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TMI Blog1992 (6) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited to be the owner of the trawler in preference to the applicant company. (c) Whether the learned Appellate Tribunal s decision declining to hold the applicant company as owner of the trawler under their charter is contrary to the decision of the Hon ble Supreme Court in the case of M/s. British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries Ors., reported in 1990 (48) E.L.T. 481 (S.C.) = 1990 (1) Judgements Today at page 528. (d) Whether the learned Tribunal were justified in law to hold that the applicant company as charterer were not the owner of the trawler for the purpose of receiving back the trawler or getting its value on their succeeding in appeal before the Board. (e) Whether the determination of compensation for the loss of the catch of fish and shrimps etc. on board of the trawler at Rs. 5 lakhs was in keeping with the established law relating to the determination of compensation. (f) Whether the Appellate Tribunal were in law justified to ignore the evidence on record of the quantum of fish and shrimps etc., auction bids received by the Customs Department and also the Department s own estimation of the value thereof at Rs. 20 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f repeated calls on siren and loud hailers the fishing trawler did not pay any heed. Warning shots were, therefore, fired across her bow. The trawler was apprehended after a considerable chase at 13.40 hrs. of 11-9-1980 in position 220 -33" N and 87.36.5" S.E. approximately 21NM S/E of the wheelers inland. The ten documents handed over by the Commander of INS Sharabh were scrutinised by the Office of the Assistant Collector of Customs, Paradeep. The said trawler which is of Thai Nationality has a Licence No. P1-32/79, dated 18-1-1979 from the D.G., Fishing, Ministry of Shipping Transport, Government of India, Bombay, to engage in fishing and allied activities in Indian waters for a period of 365 days from 18-1-1979 to 17-1-1980. It is observed from the licence and other documents referred to in para-3 of show cause notice that the disponent owners of the trawler are M/s. Southern Marine Services Company Limited and that the trawler had been chartered by M/s. Golden Hind Shipping (India) Private Limited (the applicants herein) for fishing and allied activities in Indian waters. The above licence was extended upto 14-8-1980 vide Letter No. 1-LCS(18)/79, dated 24-1-1980 of D.G., Shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish catch. The bond backed by a Bank surety was to be filed on or before 9-10-1980 for such period that the adjudication may require to be completed. However, the required bank surety has not been furnished. Thereafter, on 9-10-1980, Shri B.K. Gupta, representative of the present applicants requested for early finalisation of the case. It was explained that immediate adjudication cannot be rushed through as necessary formalities were to be completed. The only alternative in this case would be that the charterer (the applicants would file a bond to the tune of Rs. 35 lakhs with Bank surety for the total value of the fish on board the trawler, i.e. Rs. 20 lakhs to pay any penalties and fines etc. imposed on adjudication by the Customs authorities. But the disponent owners or charterers failed to execute any bond backed by bank surety. 9. It was again proposed to auction the fish catch on 27-10-1980 to avoid deterioration of fish with due information to the respective Indian charterers and disponent owners. However, just before auction of the fish on 27-10-1980, the owners of the trawler moved the Hon ble High Court of Orissa and obtained a stay order restraining the Department from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted till the case is disposed of departmentally. As it was felt necessary to recheck with the Naval authorities at Vizag the facts of the case and the allegations made by the Commander of INS Sharabh, in his handing over report dated 12-9-1980, further investigation was ordered, which confirmed the averments of the Commander of INS Sharabh. The present applicants denied all the allegations made in the show cause notice dated 11-11-1980, in their reply. In the personal hearing on 22-12-1980, the disponent owners wanted separation of case relating to the trawler and Master from that of the proceedings against the Indian Charterer. However, separate proceedings were not taken up and the case was heard jointly. 15. The final hearing of the case was fixed for 16th January, 1981 at 12 hrs. But at the request of the owners this date was preponed to 7-1-1981. The parties were heard and during the adjudication proceedings the learned Collector held that no action under Section 114 of the Customs Act, 1962 is maintainable in this case, because the goods attempted to be exported are not dutiable goods under the Customs Act. Hence the learned Collector dropped the proceedings under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erating in Indian waters under a licence from the Ministry of Agriculture, Government of India, and though at the time of interception the licence had expired, it has been renewed subsequently with retrospective effect validating the trawling operations. The learned Board also held that the movement of the trawlers off the Indian coast where she was intercepted by the Indian Naval Ships, could not, therefore, constitute an attempt at export either for smuggling or for purposes of attracting the penal