The Major Port Trust Act, 1963 (38 of 1963) the Tariff Authority for Major Ports hereby disposes of the representation of Ms. Manor Floatel Limited about classification of their completely assembled

REGD. NO. D. L.-33004/99

The Gazette of India

EXTRAORDINARY

PART III—Section 4

PUBLISHED BY AUTHORITY

No. 180 ] NEW DELHI, THURSDAY. SEPTEMBER 5, 2002/BHADRA 14, 1924

(1)

2787 GI/20022 THE GAZETTE OF INDIA: EXTRAORDINARY PART III—SEC. 4] 3 4 THE GAZETTE OF INDIA: EXTRAORDINARY PART III—SEC. 4] 5 6 THE GAZETTE OF INDIA: EXTRAORDINARY [PART III—SEC 4) 7 8 THE GAZETTE OF INDIA: EXTRAORDINARY [PART in—SEC. 4] 9 2787 GI/2002—210 THE GAZETTE OF INDIA EXTRAORDINARY [PART III—SKC. 4) 11 n THE GAZETTE Ofr INDIA: EXTRAORDINARY [PART HI—SEC. 4] n

TARIFF AUTHORITY FOR MAJOR PORTS

NOTIFICATION

New Delhi, the 5ih September, 2002

I T f i i^ 7T 7 '"rPonshe'^dis'""!''f'>'"^"">atoofM/s. ManorF.oa.CL^Wabou Kolkata Port Trust as in the Order appended hereto.

SCHEDULE

Case No. TAMP/4fl/2002 - KOPT

M/s. Manor Floatel Limited

Applicant

V/3.

The Kolkata Port Trust

Respondent

O R D E R (Passed on this IT day of August 2002)

This case relates to a representation received from M/s. Manor Floatel Limited (MFL) about classification of their completely assembled floatel as 'Non-Self Propelled Craft' for levy of vessel- related charges by the Kolkata Port Trust (KOPT).

2,1 The facts of the case as Indicated In the representation are summarised below:

(i). The Completely Assembled Hull (CAH), "Gold Float" Is a 'non-self- propelled craft' which has no engine. The craft cannot proceed to the river or high seas without being towed from one point to another.

(ii). The Ship Acquisition Licensing Committee under the (then) Ministry of Surface Transport (in 1987) rejected the application made by the MFL for permission to import a floatel stating that the floatel did not fall within the definition of a Ship given under the Merchant Shipping Act 1958, a decision which was communicated to all concerned including the DG Shipping.

(iii). An application for the Import Licence was thereafter made through the Ministry of Tourism in 1988; and, the Import Licence for the CAH to be converted to a floating hotel, was issued by the Ministry of Commerce.

(iv). The CAH, built in Singapore, and towed by a tug Smit Lankawi arrived at a location 400 meters north of Gwalior Monument on river Hooghly on 30 June 1995 and was moored at the 'Man-O-War' jetty with two mooring buoys fore and aft.

(v) Despite the 'on principle' clearance received from the Army Authorities, (intimated to it through the Government of West Bengal) the mooring of the CAH at the 'Man-O-War' jetty and setting up of a floatel within the blue zone of the Army was vehemently protested by the Army Authorities to the KOPT.

(vi) The CAH was thereafter shifted suo moto by the KOPT initially on 2 July 1995 to Berth No. 9 Kidderpore Dock and again on 6 July 1995 to Berth No. 18, Kidderpore Dock without either consulting or intimating It. The CAH Is still kept by the KOPT at 18 Kidderpore Dock, which is in a dilapidated condition without any electricity/water/security/other facilities.

(vii). Thereafter, the land department of the KOPT allotted an alternate site at No. 9 Calcutta jetty beyond the blue zone of the Army for setting up of the floatel.

(viii) The KOPT is refusing to shift the floatel from 18 Kidderpore Dock to No. 9 Calcutta jetty till huge amount wrongly claimed by them is paid upfront, which will make the entire project economically unvlable.

