Per R.K Batta, J.:— In this petition, the petitioners basically challenge letter dated 22nd January, 1997, of the Assistant Commissioner of Customs, under which the petitioners were permitted to remove the wreck of the transhipper vessel “M.V SANJEEVANI”, on filing a fresh Bill of Entry and payment of duty on the total wreck of the vessel. Besides seeking to quash the said letter dated 22nd January, 1997, the petitioners have sought some other reliefs connected therewith.

2. The short point which is required to be decided in this petition is whether the petitioners are liable to file Bill of Entry and pay customs duty in respect of removal of the wreck of the said transhipper. A brief background of the matter is required to be enumerated in order to appreciate the controversy involved. The said transhipper was acquired in the year 1971, by V.M Salgaocar and Brothers Ltd. It was an ocean-going vessel. After the arrival of the said transhipper vessel, the Mormugao customs raised a demand for filing of Bill of Entry in respect of the same, for home consumption, on the ground that the said transhipper vessel was “goods”, in terms of section 2(22) of the Customs Act, 1962 (hereinafter referred to as “the Act” for short) and was required to be cleared for home consumption under section 46 of the said Act. This action of the customs authorities was challenged by V.M Salgaokar & Brothers Ltd., by filing a Writ Petition (Special Civil Application No. 2/72) and the then Judicial Commissioner of Goa, Daman and Diu, held that transhippers are ocean-going vessels and exempted from payment of customs duty and no Bill of Entry is required to be filed in respect of the transhippers. Respondent No. 1 had preferred Special Leave Petition before the Apex Court. In the meantime, the same controversy was decided by the Apex Court in (Chowgule & Co. Pvt. Ltd. v. Union of India)1, 1987 (2) Bom. C.R 691 : 1987 (28) E.L.T 39 S.C, wherein it was held that transhippers are “goods” for the purposes of the said Act and it was necessary to file Bill of Entry for clearance for home consumption under section 46 of the said Act.

3. V.M Salgaocar & Brothers Ltd. then presented a Bill of Entry in respect of the said transhipper vessel “M.V SANJEEVANI” vide letter dated 15th April, 1987. The said Bill of Entry is annexed to the affidavit in rejoinder, wherein exemption under notification dated 19th March, 1987, was claimed and the said transhipper was cleared for home consumption under the notification without payment of customs duty on 9th January, 1989.

4. According to the petitioners, sometime in July, 1993, the said transhipper was grounded in its anchorage, but was refloated successfully on 17th May, 1994. On 5th June, 1964, cyclonic storm hit the coast of Goa. Another transhipper, “M.V PRIYAMVADA”, belonging to V.S Dempo and Co. was anchored in the vicinity of the said transhipper. According to the petitioners due to acts of negligence and/or default on the part of the transhipper “M.V PRIYAMVADA”, the said transhipper collided with “M.S SAJEEVANI” and due to repeated impacts dragging and drifting, the said transhipper “M.V SANJEEVANI” suffered serious structural damage. The transhipper finally grounded in shallow waters of the depth of 2 to 3 mts. and later, due to weather conditions and high seasonal waves, the said transhipper completely settled down in a shallow stretch when part of it got embedded in the ground and it became a complete wreck. According to the petitioners, the vessel on account of becoming wreck, became an asset of negative value since the removal of the wreck would cost Rs. 2.59 crores and the wreck would generate about 3212 metric tonnes of scrap which would fetch purchase price of Rs. 1.75 corers.

5. In the meantime, Mormugao Port Trust (“MPT” for short) called upon V.M Salgaokar and Brothers Ltd. to remove the wreck of the said transhipper vessel within a month, on the ground that it poses navigational hazard. V.M Salgaokar and Brothers Ltd. challenged the direction of the MPT in Writ Petition No. 436/94. In the said petition, V.M Salgaokar & Brothers Ltd. filed an undertaking that they would take steps to remove the wreck of the said transhipper vessel and complete the operations by 30th April, 1997. This undertaking of V.M Salgaokar & Brothers Ltd. was accepted by the Court. In the meantime, the said transhipper vessel “M.V SANJEEVANI” was transferred in favour of the petitioners by virtue of order dated 14th March, 1990 passed by this Court in Company Petition No. 1/83. The wreck of the said transhipper was also transferred in favour of the petitioners likewise.

