9911796707
TMI Blog1989 (5) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... Tonnage (for short N.R.T. ) as stipulated under Indian Ports Act, 1908 (for short the Act ) to Gross Registered Tonnage (for short G.R.T. ). According the petitioners, the change so effected by the said notification is contrary to the express mandate of the Act and as such the said, notification is illegal. It is further stated by the petitioners that the impugned notification which levies unreasonably exorbitant and arbitrary port dues contrary to the specific stipulations in the Act violates their fundamental rights under Articles 14 and 19(1) (g) of the Constitution. It is also stated by the petitioners that under Section 33 of the Act read with First Schedule thereof, port dues are to be levied per ton which expression is defined under Section 3(6) of the Act to mean a ton as determined or determinable by the rules for the time being in force for regulating the measurement of the net tonnage of British Ships. It is, therefore, abundantly clear that the Act contemplates the basis of levy of port dues to be on the basis of N.R.T. of a ship and not on its G.R.T. According to the petitioners, inasmuch as the impugned notification fails to take into account N.R.T. which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment of port dues is governed by Section 41 of the Indian Ports Act. It is further stated that Part I regarding Major Ports in the First Schedule to the Act uses the word ton in second column in entry of Paradip as vessels often tons and upwards . It denotes in itself that tons expression means gross tons. Rate of Port dues per ton shown at the top of column (3) denotes port dues to be charged on tons used in the second column. It shows that (he port dues are to be charged at rates notified by the Act within the maximum limit prescribed in column (3) per ton on the gross volume of the vessels in tons. 4. The short question that arises for determination in this application is as to what is the correct meaning and interpretation of the expression ton in the heading of the third column of the First Schedule to the effect that rate of port dues per ton . Does the expression ton mean N.R.T. or it includes both N.R.T. and G.R.T. If the expression ton means N.R.T. only then the impugned notification fixing the rate of port dues on the basis of G.R.T. is bad being in excess of the power conferred by the Act. 5. To appreciate the rival contentions, it will be appropr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rate of port dues per ton Due how often chargeable in respect of same vessel 1 2 3 4 XXX XXX XXX XXX XXX XXX XXX XXX Paradip Sea-going vessels of ten tons and upwards: (A) Foreign vessels Not exceeding Rupees five Whenever the vessel enters the Port (B) Coasting vessels (i) Steamers Not exceeding Rupees five Once in thirty days (ii) Sailing vessels Not exceeding Rupees five Once in thrity days xxx xxx xxx Xxx xxx xxx xxx Xxx The expression ton is defined in Section 3(6) of the Act as Ton means a ton as determined or determinable by the rules for the time being in force for regulating the measurement of the net tonnage of British ships . 8. Section 33 deals with levy of port dues. Relevant portion of Section 33 is set out hereunder : 33. (1) Subject to the provisions of sub-section (2), in each of the ports mentioned in the first schedule such port dues, not exceeding the amount specified for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with British Rules [Section 41(2)]. (c) where the tonnage cannot be determined as per the British Rules, then the conservator may estimate the tonnage in such manner as may seem to him to be fair and just [Section 41(3)]. 9. Mr. Harish Salve, learned counsel for the petitioners has submitted that Section 33 of the Act provides for levy of port dues. Such port dues as mentioned in the First Schedule shall be levied. According to him, the above Section provides that port dues shall be levied in each port mentioned in the First Schedule not exceeding the amount specified for the port in the third column of the Schedule on the rates fixed by the Government on the vessel entering the port. The amount specified in the First Schedule Part I (qua major ports) is on the basis of rate per ton . The expression ton is defined in Section 3(6) of the Act as meaning a ton as determined or determinable by the rules for the time being in force for regulating the measurement of net tonnage of British ships. According to Mr. Salve, the rules in force for measuring the net tonnage of British ships are the Merchant Shipping (Tonnage) Regulations, 1967 framed under the British Merchant Shippi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manner of calculation or grant exemption in certain circumstances with a limitation that the rates of port dues would not exceed the