(ix) As per the existing Scale of Rates (SOR) [item no. 26.2(iii)] of the Kolkata Dock System, the stayal charges for 'Non-Self Propelled Craft' are prescribed as Rs. 100/- per craft per day, whereas the KOPT is billing it at the rate applicable to a coastal ship.

(x) The KOPT was requested to adjust tne dock dues (from a sum ot fts.^.ja.C¹⁰' r-lr< hV 't and lying in their Suspense Account since 6 December 2000) provisionally based on .tern Nu .*, * ,w _, ,he S 0 R- s n in U i0 GAH from 13 Kidderpore Dock to No. 9 Calcutta |etty; and "refer the matter to the arbitration so that the floatel can commence operation and save jobs of 224 persons already recruited. The KOPT has, however, not responded.

2.2. In this backdrop, the MFL has prayed for a ruling that the CAH, which Is a 'Non-Self Propelled Craft', be charged dock dues for stay at 18 Kiduerpore Dock as per the item No. 26.2(iii) of the SOR.

3.1. In accordance with the procedure prescribed, a copy of the representation was forwarded to various concerned representative bodies of port users and the KOPT for comments. The comments received are summarised below:

Indian National Shipowners' Association (INSA)

(i). The principle adopted by the KOPT for levying the tariff applicable to the coastal vessels on the non-self propelled craft is not clear. Perhaps, the coastal vessel tariff is charged keeping in mind the earning potential and scope of the craft and the unconventional utility of the jetty, which is not right.

(ii). To encourage the entrepreneurial spirit, the tariff as per Item 26.2 of the SOR be charged from the MFL. A suitable rate may be negotiated between the KOPT and the MFL or fixed by the TAMP and be applied for a period of two years after the arrival of the floatel at the Calcutta Jetty No. 9. Keeping in mind the viability of the project, the costs already incurred and the losses suffered till date, all past period dues be waived or atrnost be charged as per item No. 26.2 of the SOR. (It is assumed that till arrival at the Calcutta jetty No. 9, the craft has remained idle as an unused dumb barge).

Kolkata Port Trust (KOPT)

(I). Shifting of the vessel to No. 9 Kidderpore Dock was done with prior arrangement with the then agent of the MFL, M/s. Patvolk Limited at their instance and was not done suo moto as alleged.

(ii). The shifting of the CAH to No. 18 Kidderpore Dock was done with the knowledge/acquiescence of the MFL as will be evident from its letter dated 22 July 1995. The MFL also confirmed the accrued charges for the barge Gold Float at No. 18 Kidderpore Dock Including the shifting charges from No. 9 to No. 18, being payable by it without complaining against the shifting.

(ill). The MFL has requested to shift the vessel from No. 18 to No. 9 Calcutta Jetty, however, such shifting Is possible only after payment of the requisite legitimate dues to the port and on production of necessary statutory certificates In respect of the vessel for inspection by the HM (P).

(iv). The berth hire charges payable as per the provisions of the existing SOR has been claimed from the MFL since the vessel has occupied the berth; however, till date no payment has been made and an amount of Rs.66,61,017/- is due upto 16 May 2002.

The charge of Rs. 100 per craft quoted by the MFL is meant for stay inside the docks for boats/flats/launches above 20cum. and not for occupation of any berth. The CAH was provided the berth and all the associated facilities and is considered a coastal vessel because It is not engaged in foreign trading.

(v). The fact of the CAH being a vessel has been established as per the definitions of the term vessel given under the Port Rules 1944, Port Bye Laws 1949 and Indian Ports Act 1908 as indicated below:

(a). Port Rules 1944- "Vessel" includes every description of water craft other than sea plane on the water, used or capable of being used as a means of transportation on the water.

(b). Port Bye Laws 1949- "Vessel" Includes any ship, barge, boat, raft or craft or any other thing whatever, designed or used for the transport upon water of passengers or goods.

(c). Indian Ports Act 1908- "Vessel" Includes anything made for the conveyance (mainly by water) of human beings or of property.

