Civil Appeal Nos. 1784-1787, 4342-4345 of 2004. Case: Commissioner of Customs, Mumbai Vs M/s. Aban Loyd Chiles Offshore Ltd. & Ors.. Supreme Court (India)
| Case Number | Civil Appeal Nos. 1784-1787, 4342-4345 of 2004 |
| Judges | Dipak Misra and Prafulla C. Pant, JJ. |
| Issue | Customs Act, 1962 - Section 111 |
| Judgement Date | February 02, 2017 |
| Court | Supreme Court (India) |
Judgment:
Dipak Misra, J.
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The present appeals have been preferred against the judgment and order dated 30th June, 2003 passed by the Customs, Excise and Service Tax Appellate Tribunal (for short, "the tribunal") in Application Nos. C/MA (Ors.) 945/01-Mum in C/716, 781, 782, 814/01-Mum by the revenue as well as the assessee as both are aggrieved in respect of certain conclusions arrived at by the tribunal. As the principal controversy pertains to the appeals preferred by the department, we will take the facts from the appeals preferred by it and, accordingly, we shall describe the parties.
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The first respondent, M/s Aban Loyd Chiles Offshore Ltd., engaged in business of offshore oil and gas exploratory drilling and related activities on contract basis, inter alia, for the Oil and Natural Gas Corporation Limited (ONGC) had obtained the approval of the Government of India on 25.03.1987 for the import of a Rig for such oil field services. It was granted a Special Import Licence bearing number P/CG/2103211 dated 24.04.1987 for the import of the said Rig along with certain drilling equipments. A confirmed irrevocable Letter of Credit amounting to US $ 1,521,000/- for the shipment of Capital goods covered under L/C No. ICICI/RF/87/2 dated 08.05.1987 was given by ICICI Bombay against the said Import Licence. As per the special instructions annexed to the said Letter of Credit, the transport documents were required to fulfil six conditions including the one, that is, the shipping document should indicate the place of final destination and should not be different from the port of discharge. As the factual matrix has been uncurtained, the assessee purchased in July 1987 a rig, Griffin Alexander III, from Griffin Alexander Drilling Co. for a price of US $ 5.39 million. The rig was towed directly to the drilling site at Bombay High in October 1987. In February 1996, the importer wrote to the Commissioner of Customs, Mumbai, seeking permission to import the rig into Mumbai for carrying out repairs and re-export in terms of the provisions of Notification No. 153/94-Cus.
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It is not in dispute that the rig was towed into the waters comprising Mumbai Port on 12.11.1996 and after it was repaired, taken out of the territorial waters of India. It was once again imported to India on 9th December, 1998, being towed into Indian territorial waters by two tugs of the ONGC, Malaviya IV and SCI-05. After repairs, the rig was again towed out of the Indian territorial waters. Investigations by the Customs authorities into these two cases of importation led them to conclude that there had been contravention of certain provisions by the assessee and others with regard to these two acts of bringing the rig into India. The rig was formally placed under seizure on 27th March, 1999 but subsequently was released following the order passed in writ petitions filed by the assessee before the Bombay High Court, permitting the rig to be used on payment of an amount of Rs. 1.0 crore and execution of a bond for its value. Thereafter, a notice was issued on 23rd September, 1999 to the assessee alleging that the import that took place in 1996 and 1998 were contrary to the provisions of law, and proposing confiscation of the rig under clauses (a), (b), (g), (h), (j) and (o) of Section 111 of the Customs Act, 1962 (for brevity, "the Act") and clause (a) of Section 113 of the Act, demanding duty amounting to Rs. 27.91 crores, proposing interest under Section 28A on the duty amount and penalty on the importer under Section 112 of the Act. Penalty was also sought to be levied upon ONGC under Section 112 and confiscation under Section 115 of the three vessels, and Malaviya IV owned by Great Eastern Shipping Co. Ltd. which was utilized for towing the rig in 1996 and 1998. After considering the explanation offered by the assessee, the Commissioner passed an order wherein he recorded a finding that the rig was carried and brought to Mumbai on three occasions; in February, 1996, on 9th November, 1996 and on 9th December, 1998. It was not declared in the Import General Manifest of the towing rigs, as was required under Section 46 of the Act. Such formalities as filing the bill of entry were not undertaken and, therefore, the rig was ordered for confiscation under clauses (f), (g), (j), (h) and (j) of Section 111. The Commissioner also held that the rig was imported for home consumption and hence, the assesses were liable to pay duty on the value of Rs. 44,40,28,320/-, determined after depreciating the value by 70% from the built cost of the rig. Being of this view, the said authority confirmed the demand for duty amounting to Rs. 27.91 crores, confiscation of the rig and had given the option of redeeming it by payment of fine of Rs. 2.0 crores. The authority exonerated P.A. Abraham, Managing Director of the Company, imposed penalties of Rs. 50,000/- each on P. Venkateswaran, Vice President and A.P.S. Sandhu, General Manager, ordered confiscation of three towing vessels but permitted them to be redeemed on payment of fine of Rs. 1.0 lakh each and imposed penalties on ONGC, and Benny Ltd., the importer''s agent.
