9911796707
TMI Blog2000 (9) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... Nepal for its customer M/s. Atlanta Trading Co. Ltd. The third appellant M/s. Worldwide Freight are freight forwarder. The raw silk sent by M/s. Natts have been confiscated by the Commissioner on the ground that the documents in respect of the consignment, which were sent by the foreign supplier to the Nepalese customer through the bank were not in respect of the goods which had landed at Calcutta port and for its onward destination to Nepal. The adjudicating authority has concluded that the consignment was meant for Worldwide Freight, who had attempted to clear the same into India. 4. For understanding the issue, it is necessary to reproduce the facts in brief, which are common to all the three appellants and have been put forward by all the three appellants. 4.2 On May 28, 1999, M/s. Atlanta Trading Co. Ltd. entered into a contract with M/s. Natts Worldwide Singapore (Ptc.) Ltd. for supply of 9000 kgs. of raw silk @ $ 18 per kg. Proforma invoice was raised by M/s. Natts Worldwide, Singapore and the goods were required to be shipped within June, 1999. Letter of credit was opened by M/s. Atlanta on 16-6-1999 in favour of M/s. Natts Worldwide Ltd., Singapore. As per M/s. Natts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the said bill of lading inasmuch as the same particulars as were obtained in the earlier proforma bill of lading dated 30-6-1999, which was never issued by them, were incorporated in the new bill of lading. On the basis of said bill of lading dated 22-7-1999 various documents like invoices, packing list, certificate of origin etc. were prepared and sent for collection to Bank of Kathmandu on 24-7-1999. The payment was also received by the foreign supplier on 3-8-1999. 4.4 The goods were despatched to Singapore on 27-7-1999 and was taken over by M/s. Advance Container Lines for onward transmission to Calcutta. They issued a transhipment bill of lading on 10-8-1999 incorporating the same particulars as the Pacific Lines bill of lading. The goods reached Calcutta on 14-8-99 and import manifest was filed on the basis of Singapore transhipment bill of lading, which named the Chinese freight forwarder as the shipper and its agent M/s. Worldwide Freight as the consignee. The customs authorities on 18-8-1999 directed to amend/suppliment manifest. The Worldwide Freight wrote a letter to M/s. Seatech enclosing Chinese freight forwarder message dated 18-8-1999 giving particulars of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physically verified by the customs authorities and found to tally in all respects with the appellants documents including bale numbers mentioned in the packing list. In these circumstances the adjudicating authority was not justified to hold that the consignee was M/s. Worldwide Freight who have tried to deflect the goods to India. He submits that there was not an iota of evidence on record to sustain the above allegation. On the contrary the show cause notice itself observes that M/s. Worldwide Freight cannot be the consignee of the goods in question. Arguing further he submits that the Commissioner has no jurisdiction or authority to confiscate the Nepal cargo and should have allowed the same to be taken to Nepal in terms of Indo-Nepal treaty. Drawing our attention to the various documents he submits that the goods were shipped from China clearly mentioning that the same were meant for Nepal. The name of Worldwide Freight being shown as consignee in service bills of lading issued by the other agencies were not important inasmuch as the cargo was to be delivered against GDL bill of lading. He also draws our attention to the e-mail dated 20-1-2000 received from the Chinese freigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. In furtherance to their arguments all the three appellants also placed strong reliance upon the Calcutta High Court judgment, dated 4-7-2000 passed in the case of U.O.I. Ors. v. Kumar Trading Co. Ltd. Ors. - 2000 (121) E.L.T. 18 (Cal.), which is to the effect that the customs authorities do not have any jurisdiction to issue show cause notices for confiscation of the Nepal, bound cargo and to confiscate the goods under the provision of Section 111 of the Customs Act in view of the Indo-Nepal treaty. Relying upon the above judgment of the Calcutta High Court a prayer was made by all the three appellants to release the goods in favour of M/s. Atlanta. 9. Shri V.K. Chaturvedi, ld. SDR appeared for the Revenue and drew our attention to the reasoning of the adjudicating authority for holding the goods liable to confiscation and imposition of penalty upon the third appellant. 10. We have given our careful consideration to the arguments advanced from both the sides and gone through the impugned order. All the three appellants have prayed for directions to release the confiscated goods in favour of M/s. Atlanta Trading Co. which is a Nepalese customer and purchaser of the raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agree with the appellants that the raw silk in question is required to be ordered to be released in favour of M/s. Atlanta Trading Co. Ltd. for its onward movement to Nepal. We order accordingly. 10A. We also find that the Hon ble Calcutta High Court in their judgment dated 4-7-2000 referred by the appellants have observed that where goods are meant for shipment to Nepal and there was an international treaty between Nepal and Govt. of India and under that treaty goods meant for Nepal shall be permitted after the customs transit declaration is made, for which a detailed procedure has been laid down and on that basis the customs authorities could not have seized these goods. The goods are being imported by a Nepalese party through Calcutta under the transit treaty of the India and Nepal Govt. The Hon ble High Court after appreciating the various provisions of the Customs Act, 1962 (in particular Section 111(d) and Section 111(o) and the various clauses of the Nepal-Indo treaty held that the customs authorities, on a bare apprehension that the goods may be used for consumption in India, cannot issue a show cause notice for confiscation of the goods. In fact in that case, it was ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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