9911796707
TMI Blog2005 (8) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... the Oil and Natural Gas Commission, respondent No. 5, for supply of the said goods at their project for exploration of oil at Bombay High. On February 26, 1985, the petitioner made an application to the Ministry of Industries and Company Affairs, Department of Industrial Development, for grant of industrial licence under the Industries (Development and Regulation) Act, 1951 for manufacture of offshore wellhead, water injection, process platform and allied components. The petitioner also requested the Ministry to process a proposal for obtaining 100% export oriented unit licence. After considering all the relevant facts, the Board of Approval of the Central Government duly approved the undertaking of the petitioner at Tehsil Jelligham, Mouza Gangar Char, District - Midnapore, as 100% export oriented unit. Thereafter, the petitioner manufactured two decks and two helidecks in its said export oriented unit. By a letter dated April 7, 1988 addressed to the respondent No. 1, the petitioner informed that it would export the said goods and will avail of the benefit of exemption granted by the Notification No. 123/81 dated June, 2, 1981. A classification list was enclosed with the said let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unless legislations are specifically made applicable to the said area. It was further clarified by Circular dated March 27, 1995 that the platforms would lie outside the scope of Customs Act till the notification was issued. The said platform 'ED' and 'EE' were not included in the notification dated 18th July, 1986 issued by the Government. The said notification did not mention 'ED' and 'EE' platforms as declared areas in the continental shelf. The Customs Act was extended to such designated areas by notification bearing No. 64/99-Cus. (N.T.) dated 1st December, 1997. He then contends that although the said 'ED' and 'EE' platforms were within continental shelf the Central Excise Act did not apply to the said platforms in 1988 when the goods were exported as the Government did not issue notification extending the area. Granting of exemption has to be read and understood on the clear meaning of the word as mentioned in the notification irrespective of the legislative intention and object underlined therein. Unlike ordinary legislation, fiscal statute has to be read strictly in terms of the language. In this connection he has relied on the two decisions of the Supreme Court reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete sovereignty of this country which includes political and economic is extended only upto territorial waters meaning thereby upto the area as defined under Section 3(2) of the Zone Act. The sovereignty in limited sphere for the purpose of exploration and extraction of mineral resources has been extended upto exclusive economic zone. However, this exclusive economic zone cannot be brought within the purview of the applicability of any Act unless the Central Government by notification to be issued under Section 6(6) of the Zone Act specifically provides so. This specification has to be made by declaring a particular area as being designated area. 8.Undisputedly, at the relevant point of time when the transaction took place, the oilrigs were located in the exclusive economic zone but not the portion, which was the designated area under the Zone Act. He contends further that for the purpose of this case the word 'India' covers only designated area. He submits that exclusiveness attaches with the resources exploration only but does not incorporate the notion of reducing the area of the exclusive ownership or title of the coastal estate. In support of his contention he has relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionary, 5th edition. In support of his contention he has relied on a decision of the Supreme Court reported in AIR 1964 SC 845. He contends that Article 1(3)(c) of the Constitution does not purport to confer power on India to acquire territories. It merely provides for and recognizes automatic absorption or assimilation into the territory of India of areas, which may be acquired by India. By virtue of its sovereignty, a sovereign State has the inherent right to acquire foreign territory. In support of his contention, he has also relied on the other decisions of the Supreme Court, which are as follows : AIR 1971 SC 1130, AIR 1975 SC 1843. 10.Having heard the learned Counsels for the parties and examined the materials placed before me, the moot question in this matter is whether the petitioner can get exemption from payment of excise duty by virtue of the Notification No. 125/85 dated 26th May, 1984 treating the sale and despatch of the goods, namely, helidecks at the platforms 'ED' and 'EE' at Bombay High erected by the respondent no. 5, ONGC, not being done in India or not. 11.Therefore, I set out the text of the above notification. "In exercise of the powers conferred by sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign ships (other than warships including submarines and other underwater vehicles) shall enjoy the right of innocent passage through the territorial waters. Section 5 has described and demarcated as contiguous zone of India. This zone has been demarcated as being an area beyond and adjacent to the territorial waters and the limit of contiguous zone is the line every point of which is at a distance of 24 nautical miles from the nearest point of the baseline as referred to in sub-section (2) of Section 3. In Section 6, continental shelf has been demarcated upto a point situates at a distance of 200 nautical miles from the baseline referred to sub-section (2) of Section 3. Section 7 of the Zone Act provides and demarcates an area within continental shelf as exclusive economic zone. In my view, having regard to the provisions of the Constitution as well as Zone Act, India cannot have any exclusive sovereign right or power in all senses up to the area described as contiguous zone, continental shelf and exclusive economic zone. This will be apparent from the language of Section 5, Section 6 and Section 7 thereof. 15.Sub-section 4 of Section 5 of the zone Act enables the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2) of Section 3. Under Section 7(a), the Central Government may, by notification in the Official Gazette, extend with such restriction and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the exclusive economic zone or any part thereof. Careful reading of Section 6 and Section 7 of the zone Act shows that the territorial waters, the seabed and subsoil underlying thereunder and the air space over such territorial water form part of the territory of India and that the sovereignty of India extends and has always extended to the historic waters of India. However, the position is different in the case of continental shelf and exclusive economic zone of India. The continental shelf for India comprises the seabed beyond the territorial waters to a distance of 200 nautical miles; the exclusive economic zone contains the seabed of waters over continental shelf. It is also clear from Section 7(7) of the zone Act that in respect of the continental shelf of exclusive economic zone, India has been given only certain limited sovereign rights conferred upon India in respect of the continental shelf, and exclusive economic zones do not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delivery was not territorial part of India. 19.The Supreme Court decisions rendered in case of Collector of Customs v. Sun Industries, 1988 (35) E.L.T. 241 has ruled while deciding a case of admissibility of a duty drawback for elucidating the word "export", held that once the goods crossed territorial water of India taking out of the goods to a place outside India is complete. In that case, it has been specifically held in paragraph 6 amongst others as follows : "........... It is true that the goods did not land in any place because of the defect in the ship. But the expression 'taking out to a place outside India' would also mean a place in high seas. It is beyond the territorial waters of India. High seas would also mean a place outside India, if it is beyond the territorial waters of India. Therefore the goods were taken out to the high seas outside territorial waters of India, they will come within the ambit of expression, taking out to a place outside India". 20.Therefore, in this case with necessary corollary the goods were not sold within the Indian Territory. According to me, once this factum of not selling goods within India is established the writ petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
