NAIN,J. - (1.) THIS is a petition for a writ of certiorari or other appropriate writ, order or direction quashing three orders exhs. F, H and I to the petition. The order exh. F is passed by the Assistant Collector of Customs, Bombay, on April 7, 1966. Exhibit H is an appellate order passed by the Collector of Customs, Bombay, on October 25, 1966 and exh. I is an order dated November 1, 1968 passed by the Government of India in revision. In the said orders the authorities have held that if a foreign -going Indian cargo vessel loads coastal cargo at intermediate Indian ports for delivery at other Indian ports it is liable to pay customs duty on imported fuel and other consumable goods on board and is not exempt from such duty under Section 87 of the Customs Act, 1962.
(2.) THE petitioners own 16 ships of which 13 are exclusively foreign -going vessels and the remaining 3 are coastal vessels. One of the ships owned by them is m.v. 'Jag Shanti'. It is registered as a foreign -going vessel. Its thirteenth voyage started at Calcutta on July 3, 1964 for Yawata in Japan, In Calcutta it took about 10,000 tons of iron ore intended for Yawata in Japan. At Kakinada in India it took about 3,000 tons more of iron ore intended for Yawata. The ship reached Yawata on August 16, 1964 and unloaded its entire cargo booked for that port. Thereafter it commenced its fourteenth voyage and it proceeded via Pacific Ocean to the West Coast of the U.S.A., on the way picking up cargo for delivery at ports on the U.S.A. west coast, Japan, India, Pakistan and what is now Bangladesh. On its way back from the west coast of U.S.A. it discharged some cargo on Japanese ports and proceeded to Calcutta via Tuticorin, Bombay and Madras. When the ship reached Bombay, it had a small quantity of about 3,000 tons of foreign cargo intended for Calcutta. In Bombay it took about 8,442 tons of cargo for Madras and Calcutta. The goods intended for Madras were discharged at Madras and a further consignment of 340 tons was taken at Madras for Calcutta. The remaining cargo both foreign and Indian was discharged at Calcutta. After Calcutta the ship proceeded on its fifteenth voyage again to Japan, but with this we are not concerned. It will be seen from what has been stated hereinabove that a large part of the goods carried by m.v. 'Jag Shanti' was carried from Indian ports to Yawata in Japan and from Pacific Coast of U.S.A. to ports in Japan, India, Pakistan, and now Bangladesh. It is true that when proceeding from Bombay to Calcutta via Madras, it had only about 3,000 tons of foreign cargo left to be delivered at Calcutta. It, therefore, took about 8,800 tons of cargo at Bombay and Madras for delivery at Madras and Calcutta in order not to waste its carrying capacity.
(3.) AFTER getting the particulars of the goods carried by m.v. 'Jag Shanti' on its thirteenth and fourteenth voyages from Calcutta to American west coast via Japan and back to Calcutta, the Customs Authorities called upon the petitioners to file a Bill of Entry for ship stores consumed during what they called 'coastal trade' and to pay duty thereon. The petitioners refused to comply. On April 7, 1966 the Assistant Collector of Customs, Bombay, passed his order exh. F to the petition. In the said order it is stated that while the ship carried some bottom cargo from abroad, it lifted a larger quantity of goods from Bombay and Madras for delivery at Madras and Calcutta and the local cargo being comparatively more than the foreign cargo carried by the vessel between Bombay and Calcutta, the ship is treated as having entered into 'coastal trade' for the purpose of levying of duty on ship stores and that the exemption under Section 87 of the Customs Act, 1962 will not be applicable. This is the first impugned order. The petitioners appealed to the Collector of Customs who passed his order dated October 25, 1966 exh. H to the petition. The Collector of Customs took the view that once a foreign -going vessel takes cargo from one Indian port for delivery at another Indian port even if it has got foreign cargo on board it loses the privilege of being a foreign -going vessel and must pay duty on the imported fuel and other stores consumed on board during that period. He rejected the appeal and confirmed the order of the Assistant Customs Collector. This is the second impugned order. The petitioners filed a revision application with the Government of India which was rejected by order dated November 1, 1968 exh. I to the petition. Thereafter on February 6, 1969 the petitioners have filed the present petition challenging the validity of the three orders exhs. F, H and I to the petition.;