Page 222 - ELT_15th July 2020_Vol 373_Part 2

204 EXCISE LAW TIMES [ Vol. 373

the activity of the vessel belonging to the petitioner at the time when it was
berthed in the second respondent Port.
16. Admittedly, the vessel itself was manifested as cargo and this Court
does not find the description of the vessel as cargo is invalid or not warranted for
the simple reason that from the description of the activity of the vessel itself,
there cannot be two opinions about the vessel being manifested as cargo by the
Port authority. Once the vessel was manifested as cargo, the consequence of that
was to levy wharfage as per the rates applicable for such import of cargo. In the-
se circumstances, the Port authorities had calculated the wharfage under Chen-
nai Port Trust Scale of Rates issued vide Gazatte No. 251, dated 27-8-2014. The
rate was calculated under Item No. 36(A) “Items not otherwise specified - other
than bulk” of the schedule of wharfage under Scale 1 of Chapter-III of the scale of
rates.
17. The contention of the petitioner is not about the rate of scale applied
towards them. But, the very levy of wharfage itself is being questioned in the
writ petition. Therefore, once this Court holds the view that the vessel was right-
ly manifested as cargo, in view of its admitted activity of laying under sea cable
by way of importing its services for their client in India, the charge towards
wharfage as demanded by the Port Trust authorities, cannot be the subject-
matter of controversy or dispute at the hands of the petitioner. In any event, the
rates as applied is not the subject-matter of contention on behalf of the petitioner.
18. The other principle contention put forth on behalf of the petitioner
is about the clarification which was issued by the Tariff Authority of Major Ports
(TAMP) on 15-5-2015 and as per clarification which is extracted in Paragraph
Nos. 4.1 and 4.2 which are extracted above, such vessels are not to be treated as
cargo and no wharfage shall be levied, would enure to the advantage of the peti-
tioner, since it was merely a clarificatory in regard to wharfage chapter as main-
tained by the second respondent Port Trust. Once the clarification is issued, it
should be a part of the scale of rates and the relevant chapter issued under Ga-
zette No. 251, dated 27-8-2014, this Court is unable to appreciate the arguments
on behalf of the petitioner for the simple reason that in the order dated 15-5-2015,
it is clearly mentioned that there was an insertion of new note No. 10 after exist-
ing note No. 9 under scale-wharfage of Chapter III-cargo related charges. Once
the new note has been introduced or inserted in the chapter and once it has been
declared and the same came into effect prospectively from 25-3-2015, the peti-
tioner cannot claim the benefit of such note in regard to the past wharfage levied
by the Port Trust. Although the arguments advanced on behalf of the petitioner
stating that the order dated 15-5-2015 is only clarificatory in nature, appears to be
attractive and acceptable at the first blush, but, looking at the entire order little
more critically and carefully, it could be seen that the authority by the said order
has inserted a new note and hence, it cannot be coloured as merely a clarificatory
order for the petitioner to take advantage of the same for seeking refund of the
money already paid by them to the Port Trust under wharfage demand.
19. The contention on behalf of the petitioner that merely because that
there was a requirement under the Customs Act to fill the import general mani-
fest which cannot be the basis for demand of wharfage from the petitioner, can-
not be accepted for the reason that though it was a requirement for the Customs

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