TMI Blog1984 (12) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners imported a vessel in Mormugoa Port. The vessel was originally known as "The Tropical Grace". It was an oil tanker. The petitioners, however, got certain modifications made to the vessel with a view to use the vessel for an operation known as 'the topping up operation'. These modifications were made before the vessel was imported. A huge quantity of iron-ore is exported from Mormugoa Port. For that purpose the iron-ore is required to be loaded in the ships. The Mormugoa Port has a shallow draft and hence heavy and large ships cannot be loaded to its full capacity at the harbour. Some loading is made at the harbour and thereafter such partly loaded ships are taken a little bit away from the harbour where the draft is deep and the remaining loading process is completed there. In the beginning for this purpose small barges would carry iron-ore near such ships and thereafter the iron-ore would be loaded tothe full capacity of the ship. This latter process is known as 'the topping up operation'. The petitioners wanted to use the vessel "Maratha Transhipper" for this topping up operation. Thus, the Maratha Transhipper" would carry iron-ore up to the large vessels standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." On November 29, 1969 the petitioners wrote another letter, Ex. 2 (vide page 183 of the compilation) stating therein that "the Maratha Transhipper" has been registered as "Home Trade Vessel". The letter also states as to how the vessel will be used for topping up operation by carrying iron-ore in the vessel to the foreign going ships and then loading it in such ships. 5. The relevant part of section 46 of the Customs Act reads as follows : "The importer of any goods, other than goods intended for transit or transhipment shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form". The petitioners did not present or file a bill of entry when this ship was imported. Hence on February 6, 1970 the Assistant Collector of Customs wrote to the petitioners asking for the filing of such a bill of entry (vide Ex. K page 64 of the compilation). The petitioners wrote to the Assistant Collector of Customs on February 19, 1970 asking him the relevant provisions of law which require such filing of bill of entry. On February 21, 1970 the petitioners were informed that the vessel is in the nature of a sea-barge op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he filing of a bill of entry in respect of such ships can be dispensed with. It is in this way that the orders calling upon the petitioners to file the bill of entry have been quashed. 7. Shri Sethna for the appellants (respondents in the petition) made three grievances about the impugned order. He contended that the learned Single Judge should not have entertained the petition as the petitioners have not exhausted a statutory remedy by way of revision under the Customs Act. Though such a remedy is available and has not been sought for, still we think that it would not be appropriate at the stage of the appeal to dismiss the petition on this technical ground. The second contention of Shri Sethna is that the filing of the bill of entry does not involve any civil consequences and as such petitioners could have nojustifiable claim in the writ jurisdiction of this Court. Shri Sethna further contended that on merits the vessel in question would be 'goods' within the meaning of Section 46 of the Customs Act and that the learned Single Judge should have given specific finding in this respect so as to require the petitioners to file the bill of entry. The last contention of Shri Sethna i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce when the petitioners were called upon to furnish the bill of entry. This is more so when no civil consequence will follow from the mere filing of such a bill of entry. In this background we feel that the grievance of the petitioners about the said demand of filing of bill of entry does not deserve to be considered in the writ jurisdiction of this Court. 10. On merits also the petitioners have no case. Section 46 of the Customs Act requires an importer of the goods to submit a bill of entry. Section 2 of the Customs Act gives certain definitions. The relevant definitions are that of 'conveyance' and 'goods'. Those definitions read as follows : "2(9) : 'conveyance' includes a vessel, an aircraft and a vehicle. "2(22) : 'goods' includes - vessels, aircrafts and vehicles; (a) (b) * * * * (c) * * * * (d) * * * * (e) * * It is, thus, clear that vessel would be 'goods' under Section 2(22). It was contended by Shri Setalwad that a vessel cannot at one and the same time be a 'conveyance' under Section 2(9) and 'goods' under Section 2(22). He further c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 31 when the vessel itself was imported. He, therefore, urged that the vessel would not be goods within the meaning of these Sections. In our opinion the provisions of Chapter VI are meant for conveyance carrying imported goods. Obviously the conveyance viz., the vessel in which the imported goods are carried is not imported and hence this Chapter VI would not deal with the import of a vessel. The reliance on the various provisions of Chapter VI by Shri Setalwad is, therefore, of no use for the purpose of contending that a vessel which is imported as a vessel and not as a conveyance would not be 'goods'. 