TMI Blog1986 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... essel was to carry bulk cargo of wheat from ports in U.S. Gulf at the charterer's option and the said charter party agreement also provides inter alia that the cargo is to be delivered at one or two safe ports or anchorages (in the) East Coast of India through its lightening vessel or one or two safe ports anchorages (in the) West Coast of India through its lightening vessel or entire delivery at Calcutta through its lightening vessel at charterer's option declarable on completion of the loading of mother vessel. 4. The charterer opted for delivery of the entire cargo at the port of Calcutta which necessarily required engagement of lightening vessel to carry the cargo from Saugor Roads to the Calcutta Port. In contemplation of engagement of the lightening vessels, the petitioner as the local agent of the said mother vessel by a letter dated December 21, 1981 wrote to the respondent No. 2 and/or the respondents for permission to discharge the cargo of wheat in bulk through daughter vessels, namely, M.V. "JALAPANKI", M.V. "JALARAJAN" and M.V. "SWEDE SURPRISE". Such permission was granted to the petitioner. 5. The mother vessel arrived at Saugor Roads on or about January 27, 1982 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period such vessel or aircraft is a foreign going vessel or aircraft. The carriage of the goods by the said daughter vessels were merely a continuation of what the mother vessel was required to do and, as such, the said daughter vessels were foreign going vessels within the meaning of the Customs Act during the period for which the said cargo were carried by the said daughter vessels from the mother vessel to the port of Calcutta. 11. The respondents in the aforesaid circumstances are not entitled to levy any duty on the stores said to have been consumed by the said daughter vessels in course of carriage of the said cargo from the mother vessel. However, the Customs authorities having insisted for payment of such duty, the petitioner moved this Court under Article 226 of the Constitution for the issue of a writ in the nature of mandamus calling upon the respondents to cancel and/or rescind and/or withdraw the purported demands contained in the letters of the Customs authorities dated February 17, 1986, April 18, 1986 and April 24, 1986 being Annexures "C", "E" and "F" to the writ petition and for certain other reliefs. 12. The respondents in their affidavit in opposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside India, whether touching any intermediate port or airport in India or not." 16. It is, therefore, clear that in view of Section 87 of the Customs Act "imported stores on board a vessel or aircraft may, without payment of duty, be consumed thereon as stores during the period such vessel or aircraft is a foreign going vessel or aircraft." 17. The question, which, therefore, arises for consideration is whether the imported stores on board the daughter vessels could be consumed without payment of duty and answer to this question rests on the answer to another question, namely, whether such daughter vessels carrying cargo to a port from the mother vessel, which undoubtedly is a 'foreign going vessel, are also "foreign going vessels" within the definition of "foreign going vessel" as given in Section 2(21) of the Customs Act, 1962. 18. According to the respondents, the daughter vessels engaged in the instant case for discharging the cargo to the port of Calcutta from the mother vessel berthed at Saugor Roads, could not be termed as "foreign going vessels" since, they did not carry the cargo between any port or airport in India and any port or airport outside India. In fact, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcraft. Therefore, where, on account of their size, weight, etc., supertankers bringing goods from foreign ports remained berthed away from Indian ports but within the territorial waters and the cargo was brought to the ports by smaller vessels, the latter would also fall within the definition of "foreign going vessel" and that, therefore, stores consumed by them during the period they were so engaged, were not dutiable under Section 87 of the Customs Act. 22. The facts of the instant case are exactly identical with the case referred to above and the decision made therein also covers fully the question which is directly involved in the instant case. 23. Mr. Mitra, the learned Advocate representing the respondents, submitted that the Bench decision of this Court in Turner Morrison's case 1976 CHN 538 (supra) was under appeal before the Supreme Court but could not give any further particulars. On instructions Mr. Mitra submitted that a special leave petition was filed before the Supreme Court but its results were not known. It may be recalled that the Bench decision of this Court in Turner Morrison's case (supra) is of May, 1976. More than 10 years having elapsed since then, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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