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TMI Blog2000 (5) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... of Nepal. The part of the preamble of the treaty of transit between the countries is as follows : Recognising that Nepal as a land-locked country needs freedom of transit including permanent access to and from the sea, to promote international trade; and recognizing the need to facilitate the traffic-in-transit through their territories. 3. Article 3 provides for meaning of traffic-in-transit which is as follows : The term traffic-in-transit means the passage of goods, including unaccompanied baggage, across the territory of a contracting party when the passage is a portion of a complete journey which begins or terminates within the territory of the other contracting party. The transhipment, warehousing, breaking bulk and change in the mode of transport of such goods as well as the assembly, dis-assembly or re-assembly of machinery and bulky goods shall not render the passage of goods outside the definition traffic-in-transit provided any such operation is undertaken solely for the convenience of transportation. Nothing in this Article shall be construed as imposing an obligation on either Contracting Party to establish or permit the establishment of permanent faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Port of entry (hereinafter called the Customs House), the importer or his agent (hereinafter referred to as the importer) shall present a Customs Transit Declaration containing the following particulars : (a) Name of the ship, rotation number and line number; (b) Name and address of the importer; (c) Number, description, marks and serial number of the packages; (d) Country of consignment and country of origin, if different ; (e) Description of goods ; (f) Quantity of goods ; (g) Value of goods ; (h) Import Licence number and date ; (i) Letter of credit number, date and name and address of issuing bank ; (j) Route of transit (one of the mutually agreed routes); and (k) A declaration at the end of the following words :- I/we declare that the goods entered herein are for Nepal, in transit through India and shall not be diverted on-route to India, or retained in India. I/We declare that all the entries made herein above are true and correct to the best of my/our knowledge and belief. 9. The other part of such Memorandum is important for the purpose which is under paragraph 4A(i) of such Memorandum as follows :- (a) In respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Customs airport which the Board may, by notification in the Official Gazette, specify in this behalf, or. (b) to any other customs station and the proper Officer is satisfied that the goods are bona fide intended for transhipment to such customs station, the proper officer may allow the goods to be transhipped, without payment of duty, subject to such conditions as may be prescribed for the due arrival of such goods at the customs station to which transhipment is allowed. 13. By way of Amendment of Section 54 as aforesaid, a proviso was incorporated under sub-section (1) which is as follows : Provided that where the goods are being transhipped under an international treaty or bilateral agreement between the Govt. of India and Govt. of a Foreign Country, a declaration for transhipment instead of a bill of transhipment shall be presented to the proper officer in the proscribed form. 14. Correspondingly, the another relevant section herein being Section 111 Clause m was Substituted. To make it clear, previous Clause m of Section 111 and corresponding Section 111 is set out herein below : (m) any goods which do not correspond in respect of value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n at all the same is the subject matter or determination of the customs authority of Nepal. The petitioner cannot be penalised twice, once by customs authority of India and another by the Customs authority of Nepal when the treaty in between the two countries to use this country as corridor for Nepal. Such treaty specifically mentioned for transit of the goods. There is no question of transhipment so that the Indian Customs Authority may enter into the arena to take cognizance in respect thereof. Treaty specifically prescribes customs transit declaration and fulfilment of conditions upon arrival of goods at any port of India for the purpose of sending to Nepal. There is no scope of the customs authority of India to deal with such goods known as Nepal Cargo . 18. In support of their contentions learned Counsel appearing for the petitioner cited various decisions which are chronologically dealt with by this Court hereunder. 19. Firstly, a decision of CEGAT the Tribunal as reported in 1990 (46) E.L. T. 71 (Tribunal) (Orbital Enterprises v. Collector of Customs) was cited before this court which says that while referring to the Customs Act, it may be used to fill the Scheme of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od in transit to Nepal are covered by Indo-Nepal treaty of trade and transit. In terms of that treaty the transit declaration is required to be filed by the importer or his agent. In that case, the ratio of the Division Bench Judgment of this court reported in 1997 (89) E.L.T. 668 (Calcutta) (Supra) was followed. 23. Learned Counsel appearing for the respondent made emphasis only on the amendment of Section 54 of the Customs Act, 1962. According to the learned Counsel there is a reason or intention of the legislature to incorporate the proviso under Section 54(1) of the Customs Act, 1962. Such proviso is very specific in respect of transhipment of goods under an international treaty of bilateral agreement between the Govt. of India and the Govt. of a foreign Country. According to him whenever goods are coming to the Indian Port for the purpose of transhipment to different natures of vehicles either for the purpose of consumption in the country or for any other country it should be legally construed as transhipment under Section 54 but cannot be construed as Transit under section 53 of the Customs Act. Therefore, as and when the goods came to the Calcutta Port, Indian Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convenient if an international treaty is made court cannot ignore the same by taking a plea that such treaty is encroaching in the field of the Indian Customs Act which has a prevailing effect over the same. 26. Conflict of transit and transhipment is not available in the present case where meaning of transit as available under the municipal law i.e. Section 53 of the Indian Customs Act running parallelly with the international treaty. Hence, if I construe the goods which are landed to India for the purpose of going to Nepal as transhipment then I have to ignore not only the international treaty but appropriate Section of the Indian Customs Act. Transit includes corridor starting from the country where from the goods imported landed in the port of Calcutta and taken to a land-locked country i.e. Nepal to it s ultimate destination. Transit it complete when such journey is complete. The word transit has wide connotation which includes transhipment if any. Therefore, in all respect the goods which are made for the Nepal Cargo landed at the Calcutta Port for making the Country as corridor to reach to the ultimate destination at Nepal cannot be construed as goods arrived in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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