1. travel
2. transports
3. air travel
4. airlines

For Departmental use only
Central Board of Excise and Customs
Ministry of Finance - Department of Revenue
Government of India
DELHI AIRPORT
CUSTOMS MANUAL
Airport Manual
To Delhi Airport Customs Officers
As Additional Commissioner of Customs of IGI Airport, New Delhi I look
with satisfaction in placing this Airport Customs Manual in your hand.
On joining the Airport I could find only one or two copies of earlier manual,
brought out some 10 years back. Revising the same was a priority. However
shifting out work area from Terminal-2 to Terminal-3, Commonwealth Games
Delhi, 2010, other usual attention seeking areas of work – Preventive, Legal,
Vigilance and Adjudication took away an early revision initiative.
Almost one year after my taking over at IGI Airport, New Delhi, due
to some real hard work of my colleagues, this manual is in your hands. Let
the hard work continue – with written work for Manual being over, reading
the assimilation work begin. Knowledge shall set you free. This Handbook
should be used to facilitate genuine passengers and deal with those who break
our inherent trust.
(Asthutosh Baranwal)
Additional Commissioner of Customs
IGI Airport, New Delhi
3
PREFACE
I have great satisfaction in placing this Manual before you. In a way this was long overdue,
having been revised after almost 10 years. Rules relating to Baggage have undergone a lot of
change since then. The work was distributed by formation of three groups each headed by a
Deputy Commissioner / Assistant Commissioner with 3 Air Customs Superintendents allotted to
each group. This Manual for Air Customs has been updated up to 01.03.2011. An effort has been
made to present all the procedures and formalities involved in Air Customs in a simple and lucid
manner. This updated Airport Manual would benefit all the Officers and Staff posted at the Airports
apart from the passengers passing through this and other Airports.
I compliment young Assistant Commissioners – S/Shri Dipin Singla & Kshitendra Verma,
2008 batch IRS (Customs & Central Excise) officers; Shri Roshan Lal, Deputy Commissioner (P)
for doing a detailed work in preparing this Manual.
I would also like to place my deep appreciation to my Air Customs Superintendents – S/Shri
R.K. Chhibber, D.K. Nayyar, N.P. Kaushik, V.P. Batra, Santosh Gupta, Neeraj Garg & S. Gopal for
doing the painstaking work of collecting & collating circulars, orders & legal provisions for this
Manual and keeping them at one place.
Air Customs Superintendent Shri S. Gopal and Shri S. Krishna Kumar, A.C.O. has done the
first proof reading, corrections and due changes of this manual.
I recognize & appreciate the step of preparing this Manual by Additional Commissioner of
Customs, IGI Airport, T-3, New Delhi, Shri Ashutosh Baranwal.
Preparation of Manual is only half work through, unless & until all ACS’ /ACOs/ ACs / DCs
start following it and refer to it as a Standard Operating Procedure (SOP) for Customs work on
baggage side, this Manual shall remain confined only to its pages and not translate into evident
action.
I expect this to be an effective tool for knowledge dissemination, for knowledge is power, in
the service of the nation.
My thanks to Commissioner, DPPR for brining it out in a very short time.
(V.K. GOEL)
COMMISSIONER OF CUSTOMS (I&G)
NEW CUSTOM HOUSE, NEW DELHI
5
CONTENTS
Sl. No.
Section
Description
Page No.
1
Section 1
General Facts
2
Section 2
Passenger clearance system
3
Section 3
Dutiability
4
Section 4
Valuation
5
Section 5
Prohibitions and restrictions
6
Section 6
Special cases relating to baggage
7
Section 7
Commercial travellers
8
Section 8
Warehoused goods
9
Section 9
Clearance of Privileged Persons
10
Section 10
Search, seizure and investigation
11
Section 11
Miscellaneous instructions
12
Section 12
Airport Preventive
13
Section 13
Adjudication
14
Section 14
Facilitation and Protocol
7
Section 1
GENERAL FACTS
Early history of aviation in India:
Aviation Industry in India is one of the fastest growing aviation industries in the world. With the
liberalization of the Indian aviation sector, aviation industry in India has undergone a rapid
transformation. From being primarily a government-owned industry, the Indian aviation industry is
now dominated by privately owned full service airlines and low cost carriers. Private airlines account
for around 75% share of the domestic aviation market. Earlier air travel was a privilege only a few
could afford, but today air travel has become much cheaper and can be afforded by a large number
of people.
The origin of Indian civil aviation industry can be traced back to 1912, when the first air flight
between Karachi and Delhi was started by the Indian State Air Services in collaboration with the UK
based Imperial Airways. It was an extension of London-Karachi flight of the Imperial Airways. In
1932, JRD Tata founded Tata Airline, the first Indian airline. At the time of independence, nine air
transport companies were carrying both air cargo and passengers. These were Tata Airlines,
Indian National Airways, Air service of India, Deccan Airways, Ambica Airways, Bharat Airways,
Orient Airways and Mistry Airways. After partition Orient Airways shifted to Pakistan.
In early 1948, Government of India established a joint sector company, Air India International
Ltd in collaboration with Air India (earlier Tata Airline) with a capital of Rs 2 crore and a fleet of three
Lockheed Constellation aircraft. The inaugural flight of Air India International Ltd took off on June 8,
1948 on the Mumbai-London air route. The Government nationalized nine airline companies vide
the Air Corporations Act, 1953. Accordingly, it established the Indian Airlines Corporation (IAC) to
cater to domestic air travel passengers and Air India International (AI) for international air travel
passengers. The assets of the existing airline companies were transferred to these two corporations.
This Act ensured that IAC and AI had a monopoly over the Indian skies. A third government-owned
airline, Vayudoot, which provided feeder services between smaller cities, was merged with IAC in
1994. These government-owned airlines dominated Indian aviation industry till the mid-1990s.
In April 1990, the Government adopted open-sky policy and allowed air taxi- operators to
operate flights from any airport, both on a charter and a non charter basis and to decide their own
flight schedules, cargo and passenger fares. In 1994, the Indian Government, as part of its open
sky policy, ended the monopoly of IA and AI in the air transport services by repealing the Air
Corporations Act of 1953 and replacing it with the Air Corporations (Transfer of Undertaking and
Repeal) Act, 1994. Private operators were allowed to provide air transport services. Foreign direct
investment (FDI) of up to 49 percent equity stake and NRI (Non Resident Indian) investment of up
to 100 percent equity stake were permitted through the automatic FDI route in the domestic air
transport services sector. However, no foreign airline could directly or indirectly hold equity in a
domestic airline company.
By 1995, several private airlines had ventured into the aviation business and accounted for
more than 10 percent of the domestic air traffic. These included Jet Airways Sahara, NEPC Airlines,
East West Airlines, ModiLuft Airlines, Jagsons Airlines, Continental Aviation, and Damania Airways.
But only Jet Airways and Sahara managed to survive the competition. Meanwhile, Indian Airlines,
which had dominated the Indian air travel industry, began to lose market share to Jet Airways and
Sahara. Today, Indian aviation industry is dominated by private airlines and these include low cost
carriers such as Deccan Airlines, Go Air, Spice Jet etc., who have made air travel affordable.
1
Airline industry in India is plagued with several problems. These include high aviation turbine
fuel (ATF) prices, rising labor costs and shortage of skilled labor, rapid fleet expansion, and intense
price competition among the players. But one of the major challenges facing Indian aviation industry
is infrastructure constraint. Airport infrastructure needs to be upgraded rapidly if Indian aviation
industry has to continue its success story. Some steps have been taken in this direction. Two of
India’s largest airports-Mumbai and New Delhi-were privatized recently. Two greenfield airports
are coming up at Bangalore and Hyderabad in southern India. Investments are pouring into almost
all aspects of the industry, including aircraft maintenance, pilot training and air cargo services. The
future prospects of Indian aviation sector look bright.
History of Delhi Airports
The first airport of Delhi, the Safdurjang Airport, was built around 1930. The airport, earlier
known as Palam Airport, was built around the World War II and served as an Air Force Station for
the Indian Air Force. Passenger operations were later shifted to the airport from Safdurjang Airport
in 1962 due to an increase in traffic. Palam Airport had a peak capacity of around 1300 passengers
per hour.
Owing to an increase in air traffic in the 1970s, an additional terminal with nearly four times
the area of the old Palam terminal was constructed. With the inauguration of a new international
terminal (Terminal 2), on 2 May 1986, the airport was renamed as Indira Gandhi International (IGI)
Airport.
Public private partnership.
On 31 Jan 2006, the then Civil Aviation Minister Praful Patel announced that the empowered
Group of Ministers has agreed to hand over the management of Delhi Airport to the DIAL consortium
and the Mumbai airport to the GVK-led consortium.
On May 2, 2006, the management of Delhi and Mumbai airports was handed over to the
private consortia.
Delhi International Airport Limited (DIAL) is a consortium of the GMR Group (50.1%), Fraport
AG (10%) and Malaysia Airports (10%), India Development Fund (3.9%) and the Airports Authority
of India retains a 26% stake.
Statistics
The old Palam terminal is now known as Terminal 1 and handles all domestic flights. The
terminal is divided into three separate terminals - 1A (for domestic flights of state owned Air India,
MDLR and Go Air), 1B (was used by other domestic airlines, now closed and demolished), the
Domestic Arrival Terminal (1C) and the newly-constructed 1D (now used by all remaining domestic
airlines). There is also a separate Technical Area for VVIP passengers. Additionally there is a
separate terminal for Hajj flights.
Indira Gandhi International Airport
Indira Gandhi International Airport (IATA: DEL, ICAO: VIDP) is the primary airport of the National
Capital Region of Delhi, situated in West Delhi, 16 km (10 mi) southwest of New Delhi’s city
center. Named after Indira Gandhi, the former Prime Minister of India, it is the busiest airport in
India in terms of daily flight traffic and second busiest in term of passenger traffic in India after
Mumbai’s Chhatrapati Shivaji International Airport. With the commencement of operations at the
new Terminal 3, Delhi’s Indira Gandhi International Airport has become India’s and South Asia’s
largest and most important aviation hub, with a current capacity of handling more than 46 million
passengers and aimed at handling more than 100 million passengers by 2030. It along with Mumbai’s
Chhatrapati Shivaji International Airport, handles more than half of the air traffic in South Asia. For
2
the period of Apr–Nov 2010, it was the busiest airport in terms of international and overall passenger
traffic.
The airport serves as the primary civilian aviation hub for the National Capital Region of India.
It was previously operated by the Indian Air Force until its management was transferred to the
Airport Authority of India. In May 2006, the management of the airport was passed over to Delhi
International Airport Limited (DIAL), a joint venture led by the GMR Group, which also has the
responsibility for the airport’s ongoing expansion and modernization.
In 2007, the airport handled 23 million passengers annually and the planned expansion program
will increase its capacity to handle 100 million passengers by 2030. The new Terminal 3 building
has had the capacity to handle an additional 34 million passengers annually since the start of the
2010 Commonwealth Games. Indira Gandhi’s Terminal 3 is the world’s eighth largest passenger
terminal. In September 2008, the airport inaugurated a 4.43 kilometer-long runway. Indira Gandhi
International Airport (IGIA) was conferred the fourth best airport award in the world (in the 15–25
million categories) and Best Improved Airport in the Asia-Pacific Region by Airport Council
International.
Owing to the booming Indian Aviation industry and the entry of numerous low-cost private
carriers, the airport saw a huge jump in passenger traffic and has failed to cope with the demand.
The capacity of Terminal 1 is estimated to be 7.15 million passengers per annum (mppa). However,
the actual throughput for 2005/06 was an estimated 10.4 million passengers. Including the
international terminal (Terminal 2), the airport has a total capacity of 12.5 million passengers per
year, whereas the total passenger traffic in 2006/07 was 16.5 million passengers per year In 2008,
total passenger count at the airport reached 23.97 million.
Delhi Airport has two parallel runways and a near-parallel runway: Runway 11/29 (14,534 ft
(4430m)) with CAT IIIB ILS on both sides and the main runway 10/28 (12,500 ft (3,810 m)) as well
as an auxiliary runway 09/27 (9,229 ft (2,813 m)). Runway 10/28 and Runway 11/29 are the only
two in South Asia to have been equipped with the CAT III-B instrument landing system. In the winter
of 2005 there were a record number of disruptions at Delhi airport due to fog/smog. Since then
some domestic airlines have trained their pilots to operate under CAT-II conditions of a minimum
350 m (1,150 ft) visibility. On 31 March 2006, IGI became the first Indian airport to operate two
runways simultaneously following a test run involving a Spice Jet plane landing on Runway 28 and
a Jet Airways plane taking off from Runway 27 at the same time.
The initially proposed method of simultaneous takeoffs caused several near misses over
west side of the airport where the centerlines of Runways 10/28 and 9/27 intersect. The runway
use method was changed to segregated dependent operations from 25th Dec 2007 which was a
few days after the deciding near miss involving Qatar airways Airbus A330-200 and an Indigo A320
aircraft. The new method involved use of Runway 28 for all departures and Runway 27 for all
arrivals. This method which was safe and more reliable was followed till 24 September 2008.
On 21 August 2008, the airport inaugurated the 4.43 kilometer long runway 11/29. The runway
has one of the world’s longest paved threshold displacement of 1460m. This in turn decreases the
available landing length on Runway 29 to 2970m. The purpose of this large threshold displacement
is primarily to reduce noise generated by landing aircraft over nearby localities. The runway increases
the airport’s capacity to handle 85 flights from the previous 54-60 flights per hour. The new runway
was opened for commercial operations on 25 September 2008.
Terminals
IGI Airport is the home of several Indian airlines including Air India, Air India Regional, Indian
Airlines, IndiGo, JetLite, SpiceJet, Jet Airways, Kingfisher Airlines, GoAir use IGI Airport as their
secondary hub. Approximately 80 airlines serve this airport. There are Six operational terminals
making up this airport, they are the following:
3
Terminal 1 – Domestic Terminal 1A
Terminal 1A was built in the early 1990s to cater to Indian Airlines domestic flights only. It had
to be refurbished after a fire gutted the interiors. DIAL, the owner of the airport, has significantly
upgraded this terminal. It now sports a new look with modern washrooms and facilities, however
will be torn down on the completion of newer terminals which are expected to finish construction in
the coming years. It was formerly used by Air India Regional until it moved to the new Terminal 3 on
11 November 2010. It is closed and now its domestic flights have been shifted to terminal 1D.
Terminal 1B
Terminal 1B has been closed for operations after the opening up of Terminal 1D which opened
in April 2009.
Terminal 1C
The terminal in which all domestic operations arrive. The terminal is compact, however has
received a new greeting area with expanded space, and a bigger luggage reclaim area.
Terminal 1D
Terminal 1D is the brand new interim domestic terminal, that was inaugurated on 26 February
2009. All domestic flights were moved to this new building from the second week of April, 2009. It
is almost double the size of the older Terminal 1B. Terminal 1D has the capacity to handle 10
million passengers per year. Terminal 1D commenced operations on 15 April 2009. It is currently
used by GoAir, IndiGo, SpiceJet.
Terminal 2
However, constructed in the 1980s, it was also in desperate need of repair. This sign of
distress was taken care of before the inauguration of the Terminal 3. The entire terminal has been
upgraded. It has been repainted; glass windows have replaced the old dark ones; floors have been
refitted with tiles, walls and ceilings now have new surfaces, more immigration and emigration
counters have been implemented, new seats have been brought in, new baggage belts, more
business lounges, eateries, and duty free shops had also been added, which have now moved to
the newer Terminal 3. Terminal 2 will work in tandem with T3, until the proposed T4 terminal is built,
upon which it will be demolished as per the proposed master plan. The terminal is currently out of
commission.
Terminal 3
Terminal 3, a state-of-the-art and integrated terminal, is the world’s eighth largest passenger
terminal. It occupies 502,000 m² (5.4 million sq ft), with a capacity to handle 34 million passengers
annually.
Designed by HOK working in consultation with Mott MacDonald, the new Terminal 3 is a twotier building, with the bottom floor being the arrivals area, and the top being a departures area. This
terminal has 168 check-in counters, 78 aerobridges at 48 contact stands, 30 parking bays, 72
immigration counters, 15 X-ray screening areas, for less waiting times, duty-free shops, and other
features. Over 90% of passengers will use this terminal when completed. This new terminal had
been completed in time for the 2010 Commonwealth Games, which were held in Delhi, and will be
connected to Delhi by an eight-lane motorway (National Highway 8), and the Delhi Mass Rapid
Transit System. The terminal was officially inaugurated on 3 July 2010, and there were nine flights
to test the operational readiness of the new terminal and its ground handling capabilities. All
International Airlines shifted their operations to the new terminal in late July 2010, and all full service
domestic carriers mid-November onwards.
4
T3 has India’s first automated parking management & guidance system in a multi-level car
park, which comprises 7 levels and a capacity of 4300 cars. The Parking System is designed in
such a way that a person wishing to park can find space within 5 minutes with the help of an
electronic dynamic signage.
Terminal 3 will form the first phase of the airport expansion in which a ‘U’ shaped building will
be developed in a modular manner. In 2010, all international and full service domestic carriers will
operate from Terminal 3, while Terminal 1 will be dedicated to low cost operations. In subsequent
stages, the low cost carriers will also move to the new terminal complex.
The much awaited go ahead for the domestic airlines to start operations from the new T3
terminal has been given. After passing many hurdles Air India which is also the national carrier will
start its domestic operations from the new T3 terminal from 11 November 2010. Two other airlines
Jet and Kingfisher moved to the new terminal since 14 November 2010 for all their domestic
operations. Terminal 1D is now used exclusively by low cost carrier airlines including GoAir.
Terminal 4 and 5
Terminal 4 and 5 will be built at a later stage, which will be triggered by growth in traffic, and
once completed, all international flights will move to these two new terminals, while Terminal 3 will
then solely be used for handling domestic air traffic. A new cargo handling building is also planned.
According to Delhi International Airport Limited (DIAL), these new terminals will increase the airport’s
annual passenger volume capacity to 100 million.
Hajj Terminal
Upon the annual Muslim pilgrimage of Hajj, specified flights move to this separate terminal to
prevent disruption of other passengers who are traveling to other areas of the globe. A separate
area has been made for Hajj to cater to the abundance of additional travelers during this season,
and to accommodate them with enough provided space. It has a 10 million passengers per year
capacity. It is used from October to December. Plans are underway to use the building for the
remaining 10 months of the year also.
Cargo Terminal
The Cargo Terminal is managed by Celebi Delhi Cargo Terminal Management India Pvt. Ltd.
and handles all cargo operations. The airport received an award in 2007 for its excellent and
organized cargo handling system. It is located at a distance of about 1 km from the main terminal
T3.
Ground transportation
Rail.
The airport is served by the Delhi Airport Metro Express train line. The 22.7 km line runs from
Terminal 3 to New Delhi station of the Delhi Metro.
Road
The airport is connected by the 8-lane Delhi Gurgaon Expressway. Low floor AC buses operated
by DTC regularly run between the airport and the city. Prepaid taxis are also available from the
terminal to all areas of Delhi.
Caterers
Ambassador’s Sky Chef
Chef Air
5
Taj-Sats
Oberoi Flight Services
Sky Gourmet Catering Pvt Ltd
club one air
Fuel Providers
Bharat Petroleum
Hindustan Petroleum
Indian Oil Corporation
Ground handlers
NACIL
Celebi Ground Handling Delhi Pvt. Ltd.
Cambata Aviation
Free facilities at the Airport
Baggage trolleys with break assist
Shuttle bus service from International to Domestic and vice-versa every 20 minutes
Facilitation and information counters
Special room for babies and small children
Play area for kids of different ages
Complementary strollers within the terminal
Specially designed toilets, PCO booths and reserved car parking area for physically challenged
persons
In-terminal medical facility and patient care in collaboration with Medanta
VIP and ceremonial lounges, ground transportation up to aircrafts and car parking
Diplomatic mail transport
Lost and found baggage office
Illuminated information and guidance system
Prayer room
Special smoking area after the security hold
Free Wi-Fi for first 20 minutes
Golf carts for physically challenged, senior citizens and pregnant women.
Paid Services at the airport:
Electronic automated Car Parking. (Premium and General)
Restaurants and snacks bars.
6
Duty free shops.
Shopping Arcade.
Prepaid taxis and car rental services.
Snacks and soft drink vending machines.
Money Exchange and bank counters.
Visitors lounge.
Sleeping pods and pay per use lounges for comfortable sleeping.
ATMs
Baggage rapping service by secure wrap at the Departure Hall
Executive lounges to relax.
Travel insurance desk at the airport.
International telephone cards.
Post Office at the Departure Hall
Other Agencies at the Airport:
Immigration:
The immigration authorities are under the charge of FRRO at the airport who is usually a
Deputy Commissioner of Police. They also work in shifts like Customs and their shifts are headed
by the AFRRO. The Immigration officers are usually from Delhi police and Intelligence Bureau.
They record the arrival and departure of all the passengers. Their primary job is to check the travel
documents and compare the passenger’s particulars with the LOC’s (Look Out Circulars) in
their system. Their computer system and the data base is controlled by the Intelligence Bureau.
The LOC’s are usually filed by the police organizations, economic intelligence agencies, Customs
etc. to keep a tab on the movement of suspected people. The Immigration authorities hand over
the suspects to the concerned agencies. The Deputy Commissioner of Customs Preventive at
the airport is authorized to file LOC’s.
Airlines:
There are various International Airlines operating from Delhi. The Customs has to manage
the balance between Customs checks, passengers’ facilitation and airlines punctuality.
The Station Managers, followed by duty Managers as shift in-charge, supervisors and counter
staff usually manage the airlines at airports. The supervisors and counter staff are known by
various designations viz. servi1ce directors, agents etc. Most of the airlines have city offices handling
sales and reservations. The airlines at airport are dependent on Customs for facilitation of their
passengers.
Departures: The airlines file their passengers Manifest one hour before opening of their
counter. They are also required to file General Declaration giving details of the flight, crew and the
passengers at the time of departure as well as arrivals. The Customs Officer is also required to
collect Report form for the Foreign Travel Tax from the Airlines before departure of the flight.
Arrival: The airlines also assist the passengers in clearance of mishandled baggage with
the assistance of the Customs. It can be re-exported, sent to other Customs stations under bond,
or can be cleared at the airport itself. The airlines also file Direct Transit R/R slips for baggage and
7
passengers in the transit at the airport. They also file IGM and EGM, which is essential for clearance
of the cargo as well. The modification of the data is prerogative of the Customs in case of errors
or omissions. The Customs Officers also enter the special flights.
Health Services:
Airport Health Organization (APHO) is from Ministry of Health which issues Death Certificates
and monitored the flow of passenger from African and South American countries where yellow
fever etc. to prevalent. Medicare to provide by M.I. Room which is under control of DIAL. Yellow
fever vaccines are given at International Airport itself to the persons who were not administered the
same, however the mission/ embassy check the yellow fever certificates prior to issuing of visas.
To the passengers departing to African countries, yellow fever vaccines are given at Domestic
Airport.
Quarantine:
The Plant and animal quarantine clearance is a must for clearance of animals and plants in
certain cases. The Animal Quarantine Officer is available at Kapashera, near Airport.
Banks:
There are Foreign Exchange Counters run by Central Bank of India and Thomas Cook. They
allow exchange of currency as per RBI rules and regulations. The Central Bank of India is also
authorized to collect Customs Duty.
Security Agencies:
The security Agencies have come to occupy an important role at the airport especially after
Kandahar hijack case. Though the airport is a notified area the entry and exit at the airport is
managed by CISF(Central Industrial Security Force). Prior to Kandahar case, it was with Delhi
Police. The CISF is headed by a DIG rank Officer followed by the Commandant rank officer. The
Commandant T-3 has four deputy commandants under him. CISF works in shifts like customs.
Each shift is headed by one Assistant Commandant followed by Inspectors, sub inspectors, ASIs,
Head Constables, and constables. CISF has three control rooms to coordinate their activities.
They have been authorized to manage the airport security and control the movement of people
inside the airport. They check the entry passes for the staff working at the airport and tickets of
passengers at the airport. The Customs also keeps a check on the movement of people inside the
Customs area. The Customs officers are allowed a free excess to all parts of the airport. However
they are allowed to undergo security checks before entering the sterile area. The CISF is equipped
with modern weapons, closed circuits cameras, X Ray machines and sniffer dogs.
The second rung of the security belongs to airlines. They scan all checked in baggage of the
passengers with the help of their own staff. Some airlines like American Airlines have their own
security check systems.
The Bureau of Civil Aviation Security (BCAS) is the premium agency for overall security of all
the airports. They issue permanent duty passes on the recommendation of various departmental
heads working at the airports. They also issued temporary passes for staff working at the airport
and to passengers to clear of their mishandled/ detained baggage on recommendation of customs.
The D.C./A.C of the Customs is the authorized signatory for the recommendation of issue of
temporary/ courtesy passes. The Bomb Detection and Disposal Staff is also a part of BCAS.
Animal Quarantine: They are housed at Kapashera, near the Airport. The Customs Officer shall
refer the pets to the Animal Quarantine before giving clearance to the pets.
8
Section – 2
PASSENGER CLEARANCE SYSTEM
2.1
The Airport Structure
11
2.2
Arrival Procedure
11
2.3
Assessment and Clearance of Baggage
12
Issue of Detention Receipt (DR)
13
Preparation of various Documents
13
Currency Declaration
13
Mishandled Baggage
13
Clearance of Tourists
2.4
2.5
Import of Pet Animals
14
Import of Sample as BaggageImport of baggage of a Deceased Person
15
Personal effects of Indian Defense Forces on duty abroad, who are dead,
missing, etc.
15
Import of Food Items, Plants and Seeds as baggage
15
Import of Food Stuff provisions (excluding fruit products alcohol and
tobacco) by foreigners.
15
Exemption to Certain Privileged Persons
15
Exemption to Diplomatic Persons
15
Exemptions to officials of U N O
15
Departure
15
Checking passengers against whom alerts are issued
16
Duties of Customs Officers
16
Duties of Baggage Officer
16
Guide for Baggage Officers in discharging their functions
17
Station Duty Officer (Arrival)
18
Gate Officer
19
Air Custom Officer (Departure)
19
Station Duty Officer (Departure)
19
Escort Flights
20
Duties of Air Customs Superintendent
21
9
10
Section – 2
PASSENGER CLEARANCE SYSTEM
2.1 The Airport Structure
Customs at airports have the following major responsibilities:
(i)
Assessment and collection of Customs duties
(ii)
Compliance with restrictions and prohibitions regarding import and export of goods under
the Customs Act and other allied acts.
Creation of airport infrastructure is extremely expensive. It is utmost necessary to make
efficient usage of the available infrastructure. Treatment meted out to international travelling
community has important bearing on:
(i)
Foreign Investments, and
(ii)
Tourist arrivals.
Both these have important bearing on the overall economy of the nation. At the same time
Customs have to guard against the dangers arising out of the import of goods of social,
environmental and security concerns e.g. Narcotics, arms and ammunitions, wildlife and plant
produce and protect the Indian industry from unfair economic practices e.g. import of counterfeit
goods, foreign exchange manipulations, import / export of restricted goods.
Customs have therefore to ensure that their controls are carried out in a manner as to facilitate
large majority of genuine passengers while intelligently discriminating those who attempt to violate
the laws. Targeting and profiling are keys to this approach. Thus optimal balance between facilitation
and compliance is absolutely necessary.
From the point of view of customs the airport structure can be broadly divided into the following
three categories:
i)
Arrival Hall
ii)
Departure Hall
iii)
Tarmac Area
While the procedures relating to arrival and departure are described here below, tarmac
control is discussed in Section 12.
2.2 Arrival Procedure
On disembarkation from the flights and completion of immigration formalities, passengers
enter the Arrival Hall and passengers carrying dutiable or restricted goods are identified and advised
to report subsequently at one of the Red Counters. Passengers with prohibited goods are taken up
for investigations.
The passengers collect their checked-in baggage from the belts. Sensitive cargo is released
under preventive supervision.
The passenger can chose one of the two channels of clearance:
i)
Red Channel
:
for passengers with dutiable or
restricted goods; and
ii)
Green Channel
:
for other goods.
11
Passengers required to declare currency or claiming TR facility report at the specified red
channel.
Separate counters have been earmarked for the following categories of passengers:
1.
Mishandled Baggage
2.
Currency and Gold Declaration
3.
Crew Clearance
4.
ATA Carnet
5.
General Declaration
The passengers walking through green channel are by and large allowed to go uninterrupted.
The passengers who are profiled to be suspicious or whose baggage appear dutiable or restricted
are taken up for preliminary enquiry by the Deputy Commissioner (Shift) or Superintendent
(Preventive-I) or one or more officers of preventive. Baggage of the suspect passengers at this
stage is also diverted for x-ray. Wherever the baggage is believed to be dutiable or restricted, the
passenger is diverted for detailed examination (DE) at one of the red counters.
2.3 Assessment and Clearance of Baggage
Any passenger reporting at red counter for the purpose of assessment and clearance of his
baggage is required to first fill up the Customs portion of the disembarkation card, in particular the
value and sign in front. The Customs officer thereafter obtains oral declaration of the contents of
his baggage on the reverse of this card, known as Oral Declaration (OD) card. The number of the
counter where declaration is taken is also mentioned on top of the card. The passenger signs the
card and the same is also signed and stamped by the ACO and the ACS concerned if the declaration
is accepted. In case of doubt the baggage is opened and examined and the correct contents
reflected. Minor deviations in excess of dutiable allowances are cleared on charging duty. However,
significant deviations in excess of dutiable allowance are subjected to adjudication proceedings.
The officer also examines the passport of the passenger to ascertain his legal entitlement in
terms of the baggage allowance and also to see possibility of frequent record of commercial
travels. In appropriate cases, the passenger is handed over to preventive for personal search and
detailed x-ray of the contents of the baggage.
The Process of assessment involves the following:
1.
Valuation of the contents of the baggage. (Explained in Section-4 of this Handbook)
2.
Understanding of the travellers’ status, his free allowances and application of the correct
rate of duty. (Explained in Section-3 of this Handbook)
3.
Awareness of the prohibitions and restrictions. (Explained in Section-5 of this Handbook)
Certain goods are required to be treated differently and have been covered in detail in Section6 of this Handbook. The Commercial travelers are treated differently in certain situations. The
provisions are explained in detail in Section-7 of this Handbook. Clearance of Privileged persons
e.g. diplomats also requires a separate procedure and is explained in Section-9 of this Handbook.
All efforts should be made to deal with the passenger expeditiously and politely. Officers are
expected to maintain their cool even when passenger appears agitated. Cases of extreme nature
are reported to the Deputy Commissioner (Shift) and recorded in the Incident Register.
Some special areas of work are as follows:
12
2.3.1 Issue of Detention Receipt (DR)
In the event of passenger’s inability to clear the goods at the time of arrival, or where the
Customs need to complete their enquiry for the proper assessment or when the goods are required
to be adjudicated by a person other than the officer available on the spot, the goods are detained in
the warehouse. The detention receipt should be carefully made to reflect the complete facts of
detention, in particular the following:
1.
The reasons for detention;
2.
Brief description of the offence, if any:
3.
Free allowance availed on the spot;
4.
The number of previous visits;
5.
Description of goods and value declared by the passenger; and
6.
Weight.
This helps in the adjudication proceedings being carried out without the need to look at other
records, which is not readily accessible due to the non-availability of the shift staff when the
passenger approaches.
Section 80 of Customs Act enables detention of goods for re-export. The essential ingredients
of this Section are:(i)
Truthful declaration
(ii)
The goods may be dutiable or prohibited / restricted
(iii) The goods can be exported by the passenger or through any other passenger or as
cargo
However, care should be taken that this facility is availed in bonafide cases and not to circumvent
situations in which a well-informed passengers finds lack of conducive environment to clear his
goods illegitimately. Also refer to Para 6.36 of Chapter 6 on re-export of Imported Goods.
2.3.2 Preparation of Various Documents
In the preparation of various documents like Oral Declaration card, Baggage Receipt,
Detentions Receipt, Adjudication order, the detailed description of the goods, particularly, make,
model, brand etc. should be clearly written. The practice of giving a general description is prone to
misuse. All these documents should bear the stamp of the officer below the respective signature
or at least the name in capital letters.
2.3.3 Currency Declaration
Passengers bringing foreign currency in excess of the prescribed amounts (fully covered
under Section 6 ) are required to obtain the currency declaration form from the specified counter.
Currency declaration form of passengers bringing foreign currency in excess of USD 10,000 or
equivalent is signed by the Deputy Commissioner personally. High valued currency declarations
are carefully noted for subsequent control.
2.3.4 Mishandled Baggage
The passenger whose baggage is mishandled is issued Property Irregularity Report (PIR) by
the concerned airline. The passenger is expected to approach the Customs counter for mishandled
baggage and obtain the endorsement as to the amount of free allowance availed by him in order to
claim the unutilized portion when the remaining baggage arrives.
13
The mishandled baggage of passenger is also cleared from this counter, either on the spot by
the concerned airline under the simplified procedure or subsequently by the passenger or his
authorized representative
2.3.5 Clearance of Tourists
A large number of passengers coming are tourists, both Indians and foreigners. The definition
of tourist and allowances available have been explained in detail in Section 1 For the sake of
uniformity, Board has issued instructions vide Circular No. 72/98-Cus. dated 24.1.98 that the following
items are allowed to be cleared by tourist as personal effects.
Personal jewellery
One camera with film rolls not exceeding twenty
One video camera/camcorder with accessories and with video cassettes not exceeding twelve
One pair of binoculars
One portable colour television (not exceeding 15 cms in size)
One music system including compact disc player
One portable typewriter
One perambulator
One tent and other camping equipment
One computer (laptop/ note book)
One electronic diary
One portable wireless receiving set (transistor radio)
Professional equipments, instruments and apparatus of appliances including professional
audio/video equipments
Sports equipments such as one fishing outfit, one sporting fire arm with fifty cartridges, one
non-powdered bicycles, one canoe or ranges less than 51 meters long, one pair of skids, two
tennis rackets, one golf set (14 pcs. with a dozen of golf balls)
One cell phone.
The Baggage Rules allow only used personal effects. However, it is not necessary to verify
newness of each product as long as the goods do not prima-facie appear new or are in their
original package to be dispensed of offhand. The practice of endorsing passport of high valued
items has been dispensed with.
2.3.6. IMPORT OF PET ANIMALS
Domestic pets like dogs, cats, birds etc. may be imported. Import of animals and birds is
governed by strict health certificates regulations and Live-stock Importation Act, 1888. (For details
see chapter 6)
2.3.7 IMPORT OF SAMPLE AS BAGGAGE
India is a signatory to 1952 Convention to facilitate the importation of commercial samples
and Advertising material. The Notification issued in this regard enables duty free import of genuine
commercial samples into the country for smooth flow of trade. (For details see chapter 6)
14
2.3.8 IMPORT OF BAGGAGE OF A DECEASED PERSON
Used bonafide personal and household effects belonging to a deceased person are exempt
from whole of Customs duties when imported into India subject to the condition that a certificate
from the concerned Indian Embassy/ High Commission is produced that the goods belonged to
the deceased person. (For details see chapter 6)
2.3.9 PERSONAL EFFECTS OF INDIAN DEFENSE FORCES ON DUTY ABROAD, WHO ARE
DEAD, MISSING, ETC.
The personal effects of any person who dies or is wounded or is taken prisoner of war while
on duty out of India with Indian Naval, Military or Air force, when imported into India for delivery to the
next of kin, are exempt from the whole of the duty of customs and from the whole of the additional
duty leviable thereon. (For details see chapter 6)
2.3.10 IMPORT OF FOOD ITEMS ,PLANTS AND SEEDS AS BAGGAGE
Import of food items, plants and seeds is strictly regulated according to the provisions of
Prevention of Food Adulteration Act,1954, Plants Seeds (regulation of Import into India) Order(PFS
Order) 1989 issued under Distractive Insects and Pets Act,1914. (For details see chapter 6)
2.3.11 IMPORT OF FOOD STUFF PROVISIONS ( EXCLUDING FRUIT PRODUCTS
ALCOHOL AND TOBOCOO) BY FOREIGNERS.
Foreign nationals are allowed to import Food Stuff for their consumption to an extent of
Rs.1,00,000 in a year for their personal consumption without payment of duty in terms of notification
No.207/89-Cus dated 17.7.89 as amended. (For details see chapter 6)
2.3.12 Exemption to Certain Privileged Persons
Certain privileged persons are exempt from Customs duties
President of India
Vice President of India
(Notification No. 106-cus dated 29.03.1958)
Governor of the Indian state
(Clause 9 of G.O.I. Governor’s Allowance and
privileges) order 1950 dated 01.01.1950.
iv)
Official Gifts received by Ministers/officials on foreign tours
(Notification No. 326/83-cus dated 23.12.1983.
(For details see chapter 9)
2.13.13
Exemption to Diplomatic Persons
These dignitaries may include the diplomats
Of foreign origin accredited to India
Of foreign not accredited to India
Indian diplomat returning to home
(For details see chapter 9)
2.4 Departure Procedure
Routine stamping of the embarkation cards in departure has been dispensed with from
September 10, 2001. The detailed procedure applicable for the checking of passengers is, contained
in Officer Order No. 195/2001 dated 30.8.2001. The list of select passengers is made based on
prior profiling or purely for surprise checking and given to concerned airline before the start of
15
check-in formalities. The boarding passes passengers are stamped in a manner as to facilitate
their identification at the reporting before Customs and their baggage is tagged in a manner that it
does the Customs area without prior clearance. When any of these passengers reports at the
Customs departure counter the passport and ticket are looked at and polite ring made to see
whether they need to be subjected to detailed checking. Particulars of passengers whose baggage
is subjected to examination or are searched recorded in the prescribed registers.
The following indicators help in the proper profiling of the suspect passengers:
Examine the passport of passenger thoroughly.
Examine the ticket and travel itinerary of the passenger.
Examine whether passenger is destined to sensitive location or is enroute going to sensitive
location known for drug and currency smuggling.
Find out as to what is the profession of the passenger
Examine as to what is the reason for travel of the passenger.
Examine as to what is the source of financing the travel by the passenger.
Examine the ticket of passenger to determine whether he has booked the ticket at short
notice and against cash payment.
Examine as to whether the passenger has paid additional luggage charges to the airline, and
whether all the baggage tags put on the bags of the passenger tally with those put on the
tickets
Examine as to what is the amount of currency passenger is carrying.
Examine as to what is the past history of the passenger, whether he has been found carrying
drugs or currency in past.
Examine the movements of passenger and his behavior during the examination, which would
be the suitable guide for determining whether the passenger is carrying any goods concealed
or not
Some special areas of work are as follows:
2.4.1 Checking passengers against whom alerts are issued.
Immigration hands over from time to time certain passengers against whom alerts issued by
the DRI or locally. These passengers are required to be acted upon, in the respective alert. Basically
the alert can be either for arrest or for search / examination. In the later case the passenger should
be subjected to quick search / examination ensuring that he is not made to miss his flight. This
aspect is covered in detail separately in this Handbook.
2.5 Duties of Customs Officers
2.5.1 Duties of Baggage Officer
i
Passengers diverted or reporting at the red counters should be greet professional and
courteous manner and asked to make the baggage declaration in the prescribed manner,
filling up the required particulars, including counter number, value, and signing the same.
ii
After completion of baggage declaration by the passenger baggage should inform the
passenger about his duty liability. In case passenger is required to pay any duty and the
baggage officer is satisfied with his declaration he should politely ask the passenger to go
16
after completing his Oral Declaration Card and after both ACS & ACO have signed the same
and stamped.
iii
In case the baggage officer is not satisfied with the declaration of the pass he should politely
tell the passenger so and go in for the open examination the baggage of the passenger.
iv
After completion of examination the officer should inform the passenger about his duty liability
and prepare documents for payment of duty(BR). In case passenger is not in position to
deposit the duty then on the request of passenger the goods are detained and detention
receipt (DR) made in prescribed Performa.
v
In case the baggage is not capable of being assessed on the spot then he should detain the
goods after informing the passenger the need of appraisement and clearance as per the law.
vi
In case the baggage of passenger comprise goods which are in commercial quantity or
which cannot be called the bonafide baggage of the passenger the matter should be brought
to the knowledge of the Deputy, Commissioner Shift who would examine and adjudicate the
case if it is within his fiscal power of adjudication or get the baggage detained for adjudication
by the Additional Commissioner.
vii
In all cases of examination, the baggage officer should assist the passenger in the repackaging
of goods.
2.5.2 Guide for Baggage Officers in discharging their functions
Attitude
Before a baggage officer starts dealing with the passenger he should develop the attitude
with following in mind; he must be in-charge of situation at all the times have positive approach and
be confident that he is capable of performing the task assigned to him he is capable of detecting
concealment and knows the law be firm but, polite and courteous maintain cool in all situations
avoid unnecessary arguments Selection of Passengers for examination: When the passenger
reports at the counter or is diverted, the officer should examine his appearance, passport, tickets,
dress, type of baggage and personality of the passenger before taking any action further. Following
would be suitable indicators for proceeding further with the examination of the passenger
Origin and Movement: Whether the passenger is coming from the area that has been
identified as the sensitive area. Further whether passenger have been in recent past to such
sensitive area, and whether nationality of the passenger is consistent with the place from where
he is arriving
Type of Baggage and Appearance of the Passenger: Visually examine and see whether
the appearance of the passenger is consistent with the type of baggage. A scruffy looking passenger
with a new looking suitcase should be a cause of suspicion.
Passport: It carries the complete details of the past visits made by the passenger. It should
be examined in detail to get the overall profile of the passenger and type of placed he has been
visiting.
Ticket: The ticket of the passenger should be examined for his trip details and also with
regards to the mode of payment etc. of ticket have been, booked at short notice and is cash paid
should cause a doubt with regards to the passenger and his baggage. Return tickets originating
from India for foreign nationals should be a cause of grave suspicion.
Questioning:
Following are relevant questions:
17
Journey: Where the passenger is coming from. If he had any halts in between etc.
Residence: What is the place of normal residence of the passenger? If the passenger is
tourist then where he intends to stay in India, type of hotel and lodges in which passenger would
stay.
Reasons for travel: Tourism, Business or official. Type of business of the passenger and
supporting documents.
Baggage: Whether the baggage of the passenger is his own, or he is carrying the baggage
handed over by someone else also. Check whether baggage carried by the passenger tallies with
the baggage tags.
Contents of the Baggage: Do the passenger have knowledge of the contents of the baggage
and whether the baggage packed by himself or in his presence.
Whether passenger is carrying some restricted or prohibited goods?
The answers to the above questions and the behavior of the passenger during this questioning
would be a definite guide to the baggage officer to proceed further
(d) Examination of the Baggage: This is the major exercise to be undertaken by the baggage
officer. Lot of discretion and caution should be exercised by the officer in choosing to open the
baggage. The officers should be polite and discreet while opening and examining the baggage of
passenger.
–
before opening the baggage try to establish the value of baggage with the passenger
–
undertake X ray examination where ever possible before opening the baggage, to
determine the type and nature of the contents of the baggage.
–
If on opening and on initial examination the baggage appears to be normal do not proceed
further with unpacking the baggage of passenger
–
For carrying out the detailed examination unpack the baggage completely and prepare
the detailed inventory of the baggage
–
Also examine the containers for any concealment, false bottoms, and cavities while
examining the baggage in detail.
–
Help the passenger repack his goods after the examination.
2.5.3 Station Duty Officer (Arrival)
He will maintain the inwards entry register in the prescribed form.
He has to ensure that airlines file all the relevant papers with regards to the arrival of flight
within the prescribed time and in prescribed number.
He will co- ordinate with the bank and maintain register with regards to the payment of duty in
the bank
He will maintain register about the baggage deposited by the airlines in the interline warehouse,
get the baggage deposited in the interline warehouse in his presence & allow clearance from the
interline warehouse in his presence only.
Maintain the register with regards to the keys of various rooms in the Office, valuable goods
godown etc & keep in his control these keys.
Maintain the charge register and the goods. He should deposit all the goods with valuable or
other relevant godown at the earliest opportunity.
18
2.5.4 Gate Officer
–
keep general watch over the movement of the passengers in the baggage hall
–
keep watch over the movement of the airline and other staff in and out of the baggage
hall.
–
Maintain Gate Register and allow entry only to the authorized visitors and staff members
in the baggage hall after entering the details in the Gate Register.
–
Collect the Oral Declaration Cards from the outgoing passengers.
–
Collect the manifest from the Airlines prior to the clearance of any passenger from the
baggage hall. Make entry inthe IGM Register.
–
Tally the oral declaration cards with the manifest and see that Oral declaration Cards
from all the passengers shown in the manifest is collected
–
At the end of the shift he should deposit the Oral declaration Cards and manifest with the
SDO (A) for onward submission to ACS (Records).
–
Ensure that no baggage from the mishandled baggage counter or warehouse leaves the
baggage hall without proper gate pass.
Keep the senior officers informed of any suspicious activities.
2.5.5 Air Customs Officer (Departure)
–
Make entry in the EGM register
–
To man the Custom Counter in the departure hall and guide the passengers with regard
to custom formalities etc
–
To submit the list of flights departed to Commr. of Customs (Exports), NCH, New Delhi.
–
Verify the boarding cards of the passenger and check whether the passenger have been
marked for RR check. In case passenger is not ‘marked for RR check he should allow
the passenger to go .to the security, area for further boarding the aircraft.
–
In case of the RR marked passenger examine the passport of the passenger and
question the passenger with regards to his baggage etc and make a general profile
about him. In case he finds that the passenger is not normal passenger allow him to
proceed for security check. In case of doubt the officer should for the check in baggage
of the passenger and examine the same.
–
Maintain record about the RR marked and checked passengers and hand the same
over to the SDO (Departure) for completion of his records.
Stamp the boarding cards of all the RR marked passengers as a token of having checked
them before they are allowed to proceed to the security area maintain record about checking the
same on the manifest available at the counter and submit the same to SDO (Departure) before he
signs the departure GD of the flight. This has to be done in coordination with SDO (Dep.).
2.5.6 Station Duty Officer (Departure)
–
To maintain the outgoing flight information register indicating the schedule outgoing flights,
the expected time of departure of the flights etc.
–
To maintain the out-going check register complete in all respect indicating details of the
passenger marked for RR checks and outcome of such checks.
19
–
Maintain the currency declaration file containing the details of the high currency declared
by the passenger at the time of arrival.
–
Sign the departure GD after ensuring that all the custom formalities to a the flight to take
off have been completed including the clearance of all the marked passengers.
–
Maintain general discipline in the departure hall and report about absenteeism etc to the
ACS(Dep).
–
Maintain records etc in the departure hall and see that flights are not un delayed because
of Custom formalities
–
Co-ordinate and ensure that airlines submit the departure manifest we advance
–
Maintain the miscellaneous reports file
Maintain and co-ordinate with other officers posted in departure hall
–
Supervise the clearance of goods detained for Re export.
–
Assist in issuance of the export certificates.
2.5.7 Escort Flights
Domestic Airlines have a privilege of carrying domestic passengers along the international
passengers if they are touching two domestic airports before taking off for a foreign destination or
on a terminal flight. This is made possible by posting an Escort Officer from Customs who secretly
escorts the domestic passenger.
Duties of the Escort Officer
–
He is present at the time of clearance of the domestic passengers at the Customs
Counter, when a flight carrying both domestic and international passenger being cleared.
–
He takes the baggage declaration of domestic passengers and checks baggage
declaration form and signs them.
–
He ensures that the baggage of the domestic passengers is loaded in separate hold in
cargo and do not gets mixed up with the baggage of the international passenger.
–
He ensures that the domestic passengers are seated in aircraft totally separate from the
international passenger and there is no intermixing of the two. Even the toilets used by
two categories of passengers are separate and domestic passengers should not use
the toilets meant for international passengers.
–
Keep watch over the international and domestic passengers and see that no transaction
takes place between two onboard.
–
Carries the baggage declaration forms with him in the flight and hands it over to the
destination domestic station for the clearance of these domestic passengers.
–
On reaching the destination escort the domestic passengers with their hand baggage
from the aircraft to the baggage hall.
–
In case of any untoward incident onboard the flight should inform the senior most officer
on duty at the destination port.
20
–
Carry important letters and documents and such other packages which are handed
over to him and ensure prompt delivery of the same:’
2.5.8 Duties of Air Customs Superintendent
1.
Air Customs Superintendent have the duty to ensure high level of discipline in respect of
staff posted under him and ensure that no passengers are unduly harassed by the
officers under him.
2.
He has to ensure that the systems and procedure working in the area of work allocated
to them are in place not only on the day of the duty but also previously. Any discrepancy
on this account should be brought to the notice of his supervisor.
3.
They have to liaise with other agencies for the efficient discharge of Customs functions
and also to help other agencies discharge their functions without unnecessary
obstructions by Customs.
21
Section – 3
DUTIABILITY
3.1
Baggage Classification
25
3.2
Baggage Rules
25
Categories of Passengers
25
a)
Tourist
25
b)
Residents:
25
3.22
Allowances in terms of Baggage Rules
26
Duty free allowance and entitlements for Indian residents and foreigners
residing in India.
26
Duty free allowance and entitlements for Tourists
28
23
Section – 3
DUTIABILITY
3.1 Baggage Classification
All goods imported by a passenger or a member, of crew in his baggage are classifiable
under one heading / subheading 98.03 of the Schedule to Customs Tariff Act 1975. Such goods
need not be classified separately in the Tariff except motor vehicles, alcoholic drinks, goods imported
through courier service. Such assessment will, however, not apply to goods imported by a passenger
or a member of the crew under an import license or a customs clearance permit.
The effective rate as applicable to the items classifiable in this head in terms of notification no
136/90-Cus (Annexure-1) as amended is 35%. Additional duty on the items of baggage has been
exempted vide exemption notification no. 183/86 dated 1st March 1986 (Annexure 2). Special
Additional duty on the items of baggage has been exempted vide exemption notification no. 19/
2001 dated 1st March 200l( Annexure 3). Apart from the above the exemption notification no. 49/
96 dated exempts/prescribes effective rate of duty for specific goods when imported by the
passenger in his personal baggage subject to the conditions prescribed therein.
The amended Baggage Rules is as per Annexure 4 to this chapter.
Alcoholic Liquor and Motor Vehicles by the virtue of chapter note to the chapter 98 do not get
classified under heading 9803.00 and are classified in the respective chapter heading. Alcoholic
Liquors get classified in the chapter 22 and attract duty leviable under that chapter. Exemption
Notification No 37/2001 (Annexure 5) prescribes the rate of additional duty leviable on alcoholic
liquors. There are other exemption notifications which are applicable to the baggage of the passenger
subject to the conditions specified therein. Table I lists the rate of duties applicable in specific
cases and also the exemption notifications applicable.
3.2 Baggage Rules:
In terms of sec 79 of the Customs Act, 1962 Baggage Rules have been framed which also
exempt the items imported by a passengers in his baggage up-to the limits prescribed therein for
various categories.
3.2.1 Categories of Passengers
The definition of certain categories of passengers is necessary to know their entitlements.
The Baggage Rules define some of these categories as follows:
a)
Tourist
Tourist is a passenger: who is not normally a resident in India; who enters India for a stay of
not more than six months in the course of any twelve months period for legitimate nonimmigrant purposes, such as touring, recreation, sports, health, family reasons, study, religious
pilgrimage, or business;
b)
Residents:
A person holding a valid passport issued under the Passports Act, 1967 (15 of 1967) and
normally residing in India.
The terms “resident of India” and “Non Resident Indians” have also been defined in FEMA
and Income Tax Acts as follows:
25
As per Foreign Exchange Management Act, 1999 a person resident outside India means a
person who is not resident in India.
Person resident in India includes:
1.
A person residing in India for more than 182 days during the preceding financial year except
a.
A person who has gone out of India or stays outside India for or on taking up employment
outside India.
b.
A person who has gone out of India or stays outside India for carrying on a business or
vocation outside India.
c.
A person who has gone out of India or stays outside- India for any other purpose, in such
circumstances as would indicate his intention to stay outside India for an uncertain period.
d.
A person who has come to or stays in India otherwise than for or on taking up an
employment in India.
e.
A person who has come to or stays in India otherwise than for carrying on a business or
vocation in India.
f.
A person who has come to or stays in India otherwise than for any other purpose, in
such circumstances and would indicate his intention to stay in India for an uncertain
period.
Every other person is non-resident in India, if control and management of his affairs is wholly
situated outside India.
As per Indian Income Tax Law, an individual may be categorized as:
1.
Resident and ordinarily resident in India.
2.
Resident but not ordinarily resident in India
3.
Non resident in India.
The above definitions of tourist, residents of India and Non-residents would clearly imply that
for a person to be categorized as tourist to India following factors should be taken into account:
The place of normal stay during the past one year.
The place from where the person controls and manages his affairs
The purpose for which the person is entering into India should be one of specified touring,
recreation, sports, health, family reasons, study, religious pilgrimage, or business, and not
immigrating into India.
A careful study of the passport and purpose of visit to India will indicate whether the person
qualifies as tourist or is a resident of India
3.2.2 Allowances in terms of Baggage Rules
DUTY FREE ALLOWANCES AND ENTITLEMENTS FOR INDIAN RESIDENTS AND
FOREIGNERS RESIDING IN INDIA
A Resident means a person holding a valid passport issued under the Passports Act, 1967
and normally residing in India
26
For passengers coming from countries other than
(a) Nepal, Bhutan, Myanmar, or China.
(b) Pakistan by Land Route
Duty Free allowance for bonafide baggage
consisting of
For passengers of age
(i)
Used personal effects (excluding jewellery)
required for satisfying daily necessities of life
(ii)
Other articles carried in person or in
accompanied baggage
(a) if Stay abroad for more than three days
(b) if Stay abroad up to three days
10 years and above
below 10 years
Free
Free
Valued up to
Rs.25000/Valued up to
Rs.6,000/-
Valued up to
Rs.12000/Valued up to
Rs.3000/-
Note:
1. The free allowance shall not be pooled with the free allowance of any other passenger.
2.
The free allowance is not applicable to the following goods:
Fire arms.
Cartridges of fire arms exceeding 50.
Cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 grams.
Alcoholic liquor or wines in excess of 2 litres.
Gold or silver, in any form, other than ornaments.
3.
One laptop computer (notebook computer) over and above the said free allowances mentioned
above is also allowed duty free if imported by any passenger of the age of 18 years and above
4.
The goods over and above the free allowances shall be chargeable to customs duty @ 35%
Adv + an education cess of 3% i.e. to say the effective rate is 36.05% Adv.
5.
Alcoholic drinks and tobacco products imported in excess of free allowance are chargeable
to customs duty at the rates applicable to their commercial imports as per the Customs Tariff
Act.
6.
Import of Indian currency is prohibited. However, in the case of passengers normally resident
of India who are returning from a visit abroad Indian currency up to Rs. 7500/- is allowed.
7.
Incase the value of one item exceeds the duty free allowance, the duty shall be calculated
only on the excess of such amount.
II.
For passengers coming from
(i)
Nepal, Bhutan, Myanmar, or China, other than by land route
(ii)
Pakistan by land route
27
Duty Free allowance for bonafide baggage
consisting of
For passengers of age
10 years and above
below 10 years
(i)
Used personal effects (excluding jewellery)
required for satisfying daily necessities of life
Free
Free
(ii)
Other articles carried in person or in
accompanied baggage
(a) Stay abroad for more than three days
(b) Stay abroad up to three days
Valued up to
Rs.6000/-
Valued up to
Rs.1500/-
Nil
Nil
Note:
1.
The free allowance shall not be allowed to be pooled with the free allowance of any other
passenger.
2.
The free allowance is not applicable to the following goods:
Fire arms.
Cartridges of fire arms exceeding 50.
Cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 grams.
Alcoholic liquor and wines in excess of 2 litres each.
Gold or silver, in any form, other than ornaments.
3.
One laptop computer (notebook computer) over and above the said free allowances mentioned
above is also allowed duty free if imported by any passenger of the age of 18 years and above
4.
The goods over and above the free allowances shall be chargeable to customs duty @ 35%
+ an education cess of 3% i.e. to say the effective rate is 36.05%.
5.
Alcoholic drinks and tobacco products imported in excess of free allowance are chargeable
to custom duty at the rates applicable to their commercial imports.
6.
Import of Indian currency is prohibited. However, in the case of passengers normally resident
of India who are returning from a visit abroad Indian currency up to Rs. 7500/- is allowed.
7.
Incase the value of one item exceeds the duty free allowance, the duty shall be calculated
only on the excess of such amount.
III.
For passengers coming from Nepal, Bhutan, Myanmar or China by Land Route
Duty Free allowance for bonafide baggage
consisting of
(i)
(ii)
For passengers of age
Used personal effects (excluding jewellery)
required for satisfying daily necessities of life
Other articles carried in person or in
accompanied baggage
10 years and above
below 10 years
Free
Free
Nil
Nil
DUTY FREE ALLOWANCES AND ENTITLEMENTS FOR TOURISTS
28
WHO IS A TOURIST?
A tourist is a passenger
a)
who is not normally a resident in India;
b)
who enters India for a stay of not more than six months in the course of any twelve months
period for legitimate non-immigrant purposes, such as : touring, recreation, sports, health,
family reasons, study, religious pilgrimage, or business;
A tourist arriving in India shall be allowed clearance free of duty articles in his bonafide baggage
to the extent as mentioned below:Articles allowed free of duty
I
Tourists of Indian origin other than
those coming from Pakistan by
land route
(i)
Used personal effects and travel souvenirs,
if (a) These goods are for personal use of the
tourist, and
(b) These goods, other than those consumed
during the stay in India, are re-exported when
the tourist leaves India for a foreign
destination.
(ii) duty free allowances applicable to Indian
Residents.
II
Tourists of foreign origin other than
those of Nepalese origin coming
from Nepal or of Bhutanese origin
coming from Bhutan or of
Pakistani origin coming from
Pakistan.
(i)
Used personal effects and travel souvenirs,
if
(a) These goods are for personal use of the
tourist, and
(b) These goods, other than those consumed
during the stay in India, are re-exported when
the tourist leaves India for a foreign
destination.
(ii) Articles up to a value of Rs-8000/- for making
gifts.
III
Tourists of Nepalese origin coming
from Nepal or of Bhutanese origin
coming from Bhutan.
No free allowance.
IV
Tourists of Pakistani origin or
foreign tourists coming from
Pakistan or tourists of Indian
origin coming from Pakistan by
land route
(i)
Used personal effects and travel souvenirs,
if
(a) These goods are for personal use of the
tourist, and
(b) These goods, other than those consumed
during the stay in India, are re-exported when
the tourist leaves India for a foreign
destination.
(ii) Articles up to a value of Rs.6000 for making
gifts.
29
Annexure-1
Notification No. 136/90-Cus Dated 20-03-90
Effective rates of duty on goods imported as baggage.- 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 Ministry of Finance (Department of Revenue) No. 58Customs, dated the 1st March, 1983, the Central Government, being satisfied that it is necessary
in the public interest so to do, hereby exempts articles falling under heading No. 98.03 of the First
Schedule to the Customs Tariff Act, 1975 (51 of 1975), specified in column (1) of the Table hereto
annexed, when imported into India by a passenger or a member of a crew as baggage, from so
much of the duty of customs leviable thereon which is specified in the said First Schedule, as is in
excess of the amount calculated at the rate specified in the corresponding entry in column (2) of
the said Table.
TABLE
Description of Articles
Rate
Any article the value of which exceeds the duty
free allowance admissible to such passenger
or member under the Baggage Rules, 1998
35% ad valorem
On the unaccompanied baggage
35% ad valorem
Explanation - Where the value of any one article exceeds the duty free allowance admissible to
such passenger or member under the Baggage Rules, 1994, the amount of duty shall be calculated
only on the value in excess of the duty free allowance so admissible to the extent not availed of by
such passenger or member for clearing any other article of baggage, if any.
