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TMI Blog1984 (12) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... /81 1699/80 dated 16th Sept., 1980 75/78 dated 3rd January, 1980 ₹ 17,055/- CD(T) CAL-9/80 889/90 dated 12th May, 1980 280/78 dated 20th July, 1979 ₹ 12,060/- CD(t) CAL-59/82 Cal-Cus-946 dated 12th Nov., 81 178/78 dated 28th November, 1980 ₹ 11,155/- 2. The facts of the three appeals are identical and I am discussing the brief facts of one case only in respect of Appeal No. C.D(T)CAL-50/81. The appellant is Steamer Agent and there was a short-landing of one case machine, Line No. 109, ex. M. V. Mohneverett, Lot No. 478/78. As per certificate of Port Trust of Calcutta, the Steamer Agents were called upon to account for and explain why penal action under Section 116 of Customs Act, 1962, should not been taken against them for the short-landing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad held that if there was short-landing. Section 116 of the Customs Act was attracted irrespective of the Treaty and had rejected the appeal of the appellant. Being aggrieved from the aforesaid order and two other orders passed by the learned Appellate Collector of Customs, the appellant has come in appeal before this Court. 3. Shri Ajit Roy Mukherjee, the learned Barrister has appeared on behalf of the appellant. He has reiterated the facts in respect of Appeal No. C.D(T) CAL-50/81 and. has pleaded that the facts of other appeals are also similar. He has referred to list of items reported as short-landed which appears at page 12 of the original paper book and has referred to Item No. 4. The learned Barrister has also referred to the memorandum of appeal addressed to the Appellate Collector of Customs which appears at page 7 of the paper book. The learned Barrister has pleaded that the adjudication was done by the learned Deputy Collector of Customs without giving an opportunity to the appellant. He has also referred to the order passed by the learned Appellate Collector of Customs which appears at page 4 of the paper book. He has pleaded that Section 116 of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The copy appears at page 62 of the paper book. He has referred to the observation of the Hon ble High Court on the word Import which appears at page 69 of the paper book wherein Hon ble High Court has discussed in detail on the word Import . The learned Barrister has pleaded that the Division Bench judgment of the Hon ble High Court was reversed by the Hon ble Supreme Court. The copy of the said judgment has been annexed in the supplementary paper book vide Civil Appeal Nos. 3216-3218 of 1983 reported in AIR 1984 S.C. 667. The learned Barrister has pleaded that the Hon ble Supreme Court had deliberately refused to be dragged into any controversy on the point whether the Nepal cargo tantamounts to import under the Customs Act, 1962. The learned Barrister has referred to Notification No. 68-Cus. (G.S.R. No. 193-E), dated 25th March, 1978. The said Notification reads as follows : In exercise of the powers conferred by sub-section (1) of Section 25 of the. Customs Act, 1962 (52 of 1962), and in supersession of the notification of the Government of India in the Department of Revenue and Banking No. 191-Cus., dated 2nd August, 1976, the Central Government, being satisfied that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the country for the purpose of use, enjoyment, consumption, sale or distribution so that they were incorporated and got mixed up with the mass of the property of the country, these could not be said to have been imported. Importation could not be said only to have taken place when they had crossed the Customs barrier. Now coming to the Hon ble Supreme Court judgment in the case of Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey and others reported in AIR 1984 5.C. 667. The learned Berrister has referred to Para Nos. 21 and 26 of the said judgment. Para Nos. 21 and 26 from the said judgment are reproduced as under : 21. Section 53 which is of direct relevance as it deals with importation of infringing copies needs to be fully extracted . It says : 53. (1) The Registrar of Copyrights, on application the owner of the copyright in any work or by his duly authorised agent and on payment of the prescribed fee, after making such inquiry as he deems fit, order that copies made out of India of the work which if made in India would infringe copyright shall not be imported. (2) Subject to any rules made under this Act, the Registrar of Copyrights or any person auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court does not throw any light on the subject. The learned Barrister has pleaded that he has placed reliance on all the decisions considered by the Hon ble Calcutta High Court in its Division Bench judgment reported in AIR 1984 Cal. 69. The learned Barrister has stated that the Hon ble Supreme Court had discussed the observation of the Hon ble Calcutta High Court in Para No. 25 of its judgment. The said para is reproduced as under : 25. The Calcutta High Court thought that goods may be said to be imported into the country only if there is an incorporation or mixing up of the goods imported with the mass of the property in the local area. In other words the High Court relied on the original package doctrine as enunciated by the American Court. Reliance was placed by the High Court upon the decision of this Court in the Central India Spinning and Weaving and Manufacturing Co. Ltd., The Empress Mills, Nagpur v. The Municipal Committee, Wardha (1958) SCR 1102. That was a case which arose under the C.P and Berar Municipalities Act and the question was whether the power to impose a terminal tax on goods or animals imported into or exported from the limits of a muni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: ARTICLE III Both the Contracting Parties shall accord unconditionally to each other treatment no less favourable than that accorded to any third country with respect to (a) customs duties and charges of any kind imposed on or in connection with importation and exportation, and (b) import regulations including quantitative restrictions. ARTICLE IV The Contracting Parties agree, on a reciprocal basis, to exempt from basic customs duty as well as from quantitative restrictions the import of such primary products as may be mutually agreed upon, from each other. ARTICLE V Notwithstanding the provisions of Article III and subject to such exceptions as may be made after consultation with His Majesty s Government of Nepal, the Government of India agree to