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2019 (4) TMI 1922 - MADRAS HIGH COURTRefund of Customs Duty - duty paid under protest - levy of wharfage charges on the chartered cable vessel, belonging to petitioner - HELD THAT:- This Court is of the view that once the Port Trust has declared the vessel itself as a cargo, in view of its activity of laying under sea cable, it is well within the power of the Port Trust authorities to levy wharfage against the vessel itself. When the vessel itself is involved in the type of activity as admitted by the petitioner themselves, which carry the fiber-optic cable and other submerged equipment to be laid on the sea bed, there is no escape from the demand of wharfage against the activity of the vessel belonging to the petitioner at the time when it was berthed in the second respondent Port. Admittedly, the vessel itself was manifested as cargo and this Court does not find the description of the vessel as cargo is invalid or not warranted for the simple reason that from the description of the activity of the vessel itself, there cannot be two opinions about the vessel being manifested as cargo by the Port authority. Once the vessel was manifested as cargo, the consequence of that was to levy wharfage as per the rates applicable for such import of cargo. In these circumstances, the Port authorities had calculated the wharfage under Chennai Port Trust Scale of Rates issued vide Gazatte No. 251, dated 27-8-2014. The rate was calculated under Item No. 36(A) “Items not otherwise specified - other than bulk” of the schedule of wharfage under Scale 1 of Chapter-III of the scale of rates. The contention of the petitioner is not about the rate of scale applied towards them. But, the very levy of wharfage itself is being questioned in the writ petition. Therefore, once this Court holds the view that the vessel was rightly manifested as cargo, in view of its admitted activity of laying under sea cable by way of importing its services for their client in India, the charge towards wharfage as demanded by the Port Trust authorities, cannot be the subject-matter of controversy or dispute at the hands of the petitioner. In any event, the rates as applied is not the subject-matter of contention on behalf of the petitioner. This Court is of the considered view that the manifesting of the vessel as cargo did not suffer from any infirmity with reference to the activity of the vessel which was berthed in the second respondent Port vis-a-vis the definition of wharfage and other provisions of Major Port Trust Act. The petitioner is unable to point out any apparent error in the order passed by the second respondent Port Trust towards manifesting the vessel as cargo except stating that wharfage can be levied only on cargo. Such contention cannot be accepted by this Court, in view of the activity of the vessel for which the vessel services were utilized by way of import by the local client in the Country. On the whole, this Court does not find anything wrong with the wharfage levied on the petitioner’s vessel and the demand as such made by the Port authority towards wharfage, does not suffer from any legal lapses or infirmity - Petition dismissed.
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