Judgment :- Patherya J. By this application the applicant Angsley Investments Ltd. seeks dismissal of Admiralty suit no.9 of 2001 and for return of bank guarantee. The case of the petitioners is that vessel M.V Lima-I on the day the maritime claim of the plaintiff-respondent arose was not a ship under Section 2 of the Admiralty Court’s Act, 1861. In fact it sailed in the territorial waters of India as scrap which will be evident from the Bill of Entry issued in 2001. The said vessel was purchased from the defendant no.3 on the basis of an agreement dated 20th July, 2001. Breaking and dismantling are evident as no loading or discharging of cargo is mentioned therein. The petitioner supplied bunkers to M.V Brave Eagle and another sistership of the defendant. For non-payment of sums on account of such bunkers M.V Lima-1 was arrested. Customs Tariff 8908 deals with tariff payable in respect of ships imported for breaking, such sums have been paid. No order of arrest has been passed in respect of M.V Lima-1. The only order passed is an order of injunction. Therefore, in the absence of an order of arrest the said vessel was entitled to sail in the territorial waters of India. The importation date will be effective from the date of bill of lading as held in (1999) 8 SCC 744 . Reliance has also been placed on the unreported decisions of M.V. Laxmi and M.V. Saaba so also 2007 109 BLR 1875. Therefore, orders be passed as sought. Counsel for the plaintiff-respondent in opposing the said application submits that the petitioner’s case is that the vessel was imported as goods for breaking, scrapping and dismantling purpose, by one M/s. Jain Udyog. Although it has been alleged that Customs Duty was paid no particulars thereof has been given, nor does the same appear from the bill of entry. The order of arrest was vacated upon furnishing of bank guarantee and, thereafter, the vessel has been dismantled. The order of injunction was passed on 14th August, 2001 by the Bombay High Court restraining the owners from dealing with, encumbering or alienating the said vessel. The vessel was not imported as goods for dismantling purposes. It arrived as a foreign vessel and continued to remain so. The Bill of Entry is filed for assessment of Customs Duty. The order of injunction was passed on 14th August, 2001 by the Bombay High Court restraining the owners from dealing with, encumbering or alienating the said vessel. The vessel was not imported as goods for dismantling purposes. It arrived as a foreign vessel and continued to remain so. The Bill of Entry is filed for assessment of Customs Duty. It is not known when the Bill of Entry was filed and the date of importation cannot be equated with the date of Bill of Entry. No particulars of beaching or payment of Customs Duty is evidenced. The foreign vessel was registered in Turkey and there are no documents to evidence transfer to Mercury Shipping Corporation from whom the defendant no.3 purchased the foreign vessel. In the instant suit, on 21st September, 2001, an order of injunction has been passed. Such order is subsisting. The Bombay High Court, prior to 21st September, 2001, also passed an order of injunction. The foreign vessel arrived in India on 9th April, 2001 and an order of arrest was passed by the Calcutta High Court before 1st August, 2001. The Bombay High Court passed an order of injunction on 14th August, 2001 and the second order of injunction was passed by the Calcutta High Court on 21st September, 2001. The agreement dated 20th July, 2001 does not state that the ship was for demolition purpose. The Bombay High Court in its judgment dated 08-11-2006 as held that the vessel continued to be registered in Istanbul and not St. Vincent & Grenadines. “Ship” has been defined in Section 2 of the 1861 Act. From the Bill of Entry it will appear that the goods imported was for home consumption. The tariff to be paid on breaking of ships is laid down in Item 8908. “Ship” has also been defined in para 5.36 of the Handbook on Exim Policy, 1997-02. For the purposes of assessing duty under the Bill of Entry procedures laid down in the various sections of the Customs Act is to be followed which has not been done in the instant case. Reliance is placed on (1999) 8 SCC 744 . By a departmental clarification each part of the ship for dismantling purposes is to be treated separately. No particulars of such assessment has been given and no payment of duty evidenced. The defendant no.3 has no locus standi to file this application. Reliance is placed on (1999) 8 SCC 744 . By a departmental clarification each part of the ship for dismantling purposes is to be treated separately. No particulars of such assessment has been given and no payment of duty evidenced. The defendant no.3 has no locus standi to file this application. By agreement dated 20th July, 2001 the property has passed to the purchaser and the defendant no.3 can have no interest in the foreign vessel. The certificate of registration has also not been de registered and in the Bombay High Court judgment dated 8th November, 2006 the agreement with Mercury has been doubted. By virtue of Clause 18 (3) of the agreement the defendant no.3 was to submit a deletion certificate. From the Bill of Entry it appears that on 19th September, 2001 the assessment of duty was in progress. No order has been passed under Section 47 of the Customs Act, 1962 regarding Assessment of Duty nor payment evidenced. There is also no evidence of beaching or importation under Section 2(23) or 2(27) of the Customs Act. On 21st September, 2001 as the ship was not de registered, it continued to be a vessel and was not goods and the findings in respect of Issue 12 of the Bombay judgment is relied on. M/s. Jain Udyog in its affidavit affirmed on 3rd October, 2001 has admitted that till the filing of such affidavit no Customs Duty had been paid. Therefore, no order be passed on this application. In reply, counsel for the petitioners submits that the petitioner, namely, the defendant