JUDGMENT
1. The petitioner is an existing company under the Companies Act, 1956. The petitioner is the owner of and/or agents for several sea-going vessels including a vessel named M.V Jala Durga. The said vessel is employed by the petitioner for the purpose of carrying goods and cargo from various foreign ports. The vessel M.V Jala Durga arrived at the Calcutta Port on the 15th February, 1971 from the United States of America with 762 tons of general cargo and 220 tons of bulk oil. The vessel was entered inwards with the local customs as arrived from New York St. John Houston Tempika Mobile Boston, Philadelphia New Orleans, Bay Town, Bombay and Madras. The said vessel discharged the imported cargo on board on the 18th February, 1971 and immediately thereafter entered the dry docks for repairs prior to sailing abroad with foreign cargo. The vessel was detained in the dry docks from 19th February, 1971 to 20th March, 1971. Thereafter the vessel commenced loading of export cargo from 20th March, 1971 and such loading was completed on the 24th March, 1971. The said vessel loaded 1598 tons of ex. port cargo from Calcutta for foreign ports. The vessel hauled out from Calcutta on 22-00 hours on 24th March, 1971 and sailed for the United States of America as the final country of destination. The said vessel during the period she was in the dry docks underwent extensive repairs.
2. At all material times the said vessel was engaged in the carriage of goods between a port in India and a port or ports outside India. Indeed the said vessel was a “foreign going vessel” within the meaning of the provision of Section 2(21) of the Customs Act, 1962. The said vessel during its voyage from abroad to the Calcutta Port and during its stay in dry dock as well as when it sailed from Calcutta Port to the United States of America as stated hereinbefore was carrying cargo for foreign ports and also imported stores as defined under Section 2(38) of the Customs Act, 1962. Under the provision of Section 87 of the Customs Act, 1962, any imported stores on board a vessel may without payment of duty be consumed thereon as stores during the period such vessel is a “foreign going vessel”.
3. By the Regulation called the Imported Stores (Retention on Board) Regulations, 1963. Imported stores on board a vessel arriving from a foreign port may remain on board such a vessel without payment of import duty leviable thereon during the period such vessel is not a “foreign going vessel” provided that such stores are kept under Customs seal in the manner provided in the said Regulation. The said Regulations however, do not apply to imported stores on board a vessel during the period it remains or is a foreign going vessel.
4. Section 2(21) of the Customs Act, 1962 defines foreign going vessel or aircrafts as follows:
“Foreign going vessel or aircraft means any vessel or aircraft for the time being engaged in the carriage of goods or passengers between one port or airport in India and any port or airport outside India whether touching any intermediate port or airport in India or not and includes.
(i) any naval vessel of a foreign Government taking part in any naval exercises;
(ii) any vessel engaged in fishing or any other operations outside the territorial waters of India; and
(iii) any vessel or aircraft proceeding to a place outside India for any purpose whatsoever.”
5. Under Section 87 of the Customs Act, 1962 any imported stores on board a vessel or aircraft (other than stores to which Section 90 of the Act applies) may without payment of duty be consumed thereon as stores during the period such vessel or aircraft is a foreign going vessel or aircraft.
6. The vessel Jala Durga was always intended for carrying cargo from the port of Calcutta to foreign ports and was temporarily in the dry docks for repairs as stated hereinbefore. The mere fact that the goods on board the vessel were unloaded so as to enter the dry docks for repairs does not mean that the said vessel was not at that time engaged in the carriage of goods. The vessel was at all material times engaged in the carriage of goods between a port in India and another port abroad. The said vessel was at all material times “a foreign going vessel” and as such it was exempt from payment of any customs duty on imported stores consumed on board the vessel.
7. By a letter dated 24th March, 1971 the petition without knowing the correct. position in law offered to submit Bank Guarantee for duty on stores consumed during the time the vessel was in port.
8. The petitioner subsequently pointed out after being awake of the correct position in law that the consumable stores in the said vessel were not kept under customs seal as it was not necessary to do so for the vessel at all material times was a “foreign going vessel”.