(vl). The CAH Gold Float may not be a ship but she has remained as a vessel and hence levy of charges on the basis of a coastal vessel is fully justified. On arrival of the vessel from overseas, she was declared as a foreign-going vessel and the charges were paid as such. Now she has ceased to be a foreign-going vessel; and, hence, is treated as a coastal vessel.

(vii). The MFL has been enjoying the benefit of alongside berth all these years in order to undertake and complete the construction of its 4 star hotel thereon. Had the vessel been berthed in the middle of the river or at a buoy mooring it would have been extremely difficult to undertake such a massive work.

(viii). Till the charges levied by the KOPT are paid, it shall not be possible to shift the vessel to No.9 Calcutta Jetty.

3.2." A copy each of the comments received from the INSA and the KOPT was forwarded to the MFL and the KOPT as feed back information,

3.3. The Calcutta Chamber of Commerce and Industry, the Bengal Chamber of Commerce and Industry and the Association of Shipping Interests In Calcutta have not furnished their comments so far.

4. The MFL has responded to the comments furnished by the INSA and the KOPT. The points made by it are summarised below:

On the comments of the Indian National Shipowners' Association

(i). It agrees with the views expressed by the INSA. The Authority is requested to adjudicate and determine the most economic rate (at an early date) keeping in mind the viability of the project in view of the enormous loss, already incurred and accruing on daily basis; and, instruct the KOPT to shift the Gold Float from No. 18 Kidderpore dock to No.9 Calcutta Jetty.

On the comments of the Kolkata Port Trust

(I), The KOPT has admitted that "Gold Float" Is a Barge and according to Item 26 of the Scale of Rates, Dock dues will be the same whether the said barge Is alongside a berth or moored at a buoy so long the craft Is non-self propelled.

(II). The KOPT has enclosed a letter dated 24 July 1995 of M/s. Patvolk who were Agents of Tug "Smit Lankawl" which towed CAH Gold Float and confirmed the billing arrangement, whereas the CAH Gold Float was shifted on 2 July 1995. Any request for shifting is made by the Agent prior to the shifting and not 22 days after the shifting.

(iii). On 6 July 1995 also, the shifting of the CAH Gold Float was done suo motu by the KOPT from No.9 Kidderpore Dock to No. 18 Kidderpore Dock whereas the MFL has written the letter to the KOPT on 22 July 1995, which deals with accounting procedure and not a request for shifting.

(Iv). As regards the definition of the vessel as per the Port Rules 1944 / Port by Laws 1949 / Indian Ports Act, 1908 all of which defines a vessel as any thing made for the conveyance (mainly by water) of human beings or of property, the CAH Gold Float is a non-self propelled craft which Is neither made nor ever intended for conveyance of human beings or of property. It Is a capital goods Item, which remains stationary to be used for offshore accommodation and therefore, does not fall under the definition of a vessel.

The Ship Acquisition Licensing Committee, Ministry of Shipping, Government of India has also ruled that CAH Gold Float does not fall under the Merchant Shipping Act whereas any coastal vessel or any vessel whatsoever must come under the Merchant Shipping Act prior to proceeding the high seas.

The charges for the stay of the CAH Gold Float, hence, must be charged as per item No.26.2(lii) of Scale of Rates of the KOPT.

(v). The statement of tno KOPT that when the vessel arrived from overseas, it was declared as a foreign-going vessel and charges were pair) as such and since Gold Float has ceased to be a foreign-going vessel, it has been treated as a coastal Vessel and charged accordingly, is factually incorrect and strongly denied and disputed.

The tug Smit Lankawi, which towed the CAH Gold Float to Calcutta as cargo was a foreign registered tug and as such had been declared as a foreign-going vessel which returned to Singapore after delivering the CAH Gold Float at Calcutta.

The CAII Gold !~!GCH was treated ao oaiyu uf lh" lowing iuy and was cieared accordingly uy the Custom Authorities under a Bill of Entry for home consumption.

