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On achieving a level of turnover Rebate (Rs. Per tonne) 6.25 times of nominal plot capacity 1.00 6.50 times of nominal plot capacity

2.00 6.75 times of nominal plot capacity 3.00 7.00 times of nominal plot capacity 4.00 7.25 times of nominal plot capacity 5.20 7.50 times of nominal plot capacity 6.40 7.75 times of nominal plot capacity 7.60 8.00 times of nominal plot capacity 8.80 Appellant had challenged the levy of surcharge of Rs.8.80 per tonne being illegal, without jurisdiction null and void as it was not co- related to any service rendered by the Board and that the levy was falling outside the purview of Section 48 of the Act. The High Court rejected the said challenge relying upon a judgment of this Court in M/s. V.S. Dempo & Co. Pvt. Ltd. Vs. Board of Trustees and Another [1994 Suppl. (2) SCC 349]. An exporter had earlier challenged the levy of surcharge with graded system of rebates in a writ petition before the High Court. The writ petition was dismissed and the order of the High Court was upheld in appeal filed by the writ petitioner. In view of the fact that the power to levy surcharge had already been upheld by this Court the counsel for the appellant did not argue this point before us. Appellant's case further is that in the event the validity of levy of surcharge is upheld, the action of the Board for refusing full rebate to the appellant and in collecting surcharge of Rs.7.80 is illegal, arbitrary, unreasonable, contrary to the Act and Rules and Regulations as well as Article 14 of the Constitution on the ground that the surcharge of Rs.7.80 per tonne has been levied without taking into consideration lapses on the part of the Board as well as non-consideration of shortfall in export of the appellant's due to the factors beyond their control. The appellant had also raised dispute relating to the extent of alleged storage plot and the turnover required to be achieved by the appellant during the year to be eligible for full rebate under Notification dated 26th October, 1983. According to the appellant it was entitled to the full rebate on 8,66,192 metric tonnes. The lapses pointed out on the part of the Board were stated to be failure of its obligation by providing barge unloaders to the appellant, commensurate with the appellant's export commitments, insufficient barge allocation, break-down of reclaimer no.2, port and dock workers strike etc. According to the appellant, considering the plot capacity of 1,08,274 tonnes, the turnover of 8,66,192 metric tonnes would entitle the appellant a full rebate at the rate of Rs.8.80 per tonne which comes to Rs.62,46,548.10 paise, instead of Rs.7,09,835/-, which the Board had agreed to pay. As per appellant, it had in fact exported through berth no.9, 10,52,910 tonnes and even if nominal capacity of the plot was taken as 1,50,000 tonnes, the appellant would be entitled for full rebate at the rate of Rs.8.80 per tonne, having turned over its plot of 1,50,000 tonnes. This calculation was based upon the appellant's plea that they must be deemed to have exported through berth no.9, 3,14,000 tonnes, which the appellant was prevented from loading through berth no.9 due to insufficient barge allocations, break-down of reclaimer no.2 and port and dock workers strike, which amounted to 90,000 tonnes, 70,000 tonnes and 1,54,000 tonnes respectively, thus totalling 3,14,000 tonnes. Alternatively, the appellant claim that the Board had committed breach of statutory duty by failing to provide adequate barrage unloading timings as prescribed by the regulations and by refusing to permit them to load its vessels by trans shippers when the reclaimer of the Board was broken down.