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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 ..... 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 cargo. In reply to the K.L. C., the Steamer Agent had admitted the short-landing. The learned Deputy Collector of Customs had imposed a penalty of ₹ 17,055/-. Being aggrieved from the aforesaid order, the appellant had filed an appeal before the learned Appellate Collector of Customs the appellant had contended that Section 116 of the Customs Act, 1962, is the empowering section for imposition of penalty for not accounting of goods and is not applicable to short-landing of Nepal cargo. The appellant has based his arguments on the grounds that Section 116 applies to three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tems 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, 1962 is not applicable to the appellant. The learned Barrister has pleaded that Import General Manifest was duly filed in terms of Section 30 of the Customs Act, 1962 which appears at page 16 of the paper book in original and it was specifically mentioned on the top of the I.G.M. that it is a Nepal Cargo. The learned Barrister has again pleaded that the order passed by the learned Appellate Collector of Customs, is not correct in law and has referred to the three points agitated by the appellant that Section 116 of the Customs Act, 1962, the empowering section for imposition of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme 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 is necessary in the public interest so to do, hereby exempts- (a) all goods when imported into India from a foreign country for the purpose of export to Nepal, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), and the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act ; (b) all goods when imported into India from Nepal for the purpose of export to a foreign country, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 authorised by him in this behalf may enter any ship, deck or premises where any such copies as are referred to in sub-section (1) may be found and may examine such copies. (3) All copies to which any order made under sub-section (1) applies shall be deemed to be goods of which the import has been prohibited or restricted under Section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly : Provided that all such copies confiscated under the provisions of the said Act shall not vest in the Government but shall be delivered to the owner of the Copyright in wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 municipality" included the right to levy tax on goods which were neither loaded or unloaded at Wardha but were merely carried across through the Municipal area. This Court said that it did not. The word 'import', it was thought meant not merely the bringing into but comprised something more, that is 'incorporating and mixing up of the goods with the mass of the property in the local area', thus accepting the enunciation of the 'Original Package doctrine by Chief Justice Marshall in Brown v. State of Maryland 6 L. Ed. 78. Another reason given by the learned Judges to arrive at the conclusion that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 endeavour to exempt, wholly or partially, imports from India from customs duty and quantitative restrictions to the maximum extent compatible with their development needs and protection of their industries." These Articles are from the Treaty of Trade between His Majesty's Government of Nepal and Government of India. He has also referred to Treaty of Transit between His Majesty's Government of Nepal and Government of India with a special reference to Article IV which appear at page 21 of the paper book. Article IV is reproduced as under : "ARTICLE IV Traffic in transit shall be exempt from customs duties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 case," said Lord Esher M.R., "we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections". Or, as Plowman J. has said more recently : "In every case the question is simply what is the meaning of the words which the statute has used to describe the prohibited act or transaction ? If these words have a natural meaning, that is their meaning, and such meaning is not to be extended by any reasoning based on the substance of the transaction. If the language of the statute is equivocal and there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deficiency is not accounted for to the satisfaction of the Assistant Collector of Customs, the person in charge of the conveyance shall be liable- (a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would 'have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported. (b) in the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 to import and the charging Section 12 of the Customs Act, 1962 steps in and Section 116 of the Customs Act, 1962 shall not apply where the goods are not dutiable. He has referred to the Customs Tariff Chapter 84. He has also pleaded that it is admitted by the party that the goods are chargeable to customs duty as the goods are transported under bond procedure and if the short-landing was to be permitted, there was no necessity for following the bond procedure. The learned J.D.R has further pleaded that the Notification referred by the appellant on page 61 of the paper book, grants conditional exemption. If the condition is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Nos. 24, 27 and 28 from the said judgment are reproduced as under : "24. It was submitted by the learned Counsel for the respondents that where goods are brought into the country not for commerce, but for onward-transmission to another country, there can, in law, be no importation. It was said that the object of the Copyright Act was to prevent unauthorised reproduction of the work or the unauthorised exploitation of the reproduction of a work in India and this object would not be frustrated if infringing copies of a work were allowed transit across the country. If goods are brought in, only to go out, there is no import, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Section 53 to indicate that the effect of an order under Section 53 of the Copyright Act is not as portentous as a notification under Section 11 of the Customs Act. The Registrar is not bound to make an order under Section 53 of the Copyright Act so soon as an application is presented to him by the owner of the Copyright. He has naturally to consider the context of the mischief sought to be prevented. He must consider whether the copies would infringe the Copyright if the copies were made in India. He must consider whether the applicant owns the Copyright or is the duly authorised agent of the Copyright (owner). He must hear tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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