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TMI Blog2019 (6) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... s challenging the public notice bearing No.08/2019 dated 25.01.2019 issued by the Commissioner of Customs (Port), Kolkata (hereinafter referred to as 'impugned notice'). 2. Dr. Chakraborty, learned Senior Advocate appearing on behalf of the petitioner submitted that a pilot project had been initiated by the impugned notice issued by the Commissioner of Customs (Port), Kolkata and under the said 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. 3. Dr. Chakraborty submitted that the impugned notice, in effect, was a pilot project that indicated that the project would start fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to such modalities as may be mutually agreed and by suitable amendments to the Protocol of Treaty of Transit and Railway Service Agreement as may be necessary." 5. Dr. Chakraborty submitted that as per the above clause it is clear that the impact of the use of ECTS shall be reviewed by Nepal and India, and upon being mutually decided and agreed, suitable amendment to the Protocol of Treaty of Transit between the two countries would be signed. He submitted that till date there has been no such step taken for amendment of the Protocol of Treaty of Transit between the India and Nepal. He, therefore, submitted that, in absence of the same, prohibiting the old procedure would be contrary to law and without any jurisdiction under the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs (Port) without there being a specific regulation issued by the Board. He further relied on Clause 46 of the Chart where the amendment in Section 157 indicates that the Board can make changes/prescribe different procedures for the transportation of goods only by way of making Regulations. 8. Dr. Chakraborty submitted that though the impugned notice for a pilot project can be initiated by the Commissioner of Customs (Port) on an internal approval of the Board, complete change of procedure cannot be done without a change firstly in the Treaty and secondly by framing of regulation by the Board under Section 143AA and/or Section 157 of the Customs Act. Therefore, he submitted that the impugned notice and the email dated March 22, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms submitted that learned Additional Solicitor General is no longer appearing in this matter for personal reasons. He further prayed for time. 12. It is also to be noted that Mr. Billwadal Bhattacharya, learned Counsel led by Mr. Joydip Kar, learned Senior Advocate appearing on behalf of the Intervenor/applicant submitted that one application bearing C.A.N.4093 of 2019 has been filed on behalf of his client praying for addition of his client as a party in this matter. It is to be noted that this matter is not appearing in today's list. 13. I have considered the arguments made on behalf of Dr. Chakraborty, learned Senior Advocate appearing on behalf of the petitioner and the learned Additional Solicitor General who had appeared on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under challenge. It is to be noted that this public notice has been issued by the Commissioner of Customs (Port) and not by the Board as required under Section 143AA. 17. In my prima facie view, even if Section 143AA was to be applied in this particular case, the action taken under this Section shall have to be done by way of a notification by the Board of Central Excise and Customs. I do not find any provision in Section 143AA allowing the Board to delegate this power to the Commissioner of Customs (Port). 18. It is to be noted that a similar kind of Pilot project had been started for goods that are imported into India through Visakhapatnam Port and that particular Pilot project still continues. It is to be noted that the imports that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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