9. By a letter dated 17th May, 1971 the respondent Assistant Collector of Cus toms wrote to the petitioners Solicitor and asserted inter alia that the said vessel was not a foreign going vessel within the meaning of Section 2(21) of the Customs Act, 1962 and as such no concession can be allowed under Section 87 of the Customs Act, 1962. He further asserted that the consumable stores on board the vessel were not kept under customs seal in terms of the Imported Stores (Retention on Board) Regulations, 1963. The Assistant Collector of Customs further asserted by reason of the premisers that the imported consumed stores were chargeable to duty under the Customs Act, 1962. By another letter dated 11th June, 1971, the respondent Assistant Collector of Customs asserted further that the duty on consumed Imported stores was rightly chargeable as the vessel was not a “foreign going vessel” during the period of its stay in the port after unloading thereof. By the said letter the petitioner was asked to submit the Bill of Entry along with an undertaking guarantee immediately for due assessment and realisation of stores duly. By a letter dated 8th July, 1971 written by the respondent Assistant Collector of Customs the petitioner was requested to submit the required Bill of Entry along with the undertaking for stores issued within 7 days from the date of the said letter. By another letter dated 20th July, 1971 written by the respondent Assistant Collector of Customs, the petitioner was finally requested to file the Bill of Entry and the required undertaking within a week and it was alleged that falling such compliance action would be taken as per the Rules.
10. Hence this application was made by the petitioner under the Constitutional Writ Jurisdiction for the issue of a writ in the nature of Mandamus for withdrawing the above-mentioned demands made in the above-mentioned letters dated 17th May, 1971, 11th June, 1971, 8th July, 1971 (wrongly mentioned as 12th July, 1971) and 20th of July, 1971 a writ in the nature of Mandamus for bidding and restraining the respondents from giving effect to the demand contained in the above-mentioned letters and also a writ in the nature of prohibition, prohibiting and restraining the respondents from giving effect to or making the demands contained in the above-mentioned letters.
11. The only question involved in the instant application is as to whether the vessel concerned M.V Jala Durga was a “foreign going vessel” within the meaning of Section 2(21) of the Customs Act, 1962. The learned Counsel appearing on behalf of the respondents submitted that the words “for the time being” pre-supposes that period on time is the material factor. It means or pre-supposes a vessel at the relevant time engaged in the carriage of goods or passenger between any pott or air port in India and any port or airport outside India. The concept of movement according to the learned Counsel is implicit in the definition. In the instant case while the vessel was in the dry docks “for the time being” the vessel was not engaged in the carriage of goods. After repairs it might again be engaged in the carriage of goods both before and after the period when it was in the dry dock.
12. Mr. Dipankar Gupta, appearing on behalf of the petitioner. Submitted that the vessel was a “foreign going vessel” even while it was being repaired in the dry docks because at that time it was making all reasonable and proper preparation for carrying the cargo to foreign ports’. The delay occurred in repairing could not make the vessel a non-foreign going vessel. It appears that the vessel was carrying cargo between Indian ports and foreign ports. In one such voyage while the vessel came to Calcutta from foreign port, the vessel had to undergo repairs in the dry docks. But that was necessary for reasonable and proper preparations for proceeding to foreign port with export cargo. Reasonable delay and intermissions in that operation could not take away in my opinion from the vessel the character of herbaria “foreign going vessel ports with export cargo could not prevent the vessel from being a foreign going vessel within the meaning of the provision of Section 2(21) of the Customs Act, 1962. Necessary repairs in the dry docks was one of such steps to enable the vessel to proceed to foreign port with export cargo. For what has been started hereinbefore it has to be held that the vessel M.V Jala Durga was a foreign going vessel” within the provision of Section 2(21) of the Castoms Act 1962 even while she had been undergoing repairs at the dry docks.
13. In the premises this application must succeed. The Rule is made absolute. Let writs in terms of prayers (a), (b) and (c) do issue for cancelling and/or quashing and/or for bidding the respondents to make the impugned demands as mentioned in the said prayers.