Page 220 - ELT_15th July 2020_Vol 373_Part 2

202 EXCISE LAW TIMES [ Vol. 373

is presumption against retrospectivity, according to Craies (Statute
Law, 7th Edn.), it is open for the legislature to enact laws having
retrospective operation. This can be achieved by express enactment
or by necessary implication from the language employed. If it is a
necessary implication from the language employed that the legisla-
ture intended a particular section to have a retrospective operation,
the courts will give it such an operation. In the absence of a retro-
spective operation having been expressly given, the courts may be
called upon to construe the provisions and answer the question
whether the legislature had sufficiently expressed that intention
giving the statute retrospectivity. Four factors are suggested as rel-
evant : (i) general scope and purview of the statute; (ii) the remedy
sought to be applied; (iii) the former state of the law; and (iv) what
it was the legislature contemplated, (p. 388) The rule against retro-
spectivity does not extend to protect from the effect of a repeal, a
privilege which did not amount to accrued right, (p.392).”
21. Above being the position, the inevitable conclusion is that Expla-
nation 4 to Section 271(1)(c) is clarificatory and not substantive. The view
expressed to the contrary in Virtual’s case (supra) is not correct. ”
9. According to the Learned Counsel for the petitioner, the so called
amendment which was issued in May 2015 is only clarificatory and not substan-
tive. Therefore, the very levy of wharfage originally on the vessel belonging to
the petitioner was without the authority of law. She would therefore submit that
the writ petitioner is entitled to succeed in view of the above submissions.
10. Per contra, Mr. P.M. Subramaniam, Learned Counsel appearing for
the second respondent Port Trust would submit that as per the petitioner’s own
declaration in the import general manifest, the vessel itself was declared as the
cargo and therefore, the Port Trust authorities have treated the vessel as a mani-
fested cargo. Therefore, the Port authorities applied the scale of rates which are
applicable to the petitioner and recovered the amount towards wharfage charges.
According to the Learned Counsel, when the vessel is imported and manifested
as cargo in the import general manifest, the same has to be treated as cargo and
all the charges applicable for cargo is payable.
11. According to the Learned Counsel appearing for the Port Trust, the
wharfage was collected under Item No. 36(A) “Items not otherwise specified -
other than bulk” of the Schedule of wharfage under Scale 1 of Chapter-III of scale
of rates. He would therefore submit that the impugned letter dated 6-2-2015 is-
sued by the Port authority was in order and the same cannot be questioned suc-
cessfully. According to the Learned Counsel, once the petitioner’s vessel was
passing through the port, the petitioner is liable to pay wharfage charges as per
the scale of rates. The demand was made as per the rates applicable. Therefore,
there is no legitimate cause for complaint by the petitioner. The Learned Counsel
would also draw the attention of this Court to Section 2(z) of the Major Port
Trusts Act, which reads as under :-
“2(z). “Vessel” Includes anything made for the conveyance, mainly by
water, of human beings or of goods and a caisson; ”
12. The Learned Counsel appearing for the Port Trust would also draw
the attention of this Court to the insertion which was brought in by instruction
dated 15-5-2015, by way of an amendment and he would particularly draw the
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