The DGFT, Government of India allowed import of CAH Gold Float as a capital goods item, which arrived India as cargo of foreign tug Smit Lankawi.

Had CAH Gold Float been a vessel, the same could not have been cleared by Custom Authorities under Bill of Entry for home consumption which is filed with Custom Authorities for clearance of cargo only.

(vi). The KOPT has wrongly quoted the Scale of Rates as STAYAL CHARGES FOR BOATS / FLATS / LAUNCHES; whereas, the Scale of Rates read : BOATS / FLATS / BARGES AND MOTOR LAUNCHES and the word barge has been missed out.

(vli). The Calcutta Floating Hotel is an NRI Project and the first of its kind in India. Due to non- cooperative attitude and unreasonable demand of the KOPT for the last six years, the project has incurred massive cost overrun and huge delay in implementation of the project. Apart from being a world class tourism infrastructure project, it has also generated direct and indirect employment to about 500 persons. The project cannot bear any more expenditure like payment of premium to the extent of Rs.1.42 crores .or unreasonable demand for the Dock Dues to the extent of Rs.67 lakhs approximately.

Any further delay and cost overrun will render the project sick and economically unviable. It is requested that the CAH may be classified as a Non Self Propelled Craft and the Dock Dues for the Stayal at 18 Kidderpore Dock be charged under Clause-26.2(iii) of the existing schedule of charges of the KOPT.

5.1. A joint hearing in this case was held on 24 May 2002 at the KOPT premises in Kolkata. At the joint hearing, the following submissions were made:

M/s. Manor Floatel Limited (MFD

(i). We have explained the details in our petition.

(li). (a). The crux of the matter relates to defination of a 'vessel'. They say it is a case of coastal vessel.

(b). According to us, it Is not a vessel at all. The vessel was imported as a cargo.

(c). It is a non-self-propelled craft, permanently positioned at the port. We are entitled to the rate as given at item 26 of the SOR.

(iii). (a). We did not ask for a berth. The KOPT decided suo motu. They should have specified the implications. We went by the rates considered relevant in the SOR.

(b). The berth Is not actually a berth at all. It Is In shambles. There is really no 'opportunity cost' to be lost.

(iv). The SOR has a specific rate for non-self-propelled vessel. That will apply to us. How can other considerations be raised now?

(v). We do not deny that we have been at 18 KPD. We are ready to Day all the 'applicable' charges. vVe wanted the kOPT to tell us what is payaDie. ihey are appiyinp w ^- We want the TAMP to adjudicate. - ~-18 THE GAZETTE OF INDIA .EXTRAORDINARY [PART III -SEC. 41 (vi). Please give us time to file a final written submission.

Kolkata Port Trust (KOPT)

(i). Anything that floats is a vessel. It may not always be a ship.

(ii). There was no ambiguity. Both the 'tug' and the 'vessel' were charged marine charges as per the notified Scale of Rates.

(iii). (a). Please see their letter dated 22 July 1995. See paragraph (4). They knew the implications.

(b). It suited their convenience to be at Berth No.18. That's why they agreed to shift.

They never protested.

(Iv). (a). The KOPT had allow&d a plot of land. The understanding was that they would use the adjoining waterfront to construct the floatel and operate. Instead, they chose to go ahead with the construction at a different place.

(b). The Army objected to their presence there. The MFL, therefore, asked for a place in the port area.

(c). They came to Calcutta Jetty No.9. Subsequently, they shifted to Berth No.18.

(d). Berth No.18 was used finally to construct the super structure. We lost the opportunity to earn the berth hire. Therefore, we have to charge the berth hire.

(e). item 26 of the Scale of Rates is not at all applicable. The vessel is still occupying •he berth.

(v). 1 ney occupied the berth as long as it suited their purpose. Now, they say it is not a berth at •oli. How can they behave like this? We must be allowed to recover the charges duly notified for that berth.