no.3 was added as party in the suit on 9th March, 2005. It is only thereafter that the petitioner furnished a bank guarantee, therefore, ownership of vessel is irrelevant. On 21st September, 2001 a suit was filed and whether on that day the ship was a vessel or goods is all that has to be determined. The intent to demolish existed and has been implemented in August, 2001. The vessel arrived in the Port of Calcutta for demolition purposes. Neither the Bombay High Court nor the Calcutta High Court passed any order of arrest, only an order of injunction was passed against the said vessel. Registration is not relevant as no permission is needed from the Registry Office for scrapping purposes and on the date of importation was chattel. Neither the Bombay High Court nor the Calcutta High Court passed any order of arrest, only an order of injunction was passed against the said vessel. Registration is not relevant as no permission is needed from the Registry Office for scrapping purposes and on the date of importation was chattel. The flag and registry are not relevant for disposal of vessel. The order of the Bombay High Court in November, 2006 is of no assistance to the respondent. Therefore, orders sought be passed. Having considered the submissions of the parties by this application, the petitioner viz. the defendant no.3 seeks dismissal of suit and return of Bank Guarantee furnished by it. To grant such relief the only question that needs to be considered is whether on 21st September, 2001 M.V. Lima-I was a vessel or not. An agreement dated 20th July, 2001 has been relied on. From a reading of the said agreement it appears that the said vessel was sold to M/s. Jain Udyog for demolition purpose and the deletion certificate would be issued within two months from the date of delivery. The said vessel sailed into the territorial waters of India in April, 2001 and, initially, an order of arrest was passed by the Calcutta High Court. On 14th August, 2001 the vessel was restrained from leaving the port by the Bombay High Court. The said order was not challenged nor was it contended by the applicant before the Bombay High Court that such order could not have been passed as the vessel was no longer a vessel but was a chattel by virtue of the agreement dated 20th July, 2001. In fact in deciding Issue 12 which is set out below :- “12. Whether the plaintiffs prove that M.V.LIMA I was the sister ship of the 1st Defendant vessel at the time of the grant of arrest of LIMA I on 31st October, 2001?” In the decree dated 8th November, 2006 it was specifically held that the said vessel on 14th August, 2001 was owned by Lima, a Turkish Company in Istanbul, Turkey and, therefore, was a sister-ship of M.V. Lima-II. If this finding has been accepted by the applicant who was defending the Bombay proceedings, as it alone had filed a Written Statement and it has not been contended by the applicant that the decree of 8th November, 2006 was challenged by it, leads to the conclusion that Lima, the Turkish Company, was the owner of the vessel on 14th August, 2001. If this be true then the petitioner’s case of importation in September, 2001 or that the vessel was imported as goods and the Bill of Entry relied upon for such purposes cannot be accepted. M/s. Jain Udyog, on the other hand, in its affidavit of 3rd October, 2001 has stated that the Bill of Entry was filed for dismantling purposes. The relevant paragraph of the said affidavit is set out below :- “The present owner duly submitted to the Customs of Calcutta the requisite Bill of Entry in respect of the said Vessel for dismantling, for the estimation of the customs duty thereon and the same is pending adjudication.” If on 14th August, 2001 Lima, the Turkish Company, was the owner of the vessel on the same analogy on 21st September, 2001 it was also the owner as the agreement with M/s. Jain Udyog is dated 20th July, 2001. Although M/s. Jain Udyog sought vacating of the order dated 21st September, 2001 on being directed to furnish security for such release, no security was furnished by it. From a reading of the Bill of Entry it appears that such Bill of Entry was filed on 12th September, 2001 and duty was payable under sub-heading 8908 of the Customs Tariff Rules. Such tariff was not paid till 3rd October, 2001 as according to M/s. Jain Udyog’s own averment in its affidavit affirmed on 3rd October, 2001 the adjudication was pending. Therefore, the reason for filing the Bill of Entry as given by M/s. Jain Udyog on a parity of reasoning is acceptable than that given by the applicant but for it to constitute “chattel” tariff had to be paid as per sub-heading 8908 of the Customs Tariff Rules. This was not paid on 21st September, 2001 nor till 3rd October, 2001 when an affidavit was filed by M/s. Jain Udyog. Therefore, legally the owners were entitled to navigate the “vessel” as the “vessel” did not cease to be a “ship” on 21st September, 2001. This was not paid on 21st September, 2001 nor till 3rd October, 2001 when an affidavit was filed by M/s. Jain Udyog. Therefore, legally the owners were entitled to navigate the “vessel” as the “vessel” did not cease to be a “ship” on 21st September, 2001. For dismantling purposes permission is to be granted for beaching by the Port Authorities. No letter for grant of such permission has been disclosed nor such permission granted nor No-Objection Certificate for beaching issued by the Customs Authorities. The vessel has also not been de-registered from the flag-state registry and continues to be registered as a “ship”. The cases relied on by the petitioners do not come to its aid as in “M.V. Saaba” customs duty had been paid and vessel beached for demolition. In the instant case both the aforesaid facts are absent. For all the said reasons this application merits no order and is dismissed. LATER : Cross-order for discovery within six weeks from date; inspection forthwith thereafter. The parties will be at liberty to seek early listing of the said admiralty suit.