6. In view of the directions of the Mormugao Port Trust to remove the wreck, the petitioners by letter dated 5th October, 1996, applied to respondent No. 3 for permission to remove the wreck of the said transhipper vessel under customs supervision. By letter dated 22nd January, 1997, respondent No. 3 informed the petitioners that the wreck of the said transhipper could be permitted to be removed provided a fresh Bill of Entry is filed and duty is paid. It is this letter which is the subject-matter of challenge in this petition.

7. We have heard learned Senior Counsel appearing for the petitioners and learned Additional Central Government Standing Counsel appearing on behalf of the respondents, at length.

8. Learned Senior Counsel for the petitioners has taken us through the relevant provisions of the Act, relevant customs tariff entries as well as definitions of “wreck”, found in various dictionaries as also the definition of “ship breaking”. The main contention which has been advanced by learned Senior Counsel before us is that Clause (b) of notification dated 19th March, 1987, (Annexure P. 1 at page 32 of the petition) is not at all attracted in the facts and circumstances of the matter under consideration. According to him, in order that the matter is brought within the ambit of Clause (b) of the said notification, it is essential that the intention should be to “break” the vessel when the vessel is sea-worthy and navigable. It is further pointed out that the petitioners never intended to break the vessel as the same had already turned into a wreck and that it is by way of compulsion that they are required to break the same which is not a voluntary act on the part of the petitioners. In addition, it is argued that Clause (b) of said notification postulates a vessel or a floating structure which is essential for its application. It is also pointed out by learned Senior Counsel that there is a vital distinction between a vessel and the wreck and it is in this connection that he has drawn our attention to various definitions of “wreck”, including from the dictionary of Nautical Terms by W.C Layton, Law Lexicon by Ramnath Ayyar and Maritime Dictionary by Rene de Kerchove, 2nd Edn. (Van Nostrand).

9. It was also submitted that the relevant provisions of the Act are to be understood in the background of organized activity of ship-breaking as also commercial viability of such activity due to which the customs duty is imposed even on the wreck when it is profitable. The alternative submission placed before us is that the customs duty can be demanded only when the wreck is brought to the shore and unless the party applies for clearance Bill of Entry need not be filed. However, in the light of the clear provision in Clause (b) of the said notification, this submission was not pressed any further and was withdrawn. According to the learned Senior Counsel, the petitioners in the circumstances, are not liable to pay any customs duty and the impugned letter dated 22nd January, 1997, is required to be quashed.

10. Learned Additional Central Government Standing Counsel, took us through the stand of the petitioners before the Customs Authorities and in this connection drew our attention to a number of letters written by the petitioners to the Customs Authorities. He pointed out that throughout the case of the petitioners is that they are liable to pay customs duty, but it is only after the direction was given by the Customs Authorities to file the Bill of Entry, that the petitioners have completely turned about and taken a contrary stand in the petition, that the petitioners are not at all liable to pay customs duty. He took us through the judgment of the Division Bench of this Court in (Khanbhai Essofbhai v. Union of India)2, 1989 (42) E.L.T 239 (Bom.). He also pointed out that after placing reliance on this authority the petitioners had, in fact, admitted their liability to pay customs duty on the wreck before the Customs authorities. He placed reliance on paragraphs 6 and 8 of the judgment of the Division Bench. He contended that breaking, which is contemplated under Clause (b) of the said Notification, need not be a voluntary act, but it may also be due to reason or circumstances beyond control of the person resulting in the breaking up activity.

11. According to the learned Addl. Central Government Standing Counsel, the provisions of Clause (b) of the said notification has to be given meaning in the light of the purpose which is sought to be achieved and that any subsequent breaking activity involving the vessel, is covered thereunder and the petitioners are, therefore, liable to file fresh Bill of Entry and also pay customs duty in accordance with law.

