|Chapter No. 001|
Indian Customs are assigned a number of tasks more important of which are :-
(ii) enforcement of the various provisions of the Customs Act governing imports and exports of cargo, baggage, postal articles and arrival & departure of vessels, air crafts etc.;
(iii) discharge of various agency functions and enforcing various prohibitions and restrictions on imports and exports under Customs Act and other allied enactments;
(iv) prevention of smuggling including interdiction of narcotics drug trafficking; and
(v) international passenger processing.
2. The Constitutional provisions have given to Union the right to legislate and collect duties on imports and exports as per the entry at Sl. No.83 of list 1 to Schedule VII of our Constitution. The Customs Act, 1962 is the basic Statute, effective from 1.2.1963 which empowers, under Section 12, duties to be levied on goods imported into or exported from India. The categories of items and the rates of duties which are leviable have been specified in two schedules to the Customs Tariff Act, 1975. The first Schedule to the said Act specifies the various categories of import items in a systematic and well considered manner, in accordance with an international scheme of classification of internationally traded goods – termed ‘harmonized system of commodity classification’. Different rates of duties are prescribed by the legislature on different commodities/group of commodities mentioned in the first Schedule. The duties are levied both on specific and ad-valorem basis, while there are few cases where at times specific-cum-ad valorem duties are also collected on imported items. Second Schedule to Customs Tariff Act, 1975 incorporates items subject to exports duties and rates thereof.
3. Where ad-valorem duties (i.e., duties with reference to value) are collected, which are the predominant mode of levy, the value of the goods has to be determined for customs duty purposes as per provisions laid down under Section 14 of the Customs Act and the Customs Valuation (determination of prices of imports goods) Rules, 1988 issued thereunder. These provisions are essentially adoption of GATT based valuation system and followed internationally (now termed WTO Valuation Agreement) and were incorporated in our law in 1988. The importer as well as the assessing officer has to carefully study and apply these provisions so that the duties as due after proper valuation as per law get discharged before the goods get out of customs control.
Control and regulatory provisions under Customs Act:
4. To handle growing international traffic properly and effectively and to make it administratively possible that all the cargo/goods/passengers etc., imported/coming into India or exported/going out of the country by sea, air, land or rail routes are checked by the Customs (for ensuring that they are complying with all the related laws before entry/exit into/from India) unrestricted freedom of access into the country or exit out of the country is not permitted. In tune with international practice the entry/exit of carriers/passengers etc., is therefore regulated in this county by law and the Customs Act, 1962 is the basic statute which governs/regulates this entry/exit of different categories of vessels/crafts/goods/passengers etc., into or outside the country.
5. Under the Customs Act, Government is given the powers to appoint Customs ports and airports where alone the imported goods can be brought in for unloading or export goods loaded on ships or air crafts. Similar powers have been given to the Government to notify the places which alone shall be the Land Customs Stations for clearance of imported goods or goods to be exported by land or by inland water. Even the routes of passage by land and inland water into or out of the country can be regulated and these provisions have been made use of specially for regulating traffic for our neighboring countries like Nepal.
6. Suitable powers have also been vested to further approve at a Customs port/airport, specific places where only loading and unloading can take place as also specify the limits of customs area (which essentially is the area of a Customs Port/Airport/Land Customs Station) where the imported goods or the export goods are ordinarily kept before clearance by the Customs authorities.
Role of Custodians:
7. Both in regard to sea cargo as well as air imports, the Customs authorize and appoint “custodians” and all imported goods unloaded in a Customs area remains in their custody & till these are cleared for home consumption, or are warehoused or transhipped as provided in the law. With the growth of containerized traffic the facility of customs clearances at the interior centres in the country has been provided by opening various Inland Container Depots (ICDs) which act like Dry Ports. The goods also move to these internal Dry ports where they remain with the appointed custodian till these are customs cleared. The custodian after taking over the goods from the carrier, arranges its proper storage and safety and allows clearance to the importers only after they fulfill all the customs formalities, pay up requisite duties and other charges/fees and discharge various other obligations before their goods are allowed entry into the country and the customs have given clear permission for clearance out of customs area.
