ORDER
Dilip Kumar Seth, J.
1. The grievance of the petitioner is that the materials imported which are asbestos fibres have been charged under the category of hazardous goods on which double the scheduled rates are levied. At the initial stage normal rates were charged when realising the part of import duty. Subsequently, while realising the balance part, double the rate was charged for the part which was being released as well as the difference of double the rate on the part of the goods which were already released. However, the petitioner has paid under protest. Now, the learned Counsel for the petitioner contends that the petitioner is not liable to pay double the rates.
2. His grounds of attack are that the amendment of Section 19 of the Major Port Trust Act, 1873 makes it clear that the goods falling under the category hazardous/dangerous is to be published by the Trustees from time to time. Similarly, the goods falling under the category III and IV in the list of dangerous/hazardous cargo is to be published by the Trustees from time to time. The expression ‘published’, according to Mr. Banerjee, learned Counsel for the petitioner connotes publication through notification published in the Official Gazette. It relates to a fiscal matter. As such if there is any ambiguity or doubt it should go in favour of the petitioner. In the present case there is an absolute ambiguity since port trust is not able to show any such list to have been published. An internal communication is not meant for information of the public. Therefore, by no stretch of imagination it can be treated to be a publication. The next ground he has raised is that unless there is a list published in the manner it can be published in terms of the decision and the law laid down, there cannot be any addition to the list, even though declared by the International Maritime Organisation, since it is not available to the public under which the liability can be ascertained. Therefore, the charge of double the rate should be set aside and the petitioner should be declared liable to pay at the normal rate.
3. Mr. Mazumdar, learned Counsel for the respondents on the other hand contends that in view of the amendment of Section 19, even if there is no publication of a list, the inclusion of a goods as hazardous in the list of International Maritime Organisation (IMO), shall be deemed to be the publication for the purpose of Section 19. If an item is included in the list of IMO in that event the name can be treated as such even though there may not be any publication or it is not included in the list. According to him the decision cited by the petitioner does not apply in the facts and circumstances of the case. Therefore, the petition should be dismissed.
4. I have heard the respective counsel at length.
5. It appears that a notification was published in Official Gazette on 9th June 1983, which is Annexure 8 to the Affidavit-in-Opposition. The said notification relates to the scale of rates. The preamble of the notification prescribes that under Section 52 of the Major Port Trusts Act, 1963 this scale of rate (schedule of charges) of the Board of Trustees of the Port of Calcutta has been sanctioned by the Central Government to be effective from the date of publication in the Gazette. This scale of rate was amended for dangerous/hazardous goods which means any of the goods included in any of the nine classes of dangerous goods in the International Maritime Dangerous Goods (IMDG) issued by the International Maritime Organisation (IMO), London. Thereafter, it has categorised it in four categories of hazardous goods. In Section 19 of the scale of rates it had included in Clause B, hazardous goods shall be those falling in the respective category in the list published by the Trustees from time to time. There is nothing to show that the Trustees have ever published the said list. Mr. Mazumdar has also not claimed that any such list was published by the Trustees. On the other hand the list that was included in the Affidavit-in-Opposition is a list prescribed by the Trustees in the department. But Mr. Mazumdar had relied on the note appended to the amended Section 19 and contended that no further publication is needed, if the goods are included in the list of IMO. Even in the absence of any list the list of IMO will prevail.
6. Note 3 Clause III prescribes that any cargo classified as dangerous/hazardous by International Maritime Organisation, London but not included in the Trustees’ list in dangerous/hazardous cargo, shall be treated as dangerous/hazardous for the purpose of application of the said Section. Thus, in addition to the list that might be published by the Trustees, any item of cargo which is included in the list of International Maritime Organisation as dangerous/hazardous cargo, the same can be treated by the Trustees as such, even though it might not have been included in the list that might have been published by the Trustees. In the present case, in the absence of any list, it cannot be said that there was any such publication of list by the Trustees. On the other hand it has been shown from the documents produced which is taken on record, that Asbestos Fibres is included in the list of hazardous/dangerous cargo by International Maritime Organisation. Mr. Banerjee has not disputed that it is so included in the list of International Maritime Organisation. His basic contention is that without being included in the list of the Trustees, which is to be published, the charging section cannot be directed against the petitioner. On the basis of the list of International Maritime Organisation the charging section cannot be applied as against the petitioner.
7. Though the contention raised by Mr. Banerjee appears to be very attractive, but, it fact, having regard to the amendment of Section 19, as published in the Official Gazette on June, 1993, it seems there is little scope for harbouring any doubt with regard to it. By reason of the note appended in the said amendment which is part of the amended section itself, though the scale is required to be published in the Official Gazette by reason of the ratio laid down in the decisions cited by Mr. Banerjee, non-publication thereof would not stand in the way of treating such cargo as dangerous or hazardous. Note 3 Clause III makes it clear that even though it is not included in the list by the Trustees yet if it is a cargo falling within the list of International Maritime Organisation as dangerous/hazardous cargo, then it is open to the Trustees to treat the same for the purpose of levying charges under Section 19. What would be the impact or effect of the exclusion used in Clause B of Section 19 as amended on 9th June, 1993 is not necessary to be gone into in the present case.
8. In the result the writ petition fails and is accordingly dismissed.
9. Xerox certified copy of this order be made available to the learned Advocates appearing on behalf of the parties upon their usual undertakings.