BY AD vs P.F.ROSY

5.1 Clause 1.1 of Chapter I of SoR defines various terms. ‘Non-Port Berths’ is defined as any berth other than Port Berths, and ‘Port Berths’ WP(C) NO. 1992 OF 2021 9 are those listed under the 2.3.1 Schedule of Berth Hire charges and the SPM and LNG berths. ‘Single Buoy Mooring (SBM) or Single Point Mooring (SPM)’ are loading buoys anchored offshore and serve as a mooring point for tankers to (off) load gas and/or fluid products.

5.2 Chapter II of the Notification dated 22.10.2019 prescribes vessel-related charges, including Berth Hire Charges, Anchorage Charges, etc. Clause 2.3 prescribes Berth Hire Charges, and the Schedule of berth hire charges for berths is given in clauses 2.3.1 and 2.3.2, which are extracted hereunder:

2.3.1 Schedule of berth hire charges Sl. No Name of berths Rate per GRT per hour Coastal vessel (in Rs.) Foreign vessel (in US$) 1 2 3 4 5 UTL, SCB, Q2, Q3 Q1, NCB, BTP, Q5, Q6, Q7, Q10 Q8, Q9 Q4, STB, NTB, COT Container Berths at ICTT

0.1990

0.2191

0.2229

0.2290s

0.2328

0.006271

0.116905

0.117021

0.007216

0.117333

2.3.2 Schedule of Berth Hire Charges for other vessels/ floating crafts/ bodies WP(C) NO. 1992 OF 2021 10 Sl Particulars Rate per GRT per hour or part thereof No. Coastal vessel (in Rs.) Foreign vessel (in US$) 1 Inland Waterways Barges

0.2434

0.009104 Lash Barges: 2 3 (i) (ii) Berth hire for occupying any Fleeting charges when barges wait at fleeting areas

0.3270

0.1059 Floating Crafts/ bodies (i) (ii) Occupying port berths Not occupying port berths but remaining in port water

0.3270

0.1059

0.012233

0.003996

0.012233

0.003996

5.3 Similarly anchorage charges for vessels calling for berthing at Cochin Port are provided in clause 2.3.3 and anchorage charges for vessels not calling for berthing at Cochin Port are provided in clause

2.3.4, which are extracted hereunder:

2.3.3 Anchorage Charges for vessels calling for berthing at Cochin Port (Per GRT per hour) Sl. No. Description 1 2 3 4 Up to 48 hours at anchorage 48 hours – 96 hours 96 hours – 144 hours Beyond 144 hours Rate Free 10% of berth hire charges * 15% of berth hire charges * 20% of berth hire charges * WP(C) NO. 1992 OF 2021 11 * Berth hire charges shall be the rate applicable to that berth where the vessel is waiting to be berthed. Note: Port can exempt vessels from paying anchorage charges in exceptional circumstances including but not limited to lapses on part of the Port. Any waiver of anchorage charges will require approval from Chairman of the Port or an equivalent authority.

2.3.4 Anchorage Charges for vessels not calling for berthing at Cochin Port Sl. No. 1 2 3 4 Description Up to 48 hours at anchorage Coastal vessel (in Rs.) Free 48 hours – 96 hours 96 hours – 144 hours Beyond 144 hours

0.0233

0.0349

0.0466 Foreign vessel (in US$) Free

0.000733

0.001099

0.001466 The above charges are subject to a ceiling limit of 5 months of anchorage charges. Note: Any waiver of anchorage charges will require approval from the Chairman of the Port or an equivalent authority.

5.3.1 The note appended to the berth hire charges prescribes that the berth hire charges shall be collected for the period from berthing to un-berthing of the vessels. The berth hire at double the normal rates would be applicable for research vessels, supply vessels, pleasure yachts, oil rigs and other non-cargo vessels excluding WP(C) NO. 1992 OF 2021 12 Passenger Ships, Navy and Coast Guard Ships and Ships and Barges for bunkering. The Note also provides that double the normal berth hire will be applicable on cargo ships idling on the ship’s account for 24 hours or more during and after operations. Further, it is provided that no berth hire will be charged on the vessel after the expiry of four hours from the time the vessel signals its readiness to sail and there shall be a penalty equal to one day’s berth hire charges for a false signal. Furthermore, the time limit of four hours prescribed for cessation of berth hire shall exclude the ship’s waiting period for want of favourable tidal conditions or on account of inclement weather or due to the absence of night navigation facilities.

