TaxTMI 
TaxTMI 
2000 (5) TMI 1100
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....-charge of Commerce, Govt. of India and Minister of Commerce His Magisty, Govt. 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 o....
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.... the protocol to the treaty of transit between Nepal and India an important procedure is laid down for such transit which is as follows : "At 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 Ind....
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....ed to be so transhipped without payment of duty. (3) Where any goods imported into a customs station are mentioned in the import manifest or the import report, as the case may be, as for transhipment - (a) to any major port as defined in the Indian Ports Act, 1908 (15 of 1908), or the customs airport at Mumbai, Calcutta, Delhi or Chennai or any other Customs port 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....
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....bsp; -Do- (iii) Declared value abnomally low compared to invoices of J.G. Durand on Mumbai importer." 16. According to me such ground is not an acceptable ground at all. The goods were imported on 14th January, 2000 and being held up upto the month of May, 2000 and when this writ petition is moved, the customs authority came out with the notice of the Appraiser with enclosure having vary vague defence. On the otherhand, the deponent on the part of the petitioner company categorically state that the goods are absolutely correspond with declaration. 17. However, good, bad, indifferent, the goods were brought to India for the purpose of import to Nepal. Therefore, if there is any violation 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 tran....
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.... sent from Pakistan to Nepal via India but even then the Division Bench were not pleased to accpet the contention of the authority and dismissed their contentions. 22. It was further contended by way of citing another judgment of CEGAT Tribunal reported in 1998 (102) E.L.T. 691 (Tribunal) (Water Trading Corporation v. Commissioner of Customs, Calcutta) it was held that in goods transit to Nepal, particulars of letters credit is not required for the purpose of customs trading declaration, Customs authorities are not empowered to check whether letters of credit relating to the goods or not. Such matters are within the scope of enquiry of the Nepalese Customs authorities. Goods in transit to Nepal are not liable to confiscation under any of the provisions of Section 111 of the Customs Act. It was further held that good 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 respon....
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....n between international law and municipal law. In fact, the grey area of legal conflict has been covered by the international treaty. Therefore, the same become part of the municipal law so far Nepal Cargo is concerned being exceptional circumstances, since Nepal is a landlocked country. There is no scope of any conflict of opinion when the goods made for Nepal comes Indian Port as per the International treaty as goods in transit. The court is only concerned to know about geographical situation of the country and if a country is landlocked how it will come to a Port other than the help of the neighboring country is not known to this court. Therefore, the position in respect of other neighboring countries are not similar with Nepal. A passage or corridor has to be made by a country which as a direct access to such country, and to make it 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....