TaxTMI 
TaxTMI 
2013 (3) TMI 895
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....out of common order of learned Single Judge quashing the demand notice issued by the Railway Administration. 2. The facts in all the appeals are almost similar. We may refer to the facts in appeal arising out of W.P.(C) No.1262 of 2011. The writ petitioner was procuring fly ash from M/s Tata Power Limited from Tata Nagar for manufacturing cement. One such consignment of cement was booked from Tata Nagar to Digaru on 12.1.2011 and the same was delivered on 19/20.1.2011. The impugned notice was issued after the delivery of the consignment stating that the weight of the consignment was found to be more at the time of delivery. The writ petitioner was directed to pay the punitive charges amounting to Rs. 28,827/-. The writ petitioner paid th....
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....nor shall be liable for the penal charge even at the stage of delivery of goods at the destination if he has booked the goods for 'self' or for any other causes. If the goods booked for the endorsee, the endorsee is liable if the delivery is applied for at the destination by the endorsee. The consignee will be liable if the delivery is applied for at the destination by the consignee. In Jagjit Cotton Textile Mills (supra) Supreme Court held that though Railways authorities are seized of the powers of raising the punitive charges for overloading of the wagon but that the punitive charges are required to be raised when the delivery is applied for at the destination station. It is, therefore, clear that the Apex Court interpreted the power of ....
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....on Textile Mills (supra) held that the section permits enforcement of the lien in case of failure on the part of the consignor, consignee or endorsee to pay the freight and other charges due from him. Other charge embraces the penal charges leviable under Section 73 of the new Act, i.e. the Railways Act, 1989. Therefore, Section 83 permits the Railways to recover the charges as stated from the persons, which include the consignee as the condition precedent for the delivery of goods. As such the said interpretation does not leave any space for ambiguity. The words 'condition precedent for the delivery of the goods' can only be understood in the way that after delivery is caused, no lien can be rais ed by the Railways. What Mr. U.K. Nair, lea....
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.... sustained in the factual context under reference. 19. Since the statutory provision as engrafted in Section 83 of the Railways Act, 1989 read with the interpretation as rendered by the Apex Court demands that the lien shall be raised as condition precedent of the delivery and no lien can be presumed after the delivery. In this regard, the Delhi High Court has culled out the law in Jayaswals Neco Limited Vrs. Union of India and ors. that the lien cannot be presumed. This High Court in Megha Technical & Engineers (Pvty.) Ltd. Vrs. The Union of India & Ors. reiterated the principles as laid down in Nirmal Traders (supra). In this batch of the cases, the said observation of the larger Bench in Megha Technical & Engineers (Pvt.) Ltd. (....
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....before the delivery of the consignment, have the right to - (i) re-measure, re-weigh or re-classify any consignment; (ii) recalculate the freight and other charges; and (iii) correct any other error or collect any amount that may have been omitted to be charged. 79. Weighment of consignment on request of the consignee or endorsee,-A railway administration may, on the request made by the consignee or endorsee, allow weighment of the consignment subject to such conditions and on payment of such charges as may be prescribed and the demurrage charges if any; Provided that except in cases where a railway servant authorized in this behalf considers it necessary so to do, no weighment shall be allowed o....
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....pers or where there are no such newspaper in such manner as may be prescribed. (4) The railway administration may, out of the same proceeds received under sub-section (2), retain a sum equal to the freight and other charges including expenses for the sale due to it and the surplus of such proceeds and the part of the consignment, if any, shall be rendered to the person entitled thereto." 7. Once delivery is made, power under Sections 73, 78, 79 and 83 cannot be invoked. Learned Single Judge rightly relied upon the plain language of the said Sections and the judgment of the Hon'ble Supreme Court in Jagjit Cotton Textile Mills Vrs. Chief Commercial Superintendent, N.R. and others, (1998) 5 SCC 126, wherein it was held : "....