5.4 A reading of clause 2.3.3 of SoR provided the anchorage charges for vessels calling for berthing at Cochin Port. The anchorage charges levied under this clause in respect of vessels calling for berthing at Cochin Port is a percentage of the berth hire charges. Clause 2.3.4 of SoR deals with anchorage charges for vessels not calling for berthing at WP(C) NO. 1992 OF 2021 Cochin Port. 13

6. The three vessels in question had called for berthing at Cochin Port and were berthed at SPM (Single Point Mooring). As mentioned above, the SBM or SPM under sub-clause (xx) of Para 1.1 is a ‘Port Berth and the SPM and LNG berths’ but not listed under clause 2.3.1 ‘Schedule of Berth Hire Charges’. Thus, ‘vessels calling for berthing at Cochin Port’ at any one of the port berths mentioned in clause 2.3.1 attracts anchorage charges as per the rate prescribed under clause 2.3.3 whereas the anchorage charges prescribed under clause 2.3.4 would be applicable for ‘vessels not calling for berthing at Cochin Port’.

6.1 The petitioner’s vessels are not one of those which called for berthing on the berths mentioned in clause 2.3.1, and, therefore, no anchorage charges were applicable to them under clause 2.3.3. Thus, neither the rates prescribed for anchorage charges under clause 2.3.3 nor clause 2.3.4 could have been applied to collect the anchorage charges. In fact, the anchorage charges were not levied on them. WP(C) NO. 1992 OF 2021 14

6.2 The Cochin Port Trust realized this lacuna in the SoR that for the vessels calling for berthing at Cochin Port, which are not berthed on port berths defined in clause 2.3.1, no anchorage charges would be collected from them, inasmuch as the SPM and LNG berths which are included in the definition of ‘Port Berths’ under Clause (xvii) of clause

1.1 of Chapter I of notification dated 22.10.2019 do not carry berth hire charges unlike the other Port Berths specified in clause 2.3.1 of SoR. Thus, they would not attract the anchorage charges under clause 2.3.3 despite the vessel having called for berthing at Cochin Port for the reason that the SPM berth did not carry any berth hire charges. For the aforementioned reasons, the invoices issued in Ext.P1 to P3 did not have any anchorage charges in respect of the vessels in question either under clause 2.3.3 or clause 2.3.4 of SoR. The SoR came into effect thirty (30) days after the date of notification, i.e., 29.11.2019.

7. The Cochin Port Trust found it necessary to seek clarification in the SoR and get approval from TAMP to apply anchorage charges in WP(C) NO. 1992 OF 2021 15 these situations under clause 2.3.4. The Cochin Port Trust sought clarification from TAMP in its letter dated 23.03.2020. The Cochin Port Trust issued a Trade Circular dated 04.07.2020 deciding to collect anchorage charges with effect from 11.03.2020 on ad hoc basis, subject to the approval of TAMP, as follows: “a. For the vessels calling at Cochin Port and have been allotted non-Port berths or Port berths with no berth hire charges, anchorage charges will be levied as per para 2.3.4 of the SOR. b. In case of the vessels which have been shifted from berth to anchorage and further sailed from anchorage, the anchorage charges will be levied on the last berth where the vessel was berthed as per para 2.3.3 of the SOR. If the last berth is non port berth or berth no berth hire charges, then the anchorage charges shall be levied as per para 2.3.4 of SOR. c. In case the vessel is shifted from berth to anchorage and then back to berth, then the anchorage charges (post shifting from berth to anchorage) will be levied as per para 2.3.3 of the SOR applicable to the berth to which the vessel is shifted from anchorage. In the case of vessel shifting to a non-Port berth or a Port berth with no berth hire charges, the anchorage charges as per para 2.3.4 of the SOR will be applicable.”