2.
Nothing contained in this notification shall apply to (i)
omitted;
(ii)
fire arms;
(iia) cartridges of fire arms exceeding 50;
(iii) cigarettes, cigars or tobacco in excess of the quantity prescribed for importation free of
duty under the relevant baggage rules; and
(iv) omitted;
(v)
3.
goods imported through a courier service.
This notification shall come into force on the 1st day of April, 1990. as amended by Notification
Nos. 113/92-Cus dt 1-3-1992, No. 158/92-Cus dt 8-4-1992, No. 84/93-Cus dt 28-2-1993, No.
131/93-Cus dt 15-6-1993, No. 92/94-Cus dt 1-3-1994, No. 130/94-Cus dt 15-6-1994, No. 66/
95-Cus dt 16-3-1995, No. 48/96-Cus dt 23-7-1996, No. 19/97-Cus dt 1-3-1997, No. 28/98Cus dt 2-6-1998, No. 20/2001-Cus dt 1-3-2001, No. 28/2003-Cus dt 1-3-2003, No. 33/2004Cus dt 3-2-2004 and No. 16/2005-Cus dt 1-3-2005.
30
Annexure 2
Notification No. 183/86-Cus Dated 01-03-86
Exemption from additional duty on baggage imported by passenger or crew member. –
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 Ministry of
Finance (Department of Revenue) No. 194-Customs, dated the 26th September, 1980, the Central
Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all
goods falling under heading No. 98.03 of the First Schedule to the Customs Tariff Act, 1975 (51 of
1975), when imported into India by a passenger or a member of the crew as baggage, from the
whole of the additional duty leviable thereon under section 3 of the said Customs Tariff Act.
As amended by Notification No. 48/96-Cus dt 23-7-1996.
31
Annexure 3
Seeks to exempt specified goods falling in the First Schedule to the Customs Tariff Act
from Special Additional Duty (SAD) of Customs.
Notification No. 19/2001- Customs 1st March, 2001
In exercise of the powers conferred by sub-section (1) of section 3A of the Customs Tariff
Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act), the Central Government,
having regard to the maximum sales tax, local tax or any other charges for the time being leviable
on the like goods on their sale or purchase in India, hereby specifies the rates of special additional
duty as indicated in column (4) of the Table below in respect of goods, when imported into India,
specified in corresponding entry in column (3) of the said Table and falling within the Chapter,
heading No. or sub-heading No. of the First Schedule to the Customs Tariff Act as are specified in
the corresponding entry in column (2) of the said Table :
Provided that in respect of the goods specified against S. Nos. 30, 31, 32, 42 and 43 of the
said Table, “Nil” rate shall be subject to the conditions, if any, subject to which the goods are
exempt either partially or wholly from the duty of customs leviable thereon which is specified in the
First Schedule to the Customs Tariff Act.
Table
S. No. Chapter or Description of goods
heading
No.or subheading No.
Standard rate
(1)
(2)
(3)
(4)
40.
98.03
All goods imported by a passenger or a
member of a crew as baggage in terms
of the notification of the Government of
India in the Ministry of Finance
(Department of Revenue), No. 136/90Customs, dated the 20th March, 1990,
or No. 137/90-Customs, dated the
20th March, 1990
Nil
(T. R. Rustagi )
Joint Secretary to the Government of India
F.No .334/ 1/2001-TRU
32
Annexure 4
Notification No. 30/98-Cus. (N.T.), dated 2-6-1998 amended vide Notification no. 29/1999Cus (N.T.) dated 11-05-1999, Notification No. 11/2002 - Customs (N.T.) dated 01/03/2002,
Notification No. 05/2004 - Customs (N.T.) dated 08/01/2004, Notification No. 13/2004 Customs (N.T.) dated 03/02/2004, Notification No. 30/2005 - Customs (N.T.) dated 04/04/
2005, Notification No. 50/2000 - Customs (N.T.) dated 09/08/2000 & Notification No. 76/2006
- Customs (N.T.) dated 30/06/2006
1.
Short title and commencement.(1) These rules may be called the Baggage (Amendment) Rules, 2006.
(2) They shall come into force on the 30th day of June, 2006.
2.
Definitions. - In these rules, unless the context otherwise requires,- “appendix” means an
Appendix to these rules;
“resident” means a person holding a valid passport issued under the Passports Act, 1967 (15
of 1967) and normally residing in India;
(iii) “tourist” means a person not normally resident in India, who enters India for a stay of not
more than six months in the course of any twelve months period for legitimate nonimmigrant purposes, such as touring, recreation, sports, health, family reasons, study,
religious pilgrimage or business;
(iv) “family” includes all persons who are residing in the same house and form part of the
same domestic establishment;
(v)
“professional equipment” means such portable equipments, instruments, apparatus and
appliances as are required in his profession, by a carpenter, a plumber, a welder, a
mason, and the like and shall not include items of common use such as cameras,
cassette recorders, dictaphones, personal computers, typewriters, and other similar
articles.
3.
Passengers returning from countries other than Nepal, Bhutan, Myanmar or China.- An
Indian resident or a foreigner residing in India, returning from any country other than Nepal,
Bhutan, Myanmar or China, shall be allowed clearance free of duty articles in his bona fide
baggage to the extent mentioned in column (2) of Appendix A. Provided that such Indian
resident or such foreigner coming by land route as specified in Annexure IV, shall be allowed
clearance free of duty articles in his bonafide baggage to the extent mentioned in column (2)
of Appendix ‘B’.”
4.
Passengers returning from Nepal, Bhutan, Myanmar or China. - An Indian resident or a foreigner
residing in India, returning from Nepal, Bhutan, Myanmar or China, other than by land route,
shall be allowed clearance free of duty articles in his bona fide baggage to the extent mentioned
in column (2) of Appendix B.
5.
Professionals returning to India. - An Indian passenger who was engaged in his profession
abroad shall on his return to India be allowed clearance free of duty, in addition to what he is
allowed under rule 3 or, as the case may be, under rule 4, articles in his bona fide baggage to
the extent mentioned in column (2) of Appendix C.
6.
Jewellery. - A passenger returning to India shall be allowed clearance free of duty jewellery in
his bona fide baggage to the extent mentioned in column (2) of Appendix D.
7.
Tourists. - A tourist arriving in India shall be allowed clearance free of duty articles in his bona
fide baggage to the extent mentioned in column (2) of Appendix E.
33
8.
Transfer of residence. - (1) A person who is transferring his residence to India shall be
allowed clearance free of duty, in addition to what he is allowed under rule 3 or, as the case
may be, under rule 4, articles in his bona fide baggage to the extent mentioned in column
(1) of Appendix F, subject to the conditions, if any, mentioned in the corresponding entry in
column (2) of the said Appendix.
(2) The conditions may be relaxed to the extent mentioned in column (3) of the said
Appendix.
9.
Provisions regarding unaccompanied baggage. - (1) Provisions of these Rules are also
extended to unaccompanied baggage except where they have been specifically excluded.
(2) The unaccompanied baggage had been in the possession abroad of the passenger and
is dispatched within one month of his arrival in India or within such further period as the
Assistant Commissioner of Customs or Deputy Commissioner of Customs may allow.
(3) The unaccompanied baggage may land in India up to 2 months before the arrival of the
passenger or within such period, not exceeding one year, as the Assistant Commissioner
of Customs or Deputy Commissioner of Customs may allow, for reasons to be recorded,
if he is satisfied that the passenger was prevented from arriving in India within the period
of two months due to circumstances beyond his control such as sudden illness of the
passenger or a member of his family, or natural calamities or disturbed conditions or
disruption of the transport or travel arrangements in the country or countries concerned
or any other reasons, which necessitated a change in the travel schedule of the
passenger.
10. (1) Application of these Rules to members of the crew. - The provisions of these Rules shall
apply in respect of members of the crew engaged in a foreign going vessel for importation
of their baggage at the time of final pay off on termination of their engagement.
Provided that except as specified in this sub-rule, a crew member of a vessel shall be
allowed to bring items like chocolates, cheese ,cosmetics and other petty gift items for
their personal or family use which shall not exceed the value of rupees six hundred.
(2) Notwithstanding anything contained in these rules a crew member of an aircraft shall be
allowed to bring items gifts like chocolates, cheese, cosmetics and other petty gift items
at the time of the returning of the aircraft from foreign journey for their personal or family
use which shall not exceed the value of rupees six hundred.
34
Appendix ‘A’
(See rule 3)
(1)
(a)
Articles allowed free of duty (2)
All passengers of and above
10 years of age and returning after
stay abroad of more than three days.
(i)
(ii)
(b)
All passengers of and above
10 years of age and returning after
stay abroad of three days or less.
(i)
(ii)
(c)
All passengers up to 10 years of
age and returning after stay abroad
of more than three days.
(i)
(ii)
(d)
All passengers up to 10 years of
age and returning after stay abroad
of three days or less.
(i)
(ii)
Used personal effects, excluding jewellery,
required for satisfying daily necessities of
life.
Articles other than those mentioned in
Annex. I up to a value of Rs. 25,000 if
these are carried on the person or in the
accompanied baggage of the passenger.
Used personal effects, excluding jewellery,
required for satisfying daily necessities of
life.
Articles other than those mentioned in
Annex. I up to a value of Rs. 12,000 if these
are carried on the person or in the
accompanied baggage of the passenger.
Used personal effects, excluding jewellery,
required for satisfying daily necessities of
life.
Articles other than those mentioned in
Annex. I up to a value of Rs. 6,000 if these
are carried on the person or in the
accompanied baggage of the passenger.
Used personal effects, excluding jewellery,
required for satisfying daily necessities of
life.
Articles other than those mentioned in
Annex. I up to a value of Rs. 3,000 if these
are carried on the person or in the
accompanied baggage of the passenger.
Explanation. - The free allowance under this rule shall not be allowed to be pooled with the free
allowance of any other passenger.
35
APPENDIX B
(See rule 4)
(1)
(i)
(2)
Passengers of and above 10 years
of age and returning after stay
abroad of more than three days.
(i)
(ii)
(ii)
Passengers up to 10 years of age
and returning after stay abroad of
more than three days.
(i)
(ii)
Used personal effects, excluding jewellery,
required for satisfying daily necessities of
life.
Articles other than those mentioned in
Annex. I up to a value of Rs. 6,000 if these
are carried on the person or in the
accompanied baggage of the passenger.
Used personal effects, excluding jewellery,
required for satisfying daily necessities of
life.
Articles other than those mentioned in
Annex. I up to a value of Rs. 1500 if these
are carried on the person or in the
accompanied baggage of the passenger.
Explanation. - The free allowance under this rule shall not be allowed to be pooled with the free
allowance of any other passenger.
36
APPENDIX D
(See rule 6)
(1)
Jewellery (2)
Indian passenger who has been residing
abroad for over one year.
(i)
(ii)
Jewellery up to an aggregate value of
Rs. 10,000 by a gentleman passenger, or
Up to aggregate value of Rs. 20,000 by a
lady passenger.
APPENDIX E
(See rule 7)
(1)
Articles allowed free of duty (2)
(a)
Tourists of Indian origin coming to
India other than tourists of Indian
origin coming by land routes as
specified in Annexure IV;
(i)
used personal effects and travel souvenirs,
if (a) these goods are for personal use of the
tourist, and
(b) these goods, other than those consumed
during the stay in India, are re-exported
when the tourist leaves India for a foreign
destination.
(ii) articles as allowed to be cleared under rule
3 or rule 4.
(b)
Tourists of foreign origin other
than those of Nepalese origin
coming from Nepal or of Bhutanese
origin coming Bhutan or of Pakistani
origin coming from Pakistan.
(i)
used personal effects and travel souvenirs,
if (a) these goods are for personal use of the
tourist, and
(b) these goods, other than those consumed
during the stay in India, are re-exported
when the tourist leaves India for a foreign
destination.
(ii) articles up to a value of Rs.8000 for making
gifts.
(c)
Tourists of Nepalese origin coming
from Nepal or of Bhutanese origin
coming from Bhutan.
No free allowance.
(d)
Tourists – (i) of Pakistani origin
coming from Pakistan other
than by land routes;
(ii) of Pakistani origin or foreign
tourists coming by land routes
as specified in Annexure IV;
(iii) of Indian origin coming by
land routes as specified in
Annexure IV.
(i)
used personal effects and travel souvenirs,
if
(a) these goods are for personal use of the
tourist, and
(b) these goods, other than those
consumed during the stay in India, are
re-exported when the tourist leaves India
for a foreign destination.
(ii) articles up to a value of Rs. 6000 for
making gifts.
37
APPENDIX F
(See rule 8)
Articles allowed free of duty
Conditions
Relaxation that may be
considered
(a) Used personal and
household articles,
other than those listed
at Annex. I or Annex. II,
but including the article
listed at Annexure III and
jewellery up to ten
thousand rupees by a
gentleman passenger or
rupees twenty thousand
by a lady passenger.
(1) Minimum stay of two
years abroad, immediately preceding the date
of his arrival on TR,
(2) total stay in India on
short visit during the 2
preceding years should
not exceed 6 months,
and
(3) passenger has not
availed this concession
in the preceding three
years.
(a) For condition
(1) Shortfall of up to 2
months in stay abroad
can be condoned by
Assistant Commissioner
of Customs or Deputy
Commissioner of
Customs if the early
return is on account of :
(i) terminal leave or vacation
being availed of by the
passenger; or
(ii) any other special
circumstances.
(b) For condition
(2) Commissioner of
Customs may condone
short visits in excess of 6
months in deserving
cases.
(c) For condition
(3) No relaxation
(b) Jewellery taken out
earlier by the passenger
or by a member of his
family from India.
Satisfaction of the Asstt.
Commissioner of Customs
regarding the jewellery
having been taken out earlier
from India.
—
Annex I
1.
Firearms.
2.
Cartridges of fire arms exceeding 50.
3.
Cigarettes exceeding 200 or cigars exceeding 50 or tobacco exceeding 250 grams
4.
Alcoholic liquor or wines in excess of two litres .
5.
Gold or silver, in any form, other than ornaments.
Annexure II
1.
Colour Television or Monochrome Television.
2.
Digital Video Disc Player.
3.
Video Home Theatre System.
38
4.
Dish Washer.
5.
Music System.
6.
Air-Conditioner.
7.
Domestic refrigerators of capacity above 300 litres or its equivalent .
8.
Deep Freezer.
9.
Microwave Oven.
10. Video camera or the combination of any such video camera with one or more of the following
goods, namely:(a) Television Receiver;
(b) Sound recording or reproducing apparatus;
(c) Video reproducing apparatus.
11. Word Processing Machine.
12. Fax Machine.
13. Portable Photocopying Machine.
14. Vessel.
15. Aircraft.
16. Cinematographic films of 35 mm and above.
17. Gold or Silver, in any form , other than ornaments.
Annexure III
Video Cassette Recorder or Video Cassette Player or Video Television Receiver or Video
Cassette Disk Player.
Washing Machine.
Electrical or Liquefied Petroleum Gas Cooking Range
Personal Computer( Desktop Computer)
Laptop Computer( Notebook Computer)
6.Domestic Refrigerators of capacity up to 300 litres or its equivalent.
Annexure IV
Amritsar:
(1) Amritsar Railway Station
(2) Attari Road
(3) Attari Railway Station
(4) Khalra
39
Baroda:
(5) Assara Naka
(6) Khavda Naka
(7) Lakhpat
(8) Santalpur Naka
(9) Suigam Naka
Delhi:
(10) Delhi Railway Station
Ferozpur District:
(11) Hussainiwala
Jodhpur Division:
(12) Barmer Railway Station
(13) Munabao Railway Station
Baramullah District:
(14) Adoosa
Poonch District:
(15) Chakan-da-bagh
40
Annexure 5
Notification No. 37/2001-Customs the 31st March, 2001
In exercise of the powers conferred by proviso to sub-section (1) of section 3 of the Customs
Tariff Act, 1975(51 of 1975) which has been inserted by sub-clause (a) of clause 110 of the Finance
Bill, 2001, which clause has, by virtue of the declaration made in the said Finance Bill under the
Provisional Collection of Taxes Act, 1931 (16 of 1931), the force of law, the Central Government,
having regard to the excise duties for the time being leviable on like alcoholic liquors produced or
manufactured in different states, or the excise duties which would be leviable for the time being in
different states on the class or description of alcoholic liquor, as the case may be, hereby specifies,
on goods of the description specified in column (3) of the Table below, and falling under the heading
Nos. of the First Schedule to the said Customs Tariff Act as are specified in the corresponding
entry in column (2) of the said Table, when imported into India, the rates of additional duty specified
in the corresponding entry in column (4) of the said Table.
Table
S.No. Heading No.
Description of goods
Rate of additional duty
(1)
(2)
(3)
(4)
1.
22.03,
22.04,
22.05,
22.06, or
22.08
All goods put up in bottles or cans or any
other packing, for ultimate sale in retail and
having a CIF price,-not exceeding US $ 20
per case; exceeding US $ 20 but not
exceeding US $ 40 per case;
exceeding US $ 40 per case
Explanation: For the purpose of this
notification, (i) a “case” shall mean a
packing containing a total volume of
nine litres of liquor;
(ii) the CIF price of any goods put up in
packings of a size other than nine litres
shall be determined on a pro-rata basis.
150% ad val.
2.
100% ad val.
75% ad val.
This notification shall come into force on the 1st day of April, 2001.
(F.No. B1/2/2001-TRU)
41
42
Section-4
Valuation
4.1
Statutory Provisions
45
4.2
Valuation of Baggage
45
4.3
Valuation of old and used articles
47
4.4
Determination of value for different duties
47
43
Section-4
Valuation
4.1 Statutory Provisions
The rates of customs duties leviable on imported goods (& export items in certain cases)
are either specific or on ad valorem basis or at times specific cum ad valorem When customs
duties are levied at ad valorem rates, i.e., depending upon its value becomes essential to lay down
in the law itself the broad guidelines for such valuation to avoid arbitrariness.
Value for Customs purposes is defined in Section 2(41) of the Customs Act, 1962 which reads as
follows:
“Value” in relation to any goods to mean the value thereof determined in accordance with the
provisions of sub-section (1) of Section 14 thereof.”
Sub-section (1) of Section 14 in turn states that when a duty of customs is chargeable on any
goods by reference to their value, the value of such goods shall be deemed be:
“the price at which such or like goods are ordinarily sold, or offered for sale delivery at the time
and place of importation or exportation, as the case maybe, in the course of international trade,
where the seller and the buyer have no interest in the business of each other and the price is the
sole consideration for the sale for sale or offer for sale”.
As far as export goods are concerned, provisions of sub-section (1) of Sec 14 provide a
complete code of valuation by itself. On the other hand, for imported as per sub-section (1A) of
Section 14, the value is required to be determined in accordance with rules made in this behalf.
Accordingly, the Customs Valuation (Determining Price of Imported Goods) Rules, 2007 have
been framed and notified under Notification No.94/2007 (N.T) dated 13.9.2007. The Customs
Valuation Rules, closely follow the WTO Customs Valuation Agreement to implement Article VII of
GATT.
The transaction price declared can also be rejected when the proper customs officer has
reasons to doubt the truth or accuracy of the value declared & if even after furnishing of further
information/documents or other evidence produced, proper officer is not satisfied & has reasonable
doubts about the value declared.
4.2 VALUATION OF BAGGAGE
Baggage is a separate class of goods in itself for assessment. The baggage differs from
other cases in a number of ways and hence cannot be subjected to principles of valuation as laid
down in the Rules 3 to 7A of Customs Valuation Rules. The major points of difference being:
—
There is no sale of goods in course, of international trade.
—
The sale of goods would not be at the time of importation:
—
The sale / purchase of goods in case of baggage is in retail and not in bulk. Hence, the
principles of comparative / similar goods would not be applicable. .
—
The exporter and importer is the same person.
In view of the above the Valuation of baggage is to be done in accordance with the Rule 9 of
Customs Valuation Rules read with the provisions of Section 14 of the Customs Act 1962. An
analysis of the Section 14 will show that value determined for the purpose of assessment by the
45
Customs is an:
—
Indicative price.
—
Charged in the course of international trade.
—
At the time of importation into India.
—
When buyer and seller have no interest in each other.
—
Adjusted for various factors like insurance freight etc.
The transaction price at the time of importation is not available in case of baggage, hence the
value has to be determined on the basis of best judgment. Provisions of Rule 9 of Customs
Valuation Rules have to be kept in view in arriving at the value.
9. Residual method. — (1) Subject to the provisions of rule 3, where the value of imported
goods cannot be determined under the provisions of any of the preceding rules, the value shall be
determined using reasonable means consistent with the principles and general provisions of these
rules and on the basis of data available in India :
Provided that the value so determined shall not exceed the price at which such or like goods
are ordinarily sold or offered for sale for delivery at the time and place of importation in the course
of international trade, when the seller or buyer has no interest in the business of other and price is
the sole consideration for the sale or offer for sale.
(2) No value shall be determined under the provisions of this rule on the basis of :(i)
the selling price in India of the goods produced in India;
(ii)
a system which provides for the acceptance for customs purposes of the highest of the
two alternative values;
(iii) the price of the goods on the domestic market of the country of exportation;
(iv) the cost of production other than computed values which have been determined for
identical or similar goods in accordance with the provisions of rule 8;
(v) the price of the goods for the export to a country other than India;
(vi) minimum customs values; or
(vii) arbitrary or fictitious values.
Looking at the large traffic, need for quick clearance, absence of invoices with the traveling
public and common practice of manipulation of such, invoices the airports follow standard prices
as guides in determination of best prices. The pricelists used to determine the value of baggage
for purpose of levy of Custom Duties under section 14, are the prices at which the goods are
normally available in the international market just about the time of arrival of the passenger. These
prices are based on the prices of the goods contained in the baggage of the passenger as are
available on the internet or are determined on the basis of market enquiry. To facilitate and maintain
uniformity in the valuation the department circulates a price list of various items that are being
normally bought by the people in passenger baggage.
The prices mentioned in the price list need to be adjusted by a number of factors e.g.
technological advancements, obsolescence, exchange rate fluctuations for which necessary
directions are issued from time to time.
46
4.3 Valuation of old and used articles
To take into account the period of use the value of the item is depreciated at following rates:
i.
Every quarter during Ist year
4%
ii. Every quarter during 2nd year
3%
iii. Every quarter during 3rd year
2.5%
iv. Every quarter during 4th and thereafter
2%
Subject to maximum depreciation
of 70%
Depreciation up to a maximum of 20% can be allowed by the ACS on counter. In case
passenger claims that item attracts higher depreciation the matter is referred to the Assistant /
Deputy Commissioner who after considering the merits of case can allow further depreciation.
Valuation rules have been framed in accordance with WTO Valuation Agreement and provide
for systematic step wise approach to the determination of the value. Valuation rules have been
discussed in detail in the earlier part of this section.
4.4 Determination of Value for different duties
The calculation of the assessable value for the levy of various types of customs duties is as
follows:
a
Basic Customs Duty (Section 3(i) of
Customs Tariff Act 1975)
Value determined in terms of Section 14
b
Additional Duty (Section 3(ii)) of
Customs Tariff Act, 1975
Section 14 value + Basic Customs
Duty as per ‘a’ above
c
Customs Tariff Act l975 Special
Additional Duty (SAD) (Section 3 of
Customs Tariff Act 1975)
Section 14 value + Basic Customs
Duty as per ‘a’ above + Additional
Duty as per ‘b’ above
d
Safeguard, Anti dumping or
Countervailing duty
Value determined in terms of section 14
The above aspect would be clear by the example below:
Let the assessable value for the purpose of Basic Custom Duty (BCD) be Rs 100/-, BCD be at the
rate of 35% Adv., Additional Duty @ 20%, and SAD @4% then
A
Assessable Value
100
B
Basic Customs Duty
35% of A
35
C
Additional Duty
20% of A + B
27
D
Special Additional Duty
4% of (A+B+C)
6.48
L
Total Duty
B+C +D
68.48
47
Section-5
PROHIBITIONS AND RESTRICTIONS
5.1
Statutory Provisions
51
5.2
Customs Act, 1962
51
5.3
The Foreign Trade (Development and Regulation) Act, 1992
51
5.4
Export Import Policy
51
5.5
Prohibitions and Restrictions under Other Acts
52
5.6
Other Major Allied Acts
52
5.6
Some of the Prohibited Items
52
Prohibited items
52
Restricted items
53
49
Section-5
PROHIBITIONS AND RESTRICTIONS
5.1 Statutory Provisions
The Baggage goods, like any other goods, can only be imported or exported subject to various
prohibitions and restrictions which are imposed in terms of Custom Act, 1962, the Foreign Trade
(Development and Regulation) Act, 1992 and various others laws for the time being in force.
5.2 Customs Act, 1962
Under Section 113 (d), any goods exported or attempted to be exported, contrary to any
prohibition imposed by or under the Customs Act or any other law for the time being in force shall
be liable to confiscation. Section 114 of the Customs Act, 1962 provides for penalty for attempt to
export goods improperly. Similarly, under 111(d) any goods which are imported or attempted to be
imported or are brought within the Indian customs waters for the purpose of being imported, contrary
to any prohibition imposed by or under this Act or any other law for the time being in force shall be
liable to confiscation. Section 112 of the Customs Act provides for penalty for attempt to import
goods improperly
In respect of prohibited goods the Adjudicating Officer may impose penalty up to five times
the value of the goods. It is, therefore, absolutely necessary for the passengers to know what are
the prohibitions or restrictions in force before they contemplate to import or export any goods.
The terms “Prohibited Goods” has been defined in Section 2(33) of the Customs Act as
meaning any goods the import or export of which is subject to any prohibition under the Customs
Act or any other law for the time being in force.
Under section 11 of the Customs Act, the Central Government has the power to issue notification
under which export or import of any goods can be declared as prohibited. The prohibition can
either be absolute or conditional. The specified purposes for which a notification under section 11
can be issued are maintenance of the security of India, prevention and shortage of goods in the
country, conservation of foreign exchange, safeguarding balance of payments etc. The Central
Govt. has issued many notifications to prohibit import of sensitive goods such as coins, obscene
books, printed waste paper containing pages of any holy books, armored guard, fictitious stamps,
explosives, narcotic drugs, rock salt, saccharine, etc.
5.3 The Foreign Trade (Development and Regulation) Act,1992
This Act provides for the development and regulation of foreign trade by facilitating imports
into, and augmenting exports from India and for matters connected therewith or incidental thereto.
The act empowers the Central Government (Ministry of Commerce) to formulate EXIM Policy). By
virtue of Section 3(3) of this Act the provisions of Section 11 of the Customs Act 1962 are made
applicable, thus making it possible for the Customs officers to proceed under various provisions of
the Customs Act, 1962.
5.4 Export Import Policy
Under Export and Import Policy, laid down by the DGFT, in the Ministry of Commerce, certain
goods are placed under restricted categories for import and export. Under section 3 and 5 of the
Foreign Trade (Development and Regulation). Act, 1992, the Central Government can make
provisions for prohibiting, restricting or otherwise regulating the import or export of the goods. The
provisions concerning importability of the goods in baggage are contained in a general way in
51
Paras 4.1 & 4.5 and more specifically, in terms of the EXIM policy. Similarly provisions with regards
to the exportability of the baggage are also in the EXIM Policy.
As per para 4.1 of the EXIM policy, the export and import policy for the baggage shall be as
specified in ITC(HS) under heading 9803 of the EXIM code. Under this head “All dutiable articles
imported by a passenger or a member of crew in his baggage” are declared to be restricted
subject to conditions as provided for under Customs and Baggage rules by saving clause 3(1)(h)
of Foreign Trade( Exemption from application of rules in certain case) Order, 1993.
Thus, the goods exempted from Custom Duties under the Baggage Rules are also exempt
from the licensing restrictions under EXIM Policy 2009-2014.
5.5 Prohibitions and Restrictions under Other Acts
There are number of legislations which prohibit import and export of the goods which are
prohibited or restricted under certain conditions. The effective machinery to enforce or to implement
the prohibitions/restrictions on the import or export is customs.. In certain enactments there is a
deemed provision by which the prohibitions and restrictions imposed under the said act are deemed
to be prohibitions and restriction under section 11 of the Customs Act,1962 e.g. Section 3(3) of the
Foreign Trade (Development and Regulation) Act,1992 and section 67 of the Foreign Regulation
Act,1973. In such cases no separate notification is issued under 11 of the Customs Act,1962.
5.6 Other Major Allied Acts
The Arms Act,1959
The Tea Act, 1953
The Agricultural Produces Cess Act, 1940
The Copy Right Act, 1957
The Antiquities and Treasure Act,1972
The Coffee Act, 1942
The Narcotics and Psychotropic Substances Act, 1985
The Trademarks Act, 1999
The Foreign trade ( Development and Regulation) Act, 1992
The Foreign Exchange Management Act, 1999
The Drugs and Cosmetics Act,1940
The Live Stock Importation Act, 1898
The Prevention of Food Adulteration Act, 1954
5.7. Some of the Prohibited Items
Import and export of some specified goods may be restricted/prohibited under other laws
such as Environment Protection Act, Wild Life Act, Indian Trade Marks Act, 1999, Arms Act, etc.
Prohibition under those acts will also apply to the penal provisions of the Customs Act, rendering
such goods liable to confiscation. It is not possible to list all prohibitions and restrictions. Some of
the more common prohibitions and restrictions both for imports and exports are listed below:
A
Prohibited items
i.
Pornographic and obscene materials.
ii.
Maps and literature where Indian external boundaries have been shown incorrectly.
iii.
Narcotic Drugs and Psychotropic Substances.
52
B
iv.
Counterfeit goods and goods violating any of the legally enforceable intellectual property
right
v.
Wild life products
vi
Counterfeit Indian Currency notes, stamps and coins
vii
Specified Live Birds and animals
viii
Fake currency notes
Restricted items
i.
Telephone, and Telephony equipments of restricted frequencies.
ii.
Arms and ammunition.
iii.
Certain plants and their produce.
iv
Medicines and drugs
v
Foreign Currency in excess of the permissible limits
vi
Certain items of edible consumptions in excess of bonafide personal use
The clearance of goods covered by restrictions is discussed in Section 6 on Special cases
relating to baggage.
53
Section – 6
SPECIAL CASES RELATING TO BAGGAGE
Sl. No. Description
6.1
Goods of Nepalese Origin
59
6.2
Goods of Bhutanese Origin
59
6.3
Import of baggage of deceased person
59
Import of personal effects of the person on duty out of India with the
Indian Naval, Military or Air force or with the Indian Navy
59
6.4
Clearance of Human Bodies/ Remains
59
6.5
Import of Laptop as a part of personal baggage
59
6.6
Import of Food items, Plants and Seeds as baggage
Import of food stuff provisions (excluding fruit products, alcohol &
tobacco) by foreigners
Import of fruits/raisin/dry-fruits/ mushrooms/dry meat in commercial quantity.
Release/detention of import of fruits/raisin/dry-fruits/ mushrooms, dry meat
in commercial quantity
Definition of “Food” and applicability of PFA, 1954
Import of food items, Plants & seeds as Baggage.
60
60
60
60
61
6.7.
Import of Pet animals in baggage
Clearance of live stock and live stock products
61
61
6.8.
Import of sex determination/gender testing kits.
61
6.9.
Import of third party goods by a passenger
61
6.10
Import of Cigarette and Tobacco products.
62
6.11
Import of Medals and Trophies
62
6.12
Import for national programme, exhibitions, seminars or expeditions
62
6.13
Import of Samples as baggage
Bonafide Commercial samples and prototype
Commercial samples
Register for commercial samples (IEC WISE)
62
62
62
62
6.14
Display of notice regarding carrying Khas-Khas (Poppy Seeds),
Indian Pan and Derivative.
63
6.15
Professional Equipments
Special allowances for professionals returning to India
64
55
Sl. No. Description
6.16
Import by accredited journalists
64
6.17
Crew Baggage
65
6.18
Baggage concessions for persons transferring Residence
Filing of Declaration
65
6.19
Special note relating to inclusion of the value of liquor / cigarette etc.
in the overall limit of free allowance admissible to a passenger.
Revision in the Customs part of Arrival Card (Disembarkation card) for
Passengers in Form ‘D’ – Notification issued by Ministry of Home Affairs
66
Currency (Indian & Foreign)
Import & Export of Currency etc.
Definition of Currency
Declaration of Currency
Import of Foreign Exchange/Currency
Import of Indian currency as baggage
Export of India currency
Sale for Foreign Currency
Export of foreign Exchange and currency notes
Export and Import of Currency to or from Nepal and Bhutan
Prohibition on Export of Indian coins covered under Antique and
Art Treasure Act, 1972.
Medical treatment
Cultural Tours
Private Visits
Business Visits
Unspent Foreign Exchange
Release of Foreign Exchange
Retention of Foreign Exchange from previous visits.
Retention of Foreign coins
Prohibition of Import / Export of Indian Currency Notes of
denomination of above Rs. 100/- in India and in Nepal.
67
67
67
67
68
68
68
68
69
69
69
6.20
66
70
70
70
70
70
70
70
71
71
6.21
Import of Unaccompanied baggage (UAB)
71
6.22
A.T.A.
ATA Carnets do not cover
Guarantees for ATA Carnet in India
Import / Export through ATA Carnets
Procedure of imports under ATA Carnet at Airport.
Procedure for exports at Airport
Proforma for tallying import and re-export
Proforma for Import
Proforma for Re-export
72
72
72
72
72
73
73
73
73
6.23
Re-importation of indigenously manufactured(made in India)/imported goods:
Definition of Dutiable goods under section 12/20 of Customs Act 1962
Re-Exportation
74
74
75
56
Sl. No. Description
6.24
Mishandled Goods
76
6.25
Gold & Silver
Import of Jewellery/Gold/Silver
Procedure
Export of gold jewellery as baggage
76
76
77
77
6.26
Medicines/Pharmaceuticals
77
6.27
Import of Satellite Phones as part of hand / checked-in baggage.
77
6.28
Illegal import of Radio frequency equipment especially cellular booster /
repeaters from China
77
6.29(i)
Import of firearms in baggage
78
Imports of Airgun requirement of licence
Import of Air gun by Shooters.
78
6.30
Disposal of imported fire arms imported as a part of baggage by availing
TR concession
78
6.31
Work of art, Antiques & books for public display
78
6.32
Import of Human embryo in the personal baggage of a passenger.
78
6.33
Duty Free Shop at International Airports.
79
6.34
Permission to Indian nationals to buy goods from Duty Free Shop– clarification
by the board
6.35
Exemption to renowned shooters
6.35(i)
Notice to owner of goods before being sold
6.35(ii) Disposal of Consficated good
6.36
Duty free export of samples as personal baggage of the exporter
80
6.37
Issue of Export Certificate
80
6.38
Re export of goods exported
6.39
Temporary export permit issued by ASI under Antique & Treasure Act.
57
Section-6
SPECIAL CASES RELATING TO BAGGAGE
6.1 Goods of Nepalese Origin
Goods of Nepalese origin, imported into India except a few specified ones like alcoholic liquors,
cigarettes and tobacco beverages and their concentrates, perfumes & cosmetics with non-Nepalese
or Non-Indian names, vegetable fats, acrylic yarn etc. are allowed to be imported free of import
restriction and free of the duty of Customs leviable under the First Schedule & from the whole of
Special Additional Duty leviable there on under Section 3A of the Act, and the condition (s) as
stipulated in the Notification No. 40/2002-Cus dated 12.4.02(Annexure 1-a), as amended by
Notification No. 87/2002 Cus dated 27.8.2002(Annexure-1b) & 9/2003 dated 15.1.03 (Annexure1-c) The major condition being that they should be accompanied by a certificate of origin/
manufactured in Nepal by an agency designated by His Majesty’s Government of Nepal to the
satisfaction of Assistant Commissioner / Deputy Commissioner of Customs.
6.2 Goods of Bhutanese Origin
Goods of Bhutanese Origin imported from Bhutan into India are exempted from the whole of
duty of Customs leviable there on under the First Schedule to the Customs Tariff Act, 1975 & Addl.
Duty leviable thereon under Section 3 of the said Act. Notification No. 38/96-Cus dated 23.7.96 as
amended by Notification No. 70/2006-Cus dated 4/7/96 refers. (Annexure-2)
6.3. Import of baggage of deceased person
Used, bonafide personal and household articles of a deceased person are allowed free of
duty subject to the condition that a Certificate from the concerned Indian Embassy/ High Commission
is produced that the goods belonged to the deceased person.
Exemption Notification No. 21/2002-Cus dated 01.03.2002 Entry No. 405, Condition No 88
refers. (Annexure-3)
Import of personal effects of the person on duty out of India with the Indian Naval, Military
or Air force or with the Indian Navy.
The aforesaid personal effects if imported for delivery to the next of kin of such person if he
dies or is wounded, is missing or is taken prisoner of war is exempted form the whole of duty in
terms of Notification No. 39/96 dated 23.07.1996 as amended from time to time. (Annexure-4)
6.4 Clearance of Human Bodies/ Remains
Human bodies/ remains are cleared from the Cargo terminal, where the IFOs effect clearances
round the clock. It is not cleared from the passenger terminal. The IFOs/ officers should adopt a
more humane and sensitive attitude towards the family already grieving the loss of a family
member and no undue hardship be caused to the family in taking delivery of human remains of the
deceased. Board’s letter F.No. 520/32/2004-Cus dated 31.07.2006 refers. (Annexure-5)
6.5 Import of Laptop as a part of personal baggage
A passenger of 18 years or above, other than member of crew, is entitled to import one laptop
computer (note book computer) free of Customs Duty, over and above the free allowance available
to the said passenger. To amplify, it is clarified that the value of the said laptop shall not be included
in the value of the free allowance.
Notification No. 11/2004-Cus dated 08.01.2004 refers. (Annexure-6)
58
6.6 (i) Import of Food items, Plants and Seeds as baggage
Import of food items, plant and seeds is regulated according to the provisions of Prevention of
Food Adulteration Act, Plants, Fruits, Seeds (Regulation of Import into India) Order (PFS) Order,
1989 issued under the Destructive Insects & Pests Act, 1914. The said items are subject to the
quarantine requirements (Annexure 7, 8 & 9). Plants including parts of plants, soil, seeds, fruit,
dry fruits, vegetables, flowers, coffee seeds, coffee beans, cotton and un-manufactured tobacco
should be produced to the Plant Quarantine Officer on duty for inspection of pests and diseases.
Circular No. 36/2001-Cus dated 15.6.2001 has been modified by circular NO.58/2001 dated
25.10.2001 (Annexure 9-a) and further modified by Board’s circular 3/2011 dated
6.1.2011(Annexure 9-b)
Plant Quarantine regulatory measures are operative through the ‘Destructive Insects & Pests
Act, 1914 (Act 2 of 1914) in the country. The purpose and intent of this Act is to prevent the
introduction of any insect, fungus or other pest, which is or may be destructive to crops. The
import of agricultural commodities presently is regulated through the plant Quarantine (Regulation
of Import into India) order, 2003 the provisions of new Policy on Seed Development, 1988. Further,
the significance of Plant Quarantine has increased in view of Globalization in International trade of
plants and material in the wake of Sanitary and Phytosanitary (SPS) Agreement under WTO. The
phytosanitary certification of agricultural commodities being exported is also undertaken as per
International Plant Protection Convention (IPPC), 1951.
Import of food stuff provisions (excluding fruit products, alcohol & tobacco) by
foreigners.
In terms of Notification No. 207/89-Cus dated 17.7.1989(Annexure -10(i)), as amended by
Notification No. 70/2005 –Cus dated 19.7.2005(Annexure-10(ii)), foreign nationals are allowed to
import food Stuff for their consumption without payment of Customs Duty and Additional Duty of
Customs to extent of Rs. 1,00,000/- in a year for their personal consumption.
6.6 (ii) Import of fruits/raisin/dry-fruits/ mushrooms/dry meat in commercial quantity.
No exemption is available to a pax who brings the aforesaid items in commercial quantity.
The same has to be adjudicated & approval of PPQ & Animal Husbandry is required before effecting
Customs Clearances. In terms of PFS Order, 1989 (Annexure-11) cut flowers, garlands, bouquets,
fruits & vegetable weighing less then 2 Kilograms import for personal consumption is allowed
without phytosanitary certificate or import permit.
Board’s instruction dated 25.01.2006 issued from F. No 450/11/2006-Cus. IV is also required
to be complied with. (Annexure - 12)
6.6 (iii) Release/detention of import of fruits/raisin/dry-fruits/ mushrooms, dry meat in
commercial quantity.
A release order is issued to Customs, if a consignment on inspection is found to be free from
pests. However, in case a consignment is found to be infested with live pests, the same is permitted
clearance only after fumigation and re-inspection. The detention order is issued, if the consignment
is imported in contravention of the PQ Regulations, for arranging deportation failing which the
same shall be destroyed at the cost of importer under the supervision of the Plant Quarantine
officer, in presence of Customs officers after giving due notice in advance i.e. for perishable plant
material 24-48 hours and 7 days in other type plant material. (Annexure -13)
“Food” has been defined under Section 2 (v) of the PFA Act, 1954 as under:
“Food” means any article used as food or drink for human consumption other drugs and
water and includes:-
59
any article which ordinarily enters into, or is used in the composition or preparation of, human food,
any flavoring matter or condiments, and any other article which the Central Government may
having regard to its use, nature, substance or quality, declare by notification in the official Gazette,
as food for the purposes of this Act.
6.6 (iv) Import of food items, Plants & seeds as Baggage.
Import of food items, Plants & seeds is regulated by the provisions of section 5.5 of the PFA
1954 & Plants, Seeds Regulations of Import into India Order issued under Destructive Insects &
Pests Act, 1914.
Food has been defined under Section 2 (v) of the PFA Act, 1954. The Hon’ble Supreme Court
held “Supari” as an item of “food” (Annexure 14)
The meaning of Section 2 (v) of PF Act, 1954 and the provision relating to clearance of food
items would be applicable while allowing the clearance.
6.7
Import of pet animals in baggage
Domestic pets like dogs, cats etc are permitted to be imported.
Import of pets up to two numbers per passenger is allowed at one time subject to production
of required health certificate from the country of origin and examination of the said pets by the
Animal Quarantine officer. This is in tune with Customs Circular No. 94/2002-Cus dated 23.12.2002.
(Annexure 15) Additionally, imports of pets over and above this quantity is being allowed only
against an import sanitary Permit issued by the Department of Animal Husbandry and Dairying or
against an import licence issued by the DGFT. This is in tune with DGFT Policy Circular No.
29(RE) 2005/2004-09 dated 6.10.2005. In the absence of the requisite permit, a tourist bringing
more than 2 puppies/kittens, preventive action is taken by Airport Customs. Import of animals and
birds is governed by strict health certificate regulations and Live-stock Importation Act, 1888
(Annexure-16)
Clearance of live stock and live stock products
All livestock & livestock products are to be referred to Quarantine Authorities before Customs
clearance of goods, regardless of any Sanitary Import permit (SIPs) that may have been issued &
clearance should be allowed only after no objection is received from Quarantine authority
CBEC Circular No. 13/2007-Cus issued under F. No. 450/122/2005-Cus IV refers.
(Annexure 17)
6.8 Import of sex determination/gender testing kits.
The import of consignments in bulk or single of gender testing/ sex determination is not
permitted in the country. In view of the above, the imported consignments of gender testing/sex
determination kits be referred to the Port Health Officer/Drug Controller, before giving Customs
clearance
Board’s letter F.No. 528/1/2008-Cus (TU) dated 24.5.2008 refers. (Annexure -18)
6.9 Import of third party goods by a passenger
Section 77 requires the owner of a baggage to declare the contents of the package to the
proper officer. Further in terms of section 79 provides for exemption from payment of duty in
respect of bonafide baggage. A passenger who brings the baggage on behalf of another person is
not the owner of the baggage. Therefore, any declaration which he had made before the Air
Customs Superintendent cannot be considered as a declaration by the owner of the baggage and
60
as such the provisions of section 77 are not strictly attracted. Apparently, the baggage brought by
a passenger is not his bonafide baggage as the same was harded over by a person staying
abroad to the fax.
In order to ascertain whether the person declaring the contents of the baggage is the real
owner or not, the same may be checked with reference to the invoice bearing the name and the
amount paid (by cash or credit/debit card etc.)vis-à-vis the name reflected in the passport. In
such a situation, the passenger bringing in the baggage is to be denied free allowance.
The CEGAT (Now CESTAT)’s decision in the case of Mohammed Maroof v Additional
Collector (now commissioner) of Customs, Bombay (now Mumbai) reported at 1988(33) ELT
634(T) (Annexure 18 B)may also be relied upon in this regard.
6.10 Import of Cigarette and Tobacco products.
Every package of Cigarette or any other tobacco product shall have the specified health
warning in the manner specified in the schedule to the Cigarette & other Tobacco Products
(Packaging & Labeling) Rules, 2008. The DGFT has also issued Notification No. 108 (RE-2008)/
2004-09 on 5.6.09 (Annexure -19) where by a general note has been added to the import policy
Board’s instruction issued from F. No 450/160/2005-Cus 1V dated 29.12.2009 refers.
(Annexure – 20)
6.11 Import of Medals and Trophies
If medals and trophies are awarded to members of Indian teams for their participation in
international tournaments or competitions outside India and the Assistant Commissioner of Customs
is satisfied that the said goods do not constitute an article of general utility, the same shall stand
exempted from the whole of the duty of customs leviable thereon which is specified in the First
Schedule of Customs Tariff Act, 1975 and from the whole of the additional duty leviable thereon
under section 3 of Customs Tariff Act, 1975 in terms of Notification No. 48/96-Cus dated 23.7.96
(Annexure-21)
6.12 Import for national programme, exhibitions, seminars or expeditions
Photographic, filming, sound-recording and radio equipments, raw films, video-tapes and
sound-recording tapes shall stand exempted from the whole of the duty of customs leviable thereon
which is specified in the First Schedule of CTA, 1975 and from the whole of the additional duty
leviable thereon under section 3 of Customs Tariff Act, 1975 in terms of Notification No. 153/94Cus dated 13.7.94, (Annexure 22) as amended, provided (i) A certificate is produced to the
Assistant Collector of Customs at the time of clearance of the goods from a duly authorized officer
of the External Publicity Division of the Ministry of External Affairs, Government of India, in respect
of short films and documentaries and the Ministry of Information and Broadcasting, Government of
India, in respect of feature films, that the importation is for a purpose which is in the public interest
and has been sponsored or approved by the Government of India; and (ii) anundertaking is given
by the importer or the sponsoring authority to the Assistant Collector of Customs at the time of
clearance of goods that the goods in respect of which the exemption is claimed shall be re-exported
within three months from the date of their importation or within such extended period, not exceeding
12 months from the date of importation, as the Assistant Collector of Customs may allow and that,
in the event of failure to re-export, as aforesaid, to pay the duty which would have been levied but
for the exemption contained herein.
6.13 Import of Samples as baggage:
In International trade it is considered often necessary that samples of goods manufactured in
one country be sent to another country for being shown or demonstrated for customer appreciation
61
and familiarization and for soliciting order for goods from another country. India is a signatory to a
1952 convention to facilitate the Importation of Commercial samples and Advertising materials.
The notifications issued in this regard enable duty free import of genuine Commercial samples
into the country for smooth flow of trade. It is, however, not a means to avoid paying Customs Duty
through repeated imports of samples in smaller lots.
The Commercial samples are basically specimens of goods that may be imported by the
traders or representatives of manufacturers abroad in India, to know its characteristics and usage
and to assess its marketability in India, Samples include consumer goods, consumer durables,
prototypes of engineering goods or even high value equipment, machineries (including agricultural
Machinery) and their accessories. However, goods which are prohibited under Foreign Trade
(Development and Regulation) Act, 1992 are not allowed to be imported as samples e.g. wild
animals, wild birds and parts of wild animals and birds, ivory, arms & ammunitions, narcotic and
drugs.
Samples can be imported by the trade, industry, individuals, companies, associations, research
institutes or laboratories. These can also be brought by the representatives of foreign manufacturer
as a part of their personal baggage or through port or in courier. They can also be sent by
manufacturers/Traders abroad to above parties in India.
(i)
Bonafide Commercial samples and prototype
The bonafide trade samples can be imported by trade and industry provided the said goods
have been supplied free of charge. For duty free clearance the value of the samples should
not exceed Rs 10,000/-.
(ii) Commercial samples
The said goods have been imported as personal baggage by bonafide commercial travellers
or businessman and he produces his IEC at the time of importation and the goods are clearly
marked as samples and the import of the said goods does not exceed to Rs 3,00,000/- in
value or 50 units within a period of 12 months and at the time of importation declares that the
samples have been imported into India solely for the purpose of being shown in India for the
guidance of exporters or for securing or executing an export order and produces an undertaking
to AC/DC to pay duty leviable on the goods but for the exemption contained in the Notification
No. 154/94-Cus dt. 13.7.94 (Annexure-23) as amended , if the declaration is found to be
false.
Proforma for common register in all the shifts is prescribed as under and shall be maintained
by ACS(Admn.)/SDO(A) of each shift
REGISTER FOR COMMERCIAL SAMPLES (IEC WISE)
S. No. Name of
the
importer
and
Passport
No. and
date
Date of
Import and
Flight No.
and IGM No.
IEC No.
Units imported
Cumulative
units
imported
Value
Cumulative
value
Whether
undertaking
furnished or
not
Sign of ACO/
ACS
Sign of
AC/DC
1
3
4
5
6
7
8
9
10
11
2
6.14 DISPLAY OF NOTICE REGARDING CARRYING KHAS-KHAS (POPPY SEEDS), INDIAN
PAN AND DERIATIVE
These are commonly used by general Indian public but are prohibited in Middle-east countries.
Therefore, efforts should be made to sensitize the traveling public along with the concerned
airlines to middle-east countries in this regard.
Authority: CBEC’s circular No. F. 520/42/2009-Cus.VI dated 11.11.09 (Annexure-24)
62
6.15 Professional Equipments
The Baggage Rule 1998 does not contain any specific provisions for duty free allowance for
professional equipments imported by highly qualified scientists, technologists, doctors or engineers
returning to India after stay of more than two years. However, the items listed in Notification No.
137/90 (Annexure-25) can be imported under transfer of residence rule subject to the conditions
applicable.
Highly qualified Professionals are not covered under the definition of professionals, as would
be evident from the definition of “Professional Equipments” mentioned in Rule 2(v) of the Baggage
Rule, 1998 which reads as under:
“Professional Equipment” means such portable equipments, instruments, apparatus and
appliances as are required in his profession by a carpenter, a plumber, a welder, a mason and the
like and shall not include the items of common use such as Cameras, Cassette Recorders,
Dictaphone, Personal Computers, Typewriters and similar articles Thus, a very limited range of
articles has been covered under the definition of professional equipment.
(i)
Special allowances for professionals returning to India
An Indian passenger who was engaged in his profession abroad on his return be allowed free
of duty, in addition to free allowance, articles in his bonafide baggage as per table given below:
PERIOD
ARTICLES ALLOWED FREE OF DUTY
After 3 months
1.
2.
After 6 months
1.
2.
After a stay of 365 days during
the preceding two years on
termination of his work
1.
Used household articles such as utensils,
tableware, kitchen appliances up to an aggregate
value of Rs.20,000/Professional equipment up to a value of
Rs.20,000/Used household articles such as utensils,
tableware, kitchen appliances up to an aggregate
value of Rs.20,000/Professional equipment up to a value of
Rs.40,000/Used household & personal effects(which have
been in the possession and use abroad of the
passenger or his family for at least six months)
and which are not mentioned in Annexure, II and III
up to an aggregate value of Rs.75,000/-
6.16 Import by accredited journalists
In terms of Exemption Notification No. 21/2002–Cus dated 1.3.02 (Annexure-26) accredited
journalists are allowed duty free imports of items like personal computers including lap top, personal
computes; typewrites; and fax machines without payment of any duty subject to following condition.
If the importer produces a certificate from an officer not below the rank of a Deputy Principal
Information Officer in the Press Information Bureau in the Ministry of Information and Broadcasting
to the effect that the importer Is an accredited journalist and that the importer has not availed, on
any occasion in the previous two years, exemption under this notification or the notification of the
Government of India in the Ministry of Finance (Department of Revenue), No. 16/2000 dated the
1.3.2001 or No. 17/2001 Customs, dated the 1st March, 2009.
63
6.17 Crew Baggage
In terms of Rule 10(2) of Baggage Rules, 1998 a crew member of an aircraft shall be
allowed to bring items gifts like chocolates ,cheese ,cosmetics and other petty gifts items at the
time of returning of the aircraft from foreign journey for their personal or family use not exceeding
the value of Rs. 600/- . Consumable and stores such as cigarettes liquor and provision are
to be charged to duty at the time of clearance. However, in terms of Rule 10(1) of Baggage
Rules, 1998, baggage allowance is admissible to officers and member of the crew engaged in the
foreign going vessel for importation of their baggage at the time of final pay off on termination of
their engagement.
Like the ordinary passengers the crew is not allowed to pass through the green channel and
every time they arrive in the arrival hall, the baggage of crew is inventorized and listed in the
‘Private Property List’ (Also called Crew Baggage Declaration). The PPL shall be invariably be
signed by the Commander (Pilot) of the flight in the format prescribed by the Board under IMPORT
MANIFEST (AIRCRAFT) REGULATIONS, 1976
India based crew are given clearance at the time of departure after taking a declaration of the
contents of their. Items like Jewellery, wrist watches, mobile phones Laptops etc. worn or carried
by them are declared on the crew declaration form, against which the clearance is allowed to them
on arrival. If the crew baggage contains any item in excess of declared and carried by them at time
of departure the same is listed and charged to duty after adjudication.
Foreign based crew is allowed clearance on such declaration form by allowing to import
articles other than consumables and stores free of duty subject to the condition that airline to
which they belong files guarantee binding itself to pay duty and fine in case the crew members are
not re-exporting these goods out of the country on their return journey.
Consumables and stores such as cigarettes, cigar, liquor and provisions are to be
charged to duty at the time of clearance on arrival.
Baggage allowance is admissible to officers and members of the crew engaged in the foreign
going vessel for importation of their baggage/personal effects at the time of final pay off on
termination of their engagement at the same rates as to a non- tourist.
6.18 BAGGAGE CONCESSIONS FOR PERSONS TRANSFERRING RESIDENCE
Passengers returning on a bonafide transfer of residence to India after stay abroad of not less
than two years can avail the concessions under Rule 8 of the Baggage Rules, 1998 and avail
exemption in terms of notification No. 137/90 .(Annexure-27) under which personal and household
effects can be imported free of Customs duty subject to the following conditions:
Total stay in India on short visits during the preceeding two years should not exceed 6 months.
Passenger should not have availed this concession in the preceeding three years.
However, short fall up to 2 months of stay abroad can be condoned by the Assistant/ Deputy
Commissioner of Customs and short visits in excess of six months in deserving cases can be
condoned by the Commissioner of Customs.
Note: The aforesaid concessions allowed to person transferring their residence shall also be
allowed to any person holding a valid passport returning to India on termination of job after having
stayed abroad for at least 365 days during the two years immediately preceding the date of arrival
in India
Not more than one unit of each item shall be permissible to such person and the total aggregate
value of such goods including other goods imported free of duty shall not exceed Rs. seventy five
thousand in case of person returning on termination of work.
64
Not more than one unit of each item shall be permissible to per family and the person claiming
the benefit shall affirm by declaration that no other member of family have availed of or would avail
of such benefit in respect of that item and total value of such goods imported on payment of duty
should not exceed Rupees five lakh in case of person transferring residence.
(i)
Filing of Declaration
Any person availing the concessions under the transfer of residence or returning on termination
of work shall have to affirm by a declaration that the goods have been in his possession abroad or
the goods are purchased by such person at the time of arrival but before clearance from the
Customs from the Duty Free Shop located in the arrival hall of the International Airport.
Indian Diplomats if called back to India in public interest stay of two years are also eligible for
concessions under these rule provided a certificate to that effect from the Ministry of External
Affairs is produced and the items were in use and possession for more than six months
Minors are also eligible for concessions under this rule.
Persons employed in Indian Embassy and India Cooperative Mission in Nepal can also avail
the benefits of this rule on the basis of a Certificate about their bonafide transfer issued by authorized
officers in the Indian Embassy or Indian Cooperative Mission.
Prescribed TR form is annexed as Annexure-27A
6.19. SPECIAL NOTE RELATING TO INCLUSION OF THE VALUE OF LIQUOR/CIGARETTE
ETC. IN THE OVERALL LIMIT OF FREE ALLOWANCE ADMISSIBLE TO A PASSENGER
The following quantities of alcoholic drinks and tobacco products shall be included for import
within the free allowance eligible to a passenger.
Sl. No. Item eligible to be
included in the free
allowance of a
passenger
Quantity allowed
to a passenger
Rate of duty applicable
1.
Whisky or wines
2 litres
BCD 150% + ACD 4% + education
cess Nil
2.
Beer
2 litres
BCD 100% + ACD Nil + education
cess 3%
3.
Cigarettes
200 sticks50 cigars
BCD 100% + ACD 4% + Education
Or 250 grams of tobacco Cess 3%
Note: The value of whisky/wines/beer would depend on the brand purchased by a passenger and
shall be included in the overall limit admissible to a passenger. In case the value exceeds the free
allowance admissible, the same shall be chargeable to Customs duty at appropriate rates. This
has been clarified by the Board in Annexure “A” to Circular No. 16/2011-Customs dated
31.3.2011(Annexure-28A)
Revision in the Customs part of Arrival Card (Disembarkation card) for Passengers in
Form ‘D’ – Notification issued by Ministry of Home Affairs
In terms of Board’s circular No. 16/2011 dated 31.3.2011(Annexure-28A) the Ministry of
Home Affairs has issued a Notification No. GSR 113(E) dated 24.2.2011 (published in Part II –
Section 3 – Sub-section (i) of the Gazette of India Extraordinary) which makes certain modifications
in the Customs part of Arrival Card (popularly known as dis-embarkation card) for Passengers.
65
The following declarations are required to be made by the passengers at the time of arrival at the
international airport in Para 7 of the Customs part of Arrival Card for Passengers:
(a) Are you carrying any plants/seeds/fruits/flowers/vegetables/bulbs/other planting materials?
Yes/No
(b) Are you carrying any meat & meat products/dairy products/live or ornamental fish/poultry/
poultry products?
Yes/No
(c) Are you carrying any Satellite phone?
Yes/No
(d) Are you carrying foreign currency notes in excess of US$5,000 or equivalent?
Yes / No
(e) Are you carrying foreign exchange (i.e. foreign currency notes, drafts, Travellers’ cheques,
letters of credit, bills of exchange or any instruments where under any amount is payable in
Indian currency) in excess of US$10,000 or equivalent?
Yes/No
This dis-embarkation slip been made applicable to Customs Authorities at Land Customs
Station or the Sea Port, in terms of Board’s modification of the circular No.18/2011 dated-customs
dated 8.4.2011(Annexure-28B). It has been further clarified that against the Column ‘Flight Number’,
it can be mentioned either as “Not Applicable” or details of train / vessel could be filled in.
6.20 Currency (Indian & Foreign)
(i)
Import & Export of Currency etc.
Import & Export of Foreign Exchange, Cheques & Securities etc., are governed by Foreign
Exchange Management (Export & Import of Currency) Regulation 2000 Notified by the RBI
under Foreign Exchange Management Act, 1999, which has come into force w.e.f. 1.6.2000.
(ii) Definition of Currency
As per Section 2(h) of the FEMA, 1999 “Currency” includes all currency notes postal notes,
postal order, money order, cheques, drafts, traveller cheques, letters of credit bills of exchange
and promissory notes, credit cards or such other similar instruments, as may be notified by
the RBI.
