TaxTMI 
TaxTMI 
2019 (4) TMI 1922
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.... The petitioner is a company registered in United Kingdom and engaged in the business of submarine network products and services. The second respondent is the major port constituted under the Major Port Trusts Act, 1963 and the same is under the control of the first respondent and regulates all policy decisions relating to the Chennai Port. One of the functions performed by the second respondent is to collect the wharfage in respect of all cargo port 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 th....
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....services specified hereunder shall be performed by a Board or any other person authorised under Section 42 at or in relation to the port or port approaches; (a) transhipping of passengers or goods between vessels in the port or port approaches; (b) landing any shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock, berth, mooring, stage or erection, land or building in the possession or occupation of the Board or at any place within 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 ....
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....sions under Section 30 of the Customs Act needs to be complied with. 3.3 Indian flag vessel : In terms of the provisions of Part-V of the Merchant Shipping Act, 1958, vessels entering into India for the first time, are required to be registered with specified authority of the Mercantile Marine Department as Indian ship, which can then display the national character of the ship as Indian Flag Vessel for the purpose of Customs and other purposes specified in the said Act. Such Indian ship or vessel may be taken outside India or chartered for coastal trade in India, only after obtaining the requisite licence 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 foreig....
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....e Port Trust authorities have to refund the amount in view of the subsequent clarification which in effect that the original demand itself was unauthorised and untenable. Therefore, the present writ petition has been filed to quash the order passed by the Chennai Port Trust dated 6-2-2015, levying wharfage on the vessel belonging to the petitioner Company and for refund of the amount paid by the petitioner to the tune of Rs. 2,96,30,784/- along with interest at 18% per annum. 8. In the course of the arguments, the Learned Counsel for the petitioner would rely on a decision reported in (2008) 9 SCC 622. She would 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 provisio....
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....e, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law." 20. In Zile Singh v. State of Haryana and Ors. (2004 (8) SCC 1), it was observed as follows : "13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient 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....
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.... 2015 is only clarificatory and not substantive. Therefore, the very levy of wharfage originally on the vessel belonging to the petitioner was without the authority of law. She would therefore submit that the writ petitioner is entitled to succeed in view of the above submissions. 10. Per contra, Mr. P.M. Subramaniam, Learned Counsel appearing for the second respondent Port Trust would submit that as per the petitioner's own declaration in the import general manifest, the vessel itself was declared as the cargo and therefore, the Port Trust authorities have treated the vessel as a manifested cargo. Therefore, the Port authorities applied the 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 ....
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....n has already been given on 25 March 2015, it is felt appropriate to give effect to the proposed amendment with effect from 25 March 2015 (being the date when the clarification has been furnished to CHPT). " 13. According to the Learned Counsel appearing for the Port Trust that the insertion of new Note No. 10 was an amendment which came into effect only from 25-3-2015 and therefore, the petitioner cannot take advantage of the amendment which was brought in subsequent to the date of levy of wharfage. The Learned Counsel would emphasis the fact that it is not a clarificatory, though the expression used as clarification, but, it is in effect an amendment, since 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 conten....
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.... contention put forth on behalf of the petitioner is about the clarification which was issued by the Tariff Authority of Major Ports (TAMP) on 15-5-2015 and as per clarification which is extracted in Paragraph Nos. 4.1 and 4.2 which are extracted above, such vessels are not to be treated as cargo and no wharfage shall be levied, would enure to the advantage of the petitioner, since it was merely a clarificatory in regard to wharfage chapter as maintained by the second respondent Port Trust. Once the clarification is issued, it should be a part of the scale of rates and the relevant chapter issued under Gazette No. 251, dated 27-8-2014, this Court is unable to appreciate 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. A....