TMI Blog2021 (12) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of fact and questions of law with jurisdiction authority to confirm, reverse, modify the decision or remand the matter to the lower Forum for fresh decision in terms of its directions. An appeal is a creature of Statute and there is no inherent right of appeal. The High Court while taking up an issue on the objection raised on the jurisdiction to maintain the appeal, as contended by respondent, cannot proceed that jurisdiction is conferred by the appellant or that the jurisdiction could be inferred in the circumstances of the matter. But, the principle is jurisdiction should be available. The decisions relied on by the appellant in support of its case that the jurisdiction of this Court cannot be invited to challenge the order under appeal are distinguishable. No decision on the point of foreign-going vessels having precedential value has been brought to our notice - The questions formulated by the appellant or such other questions that may be formulated by this Court under Section 130(3) of the Act, hear the parties and dispose of the appeal. We have taken sufficient care to hear and not advert to any of the circumstances in issue on the main question between the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 was issued proposing to initiate action under Sections 111(b) and (f) of the Act read with Section 125 of the Act contemplating to levy duty, impose redemption penalty, etc under Sections 128(8) and (10) of the Act. The respondent resisted these steps initiated for alleged violation of any of the provisions of the Act by the appellant. For our present purpose it is sufficient to notice that the respondent claimed that C S Asean Explorer, which was subjected to a confiscation order, is a foreign-going vessel falling within the definition of Section 2(21), and Section 87 of the Act accords exception from payment of any duty under the Act, C S Asean Explorer since is a foreign-going vessel. In other words, Section 87 of the Act exempts payment of duty on the stores consumed by C S Asean Explorer during the period 2007-2012. Therefore, the respondent is not answerable to any duty leviable under the Act, no assessment is required for the purpose of determining the amount payable by the respondent, and consequently, levy of penalty, redemption fine, duty etc are not warranted in the peculiar circumstances of the case. 3.2 In the present order, we are, as noted above, considering w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I order that the Bank Guarantee of ₹ 46.26 crores submitted by M/s ASEAN Cable Ship Pte Ltd. shall be invoked and adjusted against the duty, interest, fine and penalty payable. 3.3 The respondent aggrieved by the order dated 04.04.2013 filed appeal before the CESTAT, South Zonal Bench, Bangalore in Customs Appeal No.27102 of 2013. The CESTAT through the order impugned in the appeal, allowed and remanded the appeal for determining the extent of applicable duty on the ship s stores consumed by the appellant during the period the vessel was engaged in operations in Indian territorial waters and for the normal period. The Final Order of CESTAT dated 18.02.2020, in effect, accepted the case of respondent that C S Asean Explorer is a foreign-going vessel and Section 87 is attracted to stores consumption on Board. Hence, the appeal. 4. Mr Rohan Shah, putting forward the preliminary objections on the maintainability of instant appeal in this Court, firstly, contends that the order under appeal of the CESTAT is not an eligible order under Section 130 of the Act, therefore, the appellant has chosen the wrong appellate forum. The Act provides, to an aggrieved party against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notification, but the substance of the issue for decision is whether, in the facts and circumstances of the case, the status claimed by the respondent for C S Asean Explorer as a foreign-going vessel is sustainable or not? Elaborating his argument, he contends that the order under appeal, among other things, has not determined any question having relation to the rate of duty of customs or to the value of goods for purposes of assessment. The respondent could, in the circumstances, establish that C S Asean Explorer is a foreign-going vessel there is no occasion for determination of the rate of duty of customs, the value of goods, for purposes of assessment. It is emphatically argued that the appellant is aggrieved by the acceptance of the status of C S Asean Explorer as a foreign-going vessel and, consequent thereto, extending statutory exemption under Section 87 of the Act. Therefore, what constitutes subject matter of appeal is the status or standing of C S Asean Explorer. By a combined reading of Section 2(2) read with Sections 130 and 87 of the Act, the core question for determination in this appeal is the standing or status of C S Aesan Explorer vis-a-vis whether it is a fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the vessel. Even assuming for the sake of argument that the vessel was in fact idling in the Indian waters, I now proceed to examine the provisions of law in this regard. As already discussed in the preceding paragraphs, the definition at section 2 (21) of the Customs Act 1962 does not make provisions for a foreign-going vessel to idle in the Indian waters. This fact finds abundant clarification in the circular No.16/2012 dated 13.06.2012 which was relied upon by ACPL as well. The circular provides that foreign-going vessels are the vessels that are registered abroad and its entry into the country is for carrying cargo or passengers, as a conveyance. Hence, there is no requirement for filing an I.G.M, Bill of Entry for foreign flag vessel which is being used as conveyance. **** 175. As contented by APCL, the essential points to be noted in the section 87 are that the stores needs to be imported stores; they should be consumed on board the vessel; and such consumption has to be on board a foreign going vessel for availing the benefit of consuming the soda stores without payment of duty. In the present case there is no dispute that what was consumed was imported store ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 130 to the High Court and under Section 130E to the Supreme Court. For convenience, Sections 130 and 130E are excerpted hereunder: 130 Appeal to High Court (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), if the High Court satisfied that the case involves a substantial question of law. (2) The Principal Commissioner of Customs or Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this subsection shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Principal Commissioner of Customs or Commissioner of Customs or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for fresh decision in terms of its directions. An appeal is a creature of Statute and there is no inherent right of appeal. The argument now advanced by Mr Rohan Shah is that the cognizance of the issue now canvased by the appellant is vested in the Supreme Court, but not this Court. 