- (1.) Both these writ petitions arise out of the same order passed by the Inquiry Officer Shri Srinivas Mudgerikar, who is Respondent No. 2 in both these petitions. The facts briefly stated are: M/s. Goodearth Agro Chem Private Limited imported Manganese Ore from Indonesia. The cargo was handled by Shipping line M/s. Trans Asian Shipping Services Private Limited. According to the carrier which transported cargo i.e. the Container Corporation of India Limited, there was misdescription. Instead of declaring cargo to be Manganese Ore, it was stated to be general cargo. It, therefore, imposed penalty. There was a previous petition before this Court and because of directions therein, Respondent No. 2 Srinivas Mudgerikar was appointed as Inquiry Officer. He found M/s. Trans Asian Shipping Services Private Limited as also M/s. Goodearth Agro Chem Private Limited, jointly and severally liable to pay penalty. His reports/order dated 10.09.2012 is questioned in both these matters.
(2.) Writ Petition No. 5299 of 2012 is filed by M/s. Goodearth Agro Chem Private Limited while Writ Petition No. 1018 of 2013 is filed by M/s. Trans Asian Shipping Services Private Limited. The Container Corporation of India Limited is Respondent No. 1 in both writ petitions. M/s. Trans Asian Shipping Services Private Limited has joined M/s. Goodearth Agro Chem Private Limited as Respondent No. 3 and Ministry of Railways as Respondent No. 4. M/s. Goodearth has arrayed M/s. Trans Asian Shipping Services Private Limited as Respondent No. 3 in this writ petition. The importer or owner M/s. Goodearth imported total nine containers of Manganese Ore from Indonesia which arrived at Nhava Sheva Port at Mumbai through Shipping Services mentioned supra. These containers have been further transported from that port to International Container Depot (ICD), Nagpur by Rail. The importer M/s. Goodearth had sought delivery at Nagpur. The transportation by Rail was undertaken by Respondent No. 1 Container Corporation of India Limited. Forwarding note for that purpose was submitted by Shipping services declaring the commodity as "chips" (general cargo) instead of Manganese Ore. At the relevant time, Manganese Ore was a restricted commodity and could not have been carried by Rail. The first forwarding note was dated 05.11.2011 while the second forwarding note was dated 15.11.2011. The first batch arrived at ICD Nagpur on 10.11.2011 while the second batch arrived on 18.11.2011. Shipping line then filed Bills of Lading with customs department with copy thereof to Container Corporation at ICD. It mentioned the commodity carried as Manganese Ore. Accordingly, Container Corporation learnt about the correct nature of commodity. Railway Board's letter No.2008/TT-III/ 73/8 dated 01.07.2008 declared ores, minerals, coal and coke as restricted commodity for movement by railway container. Railway Circular No. 95 of 2006 specifies penalty in cases of false declaration of goods. Penalty is leviable four times the highest freight slab rate and it is over and above the freight charges already paid. The Container Corporation had transported goods subject to the said letter and circular. Because of penalty claimed by the Container Corporation, writ petition was filed before this Court vide Writ Petition No. 6116 of 2011 by M/s. Goodearth. This High Court on 13.01.2012 directed M/s. Goodearth to pay penalty for the entire amount and complete other formalities. When these developments and correspondence was going on, M/s. Goodearth filed Civil Application No. 287 of 2012 in that writ petition for initiating contempt proceedings. Thereafter the containers were released to M/s. Goodearth because of orders in Writ Petition No. 1661 of 2011 dated 09.02.2012. Respondent No. 2 General Manager of Container Corporation was directed to make inquiry. Accordingly, Respondent No. 2 after completing inquiry, submitted his report on 10.09.2012. Respondent No. 2 has found that the Railway administration and the Container Corporation have entered into concession agreement and Railway Board's letter dated 01.07.2008 formed part of said agreement. The agreement was for a period of 20 years and as such the terms stipulated in Railway Board's letter remained valid for entire concession period of 20 years unless amended otherwise by Railway Board. Relying upon said letter and Railway Circular No. 95 of 2006, he applied his mind to the facts and found that there was misdescription by shipping line by mentioning cargo as chips (general cargo) instead of Manganese Ore. After completing inquiry, he held both the petitioners jointly and severally liable to pay penalty and other associated charges. He found that provisions of Sections 66 and 83 of Railways Act, 1989 enable Container Corporation to claim the same from M/s. Goodearth. He accordingly found penal charges payable at Rs.9,07,327.80. He also in addition recommended ground rent in respect of five containers from 10.11.2011 to 18-01-2012 and remaining four containers from 18.11.2011 to 18.01.2012.
(3.) Shri R.M. Bhangde, learned counsel appearing for M/s. Goodearth has submitted that M/s. Goodearth is only the consignee who steps into picture after goods reached ICD Nagpur. Shipping line was selected by the Company in Indonesia, which sold the Manganese Ore to M/s. Goodearth and hence M/s. Goodearth cannot be held jointly and severally liable for misdescription by Shipping services. He has taken us through the provisions of Sections 64, 66 and 83 of Railways Act, 1989, to demonstrate how the consignor or person incharge of goods is made liable therein. The consignor was the company in Indonesia and Shipping services was acting at its instance and was incharge of the cargo. He has invited attention to note in which false declaration or incorrect declaration has been alleged. He states that though on first page the description was incorrect, in later pages, commodity was clearly mentioned as Manganese Ore. All necessary documents & these pages were part of the forwarding note and hence there was no question of any intention to cheat or to obtain wrongful gain. The judgment of the Hon'ble Apex Court in the case of Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, Indore & Ors., 1980 1 SCC 71, is pressed into service to urge that in the absence of necessary mental condition and as all relevant data was available on record, penalty proceedings were uncalled for and unsustainable.;