(iii) Declaration of Currency
In the arrival hall at IGI Airport, there is a specific counter for the declaration of foreign currency.
The Air Customs Officer issues a certificate in the form of currency Declaration form (CDF)
in prescribed proforma after verifying the currency notes and traveller cheques etc. He retains
one copy of the same after the CDF is signed by the Air Customs Superintendent. The CDF
is countersigned by the DC/AC (shift) in case of the currency declared exceeds US $ 10,000.
He also maintains a foreign currency register as per Office Order No. 250/2001 dated
16.11.2001 giving details of the passenger as well as his declared foreign exchange. Passenger
declaring currency has to sign in the Register in acknowledgement of receiving the CDF.
66
(iv) Import of Foreign Exchange/Currency
Any person can bring into India foreign currency/exchange without any limit. However
declaration of foreign exchange/currency is required to be made in the prescribed Currency
Declaration from the following cases:(a) Where the value of foreign currency notes exceeds US$ 5000/- or equivalent
(b) Where the aggregate value of foreign currency exchange (in the form of currency notes,
bank notes, traveller cheques etc.) exceeds US$ 10,000/- or its equivalent.
(v) Import of Indian currency as baggage
The import of Indian Currency is prohibited. However, in the case of passengers normally
resident in India who are returning from a visit abroad, import of Indian Currency not exceeding
Rs. 7,500/- is allowed vide RBI notification on FEMA 195/2009 Rs dt 7.7.09 issued under
FEMA (Export & Import of Currency) Amendement Regulations, 2009 (Annexure 28(i).
(vi) Export of India currency
Export of Indian Currency is strictly prohibited. Indian residents when they go abroad are
allowed to take with them Indian currency not exceeding Rs. 7,500/- in terms of RBI Circular
No. 6/2010-11 dated 1.7.2010. Currency (amondment) Replations, 2009 (Ann.)
Any person resident of India may take or send outside India (other than to Nepal and Bhutan)
Commemorative coins not exceeding two coins each. Resident in India has been defined
under S 2(v) of FEMA, 1999,
Explanation- ‘Commemorative Coin’ includes coin issued by Government of India Mint to
Commemorate any specific occasion or event and expressed in Indian currency.
(vii) Sale for Foreign Currency
RBI Master circular No. 1/2010-11 dated 1.7.2010(valid up to 30.6.2011 with a sunset clause
of one year) (Annexure29 (ii))
Foreign Currency in the form of notes or coins is allowed to be sold to out going Indian
travellers other than transit passengers with foreign passports holders of foreign passports
who have open dated or return tickets issued outside India.
Category of Traveller
Limit
(i)
All travellers proceeding to countries
other than Iraq, Libya, Islamic
Republic of Iran, Russian federation
and other Republics of Common
Wealth of Independent States.
Not exceeding US $ 3000/- or its equivalent
(ii)
Travellers proceedings to Iraq
or Libya
Not exceeding US $ 5000/- or its equivalent
(iii)
Travellers proceeding to Islamic
Republic of Iran, Russian federation
and other republic of Common
Wealth of Independent State
Full exchange released
While examining it should be verified that person is traveling to a particular destination and
is about to leave India; and that they are eligible for purchase according to destination
indicated on ticket
67
(viii) Export of foreign Exchange and currency notes
FEMA 6/2000-RB dated 3.5.2000 issued by RBI
Indians going abroad are permitted to take with them foreign currency without any limit so
long as the same has been purchased from an authorized foreign exchange dealer and he
should carry a document of purchase.
An authorized person may send out of India foreign currency acquired in normal course of
business.
Any person may take out of India,Cheques drawn on foreign currency account maintained in accordance with Foreign Exchange
Management (Foreign Currency Accounts by a person resident in India) Regulations, 2000.
Foreign exchange obtained by him by drawal from an authorized person in accordance with
the provisions of the Act or the rules or regulations or directions made/ issued there under.
Currency in the safes of vessels or aircrafts which has been brought into India or which has
been taken on board a vessel or aircraft with the permission of the Reserve Bank of India.
(3) Any person may take out of India:(i)
Foreign exchange possessed by him in accordance with the Foreign Exchange
Management (Possession and Retention of Foreign Currency) Regulation, 2000
(ii)
Unspent foreign exchange brought back by him to India while returning from travel abroad
and retained in accordance with the Foreign Exchange Management (Possession and
Retention of Foreign Currency) Regulations 2000.
Any person resident outside India may take out of India unspent exchange not exceeding the
amount brought in by him and declared in form CDF, on his arrival in India.
Tourists while leaving India are allowed to take with them foreign currency not exceeding an
amount brought in by them at the time of their arrival in India. As no declaration is required to
be made for bringing in foreign exchange /currency not exceeding equivalent of U.S.$ 10000/
- U.S.$ 5000/- currency, as the case may be, generally tourists can take out of India with them
at the time of their departure foreign exchange/currency not exceeding the above amount or
the foreign exchange /currency brought by him.
(ix) Export and Import of Currency to or from Nepal and Bhutan
(Regulation of Foreign Exchange Management (Export & Import of Currency) Regulation
2000.
A person may(i)
take or send out of India to Nepal or Bhutan, currency notes of Government of India and
Reserve Bank of India notes (other than notes of denominations of above Rs. 100 in
either case);
(ii)
bring into India from Nepal or Bhutan, currency notes of Government of India and Reserve
Bank of India notes (other than notes of denominations of above Rs. 100 in either case);
(iii) take out of India to Nepal or Bhutan or bring into India from Nepal or Bhutan, currency
notes being the currency of Nepal or Bhutan.
(x)
Prohibition on Export of Indian coins covered under Antique and Art Treasure Act, 1972.
68
No person shall take or send out of India the Indian coins which are covered by the Antique
and Art Treasure Act, 1972.
(xi) Medical treatment
Residents can avail of foreign exchange for medical treatment abroad without any hassles
and any loss of time, Authorized Dealers may release foreign exchange up to an amount of
USD 100,000 or its equivalent, on the basis of self declaration that the applicant is buying
exchange for medical treatment outside India, without insisting on any estimate from a hospital/
doctor.
For amount exceeding the above limit, estimate from the doctor in India or hospital/ doctor
abroad, is required to be submitted to the Authorised Dealers. A person who has fallen sick
after proceeding abroad may also be released foreign exchange by an Authorized Dealer for
medical treatment outside India.
(xii) Cultural Tours
Dance troupes, artistes, etc., who wish to undertake tours abroad for cultural purposes should
apply to the Ministry of Human Resources Development
(Department of Education and Culture), Government of India, for their foreign exchange
requirements. Authorized Dealers may release foreign exchange, on the strength of the
sanction from the Ministry concerned, to the extent and subject to conditions indicated therein.
(xiii) Private Visits
Foreign exchange for private visit can also be released to a person who is availing of foreign
exchange for travel outside India for any purpose up to the limits specified in Schedule III to
the Rules.
(xiv) Business Visits
Foreign exchange may be released for undertaking business travel or attending a conference
or specialized training or for maintenance expenses of a patient going abroad for medical
treatment or check up abroad or for accompanying as attendant to a patient going abroad for
medical treatment / check up to the limits specified in Schedule III to the Rules.
(xv) Unspent Foreign Exchange
Unspent foreign exchange brought back to India by a resident individual should be surrendered
to an Authorized Person within 180 days from the date of return of the traveller. Exchange so
brought back can be utilized by the individual for his/her subsequent visit abroad. However, a
returning traveller is permitted to retain with him, foreign currency travellers cheques and
currency notes up to an aggregate amount of USD 2000 and foreign coins without any ceiling
beyond 180 days. (Notification No. FEMA 11/2000-RB dated May 3, 2000). Foreign exchange
so retained, can be utilized by the traveller for his subsequent visit abroad.
(xvi)Release of Foreign Exchange
In terms of RBI/2010-11/1 Master circular No. 01/2010-11 dated 1/7/2010 read with rule of
FEM (Current Account Transaction) Rules, 2000, release of exchange exceeding US $ 10000
or its equivalent in one financial year for one or more private visits to any country (except
Nepal & Bhutan) requires the approval of RBI
(xvii) Retention of Foreign Exchange from previous visits.
FEM (Possession of Foreign Currency Reglation,2000)
69
Residents are permitted to hold foreign currency up to US$ 2,000 or its equivalent provided
the foreign exchange was-acquired by him while on a visit to any place outside India by way of
Payment for services not arising from any business in or anything done in India; or; acquired
by him from any person not resident in India and who is on a visit to India, as honorarium or
gift or for services rendered or in settlement of any lawful obligation, or acquired by him by
way of honorarium or gift while on a visit to any place outside India; or acquired by him from an
authorized person for travel abroad and represents the unspent amount thereof.
An Indian resident can retain foreign currency, traveller cheques & currency notes up to an
aggregate amount of USD 2000 and foreign coins without any ceiling beyond 180 days
(Notification No. FEMA 11/2000-RB dated 3.5.2000). Foreign exchange so retained can be
utilized by the traveller for his subsequent visits abroad.
(xviii) Retention of Foreign coins
Foreign Coins can be retained without any limit. (RBI Master Circular No. 1/2010-11 dated
1.7.10)
This retained foreign currency can be carried by the traveller in addition to his other entitlements
during the later visits.
(xix) PROHIBITION OF IMPORT/EXPORT OF INDIAN CURRENCY NOTES
DENOMINATION OF ABOVE RS.100/- IN INDIA AND IN NEPAL
OF
The export and import of currency notes of GOI/RBI notes (other than notes of denomination
of above Rs.100/- either case) is not allowed to and from Nepal and Bhutan in terms of
Notification no. FEMA 6/RB-2000 dated 3.5.2010 issued by RBI. Similarly, the INR in
denomination of Rs.1,000/- and Rs.500/- are not permissible for exchange for banking
transaction in Nepal in terms of guidelines issued by Ministry of Finance, Government of
Nepal and Nepal Rashtra Bank. The current legal provisions in Nepal provide that notes of
denomination of Rs.1,000/- and Rs.500/- are liable for seizure and the persons carrying them
are to be fined and imprisoned for up to 3 years. (Annexure-30)
(PROVISION TO BE DISPLAYED IN DEPARTURE HALL OF INTERNATIONAL AIRPORT)
Frequently asked questions (FAQs) on foreign exchange may also be seen as Annexure-31
6.21 Import of Unaccompanied baggage (UAB)
This is being dealt with by UAB section of Import & General Commissionerate, New Custom
House, New Delhi. The provisions relating to clearance of unaccompanied baggage of a passenger
are similar to that of accompanied Baggage as long as the unaccompanied baggage was in the
possession abroad of the passenger and is dispatched within one month of his arrival in India or
within such further period as the Assistant Commissioner of Customs may allow. However no free
allowance is admissible in respect of unaccompanied Baggage. The unaccompanied baggage
may arrive in India up to two months before arrival of the passenger or within such period, not
exceeding one year, as may be permitted by the Assistant Commissioner of Customs if he is
satisfied that the passenger was prevented from arriving in India within the period of two months
due to circumstances beyond his control.
6.22 A.T.A. stands for Admission Temporaire/Temporary Admission
Its full name is “Customs Convention on the A.T.A. carnet for the temporary admission of
goods” It is an international instrument designed to facilitate the importation, irrespective of the
means of transport used, of goods which are granted temporary duty-free admission.
The ATA Carnet is an international customs document that permits duty-free and tax-free
temporary import of goods for up to one year. A Carnet disposes of the need for raising bonds or
70
depositing duty at customs posts. The Carnet contains two vouchers from each foreign country
one wishes to visit. One for the foreign Customs people when one enters the country and the other
when one leaves.
ATA Carnets generally cover:
(a) Commercial samples
(b) Professional equipment
(c ) Goods for presentation or use at trade fairs, shows, exhibitions, etc.
(i)
ATA Carnets do not cover perishable or consumable items or goods for processing or
repair.
(ii)
ATA Carnets are issued and guaranteed by national groups, which administer the ATA
system under a set of conditions established by the International Bureau of Chambers
of Commerce (IBCC). The IBCC is sponsored by the International Chamber of Commerce
(ICC) in Paris.
(iii) Guarantees for ATA Carnet in India is the Federation of Indian Chamber of Commerce
and Industries (FICCI).
(iv) IMPORTS /EXPORTS THROUGH ATA CARNET
The Govt. of India have issued Notification No. 157/90-Cus dated 28.03.1990 (Annexure32) which deals with the issue of imports/exports under ATA Carnet. In terms of this
notification specified goods when imported into India for display or use at any event
specified in the Notification, are exempt from the whole of Customs duty and the whole
of additional duty leviable thereon. Further, Notification no. 158/90-Cus, dated 28.03.19990
exempts these goods from auxiliary duty.
(v)
However, nothing contained in the notification no. 157/90 shall apply to goods imported
through the medium of post.
(vi) PROCEDURE FOR IMPORTS UNDER ATA AT AIRPORT
The procedure for clearance of ATA Carnet goods carried as baggage but admissible
otherwise is detailed below –
(1.) The ACS (Admn) Carnet will first confirm that the goods are imported for display or
for use at Govt. approved Exhibitions/Fairs and/or similar events which are covered
under notification no. 157/90. This is a must before proceeding in the matter.
(2.) The ATA Carnet has four counterfoils and vouchers viz Exportation counterfoil and
Voucher, Re-importation counterfoil and voucher, Importation counterfoil and voucher
and Re-exportation counterfoil and voucher.
(3.) Air customs superintendent and one SDO(A) will attend to clearance of imports
under Carnet in addition to their normal duties.
(4.) Air Customs superintendent posted for Carnet clearance will verify the general list
given on the reverse of the CARNET FORM.
(5.) For monitoring and processing the imports / exports of goods cleared under Carnet,
the ACS (Admn) will maintain a register as prescribed by the Board. Voucher with
reference to the description, marks and numbers and certifying the same is a must. On
the face of the importation, counterfoil and voucher and re-importation counterfoil and
voucher, as the case may be, the Customs Officers will certify under their full signature
71
with name & date and will retain voucher for departmental use. The verification report
will be made in column (d) “other remarks” in the original and duplicate copy of the
importation voucher. Since the imports will be under passenger’s baggage mode, the
classification CTH 98.03 will be mentioned in column 2 on the reverse side of the voucher.
The Air Customs Superintendent should also obtain the details of exhibition, i. e., name
and venue of Fair/Exhibition, meetings, etc. and its sponsors. The details of exhibition
will be mentioned on the reverse side of the voucher so as to keep track of the imports
(i.e. IGI Airport) vis-à-vis sponsors. Air Customs Superintendent (Departure) should ensure
that all the carnet papers which are retained in the batch are forwarded to ACS(Admn.)/
SDO(A) for entering in the Carnet Register and for further monitoring of its exports. In
the event the goods are intended to be exported out of India from place other than the
Airport of Import, ie. I.G.I. Airport the ACS incharge Carnet should ascertain the place of
re-export and mention the same on reverse side of the voucher.
(vii) PROCEDURE FOR EXPORTS AT AIRPORT
The ACS (Departure)/ACO(Departure) should properly verify the description, quantity,
marks and numbers and endorse the re-exportation voucher and counterfoils and the
goods will be allowed to be re-exported out of India. ACS (Departure)/ACO(Departure)
Departure will indicate the flight number and date by which the goods are being reexported. The endorsements will be given by ACS (Departure)/ACO(Departure) under
his seal and full signatures with date. He will also mention details of Fair/Exhibition,
meetings, etc. for which the goods were temporarily imported. Thereafter, ACS
(Departure)/ACO(Departure) should ensure that all the Carnet papers are forwarded to
ACS(Admn)/SDO(A) on the next working day for correlating the entry regarding the exports
of goods. In the event the goods not initially imported at this Airport but exported from the
Airport, the re-export voucher should be sent to the concerned Commissionerate by the
ACS (Admn)/SDO(A) for co-relating with the importation.
(viii)Proper entries shall be made in the register maintained for the purpose.
The Directorate General of Inspection, being the monitoring authority for all the clearances
granted by the Custom Houses, is to be kept informed through periodical statements
from the Airport regarding description and value of the goods imported under carnet and
subsequent re-export and amount of customs duty recovered thereon, in case of failure
to re-export of the goods.
(ix) PROFORMA FOR TALLYING IMPORT AND REEXPORT AND FOR PREPARING A
MONTHLY REPORT TO BE SENT TO THE COMMISSIONER OF CUSTOMS, I &
G/(AIR CARGO EXPORT), NCH, NEW DELHI
PROFORMA FOR I M P O R T
Sr.No
Carnet
issuing No.
Name of the
Sponsors
Description
of C.T.H*
Value
Rate of
duty
Amount of
Duty
Name &
signature of
SDO(A)
Name &
signature of
ACS(Admn)
Whether
re-exported
within the
stipulated
period
Demand
Notice
raised ,
if any
Remarks
1
2
3
4
5
6
7
8
9
10
11
12
*classifiable under CTH 98.03 at Airport only
PROFORMA FOR RE-E X P O R T
Sr.No
Carnet No.Issued Whether imported
at the time of import at IGI
Whether imported
at someother
Airport
Whether
re-exported in
full?
Whether reexported within
the stipulated
period?
Name &
signature of ACO
(Dep)
Name & signature
of ACS(Dep.)
Demand Notice
raised , if any
Remarks
1
2
4
5
6
7
8
9
3
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It is once again reiterated that ATA Carnet is the facility provided for the temporary importation
of specified goods and for the specified purposes. ATA Carnet is an international guarantee by
which the Customs dues can be enforced against the guarantor if the imported goods are not
taken out of India within the specified period. The full text of the procedure is provided in notification
No. 157/90-Cus dated 28.3.90, as amended from time to time. The salient features of the notification
and the provisions of the Customs Convention on ATA Carnet are as follows:
Only such goods are allowed as are mentioned in Schedule I of the notification. These are
mainly goods intended for display or demonstration.
The goods should be imported for the purpose of display at an event mentioned in Schedule
II of the said notification and the event should be sponsored or approved in public interest by the
Government of India or ITPO. It may be noted that these events are mostly public exhibitions and
the goods cannot be imported for display for private person (Including corporate entities).
The goods should be capable of easy identification so that is no possibility of misuse by
substitution at the time of re-export.
The ATA Carnet should have validity for a period beyond the likely period of export, usually one
year.
It may also be noted that the goods are required to be re-exported within a period of 6 months
of import, further extendable by 6 months by the Board (Land Customs). If the goods are not reexported within the period of 6 months or the period further extended, a demand notice has to be
issued on the guarantor, which in the case of India is FICCI. The demand shall become time
barred if not issued within a period of one year of the validity of the ATA Carnet.
DC(Shift) has to maintain a proper register containing the particulars of import and their
subsequent re-export. The passengers should be advised at the time of importation to submit the
proof of re-export to the concerned shift, even if he has departed in any other shift or from any
other airport in India.
The facility of import/export of Jewellery under Notification No. 151/90 –Cus will be allowed
free of duty under the Notification ibid subject to observance of the procedure detailed therein.(
Based on CBEC’s circular No. 528/20/91-Cus (TU) ICD dated 23.6.94)
Frequently Asked Questions (FAQs) on ATA Carnet is separately annexed for guidance.
(Annexure -33)
6.23. Re-importation of indigenously manufactured(made in India)/imported goods:
Definition of Dutiable goods under section 12/20 of Customs Act 1962
It is to be noted that under Section 12 on import duties of Customs are leviable and no distinction
is made whether the goods being imported had discharged duties earlier and they are being reimported after exportation for particular purposes. Similarly, even if goods are indigenously
manufactured which had been exported earlier under various export incentive schemes or duty
drawback claim or even without any export incentive claim, when these are re-imported they attract
and have to discharge the Customs duty leviable on like import goods (as the duty is on the act of
importation) unless an exemption Is issued.
To avoid repeat total duty on the full value of the imported goods when sent abroad for repairs,
certain relief from duty liability has been provided. Similarly, where the goods are indigenously
manufactured the basic intention is that when re-importation is effected on Customs clearance for
consumption in the market, they should bear the Central Excise duties which are otherwise leviable
and which may not have been discharged at the time of exportation Further, the exporters should
not get away with any benefits which may have given as an export incentive and these benefits
73
should be recovered by way of duty. Exemption notification has been issued under Notification No.
94/96-Cus. dated 16.12.1996 (Annexure 34) providing for re-importation of indigenously
manufactured goods under various export incentive schemes like duty drawback/rebate claims,
export under bond or under other export incentive duty on payment of central excise duties equivalent
to the export incentive etc., on re-importation. It is only where the goods were exported earlier on
payment of Central Excise duty, without claiming any rebate and without claiming any export
incentives such as duty drawback or benefits of the duty exemption schemes, EPCG scheme or
under DEPB scheme and where the indigenously manufactured goods are being returned then
Customs duties are not leviable.
Where the indigenously manufactured goods are exported for repair and returned without
claiming any benefits as provided in the said notification, duty is to be paid on a value comprising
fair cost of repairs including cost of materials used in repairs, insurance and freight charges both
ways.
For availing the benefit of the said notification the Assistant Commissioner has to be satisfied
that the goods are the same which were exported earlier and is subject to certain other conditions
as laid down in the said notification.
Where the goods manufactured in India or parts thereof are re-imported into India for repairs
or reconditioning or reprocessing/refining/remaking etc., and returned complete exemption from
the import duties leviable is available in terms of notification No. 158/95-Cus dated 14.11.1995
(Annexure-35) A separate exemption also has been provided to take care of re-importation of the
private personal property which was imported earlier but exported out for any alteration, renovation,
repair free of charge etc. If the goods are repaired on free of charge basis in accordance with the
terms of warranty given by the manufactures and in accordance with the established trade practice
and subject to certain laid down conditions about non-availment of any drawback or other facilities,
the whole duty of Customs is exempted in terms of notification No. 174/96-Cus. However, if any
alterations, renovations or additions or repairs executed subsequent to their export, certain customs
duties are payable equivalent to the cost of alterations/ renovations/additions.
6.23 (i) Re-Exportation
There are often occasions where imported goods may have to be re-exported Such situations
arise where the import goods are found to be defective after customs clearance or these are not
found according to specification of the Indian consignee. Various machinery items after import for
use in certain projects or otherwise are also often sought to be re-exported by the original owner.
Re-exports can be made by sea, air, baggage or post.
Section 74 of the Customs Act provides for grant of 98% of the Customs duties leviable at the
time of importation by way of Drawback if it is re-exported by the importer, subject to laid down
conditions to be fulfilled The re-export is to be allowed within two years from the date of import(which period can be extended on sufficient grounds being shown) and goods have to be identified
with the earlier import documents and duty payments- to the satisfaction of the Assistant
Commissioner at the time of export. If such goods have been used in India after importation,
refund is granted on a proportionate basis in terms of Notification No. 19/95-Cus dated 6.2.1995,
as amended, and there being no refund admissible if the goods have been used after the reimportation which have been out of Customs control for more than 36 months after the date of
clearance for home consumption and the date when the goods are placed under customs control
for export. For specific categories of goods as mentioned in Notification if these are used no
drawback of the import duty paid is permissible. In respect of motor vehicles imported for personal
and private use drawback is slightly different and same is calculated by reducing the import duty
paid according to the laid sown percentage for use for each quarter or part thereof, but up to four
years of use.
74
In order to avail the benefit of the above mentioned schemes/notifications the passengers
carrying the goods would declare the valuable goods being taken by them for various purposes at
the time of their departure and obtain a export certificate. The Export Certificate is a vital document
containing various details of items being exported out of country and which would be brought back
after desired functions/repairs or reconditioning abroad. Since it is the best document to claim the
benefits with regards to the item the same should be preserved and on re-importation to India the
same should be shown to the Customs officer at the counter in the arrival hall and who will be able
to clear these goods without payment of any duty. The advantage of having the export Certificate is
that the free baggage concessions are not exhausted for the items mentioned on the Export
Certificate.
The Export Certificate has got a validity period of three year. The goods exported can be reimported by any person holding an Export Certificate at the time of re-importation irrespective of
the fact that some other passenger might have obtained the Export Certificate.
6.24 Mishandled Goods
Mishandled goods are the goods that are not accompanied by the passenger who had checked
them in while boarding the flight. A detailed note on clearance of such goods is given in the Chapter
on Warehouse Goods.
6.25
Import of Jewellery/Gold/Silver
As per Section 3(1)(h) of the Foreign Trade (Exemption from application of rule in certain
cases) Order, 1993(Annexure 36), the import of gold and silver in any form is prohibited except as
provided for in terms of that section and exemption notification issued in his regard. (Please refer
to Chapter on Prohibitions and Restrictions)
Jewellery: An Indian passenger who has been residing abroad for over one year is allowed
to bring jewellery free of duty in his bonafide baggage up to an aggregate value of Rs. 10,000/- (in
the case of a male passenger) or Rs. 20,000/- (in the case of a lady passenger)
Gold: any passenger of Indian origin (even if a foreign national) or a passenger holding a valid
passport issued under the passport Act, 1967 is allowed to import up to 10 kg of gold as baggage
if the passenger is coming to India after a period of not less than six months of stay abroad. The
rate of duty, payable in convertible foreign currency, is as under:
Sl. No. Description
Rate of duty payable in convertible
foreign currency
1.
Gold bars, other than tola bars, bearing
manufacturer’s or refiners’ engraved
serial number and weight expressed
in metric units and gold coins
Rs.300 per ten grams + 3%
education cess on the duty
2.
Gold in any form other than at
Sl. No.1 above including tola bars
and ornaments, but excluding
ornaments studded with stones
or pearls
Rs.750 per ten grams + 3%
education cess on the duty
The passenger can also obtain the permitted quantity of gold from the authorized Banks such
as SBI, M/s. MMTC etc.
Silver: Any passenger of Indian origin (even if a foreign national) or a passenger holding a valid
passport issued under the Passport Act, 1967 are allowed to import silver not exceeding 100kgs
75
per passenger, if the passenger is coming to India after a period of not less than six months of stay
abroad. Like in the case of gold the passenger can also obtain the permitted quantity of Silver from
an authorized Bank. The duty is payable by the passenger at the rate of Rs. 1500 per kg. + 3%
Cess in convertible foreign currency.
Gold and Silver Coins too can be imported under the said scheme as clarified by CBEC
circular No 74/95 (Annexure 37 (i))
(i)
Procedure:
The passenger coming with the gold/silver would report at the Red channel and make his
declaration there. The ACS/ACO at the said counter would take the oral declaration from the
passenger and there after weigh the same. If the passenger is an eligible passenger entry
about the same would be made in the Gold Register maintained at the counter. There after at
applicable rate of customs duty is charged from the passenger in convertible foreign currency.
(ii)
Export of gold jewellery as baggage
There is no value limit on the export of Gold jewelry by a passenger through the medium of
baggage so long as it constitutes the bona-fide baggage of the passenger. Issue of export
certificate for the export of gold jewellery by the officers posted at IGI is not practical as they
are not expert .For obtaining a certificate the passenger may approach the Customs office at
Jhandewalan & get the Jewellery sealed & get the certificate issued. At the time of arrival the
certificate could be shown & the verification can be conducted at Jhandewalan or by an
appraiser. Alternatively, the pax can appraoch a Govt. values, duly authorized by the Income
Tax Deptt. & get the Jewellery appraised. On the basis of this, the ACS (Dep.) shall issue
export certificate. A sample my be seen as Annexure 37(ii)
6.26 Medicines/Pharmaceuticals
In terms of Section 3(1)(h) Foreign Trade (Exemption from application of Rule in certain
cases) Order, 1993(Annexure36), 500 Tablets of Quinine are allowed to be imported in the personal
baggage. All other drugs are restricted subject to the condition that they would require a certificate
from the Drug Controller for their importation/exportation. Medicines for personal use are allowed
for importation/exportation without any restrictions provided they are in reasonable quantities.
6.27 IMPORT OF SATELLITE PHONES AS PART OF HAND/CHECKED IN BAGGAGE
Authority CBEC Circular No.37 / 2010-Customs (Annexure 38) (i)
In case of satellite phones being brought in baggage / hand baggage without licence issued
by the Department of Telecommunication the same would be detained / confiscated, as per the
existing procedures till the time the holder of the satellite phones is able to produce a licence
issued by the Department of Telecommunication.
6.28 ILLEGAL IMPORT OF RADIO FREQUENCY EQUIPMENT ESPECIALLY CELLULAR
BOOSTER/REPEATERS FROM CHINA
Licence to import radio frequency equipment especially cellular boosters/repeaters, which
come under the category of Wireless Transmitting Equipment require Equipment Type Approval
Certificate from International Organization/Agencies and permission from Department of
Telecommunication is required. In the absence of the required certification/license, there is a
probability of the import taking place by mis-declaration or passing through Green Channel without
declaration.
(AUTHORITY : DRI ALERT CIRCULAR No.1/2011-CI) dt. 28.2.2011 (Annexure 38(ii)
Further, according to the provisions of Indian Wireless Telegraphy Act, 1933, the Radio
controlled electric gadgets or toy helicopters of the following frequencies/purposes/maximum
effective radiation power (ERP) can only be allowed to be imported
76
Frequency (all in Megahertz)
Purpose
Power
A.
27.250
27.261
Radio control toys for low
power/electric gadgets
With the maximum effective
radiation power (ERP) of 5
Watts
B
27.004
Aeromodelling
27.116
27.148
27.156
27.228
If the imported articles do not match the specifications, they will be detained on arrival and
before clearance, the pax has to produce licence from Ministry of Communication and IT (WPC
Wing), Department of Telecommunication, New Delhi.
The Joint Wireless Advisor, WPC, Regional Licencing Officer, Mumbai vide his letter No.L14041/15/2011-WRLO-11/159 dated 9.9.2011 has stated that the helicopters operating other than
27MHz band can be destroyed. (Annexure-38(iii))
However, Helicopters operating in 2.4-2.4835 GHz band can be examined on case by case
basis subject to submission of technical specifications, in terms of Ministry of Communication and
Information Technology (Wireless Planning & Co-ordination Wing)’s Notification dated 28.1.2005
(Annexure-38(iv)). Similarly, Helicopters operating in 5.825 to 5.875 GHz band can be examined
on case by case basis subject to submission of technical specifications, in terms of Ministry of
Communication and Information Technology (Wireless Planning & Co-ordination Wing)’s Notification
dated 19.1.2007 (Annexure – 38(v))
6.29 (i) Import of firearms in baggage
In cases of persons transferring their residence(subject to fulfillment of requisite conditions of
TR) to India for a minimum period of one year, one firearm of permissible bore can be allowed to
be imported subject to the conditions that:
the same was in possession and use abroad by the passenger for a minimum period of one year
that the said firearm, after clearance, shall not be sold, loaned, transferred or parted with in any
manner during the life time of the passenger the firm are allowed in TR on payment of applicable
duty provided the passenger has a valid arms licence from the local authorities.
6.29 (ii) Import of Air guns as a part of the Baggage – requirement of licence under the
Arms Act – Judgement of Hon’ble High Court of Delhi in Writ Petition ( C ) No.
2491/2000
Air guns, hitherto, did not require a licence for import and the same was cleared by this Office
on production of requisite documents.
The Hon’ble High Court of Delhi in its Judgement dated 20.5.2011 Annexure 39(i) in Writ
Petition (c) No. 2491/2000 titled PEOPLE FOR ANIMALS v. UOI has quashed the entry no. 1 (3)
of Schedule II of the notification bearing No. GSR no. 988 dated 13.07.1962 issued under subclause (vii) of clause (b) of sub-section (i) of Section 2 of the Arms Act by the Central Government
whereby and where under air guns, air rifles and air pistols had been exempted from all the
regulations and controls as provided under the Arms Act. With the Judgement delivered on
20.5.2011 by the Hon’ble High Court of Delhi becoming a binding Judgement, the clearances of Air
guns as a part of the Baggage would now invariably require a licence issued under the Arms Act.
77
6.30 Disposal of imported fire arms imported as a part of baggage by availing TR concession
Fire arms allowed to be imported into India shall not be transferred to any other person during
the life time of the importer for consideration or otherwise. However, disposal of the fire arms
after the demise of the person may be allowed by (i) transfer to the legal heirs & sell of arms by the
legal heirs to a licence holder or arms dealer. Board’s circular 30/2001-CUS dated 22/05/01
issued from F.No. 496/4/99CUS. VI dated 22.5.01 refers. (Annexure 39 (ii)
6.31 Import of Work of Art, Antiques & Books for public display
In terms of notification no. 26/2011-CUS dated 1.3.11 exemption has been granted to the
wares of art created abroad by Indian artists & sculptors, whether imported on the return of such
artists or sculptors to India or imported by such artists or sculptors subsequent to their return to
India
6.32 IMPORT OF HUMAN EMBRYO IN THE PERSONAL BAGGAGE OF A PASSENGER
Chapter XI of the Customs Act, 1962 deals with special provisions regarding baggage and
section 77 deals with declaration by owner of any baggage and section 79 deals with BONAFIDE
BAGGAGE exempted from duty. They are as under:
SECTION 77. Declaration by owner of baggage. – The owner of any baggage shall, for the
purpose of clearing it, make a declaration of its contents to the proper officer.
SECTION 79. Bona fide baggage exempted from duty. – (1) The proper officer may, subject
to any rules made under sub-section (2), pass free of duty (a) any article in the baggage of a passenger or a member of the crew in respect of which
the said officer is satisfied that it has been in his use for such minimum period as may
be specified in the rules;
(b) any article in the baggage of a passenger in respect of which the said officer is satisfied
that it is for the use of the passenger or his family or is a bona fide gift or souvenir;
provided that the value of each such article and the total value of all such articles does
not exceed such limits as may be specified in the rules.
(2) the Central Government may make rules for the purpose of carrying out the provisions
of this section and, in particular, such rules may specify (a) the minimum period for which any article has been used by a passenger or a member
of the crew for the purpose of clause (a) of sub-section (1);
(b) the maximum value of any individual article and the maximum total value of all the
articles which may be passed free of duty under clause (b) of sub-section (1);
(c) the conditions (to be fulfilled before or after clearance) subject to which any baggage
may be passed free of duty.
(3) Different rules may be made under sub-section (2) for different classes of persons.
These sections are the governing sections for the purpose of bringing in bonafide baggage
by a passenger. A close look at the sections reveals that the word used in the section 79
is “article”. Conceptually and contextually, article means an inanimate object i.e. lifeless
object. Further, the section stipulates the minimum period for which any article has been
used by a passenger can be LAID DOWN by way of Rules.
With the growth of science and technology, there has been a spurt in surrogacy and as a
result of the same, it has been observed that passengers tend to bring in (and also declare
sometimes) human embryo in nitrogen container. Whether this can be allowed as a part of the
personal baggage is to be seen from the Section 79 of the Act itself. Customs Act, 1962 is a taxing
statue. A taxing statute has to be interpreted narrowly and wide meaning cannot be given to a word
78
as in the case of social welfare legislations. Further, it is a well settled principal of law that where
the statute’s meaning is clear, explicit, words cannot be added. In case of import of word into the
statute, the legislative intent intended to be conveyed might be altered by the addition of new
words. Where the meaning of the statute is clear and sensible, the primary source of the legislative
intent is in the language of the statute and section 79 clearly speaks of article and which was in the
use of the passenger prior to his arrival. Human embryos do not certainly fulfill these conditions
(as they could not be use or put to use) and hence a passenger cannot import human embryo as
a part of his personal baggage as of now.
An argument can certainly be advanced that the passengers are permitted to import two pets
of their choice and these being live animals are covered under the provisions of the Act ibid. This
is a fallacy. This is straightly on account of the Foreign Trade Policy for baggage. Since the FTP
does not envisage a situation as contemplated herein and furthermore, there being no equity in
taxation, the import of human embryo in nitrogen containers cannot be allowed in terms of the
extant provisions of law.
6.33 DUTY FREE SHOP (DFS)
The DFS comes under the purview/jurisdiction of office of the Commissioner of Customs (Air
Cargo Export), New Custom House, New Delhi. However, this office is empowered to conduct
checks as & when required on Duty Free Shop (DFS) & warehouse located at IGI Airport T-3, New
Delhi.
To regulate the Customs procedures for operation of duty free shop at IGI Airport New Delhi,
Public Notice 5/2006 dates 27.02.2006 has been issued by Commissioner of Customs (Air Cargo
Export), New Custom House, New Delhi.
On the valuation aspect, in Para 4.1 of the Public Notice, ibid, it has been clearly set out that
every sale shall be covered by a sale voucher (which shall be deemed to be shipping Bill
or Bill of Entry under Section 68 or 69 of the Customs Act 1962, as the case may be) which,
inter alia, shall show the name of the passenger to whom the sales are effected, the passport
No, description of goods, flight No. The pax shall append his signature on the voucher as per
his signature on the passport. The sale voucher should be serially numbered & prepared in duplicate
:- Original being for pax, duplicate being for DFS, which should be available for inspection by
Customs Officer at all reasonable times. Further in terms of Office Order No. 254/2001 dated
19.11.2001 of this office, it has been laid down that all the sale from DFS shall be made only after
recording the details of passport & passenger. Furthermore passenger who purchases three or
more bottles shall be noted by the DFS & intimated to the Customs at IGI Airport New Delhi,
without delay. The alcoholic liquor or wines of 2 litres and 200 cigarettes sticks or 50 cigars sticks
or 250gms tobacco gets included in the overall limit of free allowance subject to the fact that their
value is covered within the free allowance, as applicable. However, it may be pointed out here that
at times the value of liquor/wine/cigarette/tobacco/cigar may exceed the free allowance, irrespective
of quantity admissible, then the same would attract duty as applicable.
6.34 Permission to Indian Nationals undertaking visit abroad to buy goods from duty free
shops at International Airports at India in Indian Rupees
Indian Nationals undertaking visit abroad are permitted to buy from duty free shops at
International Airports at India in Indian Rupees goods worth Rupees 5000/-(Rs. Five thousand
only) per passenger per visit subject to following safeguard:(i)
the duty free shops would sell goods to the Indian Nationals only against passport or other
travel documents to ensure that one does not exceed this limit of Rs 5000/-( Rs. Five
thousands only) by purchasing goods from different duty free shops at an international
airport.
79
(ii)
the duty free shop would maintain records of such sale against Indian currency which may
be checked at random, in order to ensure that the facility is not abused or misused.
Board’s circular F.No 495/7/2005-Cus.VI 26th September, 2005 refers (Annexure 40)
6.35
Exemption to renowned shooters
Specific exemption to renowned shooters is available in terms of Notification 146/94 dated
13.7.1994 (Annexure-41), as amended by Notification No. 101 /2010-Customs dated
1.10.2010(Annexure-42). In terms of these Notifications exemption is available to the goods of
the description specified in column (2) of the Table annexed and falling within the First Schedule to
the Customs Tariff Act, 1975 (51 of 1975), when imported into India, from the whole of the duty of
customs leviable thereon which is specified in the said First Schedule and from the whole of the
additional duty leviable thereon under section 3 of the second mentioned Act subject to (a) The
said goods are imported into India by a sports person of outstanding eminence for training purposes;
(b)Provided that in respect of goods listed under item XV ‘SHOOTING’ specified in column (2) of
the Table, the said goods are imported into India by a renowned shooter for training purpose and
such importer produces a certificate to the Assistant Commissioner of Customs or Deputy
Commissioner of Customs as the case may be, from the National Rifle Association of India that
the importer is a renowned shooter; (c) the importer, at the time of importation of the goods,
produces a certificate to the Assistant Commissioner of Customs or Deputy Commissioner of
Customs from an officer not below the rank of a Deputy Secretary in the Department of Youth
Affairs and Sports, Ministry of Human Resource Development, Government of India indicating i)
(ii)
iii)
the description, quantity and value of the said goods;
that the importer is a sports person of outstanding eminence; and
that the said goods are essential for the training purposes of the importer and recommends
grant of the exemption.
6.35(i) Requirement of issuing Notice to the owner of goods- provisions of Section 150 of
the Customs Act, 1962
It has been clarified by the Board vide F.NO.711/4/2006- Cus(AS) dated February 14, 2006
that where any goods, not being confiscated goods, are to be sold under any provision of the
Customs Act, they shall be sold by public auction or by tender or in any other manner after notice
to the owner of the goods. It has been clarified further clarified that the requirement to issue
notice to the owner of the goods shall also obtain in case of goods that have been confiscated
but in respect of which all appeal/legal remedies have not been exhausted by the owner of the
goods.
6.35 (ii) Disposal of seized/confiscated gold
The procedure for disposal by sale of seized/confiscated gold (other than gold ornaments/
jewellery which is to be disposed of as before) has been prescribed by the Board vide circular No.
F.No.711/164/93-CUS(AS) dated 8.8.2005
6.36 Duty free export of samples as personal baggage of the exporter
Para 2.31 of the Foreign Trade Policy relates to export of passenger baggage which does
not specifically provide that samples could be part of the bonafide personal baggage. Para 2.20
Foreign Trade Policy provides that “ “Bonafide household goods and personal effects may be
imported as part of passenger baggage as per limits, terms and conditions thereof in Baggage
Rules. Samples of such items that are otherwise freely importable under FTP may also be imported
as part of passenger baggage without an Authorization”. Thus Para 2.31 of FTP relating to export
of baggage does not provide for any expansion to include samples as bonafide baggage
unlike FTP provisions in case of import of baggage. However, the provisions contained in Para
80
2.27 of Handbook of Procedure , Foreign Trade Policy, makes it explicit that export of samples
are allowed freely. The Board vide its instructions issued on vide F.No.495/2/2011-Cus.VI
dated 5.4.2011 (Annexure 43)has clarified that in order to ameliorate the problem faced by
the passengers, bonafide trade samples should be part of export baggage in terms of Para
2.31 of the Policy read with Para 2.20 of the Policy and 2.27 of Handbook of Procedures. It has
been clarified that the matter of suitable amendment in Para 2.31 of FTP has been taken up
with DGFT. In the mean time liberal view, based upon status of exporter, nature and quantity
of sample and certification, if any, from Export Promotion Council may be taken in the matter.
6.37 Issue of Export Certificate at the Customs Departure
Passengers carrying expensive electronic gadget like laptops, high-end video cameras,
high-end mobiles, etc with you and plan to return to India soon it is advisable to get an export
certificate for the item so that no duty is leviable on the item when brought back to India. The
certificates are issued by Customs officers in the Customs room situated just after the Immigration
It is advisable to carry such items in hand baggage, the item needs to be exhibited to the
customs officer along with your boarding pass and passport. Any document/ invoice etc which
indicates the value of the item may also be produced. Specific markings, number etc shall be
noted by the officer and the certificate issued. It is valid for one year. Only such of those items
which can be identified by a unique serial number/mark/brand/model/make/type etc. shall be issued
the Export Certificate.
The Proforma for issue of Export Certificate can be as Annexure 44.
6.38
RE IMPORT OF GOODS EXPORTED
Section 12 deals with dutiable goods. Section 20 talks about re-importation of goods. If the
goods are imported into India after exportation, such goods shall be liable to duty and these will be
subject to all conditions and restrictions if any, to which goods of the like kind and value are liable
on the importation thereof.
In a sense the Customs Act, 1962 does not distinguish between the goods that are being
imported or goods which have been re-imported out of the exported goods.
6.39
ISSUE OF EXPORT CERTIFICATE ON THE BASIS OF TEMPORARY EXPORT
PERMIT ISSUED BY DG, ASI ETC.
Passengers are issued a Temporary Export Permit (TEP) by the DG, ASI and other agencies.
The TEP issued is to be carried at the time of departure and the pax is to take an Export Certificate
from the Customs on the Airport side on the basis of TRP given/issued. At the time of arrival, the
pax is required to produce the export certificate and get the same cancelled. Failure to do so
would attract duty besides inviting penal action.
81
Annexure-1a
12th April, 2002
Notification No. 40 /2002- Customs
In exercise of the powers conferred by section 3A of the Customs Tariff Act, 1975 (51 of
1975), (hereinafter referred to as the said Act) read with 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
Ministry of Finance( Department of Revenue) No. 37/96-Customs, dated the 23rd July 1996 , [ G.S.
R. 289 (E) dated the 23rd July, 1996] , except as respects things done or omitted to be done
before such supersession , the Central Government, being satisfied that it is necessary in the
public interest so to do, hereby exempts goods specified in column(2) of the Table below and
falling within the First Schedule to the said Act, when imported into India from Nepal, (a) from the whole of the duty of customs leviable thereon under the said First Schedule to the
said Act, and
(b) from the whole of the special additional duty leviable thereon under section 3A of the said Act,
subject to the conditions, if any, specified in the Annexure to this notification, the Condition No.
of which is mentioned in the corresponding entry in column( 3 ) of the said Table.
TABLE
S.No
Description of goods
Condition No.
(1)
(2)
(3)
1.
(i)
Agricultural, horticultural and forest produce and minerals
which have not undergone any processing;
(ii) Rice, pulses and flour;
(iii) Timber;
(iv) Jaggery (gur and shakkar);
(v) Animals, birds and fish;
(vi) Bees, bees-wax and honey;
(vii) Raw wool, goat hair and bones as are used in the
manufacture of bone-meal;
(viii) Milk, home-made products of milk and eggs;
(ix) Ghani-produced oil and oil-cakes;
(x) Ayurvedic and herbal medicines;
(xi) Articles produced by village artisans as are mainly
used in villages;
(xii) Yak tail;
(xiii) Akra.
1
2.
All manufactured goods other than the following: (i) Alcoholic Liquors or beverages and their concentrates,
other than beer and Industrial spirits;
(ii) Perfumes and cosmetics with non-Nepalese or non-Indian
brand names;
(iii) Cigarettes and Tobacco;
(iv) Vegetable fats (Vanaspati);
(v) Acrylic Yarn;
(vi) Copper products falling under Chapter 74 and heading 85.44
of the First Schedule to the said Act , and
(vii) Zinc Oxide .
2
3.
(i) Vegetable fats (Vanaspati);
(ii) Acrylic Yarn;
(iii) Copper products falling under Chapter 74 and heading 85.44
of the First Schedule to the said Act, and(iv) Zinc Oxide.
2 and 3
82
ANNEXURE
Condition No
Condition
1.
If the goods are wholly produced in Nepal .
2.
A (1)The goods are manufactured in Nepal wholly from Nepalese materials or Indian
materials or Nepalese and Indian materials; or
(2) The goods involve a manufacturing process in Nepal that brings about a change in
classification at four digit level of the Harmonised Commodities Description and Coding
System, different from those, in which all the third country origin materials used in the
manufacture of such goods are classified and the manufacturing process is not limited
to insufficient working or processing as indicated in the illustrative list below:
(i)
Operations to ensure the preservation of articles in good condition during transport and
storage (e.g., ventilation, spreading out, drawing, chilling, placing in salt, sulphur-dioxide
or other aqueous solutions, removal of damaged parts and like operations);
(ii) Operations consisting or removal of dust, sifting or screening, sorting, classifying,
matching (including the making up of sets), washing, painting, cutting up;
(iii) Changes of packing and breaking up and assembly of consignments;
(iv) Slicing, cutting, slitting, re-packing, placing in bottles or flasks or bags or boxes or other
containers, fixing on cards or boards, etc., and all other packing or re-packing
operations;
(v) The affixing of marks, labels or other like distinguishing signs on articles or their
packaging;
(vi) Mixing of articles, whether or not of different kinds, where one or more components of the
mixture do not meet the conditions laid down in para 1 (b) of Protocol to the Article V of
the Treaty of Trade between His Majesty’s Government of Nepal and the Government of
India to enable them to be considered as manufactured or produced or made in Nepal;
(vii) Assembly of parts of an articles to constitute a complete article;
(viii) A combination of two or more operations specified in (i) to (vii) above.
B.
The importer produces a certificate of origin in the Form indicated below, duly certified
by an agency designated by His Majesty’s Government of Nepal, in respect of the
consignment, to the satisfaction of the Assistant Commissioner of Customs or Deputy
Commissioner of Customs , as the case may be, that such goods have in fact been
manufactured in Nepal .
FORM OF CERTIFICATE OF ORIGIN
Certificate of origin for exports free of customs duties under the Treaty of Trade
between His Majesty’s Government of Nepal and the Government of India
Reference No. ________________
1.
Articles consigned from (Exporter’s business name, address):
2.
Articles consigned to (Consignee’s name, address):
3.
Means of transport and route:
4.
Item number (HS Tariff Line):
5.
Marks and number of package:
6.
Description of Articles :
7.
Gross weight or other quantity :
8.
Number and date of Invoice together with value:
9.
Ex-Factory price* of the articles manufactured in Nepal :
83
* ‘Ex-factory price’ means the price of the product at the time of the clearance from the
factory gate.
10. (i) Whether articles are manufactured in Nepal under Para 1(a) of the Protocol to Article V
of the Treaty of Trade
(Yes/No):
(ii) If articles are manufactured in Nepal under Para 1 (b) (i) and (ii) of the Protocol to
Article V of the Treaty of Trade:
(A) CIF value of materials, parts or produce originatingfrom Non-Contracting Parties (i.e.
other than Nepal and India ) at the point of entry in Nepal :(B) Value of materials, parts or produce of undetermined origin:11. Percentage of the sum of the value of col. 10(ii) (A) and (B) to the value of col. 9:
12. Declaration by the exporter: The undersigned hereby declares that the details furnished
above are correct, that the articles are produced in Nepal and that they comply with the
Rules of Origin specified in the Treaty of Trade between His Majesty’s Government of
Nepal and Government of India.
_____________________
(Place and Date, Signature of authorised signatory)
13. Certification: It is certified that the articles herein referred to are eligible for preferential
treatment as per provisions of the Treaty of Trade between His Majesty’s Government of
Nepal and the Government of India. It is further certified that:
1.
The articles have been manufactured in Nepal at a factory situated at _____ (name of
place/district) by M/s. ___ (name of the company).
2.
The articles involve manufacturing activity in Nepal and that the manufacturing activity
satisfies the criteria given in the Protocol to Article V of the Treaty of Trade.
3.
The articles in question are not products of third country origin.**
For His Majesty’s Government of Nepal
(Place and date, Signature and Stamp of Certifying Authority)
**For the purpose of the above Item No. 3, the articles which have undergone a
manufacturing process in Nepal as defined in the Protocol to Article V of the Treaty will
not be treated as product of third country origin.
14. For official use of Indian Customs:The consignment has been examined and allowed to
be imported into India as it complies with the provisions as stipulated under Article V of
the Treaty of Trade between His Majesty’s Government of Nepal and Government of
India.
________________________
Signature and Seal of the Certifying Authority.
Dated:Place:
————————————————————————————————————————
C
The products worked on or processed as a result of which the total value of materials,
parts or produce originating from countries other than India or Nepal or of undetermined
origin used -
i)
does not exceed seventy five per cent. of the ex-factory price of the articles imported in the
time period beginning from the 6 th day of March, 2002, and ending on the 5th day of
March, 2003; and
ii)
does not exceed seventy per cent. in any subsequent time period , which commences on
the 6th day of March in a given calendar year and ends on the 5th day of March of the
subsequent calendar year ; and
84
iii) the final process of manufacture is performed in Nepal .
Explanation - For the purpose of this notification, the value of materials, parts or produce
originating from countries other than India or Nepal shall be the CIF value at the time of
importation of materials, parts or produce, at the point of entry in Nepal, where this can
be proven to the satisfaction of the Assistant Commissioner of Customs or Deputy
Commissioner of Customs, or the earliest ascertainable price paid for the materials,
parts or produce of undetermined origin in Nepal where the working or processing takes
place.
3.
A The exemption shall apply only to a specified quantity of imports ,
i)
100,000 MT in case of Vegetable fats (Vanaspati);
ii)
10,000 MT in case of Acrylic Yarn;
not exceeding
iii) 10,000 MT in case of Copper products falling under Chapter 74 and heading 85.44 of the
First Schedule to the Customs Tariff Act, 1975(51 of 1975) and
iv) 2,500 MT in case of Zinc Oxide , in a time period , which shall commence from the 6th
day of March of a given calendar year and end on the 5th day of March of the succeeding
calendar year . Illustration: The first time period shall commence on the 6th day of March,
2002 and will end on the 5th day of March, 2003.
2.
B.
The imports shall be permitted only through the land customs stations at Kakarbhitta/
Naxalbari, Biratnagar/Jogbani, Birganj/Raxaul, Bhairwaha/Nautanwa, Nepalgunj/
Nepalgunj Road and Mahendranagar/Banbasa.
C.
The importer shall follow the procedure as may be specified by the Government of India
from time to time.
This notification shall come into force on the 16th day of April, 2002.
Vivek Prasd
Under Secretary to the Government of India
F.No 552/25/2002-LC(Pt)
85
Annexure 1-b
27, August, 2002
Notification No. 87 /2002- Customs
In exercise of the powers conferred by section 3A of the Customs Tariff Act, 1975 (51 of
1975), read with sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central
Government, being satisfied that it is necessary in the public interest so to do, hereby makes the
following amendment in the notification of the Government of India in the Ministry of Finance
(Department of Revenue), No 40/2002-Customs, dated the 12th April, 2002, namely:In the said notification, the Proviso shall be omitted.
Vivek Prasad
Under Secretary to the Government of India
Annexure-1c
15th January, 2003
Notification No. 9/2003- Customs
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby makes the following further amendment in the notification of the Government of India
in the erstwhile Ministry of Finance (Department of Revenue), No 40/2002-Customs, dated the
12th April, 2002, namely:In the said notification, in the Annexure, in Condition No.3, in sub-para iii) of para A, for the
figures “7,500”, the figures, “10,000” shall be substituted.
Vivek Prasad
Under Secretary to the Government of India
F.No 354/228/2002-TRU
Note: The principal notification No.40/2002-Customs dated the 12th April 2002, was published in
the Gazette of India Extraordinary vide G.S.R 281 (E) dated the 12th April 2002 and was last amended
by notification No.87/2002-Customs dated the 27th August, 2002 (G.S.R. 603 (E) dated the 27th
August, 2002).
86
Annexure-2
Notification No. 38/96-Cus., dated 23-7-1996
Exemption to imports from Bhutan and Nepal.
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts goods specified in column (2) of the Table hereto annexed and falling within
the First Schedule or the Second Schedule, as the case may be, of the Customs Tariff Act, 1975
(51 of 1975), from the whole of that duty of customs leviable thereon under the said Customs Tariff
Act, which is specified in the corresponding entry in column (3) of the said Table.
TABLE
S.No
Description of goods
Duty
(1)
(2)
(3)
1.
(a) Goods of Bhutanese or Indian origin
imported from Bhutan into India;
(b) Goods imported into India from a foreign
country for the purpose of export to
Bhutan;
(c) Goods imported into India from a foreign
country for the purpose of export to Nepal;
(d) Goods imported into India from Bhutan for
the purpose of export to a foreign country;
(e) Goods imported into India from Nepal for
the purpose of export to a foreign country;
(f) Semi-tanned cow hides, low gran image
paper, kapok and handloom products,
when imported into In dia from Bangladesh;
(g) Goat skin, sheep skin horses, goats,
sheep, wool, butter, common salt, raw silk,
yak tail, yak hair, china clay, borax,
szaibelyite and goat cashmere, when
imported into India from China through
Gunji in Pithoragarh district of Uttar Pradesh
along the Gunji Pulan (Tibet) land route or
through village Namgaya Shipkila in Kinnaur
district of Himachal Pradesh along the
Namgaya-Shipkila-Shipki Jui Jiub a
land route.
Duty of customs leviable thereon
under the First Schedule to the
Customs Tariff Act, 1975 and
Additional duty leviable thereon
under section 3 of the said Act.
2.
(a) Goods of Bhutanese or Indian origin exported
from India to Bhutan;
(b) Goods imported into India from Bhutan for
the purpose of export to a foreign country
and all goods imported into India from a
foreign country for the purpose of .export
to Bhutan, when exported to the foreign
country or, as the case may be, to Bhutan;
Duty of customs leviable thereon
under the Second Schedule to the
Customs Tariff Act.
87
(c) Goods imported into India from Nepal for
the purpose of export to a foreign country
and all goods imported into India from a
foreign country for the purpose of export
to Nepal, when exported to the foreign
country or, as the case may be, to Nepal.
Notification No. 38/96-Cus., dated 23-7-1996
88
Annexure-3
Notification No. 21 / 2002-Customs dated 1st March, 2002
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962) and in supercession of the notification of the Government of India in the Ministry of
Finance ( Department of Revenue), No.17/2001-Customs, dated the 1st March, 2001[ G.S.R. 116(E)
dated the 1st March, 2001], the Central Government, being satisfied that it is necessary in the
public interest so to do, hereby exempts the goods of the description specified in column (3) of the
Table below or column (3) of the said Table read with the relevant List appended hereto, as the
case may be, and falling within the Chapter, heading or sub-heading of the First Schedule to the
Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of
the said Table, when imported into India,(a) from so much of the duty of customs leviable thereon under the said First Schedule as is in
excess of the amount calculated at the rate specified in the corresponding entry in column (4)
of the said Table;
(b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the
said Customs Tariff Act, as is in excess of the rate specified in the corresponding entry in
column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this
notification, the condition No. of which is mentioned in the corresponding entry in column (6)
of the said Table:
Provided that nothing contained in this notification shall apply to a)
the goods specified against serial Nos. 239, 240, 241 and 242 of the said Table on or after the
1st day of April, 2003 ;
b)
the goods specified against serial Nos. 250, 251 , 252 and 415 of the said Table on or after the
1st day of March, 2005 .
Explanation.- For the purposes of this notification, the rate specified in column (4) or column (5)
is ad valorem rate, unless otherwise specified.
Table
S. No.
Chapter or
Description of goods Standard
Heading or
rate
sub - heading
Additional
duty rate
Condition No.
(1)
(2)
(3)
(4)
(5)
(6)
405.
Any Chapter
Used bona fide
personal and
household effects
belonging to a
deceased person
Nil
Nil
88
ANNEXURE
Condition No.
Conditions
88
If a certificate from the Indian Mission concerned, about the ownership of the
goods by the deceased person, is produced at the time of clearance of the
goods through Customs station.
89
Annexure-4
Exemption to imports relating to Defence and internal security forces.
23-7-1996
Notification No. 39/96-Customs
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts goods of the description specified in column (2) of the Table hereto annexed
and falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported
into India, from the whole of the duty of customs leviable thereon which is specified in the said First
Schedule and from the whole of the additional duty leviable thereon under section 3 of the second
mentioned Act, subject to the conditions, if any, specified in the corresponding entry in column (3)
of the said Table.
Table
S.No. Description of goods
Conditions
(1)
(2)
(3)
2.
Personal effects of the persons on duty
out of India with the Indian naval,
military or air forces or with the
Indian Navy
If imported for delivery to the next of kin of
such person if he dies or is wounded, is
missing or is taken prisoner of war.
Notification No.39/96-Cus., dated 23-7-1996 as amended by Notification 60/96-Cus., dated
22-8-1996; No.86/96-Cus., dated 6-11-1996; No. 19/97-Cus.; dated 1-3-1997;No. 69/97-Cus.; dated
15-9-1997;No. 28/98-Cus.; dated 2-6-1998; No. 99/98-Cus.; dated 27-11-1998;No. 27/99-Cus.;
dated 28-2-1999;No. 111/99-Cus.; dated 21-9-1999 and Notification 146/2000-Cus, dated 15-122000; No. 118/99-Cus.; dated 29-10-1999;No. 8/2000-Cus.; dated 27-1-2000;No. 11/2000-Cus.;
dated 31-1-000; No. 20/2000-Cus.; dated 1-3-2000; No.103/2000-Cus.,dated 19-7-2000; No.33/
2001-Customs dated 29-03-01.and No.66/2002-cus dated 26-6-2002.
90
Annexure-5
F. No. 520/32/2004-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
New Delhi, 31st July, 2006
To
All Chief Commissioner of Customs,
All Chief Commissioner of Customs & Central Excise,
All Chief Commissioner of Central Excise
Sir,
Subject: Delay in clearance of human bodies at Airports- reg.
