Dismissed

Bharat Petroleum Corpn.Ltd v. State of Kerala

Kerala HC14 Nov 2022WA/811/2002

Case brief

AI extract

What is this about?

The Court dismissed writ appeals filed by petroleum corporations challenging a single judge's 2002 judgment on tax verification exemptions. The Court held that the impugned judgment had been in force for two decades and directions were implemented, finding no infirmity warranting interference.

What did the court decide?

All writ appeals filed by Bharath Petroleum Corporation Ltd. and Cochin Refineries Ltd. were dismissed.

Bharat Petroleum Corpn.Ltd Vs State of… — Constitutional and Fundamental Rights | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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¶5

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 14^TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944

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W.A.NO.791 OF 2002

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AGAINST THE JUDGMENT IN OP 27852/2000 OF HIGH COURT OF KERALA DATED 13.2.2002

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APPELLANT/PETITIONER:

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BHARATH PETROLEUM CORPORATION LTD. IRIMPANAM INSTALLATION, IRIMPANAM P.O.,, ERNAKULAM DIST., REPRESENTED BY ITS INSTALLATION, MANAGER K.SOMAIYA.

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BY ADV SRI.PAULOSE C ABRAHAM

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RESPONDENTS:

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1 STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,, TRIVANDRUM.

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2 CONTROLLER OF LEGAL METROLOGY, THIRUVANANTHAPURAM.

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3 INSPECTOR OF LEGAL METROLOGY, KAKKANAD ERNAKULAM, COCHIN 682 019.

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SRI.K.P.HARISH, SR. GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2022 ALONG WITH W.A.NOS.811 of 2002, 1644 of 2002, 1891 of 2002 & 1900 of 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

¶20

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶21

¶22

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 14^TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944

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WA NO. 811 OF 2002

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AGAINST THE JUDGMENT IN OP 15818/1995 OF HIGH COURT OF KERALA DT.13.2.02

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APPELLANT/PETITIONER:

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BHARAT PETROLEUM CORPN.LTD, ERNAKULAM INSTALLATION, DR.SALIM ALI ROAD,, ERNAKULAM, KOCHI-682 031, REPRESENTED BY ITS, DY.GENERAL MANAGER, R.M.GUPTA.

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BY ADV SRI.PAULOSE C ABRAHAM

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT,GOVT. SECRETARIAT,, THIRUVANANTHAPURAM.

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2 CONTROLLER OF WEIGHTS MEASURES, THIRUVANANTHAPURAM.

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3 ASSISTANT CONTROLLER OF LEGAL METROLOGY, ERNAKULAM, COCHIN-682 019.

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SRI.K.P.HARISH, SR. GOVERNMENT PLEADER

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2022 ALONG WITH W.A.NOS.791 of 2002, 1644 of 2002, 1891 of 2002 & 1900 of 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶36

PRESENT

¶37

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶38

¶39

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 14^TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944

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WA NO. 1644 OF 2002

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AGAINST THE JUDGMENT IN OP 13965/1995 OF HIGH COURT OF KERALA DT.13.2.02

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APPELLANT/PETITIONER:

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KOCHI REFINERIES LTD.,AMBALAMUGAL REGISTERED OFFICE AT AMBALAMUGAL-682 302,, REPRESENTED BY ITS COMPANY SECRETARY, N.VISWAKUMAR.

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BY ADV SRI.SRI.PAULOSE C ABRAHAM

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY,, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM.

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2 THE CONTROLLER OF LEGAL METROLOGY VIKAS BHAVAN, PALAYAM. THIRUVANANTHAPURAM.

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3 ASSISTANT CONTROLLER OF LEGAL METROLOGY, ERNAKULAM, COCHIN-682 019.

¶50

SRI.K.P.HARISH, SR. GOVERNMENT PLEADER

¶51

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2022 ALONG WITH W.A.NOS.791 of 2002, 811 of 2002, 1891 of 2002 & 1900 of 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶52

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶53

PRESENT

¶54

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶55

¶56

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶57

MONDAY, THE 14^TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944

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WA NO. 1891 OF 2002

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AGAINST THE JUDGMENT IN O.P.27852/2000 OF HIGH COURT OF KERALA DATED 13.2.2002

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APPELLANTS/RESPONDENTS 1 TO 3 IN THE OP:

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1 STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT,, TRIVANDRUM.

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2 THE CONTROLLER OF LEGAL METROLOGY, TRIVANDRUM.

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3 INSPECTOR OF LEGAL METROLOGY KAKKANAD, ERNAKULAM.

