TaxTMI 
TaxTMI 
2008 (2) TMI 643
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....nvolved in the business as a steamer agent for various shipping lines and ship operators in handling vessels which carry cargo from different ports in the world. 3. The first respondent is constituted under the Major Port Trusts Act, 1963 (MPT Act for short) to administer New Mangalore Port Trust, which renders various types of services to the ship owners and other port users as contemplated under Section 42 of the MPT Act. The second respondent Tariff Authority for major ports is the authority constituted under Section 47A of the MPT Act and the authority has the power vested in it to impose and recover the rates at ports as contemplated under Chapter VI of the MPT Act. The category of charges that arise for consideration in these petitions is only with regard to port dues pilotage and berth hire charges, more particularly the latter two types of charges since the process to recover the same as short-levied earlier has lead to the dispute between the parties. 4. The said service charges are linked to the capacity of the vessels and was being expressed in terms of Gross Registered Tonnage (GRT). In so far as oil tankers are concerned, after the oil was offloaded, to ens....
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....RGT is available only in respect of Port dues, while other service charts to be levied in respect of pilotage and berth hire charges is on GRT. It is contended that port dues does not encompass all charges but it relates to only the fee for the vessels to enter the port and is separately indicated in Section 49B and 50A of the MPT Act, while pilotage and other services are indicated in Section 49A of the said Act and as such they are different classes of levy. The benefit of levy on RGT basis is limited only to port-dues as per the tariff fixed by the authority. This is said to be clearly indicated in the earlier order of TAMP dated 15-3-2000 itself, but due to doubts raised by order certain port authorities, it has been clarified in detail by order dated 5-10-2002. Prior to the said clarification, the first respondent herein also erroneously implemented the order dated 15-3-2000 as being applicable to all types of levy. Therefore, on noticing this error, the short levy in respect of pilotage and berth hire charges are being recovered. Though at the earlier instance, notice under Section 56 of the MPT Act was not issued, this Court had reserved liberty and as such notice has been i....
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....e that port dues does not include all other charges but it is a class of levy by itself. Therefore, the use of the expression 'port dues' in the order dated 15-3-2000 will relate only to 'port dues' as a category of levy and would not include pilotage charges and berth hire charges. This would have been so only it was specifically indicated by the TAMP itself. On the other hand, the TAMP by its order dated 5-10-2002 has clarified that it is port dues only, which would make it clear that the levy on RGT basis is only in respect the entry fees and for all other levies, it would be GRT basis. 9. This being the position, the next question would be regarding the contention of Sri G.K.V. Murthy and Sri Bijai Sunder, learned counsel regarding the correctness or otherwise of the clarificatory order dated 5-10-2002 that levy on RGT basis applies only to port dues despite noticing in the earlier portion of the discussions that DG (Shipping) has clarified that it will apply to all fees levied on the basis of tonnage. In order to appreciate the said contention, a perusal of the clarificatory order would indicate the clarification by DG (Shipping) is issued to the CVPT and not to TAMP as ....
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....d. Before considering the question with regard to limitation, certain contentions raised by Sri Bijai Sunder, learned counsel for one of the petitioners is to be noticed. It is the contention of the learned counsel that the show cause notice issued itself is not sustainable for the reason that it has been issued by the Financial Adviser and Chief Accounts Officer while Section 56 of the MPT Act provides that such a notice could be issued when the Board is satisfied that any charge leviable under the Chapter has been short-levied. Hence it is contended that the show cause notice itself is without competence. Even the delegation is not as contemplated under Section 21 of the Act. It is further contended that even the resolution passed is not signed. It is also contended that no personal hearing was provided to the petitioner. Sri Shantha Raju, learned senior counsel however sought to justify this aspect by contending that the MPT Act does not provide for any personal hearing. Secondly it is contended that it is the Board which has resolved to issue show cause notice with regard to the earlier short levied bills and had authorized the Chairman to take further action in the matter and ....
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....any, made by the person to whom notice is issued under sub-section (1), determine the amount due from such person and thereupon such person shall pay the amount so determined." Sub-section (1) of Sec. 56 of the MPT Act provides with regard to issue of notice to the person who is liable to pay such charge which was short levied. Further the proviso to the said section states that no such notice shall be issued after expiry of two years when the charge is short-levied from the date of payment of the charge. Since several bills pertaining to the petitioners herein has been issued in both these cases, I do not propose to examine each of the bills to find out as to whether the notice has been issued within time with reference to each of the bills, but it is necessary to examine the legal position regarding applicability of the two years period in the present case, keeping in view that the parties were before this Court in the earlier round of litigation. The first respondent is attempting to take shelter under the order passed by this Court in the earlier Writ Petition to contend that the show cause notice in respect of the bills has been issued within the period of two years as provid....
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....o issue such notices in accordance with law and in compliance with Sections 56 of the MPT Act and no other right was reserved. In any event, in the Writ Petition the petitioners had ultimately succeeded in having the bills which were issued contrary to the provisions of Section 56 of the MPT Act quashed. In fact, on this question, the decision relied on by Sri G.K.V. Murthy, learned counsel for the petitioner in the case of Metal Forgings and Another v. Union of India - AIR 2003 SC 291 = 2002 (146) E.L.T. 241 (S.C.) has stated as follows : "Based on this interim order, learned counsel for the revenue contended that the revenue could not have issued a show cause notice during the currency of the said interim order, therefore, by virtue of the Explanation to S.11A, the period of limitation gets frozen during the said stay order. We cannot accept this argument either. It is a settled position in law that unless and until there is a specific injunction/stay granted by a competent court which restrains an authority from issuing the required notice, merely because some interim order is made, the authorities empowered to issue such notice cannot refrain from issuing the required notice w....