Case Law Details
KPG Enterprise Vs C.C.E. Jamnagar (prev.) (CESTAT Ahmedabad)
The issue mainly involved is whether MEA S.O. 2158(E) dated 20.06.2016 prohibited the subject vessel imported for breaking purpose. The case of the department is that S.O. dated 20.06.2016 is issued in order to implement the UNSC resolutions and prohibited the subject vessel for entry into India and since it is imported contrary to the said S.O. dated 20.06.2016; the same was liable for confiscation under section 111 (d) of the Act. In this regard it would be useful to refer to the relevant paragraphs of the S.O. dated 20.06.2016. Para 4 read with para (4)(b) of the S.O. confers power upon the central government to give effect to the resolutions of UNSC on Libya: it states that central government shall have all the power to take necessary measures to prevent vessels designated by the committee from entering Indian ports. It can be seen that the S.O. only provides for enabling provisions for the purpose of prevention of the designated vessels for entry into Indian Port. In exercise of such powers, and to give effect to S.O. subject vessel could have been notified as prohibited for imports or to say least the entry could have been prevented by executive action in exercise of powers under the S.O. It, however, appears that no such steps appear to have been taken to give effect to the said S.O. for prevention of entry of vessel which was granted entry by various concerned authorities and it was only when the vessel was part-broken; the same was placed under seizure by the officers of DRI. In absence of any mechanism or modalities framed viz. to bring prohibition in force or notification issued under section 11 of the Act; Section 111(d) of the Act cannot be pressed into service particularly when the S.O. dated 20.06.2016 by itself does not expressly prohibit the entry of the vessel.
Learned commissioner clearly erred in reading para 4 read with para(4)(b) word “prohibition” which is not so as per the plain reading of para 4 but rather it is the conferment or enabling powers to prevent the designated vessel from entering Indian ports.
Further, it can be seen that the S.O. dated 20.06.2016 applied to the resolutions upto 2214 (2015) adopted by the Security Council of the United Nations as provided in para 2(1)(a) of the said S.O. The base resolution 2146 (2014) provides for its termination one year from the date of adoption unless extended. The said base resolution dated 19.03.2014 was set to expire on 19.03.2015 unless extended. On 27.03.2015 the said base resolution 2146 was extended till 31.03.2016 by resolution 2213(2015), and further extended upto 31.07.2017 by resolution 2278(2016). By resolution 2362(2017) although the said base resolution was further extended upto 15.11.2018, the scope of measures was however narrowed down and applied only to vessels loading, transporting or discharging petroleum including crude oil and refined petroleum products, illicitly exported or attempted to be exported from Libya. In view of above, it can be seen that, firstly, the S.O. in terms of para 3(2) did not amend extending the adoption of the UNSC resolution post 31.03.2016 by further Orders and hence cannot be said to be applicable to the subject vessel which was imported much later on 10/14.02.2018. Secondly, the subsequent resolution 2362(2017) curtailed the scope of measures and retained only one measure of para 10 (a) of base resolution viz. vessels loading, transporting and discharge of the petroleum including crude oil from Libya; this amendment was in view of positive developments in the political situation of Libya as stated in the subsequent resolutions. Therefore, the objective of the UNSC was no longer to take measures in respect of designated vessels itself but was restricted only with respect to loading, transportation and discharge of crude oil, petroleum etc from Libya; in that view, the subject vessel even when designated by committee, was entered into India for the breaking/recycling purposes only and it is nobody’s case that when it entered India, it carried crude oil, petroleum etc loaded from Libya; as per the perusal of the available records, it is not disputed fact that the vessel was, after due clearances from UAE port authorities, brought to India without cargo for breaking/recycling purposes on 10/14.02.2018; during that period and for the said purpose, there appears to be no contravention of any UNSC resolutions in force. In view of above, the case of the department in the impugned order that the subject vessel was prohibited for importation cannot be sustained.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
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