8. Various port trusts and other authorities in the public and private sectors handle the import and export cargo when kept in their custody at various ports, international airports/ICDs. The cargo handling and custody at the international airports is generally entrusted to International airport authority of India. A number of cargo complexes have been set up at most international airports with appropriate storage facilities for imported cargo pending customs clearance. New ICDs are being opened at various industrial centres as a facilitation measure, as per detailed guidelines laid down by the Government, and Customs Cargo clearances – both for imported and export cargo, from interior centres has expanded substantially in recent years.
9. Maximum import and export cargo is handled at different sea ports; increasing part of import cargo from some ports like Nhava Sheva also moves by transhipments to interior ICDs for final clearance by various importers almost at their door steps. In the ports which have vast Dock area and which are appropriately walled, security arrangements are provided to ensure that there is no pilferage/theft or carrying away of the cargo without proper customs clearance. Requisite arrangements of loading and unloading of cargo at different berths in various docks, their movement to different places including container yards/storage godowns etc., are arranged by the port authorities. They deploy a large work force and different & modern material handling equipments for movement of cargo which now is increasingly becoming containerized. As per the provisions of the Customs Act, the custodians are under obligation to ensure safe custody of the goods till delivery and in fact for unaccounted imported cargo duties are also recoverable by Customs from the custodians.
10. The customs authorities are given appropriate office place and requisite facilities in the dock area as well as international cargo complexes/ICDs etc., to discharge their functions in relation to imports and exports such as supervision on loading/unloading from vessels/crafts etc., supervisions on stuffing or de-stuffing of containers, inspection and suitable examination of the goods which are imported/presented for exportation before customs clearance formalities etc.
Customs law and Obligations of Carrier:
11. To regulate and have a proper and effective control on imports and exports the Customs Act enjoins certain liabilities on the carrier. Thus, they have to bring in the cargo imported into the country for unloading only at notified ports/airports/land custom stations – as mentioned earlier. Further obligation has been cast on the carrier for giving detailed information to customs about goods in their vessels/air crafts which have been brought in at any port/airport for unloading at that particular port/international airport as also that which would be carried further for other ports/airports. Declarations of such cargo has to be made in a prescribed form (which is termed ‘Import General Manifest’). This declaration/filing of IGM has to be made within 24 hours of entry of the vessel at the customs station. In the case of imports through Land Custom Stations the person in charge of the vehicle has to give similar import report. Since the cargo clearance formalities are linked generally with the availability of this information about cargo being brought by a vessel for unloading at any port, provisions have also been made in law for prior filing of IGMs if all details of relevant cargo for any port are available even before the vessel arrives. The final manifest can be filed again after arrival of the vessel.
12. Unless, the aforesaid details and IGM have been furnished in the prescribed form, no unloading of cargo can be undertaken from any vessels/air crafts/vehicles in normal circumstances. After the manifest is duly delivered the unloading takes place under the supervision of the preventive staff of customs. The law prohibits unloading of any goods at a customs station which is not mentioned in the manifest/import report. Similarly, there are restrictions on loading for export. No vessel/air craft can start loading goods for export unless an intimation has been given to customs and customs have given permission for loading – what is also called ‘entry outward of the vessel’. All loading, as mentioned, of cargo on such vessels (and even air crafts) has to be checked and supervised by preventive customs staff and they have to essentially ensure that cargo loaded has discharged the prescribed customs formalities such as payment of duties or cess where leviable, and any other formalities enjoined by the law before the exports are permissible, and authorization for exports has been duly given by the proper appraising staff posted in the docks/cargo complexes/ICDs as a part of customs clearance formalities.
13. The persons in charge of the vessels/air crafts are also required to furnish details of all the goods loaded on a vessel or air craft in a prescribed form which is termed ‘Export General Manifest’. This EGM can be furnished before the vessel/air craft departs or within 7 days of departure of the vessel/air craft and is essentially taken as the final proof of shipment/export once the ship/aircraft leaves the country. Similar provisions exist for export by land route where the export manifest is called export report.
