1983 (12) TMI 325 - HC - Customs

Summary

Issues:
1. Whether a transhipper engaged in up-topping operations constitutes a foreign-going vessel under the Customs Act.
2. Interpretation of the term "foreign-going vessel" under Section 2(21) of the Customs Act.
3. Comparison of judgments regarding the definition of a foreign-going vessel.

Detailed Analysis:
1. The case involved a dispute regarding the classification of a transhipper, the "Gosalia Prospect," as a foreign-going vessel under the Customs Act. The petitioners, as Receivers of the transhipper, sought clearance of imported spare parts without paying customs duty, claiming entitlement under Section 87 of the Customs Act. Customs authorities insisted on duty payment, arguing that the transhipper was only used for up-topping operations within the port, not qualifying as a foreign-going vessel.

2. The petitioners contended that the transhipper should be considered a foreign-going vessel based on its engagement in the carriage of mineral ore between the port of Marmagoa and a foreign port. The interpretation of "foreign-going vessel" under Section 2(21) of the Customs Act was crucial. The petitioners argued that being an intermediary in the process of carrying goods between Indian and foreign ports should suffice for classification as a foreign-going vessel.

3. Reference was made to a judgment by the Calcutta High Court involving the vessel "Nancy Dee," where a Division Bench concluded that multiple vessels could be involved in the carriage of goods between Indian and foreign ports, leading to the classification of the Nancy Dee as a foreign-going vessel. However, the Bombay High Court disagreed with this interpretation. The court held that only a vessel actually carrying goods or passengers between Indian and foreign ports at a given time could be considered a foreign-going vessel, rejecting the notion of a plurality of vessels for such carriage.

4. Additionally, the judgment highlighted a single Judge's view aligning with the Bombay High Court's interpretation, emphasizing the impracticality of considering every assisting vessel in the transhipment process as a foreign-going vessel. Ultimately, the court dismissed the petition, ruling that a transhipper like the "Gosalia Prospect" was merely a floating quay for ore loading onto bulk carriers and did not qualify as a vessel engaged in the carriage of goods between ports. The petition was dismissed with costs, and the rule was discharged.