1989 (5) TMI 236 - HC - Customs

Issues Involved:
1. Legality of the Notification changing port dues from Net Registered Tonnage (N.R.T.) to Gross Registered Tonnage (G.R.T.).
2. Interpretation of the term 'ton' under the Indian Ports Act, 1908.
3. Authority of the Government to change the basis of port dues.
4. Refund of excess port dues paid under protest.

Issue-wise Detailed Analysis:

1. Legality of the Notification changing port dues from N.R.T. to G.R.T.:
The petitioners challenged the Notification No. 390 dated 29th September 1984, issued by the Ministry of Shipping and Transport, which changed the basis of charging port dues from N.R.T. to G.R.T. They argued that this change was contrary to the Indian Ports Act, 1908, and hence illegal. The petitioners claimed that the Act mandates the levy of port dues based on N.R.T., as defined in Section 3(6) of the Act, and the impugned notification should be quashed.

2. Interpretation of the term 'ton' under the Indian Ports Act, 1908:
The core issue was the interpretation of 'ton' in the context of port dues. The petitioners contended that 'ton' as per Section 3(6) of the Act means 'Net Registered Tonnage' (N.R.T.) and not 'Gross Registered Tonnage' (G.R.T.). They argued that the Act and the First Schedule explicitly require port dues to be levied on N.R.T. The respondents, however, argued that the term 'ton' in the Act does not exclusively refer to N.R.T. and that the Government has the authority to levy port dues on G.R.T. as well.

3. Authority of the Government to change the basis of port dues:
The respondents argued that under Section 33 read with Section 34 of the Act, the Government has the authority to prescribe port dues either on N.R.T. or G.R.T. They contended that the Act does not limit the Government to levy port dues only on N.R.T. The petitioners countered that the Government cannot change the basis of port dues from N.R.T. to G.R.T. without amending the definition of 'ton' in Section 3(6) of the Act.

4. Refund of excess port dues paid under protest:
The petitioners sought a refund of the excess port dues paid under protest since 1984, arguing that the dues were levied illegally based on G.R.T. The court, referencing various Supreme Court decisions, agreed that the petitioners were entitled to a refund of the excess amount paid.

Judgment:
The court held that the expression 'ton' in the heading of the third column of the First Schedule to the Act must be interpreted according to its definition in Section 3(6) of the Act, which means 'Net Registered Ton'. Consequently, the Government cannot levy port dues based on G.R.T. without first amending the definition of 'ton'. The impugned notification was declared ultra vires and quashed. The court also ordered the respondents to refund the excess amount of port dues paid by the petitioners on the basis of G.R.T. under the impugned notification.

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