SUPREME COURT OF INDIA
M/S ASEAN CABLESHIP PVT. LTD. – Appellant
Versus
THE COMMISSIONER OF CUSTOMS – Respondent
SLP(C) No.-002208 / 2022
15-03-2022
ABHISHEK VIKAS
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO.2208 OF 2022
M/s. Asean Cableship Pte. Ltd.
..Petitioner
Versus
The Commissioner of Customs
..Respondent
O R D E R
1.
Feeling aggrieved and dissatisfied with the impugned
order dated 17.12.2021 passed by the High Court of Kerala
at Ernakulam in Customs Appeal No.1 of 2021 by which the
High Court has overruled the objection raised by the
petitioner herein – assessee on the maintainability of the
appeal before the High Court under Section 130(1) of the
Customs Act, 1962 (hereinafter referred to as ‘the Act’), the
1
Digitally signed by
DEEPAK SINGH
Date: 2022.03.15
17:45:47 IST
Reason:
Signature Not Verified
original assessee – respondent before the High Court has
preferred the present Special Leave Petition.
1.1
That the petitioner herein operates the cableship CS
Asean Explorer (“vessel AE”) for the purposes of laying,
repairs and maintenance of submarine cables. Various
telecommunication companies entered into an agreement
with cableship operators (including the petitioner herein) to
undertake repair and maintenance of the submarine cable
wires through cableships such as the vessel AE. That the
vessel AE is stationed at Kochi, India, to undertake repairs
and maintenance of submarine cables.
1.2
A 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. The petitioner resisted the
same. It was the case on behalf of the petitioner that CS
Asean Explorer, which was subjected to a confiscation
order, is a foreigngoing vessel falling within the definition of
Section 2(21) and Section 87 of the Act and therefore
entitled to exemption from payment of any duty under the
2
Act, as CS Asean Explorer is a foreigngoing vessel. Thus,
as such the petitioner claimed the exemption from payment
of duty under Section 87 of the Act. It was the case on
behalf of the petitioner that as petitioner is not answerable
to any duty leviable under the Act and therefore, no
assessment is required for the purpose of determining the
amount payable by it. That the Commissioner of Customs
confirmed the demand vide order dated 04.04.2013 and also
imposed the penalty.
1.3
Petitioner aggrieved by the order dated 04.04.2013
filed an appeal before the CESTAT, South Zonal Bench,
Bangalore being Customs Appeal No. 27102 of 2013. The
CESTAT allowed the said appeal and remanded the appeal
for determining the extent of applicable duty on the ship’s
stores consumed by the petitioner during the period of time
that the vessel was engaged in operations in Indian
territorial waters and for the normal period. Thus, the
CESTAT accepted the case on behalf of the petitioner that
vessel AE is a foreign going vessel and Section 87 of the Act
is attracted to stores consumption on board and therefore
3
the petitioner is exempted from payment of duty as per
Section 87 of the Act.
1.4
Aggrieved by the final order passed by the CESTAT
dated 18.02.2020 in holding that vessel AE is a foreign
going vessel and therefore Section 87 of the Act shall be
attracted to store consumption on board and therefore the
applicant petitioner is exempted from payment of the
customs duty, the Revenue has preferred the further appeal
before the High Court under Section 130(1) of the Act.
1.5
A preliminary objection was raised on behalf of the
petitioner on the maintainability of the appeal before the
High court under Section 130(1) of the Act. It was the case
on behalf of the petitioner that as the principal question is
determination of rate of duty, against the order passed by
the CESTAT, Appeal