12. Learned Senior Counsel for the petitioners urged that the ruling and the observations made by the Division Bench of this Court in Khanbhai Essofbhai v. Union of India (supra), are not attracted in the facts and circumstances of the case, since in that case the vessel has not been imported but the vessel in question which was an ocean-going vessel had touched Mumbai Harbour and it was when the said vessel was being loaded that the vessel sank. The owner of the vessel did not salvage the vessel and the tenderer who had undertaken the job of salvaging the vessel/wreck was asked to pay customs duty and it is in these circumstances that the Division Bench of this Court, after placing reliance on section 21 of the Customs Act, held that the salvage/wreck had to be treated as imported, as a result of which customs duty was required to be paid. It was urged by him that in the case under consideration, the vessel in question had, in fact, been cleared without payment of any duty under the Exemption Notification dated 19th March, 1987, and the provisions of Clause (b) of the notification are not attracted for reasons already advanced by him.

13. Section 12 of the Act is a charging section and provides for levy of customs duties at such rates prescribed under the Customs Traiffic Act, 1975. Section 25 of the Act deals with power of exemption from duty on goods either wholly or partly or either absolutely or subject to such conditions as may be specified in that behalf. Admittedly, the transhipper in question was exempted under heading 89.05.10 without payment of any customs duty in terms of notification dated 19th March, 1987. The transhipper was ultimately partly embedded and grounded in the sea and the remaining part kept on floating. The relevant notification on the basis of which the customs authorities had asked the petitioners to file fresh Bill of Entry is as under:—

“NOTIFICATION

NO. 133/87 - CUSTOMS

In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 262/58 Customs, dated the 11th October, 1958, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling under sub-heading Nos. 8901.10, 8901.20, 8901.30, 8901.90, 8902.00, 8904.00, 8905.10, 8905.90 and 8906.00 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) when imported into India, from:—

(1) the whole of the duty of customs leviable thereon, which is specified in the said First Schedule; and

(2) the whole of the additional duty leviable thereon under section 3 of the said Customs Tariff Act.

subject to the conditions that:—

(a) the exemption under this notification shall not be available to such goods (that is to say, vessels and other floating structures) as are imported for the purposes of breaking up; and

(b) any such goods (that is to say vessels and other floating structures) if subsequently are intended to be broken, the importer shall present a fresh bill of entry to the Collector of Customs, and thereupon such goods shall be chargeable with the duty which would be payable on such goods as if such goods were entered for home consumption under section 46 of the Customs Act, 1962 (52 of 1962) on the date of the presentation of such fresh Bill of Entry to the Collector of Customs for the purpose of break-up of such goods.

Sd/- (C.P SRIVASTAVA)

Under Secretary to the Government of India.

F.No 346/34/87-TRU”

14. We are particularly concerned with Clause (b) since, admittedly, it is not the case of the Customs Authorities that the vessel in question was imported for the purpose of breaking up. The main submission advanced by learned Senior Counsel is that Clause (b) of this notification is not attracted, since the petitioners did not voluntarily decide to break but they have been forced or compelled to break the wreck on account of navigational hazards, at the directions of the M.P.T The petitioners had, in fact, challenged the directions of the M.P.T by filing a petition. In this petition, the petitioners had voluntarily without any force from any quarter and on their own, given an undertaking that they shall break and remove the entire wreck of the vessel by April 30, 1997. Thus, it cannot be said that the action of the petitioners is not voluntary, but, on the contrary, they had voluntarily undertaken to break the vessel which was partly embedded and partly floating. Clause (b) within its ambit, covers such goods including vessels and other floating structures. We do not find any merit in the submission of learned Senior Counsel that the intention to break the ship in order to attract Clause (b) of the notification has to be at the point when the vessel is navigable or see worthy. In our view, Clause (b) would be attracted in all contingencies including the voluntary act of breaking, or by reason of circumstances, beyond the control of the party undertaking such activity. Even when the vessel may be classified as “wreck” on account of its non-navigability, or seaworthiness, the vessel/floating structure would not lose its basic character for the purposes of Clause (b) of the notification. At any rate, the transhipper in question, after it was partly embedded in the ground which fact is admitted in para 14 of the petition, has to be classified as floating structure within the meaning of Clause (b) of the notification. It is no doubt true that the wreck is defined as a vessel so damaged as to be un-seaworthy and incapable of being navigable, but simply because of the vessel being un-seaworthy or incapable of being navigable, it would not loose its basic characteristic of being a vessel within the meaning of Clause (b) of the notification. The word “wreck” is normally used to describe disablement of a ship. It means a ship that has suffered a wreck. In other words, the vessels which are unfit for sea or obsolete are called wreck. Once it is clear that the damaged vessel incapable of being navigated or unseaworthy vessel does not cease to be a vessel by whatever name it is called, then it is well-within the sweep of Clause (b) of the Notification dated 19th March, 1997.

