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TMI Blog1987 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... thstanding that they may also be used for the same or other purposes outside India. We guard ourselves against saying that the converse may be true. The question whether goods not intended to be primarily used in India but used occasionally for short periods in India also fall within the meaning of the expression `goods for home consumption' has not been examined by us. We have only considered the question whether goods brought into India for use primarily in India are goods for home consumption notwithstanding that they are occasionally or incidentally used outside India. We are of the view that they are. The vessels, in these two cases, were brought into India to be used primarily as Transhippers at Mormugao, though used incidentally or occasionally to go into the open sea. They are, therefore, `goods for home consumption' and not ocean-going vessels for the purposes of the Customs Act. After their conversion they were no longer ocean-going vessels, in the full sense of the term that is in the sense that their pre-dominant purpose was use as ships traversing the open seas. It was, therefore, necessary to present Bill of Entry in respect of both the vessels. Appeal dismissed. - 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istics of the vessel, it was mentioned in the certificate, "The Vessel originally a T 2 Tanker was converted into an ore loading barge at Yokohoma by Nippon KK, Asano Dockyard from April to September, 1969 under the supervision of our society." It was further certified as follows : "The vessel will be entered into the Marine Register Book of BUREAU VERITAS with the following class and notation mark : I 3 3 Ore Carriers, Small Coasting Trade starting from September, 1969, for a period of four years. The vessel will be mainly employed as an ore loading barge in the Harbour of Goa (India), with the possibility to extend her exploitation in certain periods of year, as a bulk carrier for small coastind trade. As a result of the aforesaid surveys for conversion and reclassification, the undersigned believes that S/S "TROPICAL GRACE" is at present time in a position to undertake the self-propelled voyage from YOKOHOMA to GOA." The vessel arrived in the harbour at Mormugao on or about October 15, 1969. The Deputy Conservator, Mormugao Goa Port Trust, Mormugao harbour was informed on the same day about the arrival of the vessel and it was stated in the letter, "this is an old 72 Tanke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This was followed on February 6, 1970 by another letter from the Assistant Collector asking the appellant company to file a Bill of Entry for clearances of the vessel `Maratha Transhipper' for home consumption immediately. The appellant company by their letter dated February 19, 1970 requested the Assistant Collector to enlighten them as to the relevant provisions of the law under which they were required to fill in the Bill of Entry in respect of the vessel which they said the Customs Department was aware was an ocean-going vessel. The Assistant Collector replied stating, "the function of the vessel s.s. `Maratha Transhipper' is in the nature of a sea barge operating within the port limits. Such operations are reserved to the vessels imported for home consumption". The company was requested to file the Bill of Entry for home consumption immediately. Thereafter there was some correspondence between the company and the Customs. On April 23, 1970, the Assistant Collector of Customs issued a notice to the appellant company asking them to show cause why the Bill of Entry was not filed in respect of the vessel s.s. `Maratha Transhipper' which was imported by the company on October 15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose arguments were supplemented by Shri Soli Sorabjee, learned Counsel for the appellant in Civil Appeal No. 4427 of 1985, were that the scheme of the Customs Act show that a vessel was not `goods' within the meaning of Section 46(1) of the Customs Act and therefore, it was not necessary to file a Bill of Entry that it was also the case of the Government of India that an ocean-going vessel was not required to file a Bill of Entry and that the vessel in question was an ocean-going vessel notwithstanding that its main purpose was topping up bulk carriers of iron ore. It was submitted that the Division Bench of the High Court was wrong in refusing to go into the question whether or not the vessel was an ocean-going vessel when that was the very basis of the orders of the Customs Authorities as well as the judgment of the learned single judge. On the other hand, it was submitted by Shri. S. Madhusudan Rao, learned Counsel for the Union of India that the definition of the word `goods' in the Customs Act unambiguously included a vessel, leaving no scope for any argument and that, in any case the vessels in question in both the cases were principally transhippers used for topping up oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Sections 44 to 51 occur in Chapter VII. Sections 45 to 49 are dealt with under the heading `clearance of imported goods' while Sections 50 and 51 occur under the heading of `clearance of export goods'. Section 29 requires the person-in-charge of a vessel or an aircraft entering India from any place outside India not to cause or permit the vessel or aircraft to call or land (a) for the first time after arrival in India; or (b) at any time while carrying passengers or cargo brought in that vessel or aircraft, at any place other than a customs port or a customs airport, as the case may be. Section 30 imposes a duty on a person-in-charge of the conveyance carrying imported goods to deliver to the proper officer, within twenty-four hours after arrival, an import manifest in the case of a vessel or aircraft or an import report, in the case of a vehicle, in the prescribed form. Section 31 prohibits the master of a vessel from permitting the unloading of any imported goods until an order has been