Recently, a very unfortunate incident of delay by Customs officials in clearance of human
bodies of victims of a boat tragedy, which arrived from Muscat, at Bangalore airport, was reported
to the Board by the Ministry of Overseas Indian Affairs.
2. It was reported that there was lack of sensitivity on the part of the customs officials in handling
the clearance of human bodies and poor coordination amongst customs and airlines, ground
handling agents, airport authority. The delay in customs clearance not only caused enormous
agony to the family and relative of the deceased who had come to receive the body, it also reflects
the insensitive approach of our officers towards such instances of human tragedy.
3. Board therefore desires that officers at airports should be sensitized to adopt a more humane
and sensitive attitude towards such instances, where the family already grieving the loss of a
family member is not put to further hardships in taking delivery of human remains of the deceased.
Adopting sensitivity and allowing immediate clearance pending formalities in such circumstances
as well as extending all possible help to the family of the deceased would go a long way in passenger
facilitation at airports.
Yours faithfully,
(M.M.Parthiban)
Director (Customs)
Tel: 23093908
91
Annexure-6
8th January , 2004
Notification No. 11 / 2004 - Customs
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts one laptop computer (notebook computer) falling under tariff item 98030000
of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) when imported into India by a
passenger of the age of 18 years or above (other than member of crew ) from whole of the
duty of Customs leviable thereon under the First Schedule to the said Customs Tariff Act.
2.
This notification shall come into force on and from the 9th day of January 2004.
92
Annexure 7,8,9
Customs Clearance Procedure for Food Items, Livestock Products, Plant and Plant
Materials.
The Government has enacted several laws to regulate importation of food items, livestock
products, plant materials and other agricultural commodities into the country. The import of plants
and plant materials is regulated as per the Plants, Fruits, Seeds (Regulation of Import into India)
Order{PFS} Order, 1989 issued under the Destructive Insects & Pests Act, 1914 to prevent
introduction of exotic pests and diseases into the country. The Livestock Importation Act, 1898
regulates the imports of livestock and livestock products in a manner that such imports do not
adversely affect the health of human and animal population of the country. As per the Prevention of
Food Adulteration Act, 1954, any product not fulfilling the statutory provisions is not allowed to be
imported into the country. Likewise, there are several rules, regulations, orders, notifications, etc.
issued by the Government, laying down procedures as to how the imports of above products are
to be dealt with. The Customs has a pivotal role to play because, it is the agency stationed at the
border to enforce the rules, regulations and orders issued by various administrative Ministries.
2. Until very recently, the general awareness about various rules and regulations on importation
of food items, livestock products, plant materials and other agricultural commodities was somewhat
limited because, the bulk of the items were not allowed to be imported into the country. The licensing
mechanism itself acted as a check on unbridled imports. The situation has changed after removal
of Quantitative Restrictions with effect from 1.4.2001. Now there is a real danger of import of these
items flooding the market which could, unless regulated properly, adversely affect the health and
safety of our human and animal population. The WTO Agreement on the Application of Sanitary
and Phytosanitary Measures enables member countries to take sanitary and phytosanitary
measures necessary for the protection of human, animal or plant life or health, provided that such
measures are not inconsistent with the provisions of this Agreement. The Agreement permits the
member countries to carry out a detailed import risk analysis for applying sanitary and phytosanitary
measures. Consistent with our obligations under the WTO, the Government has issued several
orders, notifications, etc. in recent months to regulate the importation of food items, livestock
products, plant materials and other agricultural commodities, more important of which are mentioned
below.
Notification No.44(RE-2000)/1997-2002, dated 24.11.2000:
3. In November, 2000, the Director General of Foreign Trade (DGFT) had issued a notification
{No.44 (RE-2000)/1997-2002, dated 24.11.2000} to regulate the imports of packaged commodities
into India. As per this notification, all packaged products, which are subject to the provisions of the
Standards of Weights and Measures (Packaged Commodities) Rules, 1977, when produced/
packed/sold in the domestic market, shall be subject to compliance of all the provisions of the said
Rules, when imported into India. It is provided that compliance of the provisions of the notification
shall be ensured by the Customs before the consignments are cleared for home consumption.
The notification further states that all pre-packaged commodities imported into India shall, in
particular, carry the declarations, such as, name and address of the importer, net quantity, month
and year of packing and maximum retail price. It has been clarified by the DGFT vide Circular
No.38(RE-2000)/1997-2002, dated 22.1.2001 that the labeling requirements is applicable only to
imports of those pre-packaged commodities which are intended for retail sale. As imported raw
materials, components, bulk imports, etc. would invariably undergo further processing or assembly
before they are sold to consumers, these imports shall not invite the application of labeling
requirements.
Notification No.3(RE-2001)/1997-2002, dated 31.3.2001:
93
4. In the wake of removal of quantitative restrictions, the DGFT has issued a notification No.3(RE2001)/1997-2002, dated 31.3.2001 for regulating import of meat and poultry products, edible/food
products and primary agricultural products. As per this notification import of meat and poultry
products will be subject to the compliance of conditions regarding manufacture, slaughter, packing,
labeling and quality conditions as laid down in Meat Food Products Order, 1973. The notification
also states that all manufacturers of meat/poultry products exporting their goods to India shall be
required to meet the sanitary and hygienic requirements as stipulated under Schedule-II of the
aforementioned Order. The imported product shall also comply with the specified packaging, labeling
and quality standards as laid down in Schedule-IV of the Order. It is provided that the Customs has
to ensure compliance of these conditions before allowing clearance of the consignments.
5. In regard to edible/food products, the notification stipulates that the import of such products,
domestic sale and manufacture of which are governed by Prevention of Food Adulteration Act,
1954, shall be subject to all the conditions laid down in the said Act. Import of all these products
thus will have to comply with the quality and packaging requirements as laid down in the aforesaid
Act. The notification enjoins Customs to ensure compliance of these conditions before allowing
clearance of the consignments.
6. Further, as per the aforesaid notification, import of all primary agricultural commodities will be
subject to a Bio Security & Sanitary-Phytosanitary Import Permit, to be issued by Department of
Agriculture and Co-operation, as per conditions of PFS Order, 1989. The Permit will be based on
import risk analysis of the product, to be conducted on scientific principles, in accordance with the
WTO Agreement on the Application of Sanitary and Phytosanitary Measures. The import risk analysis
will be conducted based on various scientific principles, including inter alia, (a) the type of pests
etc. known to be associated with the particular product in the exporting country; (b) the organisms
already established in India; and (c) the potential impact of such organisms on India’s international
trade.
The Livestock Importation Act, 1898:
8. The Livestock Importation Act, 1898 has been recently amended vide the Livestock Importation
(Amendment) Ordinance, 2001 which was promulgated on 5.7.2001. Prior to amendment, the
said Act was applicable only for livestock whereas the livestock products were not regulated under
the Act. The amendment to the said Act has been made to regulate the import of livestock products
in such a manner that these imports do not adversely affect the human and animal health population
of the country. Under the said Livestock Importation Act, 1898, the Department of Animal Husbandry
and Dairying has issued a notification on 7.7.2001 to regulate the import of livestock products,
namely, (i) meat and meat products of all kinds including fresh, chilled and forzen meat, tissue or
organs of poultry, pig, sheep, goat; (ii) egg and egg powder; (iii) milk and milk products; (iv) bovine,
ovine and caprine embryos, ova or semen; and (v) pet food products of animal origin. A procedure
has also been laid down to regulate such imports. The notification, inter-alia, provides that import
of livestock products will be allowed against valid sanitary import permit issued by the Department
of Animal Husbandry and Dairying and the same will be allowed only through the airports and
seaports at Delhi, Mumbai, Kolkata and Chennai which have Animal Quarantine and Certification
Services Stations.
9. Taking note of various developments referred to above, the Central Board of Excise & Customs
has issued detailed instructions, laying down procedures for clearance of food articles, livestock
products, plant and plant materials.
Customs Clearance Procedure for Food Items:
10. Circular No.36/2001-Customs dated 15.6.2001 (issued from F.No.450/21/98-CUS.IV) lays
down detailed guidelines for examination and testing of food items prior to customs clearance.
This circular enjoins Customs to undertake certain general checks in addition to testing of samples.
94
First, the Customs should check the condition of the hold in which the products were transported.
This is basically to see whether they meet the requirements of storage as per the nature of the
product, and does not in any way cause deterioration or contamination of the products. In the
second place, the Customs is required to check the physical/visual appearance of goods in terms
of possible damage – whether it is swollen or bulged in appearance and also for rodent/insect
contamination or presence of filth, dirt, etc. The third important thing is compliance of labeling
requirements under the Prevention of Food Adulteration Rules and the Packaged Commodities
Rules. This includes ensuring that the label is written not only in any foreign language, but also in
English. The details of ingredients in descending order, date of manufacture, batch number, best
before date, etc. are other mandatory requirements. Further, all products will also have to indicate
details of best before on all food packages. The Customs should check that imported food articles
meet the above labeling requirements. Recently, the DGFT has issued a notification {No.22(RE2001/1997-2002) dated 30.7.2001 to the effect that the imported food item, at the time of its import,
should have a valid shelf life of not less than 60% of original shelf life. In other words, the time
period between ‘best before date’ and ‘date of import’ should be at least 60% of time period between
‘date of manufacture’ and ‘best before date’. The Customs has to ensure that the food articles
which do not meet this condition are not allowed clearance for home consumption.
11. Apart from the general checks referred to above, all the consignments of edible/food products
imported through Ports, Inland Container Depots (ICDs), Air Cargo Complexes (ACCs), Container
Freight Stations (CFSs) and Land Customs Stations (LCSs) are required to be referred to the Port
Health Officer (PHO) for testing. For alleviating the difficulties of importers it has been decided that
pending receipt of the test report, such consignments can be allowed to be stored in warehouses
under section 49 of the Customs Act, 1962. The circular makes it clear that clearance for home
use will be allowed only after receipt of the test report. If the product fails the test, the Customs
authorities will ensure that the goods are re-exported out of the country by following the usual
adjudication procedure or destroyed as required under the relevant rules. As regards ICDs/CFSs/
Ports/ACCs/LCSs where PHOs are not available, the Customs is required to draw the samples
and get them tested from the nearest Central Food Laboratory or a Laboratory authorised to conduct
such testing by the Directorate General of Health Services.
12. In addition to testing of food items under the PFA Act, 1954, these items shall also be subject
to examination/testing to ensure compliance of the requirements of other Acts, Regulations and
Orders such as Meat Food Products Order, 1973, PFS Order, 1989, the Livestock Importation Act,
etc., if applicable, before these are allowed clearance into the country.
Customs Clearance Procedure for Livestock Products:
13. The livestock products, namely, (i) meat and meat products of all kinds including fresh, chilled
and frozen meat, tissue or organs of poultry, pig, sheep, goat; (ii) egg and egg powder; (iii) milk and
milk products; (iv) bovine, ovine and caprine embryos, ova or semen; and (v) pet food products of
animal origin are allowed to be imported only against a sanitary import permit issued by the
Department of Animal Husbandry and Dairying. For this purpose, a detailed import risk analysis is
carried out and a sanitary import permit is issued only after the concerned authorities are satisfied
that the import of the consignment will not adversely affect the health of the animal and human
population of this country. The Import Permit lays down the specific conditions that will have to be
fulfilled in respect of the consignment, including pre-shipment certifications and quarantine checks.
The Permit also specifies the post-import requirements with regard to quarantine inspection,
sampling and testing. The Import Permit is generally issued for a period of six months and can be
extended by the concerned authorities for a further period of six months.
14.
As mentioned earlier, the livestock products are allowed to be imported into India only
through the sea ports or airports located at Delhi, Mumbai, Kolkata and Chennai, where the Animal
Quarantine and Certification Services Stations are located. On arrival at the port/seaport, the
95
livestock product is required to be inspected by the officer in-charge of the Animal Quarantine and
Certification Services Station or any other veterinary officer duly authorised by the Department of
Animal Husbandry and Dairying. After inspection and testing, wherever required, quarantine
clearance is accorded by the concerned quarantine or veterinary authority for the entry of the
livestock product into India. If required in public interest, the quarantine or veterinary authority may
also order the destruction of the livestock product or its return to the country of origin.
15.
Wherever any disinfection or any other treatment is considered necessary in respect of
any livestock product, it is the importer who on his own or at his cost has to arrange for disinfection
or other treatment of the consignment under the supervision of a duly authorised quarantine or
veterinary officer.
16.
The Customs will have to ensure that the livestock products are granted clearance for
home consumption only after necessary permission is granted by the concerned quarantine or
veterinary authorities. It may be noted that the Government has recently issued a notification on
30.5.2001 prohibiting import of all poultry products from Hongkong (China), Honduras, Italy, Laos
and Pakistan for a period of six months from the date of issue of this notification in view of reported
outbreak of Avian Influenza (Fowl Plague) in these countries. The products prohibited for import
are domestic and wild birds, day-old chicks, turkeys, poultry and other newly hatched avian species,
hatching eggs, semen of domestic and wild birds, fresh meat of domestic and wild birds, products
of animal origin (from birds) destined for use in animal feeding or for industrial use, pathological
material and biological products (from birds) which have not been processed to ensure the
destruction of Avian Influenza (Fowl Plague) virus. The question of allowing clearance of these
products for home use, therefore, does not arise.
Reference:
Circular No.36/2001-Cus., dated 15.6.2001 (issued from F.No.450/21/98-Cus.IV); Circular No.43/
2001-Cus., dated 6.8.2001 (issued from F.No.450/44/2001-Cus.IV); CBEC letter F.No.450/80/2000Cus.IV dated 24.7.2000; DGFT Notification No.44(RE-2000)/1997-2002, dated 24.11.200; DGFT
Policy Circular No.38(RE-2000)/1997-2002, dated 21.1.2001; DGFT Notification No.3(RE-2001)/
1997-2002, dated 31.3.2001; Department of Animal Husbandry and Dairying Notification dated
7.7.2001 (issued from F.No.109-6/2001-Trade); Department of Animal Husbandry and Dairying
Notification dated 30.5.2001 [issued from F.No.50-4/84-LDT (AQ)]; Department of Agriculture &
Co-operation letter F.No.82-2/2001-P&D, dated 11/15.5.2001; Department of Agriculture & Cooperation Notification No.[GSR378(E)] dated 1.5.2001 and Press Note communicated vide letter
F.No.8-26/2000-PP-I dated 9.5.2001.
Note:
Circular No. 36/2001-Cus dated 15.6.2001 has been rescinded by circular No.58/2001 dated
25.10.2001 (Annexure 9-a) and further modified by Board’s circular 3/2011 dated
6.1.2011(Annexure 9-b)
96
(Annexure 9-a)
Circular No. 58/2001-CUS.
25th October,2001
F.No.450/21/98-CUS.IV
Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Excise & Customs
Subject: Application of PFA Act, 1954 and other Acts for the clearance of consignments of
food articles – instructions – regarding –
I am directed to refer to the Board’s Circular No. 36/2001-Cus., dated 15th June, 2001 on
above-mentioned subject. The said Circular provides detailed guidelines for examination and testing
of food items prior to Customs clearance. It has been provided that no food item would be allowed
clearance unless it is tested under the Prevention of Food Adulteration Act, 1954 and other allied
laws. In this connection, a number of representations has been received from the hotel industry
stating that they are facing difficulties in clearance of perishable food items due to mandatory
testing of all consignments. The Federation of Hotel and Restaurant Association of India has
requested for restoration of the exemption granted earlier to hotels from 100% testing under Circular
No.103/2000-Cus., dated 15th December, 2000 (which was superseded by Circular No. 36/2001Cus., dated 15/6/2001).
2. The matter has been examined by the Board. Considering the difficulties being faced by the
trade, the following decisions have been taken for clearance of food articles.
2.1 The Customs shall undertake the following general checks in addition to testing of samples in
terms of sub-paragraph 2.2 or 2.3 and paragraph 3 prior to clearance of food items, and if the
product does not satisfy these requirements, clearance shall not be allowed:(a) The condition of the hold in which the products were transported should be checked to
see whether they meet the requirements of storage, as per the nature of the product,
and does not in any way cause deterioration or contamination of the products.
(b) Physical/ visual appearance in terms of possible damage - whether it is swollen or
bulged in appearance; and also for rodent/insect contamination or presence of filth, dirt
etc. - should be checked.
(c) The product should meet the labelling requirements under the Prevention of Food
Adulteration Rules and the Packaged Commodities Rules. This includes ensuring that
the label is written not only in any foreign language, but also in English. The details of
ingredients in descending order, date of manufacture, batch no., best before date etc.
are mandatory requirements. All products will also have to indicate details of best before
on all food packages. (Reference Ministry of Health notification No. GSR 537(E) dated
13th June 2000).
2.2 All the consignments of edible/food products imported through ports, airports, ICDs, CFSs,
Land Customs Stations shall be referred to PHOs for testing and clearance shall be allowed only
after receipt of the test report. Pending receipt of test report, such consignments may be allowed
to be stored in warehouses under section 49 of the Customs Act, 1962. If the product fails the test,
the Customs authorities will ensure that the goods are re-exported out of the country by following
the usual adjudication procedure or destroyed as required under the relevant rules.
97
2.3 The perishable food items like fruits, vegetables, meat, fish, cheese, etc. have quick turn over
and which, once opened, can lead to quick spoilage, if not kept in refrigerated conditions. On
import of such items for direct use by the importers such as, hotels, etc., notwithstanding anything
contained in para 2.2 above, the consignments should not be subject to drawal of samples and
testing prior to clearance of the same. Such items should be cleared after conducting the checks
as mentioned in sub-para 2.1 above and relying on the certificates from the internationally known
testing labs or government labs about these products conforming the food safety and quality of
such products. However, if perishable items such as raw meat, fish etc. are not meant for direct
use by the importer, samples shall be taken and tested prior to clearance of the same as mentioned
in para 2.2 above.
2.4 As regards ICDs/CFSs/ports/airports/LCSs, where Port Health Officers are not available, the
Customs shall draw the samples and get these tested from the nearest Central Food Laboratory
or a laboratory authorised for such testing by the Directorate General of Health Services.
2.5 The Customs shall also develop a data base regarding importers and import sources and
products which are found to consistently fail the tests and give some feedback on the nature of the
shortcomings noted to the DGHS to serve as input for policy formulation.
3. In addition to testing of food items under the PFA Act, 1954, these items shall also be subject
to examination/testing to ensure compliance of the requirements of other Acts, regulations, and
orders such as Meat Food Products Order, 1973, Plants, Fruits and Seeds (Regulation of Import
into India) Order, 1989, the Livestock Importation Act etc. for the time being in force if these are
also covered by these Acts/orders, before these are allowed clearance into the country.
4.
The Board’s Circular No.36/2001-Cus., dated 15/6/2001 stands rescinded.
5. These instructions, issued in continuation of Member (Customs)’s D.O. letter No. R-2604/
M(Cus.& EP)/2001 dated 21/4/2001, may be brought to the notice of all concerned by way of
issuance of a suitable Public Notice/ Standing Order.
6. Difficulties, if any, in implementation of these instructions, may be brought to the notice of the
Board. Kindly acknowledge receipt of this Circular.
Note: Circular No. 58/2001 dt. 25.x.2001 started modified by Circular No. 3/2011-Cus dt. 6.1.2011.
98
(Annexure 9-b)
Circular No.3 / 2011-Customs
F. No.450/115/2009-Cus.IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
North Block, New Delhi-1.
6th January, 2011.
To
All
All
All
All
All
All
Chief Commissioners of Customs / Customs (Prev.).
Chief Commissioners of Customs & Central Excise.
Commissioners of Customs / Customs (Prev.).
Commissioners of Customs (Appeals).
Commissioners of Customs & Central Excise.
Commissioners of Customs & Central Excise (Appeals).
Subject: Import of edible / food products – regarding.
***
Sir / Madam,
Attention is invited to Board Circular No.58/2001–Cus dated 25.10.2001 which provides detailed
guidelines for examination and testing of food item prior to its testing and clearance by Customs
officers under the provisions of Prevention of Food Adulteration Act, 1954 (PFA Act, 1954).
2. Further, in terms of Para 8 of Chapter I A (General Notes Regarding Import Policy) of the ITC
(HS) Classification of Export and Import items, import of all such edible/food products including
tea, domestic sale and manufacture of which are governed by Prevention of Food Adulteration Act,
1954, shall be subject to all the conditions laid down in the aforesaid Act. Import of all these
products will have to comply with the quality and packaging requirements as laid down in the Act.
Compliance of these conditions is to be ensured before allowing customs clearance of the
consignment.
3. To consolidate the laws relating to food and to provide for a systematic and scientific
development of Food Processing Industries, the government has enacted The Food Safety and
Standards Act, 2006 (FSS Act, 2006). Under the Act, the Food Safety and Standards Authority of
India (FSSAI) has been established to lay down standards and regulate/monitor the manufacturing,
import, processing, distribution and sale of food. Section 97 of the FSS Act, 2006 provides that the
existing Acts and Orders relating to food items such as PFA Act, 1954; Food Products Order,
1955; Meat Food Products Order, 1973; Vegetable Oil Products (Control) Order, 1947; Edible Oils
Packaging (Regulation) Order, 1988; Solvent Extracted Oil, Deoiled Meal, and Edible Flour Control
(Order), 1967; Milk and Milk Products Order, 1992 etc shall be repealed from a date to be notified.
4. The FSSAI has taken over PHO functions at select ports such as Nava Sheva and Mumbai
with effect from 13.09.2010 with the stipulation that the existing rule and procedures will continue
to be followed without any change till FSSAI regulations are notified. Thus, FSSAI has replaced
PHO with its authorized officers at abovementioned ports in terms of section 47 (5) of the FSS Act,
2006.
5. Difficulties have been reported to Board by certain importers regarding delay in testing of
samples and clearance of goods consequent upon implementation of FSS Act, 2006 at select
ports.
99
6. It is also noted that vide Policy Circular 25(RE-2003)/2002-007 dated 28.01.2004 and 37(RE2003)/2002-2007 dated 14.06.2004, the DGFT has modified the procedure for sampling of imported
edible/Food Products.
7. Accordingly, the procedure of clearance of food articles has been revisited by the Board, and
following modified procedure has been prescribed:
(a) All consignments of high risk food items, as listed in DGFT Policy Circular No. 37(RE2003)/2002-2007 dated 14.06.2004 (as may be modified from time to time), shall be
referred to Authorised Representative of FSSAI or PHOs, as the case may be, for testing
and clearance shall be allowed only after receipt of the test report as per the
instructions contained in the Customs Circular No. 58/2001–Cus, dated 25.10.2001.
(b) All consignments of perishable items like fruits, vegetables, meat, fish, cheese, etc., will
continue to be handled in terms of the guidelines contained in Para 2.3 of the Board’s
Circular No.58/2001-Customs dated 25.10.2001.
(c) In respect of food items not covered under (a) and (b) above, the following procedure
would be adopted in addition to the general checks prescribed under Para 2.1 of the
Circular No. 58/2001–Cus, dated 25.10.2001:
(i)
Samples would be drawn from the first five consecutive consignments of each food
item, imported by a particular importer and referred to Authorised Representative of
FSSAI or PHOs, as the case may be, for testing to ascertain the quality and health
safety standards of the consignments.
(ii)
In the event of the samples conforming to the prescribed standards, the Customs would
switch to a system of checking 5% - 20% of the consignments of these food items on a
random basis, for checking conformity to the prescribed standards. The selection of
food items for random checking and testing would be done by the Customs taking into
consideration factors like the nature of the food products, its source of origin as well as
track record of the importers as well as information received from FSSAI from time to
time.
(iii) In case, a sample drawn from a food item in a particular consignment fails to meet the
prescribed standards, the Customs would place the import of the said consignment on
alert, discontinue random checking for import of such food items and revert to the
procedure of compulsory checking. The system of random sampling for import of such
food items would be restored only if the test results of the samples drawn from the 5
consecutive consignments re-establish that the food items are in conformity with the
prescribed standards.
8. Authorised Officers of FSSAI will ascertain that for the imported pre-packaged good items,
the language and other major requirements of the label like mention of best before date, nutrition
information etc. should comply the labeling provisions under PFA Rules, failing which sample may
not be drawn from such consignment for testing.
9. It is also clarified that Risk Management System (RMS) module for import consignments of
edible / food items, presently does not provide for random sampling as it is one of its CCR
(Compulsory Customs Requirements) targets. Accordingly, Risk Management System (RMS)
shall take necessary steps to modify the RMS module to conform to the new requirements. Till
such time, this modification is carried out, Customs shall take appropriate decision to waive the
CCR requirements in respect of food items not covered under Para 7 (a) and 7 (b) above and to
the extent mentioned under Para 7 (c) above. In terms of Circular No.43/2005-Cus dated 24th
November, 2005 such a course of action shall, however, be taken only with the prior approval of the
jurisdictional Commissioner of Customs or an officer authorized by him for this purpose, who shall
100
not be below the rank of Addl./Joint Commissioner of Customs, and after recording the reasons for
the same. A brief remark on the reasons and the particulars of Commissioner/ADC/JC authorization
should be made by the officer examining the goods in the departmental comments in the EDI
system.
10. Further, as per Para 13 of Chapter I A (General Notes Regarding Import Policy) of the ITC
(HS) Classification of Export and Import items, import of all such edible/ food products, domestic
sale and manufacture which are governed by PFA Act, 1954 shall also be subject to the condition
that at the time of importation, the products are having a valid shelf life of not less than 60% of the
original shelf life. Shelf life of the product is to be calculated based on the declaration given on the
label of the product, regarding its date of manufacture and the due date for expiry. Therefore,
Customs shall ensure that this condition is complied with before allowing clearance of such
consignments.
11. It is clarified that at certain ports / airports / ICDs / CFSs where Port Health Officers (PHO)
under PFA, 1954 or Authorised officers under FSS Act, 2006 are not available, the samples will be
drawn by Customs and the same may be got tested from the nearest Central Food Laboratory or
a laboratory authorized for such testing by DGHS or FSSAI.
12. RMD shall develop an application software that incorporates the stipulation of testing of imported
foodstuff and alerts the Customs officer to the effect the number of past shipments already tested
and found fit warrants future shipments need not ordinarily be tested. This should apply regardless
of port of import so long as the importer, supplier and item of import do not change. In other
words, if such a shipment is imported say, at Mumbai and the previous 5 shipments imported at,
say, Delhi have passed the test, then the next shipment at Mumbai need not be tested. A suitable
data base would also be prepared at each Custom House to indicate the compliance history of
importers.
13. The Board Circular 58/2001–Cus dated 25.10.2001 stands modified to above extent.
14. These instructions may be brought to the notice of all concerned by way of issuance of
suitable Public Notice / Standing Order.
15. Difficulties, if any, in implementation of these instructions may be brought to the notice of the
Board
Yours faithfully,
( R. P. Singh )
Director (Customs)
101
Annexure-10(i)
Notification No. 207/89-Cus., dated 17-7-1989
Exemption to foodstuffs and provisions, imported by foreigners.
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 Ministry of
Finance (Department of Revenue and Insurance) No. 135/66-Customs, dated 20th June, 1966,
the Central Government, being satisfied that it is necessary in the public interest so to do, hereby
exempts foodstuffs and provisions (excluding fruit products, alcohol and tobacco), when imported
into India by a person residing in India, not being a citizen of India, from the whole of the duty of
customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975
(51 of 1975), and from the whole of the additional duty of customs leviable thereon under section 3
of the said Customs Tariff Act:
Provided that (i)
the aggregate c.i.f. value of such foodstuffs and provisions so imported by any such
person in a year shall not exceed Rs. 50,000; and
(ii)
the importer secures the foreign currency required for importing such foodstuffs and
provisions from the funds available to him in the foreign country.
Notification No. 207/89-Cus., dated 17-7-1989 as amended by notification No. 45/92-Cus.,
dated 1-3-1992
Annexure-10(ii)
19th July, 2005
Notification No.70/2005 - Customs
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby makes the following further amendment in the notification of the Government of India
in the Ministry of Finance (Department of Revenue), No. 207/89-Customs, dated the 17th July,
1989, namely:In the said notification, for the words and figures “Rs. 50,000”, the words and figures “Rs.
1,00,000” shall be substituted.
F.No. 450/31/2005-Cus-IV
Ajay
Under Secretary to the Government of India
102
Annexure11
The PFS Order, 1989:
Import of plants and plant materials into the country is regulated under the Destructive Insects
& Pests (DIP) Act, 1914 and the PFS Order, 1989. The PFS Order, 1989 was amended in 1992 to
exempt the requirement of Import Permit in respect of plants, fruits, seeds and any other material
of plant origin imported for consumption. Further, such material imported as accompanied baggage
and through international postal channels was also allowed to be imported without a Phytosanitary
Certificate or an Import Permit. The Ministry of Agriculture (Department of Agriculture & Co-operation)
has since issued a notification on 1.5.2001 amending the provisions of the PFS Order introduced
in 1992. As per the amendment made, with effect from 1.6.2001 no consignment shall be imported
even for consumption unless it is accompanied by an Import Permit (and also, of course by an
Official Phytosanitary Certificate) issued by the authorised officer. However, cut flowers, garlands,
bouquets, fruits and vegetables weighing less than 2 Kgs. imported for personal consumption is
allowed without a Phytosanitary Certificate or an Import Permit. Likewise, the relaxation of Import
Permit for import of (a) Mushroom Spawn Culture by 100% Export Oriented Units; (b) tissue culture
materials of any plant origin and flower seeds granted earlier will continue.
Reference:
Circular No.36/2001-Cus., dated 15.6.2001 (issued from F.No.450/21/98-Cus.IV); Circular
No.43/2001-Cus., dated 6.8.2001 (issued from F.No.450/44/2001-Cus.IV); CBEC letter F.No.450/
80/2000-Cus.IV dated 24.7.2000; DGFT Notification No.44(RE-2000)/1997-2002, dated 24.11.200;
DGFT Policy Circular No.38(RE-2000)/1997-2002, dated 21.1.2001; DGFT Notification No.3(RE2001)/1997-2002, dated 31.3.2001; Department of Animal Husbandry and Dairying Notification
dated 7.7.2001 (issued from F.No.109-6/2001-Trade); Department of Animal Husbandry and
Dairying Notification dated 30.5.2001 [issued from F.No.50-4/84-LDT (AQ)]; Department of
Agriculture & Co-operation letter F.No.82-2/2001-P&D, dated 11/15.5.2001; Department of Agriculture
& Co-operation Notification No.[GSR378(E)] dated 1.5.2001 and Press Note communicated vide
letter F.No.8-26/2000-PP-I dated 9.5.2001.
Annexure-12
F.No.450/11/2006-Cus.IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
January 25th, 2006
Subject: Import of consignments of plants & plant products – reg.
I am directed to invite your attention to para 18 of the Chapter 9 of CBEC’s Customs manual
wherein it is mentioned that ‘the Customs will have to ensure that plant/plant material (primary
agricultural products) are granted clearance for home consumption only after necessary permission
is granted by the concerned Plant and Quarantine Officer’.
2. Ministry of Agriculture (Department of Agriculture & Cooperation) has informed that the import
of plants and plant products into the country is regulated under the provisions of the Plant Quarantine
(Regulation of Import into India) Order, 2003 in order to prevent the ingress of exotic pests &
diseases that may adversely affect the agriculture. Therefore, the import consignments of plants
& plant products have to be inspected by the Plant Quarantine Authorities to verify absence of
infestation of pests & diseases before being cleared for release by Customs. However, there have
103
been instances where Customs officials have released the import consignments of garlic and
other agricultural commodities imported from China and other countries without reference to the
Plant Quarantine Stations. Such action could lead to the inadvertent introduction of dangerous
quarantine pests into the country and also result in loss of revenue that would otherwise have been
realized through Plant Quarantine inspections and treatment of the imported consignments. The
matter has gained importance since Department of Agriculture & Cooperation has stopped issuing
any more permits for the import of garlic from China with immediate effect due to repeated
interceptions of the Embellisia allii, a fungus that could adversely affect the indigenous production
of garlic and garlic group of crops.
3. In view of above it is re-iterated that release of any import consignments of plants & plant
products, including garlic, should not be done without prior clearance of the Plant Quarantine
authorities.
104
Annexure-13
Plant/Plant Materials for Sowing/Planting/Propagation/Consumption:
The above products are allowed to be imported only on the basis of an Import Permit issued
by the Department of Agriculture & Co-operation. The Import Permit is issued after conducting a
detailed import risk analysis. This Permit is generally issued for a period of six months and can be
extended by the concerned authorities for a further period of six months. The Department of
Agriculture & Co-operation has issued detailed guidelines for inspection and clearance of plant/
plant materials. The basic features of the guidelines are given below:(a) Registration of application: The importer or his authorised Custom House Agent is required to
file an application at the Plant Quarantine Station in respect of each consignment immediately
upon arrival at the port. In case of perishable consignments, such application can be filed in
advance to enable the Plant Quarantine authorities to organize inspection/testing on priority.
Alongwith application for registration, copies of documents namely, import permit, phytosanitary certificate issued at the country of origin, copy of bill of entry, invoice, packing list and
fumigation certificate, etc. are required to be submitted. After scrutinising the application, the
Plant Quarantine Officer registers the application. The assessed inspection fee is required to
be paid by the importer or his authorised agent.
In the case of import of plant and plant materials through passenger baggage and post parcels,
no such application is required to be filed.
(b) Sampling/inspection/fumigation of consignments: The importer or his authorised Custom
House Agent is required to arrange for inspection/sampling of the consignment. In the event
of live insect infestation having been noticed, the importer or his authorised Custom House
Agent shall arrange for fumigation of consignment by an approved pest control operator at his
own cost under the supervision of the Plant Quarantine officer.
(c) Release/detention of consignments: A release order is issued to Customs, if a consignment
on inspection is found to be free from pests. However, in case a consignment is found to be
infested with live pests, the same is permitted clearance only after fumigation and re-inspection.
The detention order is issued, if the consignment is imported in contravention of the PQ
Regulations, for arranging deportation failing which the same shall be destroyed at the cost of
importer under the supervision of the Plant Quarantine Officer, in presence of Customs Officers
after giving due notice in advance i.e. for perishable plant material 24-48 hours and 7 days in
other type of plant material.
The Customs will have to ensure that plant/plant material (primary agricultural products) are
granted clearance for home consumption only after necessary permission is granted by the
concerned Plant and Quarantine Officer.
Reference:
Circular No.36/2001-Cus., dated 15.6.2001 (issued from F.No.450/21/98-Cus.IV); Circular
No.43/2001-Cus., dated 6.8.2001 (issued from F.No.450/44/2001-Cus.IV); CBEC letter F.No.450/
80/2000-Cus.IV dated 24.7.2000; DGFT Notification No.44(RE-2000)/1997-2002, dated 24.11.200;
DGFT Policy Circular No.38(RE-2000)/1997-2002, dated 21.1.2001; DGFT Notification No.3(RE2001)/1997-2002, dated 31.3.2001; Department of Animal Husbandry and Dairying Notification
dated 7.7.2001 (issued from F.No.109-6/2001-Trade); Department of Animal Husbandry and
Dairying Notification dated 30.5.2001 [issued from F.No.50-4/84-LDT (AQ)]; Department of
Agriculture & Co-operation letter F.No.82-2/2001-P&D, dated 11/15.5.2001; Department of Agriculture
& Co-operation Notification No.[GSR378(E)] dated 1.5.2001 and Press Note communicated vide
letter F.No.8-26/2000-PP-I dated 9.5.2001.
105
Annexure-14
F.No. 450/100/2006-Cus.IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
***
October 12th, 2006.
Subject: Testing of Supari (betelnut split or whole)- regardingThe undersigned is directed to refer to above subject and to say that Directorate General of
Health Services (DGHS) while replying in a specific case have opined that Supari (betel nut split or
whole) is an item of food.
2. DGHS while examining the issue of exemption from testing of Products imported from Nepal
(split betal nuts) by Central Food Laboratory, Kolkata, have mentioned that the provisions of Section
2(v) of the PFA Act, 1954 reads as under,“2(v) “Food” means all article used as food or drink for human consumption other than drugs
and water and includes:(a) any article which ordinarily enters into, or is used in the composition or preparation of,
human foods,
(b) any flavoring matter or condiments, and
(c) any other article which the Central Government may having regard to its use, nature,
substance or quality, declare by notification in the official Gazette, as food for the purposes
of this Act.”
3. The Hon’ble Supreme Court in a case Pyarali K. Tejani vs. Mahadeo Ramchandra Dange and
others, (Criminal Appeal no. 20 of 1973) which is a four judges bench judgment had considered
the matter whether supari is an item of “food” within the meaning of section 2(v) of the PFA Act,
1954. The Hon’ble Supreme Court in this case had held that supari (betelnut) is an item of food
within the meaning of section 2(v) of the Act, ibid.
4. In view of above, it is informed that Supari (betelnut split or whole) is an item of food and
provisions of PFA Act, 1954 and provision relating to clearance of food items would be applicable
while allowing clearance of the same from Customs locations. You may also issue suitable
instructions to field formations under your jurisdiction.
106
Annexure 15
Circular No. 94/2002
23rd December, 2002
F.No.495/27/2001-Cus.VI
Government of India
Department of Revenue
Ministry of Finance & Company affairs
(Central Board of Excise & Customs)
Subject: Import of pets under Baggage – Regarding.
I am directed to refer to Board’s instructions issued vide Circular No.9/2002 dated 30th January,
2002 on the above mentioned subject, wherein it was reiterated that bonafide pet animals brought
by passengers may be allowed to be brought into the country only against an import sanitary
permit issued by the Department of Animal Husbandry & Dairying or against an import licence
issued by the DGFT.
2. In this connection, several references have been received from the passengers, as also the
field formations, pointing out the difficulties being faced in implementing the above instructions.
The matter has since been re-examined in consultation with the Department of Animal Husbandry
& Dairying and Ministry of Commerce and Industry, and it has been decided that the import of pets
(dog and cat only) up to two numbers per passenger may be allowed at one time subject to the
production of the required health certificate from the country of origin and examination of the said
pets by the concerned Quarantine Officer. In such cases, the passengers may not be asked to
produce the import licences or import sanitary permits. A copy ofstandard health protocol to be
followed by the passengers while bringing pet animals (dogs and cats) with them is enclosed at
Annexure I and II.
3. Necessary instructions may please be issued to all concerned for compliance. Difficulties
faced, if any, in implementation of the above instructions may be brought to the notice of the Board.
Kindly acknowledge the receipt.
Annexure-I
ANIMAL HEALTH CERTIFICATE FOR IMPORT OF DOG INTO INDIA
I.
OWNER
Name and address ..................................................................................................................
II.
DESCRIPTION
Species of animal: ...................................................................................................................
Age or date of birth: .................................................................................................................
Sex: ..........................................................................................................................................
Breed: ......................................................................................................................................
Colour: .....................................................................................................................................
Coat type & marking/Distinguish mark: ..................................................................................
Identification number : .............................................................................................................
107
III.
ADDITIONAL INFORMATION
Country of origin : ....................................................................................................................
Countries visited over the past years as declared by the owner (give dates) ........................
IV.
DESTINATION OF ANIMALS
Country of destination: .............................................................................................................
Name and address of consignee ............................................................................................
.................................................................................................................................................
Nature and identification of means of transport ......................................................................
.................................................................................................................................................
V.
SANITARY INFORMATION
The undersigned Official Veterinarian certifies that the animal/s described above and
examined on this day:
a)
shows no clinical sign of diseases including rabies, canine distemper, parvo virus
infection, leptospirosis etc..
b)
has been vaccinated for rabies (in case it is more than three months of age) within the
time limit recommended by the manufacturer of vaccine licensed and approved by the
exporting country (name of the vaccine, batch number and the date of vaccination must
be shown on the veterinary certificate)
Official stamp: .........................................................................................................................
Issued at .................................................................. on ..........................................................
Name and address of Veterinarian ..........................................................................................
.................................................................................................................................................
Signature: .........................................................................................................................................
Annexure-II
ANIMAL HEALTH CERTIFICATE FOR IMPORT OF CAT INTO INDIA
Name and add
I.
OWNER ..................................................................................................................................
Name and address: .........................................................................................................................
II.
DESCRIPTION
Species of animal: ...................................................................................................................
Age or date of birth: .................................................................................................................
Sex: ..........................................................................................................................................
Breed: ......................................................................................................................................
108
Colour: .....................................................................................................................................
Coat type & marking/Distinguish mark: ..................................................................................
Identification number ...............................................................................................................
III.
ADDITIONAL INFORMATION
Country of origin : ............................................................................................................................
Countries visited over the past years as declared by the owner (give dates) ................................
IV.
DESTINATION OF ANIMALS
Country of destination: .............................................................................................................
Name and address of consignee ............................................................................................
.................................................................................................................................................
Nature and identification of means of transport : ....................................................................
.................................................................................................................................................
.................................................................................................................................................
V.
SANITARY INFORMATION
The undersigned Official Veterinarian certifies that the animal/s described above and
examined on this day:
a.
shows no clinical sign of diseases including rabies, feline enteritis, feline pan leukopenia,
leptospirosis etc..
b.
has been vaccinated for rabies (in case it is more than three months of age) within the
time limit recommended by the manufacturer of vaccine licensed and approved by the
exporting country (name of the vaccine, batch number and the date of vaccination must
be shown on the veterinary certificate)
Official stamp:
Issued at ............................................................................................ on.................................
Name and address of Veterinarian ..........................................................................................
.................................................................................................................................................
Signature: .................................................................................................................................
109
Annexure-16
(PUBLISHED IN PART II, SECTION 3, SUB SECTION (ii)
OF THE GAZETTE OF INDIA EXTRAORDINARY dated 9.7.2001)
Government of India
Ministry of Agriculture
Department of Animal Husbandry and Dairying
New Delhi, the 7th July, 2001
NOTIFICATION
S.O. 655 (E) - In exercise of the powers conferred by Section 3A of the Live-stock Importation
Act, 1898 (9 of 1898), the Central Government hereby restricts, with effect from the date of
publication of this notification in the Official Gazette, the import into India of all live-stock products,
including meat and meat products of all kinds including fresh, chilled and frozen meat , tissue or organs
of poultry, pig, sheep, goat;
egg and egg powder;
milk and milk products;
bovine, ovine and caprine embryos, ova or semen; and
pet food products of animal origin.
2. The import of these products shall be allowed only against a sanitary import permit to be
issued by this Department as per the procedure laid down in the Schedule annexed to this notification
Sd/(Chitra Gouri Lal)
Joint Secretary to the Govt of India
[ File No. 109 – 6 / 2001-Trade ]
SCHEDULE
Procedure for import of livestock products into India
All live-stock products shall be imported into India subject to the following conditions, namely:No live-stock product shall be imported into India without a valid sanitary import permit issued
under clause (3).
All applications for a permit to import consignments by land, air or sea shall be made in either
Form A or Form B, whichever is relevant, and sent in triplicate to the Joint Secretary, Trade Division,
Department of Animal Husbandry & Dairying, Ministry of Agriculture, Government of India.
(i)
The sanitary import permit shall be issued for import of livestock products if, after a detailed
import risk analysis, the concerned authorities are satisfied that the import of the consignment
will not adversely affect the health of the animal and human populations of this country.
110
(ii)
The import risk analysis shall be conducted by the concerned officers of the Department on
the basis of internationally recognised scientific principles of risk analysis and the analysis
shall be conducted with reference to the specific product and the disease situation prevailing
in the exporting country vis-a-vis the disease situation in India.
(iii) The issue of permits shall be refused if the results of the import risk analysis show that there
is a risk of the specific product bringing in one or more specific diseases, which are not
prevalent in the country and which could adversely affect the health and safety of the human
and animal populations of this country.
(iv) The import permit shall lay down the specific conditions that will have to be fulfilled in respect
of the consignment, including pre-shipment certifications and quarantine checks.
(v)
The permit shall also specify the post-import requirements with regard to quarantine inspections,
sampling and testing.
(vi) The import permit issued under this clause shall be valid for a period of six months, but can
be extended by the concerned authority for a further period of six months, on request from the
importer and for reasons to be recorded in writing.
All livestock products shall be imported into India through the seaports or airports located at
Delhi, Mumbai, Kolkata and Chennai, where the Animal Quarantine and Certification Services
Stations are located.
(i)
On arrival at the entry point, the livestock product shall be inspected by the Officer-in-charge
of the Animal Quarantine & Certification Services Station or any other veterinary officer duly
authorised by the Department Of Animal Husbandry and Dairying, wherever required, in
accordance with the specific conditions laid down in the sanitary import permit and with
general guidelines issued by the Department of Animal Husbandry and Dairying from time to
time.
(ii)
After inspection and testing, where-ever required, the concerned quarantine or veterinary
authority shall accord quarantine clearance for the entry of the livestock product into India or,
if required in public interest, order its destruction or its return to the country of origin.
(iii) Where ever disinfection or any other treatment is considered necessary in respect of any
livestock product, the importer shall, on his own or at his cost through an agency approved by
the Department of Animal Husbandry and Dairying, arrange for disinfection or other treatment
of the consignment, under the supervision of a duly authorised quarantine or veterinary officer.
It shall be the responsibility of the importer - to bring the livestock product to the concerned
Animal Quarantine & Certification Services Station, or to the place of inspection, disinfection or
treatment or testing as directed by the Quarantine or veterinary officer duly authorized on this
behalf; to open, repack and load into or unload from the Animal Quarantine Station and seal the
consignment; and to remove them after inspection and treatment or testing, according to the
directions of the Quarantine or veterinary officer duly authorized by the Department.
(7) The Central Government may, in public interest, relax any of the conditions specified under
this Schedule relating to the permit in relation to the import of any live-stock product.
111
FORM - A
APPLICATION FOR PERMIT TO IMPORT LIVE-STOCK PRODUCTS FOR PERSONAL
CONSUMPTION
To
The Joint Secretary
Trade Division,
Department of Animal Husbandry and Dairying,
Ministry of Agriculture,
Government of India
Krishi Bhawan,
New Delhi – 110001
The undersigned hereby applies for a permit authorizing the import of live-stock products as
per details given below —
(Please write/type in block letters)
Name and exact description of live-stock products to be imported :
Description of the consignment and quantity :
Name and address of the consignor :
Name and address of the importer :
Country and locality in which produced :
Country from which imported into India:
Foreign port of shipment:
Approximate date of arrival of the consignment in India :
Name of (airport/seaport/land customs station*) point of entry in India :
Declaration
I declare that the information furnished is correct to the best of my knowledge and belief.
I undertake to produce all documents and certificates, if any, as specified in the sanitary import
permit applied for herein.
Signature of the importer or his authorized agent.
Name:
Postal address :
Place:
Date:
* strike out whichever is not applicable.
112
FORM – B
APPLICATION FOR PERMIT TO IMPORT LIVE-STOCK PRODUCTS FOR TRADING /
MARKETING
To
The Joint Secretary
Trade Division,
Department of Animal Husbandry and Dairying,
Ministry of Agriculture,
Government of India
Krishi Bhawan,
New Delhi – 110001
The undersigned hereby applies for a permit authorizing the import of live-stock products, as
per details given below: Name and address of Importers
2.
S.No
1
Exact description of livestock
products with Indian Trade
Classification (Harmonised
System) – ITC (HS) code
Details of livestock
from whom it is
produced
2
3
Quantity
Number of
packages
Total weight
/ volume
4 (a)
4 (b)
3.
Catalogue of livestock products producer establishing identity of the livestock products /
material to be imported:
4.
Name and address of the producer:
5.
Name and address of consignor:
6.
Country and locality in which livestock products produced:
7.
Country from which imported into India:
8.
Foreign port of shipment
Name of airport/seaport/land customs station (entry-point):
Declaration
I declare that the information furnished is correct to the best of my knowledge and belief.
I undertake to produce any official document or certificate as may be specified in the sanitary
import permit.
Signature of the importer or his authorized agent
Name:
Postal address :
Place:
Date:
113
Annexure-17
Circular No. 13/ 2007-Customs
F.No.450/122/2005-CUS-IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
***
New Delhi, dated the 02nd March, 2007
Subject:-Clearance of livestock and livestock products- regarding.***
The undersigned is directed to inform that the import of certain livestock and livestock products
have been prohibited by the Ministry of Agriculture, Department of Animal Husbandry, Dairying &
Fisheries in view of outbreak of Avian Influenza disease in number of countries. Department of
Animal Husbandry, Dairying & Fisheries have issued a notification S.O. (102)(E) dated 02.02.2007
prohibiting import of three items from all countries and import of nine items from countries reporting
Avian Influenza. A copy of the notification is enclosed. List of countries affected with Avian Influenza
is not mentioned in the notification. During a meeting with Department of Animal Husbandry, Dairying
& Fisheries, it was informed that the list of countries affected with Avian Influenza is continuously
changing as new countries are reporting Avian Influenza and certain other countries are declaring
themselves free from Avian Influenza. It was desired that Customs field formations need to be
alerted in this regard.
2. The issue of possibility of import of livestock & livestock products by Diplomats without requisite
quarantine check was also discussed. Ministry of External Affairs informed that they only issue
Customs duty exemption certificates for duty free import of goods by Diplomats.
3. The Department of Animal Husbandry, Dairying & Fisheries also expressed concerns about
the necessary referral to Quarantine authorities before permitting the Customs clearance of livestock/
livestock products. It was informed that no such referral has been received by them in case of
import of Diplomatic cargo containing livestock and livestock products.
4. The matter has been examined by the Board. It is seen that Board has issued Circular No.43/
2001-Cus, dated 6.8.2001 and Circular No.48/2005-Cus, dated 28.11.2005 to regulate the import
of livestock and livestock products. Board has further issued instructions vide F.No.450/132/2004Cus.IV, dated 4.01.2005 and F.No.450/122/2005-CUS-IV dated 13.10.2005 re-iterating the provisions
for import of these products and to ensure that clearance of livestock and livestock products is
done after proper quarantine check and necessary no objection certificate by animal quarantine
officer.
5. In view of recent concerns over spreading of Avian Influenza, field formations should take
abundant precaution while clearing livestock and livestock products. In view of the concerns of the
Department of Animal Husbandry, Dairying & Fisheries in respect of changing status of various
countries affected with Avian Influenza, it would be advisable that all consignments of livestock
and livestock products are referred to Quarantine Authorities before Customs clearance of goods,
regardless of any Sanitary Import Permits (SIPs) that may have been issued and clearance should
be allowed only after no objection is received from Quarantine authorities. If Quarantine officers
are of the view that the consignment needs to be destroyed or re-exported in view of Avian Influenza
or any other disease threat, the action taken may subsequently be informed to Quarantine officer.
114
Further, in view of spreading of Avian Influenza, the consignment of products as mentioned in
existing notification of Department of Animal Husbandry, Dairying & Fisheries may remain uncleared
and Custodian may like to initiate the process of auction for such consignments. In view of above,
it may be ensured that in such cases of auction of livestock and livestock products mentioned in
existing notification of Department of Animal Husbandry, Dairying & Fisheries, NOC should be
given to Custodian based on ‘no objection’ obtained from quarantine officers.
6. As per existing provisions in respect of clearance of Diplomatic baggage and cargo, it is once
again reiterated that the import of goods which is prohibited by the law or regulated by the quarantine
provisions, inspection can be conducted only in the presence of the diplomatic agent or of his
authorized representative. However any such inspection should be undertaken only after prior
consultation or authorization of the protocol division of Ministry of External Affairs (MEA). A
representative of MEA should invariably be present at the time of inspection. Further, Inspection
should be based on prior intelligence and with the approval of the Commissioner of Customs.
In cases where declaration itself contains presence of livestock and livestock products in the
cargo, the standard procedure of referral to Quarantine authorities need to be adhered to. MEA has
informed that such requirement of quarantine authorities in respect of Diplomatic cargo need to be
informed to all Diplomatic Missions before the procedure is put in place. Accordingly, it is decided
that such referral by Customs should commence only after MEA has briefed all Diplomatic Missions
about these requirements. In view of this, Customs should follow procedure of referral to quarantine
authorities only after further direction of the Board. Meanwhile, clearance of such items by Diplomatic
Missions may continue unhindered. Where any difficulty is being faced in clearance of Diplomatic
cargo the same should be immediately referred to the Board.
7. The above instructions may be brought to the notice of all concerned immediately through
appropriate Public Notice.
(Anupam Prakash)
Under Secretary to the Government of India
Phone No.23094182
115
Annexure-18
F.No.528/1/2008-Cus(TU)
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
159A, North Block, New Delhi-1.
24th May, 2008.
Subject: Import of Sex determination/ gender testing kits – violation of PC & PNDT Act,
1994 - reg.
Sir / Madam,
Kindly refer to the Board’s letter of even number dated 18th January, 2008 on the above
subject, wherein the details about a new development of sex determination/ gender testing kits
being freely available in upmarkets of certain cities and towns which has the potential to upset the
efforts made by Government to contain declining girl child sex ratio, as given by Ministry of Health
& Family Welfare was brought to your attention.
2. In this regard, the Drug Controller General (I), Directorate General of Health Services had vide
F.No. 6-2/Diag/1/08-DC dated 15.5.2008 had issued instructions to all Port Health/ Drug Controller
offices (copy enclosed) informing that gender testing/ sex determination kits are being imported
into the country for the purpose of determining the sex of the foetus through DNA analysis at home;
the use of sex-selection techniques before or after conception as well as misuse of pre-natal
diagnostic techniques for sex selective abortions are interalia prohibited under Pre-Conception
and Pre-Natal Diagnostic Techniques Act, 1994. In view of this, the Drug Controller General had
instructed that import of gender testing/ sex determination kits may not be permitted in the country
and the customs authorities be advised accordingly.
3. In view of the above, Board directs that you may instruct all concerned officers of Customs
under your jurisdiction to refer the imported consignments of gender testing/ sex determination
kits to the Port Health Officer / Drug Controller, in order to obtain their clearance, before giving the
Customs clearance for the imported goods/ consignment. The seriousness of the issue and the
pernicious consequence of declining girl child sex ratio by use of such kits for illegal purposes of
sex/gender determination may be brought to the knowledge of the field officers so that such imports
are properly checked as above.
Yours faithfully,
(M.M. Parthiban)
Director (Customs)
Tel. 2309 3908
Fax: 2309 2173
116
Annexure 18B
1988 (33) E.L.T. 634 (Tribunal)
BEFORE THE CEGAT, WEST REGIONAL BENCH, BOMBAY
Shri K. Gopal Hegde, Member (J)
MOHAMED MAROOF, BOMBAY
Versus
ADDITIONAL COLLECTOR OF CUSTOMS, BOMBAY
Order No. 1016/86-WRB, dated 5-9-1986
Customs - Bona fide baggage - Meaning of - Articles sent from abroad as gift through
a passenger liable to be confiscation as not deemed to be the bona fide baggage of
passenger - Sections 77, 79 & 80 of Customs Act, 1962 - Clause (g) of Imports (Control)
Order. –
In view of the baggage items that were not brought by the person to whom they belonged or
to whom they were gifted but by another passenger, practically it tantamounts to be an import by
the passenger coming to India from abroad. Hence the goods cannot be said to be gifted to the
person in India by his son-in-law and permitted during the relevant period. The passenger who
brought the goods was not the owner of the baggage, therefore, his declaration cannot be considered
as a declaration by the owner of the baggage and as such the provision of Section 77 of Customs
Act are not strictly attracted. Section 79 of the Customs Act speaks of bona fide baggage. The
baggage brought by a passenger is not his bona fide baggage. Section 80 of the Customs Act had
no relevance because the passenger who brought the baggage cannot be treated as owner of
baggage and the passenger did not make a request to detain their article for re-export. Hence
confiscation of such article is valid. [1976 Cr. L.J.932 (Mad.) inapplicable]. [paras 5 & 6]
REPRESENTED BY :
Shri Tushar Shah, Advocate, for the Appellant.
Shri S. Senthivel, for the Respondent
Order per : K. Gopal Hegde, Member (J)]. –
1.
This appeal arises out of and is directed against the Order Bearing No. S/14-4-115/82-83PB
dated 30.11.1982 passed by the Additional Collector of Customs (Preventive), Bombay.
2.
The subject matter of challenge in this appeal is the absolute confiscation of two TV sets, one
VCR, 10 Video cassettes, two Video Rack, 2 cartons Acropal, 1 T.V. fal, 1 Gas stove, 2
Pampers, 3 Gripe water bottles and 2 takes Bosky textiles.
3.
Shri Shah appearing for the appellant contended that the above items were sent by the
appellant’s son-in-law through some Haj passengers as gift items to the appellants. It was
also urged by Shri Shah that during the relevant period Government of India had allowed the
relatives abroad to send T.V. sets as gift and therefore no licence was required for importing
the T.V. sets. Shri Shah further contended that other items were not prohibited goods and
therefore the confiscation was bad. The further contention of Shri Shah was that the passenger
had made true declarations and therefore the Additional Collector committed an error in ordering
confiscation. Shri Shah relied upon the provisions of Sections 77, 79 and 80 of the Customs
Act. Incidentally Shri Shah submitted that when the goods are sent through passengers it is
not necessary to state in the chit that they are being gifted. It has to be presumed. Shri Shah
finally relied upon the decision of the Madras High Court reported in 1976 CR. L.J. 932 in
support of his contention that the passenger commits no offence if he makes true declaration
of what he had brought irrespective of the fact whether the goods could be passed on payment
of duty or not.
117
4.
Shri Senthivel, SDR, appearing for the Collector supported the order of the Collector for the
reasons set out in the order and also on the ground that under the Baggage Rules, a passenger
cannot bring goods worth more than Rs. 1250/- without licence. In that connection, Shri
Senthivel also placed reliance on sub-clause (g) of Clause 11 of Imports (Control) Order.
5.
I have carefully considered the submissions made on both the sides. Admittedly, the baggage
items were not brought by the person to whom it belonged or to whom it was gifted. They
were brought by another passenger to whom the baggage items did not belong. Practically it
becomes an import by a passenger who had come to India from abroad. The contention of
Shri Shah that the goods were gifted to the appellant by his son-in-law and that the goods
were permitted during the relevant period cannot be accepted. The passenger who had brought
the items had also produced a letter addressed to the appellant by his son-in-law. In this letter
there is no indication if at the items were sent as gifts. His son-in-law had even informed the
appellant that if he needs any money he would secure the money from one Shri Chasmuddin.
The appellant was also questioned. The appellant stated that he had received a letter from his
son-in-law in which he had written that he was sending one T.V. set along .with a haj passenger
by name Hakim Shah. The appellant produced that letter two days thereafter. The Additional
Collector did not accept the genuineness of that letter. He has observed that in the chit there
was no mention that he was sending T.V. sets as gifts. Further, it would be difficult to accept
that a person who sends 12 packages would state only two packages are gifts. Above apart
he found that the letter produced do not tally with the earlier chit. He, therefore, did not accept
the appellant’s contention that two T.V. sets were sent as gifts. The appellant did not choose
to produce the letter or copy thereof. In his earlier statement he had stated that he had received
a letter from his son-in-law stating that one T.V. set would be sent. The letter produced disclosed
that 2 T.V. sets were sent. Having regard to this material discrepancy the Additional Collector
was justified in holding that the letter produced during the personal hearing was not genuine.
6.
Coming to the legal contention, Section 77 requires the owner of a baggage to declare the
contents of the package to the proper officer. Section 79 provides for exemption from payment
of duty in respect of bona fide baggage. Admittedly, the passenger who brought the baggage
is not the owner of the baggage. Therefore, any declaration which he had made cannot be
considered as a declaration by the owner of the baggage and as such the provisions of
Section 77 are not strictly attracted. Section 79 speaks of bona fide baggage. Admittedly the
baggage brought by a passenger is not his bona fide baggage. They are sent by a person
who was staying abroad. Therefore, it cannot even be considered as baggage of the passenger.