7.3 The jurisdictional facts are appreciated and determined by keeping in perspective the meaning assigned to the words assessment by Section 2(2); duty by Section 2(15); foreign-going vessel by Section 2(21); and stores by Section 2(38) of the Act read with eligible and ineligible orders appealed under Section 130 of the Act. And also, in other words, the preliminary objection on the maintainability of the appeal against the order impugned before this Court invites us to decide the jurisdictional facts of the case and whether these jurisdictional facts fall under the category of eligible order for an appeal to this Court or the appeal is maintainable before Supreme Court under Section 130E. Appreciation of defined words assessment , duty , foreign-going vessel or aircraft , and stores covered by Section 2 sub-sections (2), (15), (21) and (38) together with Section 130 of the Act is k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igible and ineligible order under Section 130 of the Act. It is commended to this Court, with persuasion, to determine the controversy of jurisdiction vis-a-vis Section130 of the Act, by specifically employing the meaning assigned to applicable words in respective definitions. 8. A legal definition is for the most part inductive generalization derived from judicial experience and in order to be complete and adequate, they must sum up the results of all that experience as they are to be found in the special cases that belong to the class to be defined. A definition may be both inclusive and exclusive, i.e., it may include certain things and exclude others. The Legislature uses the word means or/and the word includes in the Statute particularly while defining words. The use of the word means indicates that the definition is a hard and fast definition and no other meaning can be assigned to the expression than that it puts down in the definition. When a definition contains the word includes it is an extensive definition. The applicable definitions Section 2(2), (15), (21) and (38) are excerpted: Section 2(2) assessment means determination of the dutiability of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the words both means and includes as excerpted above. The objection is that Section 130 of the Act has employed the defined words such as duty , goods , value , and assessment . Therefore, while interpreting Section 130 of the Act, the defined meaning of the Act is kept in mind inasmuch as the issue in question for decision in the appeal is an issue pertaining to levy of duty. The said argument, for consideration of applicable definition while applying Section 130, begs the question. We notice that the order of the CESTAT deals with the issue by prefacing its discussion with the question viz Whether or not the ship s stores, in the present case, are or are not liable to customs duty under Section 87 of the Customs Act? (emphasis supplied) 8.2 Section 87 is part of Chapter XI. Chapter XI deals with special provisions regarding baggage, goods, imported or exported by post and stores. Section 87 reads thus: 87. Imported stores may be consumed on board a foreign-going vessel or aircraft Any imported stores on board a vessel or aircraft (other than stores to which section 90 applies) may, without payment of duty be consumed thereon as stores during the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olve such question: 9.1 The Parliament in its wisdom has provided for a further remedy by way of appeal in respect of a few sets of orders of the Tribunal to the High Court. And another set of national importance to the remedy of appeal to the Supreme Court under Section 130E of the Act. Whether the order under appeal is an eligible order or not can be decided by the Golden Rule of interpretation of Section 130 of the Act. So interpreted, Section 130 reads: An appeal shall lie to the High Court from every order passed in appeal by the appellate Tribunal if the High Court is satisfied that the case involves a substantial question of law. The converse of it is: An appeal shall lie to the High Court from every order passed in appeal by the appellate Tribunal not being an order relating to, among other things, to the determination of any question having a relation to (i) the rate of duty of customs, (ii) the value of goods for the purposes of assessment. Therefore, what is excepted from being an eligible order of appeal to the High Court is the appeal dealing with the rate of duty of customs and the value of goods for purposes of assessment. To wit, the meaning as assigned by resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 130 of the Customs Act 9.2 Firstly, as noted above, the jurisdictional fact for consideration by the High Court, in the case on hand, is whether C S Asean Explorer is a foreign-going vessel or not, and secondly, what is accepted from the scope of eligible order namely the duty of customs, the value of goods cannot and could not be the scope of subject appeal. In other words, in final analysis and consideration, the consumption of stores could become dutiable if it is held that C S Asean Explorer is not a foreign-going vessel. The other side of the above consideration is that the consumption of stores on C S Asean Explorer is not dutiable if it is held that C S Asean Explorer is a foreign-going vessel. Therefore, the foremost and only aspect for decision is not on dutiable or non-dutiable or what is the value of consumables etc, but whether the vessel is a foreign-going vessel or not? In the manner now suggested by the respondent, the provision conferring jurisdiction on this Court is interpreted, then, this Court would be adding words to the excepted categories for maintaining appeal; the excepted portion would appear thus: Not being an order relating, among other thin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