action under Section 113(a) of the Customs Act, 1962 and hence set aside the orders of confiscation of the trawler and the fish. 17. But the learned Board held that the question of restoring the fine collected for allowing the trawler to go from India with the catch of fish on board to the applicants so as to compensate them is, however, a different issue. The Board did not accept this contention of the applicants. But the Board held that the applicants were operating under the Charter with the Thai Charterers who had taken clearance of the trawler along with the catch of fish on the board and it should, therefore, be possible for them to arrange matters mutually with the Thai Charte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in detail in the abovesaid order which is annexed at Annexure A and came to the conclusion that the appellants are entitled for the value of the catch of fish, shrimps etc. and ordered the respondents to pay a sum of Rs. 5 lakhs towards the same. 21. As per Point No. II, the Tribunal held that the claim of the appellants for the value of the trawler in sum of Rs. 50 lakhs is not tenable and the same was disallowed. In so coming to the conclusion the Tribunal took into consideration the Charter Agreement entered into between the applicants and the Southern Marine Services Company Limited. The copy of the abovesaid Agreement is annexed at Annexure B of the Statement of Facts which may be read as part and parcel of the statement. 22. As per Point No. III the Tribunal held that the appellant is not entitled for this claim of Rs. 4 lakhs. 23. As per Point No. IV the Tribunal in the order, which is annexed at Annexure A, disallowed the claim of the appellants for damages and litigation charges. 24. As per Point No. V the Tribunal ordered the respondents to pay Rs. 5 lakhs to the appellants towards the value of the catch of fish, shrimps etc. The other claims of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arguments of both the sides and held that the market price of the fish in question is to be granted to the applicants. It was also held by the Tribunal that at the time when the appeal was heard, the only evidence available was the Draft Bond which was prepared by the Department showing the value of the fish at Rs. 20 lakhs. In view of that matter the Tribunal held that the appellant is entitled for the market value of the fish and which was fixed at Rs. 20 lakhs by enhancing the compensation of Rs. 5 lakhs. But the Tribunal held that the appellants are not entitled for international market value of the fish and shrimps. The copy of the order passed in the above case is in Annexure C, which may also be read as part and parcel of this statement of facts. 29. The learned Advocate Shri Mittal, appearing for the appellants/applicants submitted that in the orders passed in the Rectification Application, the questions enumerated at E, F and G, does not arise out of the order of the Tribunal in view of the fact that the compensation of Rs. 5 lakhs granted was already enhanced by the Tribunal to a sum of Rs.20 lakhs in terms of the orders passed in Order No. MA-657/CAL/1991, dated 23-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are required to be referred to the Hon ble High Court of Orissa. We reframe the questions as under :- (1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that Southern Marine Services Company Ltd. is the owner of the trawler and not the applicant; (2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that Southern Marine Services Company Ltd. is the owner of the trawler and whether that finding is contrary to the principles laid down by the Supreme Court in the case of M/S. British India Steam Navigation Company Ltd. v. Sanmughavilas Cashew Industries Ors. - 1990 (48) E.L.T. 481 (S.C.) = Judgments Today 1990 (1) S.C. 528? (3) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the applicant company is not entitled to receive back the trawler or to get its value on their succeeding in appeal before the learned Central Board of Excise Customs ? 33. As far as Questions E to G are concerned, it was fairly conceded by Shri Mittal that no questions enumerated therein are required to be referred to the Hon ble High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that there must be a question of law arising out of the order of the Tribunal before a reference can be made, but it is not every question of law that is required to be referred, by the Tribunal to the High Court. Where the answer to the question of law is self-evident or is concluded by a decision of this Court, it would be futile to make a reference and in such a case the Tribunal would be justified in refusing to refer the question to the High Court : vide Commr. of I.T. v. Chandler Bhan, (1966) 60 ITR 188 (S.C.); Mathura Prasad v. Indian Mica Supply Co. P. Ltd., (1970) 77 ITR 20 (S.C.). .[Emphasis supplied] In the present case, the answer to the aforesaid question of law is self evident from the original order passed by this Tribunal, wherein it was categorically made clear that the question of granting damages to the appellant as they were kept out of possession of the trawler, is not a relief which could be granted by the Tribunal in view of the clear provisions of Section 129 of the Customs Act, as had been dealt with by the Tribunal in the original order. So also, the grant of expenses incurred by the applicants for conducting the litigation are also not within the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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