7.1 The CoPT was of the opinion that anchorage charges were WP(C) NO. 1992 OF 2021 16 included in the SoR. Therefore, an Addendum dated 07.08.2020 was issued to the Trade Circular stating that “the date of implementation of a collection of Anchorage Charges may be read as 29.11.2019 (i.e., the date of implementation of revised SoR of CoPT) instead of 11.03.2020. Thereafter, the invoices in Exts. P5, P6 and P7 were issued to the petitioner by CoPT for anchorage charges on the three vessels mentioned above. These were ad hoc charges levied till the final approval was received from TAMP. The total amount of these invoices would come to Rs.68,02,395/-.

8. Vide Trade Circular dated 04.07.2020 the CoPT proposed to incorporate a legal fiction/deeming provision whereby ‘vessels calling for berthing at Cochin Port but berthed at Port Berths with no hire charges’ would be deemed to fall under the category of ‘vessels not calling for berthing at Cochin Port’, i.e., vessels anchored in the Outer Port Limits (OPL) for the purpose of levy of anchorage charges under clause 2.3.4 of the SoR. The amendment to the SoR was passed by the TAMP on 07.09.2020 and WP(C) NO. 1992 OF 2021 17 notified under Section 48 of the MPT Act on 06.10.2020. The clauses contained in the Trade Circular of CoPT dated 04.07.2020 were inserted under clause 2.3.4 of the SoR retrospectively with effect from 29.11.2019, i.e., the date on which SoR came into force.

8.1 Vide Clause 9.2 of the amendment, the CoPT’s decision to collect anchorage charges on an ad hoc basis as per the Trade Circular was also ratified by the TAMP on the grounds that the proposed amendments were of a clarificatory nature to remove ambiguity. Petitioners’ submission:

9. Mr P Deepak learned Senior Counsel assisted by Adv Sneha Rajiv, appearing for the petitioner submits that the amendment brought in by TAMP in the SoR with effect from 06.10.2020 to levy anchorage charges on vessels calling for berthing at Cochin Port but berthed at Port Berths with no hire charges would deem to fall under the category of vessels not calling for berthing at Cochin Port for the purpose of levy of anchorage charges under clause 2.3.4 of the SoR is not clarificatory but WP(C) NO. 1992 OF 2021 18 substantive charge levied on the vessels calling for berthing at Cochin Port but berthed at Port Berths with no hire charges.. Therefore, no anchorage charges could be levied on such vessels with retrospective effect, i.e., before the amendment was brought into force.

10. The three situations for bringing amendment by TAMP as proposed by the CoPT, in order to say that the amendments are only clarificatory in nature of clause 2.3.4, i.e., (i) vessels waiting at anchorage but not calling to be berthed at Cochin Port (those vessels will go from the Outer Roads only without coming inside); (ii) vessels waiting at anchorage to be berthed at non-port berth (vessels coming inside); and (iii) vessels waiting at anchorage to be berthed at Port Berth having no Berth Hire Charges (vessels coming inside), is completely fallacious inasmuch as the heading of clause 2.3.4 itself indicate that anchorage charges under this clause are applicable for vessels not calling for berthing at Cochin Port. Therefore, the vessels referred to in situations (ii) and (iii) mentioned above involve vessels coming inside, i.e., vessels WP(C) NO. 1992 OF 2021 19 calling for berthing at Cochin Port, and so, by no stretch of the imagination it can be said to fall within the ambit of clause 2.3.4. Only vessels falling in situation (i) can be legitimately said to be covered by clause 2.3.4. If the amendment in the SoR is not clarificatory, then it has to be only prospective and cannot be retrospective.