The other provision relied upon by Shri Shah is Section 80 which has no relevance. Firstly
because the passenger who brought the baggage was not the owner of the baggage, secondly
because it cannot be considered as baggage of the passenger and thirdly because the
passenger did not make a request to detain these articles for the purpose of being returned to
him for re-export.
7.
Having regarding to my finding that the articles were not the baggage of the passenger, the
decision relied upon by Shri Shah also will not apply. In the result and for the reasons stated
above, this appeal fails and the same is rejected.
118
Annexure-19
TO BE PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY
PART-II, SECTION—3, SUB SECTION (ii)
GOVERNMENT OF INDIA
MINISTRY OF COMMERCE AND INDUSTRY
DEPARTMENT OF COMMERCE
NOTIFICATION No. 108 (RE-2008) / 2004-2009
NEW DELHI, DATED 5th JUNE, 2009
S.O. (E) - In exercise of powers conferred by Section 5, read along with Section 3(2) of the
Foreign Trade (Development and Regulation) Act, 1992, also read along with paragraph 2.1 of the
Foreign Trade Policy – 2004-09, the Central Government hereby amends Schedule-I of the ITC
(HS) Classification of Export and Import Items, 2004-09 as under:
1.
The following condition will be added to chapter 1A: General Notes regarding Import Policy :
“21.
Import of cigarette or any other tobacco product shall be subject to the
provisions contained in the “Cigarettes and other Tobacco Products (Packaging
and Labelling) Amendment Rules, 2009”, as notified by the Ministry of Health & Family
Welfare.”
2.
This issues in public interest.
(R.S. Gujral)
Director General of Foreign Trade
And Ex-Officio Additional Secretary to the Govt. of India
[Issued from File No. Mon. 6878/AM 04/PC-2(A)]
119
Annexure-20
F.No.450/160/2009-Cus.IV
Government of India
Ministry of Finance
(Department of Revenue)
Central Board of Excise & Customs
159-A, North Block,
New Delhi-110001.
29th December, 2009.
To,
All Commissioners of Customs / Customs (Prev.).
All Commissioners of Customs & Central Excise.
Subject: Implementation of the Cigarettes and other Tobacco Products (Packaging and
Labelling) Rules, 2008 – regarding
***
Sir / Madam,
Please refer to the Board’s instructions of even number dated 6.10.2009 and the DGFT
Notification No. 108(RE-2008)2004-09 dated 5.6.2009 and the Ministry of Health and Family Welfare
Notifications No.GSR 182(E) dated 15.3.2008 and GSR 305(E) dated 3.5.2009 (copy enclosed)
on the above mentioned subject.
2. The provisions of the ‘Cigarettes and other Tobacco Products (Packaging and Labelling)
Rules, 2008’ require that every package of cigarette or any other tobacco product shall have the
specified health warning in the manner specified in the Schedule to the Rules. Such health warning
shall occupy at least 40% of the principal display area of the front panel of the pack and shall be
positioned parallel to the top edge of the package and in the same direction as the information on
the principal display area. Further, it has been clarified in the notification dated 3.5.2009 by way of
an amendment that the package shall mean any type of pack in which cigarette or other tobacco
product is packed for consumer sale. The DGFT had also issued a notification on 5.6.2009 whereby
a general note has been added to the import policy for complying with the said rules as follows:
“21. Import of cigarette or any other tobacco product shall be subject to the provisions contained
in the “Cigarettes and other Tobacco Products (Packaging and Labelling) Amendment Rules, 2009”,
as notified by the Ministry of Health & Family Welfare.”
3. In view of the specific provisions whereby compliance with the Cigarettes Packaging and
Labelling Rules have been made mandatory on imported cigarettes and tobacco products as a
part of the Import Policy, the Customs field formations are required to enforce its compliance.
Hence, distribution or sale of cigarettes in duty free shops shall also be subject to compliance of
the aforesaid Cigarettes Packaging and Labelling Rules.
In view of the above, Board hereby instructs that the amendments introduced in the aforesaid
‘Cigarettes and other Tobacco Products (Packaging and Labelling) Rules, 2008’ and the Import
Policy Note No.21 of Chapter 1A of the General Notes regarding Import Policy issued by the DGFT
may be implemented by all the Customs field formations. Since the specified health warning,
pictorial representation of ill effects of tobacco use and health message on imported cigarettes
and other tobacco products are intended for public awareness and are components of specified
120
health warning, the Customs field formations dealing with clearance of these products may be
instructed accordingly for effective implementation of the aforesaid Rules.
Yours faithfully,
(M.M. Parthiban)
Director (Customs)
121
Annexure - 21
[Notification No. 48/96-Cus., dated 23-7-1996]
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby directs that each of the notifications of the Government of India in the Ministry of
Finance (Department of Revenue), specified in column (2) of the Table hereto annexed, shall be
amended or further amended, as the case may be, in the manner specified in the corresponding
entry in column (3) of the said Table.
TABLE
S. No.
Notification
No. and date
Amendment
(1)
(2)
(3)
5.
146/94Customs,
dated the
13th July, 1994
In the said notification, in the Table, after S. No. 3 and the
entries relating thereto, the following S. Nos. and entries
shall be added at the end, namely :(1)
(2)
(3)
“4. Official
Sports
Association;
Challenge
cups and
trophies
If, -(i) awarded to an Indian
team in connection with its
participation in a tournament
outside India and brought by it
into India for being kept with an
(ii) the Assistant Commissioner
of Customs is satisfied that the
team proceeded abroad with the
specific purpose of participating in
the tournament; and
(iii) the importer, as well as the
Official Sports Association by
whom the goods shall be retained,
gives an undertaking that the said
goods shall be retained by the said
Association and shall not be
disposed of in any manner, save
that of subsequent re-export when
such re-export is one of the
conditions of participation in the
tournament.
5.
Medals and
trophies
If, - (i) awarded to members of
Indian teams for their participation
in international tournaments or
competitions outside India; and
(ii) the Assistant Commissioner of
Customs is satisfied that the said
goods do not constitute an article
of general utility
122
6.
Prizes won
by any
member of
an Indian
team
If, -(i) the team has participated in
any international tournament or
competition in relation to any sport
or game, with the approval of the
Government of India in the
Department of Youth Affairs and
Sports;
(ii) the importer, at the time of the
clearance, produces a certificate
from an officer not below the rank
of a Deputy Secretary to the
Government of India in the said
Department to the effect that, (a) the importer is a member of
an Indian team which participated,
with the approval of the
Government of India, in an
international tournament or
competition in relation to any sport
or game and has won the prize in
such tournament or competition;
and
(b) the said prize has been
announced, before such
tournament or competition has
been held, by its organisers; and
(iii) the importer gives an
undertaking to the Assistant
Commissioner of Customs, at the
time and place of importation, that
the prize shall remain in his
possession, control and use and
shall not be sold or parted with for
a period of five years from the
date of such importation.”.
123
Annexure-22
Notification No. 153/94-Cus., dated 13-7-1994
Exemption -Photographic, filming audio, video and radio equipments and tapes
imported for short films, feature films and documentaries,
In exercise of the powers conferred under sub-section (1) of section 25 of the Customs Act,
1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest
so to do hereby exempts goods (hereinafter referred to as the said goods) of the description
specified in column (2) of the Table hereto annexed and falling within the First Schedule to the
Customs Tariff Act, 1975 (51 of 1975)/ when imported into India, from the whole of the duty of
customs leviable thereon specified in the said Schedule and from the whole of the additional duty
leviable thereon under section 3 of the second mentioned Act subject to the conditions, if any, laid
down in the corresponding entry in column (3) thereof.
TABLE
S. No.
Description of goods
Conditions
(1)
(2)
(3)
4.
Photographic, filming, soundrecording and radio equipments,
raw films, video-tapes and
sound-recording tapes.
(i) A certificate is produced to the Assistant
Commissioner of Customs or Deputy
Commissioner of Customs] at the time of
clearance of the goods from a duly authorised
officer of the External Publicity Division of the
Ministry of External Affairs, Government of India,
in respect of short films and documentaries
and the Ministry of Information and
Broadcasting, Government of India, in respect
of feature films, that the importation is for a
purpose which is in the public interest and has
been sponsored or approved by the
Government of India; and
(ii) an undertaking is given by the importer or the
sponsoring authority to the Assistant
Commissioner of Customs or Deputy
Commissioner of Customs at the time of
clearance of goods that the goods in respect of
which the exemption is claimed shall be reexported within three months from the date of
their importation or within such extended period,
not exceeding 12 months from the date of
importation, as the Assistant Commissioner of
Customs or Deputy Commissioner of Customs
may allow and that,in the event of failure to reexport, as aforesaid,to pay the duty which would
have been levied but for the exemption
contained herein.
Notification No. 153/94-Cus.; dated 13-7-1994 as amended by Notification No. 101/95-Cus.,dated
26-5-1995
124
Annexure-23
Notification No. 154/94-Cus., dated 13-7-1994
Exemption to samples, price lists, commercial samples or prototypes imported as baggage
or by post. Air or Courier service and prototypes of engineering goods imported as samples
for executing or securing export orders.
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts goods (hereinafter, referred to as the said goods) of the description specified
in column (2) of the Table hereto annexed and falling within the First Schedule to the Customs
Tariff Act, 1975 (51 of 1975), when imported into India, from the whole of the duty of customs leviable
thereon which is specified in the said Schedule and from the whole of the additional duty leviable
thereon under section 3 of the second mentioned Act subject to the conditions, if any, laid down in
the corresponding entry in column (3) thereof.
TABLE
S. No.
Description of goods
Conditions
(1)
(2)
(3)
3.
Commercial samples
(i)
(ii)
(iii)
(iv)
(v)
(A)
(a)
(b)
(B)
5.
Bona fide commercial
samples and
prototypes
The said goods have been imported as personal
baggage by bonafide commercial travellers or
businessmen or imported by post or by air;
The importer produces his Import Export Code
Number at the time of importation;
The said goods are clearly marked as samples;
The import of the said goods does not exceed
Rs. 60,000 in value or 15 units in number, within a
period of twelve months; and
The importer at the time of importation declares that the samples have been imported into India solely for
the purpose of being shown in India for the guidance
of exporters or for securing or executing an export
order;
the total import value of samples does not exceed
Rs. 60,000 or 15 units in number, within the period of
the last twelve months; and
produces an undertaking to the Assistant
Commissioner of Customs or Deputy
Commissioner of Customs to pay the duty leviable
on the said goods but for the exemption contained
herein, if the declaration under clause (A) is found to
be false.
(i)
The said goods have been imported by post or in an
aircraft, or by courier service;
(ii) the value of the said samples or prototypes does not
exceed rupees five thousand; and
125
(iii) the said goods have been supplied free of
charge.
Explanation. - For the purpose of condition (ii), postal
charges or the air-freight shall not be taken into account
for determining the value limit of rupees five thousand.
Notification No. 154/94-Cus., dated 13-7-1994 as amended by Notifications No. 100/95-Cus., dated
26-5-1995; No. 101/95-Cus., dated 26-5-1995; No. 75/97-Cus., dated 14-10-1997 and No. 86/99Cus., dated 6-7-1999.
126
Annexure-24
F.No.520/42/2009-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
159A, North Block, New Delhi-1.
11th November, 2009.
To
All
All
All
All
Chief Commissioners of Customs.
Commissioners of Customs (Airport).
Commissioners of Customs (Port).
Commissioners of Customs & Central Excise.
Subject: W.P.No.35418/2006 – Public Interest Litigation filed in the High Court of Madras
to put display boards / notice boards in Airports / seaports indicating items banned in the
Middle-Eastern countries – regarding.
***
Sir / Madam,
A reference has been received from the Additional Solicitor-General of India, Chennai indicating
that in W.P.No.35418/2006, the Hon’ble High Court of Madras has directed him to advise the
Government, in the interest of the Indian citizens going abroad especially to the Middle-East countries,
to put display boards / notice boards in Airports / seaports indicating items banned in these countries
like Khas Khas (Poppy seeds), to avoid criminal prosecution of Indian nationals visiting MiddleEast countries.
2. The issue was examined. Poppy seeds (commonly known as ‘Khas Khas’) is classifiable
under Tariff Item 1207 91 00 of the First Schedule to the Tariff Act, 1975. Its import into the country
is subjected to certain conditions imposed by the DGFT to ensure that these have been grown
legally in exporting country as per requirements of International Narcotics Control Board. Further,
imports are also allowed only against registration with the Narcotics Commissioner prior to import
and is subject to Plant Quarantine requirements. Similarly, many countries have prohibited /
restricted import of Poppy Seeds (Khas Khas) into their countries. Import of Indian Pan and
derivative is prohibited for import in the Kingdom of Bahrain for the reason to preserve its environment.
3. Since the import of Poppy Seeds (Khas Khas) is prohibited in majority of the Middle East
countries such as UAE, Saudi Arabia, Oman, Qatar etc., Board hereby directs that at prominent
places at airports / seaports where the passengers depart, to put display boards / notice boards
mentioning the items that are banned in Middle-Eastern countries but are of common use which
the departing passengers may carry in his baggage. The ‘Khas Khas’ and ‘Indian Pan and derivative’
may be specifically mentioned as these are commonly used by general public in India but are
prohibited in the Middle – East countries.
4. In view of the above, you are requested to do the needful at airports / seaports under your
charge at the earliest.
Yours faithfully,
(M.M. Parthiban)
Director (Customs)
127
Annexure-25 & 27
Notification No. 137/90-Customs
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts the goods specified in column (2) of the Table annexed hereto, falling under
Heading No. 98.03 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported
by (a) any person holding a valid passport issued under the Passports Act, 1967 (15 of 1967) and
returning to India after having stayed abroad for at least 365 days during the two years
immediately preceding the date of arrival in India, or
(b) any person on a bonafide transfer of residence to India as part of his bona fide baggage, from so much of the duty of customs leviable thereon under the said First Schedule as is in
excess of the amount calculated at the rate of 30% ad valorem, subject to the following
conditions, namely :In case of (a) above, (i)
such person has been working abroad and is returning to India on termination of such work
after having stayed abroad for at least 365 days during the two years immediately preceding
the date of arrival in India;
(ii)
such person affirms by a declaration that the goods have been in his possession abroad or,
the goods are purchased by such person at the time of his arrival, but before clearance from
customs, from the duty free shop located in the arrival hall of the international airports;
(iii) Omitted;
(iv) the goods (other than those purchased from the duty free shops at the time of arrival of such
passenger) not accompanying such passenger were shipped or despatched or arrived within
the time limits specified in the Baggage Rules, 1998; and
(v)
in respect of such goods not more than one unit shall be permissible to such person and the
total aggregate of value of such goods including other goods imported free of duty by him
under rule 5 of the Baggage Rules, 1998, shall not exceed rupees seventy five thousand.
In case of (b) above, (i)
such person has been residing abroad for a minimum period of two years immediately
preceding the transfer of residence and has not availed this concession in the preceding
three years;
(ii)
such person affirms by a declaration that the goods have been in his possession abroad or,
the goods are purchased by such person at the time of his arrival, but before clearance from
customs, from the duty free shop located in the arrival hall of the international airports;
(iii) Omitted;
(iv) the goods (other than those purchased from the duty free shops at the time of arrival of such
passenger) not accompanying such passenger were shipped or despatched or arrived within
the time limits specified in the Baggage Rules, 1998;
(v)
not more than one unit of each item of such goods shall be permissible per family and the
person claiming the benefit of this notification affirms by a declaration that no other member
128
of the family had availed of, or would avail of, the benefit of this notification in respect of that
item; and
(vi) the total aggregate value of such goods shall not exceed rupees five lakhs.
Table
S.No.
Goods
(1)
(2)
1.
Colour Television/Monochrome Television.
2.
Video Cassette Receiver/Video Cassette Player/VideoTelevision Receiver/Video
Cassette Disc Player.
3.
Digital Video Disc Player
4.
Video Home Theatre System
5
Washing machines.
6
Electrical/Liquefied Petroleum Gas Cooking Range with four or more burners
7
Dish washers.
8
Music systems.
9
Personal computers/ Desktop Computer.
10
Notebook Computer/Laptop Computer
11
Air-conditioners.
12
Refrigerators.
13
Deep freezers.
14
Micro wave ovens.
15
Video camera or the combination of any such video camera with one or more of the
following goods, namely : (a) television receiver;
(b) sound recording or reproducing apparatus;
(c) video reproducing apparatus;
16
Word processing machine.
17
Fax Machine.
18
Portable Photocopying Machine
129
Explanation : For the purpose of this notification, (i)
Omitted
(ii)
short visits, if any, made by the person referred to in clause (b), during the aforesaid period of
2 years shall be ignored if the total duration of stay on such short visit does not exceed six
months and shortfall up to a period of two months in a person’s stay abroad may be condoned
by the Assistant Commissioner of Customs or Deputy Commissioner of Customs if he is
satisfied that the person’s early return to India has been caused by his availing of the terminal
leave or a vacation or by any other special circumstances, provided that on sufficient cause
being shown by the person concerned, the Commissioner of Customs may condone the
period of stay in India in excess of six months.
(iii) “family” includes all persons who are residing in the same house and form part of the same
domestic establishment.
Provided that on sufficient cause being shown by the person concerned, the Commissioner
of Customs may condone the period of stay in India in excess of six months.
2.
This notification shall come into force on the 1st day of April, 1990.
Notification No. 137/90-Cus., dated 20-3-1990 as amended by Notifications No. 156/90-Cus.,
dated 27-3-1990; No. 164/90-Cns., dated 30-3-1990; No. 39/91-Cus. (N.T.), dated 31-05-1991;
No. 106/91 - Cus., dated 25-07-1991; No. 46/92 - Cus. (N.T.), dated 19-06-1992; No.3/93-Cus.
(N.T.), dated 15-1-1993; No. 8/93-Cus., dated 17-2-1993; No. 92/94-Cus., dated 1-3-1994; No.
101/95-Cus., dated 26-5-1995 , No. 49/98-Cus., dated 18-7-1998; No. 20/2001-Cus, dated 01-032001and 24/2002 dt.01-03-2002.
130
Annexure-26
1st March, 2002
Notification No. 21 / 2002-Customs
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962) and in supercession of the notification of the Government of India in the Ministry of
Finance ( Department of Revenue), No.17/2001-Customs, dated the 1st March, 2001[ G.S.R.
116(E) dated the 1st March, 2001], the Central Government, being satisfied that it is necessary in
the public interest so to do, hereby exempts the goods of the description specified in column (3) of
the Table below or column (3) of the said Table read with the relevant List appended hereto, as the
case may be, and falling within the Chapter, heading or sub-heading of the First Schedule to the
Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of
the said Table, when imported into India,(a) from so much of the duty of customs leviable thereon under the said First Schedule as is in
excess of the amount calculated at the rate specified in the corresponding entry in column (4)
of the said Table;
(b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the
said Customs Tariff Act, as is in excess of the rate specified in the corresponding entry in
column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this
notification, the condition No. of which is mentioned in the corresponding entry in column (6)
of the said Table:
Provided that nothing contained in this notification shall apply to a)
the goods specified against serial Nos. 239, 240, 241 and 242 of the said Table on or after the
1st day of April, 2003 ;
b)
the goods specified against serial Nos. 250, 251 , 252 and 415 of the said Table on or after the
1st day of March, 2005 .
Explanation.- For the purposes of this notification, the rate specified in column (4) or column (5) is
ad valorem rate, unless otherwise specified.
Table
S. No.
Chapter or
Heading or
sub - heading
Description of goods
Standard
rate
Additional
duty rate
Condition
No.
(1)
(2)
(3)
(4)
(5)
(6)
247.
84, 85 or 90
The following goods,
imported by an
accredited journalist:(i) Personal computers
including lap top
personal computers;
(ii) typewriters; and
(iii) fax machines
Nil
Nil
52
131
Condition
Condition No.
Conditions
52.
(i) If the importer produces a certificate from an officer not below the rank of
a Deputy Principal Information Officer in the Press Information Bureau in the
Ministry of Information and Broadcasting to the effect that the importer is an
accredited journalist, and that the importer has not availed, on any occasion
in the previous two years, exemption under this notification or the notification
of the Government of India in the Ministry of Finance (Department of
Revenue), No. 16/2000-Customs, dated the 1st March, 2000 or No. 17/
2001-Customs, dated the 1st March, 2001;
(ii) the exemption under this notification shall be applicable to that portion of
C.I.F. value of the specified personal computers, typewriters and fax
machines, which does not exceed one lakh rupees; and
(iii) if the importer gives an undertaking to the Deputy Commissioner of
Customs or the Assistant Commissioner of Customs, as the case may be,
at the time and place of importation to the effect that the said goods shall
remain in his possession, control and use and shall not be sold or parted
with for a period of two years from the date of importation.
132
ANNEXURE - 27 (A)
(AIR CUSTOMS) INDIRA GANDHI INTERNATIONAL AIRPORT NEW DELHI
TRANSFER OF RESIDENCE
Transfer of Residence Entry No. ________________________________________ Date _____________
Name of the passenger & Nationality ______________________________________________________
Address _____________________________________________________________________________
Passport No. Date _______________________________________________ Date of Dep. ___________
Accompanied by _____________ Adults ___________ Minors __________ Flight No. & Date _______
OWNER’S DECLARATION IN RESPECT OF PERSONAL & HOUSEHOLD EFFECTS
I hereby claim transfer of residence concession and declare that the undermentioned articles are my
personal household effects and that:(a)
These have been in my possession and in actual use for not less than one year.
(b)
These are intended solely for my own wear and use and are not intended to be given to any other person
and not intended for sale.
(c)
I have arrived in India on a bonafide transfer of residence and I will stay in India for a period of at least one
year reckoned from the date of my arrival in India.
(d)
I have been residing abroad for a minimum period of 2 years immediately preceding the transfer and that
I have not claimed/availed transfer of residence in the last 2 year.
(e)
I have visited India between the periods:Date of Arrival _______________________ Date of Arrival ______________________ Date of Arrival
Date of Departure ____________________ Date of Departure ________________ Date of Departure
Total Short visits in days ___________________________________________________________
Note: (i) The owner of the effects to whom this declaration relates should carefully read the instructions
given on this form.
(ii) Under Section 132 of the Customs Act, 1962 heavy penalties are involved for making false
declaration.
(SEE INSTRUCTIONS OF REVERSE ALSO)
Sl.No.
Description of Articles
Place of
Purchase
Date of
Value of
Purchase the articles
Invoice/Vouchers
produced Yes/No
Remarks
1
2
3
4
5
6
7
Transfer of residence concession for Total. Rs.
Signature of the owner
133
(i)
Declared before me
(ii)
Declarations verified with reference to the passport
Signature of the Baggage Officer
(iii)
..............................................................
..............................................................
(i)
Examined the articles and claim for T.R. concession in respect of items mentioned at S. Nos.________
may be admitted.
(ii)
Items mentioned at S.No.______________________________may be rejected on the following ground:
Signature of Supdt. (Air Customs)
(i)
Examined the articles and items at S.Nos._________________________________________admitted.
(ii)
Serial Nos.____________________________rejected on account of ___________________________
(iii)
Short visits for___________________________________________days condoned.
(iv)
Stay period in abroad______________________________________days
Received Copy
Assistant Collector (Air Customs)
Indira Gandhi International Airport, New Delhi
INSTRUCTIONS
An appeal against this order lies to the Appellate Collector of Customs, New Delhi within three months of the
date of the receipt as provided under section 128 of the Customs Act, 1962. The appeal should bear a court
fee stamp of Rupee one only and must be accompanied by this or another copy of this order bearing court fee
stamp of 50 paise as prescribed in item 6 of Schedule 1 of the Court Fee Act, 1970.
For the purpose of this declaration the following definitions are given :(a)
Personal Effect :- Articles actually required by passenger for his private use.
(b)
Household Effects:- Furniture and articles of domestic use, imported by a householder when transferring
his residence from abroad to this country. Motor vehicles, Vessels, Air-craft, Ammunition. Cinematograph
film and consumable store are not treated as household effects.
Air conditions, refrigeration & Deepfreezes shall not be allowed to be imported free of duty under the Transfer
of Residence Rules, 1978.
In the case of effects accompanying the owner the declaration must be made before an officer of customs:
where effects are not accompanying the owner the declaration may be made before a Judge of the place or a
Magistrate.
In case where effects are to be transferred to India in advance of the owner’s arrival, the declaration may be
made before Customs Officer in any foreign country.
The goods cleared under the rules shall not be sold, displayed, advertised or offered for sale or displayed in a
shop until the Market price of such goods has depreciated to less than fifty percent of their market price when
new, provided further that in case of fire arm, it shall not be gifted or otherwise parted with unless it has been
used for not less than 10 years from the date of clearance and in case of TV such period shall not be less than
five years.
134
ANNEXURE - 27
In respect of Annexure 27, please refer to Annexure 25
ANNEXURE 28A
Circular No.16/2011-Customs
F. No.520/22/2010-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
227-B, North Block,
New Delhi-110001.
31st March, 2011.
To
All
All
All
All
All
All
Chief Commissioners of Customs / Customs (Prev).
Chief Commissioners of Customs & Central Excise.
Commissioners of Customs / Customs (Prev).
Commissioners of Customs (Appeals).
Commissioners of Customs & Central Excise.
Commissioners of Customs & Central Excise (Appeals).
Subject: Revision in the Customs part of Arrival Card for Passengers in Form ‘D’ –
Notification issued by Ministry of Home Affairs – Compliance – regarding.
*****
Sir/ Madam
The issues of increasing imports of satellite phones in passenger baggages without obtaining
authorization and import of foreign exchange in excess of amount of US $10,000/- or equivalent
without declaration to Customs have been referred to MHA for redressal by making suitable
modifications in the Customs part of Arrival Card for Passengers so that all passengers are required
to declare these items at the time of arrival at international airport in India.
2. In response to concerns shown by Department of Revenue, the Ministry of Home Affairs has
issued a Notification No. GSR 113(E) dated 24.2.2011 (published in Part II – Section 3 – Subsection (i) of the Gazette of India Extraordinary) which makes certain modifications in the Customs
parts of Arrival Card for Passengers. The Notification No.GSR 113(E) dated 24.2.2011 issued by
Ministry of Home Affairs is appended as Annexure to this Circular.
3. As per the Notification No. GSR 113(E) dated 24.2.2011, the following declarations are required
to be made by the passengers at the time of arrival at the international airport in Para 7 of the
Customs part of Arrival Card for Passengers:
(a) Are you carrying any plants/seeds/fruits/flowers/vegetables/bulbs/other planting
materials?
Yes/No
135
(b) Are you carrying any meat & meat products/dairy products/live or ornamental fish/poultry/
poultry products?
Yes/No
(c) Are you carrying any Satellite phone
Yes/No
(d) Are you carrying foreign currency notes in excess of US$5,000 or equivalent:
Yes / No
(e) Are you carrying foreign exchange (i.e. foreign currency notes, drafts, Travellers’ cheques,
letters of credit, bills of exchange or any instruments where under any amount is payable
in Indian currency) in excess of US$10,000 or equivalent?
Yes/No
4. Further Board has also approved modification in Part ‘C’ (Information regarding Customs) to
the ‘Important Instructions’ mentioned overleaf of the Arrival Card for Passengers. The modified
Customs instructions are also appended at Annexure – A.
5. The Board desires that the Commissioners in charge of International airports concerned
should ensure that instructions contained in the said Notification are complied with and correct
forms are used by the arriving passengers.
6. Wide publicity should be given to the above changes made in Customs part of Arrival Card for
Passengers and suitable standing order be issued by concerned Commissioner to guide officers
and passengers.
7. Difficulty, if any, in implementation of aforementioned instructions may be immediately brought
to the notice of the Board.
Yours faithfully,
( R. P. Singh )
Director (Customs)
136
Annexure - A
IMPORTANT INSTRUCTIONS
…
C.
INFORMATION REGARDING CUSTOMS
1.
Indian Customs require you to declare goods mentioned at S.No.7 overleaf, goods in excess
of the free allowance, prohibited or restricted goods (including Narcotic drugs, wildlife and its
products, and arms and explosives), and commercial goods at Red Channel counter. Attempt
to import these goods and/or non-declaration can lead to penal consequences,
including arrest.
2.
Free allowance for passengers of Indian origin and foreigners residing in India of age
of and above 10 years returning from the countries other than Nepal, Bhutan, Myanmar
and China is normally Rs.25,000/- per passenger. Alcoholic liquor or wines up to 2
liters and 200 cigarettes can be brought as part of the free baggage allowance. Free
allowance for passengers of Indian origin or a foreigner residing in India of the age of
and above 10 years returning from Nepal, Bhutan, Myanmar and China is normally
Rs.6,000/-. One laptop computer is allowed duty free for an adult passenger of the
age of 18 years or above.
1.
Tourists of foreign origin can import duty free gift and souvenirs worth Rs.8,000/-.
2.
Tourists can import used personal affects including laptop, palmtop computer and reasonable
jewellery free of duty, if these are re-exported at the time of departure.
3.
In case your baggage is mishandled/lost on arrival, please obtain endorsement of the unavailed
free allowance, if any, from the Customs Officer at Mis-handled Baggage Counter.
4.
For updated information and in case of any difficulty or complaint, please contact the Customs
Officer (PRO).
137
Annexure -28B
Circular No.18/2011-Customs
F. No.520/22/2010-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
227-B, North Block,
New Delhi-110001.
8th April, 2011.
To
All
All
All
All
All
All
Chief Commissioners of Customs / Customs (Prev).
Chief Commissioners of Customs & Central Excise.
Commissioners of Customs / Customs (Prev).
Commissioners of Customs (Appeals).
Commissioners of Customs & Central Excise.
Commissioners of Customs & Central Excise (Appeals).
Subject : Revision in the Customs part of Arrival Card for Passengers in Form ‘D’ –
Notification issued by Ministry of Home Affairs – Compliance – reg.
*****
Sir / Madam,
Kind attention is drawn to Board’s Circular No.16/2011-Customs dated 31.03.2011 bringing
out certain changes in Customs part of Arrival Card for passengers arriving at International Airports
in India pursuant to Notification No. GSR 113(E) dated 24.02.2011 issued by Ministry of Home
Affairs (MHA). Doubts have been raised whether the changes made vide Notification No. GSR
113(E) dated 24.02.2011 issued by MHA would also apply to passengers coming from Land Customs
Stations and the Sea ports.
2. The matter has been examined in consultation with Ministry of Home Affairs. It is, accordingly,
clarified that the new arrival card vide MHA Notification No. GSR 113(E) dated 24.02.2011 should
also be used by the Customs Authorities at Land Customs Station or the Sea Port. In this regard,
it is further clarified that against the Column ‘Flight Number’, it can be mentioned either as “Not
Applicable” or details of train / vessel could be filled in.
3. The Board’s Circular No.16/2011-Customs dated 31.03.2011 stands modified to the above
extent.
Yours faithfully,
(R.P.Singh)
Director( Customs)
Internal Circulation: As usual.
138
Annexure – 29(i)
RBI/2009-10/297 Dated: February 01, 2010
A. P. (DIR Series) Circular No. 30, A.P. (FL/ RL Series) Circular No.06
Export and Import of Currency
Attention of Authorised Persons is invited to clauses (a) and (c) of sub-regulation (1) of Regulation
3 of Foreign Exchange Management (Export and Import of Currency) Regulations, 2000, notified
vide Notification No. FEMA 6 /RB-2000 dated May 3, 2000, in terms of which, any person resident
in India may take outside India or having gone out of India on a temporary visit, may bring into India
(other than to and from Nepal and Bhutan) currency notes of Government of India and Reserve
Bank of India notes up to an amount not exceeding Rs. 5,000 per person.
2. As part of providing greater flexibility to the resident individuals travelling abroad, the existing
limits, mentioned above, have been enhanced to Rs. 7,500 per person. TheGovernment of India ,
has notified vide G.S.R.548 (E) in the Gazette of India dated July 24, 2009 [Notification No.FEMA.195/
2009-RB dated July 7, 2009] (copy annexed), an amendment to clauses (a) and (c) of sub-regulation
(1) of Regulation 3 of the Notification referred to above.
3. Accordingly, any person resident in India,
1. may take outside India (other than to Nepal and Bhutan) currency notes of Government of India
and Reserve Bank of India notes up to an amount not exceeding Rs. 7,500 (Rupees seven thousand
five hundred only) per person; and
2. who had gone out of India on a temporary visit, may bring into India at the time of his return from
any place outside India (other than from Nepal and Bhutan), currency notes ofGovernment of India
and Reserve Bank of India notes up to an amount not exceeding Rs. 7,500 (Rupees seven thousand
five hundred only) per person.
4. Authorised Persons may bring the contents of this circular to the notice of their constituents,
customers and foreign counter parties concerned.
5. The directions contained in this circular have been issued under sections 10(4) and 11(1) of the
Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions /
approvals, if any, required under any other law.
Yours faithfully,
(Salim Gangadharan)
Chief General Manager-In-Charge
139
Reserve Bank of India Foreign Exchange Department Central Office
Mumbai-400 001
Notification No.FEMA. 195 /2009- RB Dated: July 7, 2009
Foreign Exchange Management (Export and Import of Currency) (Amendment) Regulations,
2009
In exercise of the powers conferred by clause (g) of sub-section (3) of Section 6 and Sub-section
(2) of Section 47 of the Foreign Exchange Management Act, 1999 (42 of 1999), the Reserve Bank
of India hereby makes the following amendments in the Foreign Exchange Management (Export
and Import of Currency) Regulations, 2000 (Notification No.FEMA 6/2000-RB dated May 3, 2000),
namely :1.
Short Title and Commencement:-
(i)
These regulations may be called as Foreign Exchange Management (Export and
Import of Currency) (Amendment) Regulations, 2009.
(ii)
2.
They shall be come into effect from the date of their publication in the Official Gazette.
Amendment to the Regulations:-
In the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000
(Notification No. FEMA 6/2000 – RB) dated May 3, 2000, in Regulation 3, in sub-regulation (1),
(1)
in clause (a), for the figures “Rs.5000”, the figures and words “Rs. 7500 (Rupees
seven thousand five hundred only ) “ shall be substituted;
(2)
in clause (c), for the figures “Rs.5000”, the figures and words “Rs. 7500 (Rupees
seven thousand five hundred only)” shall be substituted.
(Salim Gangadharan) Chief General Manager-in-Charge
Foot Note :The Principal regulations were published in the Official Gazette vide G.S.R. No. 389 (E) PartII, Section 3, Sub-section (i) dated May 5, 2000 and subsequently amended vide G.S.R. No.
201 (E) dated March 21, 2001.
Published in the Official Gazette of Government of India – Extraordinary – Part-II, Section 3,
Sub-section (i) dated 24.7.2009 - G.S.R.No.548(E)
140
Annexure-29(ii)
Release of Foreign Exchange by Authorised Dealers
A.1 General
1.1 For release of foreign exchange to persons resident in India for various current account
transactions, Authorised Dealer banks are to be guided by the Rules made by the Government
of India under Section 5 of the Foreign Exchange Management Act, 1999 (as indicated in item
1 of Appendix 2) which are detailed in the Foreign Exchange Management (Current Account
Transactions) Rules, 2000 (Annex-1) notified by the Government of India vide Notification No.
G.S.R.381 (E)dated 3rd May 2000 (Rules). In terms of the said Rules, drawal of foreign
exchange for certain categories of transactions as listed in Schedule I is expressly prohibited.
Exchange facilities for transactions included in Schedule II to the Rules may be permitted by
the Authorised Dealer banks provided the applicant has secured the approval from the Ministry/
Department of the Government of India as specified therein. In respect of transactions included
in Schedule III, prior approval of the Reserve Bank would be required for remittance exceeding
the specified limits. The release of foreign exchange up to the threshold ceilings specified in
Schedule III stands delegated to the Authorised Dealer banks. All applications for release of
foreign exchange exceeding the limits as prescribed in Schedule III to the Rules should be
referred to the Regional Office concerned of the Foreign Exchange Department of the Reserve
Bank, under whose jurisdiction the applicant is functioning / residing.
1.2 “Drawal” of foreign exchange also includes use of International Credit Cards (ICC), International
Debit Cards (IDC), ATM cards, etc. “Currency”, inter alia, includes ICC, IDC and ATM Cards.
Accordingly, all Rules, Regulations made and Directions issued under the Act apply to the
use of ICC, IDC and ATM Cards.
1.3 In order to provide adequate foreign exchange facilities and efficient customer service, the
Reserve Bank has decided to grant licences to certain entities by authorising them as
Authorised Dealer – Category II to undertake a range of nontrade current account transactions.
Accordingly, Authorised Dealer – Category II are authorised to release / remit foreign exchange
for the following non-trade current account transactions:
(a) Private visits,
(b) Remittance by tour operators / travel agents to overseas agents /principals / hotels,
(c) Business travel,
(d) Fee for participation in global conferences and specialized training,
(e) Remittance for participation in international events / competitions (towards training,
sponsorship and prize money),
(f)
Film shooting,
(g) Medical treatment abroad,
(h) Disbursement of crew wages,
(i)
Overseas education,
(j)
Remittance under educational tie up arrangements with universities abroad,
(k)
Remittance towards fees for examinations held in India and abroad and additional score
sheets for GRE, TOEFL, etc.
141
(l)
Employment and processing, assessment fees for overseas job applications,
(m) Emigration and emigration consultancy fees,
(n) Skills / credential assessment fees for intending migrants,
(o) Visa fees,
(p) Processing fees for registration of documents as required by the Portuguese / other
Governments, registration / subscription / membership fees to International Organisations.
1.4 Release of foreign exchange is not admissible for travel to and transaction with
residents of Nepal and Bhutan. (cf. Clause (b) of Rule 3 of the Rules (as indicated in
item 2 of Appendix 2).
A.2 Sale of Exchange
2.1 Authorised Persons may release foreign exchange for travel purposes on the basis of a
declaration given by the traveller regarding the amount of foreign exchange availed of during
the financial year.
2.2 In case of issue of travellers cheques, the traveller should sign the cheques in the presence
of an authorised official and the purchaser’s acknowledgement for receipt of the travellers
cheques should be held on record.
2.3 Out of the overall foreign exchange being sold to a traveller, exchange in the form of foreign
currency notes and coins may be sold up to the limit indicated below:
(i)
Travellers proceeding to countries other than Iraq, Libya, Islamic Republic of Iran, Russian
Federation and other Republics of Commonwealth of Independent States - not exceeding
USD 3000 or its equivalent.
(ii)
Travellers proceeding to Iraq or Libya - not exceeding USD 5000 or its equivalent
(iii) Travellers proceeding to Islamic Republic of Iran, Russian Federation and other Republics
of Commonwealth of Independent States - full exchange may be released.
2.4 The form A2 relating to sale of foreign exchange should be retained for a period of one year by
the Authorised Persons, together with the related documents, for the purpose of verification
by their Internal Auditors. However, in respect of remittance applications for miscellaneous
non-trade current account transactions of amount not exceeding USD 5,000, Authorised
Dealers may obtain simplified Application-cum-Declaration form (Form A2) as shown at
Annex -2.
2.5 In cases where the remittances are allowed on the basis of self declaration, the onus of
furnishing the correct details in the application will remain with the applicant who has certified
the details relating to the purpose of such remittance.
A.3 Medical Treatment
3.1 With a view to enable residents to avail of foreign exchange for medical treatment abroad
without any hassles and any loss of time, Authorised Dealers may release foreign exchange
up to an amount of USD 100,000 or its equivalent, on the basis of self declaration that the
applicant is buying exchange for medical treatmentoutside India, without insisting on any
estimate from a hospital/doctor.
142
3.2 For amount exceeding the above limit, estimate from the doctor in India or hospital/ doctor
abroad, is required to be submitted to the Authorised Dealers.
3.3 A person who has fallen sick after proceeding abroad may also be released foreign exchange
by an Authorised Dealer for medical treatment outside India.
A.4 Cultural Tours
Dance troupes, artistes, etc., who wish to undertake tours abroad for cultural purposes should
apply to the Ministry of Human Resources Development (Department of Education and
Culture), Government of India, for their foreign exchange requirements. Authorised Dealers
may release foreign exchange, on the strength of the sanction from the Ministry concerned,
to the extent and subject to conditions indicated therein.
A.5 Private Visits
Foreign exchange for private visit can also be released to a person who is availing of foreign
exchange for travel outside India for any purpose up to the limits specified in Schedule III to
the Rules.
A.6 Business Visits
Foreign exchange may be released for undertaking business travel or attending a conference
or specialised training or for maintenance expenses of a patient going abroad for medical
treatment or check up abroad or for accompanying as attendant to a patient going abroad for
medical treatment / check up to the limits specified in Schedule III to the Rules.
A.7 Period of surrender of foreign exchange
7.1 In case the foreign exchange purchased for a specific purpose is not utilized for that purpose,
it could be utilized for any other eligible purpose for which drawal of foreign exchange is
permitted under the relevant Rules / Regulation.
7.2 General permission is available to any resident individual to surrender received / realised /
unspent / unused foreign exchange to an Authorised Person within a period of 180 days from
the date of receipt / realisation / purchase / acquisition / date of return of the traveller, as the
case may be.
7.3 The liberalized uniform time limit of 180 days is applicable only to resident individuals and that
too in areas other than export of goods and services.
7.4 In all other cases, the regulations / directions on surrender requirement shall remain unchanged.
(cf. Notification No. FEMA 9/2000-RB dated May 3, 2000, as amended from time to time).
A.8 Unspent Foreign Exchange
8.1 As stated above, unspent foreign exchange brought back to India by a resident individual
should be surrendered to an Authorised Person within 180 days from the date of return of the
traveller. Exchange so brought back can be utilized by the individual for his/her subsequent
visit abroad.
8.2 However, a returning traveller is permitted to retain with him, foreign currency travellers cheques
and currency notes up to an aggregate amount of USD 2000 and foreign coins without any
ceiling beyond 180 days. (cf. Notification No. FEMA 11/2000-RB dated May 3, 2000). Foreign
exchange so retained, can be utilized by the traveller for his subsequent visit abroad.
143
Annexure-30
Circular No.19 / 2010-Customs
F.No.520/23/2010-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
159-A, North Block,
New Delhi – 110001
13th July, 2010
To
All
All
All
All
All
Chief Commissioners of Customs
Chief Commissioners of Customs (Prev).
Commissioners of Customs (Airport).
Commissioners of Customs (Port).
Commissioners of Customs & Central Excise.
Subject: Display at Airports / LCS about prohibition of import / export of Indian currency
notes of denomination of above Rs.100 in India and in Nepal – regarding
***
Sir / Madam,
As you may be aware, the export and import of currency notes of Government of India and
Reserve Bank of India notes (other than notes of denominations of above Rs.100 in either case) is
not allowed to and from Nepal and Bhutan in terms of Notification No. FEMA 6 / RB-2000 dated
3.5.2000 issued under Foreign Exchange Management (Export and Import of Currency) Regulations,
2000 by the Reserve Bank of India. Similarly, the Indian currency notes in the denomination of
Rs.1000 and Rs.500 are not permissible for exchange for banking transaction in Nepal in terms of
guidelines issued by Ministry of Finance, Government of Nepal and Nepal Rashtra Bank. In fact,
the current legal provisions in Nepal provide that notes of these denominations are liable for seizure
and the persons carrying them are to be fined or imprisoned for up to three years.
2. Instances have come to the notice of the Board that many Indian nationals travelling to Nepal
by Air or by land routes and carrying Indian currency notes of Rs.500 and Rs.1000 denomination
primarily due to ignorance of the law, are not only violating the RBI regulations issued in this regard
but also get entangled in legal proceedings for possession of these notes in Nepal, like criminal
prosecution along with confiscation of such currency notes.
3. The matter has been examined in the Board. In order to check such illegal import / export of
currency notes of denomination of above Rs.100 and to prevent harassment and avoidable legal
issues, it is felt necessary to educate / sensitize the people travelling between Nepal and India
through Air or land routes regarding aforementioned legal provisions. Accordingly, since the import
and export of Indian currency notes of denomination of above Rs.100/- (in either case) is prohibited
as per Indian law and the use of Indian currency notes of denomination of Rs.500 and Rs.1000 is
also prohibited in Nepal, Board hereby desires that at prominent places at the Airports and Land
Customs Stations in India from where the passengers depart, to put up a display / notice board
mentioning that “Import / export of Indian currency notes of the denomination of above Rs.100
from / to Nepal is prohibited and would attract penal provisions. The use of such currency notes of
144
the denomination of Rs.1000 and Rs.500 is also prohibited in Nepal. Therefore, these notes are
liable to be seized and the persons carrying them are liable to be fined or imprisoned for up to three
years in Nepal.”
4. The concerned airlines can also be requested to sensitize the passengers at the time of
departure by displaying such advisory at their Check-in Counters.
Yours faithfully,
( R. P. Singh )
Director (Customs)
145
Annexure-31
FREQUENTLY ASKED QUESTIONS (FAQs) ON FOREIGN EXCHANGE
Introduction :
1.
The legal framework for administration of foreign exchange transactions in India is provided
by the Foreign Exchange Management Act, 1999. Under the Foreign Exchange Management
Act, 1999 (FEMA), which came into force with effect from June 1, 2000, all transactions
involving foreign exchange have been classified either as capital or current account
transactions. All transactions undertaken by a resident that do not alter his / her assets or
liabilities, including contingent liabilities, outside India are current account transactions. In
terms of Section 5 of the FEMA, persons resident in India1 are free to buy or sell foreign
exchange for any current account transaction except for those transactions for which drawal
of foreign exchange has been prohibited by Central Government, such as remittance out of
lottery winnings, remittance of income from racing/riding, etc., or any other hobby, remittance
for purchase of lottery tickets, banned / proscribed magazines, football pools, sweepstakes,
etc., payment of commission on exports made towards equity investment in Joint Ventures/
Wholly Owned Subsidiaries abroad of Indian companies, remittance of dividend by any
company to which the requirement of dividend balancing is applicable, payment of
commission on exports under Rupee State Credit Route, except commission up to 10% of
invoice value of exports of tea and tobacco and payment related to “call back services” of
telephones. Foreign Exchange Management (Current Account Transactions) Rules, 2000
- Notification [GSR No.381(E)] dated May 3, 2000, as amended from time to time, is available
in the Official Gazette as well as, as an Annex to our Master Circular on Miscellaneous
Remittances from India–Facilities for Residents available at our website
www.mastercirculars.rbi.org.in.
I.
Guidelines on Travel Related Matters
Q.1.
Who are authorized by the Reserve Bank to sell foreign exchange for travel
purposes?
Ans.
Foreign exchange can be purchased from any authorised person, such as Authorised
Dealer (AD) Category-I bank and AD Category II. Full-Fledged Money Changers (FFMCs)
are also permitted to release exchange for business and private visits.
Q.2.
Who is an Authorized Dealer?
Ans.
An Authorised Dealer is normally a bank specifically authorized by the Reserve Bank under
Section 10(1) of FEMA, 1999, to deal in foreign exchange or foreign securities (the list of
ADs is available on www.rbi.org.in ).
Q.3.
How much foreign exchange can one buy when traveling abroad on private visits
to a country outside India?
Ans.
For private visits abroad, other than to Nepal and Bhutan, viz., for tourism purposes, etc.,
any resident can obtain foreign exchange up to an aggregate amount of USD 10,000, from
an Authorised Dealer, in any one financial year, on self-declaration basis, irrespective of the
number of visits undertaken during the year. This limit of USD 10,000 or its equivalent per
financial year for private visits can also be availed of by a person who is availing of foreign
exchange for travel abroad for any purposes, such as, for employment or immigration or
studies.
No foreign exchange is available for visit to Nepal and/or Bhutan for any purpose.
A resident Indian is allowed to take INR of denomination of Rs.100 or lesser denomination
to Nepal and Bhutan without limit.
146
Q. 4.
How much foreign exchange is available for a business trip?
Ans.
For business trips abroad to countries, other than to Nepal and Bhutan, a person can avail
of foreign exchange up to USD 25,000 per visit. Visits in connection with attending of an
international conference, seminar, specialised training, study tour, apprentice training, etc.,
are treated as business visits. Release of foreign exchange exceeding USD 25,000 for
business travel abroad (other than to Nepal and Bhutan), irrespective of the period of stay,
requires prior permission from the Reserve Bank.
No release of foreign exchange is admissible for any kind of travel to Nepal and
Bhutan or for any transaction with persons resident in Nepal.
Investments in Bhutan are permitted in Indian Rupees as well as in freely convertible
currencies. If investment is made in freely convertible currency/ ies, sale/winding up proceeds
are required to be repatriated to India in freely convertible currencies.
Q. 5.
How much foreign currency can be taken while buying foreign exchange for travel
abroad?
Ans.
Travellers going to all countries other than (a) and ( b) below are allowed to purchase
foreign currency notes / coins only up to USD 3000. Balance amount can be carried
in the form of travellers cheque or banker’s draft. Exceptions to this are (a) travellers
proceeding to Iraq and Libya who can draw foreign exchange in the form of foreign
currency notes and coins not exceeding USD 5000 or its equivalent; (b) travellers
proceeding to the Islamic Republic of Iran, Russian Federation and other Republics
of Commonwealth of Independent States who can draw entire foreign exchange in
the form of foreign currency notes or coins.
Q.6.
How much foreign exchange can be drawn for medical treatment abroad?
Ans.
AD Category I banks and AD Category II, may release foreign exchange up to USD 100,000
or its equivalent to resident Indians for medical treatment abroad on self declaration basis,
without insisting on any estimate from a hospital/doctor in India/abroad. A person visiting
abroad for medical treatment can obtain foreign exchange exceeding the above limit, provided
the request is supported by an estimate from a hospital/doctor in India/abroad.
An amount up to USD 25,000 is allowed for maintenance expensesof a patient going
abroad for medical treatment or check-up abroad, or to a person foraccompanying as
attendant to a patient going abroad for medical treatment/check-up.
The amount of USD 25,000 allowed to the patient going abroad is in addition to the limit of
USD 100,000 mentioned above.
Q.7.
What are the facilities available to students for pursuing their studies abroad?
Ans.
For studies abroad the estimate received from the institution abroad or USD 100,000, per
academic year, whichever is higher, may be availed of from an AD Category I bank and AD
Category II. Students going abroad for studies are treated as Non-Resident Indians (NRIs)
and are eligible for all the facilities available to NRIs under FEMA, 1999. Educational and
other loans availed of by students as residents in India can be allowed to continue. A student
holding NRO account may withdraw and repatriate up to USD 1 million per financial year
from his NRO account. The student may avail of an amount of USD 10,000 or its equivalent
for incidental expenses out of which USD 3000 or its equivalent may be carried in the form
of foreign currency while going for study abroad.
147
Q. 8.
What are the documents required for withdrawal of Foreign Exchange for the above
purpose?
Ans.
Documentation may be done as advised by the Authorised Dealer.
Q. 9.
How much foreign exchange is available to a person going abroad on employment?
Ans.
A person going abroad for employment can draw foreign exchange up to USD 100,000
from any Authorised Dealer in India on the basis of self-declaration.
Q. 10. How much foreign exchange is available to a person going abroad on emigration?
Ans.
A person going abroad on emigration can draw foreign exchange from AD Category I bank
and AD Category II up to the amount prescribed by the country of emigration or USD 100,000.
He can draw foreign exchange up to USD 100,000 on self- declaration basis from an
Authorised Dealer in India This amount is only to meet the incidental expenses in the country
of emigration. No amount of foreign exchange can be remitted outside India to become
eligible or for earning points or credits for immigration. All such remittances require prior
permission of the Reserve Bank. If requirement exceeds USD 100,000, the person requires
to obtain the prior approval from the Reserve Bank.
Q.11. Is there any category of visit which requires prior approval from the Reserve Bank
or the Government of India?
Ans.
Dance troupes, artistes, etc., who wish to undertake cultural tours abroad, should obtain
prior approval from the Ministry of Human Resources Development (Department of Education
and Culture), Government of India, New Delhi.
Q.12. Whether permission is required for receiving grant/donation from abroad under
the Foreign Contribution Regulation Act, 1976?
Ans.
The Foreign Contribution Regulation Act, 1976 is administered and monitored by the Ministry
of Home Affairs whose address is given below:
Foreigners Division,
Jaisalmer House,
26, Mansingh Road,
New Delhi-110 011
No specific approval from the Reserve Bank is required in this regard.
Q.13. How many days in advance one can buy foreign exchange for travel abroad?
Ans.
Permissible foreign exchange can be drawn 60 days in advance. In case it is not possible
to use the foreign exchange within the period of 60 days, it should be immediately
surrendered to an authorised person. However, residents are free to retain foreign exchange
up to USD 2,000, in the form of foreign currency notes or TCs for future use or credit to
their Resident Foreign Currency (Domestic) [RFC (Domestic)] Accounts.
Q. 14. Can one pay by cash full rupee equivalent of foreign exchange being purchased
for travel abroad?
Ans.
Foreign exchange for travel abroad can be purchased from an authorized person against
rupee payment in cash only up to Rs.50,000/-. However, if the Rupee equivalent exceeds
Rs.50,000/-, the entire payment should be made by way of a crossed cheque/ banker’s
cheque/ pay order/ demand draft/ debit card / credit card / prepaid card only.
148
Q.15. Is there any time-frame for a traveller who has returned to India to surrender foreign
exchange?
Ans.
On return from a foreign trip, travellers are required to surrender unspent foreign exchange
held in the form of currency notes and travellers cheques within 180 days of return. However,
they are free to retain foreign exchange up to USD 2,000, in the form of foreign currency
notes or TCs for future use or credit to their Resident Foreign Currency (Domestic) [RFC
(Domestic)] Accounts.
Q.16. Should foreign coins be surrendered to an Authorised Dealer on return from abroad?
Ans.
The residents can hold foreign coins without any limit.
Q.17. How much foreign exchange can a resident individual send as gift / donation to a
person resident outside India?
Ans.
Any resident individual, if he so desires, may remit the entire limit of USD 200,000 in one
financial year under LRS as gift to a person residing outside India or as donation to a
charitable/educational/ religious/cultural organization outside India. Remittances exceeding
the limit of USD 200,000 will require prior permission from the Reserve Bank.
Q.18. Is it permitted to use International Credit Card (ICC)/ATM/Debit card for undertaking
foreign exchange transactions?
Ans.
Use of International Credit Cards (ICCs) / ATMs/ Debit Cards can be made for travel abroad
in connection with various purposes and for making personal payments like subscription to
foreign journals, internet subscription, etc. The entitlement of foreign exchange on
International Credit Cards (ICCs) is limited by the credit limit fixed by the card issuing
authority only. With ICCs one can (i) meet expenses/make purchases while abroad (ii)
make payments in foreign exchange for purchase of books and other items through internet
in India. If the person has a foreign currency account in India or with a bank overseas, he/
she can even obtain ICCs of overseas banks and reputed agencies.
Use of these instruments for payment in foreign exchange in Nepal and Bhutan is
not permitted.
Q.19. How much Indian currency can a person carry while going abroad?
Ans.
Residents are free to take outside India (other than to Nepal and Bhutan) currency notes of
Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.
7,500/ - per person. They may take or send outside India (other than to Nepal and Bhutan)
commemorative coins not exceeding two coins each.
Explanation : ‘Commemorative Coin’ includes coin issued by Government of India Mint to
commemorate any specific occasion or event and expressed in Indian currency.
Q. 20. How much Indian currency can be brought in while coming into India?
Ans.
A resident of India, who has gone out of India on a temporary visit may bring into India at the
time of his return from any place outside India (other than Nepal and Bhutan), currency
notes of Government of India and Reserve Bank of India notes up to an amount not exceeding
Rs.7,500.
A person can take or send out of India to Nepal or Bhutan, currency notes of Government of
India and Reserve Bank notes, in denominations not exceeding Rs.100.
Q. 21. How much foreign exchange can be brought in while visiting India?
Ans.
A person coming into India from abroad can bring with him foreign exchange without any
149
limit. However, if the aggregate value of the foreign exchange in the form of currency notes,
bank notes or travellers cheques brought in exceeds USD 10,000 or its equivalent and/or
the value of foreign currency alone exceeds USD 5,000 or its equivalent, it should be declared
to the Customs Authorities at the Airport in the Currency Declaration Form (CDF), on arrival
in India.
Q. 22. Is it required to follow complete export procedure when a gift parcel is sent outside
India?
Ans.
A person resident in India is free to send (export) any gift article of value not exceeding
Rs.5,00,000 provided export of that item is not prohibited under the extant Foreign Trade
Policy and the exporter submits a declaration that goods of gift are not more than Rs.5,00,000
in value.
Export of goods or services up to Rs.5,00,000 may be made without furnishing the
declaration in Form GR/ SDF/ PP/ SOFTEX, as the case may be.
Q.23. How much jewellery can be carried while going abroad?
Ans.
Taking personal jewellery out of India is as per the Baggage Rules, governed and
administered by Customs Department, Government of India. While no approval of the
Reserve Bank is required in this case, approvals, if any, required from Customs Authorities
may be obtained.
Q.24. Can a resident extend local hospitality to a non-resident?
Ans.
A person resident in India is free to make any payment in Indian Rupees towards meeting
expenses, on account of boarding, lodging and services related thereto or travel to and
from and within India, of a person resident outside India, who is on a visit to India.
Q. 25. Can residents purchase air tickets in India for their travel not touching India?
Ans.
Residents may book their tickets in India for their visit to any third country. For instance,
residents can book their tickets for travel from London to New York, through domestic/
foreign airlines in India itself.
Q. 26. Can a resident open a foreign currency denominated account in India?
Ans.
Persons resident in India are permitted to maintain foreign currency accounts in India under
the following three Schemes:
a.
Exchange Earners Foreign Currency Accounts:All categories of resident foreign exchange earners can credit up to 100 per cent of
their foreign exchange earnings, as specified in the paragraph 1 (A) of the Schedule to
Notification No. FEMA 10/2000-RB dated 3rd May, 2000 and as amended from time to
time, to their EEFC Account with an Authorised Dealer in India. Funds held in EEFC
account can be utilised for all permissible current account transactions and also for
approved capital account transactions as specified by the extant Rules/Regulations/
Notifications/ Directives issued by the Government/RBI from time to time. The account
is maintained in the form of a non-interest bearing current account.
b.
Resident Foreign Currency Accounts : A person resident in India may open, hold and maintain with an Authorised Dealer in
India a Resident Foreign Currency (RFC) Account to keep their foreign currency assets
which were held outside India at the time of return can be credited to such accounts.
The foreign exchange received as (i) pension of any other superannuation or other
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monetary benefits from the employer outside India; (ii) received or acquired as gift or
inheritance from a person referred to sub-section (4) of section 6 of FEMA, 1999 or
(iii) referred to in clause (c) of section 9 of the Act or acquired as gift or inheritance
there from or (iv) received as the proceeds of life insurance policy claims/maturity/
surrender values settled in foreign currency from an insurance company in India
permitted to undertake life insurance business by the Insurance Regulatory and
Development Authority; may also be credited to this account.
RFC account can be maintained in the form of current or savings or term deposit
accounts.
The funds in RFC account are free from all restrictions regarding utilisation of foreign
currency balances including any restriction on investment outside India.
c.
Resident Foreign Currency (Domestic) Account:A resident Individual may open, hold and maintain with an Authorized Dealer in India, a
Resident Foreign Currency (Domestic) Account, out of foreign exchange acquired in
the form of currency notes, Bank notes and travellers cheques, from any of the sources
like, payment for services rendered abroad, as honorarium, gift, services rendered or
in settlement of any lawful obligation from any person not resident in India. The account
may also be credited with/opened out of foreign exchange earned abroad like proceeds
of export of goods and/or services, royalty, honorarium, etc., and/or gifts received
from close relatives (as defined in the Companies Act) and repatriated to India through
normal banking channels. The account shall be maintained in the form of Current
Account and shall not bear any interest. There is no ceiling on the balances in the
account. The account may be debited for payments made towards permissible current
and capital account transactions.