14. It is worth noting that no conveyance can leave a customs station unless a written order for port clearance for the vessel has been given by the proper officer of customs. The permission for departure of any vessel is given subject to the satisfaction of the proper officer that all the prescribed formalities have been fulfilled, duties/penalties etc., have been paid or secured. The preventive officers are also authorized to go on board the vessels/air crafts to take suitable declarations, Crew property list etc., and to check whether there are any goods which are not declared for unloading at a particular station in the manifest with an intention to smuggle them without following the prescribed formalities and payment of duties. A thorough examination and checking of the vessels/air crafts is also undertaken – by what is known as rummaging staff generally on selective basis taking due note of the past history of the vessel, the area/country from which the vessels are arriving, the intelligence report etc.
15. The preventive staff of the customs also keep a very careful vigil in the port areas for checking any illegal activities and develop intelligence to guard against any possible attempts of unauthorized removals from the docks and unloading of unmanifested cargo etc.
Customs Clearance of cargo:
16. Before any goods imported and kept with the custodians as mentioned earlier can be cleared for home consumption in the country immediately – or for warehousing and customs clearances as and when needed etc., the importers have to comply with prescribed customs clearance formalities. Essentially, these involve presentation of certain documents along with a prescribed application (normally termed ‘bill of entry’, which gives essential particulars in relation to imported goods, its country of origin, particulars of vessel/aircraft etc.) seeking clearance of goods for home consumption/warehousing etc. The importer either himself handles the import clearance documents vis-a-vis Customs or appoints an authorized agent in the Custom House. Major part of Customs clearance work is handled on behalf of importers/exporters by CHAs or Custom Houses Agents – who are trained and experienced in Customs clearance work and are licensed by Customs for such work subject to certain conditions as laid down in CHA Regulations.
17. The clearance documentation presentation and processing is handled in the main Custom Houses where staff trained in assessment matters (termed appraising staff) handles this import clearance work. After a tally has been made with related IGM to ensure that the goods sought for clearance have arrived and declared in the particular manifest of the vessel/air craft mentioned in the Entry (or even where the prior manifest is filed, that they are expected to be landed by particular vessel) the scrutiny of documents – manually or through EDI system is taken up. One of the main function of the appraising staff in the Custom Houses is careful scrutiny of the entry and the related particulars, and information on various documents with a view to checking the import permissibility in terms of the EXIM policy and any other laws regulating imports/exports. The more important job specially after the liberalization of import regime, is determining classification and duties leviable on the goods on import – (Basic, Additional, Anti-dumping, Safeguards etc.) and value of the goods (where the duties are assessable on value basis), to assess the duty liability which is required to be paid by the importer. Permissibility of various benefits of duty free clearances under different schemes or applicability of any exemption notification benefits – where claimed is also checked and decided.
18. For determining this duty liability and even permissibility of import it may become necessary to examine the goods in advance. Normally, however, the declarations made are scrutinized without prior examination with reference to documents made available and the other information about the values/classification available with Customs and duties chargeable on the goods are assessed and paid up by the importer or his authorized representative. It is only at the time of clearance from the custody of the port trusts/international airport authority or other custodians that the examination of the goods on percentage basis is carried out. For expediting assessment and clearance formalities, separate staff for checking assessment related work is posted in the custom houses as well as in the premises where the goods are stored pending customs clearance; the later said officers undertake checking of nature of goods, valuation and other part of declaration, or draw samples as may be ordered by the scrutinizing officers of the Custom House/Cargo Complexes/ICDs.
19. In majority of the cases the assessment is completed and duties also paid without prior examination. If no discrepancies in relation to the nature of goods, quantity, value etc., are observed at the time of examination of the cargo by the appraising officers in the dock/cargo complex etc., out of Customs control orders are issued, and thereafter goods can be cleared after discharging any other fees/charges etc., of the custodians.
20. Where prior examination, at times becomes necessary before assessment is finalized or permissibility of import determined, goods are got examined first after filing of Bill of entry and other documents. Based upon the report of the examining staff, duties etc., are assessed and if there is no prohibition etc., on payment of duty the goods are taken clearance from the custodian without the need for further examination.
