived at becomes NTR and on which, rebate and other charges are calculated.

Hence we hold that applicants of all these three cases are not entitled for any refund on this count.

Accordingly Issue no.3 is partially decided in favour of all the applicants and against the respondents.

14.

ISSUE NO.4: Relief and cost?

Our conclusions on the above issues are as under: O.A.

Findings III-234/2013 [OA(III)/GHY/2013/0279] (i) Applicant is entitled for refund of Punitive Charge of Rs.10,698/-. (ii) Applicant is not entitled for refund of Terminal Charges. (iii) Applicant is not entitled for refund of alleged freight overcharges on account of wrong calculation of NTR.

III-85/2014 [OA(III)/GHY/2014/0085] (i) Applicant is not entitled for refund of Terminal Charges. (ii) Applicant is not entitled for refund of alleged freight overcharges on account of wrong calculation of NTR.

III-12/2021 [OA(III)/GHY/12/2021] (i) Applicant is not entitled for refund of Terminal Charges. (ii) Applicant is not entitled for refund of alleged freight overcharges on account of wrong calculation of NTR.

Keeping in view the peculiar facts and circumstances and the background of these cases, no order as to cost is required to be given.

Accordingly Issue no.4 is decided. s decided.

ORDER OAIII-85/2014 [OA(III)/GHY/2014/0085] & OAIII-12/2021 [OA(III)/GHY/12/2021] Result of our findings above is to hold that these two original applications lack merits.

As such, it is dismissed.

No costs.

III-234/2013 [OA(III)/GHY/2013/0279], III-85/2014 [OA(III)/GHY/2014/0085] & III-12/2021 [OA(III)/GHY/12/2021] 12 OAIII-234/2013 [OA(III)/GHY/2013/0279] This original application is partially allowed in favour of the applicant.

The respondents are directed to pay to the applicant, a compensation of Rs.10,698/- (Rupees ten thousand six hundred ninety eight only) with simple interest @ 6% (six percent) per annum from the date of filing of original application i.e., 04.11.2013 upto the date of service of this order to the respondents.

Parties shall bear the cost of their own.

Applicant is directed to furnish his full details of bank account particulars, PAN Card or any other identification document issued by any government authority, to the Registry of this Tribunal and also to the respondents within ten days from the date of receipt of copy of award for effecting payment through ECS.

With this observations and directions, these three original applications stand disposed of accordingly.

Let these case files be consigned to the record room after due compliance. (Mahtab Ahmad) (Leena Sarma) Member (Judicial) Member (Technical) Date: 25.10.2023 PTPS