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Aggrieved by the said order, assessee preferred appeal before the tribunal. On the foundation of the judgments, namely, mership Management Pvt. Ltd. v. UOI, 1996 (86) ELT 15 rendered by the High Court of Bombay, Scindia Steamship Co. Ltd. v. CC, 1988 (36) ELT 581 delivered by the High Court of Calcutta and an earlier judgment of the tribunal in Sedco Forex International Drilling Inc. v. CC, 2001 (135) ELT 625 (Tri-Mumbai) it was contended by the assessee before the tribunal that neither any duty was payable nor any penalty was imposable. It was also urged that foreign going vessels do not cease to be so when they enter into Indian territorial waters only for repairs. Alternatively, it was contended that method adopted by the Commissioner by starting with the originally built cost in 1982 and determining depreciation was totally incorrect. According to the assessee, there was no contravention of any aspect contained in Section 111 and hence, no penalty could be imposed.
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On behalf of the department, it was propounded that the decision of the Bombay High Court was not relevant inasmuch the Court had not considered whether a rig was a foreign going vessel when it operated in the territorial waters of India. Reference was made to the subsequent decision of Bombay High Court in Pride Foramer v. UOI and Ors., AIR 2001 Bom 332 wherein it has been held that the rigs operating in designated areas are not foreign going vessels as such areas are deemed to be Indian territory; and once it is brought into Indian territory, it ceases to be a foreign going vessel. The argument with regard to valuation was seriously opposed.
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The tribunal took note of the undisputed fact that when the rig was engaged in drilling and such activities outside Indian territorial waters and while not being in areas under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other maritime Zones Act, 1976 (for short, "the 1976 Act"), it was a foreign going vessel. The question that was posed by the tribunal was whether the vessel ceases to be a foreign going vessel when it enters into Indian territorial waters for purposes of repairs. It referred to the Bombay High Court decision in Amership Management Pvt. Ltd. (supra) and opined that the said decision is the authority for the proposition that a drilling rig, when engaged in drilling operations outside the territorial waters of India, is a foreign going vessel. It also referred to Calcutta High Court judgment in Scindia Steamship Co. Ltd. (supra) which had accepted the contention that even while the vessel was undergoing repairs and preparations were made to carry the cargo to foreign ports, it did not cease to be a foreign going vessel. The tribunal referred to the authority in Pride Foramer (supra) wherein the Bombay High Court taking note of the judgment in Amership Management Pvt. Ltd. (supra) had opined that the imported stores supplied to a rig located in an area designated under the Act 80 of 1976 would not fall within Section 86 of the Act. The tribunal appreciated the fact that in the said decision reliance was placed on the judgment of the Division Bench of that Court in Salgaonkar Engineering v. OJF Games, 1984 (86) Bom LR 127 to hold that it is only that vessel which is actually carrying at a given point of time the goods or passengers between a port in India and a port outside India is a foreign going vessel. Analysing the provisions of the Act and the authorities in the field, the tribunal held that a ship that is engaged in carriage of cargo or passengers between Mumbai and Abu Dhabi is a foreign going vessel covered by the first part of the definition and would be as such a foreign going vessel throughout the length of its voyage, if, during its voyage between these two ports, it touches other Indian Ports. It further opined that a rig had been held in Amership Management Pvt Ltd. (supra) as a foreign going vessel because it was engaged in the operations outside Indian territorial waters in view of clause (2) of the extended definition, but it would not be appropriate to apply the first part of the definition while considering the...
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