R.M. CHHAYA, J.

1. BY way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged communication dated 31.12.2001, whereby the respondent No.3 herein directed the petitioners to observe customs procedure as prescribed under the law and file Bill of Entry under S.46 of the Customs Act, 1962 (hereinafter referred to as the Act for the sake of brevity) for the vessel named M.V. GLORIA KOPP which was purchased by the petitioners in auction from respondent No.5, further informing the petitioners that the customs duty is required to be collected under Chapter CTH 8908.

2. THE facts as per the record of this petition are as under:

That the petitioner No.1 is a registered partnership firm engaged in the business of ship breaking and petitioner No.2 is Managing Partner of petitioner No.1.

3. RESPONDENT No.5 Commissioner of Customs, Chennai floated tender for sale of confiscated vessel/ship named M.V. GLORIA KOPP which stipulated various conditions. As per the said tender notice amongst other, the conditions nos. 10 and 11 read as under :

"10. TAXES and DUTIES : will be charged extra as per TNGST Act as applicable on date of billing and should be paid along with balance payable amount to the Commissioner of Customs, Custom House, Chennai."

11. NO CUSTOM DUTY ON SALE VALUE : The ship is confiscated and will be sold by tender by the Indian Custom Authorities and hence no custom duty will be charged extra on sale value from the purchaser".

4. THE petitioner firm made an offer for purchase of the said vessel for an amount of Rs.2,36,00,000/-. THE said offer made by the petitioner was accepted by respondent no.5 vide communication dated 21.11.2001. It is the case of the petitioners that the petitioners complied with the conditions of the tender and also paid the sales tax as per the condition of the tender and accordingly the statutory order of bill of sale was issued in favour of the petitioner firm on 5.12.2001.

It is the case of the petitioners that the petitioner firm is engaged in the business of ship breaking and hence, intended to bring the ship to Alang port, District Bhavnagar for the purpose of breaking the said vessel. The petitioner firm addressed a letter to respondent no.3 herein, informing respondent no.3 that they had purchased the said vessel in an auction held by respondent no.5 and further intimating respondent no.3 herein, that as per condition no.11 no customs duty is payable on the said ship, as the ship was confiscated and is sold by tender by the Customs Authority, Chennai and giving all details and relying upon the legal provisions as well as the relevant Notification dated 1.3.2001 requested respondent no.3 to grant beaching permission of the vessel, without insisting for formalities and also for filing fresh Bill of Entry. It also transpires from the record that another company viz. M/s. Swift (GB) Ltd. of Wembley, U.K. who was one of the interested offerers by communication dated 26.9.2001 inquired from respondent no.5 as to whether the purchaser would be required to pay customs duty on the value of the ship. In response to the said communication of M/s. Swift (GB) Ltd., respondent no.5 vide communication dated 26.9.2001 clarified that as the vessel in question was a confiscated item and the same was being sold by tender by the custom authorities no custom duty will be charged on sale from the purchaser as per clause 11 of the condition of sale annexed to the tender notice. Copy of the said communication was sent by respondent no.5 also to respondent no.1 as well as respondent no.3 herein. In response to the letter dated 26.12.2001 addressed to respondent no.3 herein requesting to permit the petitioner to beach the vessel at Alang the respondent no.3 herein vide impugned communication dated 31.12.2001 informed the petitioners that circular no.44/97 would be applicable to those vessels which exclusively carry coastal goods and ply as coastal vessels only and sa