11. Thus, the petitioner seeks to quash the Trade Circular dated

04.07.2020 to the extent it seeks to collect anchorage charges with effect from 11.03.2020 on ad hoc basis. The petitioner also challenges Exts.P5, P6 and P7 invoices levying anchorage charges retrospectively. Respondent’s submission:

12. On the other hand, Mr Paulose C Abraham learned Counsel appearing for the Cochin Port Trust and TAMP has submitted that the amendment brought in in the Trade Circular dated 04.07.2020 along with the Addendum dated 07.08.2020 issued to the Trade Circular is only to bring clarity to the existing SoR so as to remove the ambiguity raised by the Port users, including the petitioner. There is no revision in the rates WP(C) NO. 1992 OF 2021 20 or retrospective application of the SoR as alleged. The SoR was implemented on 29.11.2019. The anchorage charges levied are not a new tariff item. The TAMP has the power to rectify ad hoc charges levied by the CoPT. Thus, these charges were inbuilt in the SoR, which came into effect from 29.11.2019.

12.1 The learned Counsel for the Cochin Port Trust further submits that the CoPT has paid the GST on the anchorage charges for which the impugned invoices in Exts. P5 to P7 were issued. Analysis:

13. The question which requires consideration of this Court is whether the amendment in SoR is clarificatory or substantive. If it is clarificatory, then the anchorage charges levied would be justified, and if it is substantive, i.e., charges are levied for the first time which was not contemplated in the SoR, will these be given retrospective operation?

14. It is apt to take note of a few judgments on what amendments can be said to be substantive and what amendments can be said to be WP(C) NO. 1992 OF 2021 21 clarificatory. Panchi Devi v. State of Rajasthan1

15. The Supreme Court, in this case, held that subordinate legislation is ordinarily prospective in nature. A right or liability which is created for the first time, cannot be given a retrospective effect. C J Paul v. District Collector2

16. The case pertains to the interpretation and/or application of the provisions of the Stamp Act 1899 as amended by the State of Tamil Nadu. The period of limitation so far as Section 47-A is inserted in the State of Tamil Nadu by Act 24 of 1967 is two years. A limitation period of four years was provided in terms of the proviso appended to Section 19-B(4) of the Act but the Statute which was applicable at the relevant point of time provided for invoking the period of limitation was four years from the date of registration. Sections 47-A and 19-B of the

5.1 Clause 1.1 of Chapter I of SoR defines various terms. ‘Non-Port Berths’ is defined as any berth other than Port Berths, and ‘Port Berths’ WP(C) NO. 1992 OF 2021 9 are those listed under the 2.3.1 Schedule of Berth Hire charges and the SPM and LNG berths. ‘Single Buoy Mooring (SBM) or Single Point Mooring (SPM)’ are loading buoys anchored offshore and serve as a mooring point for tankers to (off) load gas and/or fluid products.

5.2 Chapter II of the Notification dated 22.10.2019 prescribes vessel-related charges, including Berth Hire Charges, Anchorage Charges, etc. Clause 2.3 prescribes Berth Hire Charges, and the Schedule of berth hire charges for berths is given in clauses 2.3.1 and 2.3.2, which are extracted hereunder:

2.3.1 Schedule of berth hire charges Sl. No Name of berths Rate per GRT per hour Coastal vessel (in Rs.) Foreign vessel (in US$) 1 2 3 4 5 UTL, SCB, Q2, Q3 Q1, NCB, BTP, Q5, Q6, Q7, Q10 Q8, Q9 Q4, STB, NTB, COT Container Berths at ICTT

0.1990

0.2191

0.2229

0.2290s

0.2328

0.006271

0.116905

0.117021

0.007216

0.117333

2.3.2 Schedule of Berth Hire Charges for other vessels/ floating crafts/ bodies WP(C) NO. 1992 OF 2021 10 Sl Particulars Rate per GRT per hour or part thereof No. Coastal vessel (in Rs.) Foreign vessel (in US$) 1 Inland Waterways Barges

0.2434

0.009104 Lash Barges: 2 3 (i) (ii) Berth hire for occupying any Fleeting charges when barges wait at fleeting areas

0.3270

0.1059 Floating Crafts/ bodies (i) (ii) Occupying port berths Not occupying port berths but remaining in port water

0.3270

0.1059

0.012233

0.003996

0.012233

0.003996

5.3 Similarly anchorage charges for vessels calling for berthing at Cochin Port are provided in clause 2.3.3 and anchorage charges for vessels not calling for berthing at Cochin Port are provided in clause