(vi). If the vessel sinks, it will interfere with our operations. There is a high-risk element. This appeal must also be kept in view.

(vii). Thflv came from Singapore. It was treated as a foreign-going vessel. They paid accordingly. If now they feel, it cannot be a foreign-going vessel, they can at best opt for a coastal vessel category. Nothing beyond that,

5.2, At the joint hearing, the MFL was given time till 7 June 2002 to file a final written submission witn a copy simultaneously forwarded to the KOPT. The KOPT was allowed to furnish their comments on the written submission made by the MFL by 15 June 2002.

6. In adcilion to reiterating the points made by it earlier and submitting the relevant documents, ihe MFL nas stated the following:

(i). Thors win be no loss in terms of opportunity cost by the KOPT for utilisation of the Berth No.'i3 K'lidfcrpor© dock ss out of 6 ship-breaking berths at the Kidderpore dock, only 2 and maximum 3 "re bfllng utilised at one time by the ship-breakers in the last seven years. TJwe oi'fl no takers for the remaining berths due to recession in the ship-breaking industry in Eastern India. The earnings for utilisation of 18 Kidderpore dock for stay of its non-self- propelleJ craft shall be the best revenue thai the KOPT can earn.

(ii). In case of any doubt in respect of classification of the CAH, than the benefit of such doub't must go in favour of the applicant based on the case laws - Collector Vs Lotus Inks, 1996 (87) E.L.T. 580 (S.C.) and STP Limited Vs Collector, 1998 (97) E.L.T. 16 (S.C.). (a). Collection V/s. Lotus Inks

In the absence of evidence to the contrary it is not possible to hold that the item falls within the specified categoiy. r^en if two views ?r? possible, the or,3 in 'avoui uf the assesse would guide the decision.

(b). STP Ltd. V/s. Collector

If there is any doubt In the construction of any provision of taxing statute, that doubt must be resolved in favour of the assesse.

7. The KOPT has responded to the written submission made by the MFL The points made by it in addition to reiterating their earlier comments are summarised below:

(i). The spirit of the two letters dated 24 July 1995 from the agent of the MFL and dated 22 July 1995 from the MFL will clearly indicate that the shifting of the vessel from the Man-of-War jetty to 9 KPD / 18 KPD was done with their consent and there was not a whimper of protest or disagreement anywhere in these letters at that material time or even subsequently.

As per letter dated 24 July 1995 of the agents of the MFL, the CAH Gold Float was handed over to the MFL at 9 KPD. M/s. Patvolk paid all the port charges for bringing the vessel from Sandhead to Man-of-War jetty and from Man-of-War jetty to 9 KPD, in terms of the provisions of the then Scale of Rates and also, the MFL was aware of the fact that Gold Float had been shifted from Man-of War jetty to 9 KPD and from 9 KPD to 18 KPD.

(ii). Berth No. 18 KPD is situated by the side of the ship-breaking berths and Is pre-eminently suitable for the construction work of the vessel as the same is situated in a rather quiet environment. The Petitioner took full advantage of the situation and constructed many decks over the initially flat top vessel. Throughout the material time, the Petitioner never faced any inconvenience at the berth as a result of which it was possible to construct the aforesaid decks and he never made representation for shifting of the vessel either elsewhere inside or outside the dock and thus, all the representations being made now, are only to deprive the KOPT of Its rightful revenue.

(iii). If Gold Float remains stationary at one place for commercial purpose or otherwise, that does not change her basic character and as long as she floats on the water, she will remain a vessel, whether stationary or otherwise.

(iv). The communication referred to by the Petitioner, relates to importation of a floatel and not a barge. The vessel has been converted to a floatel using the berth facilities at the 18 KPD.

Presuming but not admitting that Gold Float Is not a ship, she will still remain a vessel. The term 'Vessel' is used in a rather wide sense in the same way the word 'Vehicle' Is used. If a vehicle is kept stationary at a place for any length of time e.g., a caravan, It does not change the status of it being a vehicle and the same remains liable to pay all statutory dues including road tax, registration, etc.