11. Chapter VII deals with the clearance of imported goods and export goods. Section 46 is in this Chapter and as mentioned above it provides for the submission of the bill of entry of imported goods. Shri Setalwad contended that certain provisions of this Chapter would be inappropriate if we treat an imported vessel i.e. the vessel other than 'conveyance as goods. For example, Section 46(1) states that the bill of entry shall be in the prescribed form. Form No. 22 has a number of columns. One of the column deals with the name of the vessel and the number of the packages ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Assistant Collector of Customs and the Appellate Collector has discussed the question as to whether the vessel in question is an ocean-going vessel. Shri Setalwad contended that the consideration of this point by the above-mentioned authorities would indicate that those authorities have construed the provisions of Section 46 to mean that they do not apply to the ocean-going vessels. Reliance is placed on the decision of the Supreme Court in the case of K.P. Varghese v. I.T. Officer, Ernakulam, reported in AIR 1981 S.C. 1922. In that case the Income Tax Department has issued certain circulars explaining certain provisions of the Act. The question arose as to whether those circulars can be of any help when the Court has to construe the provisions of the Act. This is what the Supreme Court held on page 1932 - "The rule of construction by reference to contemporanea expositio is a well-established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous." In our opinion, the wording of Section 46 is so clear that there is no scope for applying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is stated that the vessel was in the nature of a sea barge to be used within the Port Limits However, it cannot be forgotten that by letter dated October 23, 1969 (vide page 181 of the compilation) the petitioners themselves informed Customs Officials that the vessel would be operating within the Port Limits, as a sea barge. The grievance of Shri Setalwad is more with reference to the orders of the Assistant Collector of Customs and Appellate Collector of Customs. We have already observed that there is some discussion as to whether the vessel in question is an ocean-going vessel. Shri Setalwad contends that these authorities came to a conclusion about the need of filing the bill of entry on the basis of the alleged fact that the vessel is an ocean-going vessel. He further contends that if this hypothesis of the vessel being an ocean-going vessel is wrong, the impugned orders are liable to be set aside and that it would not be possible to accept the correctness of the orders on the basis of the interpretation of Section 46. He relied upon the decision of the Supreme Court in the case of Mohinder Singh v. Chief Election Commr., reported in AIR 1978 S.C. 851. The relevant head-note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that, therefore, the bill of entry was not necessary. Even if it is assumed that this contention is not correct the most that can be said is that the respondents did not insist upon the bill of entry from other vessels. In fact, it is a bounden duty of every importer to file a bill of entry. In case the Customs authorities have not asked the other vessels owners to file the bill of entry it would mean that they have acted in breach of the requirement of Section 46. Such inaction cannot be termed as discriminatory. At the most there can be a writ or order in an appropriate proceeding that the Customs Officials should insist upon the filing of bill of entry, and should enforce the provisions of Section 46 of the Customs Act. To say that inaction on the part of the Customs Officials to enforce the provisions of the enactment with respect to some persons is discriminatory would be a misnomer. It was faintly suggested that the petitioners should also be exempted from filing the bill of entry on the analogy of the other incidents where the importers of similar vessels have not filed the bill of entry. We are not able to accept this contention as the breach of the provisions of a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure and it would be appropriate if we do not enter upon a discussion on a point which is irrelevant at this stage. The finding recorded by the learned Single Judge in this regard is set at large, to be decided by the Customs authorities if and when the occasion arises. 17. Of course, before parting with this appeal we would like to state a few of the submissions that have been made before us on the question as to whether the petitioners' vessel is an ocean-going vessel. We would, however, make it clear that these observations are only for the purpose of placing on record the submissions made before us. Shri Setalwad contended that the term "ocean-going vessel" should be interpreted to mean "the vessel capable of going to the ocean". He argued that the vessel reached Mormugoa Fort on its own propulsion from a foreign country and that this would mean that the vessel is capable of going to the ocean. He also drew our attention to certain provisions of the Merchant Shipping Act, 1958, and more particularly Part V thereof. Section 20 provides that the said part applies only to sea-going ships fitted with mechanical means of propulsion. The other sections of this part deal with the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he territorial waters of India; (iii) any vessel or aircraft proceeding to a place outside India for any purpose whatsoever". The learned Single Judge has considered this definition and has also taken into account the Dictionary meaning, and then came to a conclusion that a vessel which is capable of travel on ocean would be an 'ocean-going' vessel. As against this, Shri Sethna urged that mere capability is not a criterion and that the intention of the importer at the time of the import would be decisive. It is for this reason that he drew our attention to the correspondence under which the petitioners have claimed permission from the Government. He further submitted that the petitioners would not have been granted permission if the petitioners would have asked for the permission that instead of using the vessel for topping up operations they would use it for sea-going for some other trade. Shri Setalwad relied upon the following observations in para 42 of the Supreme Court in the case of Dunlop India Ltd. v. Union of India, reported in AIR 1977 S.C. 597 = 1983 E.L.T. 1566 (S.C.). "The basis of the reason with regard to the end-use of the article is absolutely irrelevant in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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