2.3.4, which are extracted hereunder:

2.3.3 Anchorage Charges for vessels calling for berthing at Cochin Port (Per GRT per hour) Sl. No. Description 1 2 3 4 Up to 48 hours at anchorage 48 hours – 96 hours 96 hours – 144 hours Beyond 144 hours Rate Free 10% of berth hire charges * 15% of berth hire charges * 20% of berth hire charges * WP(C) NO. 1992 OF 2021 11 * Berth hire charges shall be the rate applicable to that berth where the vessel is waiting to be berthed. Note: Port can exempt vessels from paying anchorage charges in exceptional circumstances including but not limited to lapses on part of the Port. Any waiver of anchorage charges will require approval from Chairman of the Port or an equivalent authority.

2.3.4 Anchorage Charges for vessels not calling for berthing at Cochin Port Sl. No. 1 2 3 4 Description Up to 48 hours at anchorage Coastal vessel (in Rs.) Free 48 hours – 96 hours 96 hours – 144 hours Beyond 144 hours

0.0233

0.0349

0.0466 Foreign vessel (in US$) Free

0.000733

0.001099

0.001466 The above charges are subject to a ceiling limit of 5 months of anchorage charges. Note: Any waiver of anchorage charges will require approval from the Chairman of the Port or an equivalent authority.

5.3.1 The note appended to the berth hire charges prescribes that the berth hire charges shall be collected for the period from berthing to un-berthing of the vessels. The berth hire at double the normal rates would be applicable for research vessels, supply vessels, pleasure yachts, oil rigs and other non-cargo vessels excluding WP(C) NO. 1992 OF 2021 12 Passenger Ships, Navy and Coast Guard Ships and Ships and Barges for bunkering. The Note also provides that double the normal berth hire will be applicable on cargo ships idling on the ship’s account for 24 hours or more during and after operations. Further, it is provided that no berth hire will be charged on the vessel after the expiry of four hours from the time the vessel signals its readiness to sail and there shall be a penalty equal to one day’s berth hire charges for a false signal. Furthermore, the time limit of four hours prescribed for cessation of berth hire shall exclude the ship’s waiting period for want of favourable tidal conditions or on account of inclement weather or due to the absence of night navigation facilities.

5.4 A reading of clause 2.3.3 of SoR provided the anchorage charges for vessels calling for berthing at Cochin Port. The anchorage charges levied under this clause in respect of vessels calling for berthing at Cochin Port is a percentage of the berth hire charges. Clause 2.3.4 of SoR deals with anchorage charges for vessels not calling for berthing at WP(C) NO. 1992 OF 2021 Cochin Port. 13

6. The three vessels in question had called for berthing at Cochin Port and were berthed at SPM (Single Point Mooring). As mentioned above, the SBM or SPM under sub-clause (xx) of Para 1.1 is a ‘Port Berth and the SPM and LNG berths’ but not listed under clause 2.3.1 ‘Schedule of Berth Hire Charges’. Thus, ‘vessels calling for berthing at Cochin Port’ at any one of the port berths mentioned in clause 2.3.1 attracts anchorage charges as per the rate prescribed under clause 2.3.3 whereas the anchorage charges prescribed under clause 2.3.4 would be applicable for ‘vessels not calling for berthing at Cochin Port’.

