2019 (7) TMI 1705 - HC - Customs

Validity of Public notice - Protocol of Treaty of Transit between the India and Nepal - by the public notice issued by the Commissioner of Customs (Port), Kolkata and under the pilot project a Managed Service Provider (MSP) selected by the Asian Development Bank was given the exclusive right to provide Electronic Cargo Tracking System (ECTS) for facilitating the transit of cargo to Nepal. - Delegation of power - Public notice No.08/2019 dated 25.01.2019 - HELD THAT - The copious notes have been made in the note-sheet with regard to feasibility of the project, the mode of carrying it out, its implementation and so on at various levels of the Central Government. Mr. Maiti appearing for the appellants submits that those note-sheets have been signed by the Finance Minister, Government of India - Regrettably, no matter how high the authority signing the note-sheets may be, a decision ought to have been taken in that regard strictly in accordance with Section 143AA of the said Act by the Board. If the procedure did not comply with it or fell short of it, it had no effect. Appeal disposed off.

Summary

Issues involved:
Interpretation of Section 143AA of the Customs Act, 1962 in relation to a pilot project for electronic cargo tracking system for container transport to Nepal.

Analysis:

Interim Order and Board's Empowerment:
The appeal arose from an interim order dated 12th June, 2019 in a writ application. The High Court decided not to delay the main writ application hearing and heard the appeal along with the stay application. The Court found no reason to interfere with the impugned order as it was interim in nature. It noted that the Board is empowered under Section 143AA of the Customs Act, 1962 to prescribe procedures and documentation for importers and exporters or a class of goods.

Pilot Project Compliance:
The Central Government proposed a pilot project for container transport to Nepal, which the Court deemed to fall under the purview of Section 143AA. The Court observed that a different procedure was necessary for the project, and it had to be made by the Board in compliance with the Act. The Court referred to a certification by the Deputy Commissioner of Customs regarding instructions from the Central Board of Indirect Taxes and Customs for the pilot project.

Note-sheets and Decision-making Process:
The Court noted that extensive note-sheets were made at various levels of the Central Government regarding the feasibility and implementation of the project. The appellant claimed that these note-sheets were signed by the Finance Minister of India. However, the Court emphasized that decisions must strictly adhere to Section 143AA of the Customs Act. If the procedure did not comply with it, the decision would have no effect.

Judicial Discretion and Affirmation:
The Court affirmed the discretion exercised by the Learned Single Judge in passing the impugned order. It stated that the observations made were tentative and upheld the correctness of the order. The Court disposed of the appeal and stay application, urging the expeditious disposal of the writ application by the Learned Single Judge, treating their observations as prima facie and keeping all points open.

Conclusion:
The High Court upheld the interim order, emphasizing the necessity for compliance with Section 143AA of the Customs Act in implementing the pilot project for container transport to Nepal. The Court affirmed the discretion of the Learned Single Judge and directed the expeditious disposal of the writ application while keeping all points open for further consideration.