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BY ADV GOVERNMENT PLEADER SRI TEKCHAND V SR GP

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RESPONDENTS:

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BHARAT PETROLEUM CORPORATION LTD., ERNAKULAM INSTALLATION,, DR.SALIM ALI ROAD, ERNAKULAM, KOCHI-682 031,, REPRESENTED BY ITS INSTALLATION MANAGER,, K.SOMAIYA.

¶67

BY ADV SRI.PAULOSE C. ABRAHAM

¶68

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2022 ALONG WITH W.A.NOS.791 of 2002, 811 of 2002, 1644 of 2002 & 1900 of 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶69

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶70

PRESENT

¶71

THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

¶72

¶73

THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

¶74

MONDAY, THE 14^TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944

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WA NO. 1900 OF 2002

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AGAINST THE JUDGMENT IN OP 15818/1995 OF HIGH COURT OF KERALA DATED 13.2.2002

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APPELLANTS/RESPONDENTS 1 TO 3 IN O.P.:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,, SECRETARIAT, TRIVANDRUM.

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2 THE CONTROLLER OF WEIGHTS AND MEASURES, TRIVANDRUM.

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3 ASSISTANT CONTROLLER OF LEGAL METROLOGY, KAKKANAD, ERNAKULAM.

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BY ADV GOVERNMENT PLEADER SRI TEKCHAND V SR. G.P.

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RESPONDENT/PETITIONER IN THE O.P.:

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BHARAT PETROLEUM CORPORATION LTD., ERNAKULAM INSTALLATION, DR.SALIM ALI ROAD,, ERNAKULAM, KOCHI-682 031 REPRESENTED BY ITS DEPUTY GENERAL MANAGER, R.M. GUPTA.

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BY ADV SRI.PAULOSE C. ABRAHAM

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2022 ALONG WITH 791 of 2002, 811 of 2002, 1644 of 2002, 1891 of 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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JUDGMENT

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(W.A.Nos.791 of 2002, 811 of 2002, 1644 of 2002, 1891 of 2002 & 1900 of 2002)

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Dated this the 14^th day of November 2022

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S.MANIKUMAR, C.J.

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Since the issues involved in these writ appeals are common, they are being disposed of by this common judgment.

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These writ appeals are filed way back in the year 2002 challenging the common judgment dated 13^th February 2002 in Original Petition Nos.13965/95, 15818/95 and 27852/2000 by which, a learned Single Judge dismissed all the original petitions.

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Writ Appeal Nos.791/02 and 811/02 are filed by Bharath Petroleum Corporation Limited, Irimbanam. W.A.No.1644/02 is filed by Cochin Refineries Limited, Ambalamugal.

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Short facts leading to the filing of Writ Appeal Nos.791/02, 811/02 and 1644/02 are as follows:

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W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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Appellants in W.A.Nos.791/02, 811/02 namely, Bharath Petroleum Corporation Limited and Cochin Refineries Limited, are Government Companies defined under the Companies Act, 2013 with its registered office at Bombay and Ambalamugal, Cochin respectively. They are engaged in the business of refining and distribution of petrol and other petroleum products. For the purpose of storing their raw materials, intermediate products and the finished products, the appellants have installed necessary storage facilities by way of huge storage tanks. According to the appellants, in respect of the storage tanks where finished products are stored, the products are removed from the tanks either by tanker lorries or by pipelines or by rail wagons.

¶99

Appellants namely, Bharath Petroleum Corporation Limited and Cochin Refineries Limited preferred Original Petition Nos.13965/95, 15818/95 and 27852/2000. Original Petition Nos.13965/95 and 15818/95 were filed against the directions for calibrating

¶100

W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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the storage tanks installed by the appellants. Original Petition No.27852/2000 was filed by the Bharath Petroleum Corporation Limited for a declaration that the flow-meters installed by them at the Loading Gantries, in its Irimpanam Installation are not required to be calibrated under the Standards of Weights and Measures (Enforcement) Act, 1985 and the Rules thereunder.

¶103

After considering the rival submissions, vide judgment dated 13^th February 2002 in Original Petition Nos.13965/95, 15818/95 and 27852/2000 a learned Single Judge declined to accept the contentions and accordingly dismissed the Original Petitions.

