TMI Blog1994 (9) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... 55. In exercise of the powers conferred by the Order, the Central Government issued a notification on December 27, 1991 fixing the prices at which different types of coal and coke, including hard coke, would be sold. Alleging that despite such fixation of price of hard coke by statutory notification the appellant was demanding and, for that matter, realising, besides the price, service charges the respondent filed a writ petition in the Patna High Court wherein it contended that such action on the part of the appellant, which was a 'State within the meaning of Article 12 of the Constitution of India, was wholly arbitrary and illegal and, accordingly, prayed for appropriate relief. In contesting the petition the appellant submitted that coal and coke were different commodities and in view of the fact that the respondent was required to be supplied foundry hard coke, which had a specified sized, it had to put in some extra work and effort like shifting and sizing after production of the coke in the plant, and that necessarily meant extra expenditure. According to the appellant recovery of such expenditure was not barred by the notification and, on the contrary, the notification p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions of the mining technology employed in the collieries by the colliery owner, as well as the estimated cost of production of coal and coke produced by such colliery owner, fix, by notification in the Official Gazette, the retention price of respect of each class, grade or size of coal and coke produced and sold by such colliery owner. Clause 5(1), so far as it is relevant for our purposes, provides that no colliery owner or his agent shall sell, agree to sell or offer to sell coal in excess of the price or the maximum price fixed under clause 4. The only other clause of the Order which requires mentioning here in Clause 12A. It provides that the Central Government may, through Gazette notification, specify the authorities competent to allot quota of coal to any person or class of persons and every such authority shall allot such quota subject to such instructions as the Central Government may issue from time to time. In exercise of the above power, the Central Government has specified its Coal Controller to be the authority competent to allot quota of coal. In pursuance of Clause 3 and 4 of the Order the Central Government issued the notification in question prescribi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning on the basis of size ranges. Similarly, coke as produced in various plants has an unspecified size distribution and has to be suitably size graded. For a rational and economic use of these important materials it is necessary to grade them and assist suitable nomenclature linked with popular trade names and based on size fractions so that it may be possible to market them with maximum advantage both to the producers and the consumers. (emphasis supplied) The report then prescribes the standard nomenclature and size ranges of coal and coke for marketing and the methods of sampling and test for their size grading. The size analysis of hard coke and its correspond-ing size ranges for marketing are given in Table 2 of the report, which is reproduced below: TABLE 2 SIZE ANALYSIS OF HARD COKE FOR MARKETING (Clauses 3.1 and 5.1.1) SI. Tolerance No. Percent By Nomenclature (Trade Name) Size Range (IS Steev) (PS) Mass, Max On Over-size On Unders Size (1) (2) (3) (4) (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in Beehive Oven (B.H.) and B.P. Plants coke is produced. After manufacture of coke further handing is required for sale of coke. It is stated that Pit Head Coke is an assorted sizes of coke having various size ranges. Coke below 1/2 size of 12 M.M. size constitutes upto 6 to 8 per cent of total Pit Head coke. As per Indian standard specification (I.S.) under size tolerance is 10 percent. Further Indian Standard specification for Foundry Coke is 4 (+100). This constitutes about 80 per cent of the total product. It is stated that loading is not possible at Pithead. Therefore shifting, sizing either by manual or by fork lifting and storing in different loading points is undertaken either manually or by vehicles. The colliery owners are spending substantial money to carry out despatch of coke according to specification as improper handing of coke may result in breaking. The operations required before despatch to suit Indian Standard Specification generates substantial rejection. The expenditures incurred in screening, stacking, loading and transportation into despatchable container is termed as handling charges. While dealing with the contentions of Mr. Salve, Mr. Sanyal, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial sizing or beneficiation. Terminologically coal as mined as known as 'run of the mine' and taking a cue from the same we may conveniently describe the coke as initially produced in the plant as run of the plant'. The 'run-of- the plant' has been categorised as hard coke of different classes and grades in Table I and their prices fixed accordingly in Table V of the notification depending upon its ash content. That the coke so produced has to be suitably handled to segregate those required for foundries according to ISI specification is evident not only from the statements made in the counter affidavit of the appellant but also from the foreword of the ISI report as quoted earlier. The exercised so undertaken by the appellant to screen the run-of-the plant which has an unspecified size distribution to get the extra large size, specifically earmarked for foundry would certainly be one for special sizing within the meaning of Note 14. The contention of Mr. Sanyal that since the respondent had not contracted of supply of special size it was not bound to pay for the same cannot be accepted as, in view of the definition of 'size' under the Order, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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