TMI Blog2019 (4) TMI 1922X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in accordance with the provisions contained in Major Port Trusts Act in conjunction with Chennai Port Trust Scale of Rates Gazette No. 251, dated 27-8-2014 (Scale of rates) issued by the Tariff Authority for Major Ports ( hereinafter referred to as TAMP). (ii) The vessel belonging to the petitioner Company arrived at the Chennai Port on 27-1-2015, carrying fiber-optic cable and other submerged equipment to be laid on the sea bed. The cable system to be laid on the sea bed within the Indian Territorial Waters was imported to India by Reliance Jio Infocomm Limited, in accordance with the provisions of the Customs Act, 1962, the Customs Tariff Act, 1975 and Rules and Regulations framed thereunder. (iii) The grievance of the petitioner Company is that the second respondent Port authorities had declared their vessel itself as manifested cargo and levied wharfage charges during the period of its berth in the Chennai Port from the date it arrived on 27-1-2015 and left the Chennai Port on 17-2-2015. The Port authorities have calculated the cargo charges as ₹ 2,96,30,784/- Indian National Rupees (INR) on 17-2-2015, to obtain port clearance. According to the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the limits of the port or port approaches; (c) carnage or porterage of goods on any such place; (d) wharfage, storage or demurrage of goods on any such placel; (e) any other service in respect of vessels, passengers or goods. (2) Different scales and conditions may be framed for different classes of goods and vessels. 5. The Learned Counsel for the petitioner would submit that from the above it is very clear that the wharfage is leviable only on the goods and it can never be on the vessel itself. According to the Learned Counsel for the petitioner that the Port authorities had misread the situation only because of the fact that the petitioner had filled up the forms in import general manifest only for the purpose of complying with the provisions of the Customs Act as provided and such declaration alone cannot be the basis for declaring the vessel itself as manifested cargo and wharfage could be levied. She would also draw the attention of this Court that the importer is required to file a bill of entry under Section 46 of the Customs Act, 1962 and that such compliance is mandatory as per notification of the Customs in Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Director General of Shipping, under the provisions of Sections 406 and 407, respectively, of the said Merchant Shipping Act. Hence, in all such cases, the customs declarations such as IGM, bill of entry is required to be filed with jurisdictional customs authority. 3.4 Vessels for conversion into coastal run : Any vessel could be used for coastal run/trade after obtaining requisite clearance from Director General of Shipping and on fulfilment of certain specified conditions under Section 407 of the Merchant Shipping Act, 1958. In case of foreign going vessel, exemption from import duties, including CVD, have been extended vide Serial No. 462 of Notification No. 12/2012-Cus., dated 17-3-2012, subject to prescribed conditions, which binds the importer to file fresh bill of entry at the time of its conversion for coastal run/trade any payment of applicable duty on such conversion of vessel for coastal run/trade. Similarly, excise duty is also payable on vessels which are being used for coastal trade vide Serial No. 306 of Notification No. 12/2012-Cus., dated 17-3-2012. Hence, if any Indian Flag vessel which is used for time being as foreign going vessel is converted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld draw the attention of this Court to Paragraph Nos. 8, 19, 20 and 21 which are extracted hereunder :- 8. It would be of some relevance to take note of what this Court said in Virtual s case (supra). Pointing out one of the important tests at para 51 it was observed that even if the statute does contain a statement to the effect that the amendment is clarificatory or declaratory, that is not the end of the matter. The Court has to analyse the nature of the amendment to come to a conclusion whether it is in reality a clarificatory or declaratory provision. Therefore, the date from which the amendment is made operative does not conclusively decide the question. The Court has to examine the scheme of the statute prior to the amendment and subsequent to the amendment to determine whether amendment is clarificatory or substantive. 19. In Principles of Statutory Interpretation, 11th Edn. 2008, Justice G.P. Singh has stated the position regarding retrospective operation of statutes as follows : The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court : For modern purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only -- nova constitutio futuris formam imponere debet non praeteritis -- a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p. 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid, p. 440). 14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well-settled that if a statute is curative or merely declaratory of the previous law retrospectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scale of rates which are applicable to the petitioner and recovered the amount towards wharfage charges. According to the Learned Counsel, when the vessel is imported and manifested as cargo in the import general manifest, the same has to be treated as cargo and all the charges applicable for cargo is payable. 11. According to the Learned Counsel appearing for the Port Trust, the wharfage was collected under Item No. 36(A) Items not otherwise specified - other than bulk of the Schedule of wharfage under Scale 1 of Chapter-III of scale of rates. He would therefore submit that the impugned letter dated 6-2-2015 issued by the Port authority was in order and the same cannot be questioned successfully. According to the Learned Counsel, once the petitioner s vessel was passing through the port, the petitioner is liable to pay wharfage charges as per the scale of rates. The demand was made as per the rates applicable. Therefore, there is no legitimate cause for complaint by the petitioner. The Learned Counsel would also draw the attention of this Court to Section 2(z) of the Major Port Trusts Act, which reads as under :- 2(z). Vessel Includes anything made for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e there was an insertion of new note in wharfage of Chapter III - cargo related charges. Therefore, the insertion can have only prospective effect and therefore, the claim of the petitioner on the basis of the subsequent clarification is untenable and the decision relied on by the Learned Counsel for the petitioner cannot be applied to the factual matrix of the present case. 14. Heard the Learned Counsel for the petitioner as well as the Learned Counsel appearing for the respondents. 15. The entire contention raised on behalf of the petitioner is with reference to levy of wharfage on the vessel belonging to the petitioner. Since according to the petitioner, the vessel cannot be subjected to levy of wharfage unless there were any goods unloaded or transhipped in the second respondent Port. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciate the arguments on behalf of the petitioner for the simple reason that in the order dated 15-5-2015, it is clearly mentioned that there was an insertion of new note No. 10 after existing note No. 9 under scale-wharfage of Chapter III-cargo related charges. Once the new note has been introduced or inserted in the chapter and once it has been declared and the same came into effect prospectively from 25-3-2015, the petitioner cannot claim the benefit of such note in regard to the past wharfage levied by the Port Trust. Although the arguments advanced on behalf of the petitioner stating that the order dated 15-5-2015 is only clarificatory in nature, appears to be attractive and acceptable at the first blush, but, looking at the entire order little more critically and carefully, it could be seen that the authority by the said order has inserted a new note and hence, it cannot be coloured as merely a clarificatory order for the petitioner to take advantage of the same for seeking refund of the money already paid by them to the Port Trust under wharfage demand. 19. The contention on behalf of the petitioner that merely because that there was a requirement under the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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