21. Where disputes arise in the matter of classification/valuation or any violations of any laid down provisions of law are observed, where the goods cannot be allowed clearance finally without further investigations and following adjudication proceedings – where necessary, the law and instructions provide for even provisional clearances subject to suitable bond/security. Only where the goods are of prohibited nature or in certain other exceptional cases, where release on provisional basis is not considered advisable, the final decision may be taken after results of enquiries etc., are known & where necessary adjudication proceedings completed.
22. Similar customs clearance formalities for goods meant for export have to be fulfilled by presenting what are termed as ‘shipping bills’ and other related documents to the export wing of the custom houses or EDI service Centres. The appraising staff in the Custom House/Air Cargo Complex checks the declarations to assess the duties/cess if leviable, propriety of export incentives where claimed under different schemes like duty drawback or duty free exemption schemes etc. Appropriate orders for examination before shipments are allowed are given on the Shipping Bill. The staff in the docks/cargo complexes/ICDs examines the goods meant for export on percentage basis, and allow shipment if there are no discrepancies/ mis-declarations etc., and no prohibitions/violations come to light. Appropriate penal action as per law is initiated where any fraudulent practices get detected during initial stage of scrutiny or at the time of examination etc.
23. Thus, aforesaid provisions in the law and the various functions assigned to the customs are essentially provided to ensure that all cargo which is brought into the country passes through authorized points, is reported to customs and the concerned importers fulfil the prescribed legal and procedural requirements laid down under Customs Act and allied laws, paying up the duties leviable if any before the goods enter into the country. These provisions similarly help customs to regulate the outflow of the goods out of the country and enable them to subject the goods to proper checks before allowing final exit out of the country by sea/air/land/rail routes. They also help detect any attempts of smuggling or commercial frauds by unscrupulous parties.
Smuggling & Other Violations and Penal Provisions:
24. Unscrupulous parties do attempt to evade the duties leviable and bypass various prohibitions/restrictions in relation to imports by attempting to bring the goods into the country from places other than the notified ports/airports/Land Custom Stations without reporting or presenting the goods to customs. Similar attempts are made to take out goods out of the country unauthorizedly. This is essentially what is termed ‘smuggling’ and customs officers have very important role to play in ensuring that they detect any such attempts of smuggling into or out of the country and take appropriate action both against the goods as well as against the persons involved in smuggling or violation of various restrictions/prohibitions for personal gains at the cost of exchequer unmindful of various other harmful effects which the prohibited and sensitive goods may have, if these are allowed entry into the country. Strict penalties in relation to the goods/persons – involving seizure/absolute confiscation of the prohibited goods, fines and penalties on the persons involved in the offence as well as those abetting the offence are provided. The law also empowers Customs for carrying out searches, arrests and prosecution of persons involved in smuggling and serious commercial frauds and evasion of duties or misuse of export incentives by fraudulent practices (mis-declaration of nature, and value of the goods or suppression of quantities etc.)
25. The customs law provides deterrent penal provisions for all such violations but due processes of law have to be followed before any action is taken against the offending goods or persons/conveyance etc. involved. The customs officers have to act as quasi-judicial authorities and the liabilities for duty evaded or sought to be evaded, fines and penalties etc., are adjudged by adjudication action wherein the persons concerned are duly given notice of the contemplated action against the goods/persons/conveyance etc. including the gist of the charges and their basis, and they are provided opportunity for representation as well as personal hearing. The adjudication powers are vested in the customs officers of different specified ranks.
26. In grave offence cases prosecution action with imprisonment upto 7 years is also permissible under the Customs Act, but this action is to be taken following the usual criminal proceedings in a court of law, after prosecution sanction has been given by the competent Customs officer.
27. The parties aggrieved with the departmental adjudication action are also given the right to appeal – at the departmental higher level [Commissioner (Appeal)] as well as at independent tribunal level. On questions of law, the orders of tribunal could also be considered for reference to the High Court and certain categories of decisions involving matters relating to classification or valuation can be appealed even before the Supreme Court.