15. The common thread which runs through in all the definitions is that it continues to be a vessel covered by definition of “goods” defined under sub-section (22) of section 2 of the Customs Act. As such, in our opinion, the petitioners are bound to comply with the provisions of Clause (b) of the Notification dated 19th March, 1987 and it was obligatory on their part to present fresh Bill of Entry to the Collector to initiate assessment proceedings.

16. Learned Advocate for the petitioners urged before us that it is only the first act of breaking which will attract Clause (b) and in the case under consideration, according to him, the first act of breaking was on account of natural calamity and any subsequent act of breaking would not be covered within the ambit of Clause (b) of the Act. The submission is to be rejected outright, as there is no merit in the submission and no such distinction as sought, can be made. The importer of a vessel when he intends to break the vessel, has to present a fresh Bill of Entry to the Collector and with the presentation of Bill of Entry, the goods described therein are subjected to customs duty, subject to assessment proceedings in accordance with the Act. In this case, it was obligatory on the part of the petitioners to file fresh Bill of Entry on the day when the petitioners intended to break the vessel or, at any rate, on the day when an undertaking was furnished before this Court in Writ Petition No. 436/94. However, the assessing authority under the Act shall be free to consider this aspect on its own merits in accordance with law in assessment proceedings.

17. Though the stand taken by the petitioners before the Customs Authorities cannot be strictly speaking taken against them, yet it does show the conduct of the petitioners who had in various letters and particularly in letters dated 5th October, 1996, 18th November, 1996 and 17th January, 1997, written to the Customs Authorities themselves stated that the vessel in question is a moveable, valuable national asset and that though the vessel is a wreck yet the wreck is liable to pay duty in terms of the judgment of this Court in Khanbhai Essofbhai v. Union of India, (supra) and also because interest of revenue cannot be overlooked.

18. Insofar as the argument relating to commercial viability of breaking is concerned, in the circumstances, the provisions of Clause (b) of the Notification cannot be interpreted taking into consideration such viability. The provisions of Clause (b) would be attracted in a case where the vessel was imported and exempted from payment of customs duty at the time of import, but if subsequently the vessel is broken or intended to be broken, the liability of the party carrying out the breaking arises and the party concerned is not only required to file Bill of Entry but to pay such custom duty in accordance with law. The vessel had been partly embedded in ground and it is the primary liability of the petitioners to remove the same on account of navigational hazards, which necessarily involves breaking, for which the petitioners are liable to pay customs duty in accordance with law in terms of Clause (b) of the said Notification.

19. Learned Senior Counsel for the petitioners had also urged before us that the duty, if any which the petitioners are liable to pay, shall be on the actual removal of the wreck which comes on the shore. The petitioners have given undertaking to the Court to remove the wreck. We do not think it necessary to deal with this aspect, any further since it will be within the jurisdiction of the authority concerned, to deal with such contention, if raised, in terms of Clause (b) of the Notification after the Bill of Entry is filed.

20. For the aforesaid reasons, we do not find any merit in this petition. The petition is hereby dismissed with costs. The interim relief granted shall stand automatically vacated. The petitioner is directed to present a fresh Bill of Entry within one month from today. However, we make it clear that there was no stay for presentation of fresh Bill of Entry to the Collector as envisaged in the Notification. At this stage, learned Senior Counsel for the petitioners states that an important question of public importance, trade and commerce as to the interpretation of the Notification in question arises and leave to appeal to the Apex Court be granted. We do not find that there is any case to grant leave. Hence the request is rejected.

21. At this stage, learned Senior Counsel prays for stay of the operation of the judgment to enable the petitioners to move the Apex Court. We do not find that there is any reason to grant stay of the operation of the judgment. Hence request is rejected.

22. Petition dismissed.