Q.27. Can a person resident in India hold assets outside India?
Ans.
In terms of sub-section 4, of Section (6) of the Foreign Exchange Management Act, 1999,
a person resident in India is free to hold, own, transfer or invest in foreign currency, foreign
security or any immovable property situated outside India if such currency, security or
property was acquired, held or owned by such person when he was resident outside India
or inherited from a person who was resident outside India. (Please also refer to the
Liberalised Remittance Scheme of USD 200,000 discussed below).
II.
Liberalised Remittance Scheme (LRS) of USD 200,000
Q.28. What is the Liberalised Remittance Scheme of USD 200,000?
Ans.
Under the Liberalised Remittance Scheme, all resident individuals, including minors, are
allowed to freely remit up to USD 200,000 per financial year (April – March) for any
permissible current or capital account transaction or a combination of both.
Q.29. Please provide an illustrative list of capital account transactions permitted under
the scheme.
Ans.. Please refer to Q. 29. Under the Scheme, resident individuals can acquire and hold
immovable property or shares or debt instruments or any other assets outside India, without
prior approval of the Reserve Bank. Individuals can also open, maintain and hold foreign
currency accounts with banks outside India for carrying out transactions permitted under
the Scheme.
Q. 30. What are the prohibited items under the Scheme?
Ans.
The remittance facility under the Scheme is not available for the following:
151
i)
Remittance for any purpose specifically prohibited under Schedule-I (like purchase of
lottery tickets/sweep stakes, proscribed magazines, etc.) or any item restricted under
Schedule II of Foreign Exchange Management (Current Account Transactions) Rules,
2000;
ii)
Remittance from India for margins or margin calls to overseas exchanges / overseas
counterparty;
iii)
Remittances for purchase of FCCBs issued by Indian companies in the overseas
secondary market;
iv)
Remittance for trading in foreign exchange abroad;
v)
Remittance by a resident individual for setting up a company abroad;
vi)
Remittances directly or indirectly to Bhutan, Nepal, Mauritius and Pakistan;
vii) Remittances directly or indirectly to countries identified by the Financial Action Task
Force (FATF) as “non co-operative countries and territories”, from time to time; and
viii) Remittances directly or indirectly to those individuals and entities identified as posing
significant risk of committing acts of terrorism as advised separately by the Reserve
Bank to the banks.
Q.31. Whether LRS facility is in addition to existing facilities detailed in Schedule III under
remittances?
Ans.
The facility under the Scheme is in addition to those already available for private travel,
business travel, studies, medical treatment, etc., as described in Schedule III of Foreign
Exchange Management (Current Account Transactions) Rules, 2000. The Scheme can
also be used for these purposes.
However, gift and donation remittances cannot be made separately and have to be made
under the Scheme only. Accordingly, resident individuals can remit gifts and donations up
to USD 200,000 per financial year under the Scheme.
Q. 32. Are resident individuals under this Scheme required to repatriate the accrued
interest/dividend on deposits/investments abroad, over and above the principal
amount?
Ans.
The investor can retain and reinvest the income earned on investments made under the
Scheme. At present, the residents are not required to repatriate the funds or income
generated out of investments made under the Scheme.
Q.33. Are remittances under the Scheme on gross basis or net basis (net of repatriation
from abroad)?
Ans.
Remittance under this scheme is on a gross basis.
Q. 34. Can remittances under the facility be consolidated in respect of family members?
Ans.
Remittances under the facility can be consolidated in respect of family members subject
to the individual family members complying with the terms and conditions of the Scheme.
Q. 35. Can one use the Scheme for purchase of objects of art (paintings, etc.) either directly
or through auction house?
Ans.
Remittances under the Scheme can be used for purchasing objects of art subject to the
provisions of other applicable laws such as the extant Foreign Trade Policy of the Government
of India.
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Q.36. Is the AD required to check permissibility of remittances based on nature of
transaction or allow the same based on remitters declaration?
Ans.
AD will be guided by the nature of transaction as declared by the remitter and will certify
that the remittance is in conformity with the instructions issued by the Reserve Bank.
Q.37. Can remittance be made under this Scheme for acquisition of ESOPs?
Ans.
The Scheme can also be used for remittance of funds for acquisition of ESOPs.
Q.38. Is this scheme in addition to acquisition of ESOPs linked to ADR/GDR (i.e USD
50,000/- for a block of 5 calendar years)?
Ans.
The remittance under the Scheme is in addition to acquisition of ESOPs linked to ADR/
GDR.
Q.39. Is this Scheme is in addition to acquisition of qualification shares (i.e. USD 20,000
or 1% of paid up capital of overseas company, whichever is lower)?
Ans.
The remittance under the Scheme is in addition to acquisition of qualification shares.
Q.40. Can a resident individual invest in units of Mutual Funds, Venture Funds, unrated
debt securities, promissory notes, etc., under this scheme?
Ans.
A resident individual can invest in units of Mutual Funds, Venture Funds, unrated debt
securities, promissory notes, etc. under this Scheme. Further, the resident can invest in
such securities out of the bank account opened abroad under the Scheme.
Q.41. Can an individual, who has availed of a loan abroad while as a non-resident Indian
can repay the same on return to India, under this Scheme as a resident?
Ans.
This is permissible.
Q. 42. Is it mandatory for resident individuals to have PAN number for sending outward
remittances under the Scheme?
Ans.
It is mandatory to have PAN number to make remittances under the Scheme.
Q. 43. In case a resident individual requests for an outward remittance by way of issuance
of a demand draft (either in his own name or in the name of the beneficiary with
whom he intends putting through the permissible transactions) at the time of his
private visit abroad, whether the remitter can effect such an outward remittance
against self declaration?
Ans.
Such outward remittance in the form of a DD can be effected against the declaration by the
resident individual in the format prescribed under the Scheme.
Q. 44. Are there any restrictions on the frequency of the remittance?
Ans.
There is no restriction on the frequency. However, the total amount of foreign exchange
purchased from or remitted through, all sources in India during a financial year should be
within the cumulative limit of USD 200,000.
Q.45. What are the requirements to be complied with by the remitter?
Ans.
The individual will have to designate a branch of an AD through which all the remittances
under the Scheme will be made. The applicants should have maintained the bank account
with the bank for a minimum period of one year prior to the remittance. If the applicant
seeking to make the remittance is a new customer of the bank, Authorised Dealers should
carry out due diligence on the opening, operation and maintenance of the account. Further,
153
the AD should obtain bank statement for the previous year from the applicant to satisfy
themselves regarding the source of funds. If such a bank statement is not available, copies
of the latest Income Tax Assessment Order or Return filed by the applicant may be obtained.
He has to furnish an application-cum-declaration in the specified format regarding the
purpose of the remittance and declare that the funds belong to him and will not be used for
purposes prohibited or regulated under the Scheme.
Q. 46. Can an individual, who has repatriated the amount remitted during the financial
year, avail of the facility once again?
Ans.
Once a remittance is made for an amount up to USD 200,000 during the financial year, he
would not be eligible to make any further remittances under this scheme, even if the proceeds
of the investments have been brought back into the country.
Q. 47. Can remittances be made only in US Dollars?
Ans.
The remittances can be made in any freely convertible foreign currency equivalent to USD
200,000 in a financial year.
Q. 48. In the past resident individuals could invest in overseas companies listed on a
recognised stock exchange abroad and which has the shareholding of at least 10
per cent in an Indian company listed on a recognised stock exchange in India. Does
this condition still exist?
Ans.
Investment by resident individual in overseas companies is subsumed under the Scheme
of USD 200,000. The requirement of 10 per cent reciprocal shareholding in the listed Indian
companies by such overseas companies has since been dispensed with.
III.
Guidelines for Financial Intermediaries offering special schemes, protection under
the Scheme.
Q. 49. Are intermediaries expected to seek specific approval for making overseas
investments available to clients?
Ans.
Banks including those not having operational presence in India are required to obtain prior
approval from Reserve Bank for soliciting deposits for their foreign/overseas branches or
for acting as agents for overseas mutual funds or any other foreign financial services
company.
Q.50. Are there any restrictions on the kind/quality of debt or equity instruments an
individual can invest in?
Ans.
No ratings or guidelines have been prescribed under the Liberalised Remittance Scheme
of USD 200,000 on the quality of the investment an individual can make. However, the
individual investor is expected to exercise due diligence while taking a decision regarding
the investments which he or she proposes to make.
Q. 51. Whether credit facilities in Indian Rupees or foreign currency would be permissible
against security of such deposits?
Ans.
No. The Scheme does not envisage extension of credit facility against the security of the
deposits. Further, the banks should not extend any kind of credit facilities to resident
individuals to facilitate remittances under the Scheme.
Q. 52. Can bankers open foreign currency accounts in India for residents under the
Scheme?
Ans.
No. Banks in India cannot open foreign currency accounts in India for residents under the
Scheme.
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Q. 53. Can an Offshore Banking Unit (OBU) in India be treated on par with a branch of the
bank outside India for the purpose of opening of foreign currency accounts by
residents under the Scheme?
Ans.
No. For the purpose of the Scheme, an OBU in India is not treated as an overseas branch
of a bank in India.
General Information
For further details/guidance, please approach any bank authorised to deal in foreign exchange or
contact Regional Offices of the Foreign Exchange Department of the Reserve Bank.
1
A ‘person resident in India’ is defined in Section 2(v) of FEMA, 1999 as :
A person residing in India for more than one hundred and eighty-two days during the course of the
preceding financial year but does not include –
(A) a person who has gone out of India or who stays outside India, in either case - for or on taking
up employment outside India, or for carrying on outside India a business or vocation outside
India, or for any other purpose, in such circumstances as would indicate his intention to stay
outside India for an uncertain period;
(B) a person who has come to or stays in India, in either case, otherwise than – for or on taking up
employment in India, or for carrying on in India a business or vocation in India, or for any other
purpose, in such circumstances as would indicate his intention to stay in India for an uncertain
period any person or body corporate registered or incorporated in India, an office, branch or
agency in India owned or controlled by a person resident outside India, an office, branch or
agency outside India owned or controlled by a person resident in India;
155
Annexure-32
Exemption to specified goods imported for display or use at any specified event such as
meetings, exhibitions, fairs or similar show or display.
Notification No. 157/90-Customs dated 28-3-1990
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts the goods described in Schedule I annexed hereto, when imported into
India for display or use at any event specified in Schedule II or Schedule III, from the whole of the
duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act,
1975 (51 of 1975) and from the whole of the additional duty leviable thereon under section 3 of the
said Customs Tariff Act, subject to the conditions that :(1) the event specified in Schedule II is being held in public interest and is sponsored or
approved by the Government of India or the India Trade Promotion Organisation;
(2) the said goods are imported under an ATA Carnet issued in accordance with the Customs
Convention on ATA Carnet for temporary admission of goods (hereinafter referred to as
the ATA Carnet) and the Carnet is guaranteed by the Federation of Indian Chamber of
Commerce & Industry, which has been appointed as the guaranteeing association for
ATA Carnet in India (hereinafter referred to as the Federation);
(3) the said goods in all respects conform to the description, quantity, quality, value and
other specifications given in the ATA Carnet duly certified by the Customs authorities at
the country of exportation;
(4) the said goods shall be exported within a period of six months from the date of importation:
Provided that where the goods are exported within the said period of six months and
again re-imported, the period of six months shall be computed from the date of first
importation;
Provided further that when the Central Government is satisfied that it is necessary in the
public interest so to do, it may extend the said period of six months by a further period
not exceeding six months;
(5) in the event of failure to export the goods within the period specified in condition (4), the
customs duty leviable on the goods as on the date of clearance shall be paid by the
Federation:
Provided that the Federation shall not be liable to pay the customs duty in cases where the
said goods are sold in exhibitions or fairs or otherwise disposed of in India on payment of customs
duty with the prior approval of the Government of India in the Department of Revenue.
2. Nothing contained in this notification shall apply to goods imported through the medium of
post.
3.
This notification shall come into force on the 1st day of May/1990.
SCHEDULE I
(a) Goods intended for display or demonstration.
(b) Goods intended for use in connection with the display of foreign products, including -
156
(i)
goods necessary for the purpose of demonstrating machinery or apparatus to be
displayed:
(ii)
construction and decoration material including electrical fittings, for the temporary
stands of foreign exhibitors:
(iii) advertising and demonstration material which is demonstrably publicity material for
the goods displayed, for example, sound recording, films and lanterns, slides and
apparatus for use therewith :
(iv) equipment including interpretation, apparatus, sound recording apparatus and films
of an educational, scientific or cultural character intended for use at international
meetings conferences or congresses.
SCHEDULE II
EVENTS
1.
Trade, industrial, agricultural or crafts exhibition, fair, or similar show or display.
2.
Exhibition or meeting which is primarily organised for a charitable purpose.
3.
Exhibition or meeting which is primarily organised to promote any branch of learning, art,
craft, sport or scientific, educational or cultural activity to promote friendship between peoples,
or to promote religious knowledge or worship.
4.
Meeting of representatives of any international group of organisations.
5.
Representative meeting of an official of commemorative character.
Explanation:- The events specified in this Schedule do not include exhibitions organised for private
purposes in shops or business premises with a view to promote the sale of foreign goods.
SCHEDULE-III
(EVENTS)
Display or demonstration before any department before any department of Central Government
or a State Government or a Union Territory Administration.
Meeting, conference or congress organized by any company or organization.
Notification no. 157/90-Cus., dated 28-3-1990 as amended by Notification No. 66/95-Cus.,
dated 16-3-1995 and No.24/2002 dt.01.03.2002
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Annexure-33
FREQUENTLY ASKED QUESTIONS ON CARNET
Q.
What options do I have if I am taking goods out of the country and planning to return them?
A.
All countries have procedures allowing for the temporary importation of goods for across their
borders. Such importations are generally valid for less than 12 months. Importers may choose
from three options when considering a temporary importation:
Duty refund, temporary importation under bond (TIB), and Carnet.
Duty refund is the process by which an importer registers the goods at the time of entry, and
deposits the applicable duties and taxes. In Europe, duty and taxes range from 20-30%,
Australia 50%, China 40%, of the value of the goods. At the time of departure, the exporter
presents the goods and appropriate paperwork to a customs inspector. Exporters can expect
to receive a full refund of the duties and taxes posted at some future point. (Refunds are
generally made 2-6 months after departure. Payments are made in local currency.)
To use a TIB, importers are required to secure the TIB from a customhouse broker at the time
of entry into the foreign country. The purchase of a TIB is required for each country visited on
every trip. Fees for TIBs vary widely.
Carnets: May be used for unlimited exits from and entries into the India and foreign countries;
are accepted in over 67 Countries worldwide; eliminate value-added taxes (VAT), duties, and
the posting of security normally required at the time of importation; and simplify customs
procedures. Carnets allow temporary exporters to use a single document for all customs
transactions, make arrangements in advance, and at a predetermined cost. Carnets facilitate
reentry into the India by eliminating the need to register goods with Indian Customs at the time
of departure.
Q.
What is the origin of the ATA Carnet System?
A.
To encourage world trade by reducing the obstacles caused by varying national customs
regulations, the Customs Co-operation Council, now the World Customs Organization,
adopted in December, 1961, the “Customs Convention on the ATA Carnet for the Temporary
Admission of Goods.” Carnets are issued and guaranteed by national groups, which administer
the ATA Carnet System under a set of conditions established by the International Bureau of
Chambers of Commerce (IBCC), now called World Chambers Federation (WCF). The WCF
is sponsored by the International Chamber of Commerce (ICC) in Paris. Customs authorities
in over 67 Countries accept the Carnet as a guarantee that all duties and taxes will be paid if
the Carnet is misused.
Q.
What goods can be covered by a carnet ?
A.
Just about any temporary import that comes under three broad categories: commercial
samples used for demonstration or as sales tools; professional equipment, which may be
anything from scientific apparatus to theatrical costumes, surgical instruments to musical
instruments, TV cameras to live horses; fairs and exhibitions.
The main requirement is that what goes in must come out - the goods must not be sold,
given away or otherwise disposed of while in the foreign country. For this reason, you
cannot include consumable items that will be used or handed out while in the foreign
country - such as brochures, cleaning materials or feed for horses.
Q.
What does the carnet consist of?
A.
The carnet customs document can consist of just a few or several pages, depending on the
158
number of items you are transporting and countries you’re going to do business in or pass
through. For example, a symphony orchestra on tour may have pages of items listed and a
collection of “vouchers”, but an executive off to a conference may have only 3 or 4 items and
one set of vouchers.
There are two vouchers for each country on the itinerary, one to give to the customs officer
when entering, and one for leaving the country (whether from the same location or another
exit point). There are also two vouchers to present to customs when leaving and returning to
India.
Q.
How does the carnet system work?
A.
Carnets are issued and managed by chambers of commerce throughout the world. The
terms and conditions of this arrangement are enforced through written agreements between
members and the World Chambers Federation - WCF (Until 2001, the International Bureau
of Chambers of Commerce - IBCC) in Paris. India has been a member of the carnet system
since 1989.
Q.
What countries accept carnets now?
A.
The majority of countries India does business with are members of the carnet system now,
and more countries are joining every year.
Q.
Do I have to be a Member of FICCI to have a Carnet?
A.
No. But there will be a discount of Rs. 2,500/- on processing fee.
Contact our Membership Team to enquire about the benefits of being a member of FICCI.
Q.
Can I Put Consumable Goods On a Carnet?
A.
No. Everything on a Carnet must be returned back to India.
Q.
What Information Do You Require?
A.
Apart from your company details the most important part of a Carnet is the List of Goods,
which should be comprehensive and contain as much information for Customs that will enable
them to readily identify the items. Marks and numbers, where they exist, are mandatory.
Q.
Can I Get ‘Extra Vouchers’?
Yes. Additional vouchers can be obtained from the issuing office with a repeat fee payable.
Q.
Can I Add Extra Items To The Carnet List?
No. Once a Carnet has been issued no extra item can be added to the list of goods.
Q.
How specific do the descriptions on the general list need to be?
Customs authorities have the right to stop goods from entering its borders (seizure of goods,
etc. ) if the description is not adequate enough. Items on the general list should be as descriptive
as possible; to avoid any delays, include serial numbers or model numbers whenever possible.
Q.
How long is a carnet valid?
A.
One year from the date of issue. Within this year, a carnet holder can visit as many countries
in the system as he/she wishes, and enter and leave India as often as he/she wishes. All
goods listed on the carnet must be returned to India by the expiry date, or prior to any assigned
date(s) upon importation into a foreign country.
159
Q.
Who in my company should sign section “F. Obligation” on the application and the General
List?
A.
Someone who possesses the authority to obligate the company to payment of duties and
taxes should they come due.
Q.
Our carnet was lost or misplaced. What can we do ?
A.
You can obtain a duplicate Carnet which will have the same details as the original, once again
a repeat fee and security will apply. Alternatively, the goods covered by the lost or stolen
Carnet may be entered to temporary importation.
Q.
How quickly will the security deposit be returned or cancelled?
A.
The security is returned or cancelled when the carnet documents have been returned to the
Federation of Indian Chambers of Commerce and Industry (FICCI) and there is acceptable
proof that the goods have been returned to India. FICCI may hold the security until all claims
(if any) are settled, or until the claim period is over if a carnet is deemed problematic
Q.
Why must a security deposit be provided?
A.
This is a requirement of the ATA Carnet Convention. The Federation of Indian Chambers of
Commerce and Industry (FICCI), as the national guaranteeing association in India, guarantees
the payment of duties and taxes to customs (both domestic and foreign) authorities that
present valid claims. Security deposits provide the ATA system with financial viability.
Q.
How long does it take to get a carnet?
A.
You should allow at least one working day, from the time your application reaches FICCI.
Rush processing (less than 72 hours), is also available for a surcharge).
Q.
Can I sell goods off a carnet?
A.
Carnets should be used for goods NOT intended for sale. However, it is possible to sell goods
off a Carnet. In addition to the payment of duties and taxes, goods sold off a Carnet are
subject to a penalty equal to 10% of the amount of the duties and taxes. A FICCI ‘handling fee’
may also apply. It is recommended that you contact a local Chamber office to determine the
procedure best suited to your circumstances. Some countries, e.g. UK, tightly control the
sale of goods off Carnet. Generally, local customs will request that the goods and Carnet be
brought to the customs office prior to Carnet expiration so that the Carnet may be properly
discharged, and duties, taxes and penalties paid.
Be sure to obtain an itemized customs receipt noting the items sold, amount paid, and Carnet
number. Send the original Carnet and a copy of the customs receipt to FICCI. Be sure to
retain a clear copy of the Carnet for your records.
Q.
What Happens If My Goods Are Lost Or Stolen?
A.
If goods covered by a Carnet are lost or stolen, the matter should be immediately reported to
the customs authorities in that country where it occurred, together with a police report for
insurance purposes. Such Goods will become liable to customs duties and/or taxes.
Q.
Can My Goods Be Destroyed Under Customs Control?
A.
Some countries that are party to the ATA Convention may allow goods to be destroyed under
Customs control. This means that goods not returning to India can still result in a regularized
Carnet.
160
Q.
Are there any customs prohibitions and restrictions?
A.
The use of an ATA Carnet replace only normal customs documentation and security in the
country into which goods are imported. ATA Carnet does not absolve the holder from observing
the Customs regulations of the countries operating the scheme, e.g. import and export
prohibitions or restrictions, Licensing, Foreign Exchange Control etc.
Q.
What Value Do I Quote?
A.
The Carnet is a commercial document and as such values shown must reflect the current
retail value in India
Q.
Can it be used by anybody other than the Carnet Holder?
A.
It may be used by anybody provided the user has a letter from the named holder authorizing
such use. The holder may also allow an agent to handle the carnet through customs on his
behalf provided the Agent holds a Letter of Authority. In either eventuality, it is important that
Box B on the Green Front Cover and vouchers contains the words, “Any authorised
representative”.
Q.
Some items on my Carnet will travel to country A and others to country B a week later. Do I
need multiple Carnets?
A.
Not necessarily, split shipments are possible. Depending on the time lapse between the two
shipments a second Carnet may be advisable.
Q.
When do I return the Carnet?
A.
The Carnet should be returned to FICCI after its final use or immediately after its expiration
whichever comes first.
Q.
To where do I return the Carnet?
A.
The Carnet holder should make and keep a clear copy of the whole Carnet booklet (all used
and even un-used sheets), and return the original to FICCI.
Q.
My Carnet was never used. Do I still have to return it?
A.
Yes, all Carnets must be returned even if they were never used. Carnets that are returned to
FICCI will be considered ‘open’ and thus, the associated security deposit will remain in effect
until the time during which a customs claim may be submitted to FICCI has ended.
Q.
My Carnet was never used. Do I get refund of Processing Fee?
A.
If Carnet is returned unused within a week from the date of issue, Rs. 10,000/- will be deducted
from the processing fee to defray our secretarial expenses.
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Annexure-34
Re-import of goods exported under duty drawback rebate of duty or under bond —
Exemption
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 Ministry of
Finance, (Department of Revenue), No. 97/95-Customs, dated the 26th May, 1995 the Central
Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the
goods falling within any Chapter of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975)
and specified in column (2) of the Table hereto annexed (hereinafter referred to as the said Table)
when re-imported into India, from so much of the duty of customs leviable thereon which is specified
in the said First Schedule, the additional duty leviable thereon under section 3 of the said Customs
Tariff Act and special duty of customs leviable under sub-section (1) of section 68 of the Finance
(No. 2) Act, 1996 (33 of 1996), as is in excess of the amount indicated in corresponding entry in
column (3) of the said Table.
TABLE
Sl. No.
Description of goods
(1)
(2)
1.
Goods exported -
Amount of duty
(3)
(a) under claim for drawback of any
customs or excise duties levied
by the Union
Amount of drawback of customs or excise
duties allowed at the time of export
(b) under claim for drawback of any
excise duty levied by a State
Amount of excise duty leviable by State at
the time and place of importation of the
goods
(c) under claim for rebate of Central
excise duty
Amount of rebate of Central excise duty
availed at the time of export
(d) under bond without payment of
Central excise duty
Amount of Central excise duty not paid
(e) under duty exemption scheme
(DEEC) or Export Promotion
Capital Goods Scheme (EPCG)
Amount of excise duty leviable at the time
and place of importation of goods and
subject to the following conditions
applicable for such goods (I) DEEC book has not been finally closed
and export in question is delogged from
DEEC book.
(II) In case of EPCG scheme the period of
full export performance has not expired
and necessary endorsements regarding
reimport have been made.
(III) The importer had intimated the details
of the consignment re-imported to the
Assistant Commissioner of Central
Excise in charge of the factory where
the goods were manufactured and to
the licen- sing authority regarding the
fact of re-importation and pro- duces a
162
dated acknowledge- ment of such
intimation at the time of clearance of
goods.
(IV) The manufacturer-exporters who are
registered with Central Excise
Department may be permitted
clearance of such goods without
payment of Central Excise duty under
transit bond to be executed with the
customs authorities, such bond will be
cancelled on the production of
certificate issued by Central Excise
authorities about receipt of re-imported
goods into their factory.
2.
3.
Goods, other than those falling under
Sl. No. 1, exported for repairs abroad
Duty of customs which would be leviable if
the value of re-imported goods after repairs
were made up of the fair cost of repairs
carried out including cost of materials used
in repairs (whether such costs are actually
incurred or not), insurance and freight
charges, both ways,
Goods other than those falling under
Sl. Nos. 1 and 2 Nil.
Provided that the Assistant Commissioner of Customs is satisfied that (a) the goods [other than the goods exported under the Duty Exemption Scheme (DEEC) or the
Exports Promotion Capital Goods Scheme (EPCG)] are re-imported within three years after
their exportation or within such extended period, not exceeding two years, as the Commissioner
of Customs may on sufficient cause being shown for the delay, allow, and in the case of
goods exported under the Duty Exemption Scheme (DEEC) or the Export Promotion Capital
Goods Scheme (EPCG), re-importation of such goods takes place within one year of
exportation or such extended period not exceeding one more year as may be allowed by the
Commissioner of Customs on sufficient cause being shown;
(b) the goods are the same which were exported;
(c) in the case of goods falling under Sr. No. 2 of the Table there has been no change in
ownership of the goods between the time of export of such goods and re-import thereof :
Provided further nothing contained in this notification shall apply to re-imported goods
which had been exported (a) by a hundred percent export-oriented undertaking or a unit in a Free Trade Zone as defined
under section 3 of the Central Excise Act, 1944 (1 of 1944);
(b) from a public warehouse or a private warehouse appointed or licensed, as the case may
be, under section 57 or section 58 of the Customs Act, 1962 (52 of 1962).
Explanation. - For the purposes of this notification, the goods shall not be deemed to be the same
if these are re-imported after being subjected to re-manufacturing or reprocessing through melting,
recycling or recasting abroad.
[Notification No. 94/96-Cus., dated 16-12-1996]
163
Annexure-35
Notification No. 158/95-Cus., dated 14-11-1995.
Reimported Indian goods and parts thereof (whether of Indian or foreign manufacture)
when imported for repairs, reconditioning, reprocessing, remaking or similar other process
examples.
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 Ministry of Finance, Department of Revenue notification
No. 98/95, dated 26th May, 1995 the Central Government, being satisfied that it is necessary in the
public interest so to do, hereby exempts goods falling within the First Schedule to the Customs
Tariff Act, 1975 (51 of 1975) and for the purpose specified in Column (2) of the Table hereto annexed,
when re-imported into India from the whole of the duty of customs leviable thereon which is specified
in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the
additional duty leviable thereon under section 3 of the said Customs Tariff Act, subject to the
conditions laid down in the corresponding entry in Column (3) of the said Table.
TABLE
S.No. Description of goods
Conditions
(1)
(2)
(3)
1.
Goods manufactured in India and
parts of such goods whether of
Indian or foreign manufacture and
re-imported into India for repairs
or for reconditioning.
Goods manufactured in India and
re-imported for
(a) reprocessing; or
(b) refining; or
(c) re-marking; or
(d) subject to any process similar
to the processes referred to in
clauses (a) to (c) above.
1.
2.
Such re-importation takes place within 3
years from the date of exportation;
2. Goods are re-exported within six months of
the date of re-importation or such extended
period not exceeding a further period of six
months as the Commissioner of Customs
may allow;
3. The Assistant Commissioner of Customs or
Deputy Commissioner of Customs is
satisfied as regards identity of the goods;
4. The importers at the time of importation
executes a bond undertaking to(a) export the goods after repairs or
reconditioning within the period as stipulated;
(b) pay, on demand, in the event of his failure to
comply with any of the aforesaid conditions,
an amount equal to the difference between
the duty levied at the time of re-import and
the duty leviable on such goods at the time of
importation but for the exemption contained
herein.
1. Such re-importation takes place within one
year from the date of exportation.
2. Goods are re-exported within six months of
the date of re-importation or such extended
period not exceeding a further period of six
months as the Commissioner of Customs
may allow;
164
3.
The Assistant Commissioner of Customs or
Deputy Commissioner of Customs, is
satisfied as regards identity of the goods.
4. The importer executes a bond to the effect (a) that such reprocessing, refining or remaking
or similar processes shall be carried out in
any factory under Central Excise control
following the procedure laid down under rule
173MM of the Central Excise Rules, 1944 or
in a Customs bond under provisions of
section 65 of the Customs Act, 1962 (52 of
1962);
(b) that he shall maintain a due account of the
use of the said re-imported goods received in
the premises specified in item (a) above and
shall produce the said accounts duly certified
by the officer of Central Excise or Customs,
as the case may be, in-charge of the factory
or the bonded premises to the effect that the
goods tendered for re-import are
reprocessed, refined or remade or subjected
to any process, as the case may be, from the
said re-imported goods;
(c) that in case any waste or scrap arising during
such operations and the importer agrees to
destroy the same before the officer of Central
Excise or Customs, as the case may be, or
to pay on such waste or scrap the
appropriate duties of customs as if such
waste or scrap is imported;
(d) that he shall pay, on demand, in the event of
his failure to comply with any of the aforesaid
conditions, an amount equal to the difference
between the duty leviable on such goods at
the time of importation but for the exemption
contained herein.
Provided that in case of reprocessing, refining or
remaking or similar process, if any loss of
imported goods is noticed during such operations,
the quantity of such loss shall be exempted from
the whole of the duties of customs (basic customs
duty and additional customs duty, etc.) subject to
the satisfaction of the Assistant Commissioner of
Customs or Deputy Commissioner of Customs
that such loss has occurred during such
operations.
Notification No. 158/95-Cus., dated 14-11-1995.
165
Annexure-36
FOREIGN TRADE (EXEMPTION FROM APPLICATION OF RULES IN CERTAIN CASES)
ORDER, 1993
Ministry of Commerce
Notification S.O. No. 1056 (E), dated 31-12-1993
In exercise of the powers conferred by section 3, read with section 4, of the Foreign Trade
(Development and Regulation) Act, 1992 (22 of 1992) and in supersession of the Imports (Control)
Order, 1955 and the Exports (Control) Order, 1988, except as respects things done or omitted to
be done before such supersession, the Central Government hereby makes the following Order,
namely :1.
Short title and commencement. — (1) This Order may be called the Foreign Trade
(Exemption from application of Rules in certain cases) Order, 1993.
(2) It shall come into force on the date of its publication in the Official Gazette.
2.
Definitions. — In this Order, unless the context otherwise requires, —
(a) “Act” means the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992);
(b) “Import Trade Regulations” means the Act and the rules and order made thereunder and
the export and import policy;
(c) “Rules” means the Foreign Trade (Regulation) Rules, 1993;
(d) Words and expressions used in this Order and not defined but defined in the Act shall
have the meanings respectively assigned to them in the Act.
3.
Exemption from the application of rules. — (1) Nothing contained in the Rules shall apply
to the
(h) by the person as passenger baggage to the extent admissible under the Baggage
Rules for the time being in force except quinine exceeding five hundred tablets or 1/
3 Ib powder or one hundred ampoules :
Provided that in the case of imports by a tourist, articles of high value whose re-export is
obligatory under rule 7 of the Tourist Baggage Rules,1978 shall be re-exported on his leaving
India, failing which such goods shall be deemed to be goods of which the import has been
prohibited under the Customs Act, 1962 (52 of 1962):
Provided further that the import of gold in any form including ornaments (but excluding
ornaments studded with stones or pearls) will be allowed as part of baggage by passengers
of Indian origin or a passenger holding a valid passport issued under the Passports Act, 1967
(15 of 1967) subject to the following conditions, namely :(a) that the passenger importing the gold is coming to India after a period of not less than six
months of stay abroad;
(c) import duty on gold shall be paid in convertible foreign currency; and
(d) there will be no restriction on sale of such imported gold;
166
Annexure 37(i)
Circular No. 74/95-Cus.
dated 27/6/95
F. No. 495/29/93 - Cus. VI
Government of India
Ministry of Finance
Department of Revenue, New Delhi
Subject : Gold/ Silver Imports Scheme - Clarification regarding improbability of gold/ silver coins
- regarding.
The undersigned is directed to refer to Ministry’s letter of even number dated 31st August,
1994, on the above subject, and to say that the Department of Economic Affairs have now informed
that they have re-examined the matter in consultation with the Reserve Bank of India. It has been
informed by the Reserve Bank of India that there would be no restriction under FERA on import of
foreign coins (whether current or non-current) made of gold or any other metal. The same holds
good in respect of commemorative coins also.
2. In view of the present clarification given by the Reserve Bank of India, Ministry’s earlier instructions
vide letter of even number dated 31st August, 1994 stand modified and the eligible passengers
may be allowed to import gold/silver in any form, including coin (whether current, non- current or
commemorative) but excluding jewellery studded with stones or pearls subject to fulfillment of
other conditions mentioned in the Notification Nos. 171/ 94-Cus. or 172/94-Cus. both dated 30.9.94,
as the case may be.
(T.R. Kapur)
Under Secretary (Cus. VI)
167
Annexure 37(ii)
Sample of Jewellery & precious stones owned & carried by a pax for which a export
certificate is to be issued
Regd. F. No. CAT VIII-151 of 1999-2000
U/s 34 AB of Wealth Tax Act.
No. UG/VL/05
Date 18.11.2010
Valuation as on 18.11.2010
The Jewellery & Precious stones articles owned by __________ W/o Mr. _________ Residence
of & holder of Indian PP No. _________ dated _________ issue at_________________
Tel No.
S.No.
Gross Wt.
Gold Wt.
METAL
DIAMOND Wt.
COLOUR STONES
TOTAL
In Gms
In Gms
VALUE
In Cts
Value
In Cts
Value
VALUE
One Bracelet with Diamond
Polki, Colour Stone
in 18 Kt Gold
78.500
53.00
79,500
4.50
6,750
45.00
6750
93,000
2
One Kada in 24 Kt gold
61.120
28.000
56,000
56,000
3
One Pandent Set in Silver
with Colour stone mala
55.130
55.130
2,000
2,000
4
One Pandent set with
Diamond Polki, Stones &
pearls in 18 Kt Gold
136.660
13.500
20,250
15.00
60,000
525.00
26250
106,500
5
One Pandent set with
Diamond Polki, Stones in
22 Kt Gold with earrings
158.500
104.000
190,667
9.40
14,100
230.00
18400
223,667
487.260
253.630
348,417
28.9
80,850
800.00
51,400
480,667
1
Photos
are valued.
Description
(Rupees Four Lakh Eighty Thousand Six Hunded Sixty Seven only)
Note : The value in based on pure gold rate being Rs. 20,000/- Per 10 grams
In hereby declare that:
The information furnished above is true and correct to the best of my knowledge and belief. I have no direct or indirect interest in the
valued. I have Personally inspected in the Jewellery
Umesh Chand Gupta
Govt. Approved Valuer No.
CAT-VIII 151 of 1999-2000
168
Annexure-38
Circular No.37 / 2010-Customs
F. No.520/22/2010-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
159A, North Block,
New Delhi-110001.
24th September, 2010.
To
All
All
All
All
All
All
All
Chief Commissioners of Customs / Customs (Prev).
Chief Commissioners of Customs & Central Excise.
Director Generals of CBEC.
Commissioners of Customs / Customs (Prev).
Commissioners of Customs (Appeals).
Commissioners of Customs & Central Excise.
Commissioners of Customs & Central Excise (Appeals).
Subject: Illegal use of Satellite Phones in India – regarding.
Sir / Madam,
Attention is invited to the existing guidelines of Department of Telecommunications (DOT),
Ministry of Communications and Information Technology, Government of India whereby use of any
kind of satellite phone in India is permissible only after obtaining a licence from the DOT. Presently,
use of specific types of INMARSAT terminal only is permitted by the DOT, while use of ‘Thuraya’
satellite phone in India without specific permission of DOT is illegal. Thus, unauthorized use of a
satellite phone in India attracts penal provisions under section 20 and 21 of the Telegraph Act, 1885
for violation of provisions of section 4 of the said Act.
2.
Instances have come to the notice that satellite phones are being brought into India via
baggage and being used by anti-national elements which poses a serious security
threat. Accordingly, the Board has taken a serious note of unauthorized use of satellite phone in
India after import through passenger baggage. It is, therefore, decided that arriving passengers
importing satellite telephone as baggage shall be required to declare the same to the Customs on
arrival. Furthermore, it is necessary to alert all arriving passengers to their responsibility to make
such declaration.
3.
Any such satellite phone declared to Customs shall be allowed clearance subject to
production of permission for use from DOT, Government of India. Satellite phones imported for
use in India without a valid permission of DOT may be detained and appropriate action in accordance
with the law may be initiated.
4.
It has been decided by the Ministry of Home Affairs that a display Board will be placed at the
Arrival side of the Immigration at all the ICPs regarding obligation of the travelers to declare whether
they are carrying any satellite phone, to the Customs authorities. In this regard, the Customs part
of the Arrival Card and Customs part of the ‘Important Instructions’ to be filled in by arriving
passengers at International airports is also being revised by MHA.
5.
It is desired that Deputy / Assistant Commissioner on duty at the Airport should remain
vigilant to check against any attempt to import Satellite phones without declaration to Customs.
169
6.
These instructions should be strictly complied with and any lapse will be viewed seriously.
7. Difficulty, if any, in implementation of aforementioned instructions may be immediately brought
to the notice of the Board.
Yours faithfully,
( R. P. Singh )
Director (Customs)
170
Annexure-38 (ii)
DIRECTORATE OF REVENUE INTELLIGENCE
‘D’ BLOCK, INDRAPRASTHA BHAWAN (7TH FLOOR)
NEW DELHI-110002
DRI F.No. 29/XI/2/2010-CI
Date of the 28th February, 2011
Alert Circular No. 1/2011-CI
Subject: Illegal import of radio frequency equipment especially cellular
housters/repeaters from Chine.
It has been observed that certain importers are illegally importing radio frequency equipment
especially cellular boosters/repeaters from China. Cellular boosters/repeaters, which come under
the category of Wireless Transmiting Equipment, require Equipment type Approval Certificate from
International Organization/Agencies and permission from the Epartment of Telecommunication
for imports. It is possible that importers may try to import such goods in the absence ofthe required
certification/license. there is also a probability of the import taking place by mis-declaration of
description.
The above modus operandi is being brought to the notice of all concerened. All the formations
are advised to be vigilant. DRI may be kept informed of any developments in this regards.
(Arti A Srinivas)
Addition Director (CI)
171
Annexure-38 (iii)
GOVERNMENT OF INDIA
MINISTRY OF COMMUNICATIONS
DEPARTMENT OF TELECOMMUNICATION
WESTERN REGIONAL LICENCE OFFICE
GORAI ROAD, BORIVALI (W), MUMBAI-91
L-1404/15/2011-WRLO-11/159
Dated-09/09/2011
To
The Joint Commissioner of Customs
CSI Airport
Mumbai
Subject: Clearance of radio controlled bellcopter at C.S.I. Airport reg.
Ref. Your letter No.-MWH/Misc/04/2011 dated 19/08/2011
Sir,
Kindly refer to the above mentioned letter, it is to state that the helicopters operating other
than 27 MHz band can be destroyed.
However, Helicopters operating in 2.4-2.4835 GHz band can be examined on case by case
basis subject to submission of technical specifications.
Yours faithfully
(Anil Kumar)
Joint Wireless Advisor, WPC
Ministry of Communication & IT
Regional Licencing Office, Mumbai
172
Annexure-38 (iv)
MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY
(WIRELESS PLANNING AND COORDINATION WING)
NOTIFICATION
New Delhi, the 28th January, 2005
C.S.R. 45 (E):- In exercise of the powers confierred by section 4 and 7 of the Indian Telegraph
Act, 1885 (13 of 1885) and sections 4 and 10 of the Indian Wireless Telegraphy Act, 1933 (17 of
1933) and in supersession of the Indoor Use of low power Equipment in the frequency band 2.4
GHz to 4.4835 GHz (Exemption from Licensing Requirement) Rules, 2004, except as respects
things done or omitted to be done before such supersession, the Central Government hereby
makes the following rules, namely:1.
Short title and commencement:(1) These rules may be called the Use of low power Equipment in the frequency band 2.4
GHz to 2.4835 GHz (Exemption from Licensing Requirement) Rules, 2005.
(2) They shall come into force on the date of their publication in the Official Gazette.
2.
Definition: In this rules, unless the context otherwise requires,
(a) “Act” means the Indian Telegraph Act, 1885 (13 of 1885);
(b) “Effective Radiated Power” includes the gain of the antenna, if any;
(c) words and expressions used in these rules and not defined but defined in the Act and the
Indian Wireless Telegraphy Act, 1933 (17 of 1933), shall have the same meaning
respectively as assigned to them in those Acts.
3.
Use of wireless equipment in the band 2.4 GHz to 2.4835 GHz.- Notwithstanding anything
contained in any law for the time being in force, no licence shall be required by any person to
establish, maintain, work, possess or deal in any wireless equipment, on non-interference,
non-protection and shared (non-exclusive) basis, in the frequency band 2.4 GHz to 2.4835
GHz with the transmitter power, Effectie Radiated Power and height of antenna as specified
in the Table below, namely:TABLE
Maximumout power of
transmitter
(1)
Maximum Effective
Radiated Power
(2)
Height of Antenna
1 W (30 dBm) in Spread
of 10 MHz or higher
4W (36 dBm)
Within 5 meters above
the roof of existing
authorized building
173
(3)
4.
Standing Advisory Committee on Frequency Allocations clearance:- In case the top of
Antenna is more than 5 metres beyond the existing roof top, then Standing Advisory Committee
on Frequency Allocations clearance as applicable to antenna needs to be obtained for the
antenna for outdoor applications.
5.
Interference:- The effect of unwanted energydueto one or a combination of emissions,
radiations or induction upon reception in a radio communication system, manifested by any
performance degradation, misinterpretation, or loss of information which could be extracted
in the absence of such unwanted energy. In case where any person to whom a licence has
been issued under section 4 of the Act, informs that his licensed system is getting harmful
interference from any other radio communication system exempted under these rules, the
use of such unlicensed Wireless equipment shall be discntinued forthwith.
6.
Equipment:(1) The wirless equipment shall be type approved and designed and constructed in such a
manner that the bandwidth of emission and other parameters shall conform to the limits
specified in the Table referred to in rule 3.
(2) The application for obtaining equipment type approval shall be made to the Central
Government in such form as may be specified by that Government in this behalf.
[No.R-11014/17/2004-LR (Pt.)
Ashok Kumar
Joint Wireless Advisor
174
Annexure-38 (v)
MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY
(WIRELESS PLANNING AND COORDINATION WING)
NOTIFICATION
New Delhi, the 19th January, 2007
C.S.R. 38 (E):- In exercise of the powers confierred by section 4 and 7 of the Indian Telegraph
Act, 1885 (13 of 1885) and sections 4 and 10 of the Indian Wireless Telegraphy Act, 1933 (17 of
1933), the Central Government hereby makes the following rules, namely:1.
Short title and commencement:(1) These rules may be called the Outdoor Use of Wireless Equipment (Exemption from
Licensing Requirement) Rules, 2007.
(2) They shall come into force on the date of their publication in the Official Gazette.
2.
Definition: In this rules, unless the context otherwise requires,
(a) “Act” means the Indian Telegraph Act, 1885 (13 of 1885);
(b) “Effective Radiated Power” includes the gain of the antenna, if any;
(c) words and expressions used in these rules and not defined but defined in the Act and the
Indian Wireless Telegraphy Act, 1933 (17 of 1933), shall have the same meaning
respectively as assigned to them in those Acts.
3.
Use of wireless equipment in the band 5.825 GHz to 5.875 GHz.- Notwithstanding anything
contained in any law for the time being in force, no licence shall be required by any person to
establish, maintain, work, possess or deal in any wireless equipment for the purpose o low
power Wireless Access System, including Radio Local Area Networks, in the frequency band
5.825 to 5.875 GHz with the Maximum Effective Isotropic Radiated Power and maximum
power transmitter as specified in the Table below, namely:TABLE
4.
Frequency
band
Maximum power of
transmitter
Maximum Effective
Isotropic Radiated Power
(1)
(2)
(3)
5.825 to 5.875 Ghz
of 10 MHz or higher
1 W (30 dbm) in spread
of 10 MHz or higher
A Watt peak or 36 dbm
Interference:- The effect of unwanted energydueto one or a combination of emissions,
radiations or induction upon reception in a radio communication system, manifested by any
performance degradation, misinterpretation, or loss of information which could be extracted
in the absence of such unwanted energy, where any person whom a licence has been
issued under section 4 of the Act, informs that his licensed system is getting harmful
interference from any other radio communication system exempted under these rules, the
175
outdoor user of such unlicenced wireless equipment shall take necessary steps to avoid
interference by relocating the equipment, reducing the power or by, using special type of
antennae and the Central Government may with a view to ensure smooth functioning of the
communication system direct the discontinuance of such Wireless use. Provided that, before
such discontinuation, a reasonable opportunity to explain the circumstances shall be offered
to such unlicensed user of wireless equipment.
6.
Equipment:(1) The wirless equipment shall be type approved and designed and constructed in such a
manner that the bandwidth of emission and other parameters shall conform to the limits
specified in the Table referred to in rule 3.
(2) The application for obtaining equipment type approval shall be made to the Central
Government in such form as may be specified by that Government in this behalf.
[No.R-11014/31/2004-LR]
(M.K. Rao)
Asstt. Wireless Advisor
176
Annexure 39(i)
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve : 17.09.2010
Date of decision: 20.05.2011
+ CM Nos. 11288/2002 and 11290/2002 IN WP(C) No. 2491/2000
PEOPLE FOR ANIMALS ......PETITIONER
Through : Mr. Raj Panjwani, Sr. Advocate with Ms. Sonia Singhani,
Advocate for Petitioner.
VS
UNION OF INDIA & OTHERS ......RESPONDENTS
Through : Mr. Anjana Gosain with Ms. Veronica Mohan, Advocates for
respondent UOI.
Mr. Sushil D. Salwan with Mr.Vinay Tyagi Advocates for
National Riffle Association of India.
Mr. Anshul Tyagi, Advocate for Respondent No.6.
CORAM:
HON’BLE MR. JUSTICE A.K. SIKRI
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
1.
Whether the Reporters of local papers
YES may be allowed to see the judgment?
2.
To be referred to Reporter or not? YES
3.
Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
%
1.
By way of these Interlocutory Applications, the applicants, (i.e. fifth and sixth respondents,
referred to hereafter as such) have sought clarification/modification of order dated 30.09.2010
(hereafter, “impugned judgment”), whereby, inter alia, entry No. 1(3) of Schedule II of the
notification bearing No. GSR 991 (hereafter, the “exempting notification”), dated
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 1 13.07.1962 issued under
sub-clause (vii) of clause (b) of sub-section (i) of Section 2 of the Arms Act, 1959
(hereafter, “the Act”) by the Central Government exempting the air guns, air rifles
and air pistols from all the regulations and controls under the Act, was quashed.
2.
The facts, in brief, which led to the filing of these applications are that the petitioner (hereafter,
“PFA”) preferred a writ petition challenging the above-said notification of the Central Government
on the grounds, inter alia, that although the object of the Arms Act is to preserve public security,
as also maintenance of public order, the basic requirements thereof have been given a gobye by liberalizing the policy of grant of license of arms, which resulted in unhampered
distribution, sale and possession of firearms in the country. The same lead to disastrous
results, in as much as by reason thereof guns were being used for killing or maiming of
177
animals or birds. The petitioner, however, was not against the target practice. The writ petition
was allowed on 30.07.2002.
3.
The applicants herein, i.e. National Rifle Association (respondent no. 5, hereafter, “NRA”) and
Toy Air Gun, Air Rifle, Air Pistol & Pellets Manufacturers (W) Association (respondent no. 6,
hereafter “Manufacturers Association”), claiming to be aggrieved by the impugned judgment
filed separate applications seeking leave to file impleadment application and applications
under Order I, Rule 10 of the C.P.C. seeking impleadment. They also filed applications under
section 151 of the Code seeking stay of the impugned judgment and separate applications
seeking clarification/modification of the impugned judgment.
4.
The applications for stay under section 151 of the Code, being I.A. Nos. 11288/2002 (R5) and
11288/2002 (R6) dated 08.10.2002 and 07.10.2002, respectively were allowed by order of
this Court, dated 01.11.2002. The Court also allowed the respondents applications for leave
to file an application for impleadment and impleadment application and the stay of the impugned
judgment was confirmed the same day, through its order dated 23.07.2003; and Rule D.B.
was issued. Thereafter the hearing in the case could not commence as it was adjourned for
various reasons including on the behest of applicants or sometimes that of the petitioner.
Arguments in the matter finally heard, in these circumstances.
5.
This Court shall now analyze their individual applications seeking clarification/ modification of
the Judgment dated 03.07.2002 are IA Nos. 11290/2002 and 11286/2002, which
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 2 were reserved for judgment
by its last order dated 17.09.2010. The pleadings and the grounds urged in these applications
are almost identical, as a matter of fact even the grammatical errors are same, therefore, the
Court shall take them up simultaneously.
6.
Both the respondents submit that the petitioner had deliberately not impleaded the present
respondents in the original proceedings and impleadment of the Ministry of Home Affairs,
Ministry of Environment and Forest, Director, Animal Welfare, Ministry of Social Justice and
Empowerment and the Animal Welfare Board of India was also not bona fide. It is alleged that
the name of the Chairperson of the petitioner, i.e. Mrs. Maneka Gandhi was deliberately not
disclosed to this Court, as she was also the Minister of Social justice and Empowerment, at
that relevant time. Further, in its two-page counter affidavit, the Ministry of Social Justice and
Empowerment conceded to all the averments in the petition, this it is alleged was due to the
influence of the Minister, being the Chairperson of the petitioner. It is stated that as the
respondents were not impleaded at that relevant time, their case could not be presented
properly nor could the crucial facts and legal issues be brought forth and deliberated.
7.
Further, it is alleged that as a result of the impugned judgment no sports person who is
participating in international events and is less than 18 years of age will be permitted to
participate in shooting events and no minor between the age-group of 10 to 18 years can
possess or hold an air pistol and that it has resulted in a virtual extinction of shooting as a
sport, as far as India is concerned. The Manufacturers Association adds that it has also
resulted in closure of manufacturing industry, for this category of rifles, in India. The respondents
have submitted a brief history of the Act and quoted the following provisions of the Act- Section
2(1)(c), i.e. definition of “Arms”; (e), i.e. definition of “Firearms” and (f), i.e. definition of “Licensing
Authority”; Section 3, i.e. “Licence for acquisition and possession of Firearms and Ammunition”;
Section 5, i.e. “Licence for the manufacture, sale etc. of Arms and Ammunition”; Section 9,
i.e. “Prohibition of acquisition or possession by, or of sale or transfer to, young persons and
certain other persons of Firearms, etc.”; Section 13, i.e. “Grant of Licences”; Section 14, i.e.
“Refusal of Licences”; Section 15, i.e. “Duration and renewal of Licences”; Section 41, i.e.
“Power to exempt”; Section 44, i.e. “Power to make rules” and finally the entry 1(3) of Schedule
2 of Notification in question, i.e. GSR 991.
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CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 3
8.
Further, the respondents also quoted the following provisions of the Wildlife Protection Act,
1972 (hereafter, “WPA”)- Section 2(1), i.e. definition of “animal”; Section 2(16), i.e. definition
of “hunting”; Section 2(35), i.e. definition of “weapon”; Section 9, i.e. “Prohibition of Hunting”;
Section 11, i.e. “Hunting of wild animals to be permitted in certain cases”; Section 12, i.e.
“Grant of permit for special purposes” and certain other sections and finally Section 51, i.e.
“Penalties” and Section 52, i.e. “Attempts and Abetment”. The respondents submit that the
petitioner discussed the provisions of the Act and the WPA, which suited it and did not discuss
some other relevant provisions and has misled the Court. Further, it is alleged that besides
making bald assertions of the exempted rifles being used for killing and maiming small animals
and birds, the petitioner failed to substantiate its averment. The NRA submits that the impugned
judgment has caused grave injustice to it and its members and the sport of shooting, inter
alia, and the Manufacturers Association complains of injury to itself, its members and
thousands of workers, inter alia.
9.
The respondents base their respective applications on the following grounds. It is urged that
this Court should not have inferred (Sic interfered) with the legislative functions, as it does not
have the power to legislate. It is not for the Court to enlarge the scope of a legislation or the
intention of the legislature, when the language of the legislation is plain and that the Court
could not correct or make up any deficiency, if any, in the words used by the statute. Further,
the respondents state that the Courts should be slow in adopting a construction which tends
to make any part of the statute meaningless and that an attempt should be made to reconcile,
as far as possible, so as to advance the remedy intended by the statute and that it is the
primary duty of the Court to give effect to the intention of the legislature as is evident from the
language of the statute and not the will of the judges. It is the Courts duty to give full effect to
the intention of the legislature without scanning its wisdom and without engrafting, adding or
implying anything which is not congenial to or consistent with the legislative intent. Where the
legislature willfully omits to incorporate something, in a subsequent statute or if there is casus
omissus in a statute the language of which is plain and unambiguous, the Courts, it is urged
are not capable of supplying the omission by engrafting into it or introducing what it thinks to
be a general principle of justice and equity. Further, the respondents urge that the power of
exemption vests with the Central Government, in exercise of which the notification (GSR
991) was issued. This Court, it is submitted, while striking down the notification, has usurped
the legislative power and
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 4 rendered the words of the
statute meaningless. The respondents assert that the exclusion of certain weapons under
the Arms Act, in no way defeats any of the provisions or objectives of the WPA.
10. The respondents allege that the petitioner has acted in collusion with the second and third
respondents, misled the Court, suppressed material facts and legal propositions governing
the issue. To substantiate, it is stated that the necessary and proper parties were deliberately
not impleaded. The fact of the Minister of the third respondent ministry and also the Chairperson
of the petitioner at the relevant time of filing the affidavit on Ministrys behalf, was again stressed.
It is submitted that the impugned judgment has unreasonably restricted the professional growth
of the shooters, further stating that- “It is a universal practice and approach that persons who
take up this event, start from early childhood, i.e. age group of 10 years and above and do
target practice with air pistols/air-guns”. The lead pellets used in such pistols are purely dart
items, which are not explosive. Further, such pistols are not used to kill animals, is the
submission of the respondents and that their purpose is squarely to serve persons interested
in the sport of shooting and target practice and that the petitioner has attempted to confuse
the Court into believing that by Sport the implication is Game-hunting or Shikaar.
11. It is urged that prior to 1959, i.e. prior to coming into force of the Act a licence was not required
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for Air Guns/Pistols. The Act was notified on 13.07.1962 to come into force from 01.10.1962
through Notification No. GSR 992. GSR 991 was also issued on 13.07.1962 and entry No.
1(3) of Schedule II excluded Air gun/rifles/Pistols from the licencing policy under the Act. It is
urged that such guns/pistols/rifles were never intended to fall within the scope of the Act. The
petitioners have failed to cite any specific instances of misuse of Air guns/rifles for killing or
maiming birds and animals. Further, the WPA provides for punishment in case of breach of
its provisions. It is submitted that only specific kinds on air rifles and pistols, etc. are excluded
by the exempting notification. Therefore, according to the fifth and sixth respondents such Air
Rifles/pistols/guns would fall in the category of toys. The respondents submit that the petitioner
had failed to place material on record and as such the lack of reasonableness could not be
examined by the Court, in such circumstances it was not proper for the Court to exercise its
jurisdiction under Article 226. Air guns/air rifles/pistols do not fall within the definition of Arms
and/or firearms as defined in the Arms Act, 1959. A Madhya Pradesh High Court decision in
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 5 W.P. No. 7757 of 2006 is cited
in support of the proposition that such rifles/pistols/guns etc. are toys. The petitioners have
not been able to establish any inconsistency between the Arms Act and the Prevention of
Cruelty to Animals Act, 1960 (hereafter, “PCA”) and the WPA.
12. The sum and substance of the respondents arguments can be summarized as under:
i.
The Court should not have overstepped its jurisdiction and conferred upon itself legislative
functions.
ii.
The petitioner has not placed on record any material to show misuse of the air rifles/
pistols/guns for killing or maiming animals.
iii.
The petitioner has failed to show any inconsistency or repugnancy between the provisions
of the Act on one side and the PCA and the WPA on the other.
iv.
The petitioner has acted in collusion with the respondents one to four, especially third
respondent.
v.
Necessary and proper parties were deliberately not impleaded. vi. The WPA provides for
punishments in case of any violations.
vii.
The NRA urges that the impugned judgment has had a crippling effect on the sports of
Shooting and Target Practice.
viii. The Manufacturers Association urges that as a result of the impugned judgment many
industries involved in the manufacturing air rifles/pistols/guns etc. have shut operations.
On these major grounds, inter alia, the respondents base their respective applications.
13. The NRA and the Manufacturers Association had filed applications, being IA no. 11287/2002
and 11285/2002 seeking leave to file respective applications for impleadment. It is noteworthy
that in the said applications, the respondents nowhere disclosed who they were, what was
their locus standi, how they were necessary and proper parties. In their applications under
Order I, Rule 10 of the CPC, the NRA and the Manufacturers Association made bald assertions
that they were concerned and affected parties and that for the purposes of appreciation of
facts and correct interpretation of law their impleadment was essential, without substantiating
how they were necessary and proper parties. In all these applications both, fifth and sixth
respondents submitted almost identical pleadings. The fifth respondent filed its written
submissions and
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 6 urged that since impleadment
is allowed, this Court ought to take the matter afresh and hear the parties on merits of the
case.
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14. In the opinion of this Court such impleadment shall be for the limited purpose of clarification/
modification of impugned judgment and it is not be open to the respondents to ask for a
review of the impugned judgment under the garb of their application for clarification/ modification
of the impugned judgment. Also, such impleadment in a disposed of writ petition, without
disclosure of how the applicants were necessary and proper parties is limited to the case at
hand. This shall not be a precedent for future purposes, as the Code of Civil Procedure
prescribes a procedure for a person aggrieved by an order/judgment, who was not a party to
the proceeding, to come in review. It is also open for such a person to file an application for
clarification/ modification without seeking impleadment. The Court is also of the opinion that
there is no question of either of the applicants claiming to be necessary or proper parties to
the original writ petition, because it questioned the legality and Constitutionality of an exemption
notification. It is settled law (General Manager, South Central Railway v. A.V.R. Siddhanti And
Ors., AIR 1974 SC 1755) that where the legality or vires any rule, regulation, or normative
standard is questioned, the necessary party to such proceeding is the concerned government,
or its statutory agency. Moreover, in the present case, the Court notices that there is no
compulsion to implead parties such as manufacturers or traders, of airguns, since the licenses
issued by the appropriate authorities, for manufacture or trade - in respect of their activities,
or commerce was never in issue. Another aspect, which the Court cannot lose sight of, is
that the writ petition was filed in public interest, and had sought intervention of the Court, to
enforce provisions of the Prevention of Cruelty to Animals Act, 1960, contending that in view
of its enactment, and Indias being a signatory to various International Conventions and treaties,
the impugned exemption notification had lost its legality and legitimacy. In such circumstances,
particularly in the exercise of public interest jurisdiction, to promote ecological standards,
when no discernable impact of Court directions are involved, it is not necessary to array or
implead third parties, such as the present applicants in the writ proceedings.