promote the industrial development of Nepal through the grant on the basis of non-reciprocity of specially favourable treatment to imports into India of industrial products manufactured in Nepal in respect of customs duty and quantitative restrictions normally applicable to them. ARTICLE VI With a view to facilitate greater interchange of goods between the two countries, His Majesty s Government shall endeavou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a judgment of Hon ble Bombay High Court in the case of Bruusgaard Kiosteruds Dampskibs Aktieselskab v. Secretary of State reported in AIR 1940 Bombay. In the said judgment, the Hon ble High Court had observed that the object of the penalty seems to be primarily to compensate the Government for the loss of so much revenue to them. The amount of the penalty is paid to the Customs and goes to the revenue. The object of the penalty is not merely to compensate the Government, but also to deter other persons from committing the same offence and thereby preventing or hindering the collection of revenue. The learned Barrister has pleaded that the penal laws should be construed narrowly in favour of the person proceeded against and has referred to second paragraph at page 239 of the book Maxwell on the Interpretation of Statutes . The said para is reproduced as under : The principle applied in construing a penal Act is that if, in construing the relevant provisions, there appears any reasonable doubt or ambiguity, it will be resolved in favour of the person who would be liable to the penalty. If there is a reasonable interpretation which will avoid the penalty in any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by the learned Appellate Collector of Customs in arriving at his findings are not correct. Lastly, he has referred to the Outturn Report of the Port Trust which appears at page 14 of the paper book. He has pleaded for the acceptance of the appeals. 4. In reply Shri A.K. Chatterjee, the learned Junior Departmental Representative has pleaded that in these appeals, facts are not disputed and the short-landing is also not in doubt. He has submitted that only question in this case is whether cargo imported from a foreign country and subsequently exported to Nepal, will attract Section 116 of the Customs Act, 1962 or not, and subsequent question can arise that such a cargo shall be deemed to be a cargo imported into India. He has referred to Section 116 of the Customs Act, 1962 and has pleaded that a simple reading of the section shows that if any goods loaded in a conveyance for importation into India, or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India or if the quantity unloaded is short of the quantity to be unloaded at that destination and if the failure to unload or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. He has again referred to Para No. 28 of the said judgment of the Hon ble Supreme Court. , He said para 28 is reproduced as under : 28. We have said that an order under Section 53 may be made by the Registrar of Copyrights on the application of the owner of the Copyright, but after making such enquiry as the Registrar deems fit. On the order being made the offending copies are deemed to be goods whose import has been prohibited or restricted under Section 11 of the Customs Act. Thereupon the relevant provisions of the Customs Act are to apply, with the difference that confiscated copies shall not vest in the Government, but shall be delivered to the owner of the Copyright. . . . The learned J.D.R. has submitted that the Central Government has got power to prohibit import and export of the goods as per Section 11 of the Customs Act, 1962 and the Central Government may, by notification in the Official Gazette, prohibit the import or export of the goods. He has referred to clause (n) of subsection (2) of Section 11. Clause (n) relates to the protection of patents, trade marks and copyrights. The learned J.D.R. has pleaded that it is accepted that the Nepal cargo tentamounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 193-E), dated 25th March, 1978 appearing at page 61 of the paper book is conditional, carries no merit. The learned Barrister has stated that the exportation is not made as per paragraphs (a), (b) and (c) of the Notification No. 68-Cus. (G.S.R. No. 193-E), dated 25th March, 1978 and the said notification is unconditional. He has pleaded for the acceptance of the appeal. 6. After hearing the arguments of both the sides and going through the facts and circumstances of the case. I would like to observe that the word import means bringing into India from outside India , it is not limited to importation for commerce only, but includes importation for transit across the country. This interpretation far from being inconsistent with any principle of International law, is entirely in accord with International Conventions and the Treaties between India and Nepal. During the course of arguments, the learned Barrister has repeatedly referred to the Hon ble Calcutta High Court judgment reported in AIR 1984, Calcutta 69 which was reversed by the Hon ble Supreme Court judgment reported in AIR 1984 S.C. 667. I am very respectfully following the judgment of the Hon ble Supreme Court. Para N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accord with International Conventions and the Treaties between India and Nepal. And, that we think is as it should be. 28. We have said that an order under Section 53 may be made by the Registrar of Copyrights on the application of the owner of the Copyright, but after making such enquiry as the Register deems fit. On the order being made the offending copies are deemed to be goods whose import has been prohibited or restricted under Section 11 of the Customs Act. Thereupon the relevant provisions of the Customs Act are to apply, with the difference that confiscated copies shall not vest in the Government, but shall be delivered to the owner of the Copyright. One fundamental difference between the nature of a notification under Section 11 of the Customs Act and an order made under Section 53 of the Copyright Act is that the former is quasi-legislative in character while the latter is quasi-judicial in character. The quasi-judicial nature of the order made under Section 53 is further emphasised by the fact that an appeal is provided to the Copyright Board against the order of the Registrar under Section 72 of the Copyright Act. We mention the character of the order under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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