6.1 The petitioner’s vessels are not one of those which called for berthing on the berths mentioned in clause 2.3.1, and, therefore, no anchorage charges were applicable to them under clause 2.3.3. Thus, neither the rates prescribed for anchorage charges under clause 2.3.3 nor clause 2.3.4 could have been applied to collect the anchorage charges. In fact, the anchorage charges were not levied on them. WP(C) NO. 1992 OF 2021 14

6.2 The Cochin Port Trust realized this lacuna in the SoR that for the vessels calling for berthing at Cochin Port, which are not berthed on port berths defined in clause 2.3.1, no anchorage charges would be collected from them, inasmuch as the SPM and LNG berths which are included in the definition of ‘Port Berths’ under Clause (xvii) of clause

1.1 of Chapter I of notification dated 22.10.2019 do not carry berth hire charges unlike the other Port Berths specified in clause 2.3.1 of SoR. Thus, they would not attract the anchorage charges under clause 2.3.3 despite the vessel having called for berthing at Cochin Port for the reason that the SPM berth did not carry any berth hire charges. For the aforementioned reasons, the invoices issued in Ext.P1 to P3 did not have any anchorage charges in respect of the vessels in question either under clause 2.3.3 or clause 2.3.4 of SoR. The SoR came into effect thirty (30) days after the date of notification, i.e., 29.11.2019.

7. The Cochin Port Trust found it necessary to seek clarification in the SoR and get approval from TAMP to apply anchorage charges in WP(C) NO. 1992 OF 2021 15 these situations under clause 2.3.4. The Cochin Port Trust sought clarification from TAMP in its letter dated 23.03.2020. The Cochin Port Trust issued a Trade Circular dated 04.07.2020 deciding to collect anchorage charges with effect from 11.03.2020 on ad hoc basis, subject to the approval of TAMP, as follows: “a. For the vessels calling at Cochin Port and have been allotted non-Port berths or Port berths with no berth hire charges, anchorage charges will be levied as per para 2.3.4 of the SOR. b. In case of the vessels which have been shifted from berth to anchorage and further sailed from anchorage, the anchorage charges will be levied on the last berth where the vessel was berthed as per para 2.3.3 of the SOR. If the last berth is non port berth or berth no berth hire charges, then the anchorage charges shall be levied as per para 2.3.4 of SOR. c. In case the vessel is shifted from berth to anchorage and then back to berth, then the anchorage charges (post shifting from berth to anchorage) will be levied as per para 2.3.3 of the SOR applicable to the berth to which the vessel is shifted from anchorage. In the case of vessel shifting to a non-Port berth or a Port berth with no berth hire charges, the anchorage charges as per para 2.3.4 of the SOR will be applicable.”

7.1 The CoPT was of the opinion that anchorage charges were WP(C) NO. 1992 OF 2021 16 included in the SoR. Therefore, an Addendum dated 07.08.2020 was issued to the Trade Circular stating that “the date of implementation of a collection of Anchorage Charges may be read as 29.11.2019 (i.e., the date of implementation of revised SoR of CoPT) instead of 11.03.2020. Thereafter, the invoices in Exts. P5, P6 and P7 were issued to the petitioner by CoPT for anchorage charges on the three vessels mentioned above. These were ad hoc charges levied till the final approval was received from TAMP. The total amount of these invoices would come to Rs.68,02,395/-.

8. Vide Trade Circular dated 04.07.2020 the CoPT proposed to incorporate a legal fiction/deeming provision whereby ‘vessels calling for berthing at Cochin Port but berthed at Port Berths with no hire charges’ would be deemed to fall under the category of ‘vessels not calling for berthing at Cochin Port’, i.e., vessels anchored in the Outer Port Limits (OPL) for the purpose of levy of anchorage charges under clause 2.3.4 of the SoR. The amendment to the SoR was passed by the TAMP on 07.09.2020 and WP(C) NO. 1992 OF 2021 17 notified under Section 48 of the MPT Act on 06.10.2020. The clauses contained in the Trade Circular of CoPT dated 04.07.2020 were inserted under clause 2.3.4 of the SoR retrospectively with effect from 29.11.2019, i.e., the date on which SoR came into force.

