TaxTMI 
TaxTMI 
1989 (5) TMI 236
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....been changed from 'Net Registered 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 ....
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....ose of payment of port dues. The 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 co....
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.... 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 port in the third column of the schedule as the (Government) directs, shall be levied on vessels entering the port and described in the second column of the schedule, but not oftener than the time fixed for the port in the fourth column of the schedule. (2) The Government may, by notification in the Official Gazette, alter or add to any entry in the first schedul....
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....on 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 Shipping Act, 1965 read together with British Merchant Shipping Act, 1894. Part II-B of these rules deals with the determination of the net tonnage of British ships. Rule 8 states that the Registered Tonnage (which, accordin....
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....t 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, rate of port dues and frequency of payment with reference to the provisions of Sections 1 and 33 of the Act. Reading of these three provisions, i.e. Sections 1 and 33 and First Schedule will show that it is for the Govern....
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....on 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 tonnage. 18. According to Mr. Salve, the opening words of Section 41 do not imply that it is a charging provision. It is not that all vessels that enter the port which are liable to port dues. The Section 34 contemplates the grant ....
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.... 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 making from the gross tonnage of a ship the allowances and deductions under the rules. Hence, registered tonnage and net tonnage is same thing. However, there is no dispute regarding this matter between the parties. 22. Therefore, t....