¶104

Being aggrieved by the judgment dated 13^th February 2002, appellants - Bharath Petroleum Corporation Limited and Cochin Refineries Limited preferred Writ Appeal Nos.791/02, 811/02 and 1644/02 contending inter alia that verification or re-verification or stamping of a weight or measure is required under Section 24 of the Standards of Weights and Measures

¶105

W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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(Enforcement) Act, 1985 and Rule 14(1) of the Kerala Standards of Weights and Measures (Enforcement) Rules, 1992 only if such weight or measure is being, or is intended or likely to be, used in any transaction or for industrial production or for production. The storage tanks are neither weighing or measuring instruments, nor are intended or likely to be used in any transaction with any person, or for industrial production or for protection, and do not therefore require verification or re-verification or stamping under the Standards of Weights and Measures laws. Another contention raised by the appellants is that the filling up of tanker lorries at the appellants premises by drawing the product from the storage tank does not involve any transaction and no measuring or measuring instrument is involved in the activity. The quantity in the tanker lorries is measured by the dip rod and not by the storage tanks.

¶108

It is further contended that the flow meters are fixed at the loading points from where petroleum

¶109

W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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products are filled into the railway wagons for the purpose of regulating the flow of the products and for preventing over filling and spilling. Though a flow meter is capable of being used as a measuring instruments, in fact it is not being put to such use. Therefore, it is contended that unless an instrument which is capable of being used as a measuring instrument is really put for such use, the Act or the Rules will have no application. Considering the nature of the use for which the flow meters are installed and are actually used, it is submitted that they do not come within the purview of the 1985 Act and therefore, they are not required to be calibrated. Therefore, according to the appellants the insistence of the Department for calibrating the flow meters in question is illegal and without jurisdiction. It is further submitted that petroleum products are loaded into the Railway Wagons after duly calibrated by the Central Tank Wagon Calibration Committee. The quantity transferred is assessed utilising the calibration chart and dip rods. It

¶112

W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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is on that basis that records are maintained in the installation. Therefore, for no measuring purpose the flow meter are used. Section 24 of the 1985 Act has no application in the case of the appellants since the flow meters in question are not used as a measuring instrument in a transaction irrespective of the nature of the equipment.

¶115

While declining the reliefs sought for in the Original Petitions, writ court, at paragraph No.24 of the impugned judgment dated 13^th February, 2000 ordered that “since stay of further proceedings were in operation, and as the legal position was not conclusive, I am of the view that any penalty proceedings, fine, claim for additional fee etc., may not be enforced as against the petitioners. However, this benefit will be available only if the actual dues are paid by the petitioners promptly and latest by 31.3.2002.”

¶116

Being aggrieved by the above said direction contained at paragraph No.24 of the impugned judgment,

¶117

W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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State of Kerala, the Controller of Legal Metrology and Inspector of Legal Metrology] have preferred W.A.Nos.1891/02 and 1900/02 contending inter alia that since the legislative intend of the 1985 Act and the 1976 Act are for the protection of consumers and for the preservation of public interest, the Department is entitled to levy a fee for such statutory verification and on its violation/omission, is bound to impose fine or penalty, as the case may be. According to the Government, merely because a writ petition has been filed challenging the authority of the Department and an interim stay was granted, will not preclude the Department from levying and realising the statutory dues to the State. Hence, it is submitted that the observation of the learned Single Judge in para 24 of the impugned judgment is liable to be interfered by this Hon’ble court.

¶120

Heard learned counsel for the parties and perused the materials available on record.

¶121

W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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¶123

On 8.11.2022, when these matters came up for hearing, Mr.Paulose C. Abraham, learned counsel appearing for the Bharath Petroleum Corporation Limited sought for time to ascertain the present position.

¶124

On this day, when the matter came up for further hearing, learned counsel appearing on both sides submitted that the directions contained in the judgment of the writ court have already been implemented.

¶125

Mr.Paulose C. Abraham, learned counsel appearing for the Bharath Petroleum Corporation Limited submitted that a similar issue is pending consideration before the Hon’ble Supreme Court.

¶126

Learned counsel has placed reliance on two decisions of the Hon’ble Madras and Bombay High Court, rendered subsequent to the decision of this court.

¶127

On the totality of the facts and circumstances of the case, we are of the view that the judgment passed by this court has been in force for the last twenty years. It is admitted by both sides that the directions contained in

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W.A.Nos.791/02, 811/02, 1644/02, 1891/02 & 1900/02

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the judgment have also been complied with.

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Giving due consideration to the material on record and the grounds of challenge, we are also of the view that there is no infirmity or irregularity in the impugned judgment warranting interference of this court.

¶132

Considering the long lapse of time, we make it clear that we are not inclined to interfere with the directions contained in paragraph No.24 of the impugned judgment dated 13^th February, 2000.

¶133

In the result, all the writ appeals are dismissed.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/SHAJI P. CHALY JUDGE

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jes

Bharat Petroleum Corpn.Ltd v. State of Kerala

Case brief

What is this about?

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Bharat Petroleum Corpn.Ltd v. State of Kerala

Case brief

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