8.1 Vide Clause 9.2 of the amendment, the CoPT’s decision to collect anchorage charges on an ad hoc basis as per the Trade Circular was also ratified by the TAMP on the grounds that the proposed amendments were of a clarificatory nature to remove ambiguity. Petitioners’ submission:

9. Mr P Deepak learned Senior Counsel assisted by Adv Sneha Rajiv, appearing for the petitioner submits that the amendment brought in by TAMP in the SoR with effect from 06.10.2020 to levy anchorage charges on vessels calling for berthing at Cochin Port but berthed at Port Berths with no hire charges would deem to fall under the category of vessels not calling for berthing at Cochin Port for the purpose of levy of anchorage charges under clause 2.3.4 of the SoR is not clarificatory but WP(C) NO. 1992 OF 2021 18 substantive charge levied on the vessels calling for berthing at Cochin Port but berthed at Port Berths with no hire charges.. Therefore, no anchorage charges could be levied on such vessels with retrospective effect, i.e., before the amendment was brought into force.

10. The three situations for bringing amendment by TAMP as proposed by the CoPT, in order to say that the amendments are only clarificatory in nature of clause 2.3.4, i.e., (i) vessels waiting at anchorage but not calling to be berthed at Cochin Port (those vessels will go from the Outer Roads only without coming inside); (ii) vessels waiting at anchorage to be berthed at non-port berth (vessels coming inside); and (iii) vessels waiting at anchorage to be berthed at Port Berth having no Berth Hire Charges (vessels coming inside), is completely fallacious inasmuch as the heading of clause 2.3.4 itself indicate that anchorage charges under this clause are applicable for vessels not calling for berthing at Cochin Port. Therefore, the vessels referred to in situations (ii) and (iii) mentioned above involve vessels coming inside, i.e., vessels WP(C) NO. 1992 OF 2021 19 calling for berthing at Cochin Port, and so, by no stretch of the imagination it can be said to fall within the ambit of clause 2.3.4. Only vessels falling in situation (i) can be legitimately said to be covered by clause 2.3.4. If the amendment in the SoR is not clarificatory, then it has to be only prospective and cannot be retrospective.

11. Thus, the petitioner seeks to quash the Trade Circular dated

04.07.2020 to the extent it seeks to collect anchorage charges with effect from 11.03.2020 on ad hoc basis. The petitioner also challenges Exts.P5, P6 and P7 invoices levying anchorage charges retrospectively. Respondent’s submission:

12. On the other hand, Mr Paulose C Abraham learned Counsel appearing for the Cochin Port Trust and TAMP has submitted that the amendment brought in in the Trade Circular dated 04.07.2020 along with the Addendum dated 07.08.2020 issued to the Trade Circular is only to bring clarity to the existing SoR so as to remove the ambiguity raised by the Port users, including the petitioner. There is no revision in the rates WP(C) NO. 1992 OF 2021 20 or retrospective application of the SoR as alleged. The SoR was implemented on 29.11.2019. The anchorage charges levied are not a new tariff item. The TAMP has the power to rectify ad hoc charges levied by the CoPT. Thus, these charges were inbuilt in the SoR, which came into effect from 29.11.2019.

12.1 The learned Counsel for the Cochin Port Trust further submits that the CoPT has paid the GST on the anchorage charges for which the impugned invoices in Exts. P5 to P7 were issued. Analysis:

13. The question which requires consideration of this Court is whether the amendment in SoR is clarificatory or substantive. If it is clarificatory, then the anchorage charges levied would be justified, and if it is substantive, i.e., charges are levied for the first time which was not contemplated in the SoR, will these be given retrospective operation?

14. It is apt to take note of a few judgments on what amendments can be said to be substantive and what amendments can be said to be WP(C) NO. 1992 OF 2021 21 clarificatory. Panchi Devi v. State of Rajasthan1

15. The Supreme Court, in this case, held that subordinate legislation is ordinarily prospective in nature. A right or liability which is created for the first time, cannot be given a retrospective effect. C J Paul v. District Collector2

16. The case pertains to the interpretation and/or application of the provisions of the Stamp Act 1899 as amended by the State of Tamil Nadu. The period of limitation so far as Section 47-A is inserted in the State of Tamil Nadu by Act 24 of 1967 is two years. A limitation period of four years was provided in terms of the proviso appended to Section 19-B(4) of the Act but the Statute which was applicable at the relevant point of time provided for invoking the period of limitation was four years from the date of registration. Sections 47-A and 19-B of the