The main legal point established in the judgment is that the jurisdictional fact for consideration in the appeal was whether the vessel, C S Asean Explorer, qualified as a foreign-going vessel under Section 87 of the Customs Act 1962. The Court held that this circumstance did not come within the exception to eligible orders provided in Section 130 of the Act, making the appeal maintainable in the High Court.

ORDER :

S.V.Bhatti, J

Heard Mr N Venkataraman, learned Additional Solicitor General for the appellant, and Mr Rohan Shah, learned Counsel for the respondent, on the maintainability of the instant appeal before this Court under Section 130 of the Customs Act 1962 (for short ‘the Act’).

2. The Commissioner of Customs, challenging the Final Order No.20218-20219/2020 dated 18.02.2020 in Customs Appeal No.27102/2013 of Customs, Excise and Services Tax Appellate Tribunal (CESTAT), Bangalore, has filed the appeal under section 130 of the Act. M/s. Asean Cableship Pvt. Ltd, Singapore, represented by its General Manager, is the respondent. For convenience, parties are referred to as appellant and respondent.

3. The Background Circumstances : On 15.12.2005 the agreement entitled 'The South East Asia and Indian Ocean Cable Maintenance Agreement' was entered between the Telecom Companies (Maintenance Authorities) and Cableship operators. The object of the agreement is to provide submarine cable installation, repairs and maintenance to the Maintenance Authorities. The respondent, in turn, entered into an agreement with Cochin Port Trust for availing berthing facility at Cochin Port. The respondent, as part of its contractual obligation under 'South East Asia and Indian Ocean Cable Maintenance Agreement', shall be based at Port of Cochin, India, and has deployed 'C S Asean Explorer' for carrying out the contractual obligations under the Cable Maintenance Agreement. 'C S Asean Explorer' was berthed at Cochin Port and undertook sorties to places of repair and maintenance work in the Arabian Sea.

3.1 Show-cause notice dated 10.07.2012 along with corrigendum dated 14.08.2012 was issued proposing to initiate action under Sections 111(b) and (f) of the Act read with Section 125 of the Act contemplating to levy duty, impose redemption penalty, etc under Sections 128(8) and (10) of the Act. The respondent resisted these steps initiated for alleged violation of any of the provisions of the Act by the appellant. For our present purpose it is sufficient to notice that the respondent claimed that C S Asean Explorer, which was subjected to a confiscation order, is a foreign-going vessel falling within the definition of Section 2(21), and Section 87 of the Act accords exception from payment of any duty under the Act, C S Asean Explorer since is a foreigngoing vessel. In other words, Section 87 of the Act exempts payment of duty on the stores consumed by C S Asean Explorer during the period 2007-2012. Therefore, the respondent is not answerable to any duty leviable under the Act, no assessment is required for the purpose of determining the amount payable by the respondent, and consequently, levy of penalty, redemption fine, duty etc are not warranted in the peculiar circumstances of the case.

3.2 In the present order, we are, as noted above, considering whether the instant appeal is maintainable against the order dated 18.02.2020 of the CESTAT in this Court under Section 130 of the Act or not? Therefore, by a clear choice and understanding, we are refraining from detailing several niceties or intricacies relied on by both the parties in support of their respective contentions on the real issues arising for a decision of the Court. The Commissioner of Customs, through order dated 04.04.2013, imposed and demanded the following sums from the respondent:

“(i) I order confiscation of the vessel C.S.ASEAN Explorer, valued at Rs. 80.60 crores under sections 111 (d) and 111 (f) of the Customs Act 1962.

(ii) I allow redemption of the vessel C.S.ASEAN Explorer, valued at Rs. 80.60 crores on payment of a redemption fine of Rs. 8,00,00,000/- (Rupees Eight Crores only) under Sections125 of the Customs Act 1962.

(iii) I hold the stores, spares and bunkers consumed by the vessel during its stay in India during the period 11.07.2007 to 24.04.2012, totally valued of Rs. 45,15,20,479/- liable for confiscation under sections 111 (d) of the Customs Act, 1962 read with section 3 of th