28. Apart from the aforesaid functions in relation to control/regulation/ clearance of import/export of goods international passenger processing is another important area of work handled by the Indian customs authorities. All incoming passengers after immigration clearance have to pass through Customs who have the onerous duty to ensure that there is maximum facilitation and quick passenger clearance, but at the same time the passengers do not try to smuggle goods into the country which are sensitive and otherwise prohibited/restricted or where substantial duties may be involved which are sought to be evaded by non-declaration/mis-declaration to Customs. Similarly, though duties are not very relevant for outgoing passengers, Customs have to ensure that outgoing passengers do not smuggle out foreign currency, antiques or other wildlife & prohibited items or narcotics drugs or psychotropic substances – and this later part, i.e., checking of drug smuggling is becoming of considerable importance in recent years. The customs have also to ensure enforcement of various other allied laws before any goods carried by the passengers on person, in hand bag or accompanied baggage enter into the country or get out of the country.
Import/Export by Post/Courier:
29. Another important role performed by Customs, though not very visible, is necessary coordination with Postal authorities and giving customs clearances after appropriate checking on selective basis of various goods coming by post parcels, etc. They have to ensure that these postal mail/packets/parcels enter into the country following the provisions of the Customs Act. The goods brought by parcels unless these are within permissible free gift limits or free sample limits have to be assessed to duties by customs & indicated to postal authorities. The duties are collected before the postal authorities deliver the goods to the addressees. Lastly, it may also be mentioned that small item imports/exports through couriers is fast catching up in this country and customs have made appropriate provisions by Regulations for ensuring that goods brought in by courier get customs cleared quickly – discharging duties where leviable on import before these are forwarded for delivery to the consignees. The regulations framed are reviewed to meet the changing needs of trade & industry/general public.
30. These are some of the basic areas of work which are handled by the Indian Customs. As could be seen it covers substantial areas of activities affecting trade and industry and general public. Customs officials come in contact with international passengers and general public, importers and exporters, traders and manufacturers, the carriers, the port and airport authorities, postal authorities and various other Government/semi-Government agencies, Banks etc. The importers and exporters have to realize that various agencies get involved in any customs clearance work in relation to cargo. Even international passenger processing and faster clearances depend upon various agencies working at Air Ports. Indian Customs authorities are very conscious of the various onerous tasks assigned to it and is attempting, consciously in recent years, to rationalize and modernize its Customs procedures for customs clearance of cargo/passenger processing etc. India is an active member of the World Customs Organisation and has adopted various international Customs Conventions and procedures; the Harmonized Classification System, the GATT based Valuation system in relation to valuation etc. It is moving fast in direction of total automation of the imports and exports clearance work. The use of Electronic Data Interchange System for customs clearance for imports and exports & disbursement of duty drawback etc., started from 1995 and is now operative at 23 customs stations/ports/ICDs (covering almost 90% of cargo). With the Customs Gateway Project, under serious & advance stage of implementation, it should be possible to have connectivity of all Customs stations by the end of the year or January, 2002 and there may be substantial further speeding up of the customs clearance work in not distant future.
31. Customs in this country are committed in its Citizen Charter, to provide to trade & industry time bound and speedy cargo clearance facility, quick redressal of grievance, and inculcating in its officers’ sense of service with stress on courtesy, understanding, integrity. objectivity and transparency. Steps are afoot to further professionalize Customs to be able to render efficient and prompt service to our clients almost at par with those rendered by other customs services in developed countries.
32. It is difficult to have a manual which could cover all aspects of the customs functions in one place or to explain the changes contemplated taking due note of demand of trade & industry and in tune with international practices. But an attempt is made in the following chapters, briefly to further explain some of the more important aspects and areas of work of Customs for the benefit of all concerned – with focus on the importers/exporters and the concerned agencies including the international passengers and general public. Considering the importance the country attaches to the export promotion, the various export promotion schemes have been elaborated somewhat at length. It is hoped that the information would be found useful. Taking into account the demands/suggestions from the trade and industry and general public and even departmental officials, areas which are not covered by this first edition of the manual, would be taken up for coverage in the next edition.
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