Statutory definition controls port dues levy; notification could not switch assessment from net to gross registered tonnage.

The charging schedule under the Indian Ports Act was construed to use "ton" as net registered tonnage, because the statutory definition governed the levy and the procedural tonnage-measuring provision could not change the basis of assessment. A notification substituting gross registered tonnage therefore exceeded the executive's power and was invalid to that extent. Because the excess port dues were collected under an ultra vires levy and paid under protest, the payers were entitled to restitution of the excess amount.

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Issues: (i) Whether the expression "ton" in the First Schedule to the Indian Ports Act, 1908, for levy of port dues meant net registered tonnage and not gross registered tonnage, and whether the notification altering the basis of levy to gross registered tonnage was valid. (ii) Whether the petitioners were entitled to refund of excess port dues paid under protest on the basis of gross registered tonnage.

Issue (i): Whether the expression "ton" in the First Schedule to the Indian Ports Act, 1908, for levy of port dues meant net registered tonnage and not gross registered tonnage, and whether the notification altering the basis of levy to gross registered tonnage was valid.

Analysis: The charging provision in section 33, read with the First Schedule, fixes port dues at a rate "per ton", and the term "ton" is defined in section 3(6) of the Act as a ton determined by the rules for measuring the net tonnage of British ships. Section 41 is only a procedural provision for ascertaining tonnage and does not authorise a change in the basis of levy. On that construction, the statutory expression "ton" in the Schedule refers to net registered tonnage, and the Government could vary the rate within the statutory ceiling but could not substitute gross registered tonnage as the basis of levy without altering the Act.

Conclusion: The levy of port dues on the basis of gross registered tonnage was held to be without authority of law and the notification was invalid to that extent.

Issue (ii): Whether the petitioners were entitled to refund of excess port dues paid under protest.

Analysis: Once the notification adopting gross registered tonnage was held ultra vires, the excess collections made under protest were recoverable. The payments were made pursuant to an invalid levy, and the petitioners were entitled to restitution of the excess amount collected.

Conclusion: The petitioners were held entitled to refund of the excess port dues paid under protest.

Final Conclusion: The writ petition succeeded, the impugned notification was struck down to the extent it adopted gross registered tonnage, and the respondents were directed to refund the excess dues collected under that levy.

Ratio Decidendi: Where a statute defines the unit for a charging schedule, the executive may vary the rate only within the statutory framework and cannot alter the basis of levy through notification; a procedural provision for measuring tonnage cannot override the charging provision and the statutory definition.

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