Provisions of the Arms Act concerning shooting sport.
15. It would now be necessary to briefly discuss the purport and effect of the submissions made
by counsel. Section 3 of the Act enacts a general bar prohibiting persons from acquiring/
possessing firearms, unless they hold a valid licence for the purpose.
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 7 “Section 3. Licence for
acquisition and possession of firearms and ammunition.- (1) No person shall acquire, have in
his possession, or carry any firearm or ammunition unless he holds in this behalf a licence
issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that a person may, without himself holding a licence carry any firearms or ammunition
in the presence, or under the written authority, of the holder for repair or for renewal of the
licence or for use by such holder.
(2) Notwithstanding anything contained in sub-section (1), no person, other than a person
referred to in sub-section (3), shall acquire or have in his possession or carry, at any time,
more than three firearms.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member
of a rifle club or rifle association licenced or recognized by the Central Government using a
point 22 bore rifle or an air rifle for target practice.” Section 9 of the Act deals with “Prohibition
of acquisition or possession by, or sale or transfer to young persons and certain other persons
of fire arms, etc.”; it reads as under:
“9(1) Notwithstanding anything in the foregoing provisions of this Act- (a) no person,(i) who has not completed the age of twenty-one years, or
shall acquire, have in his possession or carry any firearm or ammunition ...... (2)
Notwithstanding anything in sub-clause (i) of clause (a) of sub-section (1), a person who has
181
attained the prescribed age-limit may use under the prescribed condition such firearms as
may be prescribed in the course of his training in the use of such firearms: Provided that
different age-limits may be prescribed in relation to different types of firearms.”
16. What flows on a conjoint reading of the above provisions is that no person can acquire or
possess a firearm, unless he holds a valid licence issued under the provisions of the Act. A
person may carry firearms or ammunition either in the presence of or under express authority
of the licence holder for the limited purpose of repair or for renewal of licence or for such use
by the holder. Section 9(1)(a)(i) prescribes the minimum age of acquiring, possessing or
carrying a fire arm as 21 years. Though sub-section (2) of section 9 opens with a non-obstante
clause, it does not permit grant of licence to a person under the age of 21 years, as in the
opinion of the Court the bar under sub-section (1) is only relaxed for the limited purpose of
permitting use of the firearms in course of training in use of such fire arms, only after attaining
the prescribed age and strictly under prescribed conditions. To give any other construction to
the provision would
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 8 render the purpose redundant
and nugatory. Section 9 (2) has to be read in line with Rule 16 of the Arms Rules, 1962
(hereafter, “the Rules”), which prescribes as under:
16. Age limit for training and target practice.- Any person below the age of sixteen years but not
below the age of 12 years may be allowed to use a firearm for the purposes of training in the
use of such fire-arm in the immediate presence, or under the direct supervision and guidance,
of an adult instructor or the licencee:
Provided that no person below the age of sixteen years shall be allowed to carry any firearms requiring a licence, in public place, except in the immediate presence and supervision
of the person who is lawfully entitled to carry such fire-arms. Explanation- For the purposes of
this rule, an “adult” means a person who has completed the age of twenty-one years.”
Thus, the minimum age for use of any kind of firearm is 12 years. Such use has to be for the
limited purpose of training in the use of such firearm and for persons between the age group
of 12 years to 16 years it has to be strictly under immediate presence, or under the direct
supervision and guidance of an adult instructor or the licencee. Persons above 16 years of
age may use the fire arm for such limited purpose, unsupervised. The proviso to Rule 16
provides that a person under the age of 16 years is prohibited from carrying any fire arms
requiring a licence, in a public place, except in the immediate presence and supervision of the
person who is lawfully entitled to carry such fire arm. This, in the opinion of the Court, has to
be read in conjunction with the proviso of section 3(1), as such a person under 16 years of
age, though may be permitted to carry a firearm in a public place under the immediate presence
and supervision of the person as described in the proviso to Rule 16, he can do so for the
limited purpose as described in proviso to Section 3.
17. Section 13 of the Act deals with the grant of Licences; sub-section (3) lists out cases for
which the licensing authority shall grant a licence mandatorily, it says that:
“Section 13. Grant of Licences- .
(3) The licensing authority shall grant(a) a licence under section 3 where the licence is required(i) by a citizen of India in respect of a smooth bore gun having barrel of not less than twenty
inches in length to be used for protection or sport or in respect of muzzle loading gun to be
used for bona fide crop protection :
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 9 Provided that where having
regard to the circumstances of any case, the licensing authority is satisfied that a muzzle
182
loading gun will not be sufficient for crop protection, the licensing authority may grant a licence
in respect of any other smooth bore gun as aforesaid for such protection,
(ii) in respect of a 22 point bore rifle or an air rifle to be used for target practice by a member
of a rifle club or rifle association licenced or recognized by Central Government.
Section 13(3)(a) prescribes for an obligatory grant of licence on satisfaction of conditions
specified in the section for (i) sport, inter alia; and (ii) target practice by a member of a rifle
association licensed or recognized by the Central Government. Such person applying for
licence must also meet the requirements of Section 9 of the Act. Further, Rule 15 of the
Rules, which provides as under:
“15. Licences for target practice.- Where a licences in Form VI has been granted in the name
of any military mess, club or association it shall be lawful for any member of such mess, club
or association to use the fire-arms covered under by such licence for the purpose of the
mess, club or association in accordance with the conditions of the licencee.”
The rule thus provides that where a military mess, club or association holds a valid licence,
their members may use the licenced firearms for the purposes of the mess, club or association
in accordance with the terms of the licence. Therefore, even for persons above 21 years of
age, who do not hold a licence in their name and wish to engage in target practice, they may
do so after getting membership of a suitable club/ association and for persons in military
services, as members of the military mess.
18. Therefore, it is obvious that the Act has provided sufficient safe guards for the purposes of
training in use of fire arms, for target practice and sport purposes by prescribing an obligatory
grant of licence for the use of firearms for the aid purposes to eligible and interested persons.
Further, a person under the age of 21 years but above the age of 12 years is also permitted to
use the firearms for the purposes of target practice and training in the use of such firearms in
accordance with the provisions of the Act and the Rules.
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 10 Air guns/ rifles/ pistols are
not mere toys
19. The respondents have argued that the air guns/ air rifles or air pistols used for the purposes
of target practice are not firearms, as defined under the Act, but merely toys and as such
these do not fall under the purview of the licencing regime under the Act. Section 2(e) of the
Act defines “firearms”:
“”firearms” means arms of any description designed or adapted to discharge a projectile or
projectiles of any kind by the action of any explosive or other forms of energy, and includes,(i) Artillery, hand-grenades, riot-pistols or weapons of any kind designed or adapted for the
discharge of noxious liquid, gas or other such things,
(ii) accessories for such firearms designed or adapted to diminish the noise or flash caused
by firing thereof,
(iii) parts of, and machinery for manufacturing, firearms, and
(iv) carriages, platforms and appliances for mounting, transporting and serving artillery”
An air gun/ air rifle/ air pistols uses the energy or force produced from compressed air or
other gas for discharging of the pellet or projectile. Normally these air guns, etc. use metal
projectiles and the ones which use plastic projectiles are Air (soft) Guns. General internet
search on air guns reveals that these are distinguished from firearms, which burn a propellant
in order to shoot the projectile but under the definition of firearms, as provided under the Act
and as extracted above, it is clear that the air guns/ air rifles/ air pistols are also covered, for
not only the arms which discharge projectile(s) by action of any explosive are covered under
183
the definition, but also arms which use other forms of energy, in this case being the energy or
force generated from compressed air or gas. Thus, it is safe to conclude that air guns/air
rifles/air pistols are not mere toys, as against the assertion of the respondents and they are
very much subject to the provisions of the Act, being firearms.
No fundamental right to carry or trade in arms.
20. It is well established that the matter of grant of licence for acquisition and possession of
firearms is only a statutory privilege and not a matter of fundamental right under Article 21 of
the Constitiution
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 11 the Constitution f India. A Full
Bench of the Allahabad High Court in Kailash Nath and Ors. v. State of U.P. and Anr., AIR 1985
All 291 observed as under:
“A right is distinct from a mere privilege. The case of a licencee to possess or use firearm is
materially different from a case of licence to deal in or sell firearms. Section 3 of the Arms Act,
1959 deals with acquisition and possession of firearms or ammunition on the strength of a
licence whereas Section 5 provides for a licence for manufacture, sale etc. of arms and
ammunition. The licence for acquisition and possession of firearms is materially different
from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or
business and is a source of earning livelihood, the former is merely a personal privilege for
doing something which without such privilege would be unlawful. In my opinion the obtaining
of a licence for acquisition and possession of firearms and ammunition under the Arms Act is
nothing more than a privilege and the grant of such privilege does not involve the adjudication
of the right of an individual nor does it entail civil consequences. I may, however, hasten to add
that even an order rejecting the application for grant of licence may become legally vulnerable
if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen, may
apply for grant of a licence of firearms mostly with the object of protecting his person or
property but that is mainly the function of the State. Even remotely this cannot be comprehended
within the ambit of Article 21 of the Constitution which postulates the fundamental right of
protection of life and personal liberty.”
In the same judgment it was also observed that:
“The consistent trend of judicial decisions has been that the official granting of the licence
involves the exercise of discretionary licensing powers which are concerned with privileges
and not rights. See Randall v. Northcote Council (1910) 11 CLR 100, 117-119, Metropolitan
Meat Industry Board v. Finlayson (1916) 22 CLR 340; Ex. P. Macarthy, re The Milk Board
(1935) SR (NSW) 47; Nakkuda Ali v. Jayaratne 1951 AC 66; R. v. Metropolitan Police Commr.,
ex p. Parker (1953) 1 WLR 1150; Modern Theatres (Provincial) Ltd. v. Peryman (1960) NZLR
191 See also Merchants Bank Ltd. v. Federal Minister of Finance (1961) 1 All NLR 598 (Nigeria)
(revocation of licence). The decision in Nakkuda Ali v. Jayaratne 1951 AC 66 was to the effect
that the Controller of Textiles in Ceylon had cancelled a textile dealer’s licence in pursuance
of a power to revoke a licence when he had ‘reasonable grounds’ for believing its holder to be
unfit to continue as a dealer. It was held that the Controller was not determining a question
affecting the rights of subjects but was merely taking executive action to withdraw a privilege.”
It is therefore, apparent that no citizen has a blanket right to carry firearms. Its grant
is subject to his applying for a license, and fulfilling the qualifications and criteria,
spelt out in the Act and Rules. The National Rifle Associations position, therefore,
that its members have a right to secure a license, is untenable. They have, at best a
right to apply for, and be considered for the grant of a license, subject to fulfillment of
the prescribed qualifications.
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 12 Manufacturing arms and
trading in arms is a regulated activity.
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21. The provisions of the Arms Act, make it clear that holding a license is not a right, but
a qualified privilege; the applicant has to fulfill the conditions prescribed, to be granted
the license; after its grant, he has to fulfill the conditions prescribed in the license, so
as to be able to continue to hold it. As far as manufacturers are concerned, their right
to trade and carry on the profession (as firearms manufacturers or traders) can be no
higher than that of licensees.
22. The Supreme Court, in several decisions, has ruled that activities which are repugnant or
abhorrent to the interests of the general public, though answering the description of “trade” or
“commerce” are not afforded the status of a protected fundamental right, under Article 19 (1)
(g). Such activities include gambling, dealing in liquor, drugs, narcotics, etc. It has also been
held that while enacting a “restriction” and analyzing whether a law or policy is unreasonable,
the courts can consider the nature of the activity, the need for restriction, and whether the
enacted policy or law is proportionate to the right asserted, having regard to the times. The
Supreme Court has even ruled in Narendra Kumar v. Union of India, AIR 1960 SC 430 complete
prohibition of a commercial activity or profession can also be reasonable, having regard to its
nature.
23. If one sees the issues arising in this case, it would be apparent that the provisions have been
enacted with a specific public purpose. It is not as if there is complete prohibition from obtaining
licenses. Nothing was brought on record to show that the result of the judgment under review
would be so drastic, as to lead to complete shutdown of the manufacturing or trading activities.
Most importantly, no prohibition from manufacturing or sale of airguns was relied upon. The
mere possibility of sales being affected since air gun users would have to secure licenses,
cannot be a ground to say that the judgment is erroneous. The applicants have not
substantiated these arguments and not supported them with any documents. These remain
to be mere assertions.
24. The Court is conscious of the fact that the objective of the Prevention of Cruelty to Animals
Act, 1960 is to prohibit the possibility of activities, which would result in cruelty against animals,
especially species such as birds and animals, which are not declared endangered
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 13 and which do not come
within the fold of the Wildlife Protection Act. In this context, the argument that regardless of
existence of license, a firearm or air gun can potentially be used to kill, or maim animal or bird
species, is a specious one. If that argument were to be taken to its logical conclusion, the
basis for a gun licensing regime would be open to attack, since it can be urged that despite
possessing a license, someone can commit a crime, and a heinous one, like murder. It is not
the potentiality of misuse of a licensed firearm or weapon, which is being examined, but the
greater possibility of use of such weapons, if they are not subjected to licensing regulations.
The argument is untenable, and therefore, rejected.
25. While on the topic, it would be useful to remember that Parliamentary intention was to
regulate the use of all categories of firearms hence the inclusion of airguns, in the
definition and other provisions of the Act. The executives compulsions in exempting
air guns and other categories of such firearms, are not clear; this Court, after
considering the subsequent developments by way of enactment of the two Acts (in
1960 and 1972), as well as the impact of international conventions, was of the opinion
that the exemption did not serve any discernable purpose. The notification therefore,
was set aside. In doing so, the Court merely affirmed the original Parliamentary
objective behind the enactment, rather than uphold the unknown virtue of the
exemption, contained in the notification. The Court also reinforced the objectives of
the two latter enactments, i.e. the Prevention of Cruelty to Animals Act and the Wildlife
Protection Act.
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Allegations of bias
26. The last submission of the respondent review petitioners was the bias on the part of the
Union of India, on account of the alleged involvement of Mrs. Maneka Gandhi, former Union
Minister for Social Justice. It was submitted that she was the chairperson of the petitioner
organization, and on account of her being a member of the council of ministers, was able to
influence the stand of the Union of India, i.e. through the Ministry of Environment. It was
submitted that the affidavits filed before this Court when the writ petition was heard, virtually
conceded the claim, which clearly shows complicity and involvement on her part. In short, it
is urged that being in a position to influence, Mrs. Gandhi in fact did it, which resulted in the
petition being allowed. Her role has been characterized as improper; the decision, urge the
respondents, therefore, requires a review.
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 14
27. Bias has been defined as partiality or preference not founded on reason and is actuated by
self-interest whether pecuniary or personal. It means an operative prejudice, whether conscious
or unconscious, in relation to a party or an issue. Such a prejudice may be a result of a
preconceived opinion or a predisposition or a predetermination to decide the case in a particular
manner, so much so that it does not leave the mind open. The rule against bias strikes
against those factors, which may improperly influence a decision maker in arriving at a decision
in any particular case. The requirement of this principle is that the decision maker must be
impartial and must decide the case objectively on the basis of evidence on record. It is a
fundamental principle often expressed in maxim nemo in propria causa judex, esse debet. In
absence of statutory authority, consensual agreement or the operation of necessity, no man
can judge his own cause. (Charanjit Singh v. Harinder Sharma, (2002) 9 SCC 732. Therefore,
if a person having a direct interest in the subject matter of an enquiry before a tribunal,
participates in the decision making process, the tribunal is improperly constituted and the
Court will interdict the process, as well as the decision.
28. The Supreme Court, in Crawford Bayley & Co. v. Union of India, (2006) 6 SCC 25 restated
that the rule against bias comes into play if it is shown that the officer concerned has a
personal connection or personal interest or has personally acted in the matter concerned
and/or has already taken a decision one way or the other which he may be interested in
supporting. This rule of disqualification is applied not only to avoid possibility of a partial decision
but also to ensure public confidence in the impartiality of the administrative adjudicatory process
because not only must “no man be a judge in his own case” but also “justice should not only
be done but should manifestly and undoubtedly be seen to be done.” A decision, which is a
result of bias is a nullity and the trial is “Coram non-judice.” An inference of bias, can be drawn
only on the basis of the factual matrix and not merely on the basis of insinuations, conjectures
and surmises (Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289). It
has also been held that bias cannot be presumed, it must be proved from the facts of the
case (Ref. Franklin v. Minister of Town & Country Planning, [1948] A.C. 87)
29. If the above principles are kept in mind, what becomes clear is that neither the averments in
the applications filed by the respondents, nor any documents, is there clarity about the role
that Mrs. Maneka Gandhi allegedly played in seemingly influencing the course of the Union of
Indias
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 15 stand in the writ petition.
While the petitioner does not deny that she was its chairperson, the fact that it was not
revealed in the writ petition, should not lead this Court to harden suspicion of impropriety, into
a finding. The standard of proof which a litigant alleging malice, or bias, has to satisfy is
indeed high, and the courts have to be wary of personal predilections and prejudices straying
into the judicial process. The applicants/ respondents, in the opinion of the Court have managed
186
to insinuate, but not prove the allegations of improper behavior by Mrs. Maneka Gandhi. In any
case, it was this Court, which finally decided the writ petition; the judgment was based not
merely on the stand or omission to take a position by the two Central Government departmentsbut on objective reasoning. This ground is therefore, rejected as devoid of any substance and
merit.
Scope of review jurisdiction
30. In an earlier part of this judgment, the Court has held how the two applicants did not possess
the locus standi to question the judgment of this Court, of which clarification and modification
is sought. In this context, it would be appropriate to recollect the judgments of the Supreme
Court, in State of U.P. v. Brahm Dutt Sharma & Anr., 1987 (2) SCC 179 and State of Haryana
v. Babu Singh,2008 (2) SCC 85, where it was ruled that High Courts, after exercising jurisdiction
under Article 226 of the Constitution of India, cannot entertain and decide applications to
“clarify” or “modify” their judgments. These applications are, therefore, not maintainable.
31. It is trite law that a Court while exercising its review jurisdiction cannot decide upon the merits
of the reasoning or judgment, rendered by it. Review jurisdiction is circumscribed to examining
any error apparent on the face of the record, or examination of any material, which was not
brought to the knowledge of the Court previously, and which could not have been so disclosed
by the Applicant, despite exercise of due diligence. Besides the fact that the applicants here
were not parties, and were not necessary parties to the writ petition (for the reasons discussed
earlier) the mention of the facts highlighted in the two applications are really the subject matter
of appeals. If the Court were to examine them too closely, as is urged, it would be exercising
appellate, not review jurisdiction- which is clearly impermissible.
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 16
32. For these reasons, the Court is satisfied that the Applications preferred by the
respondents are unmerited, and cannot succeed. The same are accordingly dismissed.
(S.RAVINDRA BHAT)
JUDGE
(A.K. SIKRI)
JUDGE
May 20, 2011
CM Nos. 11288 & 11290/2002 in WP(C) No. 2491/2000 Page 17
IN THE HIGH COURT OF DELHI AT NEW DELHI
CONT. CAS. (CRL.) 17 OF 2009
Date of Decision: April 23, 2010
PEOPLE FOR ANIMALS .PETITIONER through : Mr. Raj Panjwani, Sr. Advocate with Ms.
Sonia Singhvi, Advocate
for the petitioner
VERSUS
UNION OF INDIA RESPONDENTS through: Mr. Anshul Tyagi, Advocate for Air Gun, Air Rifle
Manufactures
Association.
CORAM :THE HON’BLE MR. JUSTICE A.K. SIKRI
THE HON’BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether Reporters of Local newspapers may be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. (Oral )
187
1.
Admit.
2.
With the consent of learned counsel for the parties, we are taking up the matter for final
disposal at this stage itself. The People for Animals is the petitioner which had filed the Writ
Petition (C) 2491/2000. In that writ petition, the petitioner had prayed for issuance of appropriate
writ directing Union of India (respondents in Writ Petition) not to authorize issuance/renewal
of licences under the Arms Act, 1959 in respect of guns for sport as well as for crop and cattle
protection. This writ petition was allowed vide judgment dated 30th July, 2002 inter alia, issuing
the following directions:- “..we direct having regard to the provisions of the Arms act, not to
authorize, issuance or renewal of a licence of any prohibited arm or ammunition for the purpose
of sport (shikar) or cattle and crop protection from wild animals except under very strict
conditions. We also quash entry no. 1 (3) of CONT. CAS. (CRL.) 17 OF 2009 Page 1 of 4
Schedule II of the notification bearing No. GSR no. 988 dated 13.07.1962 issued under subclause (vii) of clause (b) of sub-section (i) of Section 2 of the Arms Act by the Central
Government whereby and whereunder air guns, air rifles and air pistols have been exempted
from all the regulations and controls as provided under the Arms Act.
As far as the question of making suitable
amendment in the Arms Act is concerned, although this Court cannot issue any direction in
this behalf, it will be appropriate it the respondents take an appropriate decision at an early
date.
3.
Thereafter, National Rifle Association of India as well as Manufacturers of Air Guns and Air
Pistols and Pellets filed review petitions seeking review of the aforesaid judgment, inter alia,
on the ground that they were not the parties to the aforesaid writ petition and the directions
given above adversely affected their interest. While issuing notice in these petitions to the writ
petitioners, the operation of the aforesaid judgment was stayed to the following extent:“We also quash entry no. 1 (3) of Schedule II of the notification bearing No. GSR no. 988
dated
13.07.1962 issued under sub-clause (vii) of clause (b) of sub-section (i) of Section 2 of the
Arms Act by the Central Government whereby and whereunder air guns, air rifles and air
pistols have been exempted from all the regulations and controls as provided under the Arms
Act”
This stay was confirmed on 23rd July, 2003 and is still under operation.
4.
In the present contempt petition filed by National Rifle Association of India, it is stated that the
respondents/contemnors have breached and violated the aforesaid stay order dated 1st
November, 2002, confirmed on 23rd July, 2003 in the following manner:(a) the respondent nos. 2 & 3 have published an article in newspaper Statesman Calcutta in
its edition dated November 25th, 2007 under the caption “Lethal Toys”. In this article, there is
a reference to the Court orders dated 30th July, 2002 passed in the aforesaid writ petition and
it is further mentioned that “this judgment applies to the whole CONT. CAS. (CRL.) 17 OF
2009 Page 2 of 4 of India. If you come across air guns being sold you can have the shopkeeper
arrested”.
The petitioner in the contempt petition submits that this act on the part of the contemnors is in
clear violation of the aforesaid stay orders granted by this Court. It is pointed out that while
referring to the judgment dated 30th July, 2002, the contemnors have deliberately suppressed
the fact that the judgment has been stayed by this Court. (b) The petitioner in this petition
further points out that the contemnors have authored a book titled Animal Law of India and in
Chapter-55 thereof, the aforesaid judgment dated 30th July, 2002 is published/reproduced
and again no reference is made to the effect that this judgment has been stayed.
188
5.
Mr. Panjwani, learned Sr. Counsel appearing for the contemnors do not dispute the position
that the manner in which the article is published and reference is made to the judgment dated
30th July, 2002 without clarifying that the said judgment has been stayed would amount to
criminal contempt.
6.
In so far the printing of the judgment in the said book is concerned, “explanation given by Mr.
Panjwani, learned Sr. Counsel appearing for the contemnors is that the said judgment is
printed in the Chapter titled “Directions not to issue or renewal of gun for Shikar or cattle crop
protection”. He submits that the stay order dated 1st November, 2002 is limited to the notification
relating to air guns, air rifles and air pistols and argues that in so far as licences of guns for
shikar or for cattle crop is concerned, there is no stay. Even if that contention is accepted, it is
clear that printing of the said judgment without mentioning about the limited stay order, clearly
gives a distorted picture. Impression which one would gather is that aforesaid judgment is in
operation with full force and that is clearly against the record. The respondents had full
knowledge of the fact that CONT. CAS. (CRL.) 17 OF 2009 Page 3 of 4 operation of the part
of the judgment has been stayed. Not mentioning this aspect would amount to committing
violation of the stay order.
7.
In view of the aforesaid discussion we hold that the contemnors have committed contempt
of this Court by violating stay orders dated 1 st November, 2002 read with orders dated 23rd
July, 2003.
8.
It seems that contemnors had realized what they have done. Because of this reason,
contemnor No.2 Ms. Maneka Gandhi had already sworn affidavit dated 4th November, 2009 in
which the contemnor has accepted the fault and has tendered unconditional apology for
writing the impugned article “Lethal Toys”. It is further stated that the respondent no.2 was
under a bona fide impression that as the review petition is pending for over a period of five
years, it must have been disposed of. This was a grave mistake. She admits that she should
have verified the status of the review petition before writing the said article.
9.
In so far as printing of the judgment in the book is concerned, Mr.Panjwani, learned Counsel
submits that the Fourth Edition of that book is already under publication and in case review
petition is not decided and stay is not vacated by the time Fourth Edition is released, the
authors shall incorporate necessary note about the stay order.
10. We accept the apology tendered by respondent no.2 as well as the assurance given by Mr.
Raj Panjwani and in view thereof, we disposed of this petition.
(A.K. SIKRI)
JUDGE
(S.RAVINDRA BHAT)
JUDGE
APRIL 23, 2010
skb
CONT. CAS. (CRL.) 17 OF 2009 Page 4 of 4
189
Annexure-39(ii)
Circular No. 30/2001 - CUS. 22nd May, 2001.
F.No. 496/4/99.Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
Subject : Disposal of imported fire arms - Regarding.
The undersigned is directed to refer to the Ministry’s letter F.No. 497/57/87-CUS.VI dated
5.1.88 on the above subject, wherein it was clarified that fire arms allowed to be imported into India
\shall not be transferred to any other person during the lifetime of the importer for consideration or
otherwise. Recently, a request was received in the Department from a passenger ( who had
earlier been allowed in 1990 a fire arm import on appropriate duty) to be allowed to dispose off
the fire arm as he had become old and sick and wanted to spend money received from sale of fire
arm for maintaining his health/cost of living. On refusal of this request the matter was taken by him
to Delhi High Court where the policy of the Government on disposal of fire arms during the lifetime
or later came up for review. The Government was asked by this Hon’ble Court to clarify its disposal
policy especially after the demise of the person, if the fire arm was not permitted to be disposed off
during the life time of the fire arm owner. The Ministry of Home Affairs who were consulted has
clarified and this was brought to notice of the Hon’ble Court that disposal of the fire arms after the
demise of the person may be allowed in the following manner :
(i) By transfer to the legal heirs; and
(ii) By sale of arm by the legal heir to a licence holder or arms dealer.
The Hon’ble Court has taken note of the Government’s policy clarification and rejected the
request for disposal/transfer of fire arm to any other person as made by the petitioner.
You are, requested to bring the above position to the notice of all concerned. No disposal of
customs cleared fire arms be permitted during the lifetime of the owner, but after the demise of the
person concerned, the disposal/transfer be permitted as per above mentioned latest clarification
of Home Ministry.
190
Annexure-40
26th September,2005
F.No 495/7/2005-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
SUB: Permission to Indian Nationals undertaking visit abroad to buy goods from duty free
shops at International Airports at India in Indian Rupees- regardingThe undersigned is directed to inform that presently Indian nationals undertaking visits abroad
are not allowed to buy goods from duty free shops in the International airports in India against
Indian currency. On the basis of request from several quarters, Department of Economic Affairs in
consultation with the Reserve Bank of India has reviewed the policy in this regard. It has been
decided to allow Indian Nationals undertaking visit abroad to buy from duty free shops at International
Airports at India in Indian Rupees goods worth Rupees 5000/=(Five thousand only) per passenger
per visit subject to following safeguard,-
3.
(i)
the duty free shops would sell goods to the Indian Nationals only against passport or
other travel documents to ensure that one does not exceed this limit of Rs 5000/-( Five
thousands only) by purchasing goods from different duty free shops at an international
airport.
(ii)
the duty free shop would maintain records of such sale against Indian currency which
may be checked at random, in order to ensure that the facility is not abused or misused.
Wide publicity may please be given to the above decision by issuance of public notice.
4. Difficulty , if any faced in implementation of the same may be brought to the notice of the
Board immediately
Yours faithfully,
(Anupam Prakash)
Under Secretary to the Government of India,
Ph.23094182
191
Annexure 41
Notification No. 146/94-Customs
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962
(52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts the goods of the description specified in column (2) of the Table hereto
annexed and falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when
imported into India, from the whole of the duty of customs leviable thereon which is specified in
the said First Schedule and from the whole of the additional duty leviable thereon under section
3 of the second mentioned Act subject to the conditions specified in column (3) against each serial
number in column (1) of the said Table.
Table
S. No. Description of goods
Conditions
(1)
(2)
(3)
2.
The following sports goods for:
XV. SHOOTING
1) Rifles - .22 Calibres
(should have at least an
outside barrel diameter of
10 mm.)
(2) Pistols - .22 and .32
Calibres (barrels should be
measured from the Breach
point)
(3) Air Rifles/Pistols 4.5 mm/0.177 Calibres
(4) Shot Guns -12 bore
(should be “Ventilated Rib”
and “Single Sighting Planes”)
(5) Air pellets - Diabelotype
(i.e. with flat nosecand
metround on painted nose)
(6) Ammunition - 12 bore
cartridges, .27 air pellets,
.22 bore match cartridges,
.22 bore rapid fire (short)
cartridges, .22 bore pistol
match standard sports,
.32 bore wad - cutters
(7) .32 bore revolver (barrel
length should not be less
than 41/2" and measurements
are to be taken from the end
of the cylinder holding the
cartridge)
(8) .22 bore revolver - (barrel
length same as above)
(9) Telescope
(a) The said goods are imported into India by a
sports person of outstanding eminence for
training purposes;
(b) the importer, at the time of importation of the
goods, produces a certificate to the Assistant
Commissioner of Customs or Deputy
Commissioner of Customs from an officer
not below the rank of a Deputy Secretary in
the Department of Youth Affairs and Sports,
Ministry of Human Resource Development,
Government of India indicating (i)
the description, quantity and value of the said
goods;
(ii)
that the importer is a sports person of
outstanding eminence; and
(iii) that the said goods are essential for the
training purposes of the importer and
recommends grant of the exemption.
Notification No. 146/94-Cus., dated 13-7-1994 as amended by Notifications No. 101/95-Cus., dated 26-51995; No. 132/95-Cus., dated 28-8-1995, No. 48/96-Cus.,dated 23-7-1996 , No.24/2002 dated 01.03.2002
and No.88/2002-cus dated 28-8-2002.
192
Annexure 42
Notification No. 101 /2010-Customs date the 1st October, 2010
G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 25 of the
Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in
the public interest so to do, hereby makes the following further amendments in the notification of
the Government of India in the Ministry of Finance (Department of Revenue), No. 146/94-Customs,
dated the 13th July, 1994 , published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i) vide number G.S.R.575 (E), dated the 13th July, 1994, namely:- In the said notification,
in the TABLE, against serial number 2, in column (3), after condition (b), the following proviso and
Explanation shall be inserted, namely:“Provided that in respect of goods listed under item XV ‘SHOOTING’ specified in
column (2) of the Table, the said goods are imported into India by a renowned shooter for
training purpose and such importer produces a certificate to the Assistant Commissioner
of Customs or Deputy Commissioner of Customs as the case may be, from the National
Rifle Association of India that the importer is a renowned shooter.
Explanation.- For the purpose of this notification, “renowned shooter” means a person who
has participated in a National Shooting Championship in an Open Men’s Event or Open Women’s
Event or Open Civilian’s Event whether through Qualifying Tournament or Wild Card Entry conducted
in accordance with the rules of the International Shooting Union, and has attained the Minimum
Qualifying Score prescribed by the National Rifle Association”
193
Annexure-43
F.No.495/2/2011-Cus.VI
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
North Block, Room No. 253-A,
New Delhi, the 5th April, 2011.
To,
All Chief Commissioner of Customs,
All Chief Commissioner of Customs & Central Excise,
All Chief Commissioner of Customs (Prev.),
Subject: Duty free export of samples as personal baggage of the exporter - regarding.
References have been received in the Board that export of samples in the passenger baggage
are not being allowed while provisions a of Foreign Trade Policy allow for the same. It is therefore
represented that necessary clarification be issued
2
In this regard it is stated that Para 2.31 of the Foreign Trade Policy which relates to export of
passenger baggage does not specifically provides that samples could be part of the bonafide
personal baggage. Whereas Para 2.20 provides that “ “Bonafide household goods and personal
effects may be imported as part of passenger baggage as per limits, terms and conditions thereof
in Baggage Rules. Samples of such items that are otherwise freely importable under FTP may
also be imported as part of passenger baggage without an Authorization”. Thus it is seen that
Para 2.31 of FTP relating to export of baggage does not provide for any expansion to include
samples as bonafide baggage unlike FTP provisions in case of import of baggage. However
the provisions contained in para2.27 of Handbook of Procedure , Foreign Trade Policy makes
it explicit that export of samples are allowed freely.
3. Accordingly , in order to ameliorate the problem faced by the passengers it is clarified by
Board that bonafide trade samples should be part of export baggage in terms of para 2.31 of
the Policy read with para 2.20 of the Policy and 2.27 of Handbook of procedures. While the
matter of suitable amendment in para 2.31 of FTP has been taken up with DGFT , in the
interim, I am directed to inform that liberal view based upon status of exporter, nature and
quantity of sample and certification if any from Export Promotion Council may be taken in the
matter.
(Vikas)
Under Secretary (Customs-III/VI)
Telefax-011-2309 5532
Fax-011-2309 2173
[email protected]
194
Annexure-44
195
OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS IGI AIRPORT,
NEW DELHI
DETENTION RECEIPT
(In Triplicate)
No.-----------------Flt No. & Date ---------------------1.
3.
4.
5.
6.
Passenger’s Name __________________________ 2. Nationality __________________________
Passport No. ____________________________________________________________________
Full Address _____________________________________________________________________
Accompanied by (adults) _________________________ (Minors) __________________________
Particulars of clearance given(i)
Passenger’s Classification : Tourist of Foreign
Tourist of India Others T/R
Origin
Origin
(II) Free Allowance availed (for self) Rs.___________ For others_________(Rs.__________
(iii) Value of goods chargeable to duty
a)
Normal 50%+10%+4%
b) (i) Alcoholic Liquor 245%+4%
(ii) Beverages 100%+5%+Rs.9.00 perLiter+4%
c)
Cigarettes/Cigars 150%+4%
d)
Fire Arms 150%+4%
iv) A.O.No.________Dated_________R.F.________P.P.________Re-export Fine Rs.
v)
T.R.No.________Dated_________Items________Amount
7.
Reasond for detention of goods
(a) Appraisement
(d) Re-export out of India
(b) Payment of duty
(e) Production of documents
(c) Duty & ITC fine
(f) Other reasons
Description of goods detaine
Assessed Value
Duty
@
%Rs._____________
@
%Rs._____________
@
%Rs._____________
@
%Rs._____________
Total Rs.__________________
The goods have been detained at my request and
sealed in my presence over my signature in................................
(No of Packages with description)
Signature of the Detaining Officer
with his full name & seal
Signature of the Passenger_____________________
Countersigned
Air Customs Superintendent
with his full name & seal
IMPORTANT: Passenger may please see instructions below:1.
Passenger is required to produce this receipt in original and his passport at the time of seeking delivery
of goods. If delivery is sought through an agent, a proper authorisation letter containing attested signature
of the authorised agent is needed.
2.
Normal clearance timings are between 9.30a.m. to 6.00p.m. on all days excluding Saturdays, Sunday
& Holidays.
3.
An advance notice of 24 Hours excluding Saturdays, Sunday & holidays, is needed for clearance/
Delivery of valuables, namely, gold jewellery, Precious stone, wrist watches etc.
4.
No. request for reassessment of value of goods shall be entertained in the normal course.
5.
If the goods are not cleared within 2 months of the detention or any period extended by the Competent
authority, action to dispose of goods under relevant provissions of the Customs Act. 1962 will be initiated.
6.
In case goods detained in the Detention Receipt are subject matter of appeal/revision, the fact of filling
appeal/revision may be intimated to Warehouse Incharge to avoid disposal of goods pending decision.
196
Section – 7
COMMERCIAL TRAVELERS
7.1 Who Are Commercial Travellers ?
175
7.2 Profiling of Commercial Visitors
175
7.3 Examination And Clearance of Commercial Travellers
175
7.4 Clearance of CIS Passengers
176
7.5 Special Precautions
176
7.6 Export of Commercial Goods on Baggage
7.7 Permissibility of free allowance to the pax when the whole of goods or part of
goods of their baggage seated to be imported as commercial quantity
7.8 Import of goods in commercial quantity as baggage eligible procedure
for acceptance of O.D. of Pax
197
Section – 7
COMMERCIAL TRAVELERS
Who Are Commercial Travellers
Commercial goods imports or exports can be broadly classified follows:
a)
Goods in a tradable quantities for/sale (usually imported by frequent travellers).
b)
A limited number of items of industrial, commercial or professional usage for commercial
use/gain for self use or on behalf of another person.
The provisions of EXIM policy and Foreign Trade (Development and Regulation) Act, 1992 on
these aspects have already been explained in details in Section 5 of this Handbook.
Commercial travellers who carry goods for sale have a tendency to distort the working at the
airport, which is primarily targeted at facilitating legitimate passengers and apprehending those
who violate the Customs laws. By their frequent travelling they attain professional expertise in
being able to conceal goods, undervalue them or clear them in a clandestine manner. If not checked
they bring a bad name to the reputation of the Airport.
The other categories of persons who carry goods mentioned at ‘b’ above are respectable
businessmen/professionals and are commonly referred to as “business travellers”.
7.2 Profiling of Commercial Visitors
By the very nature, such visitors are commonly seen at the airport from time to time. Accordingly
the staff has to be vigilant when flights commonly known to carry such passengers arrive. The
senior officers need to be specially on guard and make themselves available in different parts of
the Airport, changing their strategies from time to time by positioning themselves at different times
at different places e. g. aerobridge, hand bag X-ray belt, belt x-ray, red channel or the green channel.
The mishandled baggage needs to be carefully X-rayed to see whether any of these passengers
has not intentionally left it at the belt.
Most of the short visitors can be identified by their appearance or the nature of the baggage
carried by them. A look at the passport easily confirms their status, though many of these travellers
are known to possess more than one passport.
While they are commonly known to be arriving from sensitive destinations e.g. Singapore,
Malaysia, UAE (Dubai), China, Hong Kong, Thailand(Bangkok), Uzbekistan, Afghanistan (Kabul)
etc. countries, some of the more professional ones do not mind taking their journeys through nonsensitive destinations also. Certain foreigners of respectable nationalities indulging in this trade
are also being noticed.
7.3 Examination And Clearance of Commercial Travellers
Detailed examination of the baggage of commercial travellers and personal Search is invariably
carried. In appropriate cases door frame/handheld metal detectors are used to check concealment
of gold or any other sensitive goods in body.
The Deputy /Commissioner (shift) is kept informed of the action taken and his clearance
taken before such passengers are cleared. It is a common practice to deny free allowance to such
passengers, the goods being non-bonafide.
199
7.4 Clearance of CIS Passengers
Even though CIS passengers are not treated- differently in manner, the language problem
does pose an additional challenge for Customs. The difficulties in communication and the past
experience of a number of travellers coming from these countries importing commercial, goods
for sale require Customs to carryout their controls in a far more strict manner in such flights. The
flights are invariably x-rayed and the baggage of suspect passengers examined. The flight manifest
of these flights is studied in advance and the manifested passengers having checked-in heavy
baggage are identified and subjected to examination of their baggage. In appropriate cases
particulars of such passengers are also sent to Ministry of External Affairs for sensitizing Indian
Missions. Specific procedure has been prescribed for the clearance of the Commercial Goods
exported by the CIS passengers.
7.5 Special Precautions
Following precautions should be taken in the Clearance of commercial travellers:
The baggage should always be examined in detail. There are serious possibilities of concealing
goods within other goods or within pockets of garments or in other ingenious ways.
Check the correct value of goods.
Personal search should be conducted carefully after serving the notice under section 102 of
the Customs Act, 1962.
Passport should be studied to see the past history of visits. In case of new passport particulars
of past visits should be obtained from immigration.
The pattern of arrival of their visit should be studied in appropriate cases to see if passenger
has been arriving in any particular shift. Appropriate action should be taken accordingly.
Deterrent penalty should always be imposed giving clearly reasons for the same. Free
allowance shall be denied in respect of commercial goods.
In case the baggage of the person is not substantial in value the possibility of other passenger
carrying goods on his behalf should be carefully looked at.
If the baggage contains only part of the goods e.g. Adopters without mobiles, literature without
the product, enquiry should be made to find out the whereabouts of any other passenger carrying
the remaining link goods.
Before the Commercial travellers leaves with the baggage, the data on AIMS should be studied
to see the possibility of arrest.
7.6 Export of Commercial goods as Baggage
The goods can be exported in commercial quantity provided they are purchased out of the
foreign currency bought into the country. Adequate proof is to be submitted by the Pax. Board’s
circular no 17/95-Cus issued from F.No. 520/118/93-Cus VI dt 1.3.95 refer. (Annexure-9)
7.7 Permissibility of free allowance to the Pax when the whole of goods or a part of goods
of their baggage is seated to be imported as commercial quantity
In such a situation it has been clarified vide circular no. 64/94-CUS VI dt 17/12/96 that portion
of the baggage which is not in commercial quantity would be eligible to free allowance.
7.8 Import of goods in commercial quantity as baggage-procedure for acceptance of O.D.
of Pax
Detailed instruction issued by the Board vide circular no 9/2001-CUS dt. 22.2.2001 may be
read. These are self enplanatory in nature.
200
Annexure-I
Circular No. 17/95-Cus.
dated 1/3/95
F.No. 520/118/93-Cus. VI
Government of India
Ministry of Finance
Department of Revenue, New Delhi
Subject: Export of Commercial Goods as Baggage-Instructions reg.
1. The undersigned is directed by say that in terms of para 129 of the Exim Policy (1992-97),
bonafide personal baggage of a passenger ins permitted to be exported as accompanied or
unaccompanied baggage. Instances have, however, been brought to the notice or the Board
where passengers, especially passengers leaving for CIS countries, Pakistan. Thailand etc.,
were exporting in their baggage commercial goods like leather goods, hosiery goods, betel
leaves etc. in large quantities in gunny bags through chartered flights or by train from Delhi,
Amritsar etc.
2. The matter has been examined by the Board in consulation with the Department of Economic
Affairs and the Ministry of Commerce. If we go strictly by the Exaim Policy, the quantities being
taken by such passengers connot be said to be their bonafide baggage and hence their export
could be objected. However, it has been reported that in most of these cases, the passengers
are able to give some evidence or the other for exchange of the foreign currency to buy these
goods in India. The Department of Economic Affairs has opined that there is nothing wroing in
allowing export of such goods as passenger’s baggage so long as the source of funds for
buying these goods is established to be the foreign exchange brought by the passengers on
their arrival in India.
3. In view of the facts stated above, the Board is or the view that in interest of the expeditious
passenger clearance and the current liberalisation scenario, such exports through passengers
baggage may be allowed so long as proper proof of the goods having been procured against
payment in foreign exchange is provided by the passengers. In case any large scale abuse in
suspected, it may be brought to Board’s notice immediately giving the details of such cases/
instances.
Sd/(T.R. Kapur)
Under Secretary (Cus.VI)
201
Annexure-II
Circular No. 64/94-Cus.VI
dated 17/12/96
F.No. 495/6/96-Cus-VI
Government of India
Ministry of Finance, Department of Revenue
(Central Board of Excise & Customs), New Delhi
Subject: Permissibility of free allowance to passengers when the whole of the goods or a part
of the goods of their baggage is treated to be imported in commercial quantity.
It has come to the notice of the Board that adjudicating authorities at different levels are holding
different opinions whether free alllowance would be permitted on import of baggage’s where
part of the goods are found to be in commercial quantity. The issue of import of consumer
goods in commercial quantity had earlier been examined by Board and instructions were issued
vide circular No. 2/92, dated 31.1.1992 and vide File No. 495/10/ 92-Cus. VI. dated 7.7.1992
and recently vide F.No. 495/6/96-Cus. VI dated 6.5.1996. The gist of the said instructions are
that import of the consumer goods in commercial quantity is not permissible even in the present
EXIM Policy and in addition they are not to be treated as part of the bona fide baggage. Therefore,
they would be liable to be adjudicated. The present problem is where a part of the goods are in
the commercial quantity and that part of the goods which is not in commercial quantity. The
matter has been not become non-bonafide or tainted because some articles in the baggage
are held liable to confiscation being in commercial quantities. Therefore, that portion of the
baggage which is not in commercial quantity would be eligible to free baggage allowance.
Sd/(Ranjana Jha)
Secretary to the Govt. of India
202
Annexure-III
Circular No. 9/2001-CUS
F.No. 520/67/2000-Cus. VI
Government of India
Ministry of Finance, Department of Revenue
22nd February, 2001
Subject: Import of goods in commercial quantity as baggage-Procedure for acceptance of Oral
Declaration of passengers-Regarding.
1.
It has been brought to the notice of the Board recently that goods in commercial quantities
have been brought by the passengers and these have been cleared as part of baggage by
improper declaration etc. Apparently there is no strict monitoring by the supervisory officers
on duty and chances of commercial quantities getting cleared as part of baggage by
declaration/non-declaration without or with the concurrence of lower staff on duty cannot be
ruled out. It is also reported that in some cases, the involved person(s) are frequent short
visit passengers and repeat offenders. The fines and penalties imposed in adjudication
proceedings are apparently not sufficient as these have not deterred the unscrupulous
passengers from bringing goods in commercial quantities repeatedly.
2.
Board has taken serious note of such incidents. It appears instructions issued already are not
being enforced by Commissioners in-charge of International Airports and supervisory officers
are not showing the diligence and watch on passenger clearance process expected of them.
They also do not appear to be taking enough deterrent action in the matter of imposition of
fines & penalties and even initiating prosecution action in cases of habitual offenders involved
in evasion of duties by misdeclaration/smuggling by concealment in baggage etc.
3.
In this connection, attention is once again drawn to Boards instructions issued vide F.No.495/
6/97-Cus. VI dated 6-5-96 and reiterated in letter F.No.495/19/99-Cus.VI dated 11.4.2000. It
was clearly stated that the import of goods in commercial quantities would not be permissible
within the scope of the Baggage Rules, even on payment of duty. It was also stated that
suitable redemption fine/personal penalties would need to be imposed in all such cases,
which apparently should be such that it not only wipes out the margin of profit but also acts as
a strong deterrent against repeat offences. The guidelines mentioned in the Adjudication Manual
may be followed strictly by the adjudicating authorities, and any lapse in this regard would be
viewed seriously. In case of repeat offences, the prosecution guidelines contained in Board’s
instructions F.No.394/71/97-Cus(AS), dt 22.6.99 may be followed.
4.
In addition to the above, the following steps may also be taken:
a.
In respect of ‘Red Channel’ pasengers the general practice is to record the Oral declaration
(OD) on the Disembarkation Card without first making the passenger fill up the relevant
entries. It may be ensured that every passenger reporting at Red Channel fill up a
Disembarkation Card clearly mentioning therein the quantity and value of goods that he
has brought, and hand over the Customs portion of the card to the officer on duty at the
red Channel. In case the same is oncomplete/not filled up, the proper Customs officer
should help record the O.D. of the passenger on the Disembarkation Card and only
thereafter should countersign/stamp the same, after taking the passenger’s signature.
b.
At this stage, the Baggage officer must scrutinize the passport and other relevant travel
documents to identify the short-visit passengers/frequent travelers. Where the case is
put up for adjudication the fact of pas visits and cases adjudicated etc must be brought
to the notice of the adjudicating officer.
203
c.
The supervisory officers must take care to ensure that the total material in excess of
duty free allowance imported by the passenger is being declared/and charged to duty
and is subject matter of adjudicating for determining fines, penalties etc.
d.
In case of genuine tourists where the baggage is marginally in excess of the bonafide
baggage, the passengers may be allowed to clear the same, as per the existing practice,
on payment of appropriate Customs duty. However, in all other cases such as short visit
passengers/frequent visitors where the baggage is substantially in excess of the free
allowance and in commercial quantity, the same should be deemed to be nonbonafide
baggage and dealt with in manner mentioned at paragraph 3 above.
It must also be ensured that where the ‘Red Channel’ facility is sought the valuation of items
charged to duty is done properly. There should also be very careful check to find out whether
it is a first offence or a case of repeat offence warranting more imposing deterrent penalties,
apart from considering prosecution, as per guidelines. In their adjudication order, the
adjudicating.
authorities must clearly mention wherever it is a case of repeat offence providing justification
for imposition of high penalty, so that the offenders are not let off at the appellate stage on
account of legal lacuna.
For the passengers walking through the Green Channel, the existing practice of collecting
Disembarkation Card, containing the written declaration of the passenger about his baggage,
at the Channel continue.
5.
In offence cases viz. for misdeclaration or non-declaration, the aforesaid guidelines may be
applied, in addition to any other guidelines/existing provision(s) of Law.
6.
The Commissioner/Addl. Commissioner incharge of the Airport shall be responsible for
ensuring strict compliance of the aforesaid instructions. The supervisory controls and surprise
visits by senior officers must be stepped up and Asstt. Commissioner/Dy. Commissioner on
duty remain ever vigilant to check any abuse by unscrupulous passengers. It must also be
ensured that no harassment is caused to genuine pasengers. Strict action may be taken
against any Customs officer, who fails to comply with the aforesaid instructions.
7.
Kindly acknowledge the receipt. Difficulties, if any, in implementation of aforesaid instructions
may be brought to the notice of the Board at an early date.
Yours faithfully,
(Dr. Vinayak Prasad
Under Secretary to the Government of India.
F.No. 520/67/2000-Cus. VI. The Commissioner of Customs(Gen) IGI Airport has made a reference
to the Board regarding problems faced by Customs in clearance of passengers coming from CIS
Countries. It has been stated that some of the passengers who arrive at IGI Airport continue to sit
in the arrival without coming to get Customs clearance sometimes for as long as 36 to 48 hours.
In order to take care of this problem he has suggested issue of a Notification under Section 81 (a)
of the Customs Act, 1962 specifying the maximum time limit within which the passengers should
make a declaration before Customs. Since this Notification will have implication for all the passengers
coming at any of the Airport, the matter may be examined regarding the implication of the proposal;
suggested time limit (4 hours or any other time frame); as also the type of penal provision that may
be imposed for the failure to adhere to the condition.
2 Another problem pointed out relates to the passengers carrying goods in commercial quantity in
excess of the permitted weight allowed by the Airlines (Generally 20 Kgs). It has been suggested
204
that the Import Manifest (Aircraft) Regulation, 1976 should prescribe a separate passenger manifest
form containing the details of all those baggage that are in excess of the permitted weight/free
allowance. Alternatively, it has been suggested that the proper officer, say DC shift, be empowered
to seek these details from the airlines so that there is accountability based checks of all passengers
coming from any sensitive destination. However, before considering these amendments the Board
has desired your considered views in the matter.
(Dr. Vinayak Prasad)
Under Secretary (Cus.VI)
205
206
Section – 8
WAREHOUSE GOODS
8.1 The Central Warehousing Corporation
179
8.2 Clearance of Mishandled Baggage
179
8.3 Clearance of Detained Goods
179
8.4 Transit to Other Custom Stations
180
8.5 Re-export
180
8.6 Interline Baggage
180
8.7 Disposal of Goods from Warehouse
180
207
208
Section – 8
WAREHOUSE GOODS
8.1 The Central Warehousing Corporation
The Commissioner of Customs (Gen.), New Delhi has appointed Central Warehousing
Corporation as the custodian of the warehouse w.e.f. January 24, 2001 in terms of Public Notice
5/2001 dt. 22.1.2001 (Annexure I). Prior to this the Customs Warehouse was manned by
Departmental Officers and till the mid-nineties by the Airport Authority.
Arrangements in terms of the responsibility of the CWC, payment of charges for the use of
space, sharing of sale proceeds of unclear goods and other such aspects are contained in the
detailed agreement signed between the two sides (Annexure II).
The Commissioner of Customs (Gen.) has also fixed ‘charges for the storage of goods by
virtue of powers vested in him under the Passengers’ Baggage (Levy of Fees) Regulation, 1966
(Notification No. VIII(Air Cus)Tech/49/26/2001 dated January 20, 2001These charges have been
arrived at considering the rates of the Airport Authority for the storage of unaccompanied baggage.
The rates have since been revised in terms of Notification issued by Commissioner of Customs (
I & G), NCH, New Delhi vide Public Notice dt. 5.7.2001 (Annexure III) issued from F.No.
VIII(AirCus)Tech/49/26/2001/Pt/dt 13.7.011.
Some airlines have arrived at individual understandings with the CWC for the payment of
charges on a weekly or monthly basis in respect of clearance ‘of mishandled baggage.
8.2 Clearance of Mishandled Baggage
Mishandled baggage comprises such goods as do not arrive along with the passenger due to
logistical problems. These may arrive either before the passenger (usually rare) or after the
passenger has arrived.
The formalities required to be completed by the passenger on arrival are already explained in
Section 2. These goods are permitted to be cleared immediately on arrival by the pax, if permitted
to enter the arrival hall, or by the concerned airline under a simplified procedure (Public Notice 3/01
dated January 22, 2001)
Such goods which have not been cleared immediately on arrival by the pax or by the concerned
airline under the simplified procedure are deposited in the Warehouse against a document called
the AOC card. The passenger can approach the Customs counter for mishandled goods after
obtaining AOC card from the airline along with the copy of the property irregularity report that was
handed over to him at the time of arrival. The detailed procedure for the clearance of such
goods during normal office hours is contained in Office Order No. 31/2001 dated Feb. 7, 2001
Annexure IV
8.3 Clearance of Detained Goods
As mentioned earlier in Section 2 the goods are detained in the warehouse when the
passenger\arrives, for reasons such as appraisement, payment of duty, adjudication or for reexport. The passenger can approach Customs for the clearance of detained goods either himself
or through his authorized representative. The goods can be got cleared between 10 AM and 6 PM
on normal working days, Mondays to Fridays, excluding holidays. Goods outside these hours are
allowed in exceptional circumstances by the Deputy Commissioner (Shift). Goods meant for reexport can be cleared round the clock.
209
The value of goods for normal baggage items are assessed by the concerned warehouse
Superintendent. Commercial goods or such, goods whose imports are not commonly noticed are
appraised by one of the appraisers. Goods required to be cleared after adjudication, are cleared
after the adjudication order is passed by the competent officer: Assistant/Deputy Commissioner
(Warehouse) up to Rs. 2,00,000/- and Additional Commissioner beyond Rs. 2,00,000/-(without
any limit).
In case goods cannot be cleared on the same day a fresh detention receipt is issued giving
reasons for re-detaining goods, along with particulars of the old detention receipt and a copy of the
same is also annexed. The clearance procedure for detained goods is contained in Office Order
No. 31/2000 dated Feb. 7, 2001
8.4 Transit to Other Custom Stations
Sometimes the passenger has to leave the Custom station of arrival immediately while his
baggage does not arrive along with him. In the event of his failure or reluctance to permit clearance
through authorization, his baggage is allowed to be sent to another Custom station where the
passenger can clear the goods himself/herself. Such transit is permitted under Baggage (Transit
to Custom Stations) Regulations, 1968. The Office Order No. 3 l/2001 dated Feb, 7, 2001 contains
relevant provisions.
8.5 Re-export
Goods detained under Section 80 of the Customs Act for export or other goods which have
been permitted re-export after adjudication or otherwise are permitted clearance from the warehouse
round the clock. In such cases, the passenger is advised to report for departure check in preferably
2 hours in advance. On approaching the customs counter the passenger is accompanied by one
of the Customs officers to the warehouse where the clearance is given against the detention
receipt containing the authority for re-export and after payment of the storage charges to the
CWC.
In cases where goods have been stored for considerable periods, the passenger is expected
to give prior intimation of his intention for re-export.
In case where the goods are allowed to be re-exported under an Adjudication Order, it should
be ensured that proper A.O. No., date & dispatch No. are clearly mentioned. In the absence
of the same, the goods cannot be allowed to be re-exported. The pax is also required to
produce the original Adjudication Order.
8.6 Interline Baggage
These goods are meant for transfer from one airline to another in respect of passengers who
are transiting. The goods are identified by the concerned airlines and deposited in a separate
Warehouse, called Interline Warehouse under the custody of Customs. The Office Order No. 229/
2001 dated 19th October,200l prescribes for the management of interline warehouse . This facility
is absolutely free for the airlines and no charges are levied by any agency. The proper upkeep and
maintenance of the warehouse is the responsibility of the CWC. Public Notice No. 59/05 issued
from f.no. VIII (WFI)670MIDC dated 29/12/00 on the hording of intensive baggage may please be
seen as Annexure V.
8.7 Disposal of Goods from Warehouse
The goods detained in the Warehouse for domestic consumption are expected to be cleared
within a period of 30 days or such other extended period as may be approved. In all other cases
and also cases of mishandled baggage, where the goods cannot be linked to any passenger, the
same are sent for disposal/sale at the New Custom House. A prior notice is, however, issued to
the passenger in cases of detentions. The goods are inventorized by the disposal staff giving the
210
Correct description of the goods and their approximate value in respect of the mishandled
goods, no information is available about the contents of the baggage unless the same are opened.
The disposal staff have to take extra care for proper inventorisation of such goods and ensure that
the total weight of the bags recorded at the time of their deposit in the warehouse tallies with the
weight of the inventorised goods at the time of disposal.
Notice has to be issued to the owner of the goods, which were seized under Section 150 of
the Act. Further where any goods not being confiscated goods, are to be sold under any provisions
of the Customs Act, they shall be sold by Public Auction or by tender or in any other manner after
giving notice to the owner of the goods. Board’s circular F. No.711/4/2005-Cus(AS) dt.14.2.06
refers. All relevant instructions applicable for the disposal of goods contained in the Disposal
Manual are required to be complied with.
8.8 Procedure for clearance of Import/Export at NSEZ, Noida through ICD, NSEZ, Noida
The initial procedure for import of Gem & jewellery has been laid down in Customs Public
Notice No.53/03 dt.26.12.2005 issued by Commissioner of Customs (Exports), New Custom House,
New Delhi (Annexure – VI)
The import and export of gems & jewellery items as personal carriage by passengers has
also been issued vide Public Notice No. 51/2003 issued Office Order vide No. VIII(H) 13/03/2003
dated 12.12.03 by the Commissioner of Customs (I&G), New Custom House, New Delhi (Annexure
– VII)
The revised procedure for clearance of precious cargo imported by baggage has been issued
vide Office Order No.152/04 under VIII (WH) 393/Misc/04-4694 dated 3.9.04 (Annexure – VIII).
The procedure for clearance of import/export cargo at SEZ, NSEZ, Noida consequent upon
insertion of Chapter XA of Customs Act, 1962 has been issued vide Customs Public Notice No.22/
04 by Commissioner of Customs (Exports), New Custom House, New Delhi (Annexure – IX)
211
Annexure-I
Office of the Commissioner of Customs (General)
New Custom House : New Delhi
F.No.VIII(AirCus)Tech/49/26/2001
Dated: 22.1.2001
Public Notice
It is hereby informed to all concerned that w.e.f. 24th January 2001, the Warehouse godown
at IGI Airport, Terminal-II shall be managed by M/s. Central Warehousing Corporation and they
shall levy charges for the passenger baggage at such rates as are notified by the Commissioner
of Customs under the Passenger Baggage (Levy of Fees) Regulation (1966).