given by the proper officer granting 'entry inwards' to such vessel. An `entry inwards' order is not to be given until an import manifest has been delivered or unless the proper officer is sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted even before the delivery of such manifest if the vessel by which the goods have been shipped for importation into India is expected to arrive within a week from the date of such presentation. (4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. (5) If the proper office is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice-versa". Section 47 deals with clearance of goods for home consumption and Section 49 with storage of imported goods in warehouses pending clearance. Section 50 requires the exporter of any goods to make an entry thereof by presenting to the proper office, a Shipping Bill in the case of goods to be exported in a vessel or aircraft and a bill of export in the case of goods to be exported by land. 8A. Section 53 makes provision for permitting goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared on payment of duty. Warehoused goods may be cleared either for home consumption or exportation on payment of import duty or export duty, as the case may be. Goods entered for home consumption are to be subjected to duty at a rate and tariff valuation as on the date of presentation of a Bill of Entry under Section 46 and goods cleared from a warehouse are to be subjected to duty at a rate and tariff valuation as on the date of actual removal from the warehouse. Other goods, presumably goods not disclosed but discovered to be imported or which have otherwise escaped duty, are to be subjected to duty at a rate and tariff valuation as on the date of payment of duty. 11. Section 46(1) which we have extracted earlier requires the importer of any goods for home consumption or warehousing to present to the proper officer a bill of entry in the prescribed form. The question, which arises for consideration, therefore, is whether the vessels in the two cases before us are goods brought into India for home consumption? Mixed up with this question is the question whether a transhipper is an ocean-going vessel? We will first consider the question whether a vessel is goods so as to attra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `other goods' mentioned in Section 15(c) is obviously meant to cover other imported goods such as goods imported clandestinely and goods which have otherwise escaped duty. 12. Now, if a motor car is brought by road into India from a place outside India for the purpose of being used in India, what is to be done with it and what is the point of time with reference to which it is to be subjected to the levy of customs duty? Surely, it is not meant to be subjected to duty as on the date of payment of duty as provided by Section 15(1)(c), ranking with goods not disclosed but discovered to be imported. It would be unreasonable to subject the car to the levy of duty as on the date of payment of duty instead of on the date prescribed by Section 15(1)(a) of the Act, that is, the date on which a bill of entry is presented under Section 46 as in the case of all other goods entered for home consumption. Shri Setalvad's submission was based on what he described as the scheme of Chapters VI and VII of the Act. The circumstance that in the several provisions contained in Chapter VI, the reference to `goods' is to goods which are carried and not the carriers themselves, is not very material sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is when because of inclement monsoon weather topping up operations cannot be done in Mormugao harbour, the vessels do go out into the open sea sometimes from one Indian port to another and at other times to foreign ports. Of course, even in the course of topping up operations during the fair season, it is necessary for the transhippers to go into the open sea to reach the bulk carriers. But, in our view, these operations do not make these vessels ocean-going vessels when their primary purpose and the purpose for which they were permitted to be purchased and brought to Indian waters, the primary purpose for which they were licensed and the primary purpose for which they are used is to conduct topping up operations in Indian territorial waters and not to serve as ocean-going vessels. In the very application that Chowgule and Co. Pvt. Ltd. made to the Government of India for purchasing the vessel, it was stated that they wanted to purchase the vessel for use as a topping up vessel at Mormugao harbour for iron ore. The permission granted was also for that purpose. The certificate of condition issued by Bureau Veritas showed that the vessel was to be mainly employed as an ore loading b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the view that they are. The vessels, in these two cases, were brought into India to be used primarily as Transhippers at Mormugao, though used incidentally or occasionally to go into the open sea. They are, therefore, `goods for home consumption' and not ocean-going vessels for the purposes of the Customs Act. After their conversion they were no longer ocean-going vessels, in the full sense of the term that is in the sense that their pre-dominant purpose was use as ships traversing the open seas. It was, therefore, necessary to present Bill of Entry in respect of both the vessels. 15. The learned Counsel for the appellants argued that it has been the consistent practice of the Customs Authorities not to insist on Bills of Entry in the case of ocean-going vessels. They quoted the statement to that effect from the counter affidavit filed in Civil Appeal No. 4427 of 1985 and cited the example of a number of ocean-going vessels which had not been required to present Bills of Entry. It may be that in the case of ocean-going vessels, that is, vessels which are primarily used for traversing the open seas, the Customs Authorities have not been insisting on Bills of Entry being pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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