Page 221 - ELT_15th July 2020_Vol 373_Part 2

2020 ] ALCATEL SUBMARINE NETWORKS UK LTD. v. UNION OF INDIA 203

attention of this Court to Paragraph Nos. 4.1 and 4.2 of the typedset, which reads
as under :-
“4.1 Based on the legal opinion, this Authority is inclined to approve
insertion of the following as Note No. (10) after the existing Note No. (9)
under Scale-1-Wharfage of Chapter-III -- Cargo related charges, as pro-
posed by the CHPT :
“(10) Vessels calling the Port on her first voyage, which are
declared as cargo in the Import General Manifest or Export General
Manifest for the purposes of Customs Act, 1962, shall not be treated as
cargo and no wharfage shall be levied on such vessels, if the vessels
come into the port on their own steam and sail out of the port limits on
their own steam. However, when loading or unloading of vessels
takes place within the port limits, wharfage as per Scale-1 above shall
be payable on such vessels. ”
4.2 With regard to the date of effect of the amendment proposed by
it, it is to state that the order of this Authority generally takes effect pro-
spectively after expiry of 30 days from the date of Gazette notification un-
less otherwise different arrangement is specifically mentioned in the respec-
tive tariff orders. In exceptional cases retrospective effect is given for rea-
sons to be recorded. It is noteworthy that the CHPT has mooted the pro-
posal in reference based on the clarification given vide letter dated 25
March 2015. Since a clarification has already been given on 25 March 2015,
it is felt appropriate to give effect to the proposed amendment with effect
from 25 March 2015 (being the date when the clarification has been fur-
nished to CHPT). ”
13. According to the Learned Counsel appearing for the Port Trust that
the insertion of new Note No. 10 was an amendment which came into effect only
from 25-3-2015 and therefore, the petitioner cannot take advantage of the
amendment which was brought in subsequent to the date of levy of wharfage.
The Learned Counsel would emphasis the fact that it is not a clarificatory,
though the expression used as clarification, but, it is in effect an amendment,
since there was an insertion of new note in wharfage of Chapter III - cargo relat-
ed charges. Therefore, the insertion can have only prospective effect and there-
fore, the claim of the petitioner on the basis of the subsequent clarification is un-
tenable and the decision relied on by the Learned Counsel for the petitioner can-
not be applied to the factual matrix of the present case.
14. Heard the Learned Counsel for the petitioner as well as the Learned
Counsel appearing for the respondents.
15. The entire contention raised on behalf of the petitioner is with refer-
ence to levy of wharfage on the vessel belonging to the petitioner. Since accord-
ing to the petitioner, the vessel cannot be subjected to levy of wharfage unless
there were any goods unloaded or transhipped in the second respondent Port.
This Court is of the view that once the Port Trust has declared the vessel itself as
a cargo, in view of its activity of laying under sea cable, it is well within the pow-
er of the Port Trust authorities to levy wharfage against the vessel itself. When
the vessel itself is involved in the type of activity as admitted by the petitioner
themselves, which carry the fiber-optic cable and other submerged equipment to
be laid on the sea bed, there is no escape from the demand of wharfage against
EXCISE LAW TIMES  15th July 2020  221