(v). The CAH Gold Float is rightly classified as a vessel which is capable of being used as a means for transportation for human being or material/cargo even if not by self propulsion but by tug - the same way as she arrived from Singapore. She can, therefore, also be transported across the seas even now.

The vessel has occupied 18 KPD berth since July, 1995 and since then availing the benefit of the berth and shore facilities for construction of the floatel. Had the vessel not occupied 18 KPD berth, the Kolkata Port could have used the same either for loading / unloading operation of cargo or even for ship breaking operation for which the berth hire charges as per the Scale of Rates would have been realised.

(vi). Dock Stayal Charge is levied on boats, flats, barges and motor launches entering and staying within the impounded dock without being allotted any specific berth. In other words, those vessels while paying the Dock Stayal Charges, generally, double-bank against a bigger vessel for over side loading / unloading operation. As Gold Float was allotted and has been occupying 18 KPD berth, the berth hire charges are leviable and not the Dock Stayal Charge, as contented by the Petitioner.

(vii). As per the Scale of Rates, the berth hire charges are leviable on occupation of the berth by the vessel Irrespective of other berths remaining vacant or not. The deciding factor for levy of berth hire in this case is not whether the KOPT could have utilised the 18 KPD berth othArwise or not.

(viii). There is no doubt about the classification of the CAH Gold Float and the KOPT has rightly classified the CAH as a coastal vessel.

8, With reference to the totality of information collected during the processing of the case, the foi'cvvlng position emerges:-

vi). The matter under adjudication is about classification for the purpose of levying charges by the Pc.-t of a completely assembled hull used as a floatel which occupied a berth at the KOPT. The Applicant has also made references about shifting of his floatel by the KOPT from the Man-O-War jetty to a berth Inside the impounded Dock. This Authority will not go into the controversy of the alleged suo motu shifting of the floatel since it is not relevant and is extraneous to the issue of classification of the floatel for the purpose of levying port charges.

As has been pointed out by the KOPT, the floatel could not be kept at the Man-O-War jetty In the face of an objection raised by the Army Authorities. In any case, ordering berthing arrangements within Its area of jurisdiction Is a prerogative of a Port Trust. Generally, a vessel cannot pick and choose Its preferential area of operation within the port. Incidentally, the floatel was reportedly berthed at the Kidderpore Dock sometime in 1995. If this arrangement did not suite the Applicant, he could have Immediately thereafter requested the Port Trust to pull out his floatel from the docks. There is nothing on record to show that the Applicant made any such request to the KOPT.

(ii). The Applicant has cited a decision of the (then) Ministry of Surface Transport ruling that the floatel does not fall within the definition of a ship. It Is noteworthy that this decision has been conveyed with reference to an application made by the Applicant seeking permission to import the floatel as a ship. The Applicant has also pointed out that the floatel has been imported as a cargo. On the other hand, he has also claimed that his floatel must be treated as a non-propelled craft. There is an Irreconciled mutual contradiction in the arguments of the Applicant.

Be that as It may, as has correctly been pointed out by the KOPT, Dock Stayal Charge prescribed in its Scale of Rates is leviable on boats, flats, barges and launches staying within the impounded dock without being allotted any specific berth. It is not for any floating body other than a ship entering Into the docks and that too placet! alongside a berth. In recognition of this position, it is relevant here to recall, at the time of the last general revision of the KOPT Scale of Rates, this Authority did not approve the proposal of the Port for not levying any berth hire on LASH barges. Since such barges occupy a berth at the time of cargo operation, this Authority held that they should pay the applicable berth hire charges; and, the Port was also advised to propose separate fleeting charges for the LASH barges when they fleet elsewhere after the cargo operations.

(iii). While the Applicant has contended that the floatel Is not a vessel, the KOPT has quoted extensively from different Rules and Acts to buttress its argument that the floatel may not be a ship but It will still remain a vessel. The KOPT's argument that the floatel may remain stationery but it is capable of being used as a means of transportation of passengers or goods remains unchallenged. Also, the example of a caravan cited by the KOPT appears to be very much relevant to the context.

