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TMI Blog2007 (3) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... e was issued under By-law No. 55A. Sections 56 and 58 of the Major Port Trusts Act, 1963 (hereinafter referred to as the said Act of 1963) deal with the mode of realisation of charges short levied or erroneously refunded or quoted. 2. Between April 1988 and July 1988 the respondent no. 1 cleared goods belonging to various importers and exporters from the port of Haldia upon payment of Port charges so levied upon them. The Port Trust, however, at the time of levying such port charges erroneously gave credit for 14 days free period whereas the consignees were entitled to 7 days free period. The Port Trust raised supplementary bills upon the respondent no. 1 at a subsequent stage. The respondent no. 1 expressed their inability to pay the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted the appeal and granted stay of operation of judgement and order and directed hearing of the appeal on the papers of the stay application. 6. The appeal was heard by us on the above mentioned dates. 7. Perusal of the documents disclosed in the pleadings reveals as follows : (i) Prior to February, 1988 , 15 days free period was allowed to all the consignees to clear the goods until notification dated March 10, 1988 was issued reducing the said period from 15 to 7 days. (ii) Cargo was released between April 1988 and July, 1988 availing 15 days free period despite notification dated March 10, 1988. According to Port Trust this was done by mistake. (iii) On May 5, 1988 a further notification was issued without changing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice . Provided that no such notice shall be issued after the expiry of two years. (a) When the charge is short levied, from the date of the payment of the charge ; (b) Where charge has been erroneously refunded, from the date of refund. (c) The board say, after considering the representation if any, made by the person to whom notice is issued under the sub-section (1) determine the amount due from such person shall pay the amount so determined. Section : 58 Rates in respect of goods to be landed shall be payable immediately on the landing of the goods and rates in respect of goods to be removed from the premises of a Board, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court Cases page 422 (Babu Verghese Ors. v. Bar Counsel of Kerala Ors.). 12. Let us first find out the law laid down by the Apex Court and the Division Bench of this Court on the subject controversy . (i) All India Reporter 1959 Supreme Court Page 135 ( The Sale Tax Officer Banaras Ors. v. Kanhaiya Lal Makund Lal Sharaf. In this case the Apex Court interpreted the term mistake in the context of Section 72 of the Contract Act. The Apex Court observed that if any payment is made in excess by mistake that must be repaid. The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established, entitles the party paying the money to recover it back from the party receiving the same. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust Act has its statutory clothing and can not be declared ultra vires on the ground of unreasonableness . Those who desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed in that behalf by the Board. (v) 1987 Volumn 28 Excise Law Time page 334 (Board of Trustees for The Port of Calcutta v. Indian Rayon Corporation Ltd. Anr.) This case dealt with the lien of the Port Trust under section 59. We do not find any relevance of this decision in the instant case. (vi) 1999 Volumn III Supreme Court Cases page 422 (Babu Verghese Ors. v. Bar Counsel of Kerala Ors). Here the Apex Court while interpreting rule framed under Advocates Act 1961 held that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult for the respondent no. 1 to collect such differential amount from the consignees or the consignor being their principal. Such difficulty cannot absolve the respondent from their liability to pay. 15. With all humility may we say that the learned Judge was perhaps not correct to apply the principle of equity in the facts and circumstances of this case as the claim of the appellant was not only strictly in terms of the statutory provision but also raised within the prescribed period so provided under the statute. 16. The appeal thus succeeds. The judgment and order of the learned Single Judge is set aside. 17. We however, give one year time from date to the respondent no. 1 to pay off the supplementary bills so raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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