outer limit prescribed in the First Schedule of the Act. He has further submitted that the Act or the First Schedule does not say anything as to what would be the rate of port dues and whether it would be on N.R.T. or G.R.T. or Dead Weight of the ship/vessel. All these are left to be considered and decided by the Government. The Government can prescribe one rate or different rates in different ports or make uniform basis of collection or may adopt different basis. Section 37 of the Act has given to the Government to put different ports in different groups for all purposes. All these things are being regulated/done by Government through the notifications/orders. It is further submitted that the concept of N.R.T. for levy of port dues is not based on Act but based on previous notification. By the impugned notification the Government has changed the basis or charge of port dues from N.R.T. to G.R.T. 14. Mr. Anand has further submitted that the heading of the First Schedule of the Act shows that it is concerned only with the ports, vessel chargeable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or G.R.T. In case register is not available, then the tonnage of the vessel is to be ascertained in the manlier as provided in Section 41(1) or 41(2) or 41(3) of the Act. The provisions of Section 3(6) or Section 33 or Section 34 or the First Schedule will not be at all relevant on the point of ascertainment or recovery of port dues. 17. Mr. Harish Salve countered these arguments and submitted that Section 41 of the Act only provides for ascertainment of tonnage of the vessel liable to port dues. Such ascertainment is to be made according to various sub-sections of the above section. According to Mr. Salve, Section 41 is a machinery provision which confers certain powers on the conservator to enable him to assess the port dues. In conferring this power, there was no question of referring to gross or net tonnage. The purpose of Section 41 is to ascertain the true tonnage, and what is ascertained in Section 41 is both the gross and net tonnage since net tonnage cannot be ascertained without ascertaining the gross tonnage. The levy, however, will thereafter be in accordance with the charging provisions, i.e. Section 33 of the Act read with the First Schedule upon the net tonnag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether the expression ton means only N.R.T. under the Act or it covers both N.R.T. and G.R.T. 21. The term ton is defined in Section 3(6) of the Act as - ton means a ton as determined or determinable by the rules for the time being in force for regulating the measurement of net tonnage of British ships (emphasis supplied). The rules in force for measuring the net tonnage of British ships are Merchant Shipping (Tonnage) Regulations, 1967 (hereinafter referred to as 1967 Regulations ) framed under the British Merchant Shipping Act, 1965 read together with British Merchant Shipping Act, 1894. Part II-B of 1967 Regulations deals with determination of Registered Tonnage. Regulation 8 states that the registered tonnage of a ship shall be the tonnage obtained by deducting from its gross tonnage the tonnage of various spaces referred to in Regulations 9 and 10. It appears that registered tonnage and net tonnage are same thing. Rule 2(b) of The Merchant Shipping (Tonnage Measurement of Ships) Rules, 1960, framed under The Merchant Shipping Act, 1958, defines gross tonnage. According to Rule 2(j) the registered tonnage or net tonnage means the tonnage arrived at after mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of gross tonnage , then such construction will be against the provisions of Sections 3(6) and 33(1) as well as the First Schedule of the Act and would make the said provisions nugatory. Further, Section 41 is a procedural section and not a section where under levy of port dues is made. It provides for the mode of ascertainment of tonnage of vessel for port dues. Levy of port dues is on the basis of ton and such tonnage is to be ascertained in the manner as provided in Section 41 of the Act. Ascertainment of tonnage of vessel liable to duty is quite different from the levy of duty which is made under charging provisions of the Act, i.e. Section 33. In our view, Section 41 of the Act does not confer or control the power of levy of duty which is provided for in Section 33 of the Act read with the First Schedule thereof. 25. For all the reasons stated hereinbefore, the petition succeeds. The impugned Notification No. 390 dated 29th September, 1984 is, therefore, quashed to the extent that the notification levies port dues on the basis of G.R.T. 26. The only remaining question is refund of excess amount of port dues paid by the petitioners on the basis of G.R.T. under protes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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