(Iv). Irrespective of whether the floatel is a vessel or not, the undisputed fact available on record is that it has occupied a berth of the KOPT. As has been pointed out by the KOPT, the Applicant has chosen to carry out construction of superstructure on the floatel at the berth of the KOPT without shifting to a waterfront allowed for this purpose by the KOPT. This shows that the stay of the floatel at the berth has been under the Applicant's own volition. Again, as correctly pointed out by the KOPT, the commercial activity of constructing a superstructure on the floatel would not have been possible, If the KOPT had allowed the vessel to be at mid-stream without providing operational back up area which in this case is the berth in reference. Since the floatel has occupied a berth of the Port and carried out a commercial activity at that, it Is not unreasonable for the KOPT to claim applicable berth hire charges.

As has been observed earlier, the floatel was placed at the berth In 1995 and the Applicant has agitated the Issue of payment of berth hire to the Port after a lapse of good 7 years. The argument that the Port has not informed the Applicant about the implications of placing the floatel at the berth is misplaced since the Applicant has not shown any evidence that he has been denied an access to the published Scale of Rates of the Port Trust, which is a public document notified in the Gazette of India. If he Is ignorant about the port tariffs or has doubts about the applicability of the Scale of Rates in his case, he should have verified the position from the Port Trust. It Is not practically feasible for a Port to appraise its users individually In advance of the financial implications of the services provided by it.

The complaint of the Port that the Applicant used the facilities when It suited him and raised objections at the time of making payment for the facilities used does not appear to be without any substance.

(v). One of the points agitated by the Applicant for not levying berth hire charges is about the condition of the berth allotted to his floatel and the absence of opportunities for its alternative use. The KOPT has, however, argued that this berth has been and is capable of being allotted for cargo handling and If not it can be used atleast for ship breaking purposes. It is to be recognised that the Issue of opportunity cost does not arise here at all. The levy Imposed by the KOPT Is for occupation of its berth by the floatel. If the argument of the Applicant is admitted then before levying each and every charge, a Port Trust may have to convince Its users that the facilities provided have an alternate usage. This arrangement is not at all practicable and logically not required also. A service provider can demand compensation for the services provided/facilities extended.

(vi). The Applicant has correctly cited a ruling of the Supreme Court setting out a principle that if two views are possible, the one favorable to the assesse should guide the decision.

In the case In hand, the action of the KOPT to levy rates applicable for coastal vessels on the floatel in reference has definitely given rise to a doubt. It is relevant here to mention that coastal vessels enjoy a concession in the tariffs over the foreign-going vessels, In view of the Government policy to promote coastal shipping. The floatel is not engaged In any coastal shipping activity; and, going by the true spirit of the concession envisaged by the Government policy, it will not perhaps be justifiable to extend such concession to the floatel in reference. This Authority has already ordered that the status of a vessel, as evidenced by its certification must govern its classification as coastal or foreign-going for the purpose of levying the port charges. The floatel obviously does not have any such certification showing It as a coastal vessel; or for that matter, a foreign-going vessel. This position definitely gives rise to a doubt over the applicability of the relevant rate of berth hire. As set out in the ruling of the Supreme Court quoted by the Applicant, the action of the KOPT in treating the floatel as coastal vessel for the purpose of levying berth hire charges is in favour of the Applicant since berth hire rate for a coastal vessel is less than that leviable on a foreign- going vessel of corresponding size.

9. In the result, and for the reasons given above, and based on a collective application of mind, this Authority does not find any force in the representation of M/s Manor Floatel Limited and, accordingly rejects it.

S. SATHYAM, Chairman

[ADVT m/IV/143/2002/Exty.] Printed by the Manager. Govt. of India Press, Ring Road, Mayapuri, New Delhi-110064 and Published by the Controller of Publications, Delhi-110054.