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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 ..... se. It is to be noted that the Treaty between India and Nepal categorically provides for the manner of transfer/transhipment, of all goods that are imported via India to Nepal. The Memorandum of Intent dated June 6, 2017 referred to a Pilot project being started for such transhipment. 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. There is no provision in Section 143AA allowing the Board to delegate this power to the Commissioner of Customs (Port). As no proper documents have been placed by the Union of India with regard to the basis and jurisdiction under which the Commissioner of Customs (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argo 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 from February 15, 2019 and the Cargo Handing Agents would not be allowed to act for the Nepalese importers. He thereafter relied on an e-mail dated March 22, 2019 issued by the Deputy Commissioner of Customs, (Nepal Bhutan Unit), Custom House, Kolkata that stated that the old procedure through submission of Customs Transit Declaration and Import Containerised Cargo Declaration (ICCD) would be discontinued for goods that would land subsequent to 31st March, 2019. This e-mail gave the option to the Nepalese importers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 Customs Act, 1962. He thereafter relied on Section 54, Section 143AA and Section 157 to highlight the fact that any amendment/change in the procedure would have to be preceded by a specific regulation made by the Central Board of Indirect Taxes Customs, hereinafter referred to as Board . 6. Dr. Chakraborty also relied on the Memorandum to the Finance Bill, 2018 to indicate the reasons for addition of the new Section 143AA. Clause 43 in the Chart that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborty 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, 2019 issued by the Custom authorities stopping the old procedure through submission of ICCD is bad in law and should be quashed immediately. 9. Learned Additional Solicitor General, Mr. Kaushik Chanda appearing for the Union of India had argued on April 17, 2019 and April 24, 2019 that the Board had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 several occasions on behalf of the Union of India and the Department of Customs. In my view, Section 54 and specifically the proviso to Section 54 of the Customs Act is applicable in the present case. It is to be noted that the Treaty between I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are being made through the Port of Visakhapatnam though subject to the Pilot project can also be transhipped under the old procedure. By the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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