(SIDDHARTH KAK)
Commissioner of Customs (General)
Annexure-II
Agreement for Management of Warehouse
at IGI Airport, New Delhi
The undersigned hitherto the custodian and Manager of Accompanied Baggage Warehouse
at IGI Airport, Terminal-II, New Delhi, dealing with the custody of detained, confiscated and
mishandled baggage hereby assigns the management of the warehouse to Central Warehousing
Corporation (hereinafter called CWC) subject to the following terms and conditions:1.
The detained/mishandled baggage warehouses shall be handed over for management, to
CWC at the rent chargeable by M/s Airport Authority of India from time to time, and subject to
final confirmation; the present rent reportedly being Rs. 46,551/-only per month.
2.
The CWC shall levy such charges ar are notified by the Commissioner of Customs under the
Passenger Baggage (Levy of Fees) Regulations, 1966 from time time.
3.
The CWC shall not charge or collect any storage/demurrage charges in respect of detained
or confiscated baggage after detention certificate is issued by the Customs Department (not
below the rank of Day. Commissioner).
4.
Arrangements for adequate safety and security of the goods shall be made by the CWC.
5.
CWC will be liable to compensate Customs Deptt. for the leviable duties or any other applicable
charges including anyfine or penalty in respect of goods pilfered, lost or destroyed and also
the concerned person, to whom the goods belong in the event of any loss, pilferage in respect
of the goods kept in their custody, subject to provisions of Customs Act, 1962.
6.
CWC shall maintain detailed accounts and inventory of all the goods received by them from
the airlines or the persons concemed as custodian and shall produce such accounts for
inspection by a proper officer of customs and shall also submit periodical statements to the
proper officer in the form and manner as prescribed.
7.
CWC shall provide such assistance as may be specified by the proper officer from time to
time to the Officers of Customs for carrying out their duties under Customs Act 1962 and
other allied Acts including examination and stock verification of goods.
8.
CWC will ensure that the goods/packages received on the basis of ACO Cards issued by the
concerned airlines/passenger or the detention receipt issued by the Customs officers are
properly sealed in a manner that does not permit tampering of packages without leaving
obvious marks.
212
9.
Packages, if required to be sent back to the CWC after examination shall also be sealed by
the Customs Officer.
10. No person, including officials of CWC, shall open, remove and deal with the carog in any
manner other than those prescribed hereunder or without permission of the proper officer of
Customs.
11. The custodian would be expected to manage the Warehouse in a professional manner and
goods to be delivered to the passengers/their authorised representative and the Airlines as
the case may be as per approval of the Customs authorities accorded on the respective gate
pass.
12. The goods not cleared within 30 days by the Airlines or the passenger concerned shall be
liable to be removed by the Customs to their Disposal Units and to this CWC shall provide the
necessary details to Customs as and when such goods become ripe for disposal. The charges
so accrued to the Custodian shall be paid by Customs on such terms and conditions as are
prescribed by the Customs Act 1962 or as approved by the Commissioner of Customs in
tune with the practice in comparable situations.
13. The Custodian would be required to operate the Warehouse as per the timings notified by the
Commissioner of Customs.
14. The CWC shall be solely responsible for providing the equipment and manpower for handling
of the baggage.
15. The CWC shall also be responsible for the conduct of the staff working in their premises and
will take suitable action for any miscounduct/misdemeanor on thier part.
The above agreement/arrangement is liable to be terminated on the sole discretion of the
Commissioner of Customs (General) after giving an advance notice of one month.
(SIDDHARTH KAK)
Commissioner of Customs (General)
New Custom House
New Delhi.
213
Annexure-III
Office of the Commissioner of Customs (I&G) New Customs House : New Delhi-110037
Dated: 5th July 2011
No. : VIII (Aircus)/Tech/49/26/2001/Pt.
Public Notice No.18/2011
It is hereby informed to all concerned that the Handling and Storage Charges payable to
Central Warehousing Corporation, who are managing the Accompained Baggage Warehouse at
IGI-Airport since 2001, have been revised w.e.f.11th July 2011. Now they shall levy charges for the
Passenger Baggages at such Rates as are notified by the Commissioner of Customs (I&G) under
the Passenger Baggage (Levy of Fees) Regulation (1966), vide Notification dated 5th July 2011.
(V.K. Goel)
Commissioner of Customs (I&G)
Copy forwarded to:
1. The Additional Commissioner of Customs, IGI Airport, T-3, New Delhi
2. The Deputy Commissioner of Customs (Warehouse), IGI Airport, T-3, New Delhi
3. The Manager, CWC, IGI Airport, T-3, New Delhi
4. M/s GMR, Udian Bhawan, IGI Airport, New Delhi
5. All Airlines operating at IGI Airport, T-3, New Delhi
6. Notice Board
7. Guard file
Superintendent (Technical)
Office of the Commissioner of Customs (I&G) New Custom House : New Delhi-110037
Dated: 5th July 2011
No.: VIII (Aircus)/Tech/49/26/2001/Pt.
Notification
In exercise of Powers conferred under the Passenger’s Baggage (Levy of Fees) Regulations
(1966), I, the Commissioner of Customs (I&G), New Custom House, New Delhi, hereby notify the
revised Charges for Baggage Storage and Handling Services at IGI Airport, New Delhi, Passenger
Terminal-3 with effect from 11th July 2011, as under:
Type of Cargo
Period
Storage Charges per keg
per day
General Cargo
Upto 7 days including two free days (excluding
the date of landing)
Rs. 2.00
From 8th Day upto 30th Day
Rs. 3.50
st
Valuable Cargo
From 31 Day onwards
Rs. 5.50
Upto 7 days including two free days
(excluding the date of landing)
Rs. 7.00
From 8th Day upto 30th Day
Rs. 13.50
From 31st Day onwards
Rs. 20.00
Note:
1. The passenger/Airlines will be liable to pay an amount of Rs. 5/- per kg. towards Handling
Charges subject to minimum Rs. 200/- per bag for General Cargo; Rs. 500/- per bag for
214
2.
3.
4.
5.
Valuable Cargo; and Rs. 1000/- per bag for Commercial quantity of Gems, Jewellary and
Precious Cargo.
For Interline Baggage Rs. 100/- per bag upto 12 hours at the time of arrival of flight till the
time of departure of flight. After 12 hours, the Charges will be applicable as General Cargo
i.e. Rs. 200/- per handling.
All bills to be rounded off to nearest five rupees. The weight to be rounded off to nearest
kilogram.
Valuable cargo consists of Gold, Bullion, Currency Notes, Securities, Shares, Shares
Coupons, Travellers Cheques, Diamonds, Jewellary and Watches made of Silver, Gold,
Platinum etc.
These Rates will be applicable to goods released on or after 11th July 2011.
(V.K. Goel)
Commissioner of Customs (I&G)
215
Annexure-IV
Office of the Additional Commissioner of Customs: IGI Airport: New Delhi
C.No. VIII/WH/MH/11/2001
Dated: 7.02.2001
Office Order No. 31/2001
Sub: Clearance of Mishandled baggage and detained goods from the godown.
Consequent to the appointment of CWC as the custodian for the management of the Customs
warehouse the following procedure shall apply for the clearance of goods stored in the warehouse.
A Clearance of Mishandled baggage during normal office hours :
1) The passenger shall approach alongwith the AOC and PIR the specially designated ACO
hereinafter ACO (MH 1) of the Customs warehouse who will now be seated in the cabin in the
arrival hall, next to X-ray machine in the East wing.
2) The ACO (MH 1) will endorse the AOC card with remarks “please produce for examination”
and handover to the representative of CWC, also seated in the said cabin.
3) The ACO (MH 1) will also hand over to passenger a form of declaration as per copy enclosed
which shall be filled-up by the passenger while his baggage is being produced by the CWC.
The filled-in declaration will be handedover by the paxt to ACS (MH) at Counter No. 1.
4) CWC will present the baggage of the passenger before the ACS(MH). The AOC card shall be
retained by CWC.
5) The ACS (WH) shall get the passport of the passenger, written declaration examined by one of
the ACCOs and take a decision whether the baggage needs to be opened and examined.
Where the baggage appears bonafide it shall be sent only for X-ray screening by the Preventive.
The examination wherever necessary, will be recorded on the reverse of the declaration form.
6. ACO, Preventive will give suitable remarks-normal or otherwise on the written declaration after
the baggage has been X-rayed.
7) If the baggage is found to be in order it shall be ordered to be released, on payment of duty or
otherwise as the case may be. Copy of the declaration shall be stapled with PIR for safe
custody and subsequent handing over to record section under proper acknowledgement. Duty
payment particulars will be endorsed or written declaration. Particulars of clearance will also
be entered in the prescribed register.
8) Based on the AOC card, the CWC shall keep the bill for the storage charges ready and hand
over to the passenger by the time the assessment of his baggage is completed.
9) When all the clearance formalities have been cleared, ACO (MH 1) will issue a gate pass in the
prescribed proforma in triplicate. While the third copy will be retained by the Customs, two
copies will be handed over to the CWC. The CWC shall hand over one copy to the passenger
after obtaining payment of the storage charges and clear his baggage. The second copy of the
gate pass will be handed over by the passenger to the Customs at the exit gate of arrival.
B Clearance of Mishandled Baggage outside normal office hours :
1) The procedure mentioned A above will apply mutandis (to the extent applicable) with the only
modification that the clearance shall be accorded only in respect of such baggage as has been
received 48 hours earlier, excluding the date of landing.
C. Clearance of detained goods
1. Clearance of detained goods will be given only by the Customs warehouse staff.
2. The procedure mentioned at A above will apply mutatis mutandis except that :
(a) the goods will be requisitioned from warehouse based on th Gate Pass (in place of AOC)
and the the CWC will collect the stage charges while presenting goods before Customs.
(b) the goods will be invariably opened and examined and assessed on the original DR, as is
being done now.
216
(c) if the goods required to redeposited for any reason, a fresh DR will be made giving the
grounds of redepositing and particulars fo the old DR in terms of S.No. & date will be
recorded on it and a photocopy of old DR annexed thereto.
D. Clearance of goods for transshipment to other places.
1. The procedure for such movement is provided in Baggage (Transit to Customs Stations)
Regulations, 1967.
2. This procedure allows movement to such places which are designated as Customs stations.
While all the requirements lited in this regulation are required to be followed, permission for
transs ipment will be given by the DC/AC (Shift) on the PIR.
3. After the orders are issued by the DC and impliance of the required formalities by the
airlines by ACO (MH) based on which CWC will hand over the goods to the representative
of the airlines.
4. The particulars of such transshipment will be entered in the prescribed register by the
officers at counter No. 1.
5. The airline will be obliged to submit avidence of the goods having reached the destination
within a peri....of 2 weeks which shall be recorded in the prescribed register and railing
which necessary demand for duty will be issued. DC (WH) will examine the register once
a week and ensure that necessary demands ....essued in time.
E. Responsibility of CWC.
1. CWC would ensure that none of the baggage is emoved without the gate pass duly signed by
the authorised officer of Customs. Baggage found to have been removed otherwise will be
taken to have been removed without the approval of Customs and CWC will be liable to be
proceeded against as per the Customs Act, 1962 and the terms of the agreement. Particulars
of the Gate Pass will be retained by CWC for a period of 5 years from the date of clearance.
This procedure will come into effect from Feb. 2001.
Any difficulties in the implementation of the procedure may be brought to the notice of the
undersigned.
This issues with the approval of Commissioner of Customs (General.)
Deputy Commissioner of Customs (Admn./WH)
Copy to:
ACS (Warehouse)
217
Annexure-V
TRANSIT PASSENGER AND BAGGAGE DETAILS SLIP (D/T SLIP)
FOR INTERLINE BAGGAGE
In Bound Flight No
arrival date
arrival time
Sno
Passenger Name
Outbound flight No
date
ETD
Passport No
TAG Number
Baggage
Description
Gross wt.
cleared for deposit
Sign: Airlines
ACO/ACS (admn)
Xray Report : (ACO/ACS Prev)
CWC receipt:
cleared for retrieval
receipt alongwith date and time
ACO/ACS (admn)
Airlines
cleared for transit
ACO/ACS (Prev) Departure
218
Annexure-VI
Office of the Commissioner of Customs (Exports): New Custom House: Near IGI
Airport New Delhi
Dated the 26th December, 2003
Customs Public Notice No. 53/03
Subject : Procedure for clearance of Import/Export at Noida Special Economic Zone
(NSEZ). Noida through ICD, NSEZ, Noida
Under section 8 of the Customs Act 1962 [52 of 1962] a specially earmarked area of NSEZ in
possession of Central Warehousing Corporation was notified as Inland Container Depot (ICD)
vide Public Notice No.15, 2003 dated 30.4.2003 Subsequntly. Ms Central Warehousing Corporation
(CWC) was appointed as custodian. vide Public Notice No. 31/2003 dated 31.7.2003. Further it
was notified that the custodian i.e. CWC would undertake the transhipment of goods imported
from to ICD Tuglkabad (TKD), ICD Patparganj (PPG), ICD ACTL Ballabhgarh (ACTL) IGIA Cargo
complex and IGIA Passenger Terminal on execution of bond lnitially this facility of CWC acting as
custodian and carrier of goods was contined only to precious cargo i.e. gems & jewellery.
2. It has now been decided to extend this facility to general cargo also (goods other than gems &
jewellery). The procedure for import export of precious cargo and general cargo shall be regulated
as under in supersession of Public Notice No. 31/2003.
3. Procedure of Import for Gem & Jewellery at ICD NSEZ Noida
A. Import of Precious Cargo
3.1 CWC has been appointed as custodian of goods imported into the zone until they are cleared
by Customs. The transhipment of import cargo will be governed by chapter VIII of Customs
Act. 1962 and Goods Imported (Conditions of Transhipment Regulations 1995.
3.2 The consignments of precious cargo imported the zone unit through Delhi Air cargo are to be
transterred to the Zone by CWC In order to facilitate this transfer all Gems and & Jewellery
units are advised to instruct their supplier to clearly mention the part of discharge as NSEZ
Nodia so that this would be clearly retlected on Air was Bill and IGM of the Flight This would also
facilitate the transhipment procedure at Delhi Air Cargo On arrval the goods shall be deposited
at IAAI’s strong room at Air Cargo Complex (as is being undertaken at present) for safe custody,
pending transhipment to the CWC in the zone.
3.3 For the transhipment of the cargo to the zone CWC shall file a transhipment application
(Precious Cargo Transfer Manifest {PCTM} in quadruplicate for transhipment of the precious
cargo to ICD, NSEZ operated by them and the Asstt. Commissioner/Dy. Commissioner (Import)
would permit such transhipment after the usual formalities for transhipment as in other case of
transhipment are followed. The first copy will be retained for records. The running bond account
maintained in the Import Deptt will be debited to the extent of notional value of goods. The
format of PCTM is given below.
1
2
3
4
5
6
7
8
Sr. No.
S.I.R.
No.
Originating
Airport
Airway
Bill No.
Number
packages
Weight
Kgs
Any other
particulars
remarks
3.4 The Airline or their agents would manifest such precious cargo goods for transhipment to ICD.
NSEZ in the IGM of the concerned flight In addition a sub manifest in triplicate shall be prepared
exclusively for precious cargo, in the Import Deptt, which would be checked with the main
manifest After certification by the import deptt the original & duplicate copy of su manifest will
be handed over to CWC for presenting along with transhipment permit.
219
3.5 The Asstt Commissioner/Deputy Commissioner at the Air Cargo complex would give permission
for transhipment. On production of transhipment permit by CWC representative the Preventive
Officer (Inspector Customs) at Air Cargo Complex shall verify the seal and package nos with
reference to sub manifest and seal the security van engaged by CWC with Customs one time
lock seal in presence of authorised represetative of CWC and endorse all the 4 copies of
transhipment permit regarding loading of packages in the security van. The cost of the seal as
decided by the Commissioner of Customs will be borne by the CWC After sealing the security
van shall be moved from the Air Cargo Complex to ICD, NSEZ.
3.6 One copy of transhipment permit (in form PCTM) will be handed over to the Airline one copy of
transhipment permit alongwith original and duplicate copies of sub manifest kept in sealed
cover will be handed over to the CWC authorities under acknowledgement and the thrid copy
with the said acknowledgement forwarded for record and for taking action for discharge or
enforcement of the bond as the case may be.
3.7 The CWC shall carry the sealed cover containing the transhipment permit and sub manifest
along with the security van transporting the goods and shall produce thes ame to the Preventive
Officer posted at the gate of NSEZ who will verify the documents and ensure whether the one
time lock seal on the security van is intact before opening of the seal and endorse the
transhipment permit suitably. The duly acknowledged copy of transhipment permit and one
copy of sub manifest shall be sent back to the Air Cargo Complex IGIA New Delhi within 30
days or within the time as extended by Asstt Dy Commissioner (Imports). On receipt of these
documents the running bond account of CWC will be re-credited and the respective IGM closed.
If any shortage/damage is noticied by the NSEZ Customs, the same shall be recorded in the
sub manifest sent along with the acknowledged copy of transhipment permit for taking further
action by Asstt./Dy Commissioner Customs, Air Cargo Complex. One copy of transhipment
permit (PCTM) and sub-manifest shall be retained by NSEZ. Customs and shall be used for
filing of Bill of Entry by SEZ unit with NSEZ, Customs.
3.8 There will not be any routine examination of precious cargo. The units representatives/CHA will
present the assessed Bill of Entry to the custodian i.e., CWC. The custodian will hand over the
parcel to the officer posted for examination at CWC examination centre, who will verify the
marks and numbers and will give “Out of charge” After giving endorsement of “Out of Charge”
the officer examining the cargo will retain the original and duplicate copy of Bill of Entry and
submit the same to the office and hand over the copies to the units representative. The sub
manifest shall be closed accordingly.
3.9 Since the import parcel will be handed over to the unit without examination if the unit so desire
they can examine the parcel themselves at CWC examination centre immediately after receipt
of parcel but under the supervision of Customs officer. Such parcels shall be opened and
examined in prsence of officer giving “Out of Charge” If any discrepancy is noticed, the units
representative shall make a request on the B/E “Please seal the package and re-deposit with
CWC for detailed examination” On the request of the unit the package shall be sealed by the
Customs in presence of the units representative by Customs seal. The officer will give an
endorsement on the B/E CWC please re-deposit the package for detailed examination” After
re-depositing the parcel the unit shall intimate in writing to the Asstt. Dy. Commissioner of
Customs. Noida SEZ giving their doubts/reasons for re-examination. On receipt of the request
Asstt/Dy Commissioner of Customs, SEZ will assign the work to Appraiser for detailed
examination and take appropriate action with the out come of re-examination.
B. Precious cargo imported by baggage:
3.10 In this case the passenger bringing the precious cargo baggage shall present the package at
the detention counter in the arrival hall of IGI Airport for detaining the cargo for transfer to ICD,
Noida SEZ. The Customs officer at Passenger Terminal. IGI Airport shall detain the consignment
and issue a Detention Receipt (DR) to the passenger. The detained package shall be deposited by
220
customs with the CWC warehouse at IGI Airport aong with duplicate copy of DR The CWC as
custodian of ICD. NSEZ shall make a request to the Airport Customs for transfer of the transhipment
of precious cargo in the “Form PCTM as in the case of transhipment of goods from the air cargo
complex in quadruplicate. The transfer of the goods shall be allowed by the Asstt Dy Commissioner
Customs, IGIA (Baggage) against the bond executed by the CWC with them. In case CWC as
custodian of the goods at IGIA Passenger Terminal has executed a bond. there shall not be
requirement of execution of separate bond. The transfer of sealed packages of precious cargo
shall be made on the cover of duplicate copy of DR and PCTM in triplicate (2nd,3rd,&4th copies).
The Air Customs Officer IGIA shall seal the security van transporting the packages with one time
lock and make endorsement on the duplicate copy of DR and all the copies of PCTM. On arrival of
the goods at ICD, NSEZ the Preventive Officer posted at the NSEZ Gate after verification of the
seal shall make endorsement on the duplicate copy of DR and three copies of the PCTM
accompanying the consignment.
3.11 The unit representative shall present the assessed bill of entry to the CWC. The DR No shall
be the IGM No. of the consignment and CWC shall hand over the package to the customs officer
posted at CWC and the package shall be delivered to the unit on the basis of original copy of DR
accompanied with assessed bill of entry. The Customs Officer shall discharge the original and
duplicate copy of DR along with one copy of PCTM duly endorsed by CWC and NSEZ Customs
shall be forwarded to the Airport Customs for their records. On receipt of the original copy of DR
along with copy of PCTM duly endorsed the bond of custodian shall be re-credited or action for
recovery of duty taken from the custodian in case of short receipt damage to the goods as the
case may be. As usual there would be no examination in routine and the package shall be handed
over after verification of marks and numbers and the seal affixed on the package. Out of charge
shall be given and the original and duplicate copies of bill of entry shall be retained by the officer
posted at CWC Examination centre. One copy of PCTM shall be duly endorsed by the NSEZ
Customs and CWC and shall be retained by the Noting Section of NSEZ Customs and entry shall
be closed after receipt of original and duplicate copies of the Bill of entry.
4. Procedure of Export for Gem & Jewellery at ICD. NSEZ.
A. Export of Precious Cargo
4.1 Export will be allowed on the basis of self-certification by the unit. Therefore all units shall
make the following declaration on the face Shipping Bill “We hereby certify that the contents of the
packages covered under Shipping Bill are as per attached invoice and packing list” and Shipping
Bill shall be signed by authorized signatory with full name and designation. SEZ units or their
agents will file six copies of shipping bill namely original duplicate exchange control copy exporters
copy and two transference copies. Those exports who wish to obtain an extra copy may file seven
copies.
4.2 The Gem & Jwellery units shall present the parcel sealed with their own seal to the Officer
attending the examination at CWC examination centre A report regarding self sealing of package
and contents shall be made on the original & duplicate copies of the shipping bill by the authorized
representative of the unit. The marks and number of all the packages will be verified by the officer
posted for examination who after verifications will write down the “report” in respect of verification
of marks & Nos on the reverse of the original & duplicate copy of Shipping Bill He will also indicate
that the goods has not been examined by customs. After obtaining the Let Ship endorsement from
the paper officer on the original and duplicate copy of Shipping Bill the parcel shall be deposited
with CWC along with the duplicate and triplicate copies of Shipping Bill. After receipt of the sealed
arecel for export, it would be the responsibility of CWC for the safe transportation of the parcel to
Air Cargo complex and till the same is handed over to the Airlines with unit seal intact, In this regard
CWC shall maintain an Export Register in the following format.
221
CWC Export Register
1
2
3
4
5
6
7
Sr. No.
S.E.R.
No.
S.B.No.
Exporter’s
Name
C.H.A.
No.
Description of
goods
No. of Pkgs
8
Nt. Weight
9
Value
Rs.
10
Custom Token
No./Gate Pass
11
Destination
(Port)
12
Air way Bill
No.
13
Trip No. & dt
4.3 The parcels shall be transferred to the Air Cargo Complex on the strength of Transference
copies of shipping bill filed by the unit. CWC shall be responsible for transport of cargo from CWC.
NSEZ to IAAI strong room at Air Cargo Complex (Export) The Airline or the Airport Authority will
acknowledge the receipt of export cargo at the Air Cargo complex on the Transference copy of
shipping bill. The proper officer of Customs at air cargo complex would be inspecting the seal of
the package and shall endorse two transference copies of the shipping bill regarding shipment of
the goods. The transference copies of the shipping bill would be sent to the proper officer of
Customs at the Export Shed of air cargo complex within 24 hours of the loading of the goods. The
Export Shed will forward a copy of transference shipping Bill along with a copy of export manifest
to ICD, NSEZ, as confirmation of shipment of goods. The second copy of the transference shipping
bill be retained by the Custom House at the airport.
4.4 Assistant Commissioner or Deputy Commissioner Customs. Air cargo complex will ensure
that all the shipping bills and statement have been duly dispatched to the ICD. NSEZ.
4.5 At the ICD, NSEZ, the export manifest and transference copy of the shipping bill received from
the Custom House will be co-related for closure of the export manifest.
B. Export of Precious Cargo by Baggage mode:
4.6 For the purposes of exhibition export promotion etc. personal carriage of jewellery items is
permitted to the SEZ units subject to stipulated conditions In this case no separate permission
from Commissioner of Customs. Airport shall be required. The procedure for assessment is the
same as in the case of normal cargo. The Gem & Jewellery units shall present the parcel with their
own seal to the Customs officer at CWC warehouse. The marks and numbers of all the packages
will be verified as such officer, and a report (in respect of verification) will be written on the reverse
of the duplicate copy of Shipping Bill. After assessment is completed, all copies of the shoping Bill
including two transference copies shall be handed over by NSEZ Customs at WC. The sealed
parcel shall be transported by CWC from the Zone and deposited a CWC warehouse at the IGIA
Passenger Terminal on the cover of transference copies of the shipping bill. The officer in-charge
of the warehouse will accept the packages on the strength of transference copies of the shipping
bill and retain one copy and hand over the other copies of the gate pass to CWC after making
necessary endorsement. The authorized representative of the unit going abroad as passenger will
carry the duplicate and triplicate copy of the shipping will with Let Export Order on the certicate
copy at the time of departure. After checking in the passenger shall present the certicate and
tirplicate copies of the Shipping Bill to the customs officer at departure. They will arrange the
delivery of the parcel on board the Aircraft. The officer in-charge at CWC warehouse shall make
necessary endorsement in the register indicating export of the parcel. The Customs officer at
Airport will also give the shipment endorsement the reverse of the duplicate and triplicate copy of
Shipping Bill and handover the triplicate copy to the passenger Duplicate copy of Shipping Bill wil
be attached to the flight manifest.
222
5. Procedure of Import for General Cargo other than Precious Cargo at ICD. NSEZ, NOIDA.
A. Import other than baggage
5.1 Imported cargo for NSEZ. Noida unloaded at a port (Air Cargo.....TKD. PPG or ACTL, etc) shall
be allowed to be transhipped to the ICD NSEZ by the custodian i.e. CWC as per the provisions of
Section 54 of the Customs Act and the goods imported (Conditions of Transhipment) Regulations
1995. In order to avail the flight the NSEZ units are advised to instruct their supplier to celarly
mention the.....of discharge as NSEZ. so that it can be refiected in Bill of lading. Airway bill & IGM.
The CWC or their agent shall submit an application along with transhipment in quadraplicate and
sub manifest in triplicate exclusively for the containerized cargo. The said manifest should indicate
all particulars such as ISO identification marks. Continer No. description of goods and endorsement
therein for FCL/LCL Cargo clearance at ICD, NSEZ. The Asstt. Dy Commissioner would give the
permission for transhipment.
5.2 After unloading of the container at the port of entry the particular of the container will be checked
with the manifest file and container sealed with Customs seal. For this purpose the Import Noting
Section shall send two copies of sub............to NSEZ customs. The particulars of the transhipment
permit together with the.........transhipped inland way bill No. etc. shall be recorded by the Preventive
unit and submitted to Asstt. Dy Commissioner Container Unit at the Gatway port a for the procedure
at the port.
5.3 On arrival of the containers within Customs bonded area at ICD, NSEZ, the CWC authorities
will give an advice to the Customs Preventive Officer posted at ICD, NSEZ about safe arrival of the
container i.e. copy of transhipment permit and copy of sub manifest. On the basis of this advice
and after carrying out usual checks of safety of containers, the fact regarding safe arrival of the
containers shall be noted in customs copies of sub manifest and transhipment permit and will
send the same to the gateway Customs port, where necessary action with regard to bond submitted
by CWC will be taken. The Preventive Officer shall keep one sub manifest copy for record and
send the other to noting clerk. The Noting clerk will give running serial number to sub manifest. The
noting of bill of entry will be done against the sub manifest. If the seals are found broken at the time
of examination of the seals of the containers at ICD, NSEZ by the Customs officers, custodian and
representative of the insurance company, shortages, if any shall be duly recorded and signed by
all those present. Custodian shall be liable to pay duty on such goods as found short, at the rate
previling on the date of delivery of import manifest u/s 45(3) of Customs Act, 1962. The custodian
shall also be liable to pay any penalties that may be levied u/s 116 of the Customs Act, 1962. The
transhipment of containers shall be allowed by the customs in terms of notification No. 104/94Cus.
5.4 The CWC at ICD, NSEZ is required to maintain a register indicating details of imports. The
entries therein should be filled after arrival of the containers at the ICD, NSEZ. They are also
required to send to send a copy thereof to Customs authorities for each container.
5.5 Terminal Manager, CWC shall make a written request for de-stuffing of the LCL containers to
the Customs Supdtt./Appraiser at ICD, NSEZ. The permission shall be granted by making a suitable
endorsement on the request letter itself. De-stuffing of ICD container will be carried out in presence
of Customs officer, representative of custodian and representative of the Importer/CHA. After destuffing is completed, representative of the custodian shall prepare de-stuffing sheet, which will be
signed by the all present The contents of the packages i.e. packages/chests/bales/boxes, etc, will
be tallied and marks and numbers compared with sub manifest. Any shortages noticed shall be
recorded and certified by Customs Officers on both copies of the sub-manifest.
223
5.6 De-stuffing of FCL container shall be carried out only if required by Customs authorities. On
the request of the unit the FCL container shall be allowed to be taken directly to the premises of
NSEZ unit and de-stuffing undertaken in the unit presence of Customs after bill of entry has been
filed by the unit and assessed by the Customs After verification of marks and numbers goods shall
be given out of charge by the Proper Officer of the Customs.
5.7 In case of LCL cargo or goods imported through air cargo and consigned to ICD, NSEZ, these
shall be allowed to be transhipped to NSEZ with the difference that the transfer shall be made by
the custodian in a closed body container trucks or bonded trucks In case of import by air cargo the
transhipment application along with a copy of the airway bill shall be submitted and goods allowed
to be transported from the warehouse after loading into the truck under supervision of customs
officers and sealing of the truck with one time bottle seal by customs. On arrival of consignment at
NSEZ Nodia, the seal will be verified by NSEZ customs. Rest of the procedure for clearnce of
goods would be the same as in the case of other (FCL) cargo.
B. Import through baggage:
5.8 In this case, passenger bringing the cargo baggage shall present the package at the detention
counter for detaining the cargo for transfer to Noida SEZ unit. The Customs officer at Passenger
Terminal, IGI Airport, shall detian the consignment and issue a DR to the passenger. The detained
package shall be deposited with CWC warehouse at IGI Airport along with duplicate copy of DR.
The CWC, NSEZ shall make a request to the Airport Customs for transfer of the detained cargo to
their premises at CWC examination centre at the Noida SEZ by way of filing of Cargo Transfer
Manifest in quintuplicate. The Airport Customs shall allow the transfer of the package and goods
shall move on the cover of the CTR. A copy of DR shall accompany the consignment and after
arrival of the package at CWC, NSEZ, the units representative shall present the assessed bill of
entry to the CWC. CWC shall hand cover the package to the axamining officer posted at the
examination centre of CWC and the package shall be delivered to the unit on the basis of original
copy of DR accompained with assessed bill of entry. The officer posted at the examination centre
shall discharge the original and duplicate copy of DR after obtaining the acknowledgment from the
units representative. The original copy shall be forwarded to the Airport Customs for their records.
There would be no examination in routine and the package shall be handed over after verification of
marks and numbers and the seal affixed on the package. Out of charge shall be given and the
officer posted at CWC Examination centre shall retain the original and duplicate copies of Bill of
Entry.
6. Procedure of Export for General Cargo [Other than Precious Cargo] At ICD, NSEZ,
Noida
Export of goods [other than precious cargo]
6.1 Exports shall be allowed on the basis of self-certification by the unit. Therefore all the units
shall make the following declaration on the face of Shipping Bill “We hereby certify that the contents
of the packages covered under Shipping Bill are as per attached invoice and packing list”. This
declaration shall be signed by authorized signatory with full name and designation.
5.2 The units shall present the consignment sealed with their own seal to the officer attending the
examination at CWC, NSEZ. The marks and numbers of all the packages will be verified by the
Customs officer, who after verification will write down a report regarding verification of marks &
Nos. on the reverse of the original and duplicate copy of Shipping Bill and hand over these to units.
After obtaining the Let Ship endorsement from the proper officer on the Shipping Bill on the duplicate
copy. The consignment shall be deposited with CWC along with the duplicate and triplicate copies
of Shipping Bill After receipt of the sealed consignment for export, it would be the responsibility of
CWC for the safe transport of the consignment to Air Cargo complex ICD (TKD, PPC. ACTL) on
224
the cover of transference copies of the shipping bill and till the time the same is handed cover the
the airlnes with unit seal intact. In this regard CWC shall maintain an Export Register in airlines
with unit seal intact. In this regard CWC shall maintain an Export Register in the format at mentioned
in Para 4.2 above and the disposal of shipping bills and closure of EGM shall be as per the procedure
covered under the export of precious cargo by cargo mode.
7. Export of containerized cargo:
7.1 The CWC will send requisition for empty container to the Regional Manager (North) ICD, TKD,
New Delhi or to the Manager ICD/CFS, Patparganj, New Delhi. Empty containers will move on
chassis from ICD, TKD or ICD, CFS Patparganj to ICD, NSEZ, where stuffing will be done while
the container remained on the chassis. Examination of empty container, stuffing and sealing of
stuffed containers will be done at ICD. NSEZ under the supervision of officers of Customs stationed
at the CWC Complex, NSEZ. The sealed container shall move on the cover of transference copies
of the shipping bill to Tuglakabad Siding, where containers will be off loaded to be subsequently
loaded or to a Railway Wagon. In addition to normal information given on the shipping bill, the
exporter shall be required to mention the name of the gateway port and the serial number of the
container. The procedure for transfer of the goods to gateway port as well as closure of EGM shall
be same as covered earlier in this Public Notice.
7.2 Stuffing of FCL cargo Export
On the request of the unit the container shall be allowed to be taken to the premises of the unit
for stuffing of the goods to be exported After verification of marks & Nos. by the Officer the goods
shall be stuffed in the container and sealed by the unit themselves and a certificate regarding self
sealing and contents of the container on the original and duplicate copies of the shipping bill as
well as on the transference copies of the shipping bill would be given by the authorized representative
of the unit. After let export order the container shall be handed over to the custodian. It would be the
responsibility of the custodian i.e. CWC for safe transport of the sealed container to the gateway
port with seal intact. The procedure shall be same as enumerated in this public notice.
8. Export of cargo (other than precious cargo) through Baggage:
8.1 The procedure for assessment and verification will remain the same as in the case of goods
exported through air cargo complex. Further, the procedure for export of Gems & Jewellery through
baggage as laid down in para 3.4 above shall apply mutatismutandis in the case of other goods
also.
9. To ensure that imported cargo on which duty has not been paid, are not pilfered enroute NSEZ,
a bond shall be executed by the custodian. The bond value shall be equal to the value of the goods.
However, the bond value shall be determined on the basis of the notinal value of the goods sought
to be transhipped
10. CWC shall without any delay, make available the relevant records of exports to Customs as
and when required by Customs for inspection. Verification and serutiny CWC shall also make
good for any loss of Customs revenue resulting on account of any damage, pilferage or loss of the
consignment in their custody or on account if nondelivery or on account of ommission on their
part, which may directly or indirectly result in loss of Customs revenue.
11. The above procedure shall be applicable only to the units located in NSEZ.
12. This procedure will come into effect from the 12th January, 2004.
With the issuance of this Public Notice the procedure prescribed by earlie Public Notices is
modified to the extent covered under this Public Notice. Problens and difficulties, if any with regard
to the procedure may be brought to the notice of undersigned either directly or through Deputy
Commissioner of Customs. NSEZ.
(R.S. SIDHU)
COMMISSIONER OF CUSTOMS (EXPORTS)
225
Copy to:
1. Commissioner (Import & General). New Delhi
2. Commissioner of Customs (ICDs), New Delhi
3. Development Commissioner, SEZ, Nodia
4. Deputy/Assistant Commissioner (Cus), SEZ, Noida
5. All Additional/Joint/Deputy/Assistant Commissioner of Air Cargo (Exports)
Commissionerate. New Delhi
6. Additional Commissioner of Customs. ICD (TKD/PPG/ACTL)
7. Additional Commissioner of Customs. IGI Airport.
8. NSEZ Units Association
226
Annexure-VII
Office of the Commissioner of Customs (Import & General)
New Custom House: New Delhi
Dated 12-12-03
Public Notice No. 51/2003
Subject :Import and Export of Gems and Jewellary items as Personal Carriage by
Passenger-reg.
Attention of all concerned is invited to the Provisions of para 4.4.15 and 6.24 of the Exam Policy
2002-07 and Paras 4.61, 4.81 and 4.82 of the Hand Book of Procedures, 2002-07, which allows
Personal Carriage of Gems and Jewellary items to be exported/ imported through passengers of
Indian/Foreign origin. In respect of clearance of such goods through Indira Gandhi International
Airport, New Delhi. Procedure as detailed below shall be followed w.e.f.01.12.2003.
2. Custodian :CWC have been appointed as Custodian by the Commissioner of Customs, at IGI Airport,
New Delhi under section 45 (1) of Customs Act, 1962.
3. Imports :(a) Under this scheme, passengers will be permitted to carry Gems and Jewellary items on behalf
of an importer who is otherwise permitted to import such goods in accordance with Exim Policy in
force.
(b) The passenger on arrival at the IGI Aiprot, New Delhi shall present the parcel containing the
Gems and Jewellary items brought by him and declare the details of the items before the Customs
Officer at a specially designated counter in the Customs arrival hall. While presenting the parcel,
the passenger shall also produce the related invoice and packing list of the item under import. On
presentation of the parcel, the same will be sealed with Customs Seal. The passenger shall also
put his dated signature as a token of having sealed the same in his presence. After sealing the
parcel with the Custodian CWC for safe custody and transfer to the designated Customs clearance
centre at AAL, Air Cargo Import Shed for assessment and clearance as per rules. The DR will be
made in the name of the passenger A/c. the firm/company on whose behalf the parcel is imported.
While depositing the parcel with the custodian the passenger shall make the following endorsement
on the DR “Parcels sealed and deposited at CWC in my prsence.” The Customs Officer shall
ensure that all the details such as full name of the passenger, his passport Number and date,
address of the passenger and the flight No. are properly entered in the DR. After preparation of the
DR and sealing of the parcel, the passenger alongwith the sealed parcels will be escorted by the
Customs Officer to the acknowledge the receipt fo the parcel on the reverse of the Dr and indicate
the serial no. of the Import Register maintained by the Custodian.
(c) Since the parcel is imported by the passenger on behalf of an importe; it shall be ensured by
the passenger that the name and address of the firm is clearly indicated on the parcel, which will
be treated as “M.K.s Nos” for the purpose of declaration on the Bill of Entry. The Import/Export
Code No. and Pan/Bin No. of the Firm/company will be required to be declared in the Bill of Entry
at the time of clearance of the parcel. It shall be noted that no change of the name and address of
the firm/company declared at the time of arrival shall be permitted on a later stage except with the
approval of Addl./Joint Commissioner, Customs, IGI Airport.
(d) The custodian at Airport shall, on the morning of the next workingday, transfer the parcels so
received to the Air Cargo, Import Shed. The transfer shall be effected on the strength of a Precious
Cargo Transfer Manifest (Personal Carriage). [PCTM (PC) in short], which will be prepared in
227
duplicate as per Annexure. For such transfer, CWC is free to appoint a carrier/transporter, but the
ultimate responsibility of safe transport/accounting of the cargo shall be solely of CWC.
(e) Custodian CWC at IGI Airport, shall maintain proper account of receipt and clearance of such
parcels and file the original PCTM (PC) with the Customs at AAI, Air Cargo Import Unit as usual
except that the original DR shall be pasted with the original copy of the Bill of Entry in place of
Airway Bill in the case of normal imports.
4. Exports :(a) In order to facilitate the export benefit claims of Gems and Jewellary items such items intended
to be carried by foreign bound passengers will be permitted to be exported only against Shipping
Bill. The Exporter or his authorized clearing agent shall present the parcel to the Jewellary Appraiser
at Jhadewalan Jewellary Complex or NOIDA special Economic Zone for assessment and clearance
well in advance of the departure of the passenger. The exporter shall also make a declaration in
the shipping bill that “the goods covered by this shipping bill will be exported as Personal Carriage
by Passenger....holding passport No...issued on .......traveling abroad on Flight No.......dated............”
The procedure in respect of assessment and clearance shall be the same as in the case of
normal exports. After examination and completion of the assessment formalities the parcel will be
sealed by Customs in presence of the exporter or his authorized clearing agent.
(b) After assessment is completed, the original copy of shipping bill and GR will be retained with
the Customs and the sealed parcels will be transferred to IGI Airport under Customs escort where
the sealed parcel will be handed over to the Custodians viz. CWC, under a Detention Receipt
(DR) issued to the passenger. The custodian at IGI Airport shall check the customs seal on parcels
at the time of receipt and shall make necessary entries in the detained Goods Register.
(c) The passengers after completion of immigration formalities shall approach the Customs PRO
at the departure lounge with the duplicate and duplicate copies of the Shipping Bill, original copy of
DR and authorization from the exporter, in the format annexed, for collecting the parcels to be
carried by him. After verifying the details of the passenger with reference to DR the custodian shall
handover the sealed parcel to the passenger in the presence of Customs Officer. The custodian
shall obtain acknowledgement of the passenger and also the customs officer on the DR register.
The customs Officer will endorse the duplicate and triplicate copies of the shipping bill with ‘Export
vide Flight No.............and date....................’and shall retain the duplicate copy of shipping bill and
handover the triplicate copy to the passenger. The Custom officer escorts the passenger with the
parcels upto the aircraft.
(5) It is clarified that exporter should comply with the provisions of the para 4.62 of the Hand Book
of the procedures in the case of Personal Carriage by foreign buyers.
(6) As regards Units located in NSEZ, Noida the procedure for import and export as baggage
prescribed vide Public Notice No. 31/ACE/03 dated 11.08.03 of Commissioner of Customs (Exports),
shall continue to be followed.
(K.R. BHARGAVA)
COMMISSIONER (IMPORT & GENERAL)
228
Annexure-VII
Office of the Commissioner of Customs (Import & General)
New Custom House: New Delhi
Dated 12-12-03
Public Notice No. 5/2003
Subject :Import and Export of Gems and Jewellary items as Personal Carriage by
Passenger-reg.
Attention of all concerned is invited to the Provisions of para 4.4.15 and 6.24 of the Exam Policy
2002-07 and Paras 4.61, 4.81 and 4.82 of the Hand Book of Procedures, 2002-07, which allows
Personal Carriage of Gems and Jewellary items to be exported/ imported through passengers of
Indian/Foreign origin. In respect of clearance of such goods through Indira Gandhi International
Airport, New Delhi. Procedure as detailed below shall be followed w.e.f.01.12.2003.
2. Custodian :CWC have been appointed as Custodian by the Commissioner of Customs, at IGI Airport,
New Delhi under section 45 (1) of Customs Act, 1962.
3. Imports :(a) Under this scheme, passengers will be permitted to carry Gems and Jewellary items on
behalf of an importer who is otherwise permitted to import such goods in accordance with
Exim Policy in force.
(b) The passenger on arrival at the IGI Aiprot, New Delhi shall present the parcel containing the
Gems and Jewellary items brought by him and declare the details of the items before the
Customs Officer at a specially designated counter in the Customs arrival hall. While presenting
the parcel, the passenger shall also produce the related invoice and packing list of the item
under import. On presentation of the parcel, the same will be sealed with Customs Seal. The
passenger shall also put his dated signature as a token of having sealed the same in his
presence. After sealing the parcel with the Custodian CWC for safe custody and transfer to
the designated Customs clearance centre at AAL, Air Cargo Import Shed for assessment
and clearance as per rules. The DR will be made in the name of the passenger A/c. the firm/
company on whose behalf the parcel is imported. While depositing the parcel with the custodian
the passenger shall make the following endorsement on the DR “Parcels sealed and deposited
at CWC in my prsence.” The Customs Officer shall ensure that all the details such as full
name of the passenger, his passport Number and date, address of the passenger and the
flight No. are properly entered in the DR. After preparation of the DR and sealing of the parcel,
the passenger alongwith the sealed parcels will be escorted by the Customs Officer to the
acknowledge the receipt fo the parcel on the reverse of the Dr and indicate the serial no. of
the Import Register maintained by the Custodian.
(c) Since the parcel is imported by the passenger on behalf of an importe; it shall be ensured by
the passenger that the name and address of the firm is clearly indicated on the parcel, which
will be treated as “M.K.s Nos” for the purpose of declaration on the Bill of Entry. The Import/
Export Code No. and Pan/Bin No. of the Firm/company will be required to be declared in the
Bill of Entry at the time of clearance of the parcel. It shall be noted that no change of the name
and address of the firm/company declared at the time of arrival shall be permitted on a later
stage except with the approval of Addl./Joint Commissioner, Customs, IGI Airport.
(d) The custodian at Airport shall, on the morning of the next workingday, transfer the parcels so
received to the Air Cargo, Import Shed. The transfer shall be effected on the strength of a
229
Precious Cargo Transfer Manifest (Personal Carriage). [PCTM (PC) in short], which will be
prepared in duplicate as per Annexure. For such transfer, CWC is free to appoint a carrier/
transporter, but the ultimate responsibility of safe transport/accounting of the cargo shall be
solely of CWC.
(e) Custodian CWC at IGI Airport, shall maintain proper account of receipt and clearance of such
parcels and file the original PCTM (PC) with the Customs at AAI, Air Cargo Import Unit as
usual except that the original DR shall be pasted with the original copy of the Bill of Entry in
place of Airway Bill in the case of normal imports.
4.
Exports :-
(a) In order to facilitate the export benefit claims of Gems and Jewellary items such items intended
to be carried by foreign bound passengers will be permitted to be exported only against Shipping
Bill. The Exporter or his authorized clearing agent shall present the parcel to the Jewellary
Appraiser at Jhadewalan Jewellary Complex or NOIDA special Economic Zone for assessment
and clearance well in advance of the departure of the passenger. The exporter shall also
make a declaration in the shipping bill that “the goods covered by this shipping bill will be
exported as Personal Carriage by Passenger....holding passport No...issued on .......traveling
abroad on Flight No.......dated............” The procedure in respect of assessment and clearance
shall be the same as in the case of normal exports. After examination and completion of the
assessment formalities the parcel will be sealed by Customs in presence of the exporter or
his authorized clearing agent.
(b) After assessment is completed, the original copy of shipping bill and GR will be retained with
the Customs and the sealed parcels will be transferred to IGI Airport under Customs escort
where the sealed parcel will be handed over to the Custodians viz. CWC, under a Detention
Receipt (DR) issued to the passenger. The custodian at IGI Airport shall check the customs
seal on parcels at the time of receipt and shall make necessary entries in the detained Goods
Register.
(c) The passengers after completion of immigration formalities shall approach the Customs
PRO at the departure lounge with the duplicate and duplicate copies of the Shipping Bill,
original copy of DR and authorization from the exporter, in the format annexed, for collecting
the parcels to be carried by him. After verifying the details of the passenger with reference to
DR the custodian shall handover the sealed parcel to the passenger in the presence of
Customs Officer. The custodian shall obtain acknowledgement of the passenger and also
the customs officer on the DR register. The customs Officer will endorse the duplicate and
triplicate copies of the shipping bill with ‘Export vide Flight No.............and date....................’and
shall retain the duplicate copy of shipping bill and handover the triplicate copy to the passenger.
The Custom officer escorts the passenger with the parcels upto the aircraft.
(5) It is clarified that exporter should comply with the provisions of the para 4.62 of the Hand Book
of the procedures in the case of Personal Carriage by foreign buyers.
(6) As regards Units located in NSEZ, Noida the procedure for import and export as baggage
prescribed vide Public Notice No. 31/ACE/03 dated 11.08.03 of Commissioner of Customs
(Exports), shall continue to be followed.
(K.R. BHARGAVA)
COMMISSIONER (IMPORT & GENERAL)
230
Copy to:
1. Commissioner (Import & General). New Delhi
2. Commissioner of Customs (ICDs), New Delhi
3. Development Commissioner, SEZ, Nodia
4. Deputy/Assistant Commissioner (Cus), SEZ, Noida
5. All Additional/Joint/Deputy/Assistant Commissioner of Air Cargo (Exports)
Commissionerate. New Delhi
6. Additional Commissioner of Customs. ICD (TKD/PPG/ACTL)
7. Additional Commissioner of Customs. IGI Airport.
8. NSEZ Units Association
231
Annexure-VIII
Office of the Additional Commissioner of Customs IGI Airport: New Delhi
F.No. VIII(WII)393/MISC/04-4694
Dated
Office Order No. 152/04
Subject :Revised prodcedure for clearance of precious cargo imported by
baggage-reg.
Attention of all concerned is invited to Costoms Public Notice No.53/03 issued by the
Commissioner of Customs (Exports), New Delhi regarding revised procedure for Import/Export fo
precious Cargo and General Cargo. In view of the Customs Public Notice referred to above, the
procedure of clearance of Precious Cargo imported through baggage at IGI Airport, New Delhi is
Delhi is as follows:
(i)
The passenger bringing the precious cargo as baggage shall present the package at
Red Chennal Counter No. 3 or 9 in the arrival hall of JGI Aiport for the purpose of detaining
the cargo for transfer to ICD/NOIDA SEZ.
(ii)
The Air Customs Officer deployed at Counter No. 8 or 9 of the Red Channel in the arrival
hall of IGI Aiport, New Delhi shall detain in the consignment reffered to above and issue
a Detention Receipt (DR) to the passenger.
(iii)
The detained package shall be deposited by the Customs Officer with the CWC
Warehouse at IGI Aiport alongwith duplicate copy of the detention receipt.
(iv)
The CWC as Custodian of ICD/NSEZ shall make a request to the Assistant/Deputy
Commissioner (Shift) for transfer of the detained cargo to their premises in ICD/NSEZ.
The above request by CWC shall be made in “Form PCTM” in quadruplicate.
(v)
The application form CWC referred to above shall be processed by Air Customs Officer
(Warehouse), IGI Aiport, New Delhi. After processing the application in a file, Air Customs
Officer (Warehouse) shall submit the file to Air Customs Superintendent (Warehouse),
IGI Airport, New Delhi for onward submission to the Assistant/Deputy Commissioner
(Shift).
(vi)
The Assistant/Deputy Commissioner (Shift) shall grant necessary permission to CWC
for transfer of the consignment against the bond executed by CWC with Customs.
(vii)
After obtaining permission from Assistant Commissioner/Deputy Commissioner (Shift),
the transfer of the sealed packages of precious cargo shall be made under the cover of
duplicate copy of DR and PCTM in triplicate (2nd, 3rd,4th copies)
(viii) The Air Customs Officer (Warehouse), IGI Airport, New Delhi shall seal the security van
transporting the package with one time lock and make endorsement on the duplicate
copy fo DR and all the copies of PCTM.
(ix)
On arrival of the goods at ICD/NSEZ, the Preventive Officer posted at NSEZ/ICD gate,
after verification of the seal, shall make endorsement on the duplicate copy of DR and
three copies of PCTM accompanying the consignment.
(x)
For clearance of the consignment from NSEZ/ICD, the representative of the importer
shall present the assessed bill of entry to the CWC at NSEZ/ICD, as the case may be.
The DR No. shall be treated as the IGM No. of the consignment.
232
(xi)
CWC at NSEZ/ICD shall the hand over the package to the Customs Officer posted at
CWC NSEZ/ICD and Customs Officer shall deliver the package to the representative of
the Importer on the basis of original copy of DR accompanied with assessed bill of entry.
As usual, there will be no examination in routine and the package shall be handed over
after verification of marks, numbers and the seal affixed on the package.
Action to be taken by NSEZ/ICD Customs after delivery of the consignment.
After giving out of charge, the original duplicate copies of the bill of entry shall be retained by the
officers posted at CWC examination cente. One copy of PCTM shall be duly endorsed by the
NSEZ/ICD customs and CWC and shall be retained by the Noting Section of NSEZ/ICD Customs
and entry shall be closed after receipt of original and duplicate copies of the Bill of Entry.
The original copy of DR alongwith one copy of PCTM duly endorsed by CWC and NSEZ/ICD
Customs shall be forwarded to Airport Customs for their records.
Action to be taken by Airport Customs on receipt of duly endorsed original copy of DR and
copy of PCTM.
On receipt of the above mentioned documents, the bond of custodian shall be re-credited or
action for recovery of duty taken from the Custodian in case of short receipt/damage to the goods,
as the case may be.
Additional Commissioner
IGI Airport, New Delhi
Cop forwarded to:
i)
The Deputy Commissioner, Customs, IGI Airport, Shight A, B,C,/Tech for informations.
ii) The Meanings, CWC, New Delhi.
233
Annexure-IX
Office of the Additional Commissioner of Customs (Exports) New Customs House,
Near IGI Airport New Delhi
Customs Public Notice No. 22 /04
Dated
Sub: Procedure for clearnace of import/export cargo at Special Economic Zone (NSEZ),
Noida Distt. Gautam Budh Nagar consequent to Chapter XA of Customs Act, SEZ Rules
and Regulation coming into effect.
1. Attention of trade, CHAs, officers and all other concerned is brought to the new SEZ Rules
and SEZ Regulation brought into effect from 11.5.2004 along with the Chapter XA of the Customs
Act. Vide Finance Act, 2003, a new Chapter, namely “Chapter XA” was incorporated in the Customs
Act to deal exclusively with the Special Economic Zones. This Chapter has been brought into
effect from the 11th May, 2004 vide notification No. 43/2003-Cus(N.T.) dated 22-7-2003 read with
57/2004-Cus (NT) dted 30.4.2004. It contains section 76 to 76 N. Further, the Special Economic
Zone’s Rules 2003 issued vide notification No. 52/2003-Cus (NT) dated 22-07-2003 and the Special
Economic Zone’s (Customs Procedures) Regulations 2003 issued vided notification No. 53/2003Cust (NT) dated 22.07.2003 have also been brought into effect on the 11th May, 2004 with certain
amendments. Consequently, there are certain changes in the procedures for clearance of goods,
maintenance of accounts, documentation and filing of records along with simplification of
procedures. Further, fiscal incentives in the form of Drawback and DEPB have been allowed to
DTA supplies units.
2. Under the new dispensation Special Economic Zone is deemed to be a Foreign Territory for
the purpose of duties and taxes. In other words supplies from DATA to SEZ units will be considered
as exports by the DTA units and supplies to DTA units from SEZ units will be considered as
imports by the DTA units. The supplies to and from SEZ units will be governed by the provisions of
Central Excise Act, 1944. By virtue of Section 76 F, the duty on DTA clearance on goods by SEZ
units shall be levied under the provisions of Section 12 of Customs Act, 1962 and Customs Tariff
Act, 1975 as are levied in case other import of goods.
3. The changes viz a viz the present procedure and other aspects, which have been brought in
view of operationalisation of Chapter XA, SEZ Rules and SEZ Regulations are summarized below.
4.
The new SEZ Rules and Regulations stipulate, interalia,-
(i)
The SEZ should have clearly demarcated processing area and non-processing area. Units
will be allowed to be setup in the processing area of SEZ only and that toor for the purpose of
carrying out authorised operations; each SEZ unit would be a distinct establishment and
identifiable or distinct and partitioned from other zone unti’
(ii)
The goods shall be allowed entry in the SEZ only for the purpose of carrying out “authorised
operations” in the zone, which also include development operaton and maintenance of SEZ
and for providing public utility in the zone.
(iii) Motor vehicles for personal use or goods for cunsumption by the works, staff and officials of
the SEZ unit/SEZ developer can not admitted into the SEZ without payment of duty. However,
the jurisdictional Asstt./Dy. Commissioner may allow admission and exit of such goods from
the SEZ which are not required for carrying out authorized operations, without payment of
duty after examining the requirement on merit such as frequent entry and exit of goods form
the Zone. It may however be noted that there will be no restriction of movement of vehicle in
234
and out of the SEZ for use by the units or their employees and no permission would be
required in this regard.
(iv) Supplies of goods made by DTA unit to the SEZ unit or Developer for the purpose of carrying
out authonzed operation shall be treated as export for the DTA units and such supplies shall
be eligible for DEPB or Draw back or any other exports benefits, as the case may be. On a
disclaimer by DTA units, the SEZ unit/Developer may avail such benefit. However DEPB or
Drawback would be admissible only when the payment against such supplies is received by
DTA units in freely convertible foreign currency.
(v)
Supply of goods from DTA to SEZ unit/developer on which export benefit are claimed, will be
made on Bill of Exports; where no export benefit has been obtained or where such goods or
sale proceeds are not counted towards fulfillment of export obligation under any export
promotion scheme, admission of goods would be allowed against ‘Domestic procurement
Certificate’ and ARE-I, where the duty paid goods are procured from Domestic Tariff Area and
no duty concession or export icentives are being claimed against such supplies the goods
shall be allowed admission into the zone on the basis of invoice issued by the supplier of the
goods and connected transport documents.
(vi) The SEZ unit or Developer shall execute a multipurpose bond (From-I for the unit and FormII for the developer, prescribed in the SEZ Rules) with the Customs authorities in the zone
alongwith surety or security before starting duty free procurement or import of goods in the
zone.
(vii) The SEZ units shall be allowed to remove goods including laptop Computer and video projection
system for use by authorised employee of SEZ unit temporarily out of the zone without payment
of duty for the purpose of repair, testing, display, exhibition, jobwork, export promotion and
etc.
(viii) SEZ rules also provide for transfer of manufactured goods or capital goods from a SEZ unit to
EOU/STP/EHTP/other SEZ unit in the same zone or in other zone without payment of duty.
(ix) Goods procured by a zone unit from DTA when supplied back to DTA, are to be considered as
re-import and all the procedures and conditions as applicable in case of normal re-import of
goods would apply. However, when import duty on such goods is ‘nil’ and no export benefits
were taken during procurement of such goods, in such cases, the goods may be allowed to
be supplied back to DTA on the basis of invoice only and filing of Bill of Entry etc is not
required.
(x)
The unt/developer are required to maintain accounts for import, domestic procurement,
consumption, utilisation of goods, inflow of all foreign exchange, value and quantity of goods
received under claim of drawback, DEPB or otherwise, value and quantity of all goods
manufactured and services rendered including waste, scrap and remnant arising in job work
carried out in DTA, value and quantity of goods and services supplied to DTA or EOUS/
EHTHP/or units in SEZ or abroad. The unit engaged in both trading and manufacturing activities
shall be required to maintain records of accounts, separately, for trading and manufacturing
operations.
(xi) Goods admitted into the SEZ unit shall be utilized or re exported or cleared to another SEZ
unit/EOU/EHTP or cleared into DTA on payment of duty, within a period of five years from the
date of admission, failing which the unit shall be liable to pay duty and interest; However,
transfer of raw materials to EOU/EHTP/STP and other SEZ should be allowed, transfer of
raw materials to EOU/EHTP/STP and other SEZ should be allowed only in those cases
235
where the SEZ units are unable to the annual/quarterly return which they submit to the
concerned Development Commissioner in the format as specified in Appendix 14-IF of HOP,
to Customs.
(xiii) The perfromance of the SEZ unit shall be monitored by-the Unit Approval Committee in which
Commissioner of Customs having jurisdiction over the zone or his nominee shall be a member.
(xiv) In case of closure of SEZ/unit, the goods imported or procured duty free and lying unutilized,
or the manufactured goods are either to be exported or to be transferred to another SEZ/
EOU/EHTP units or duty has to be paid along with interest (in case of capital goods duty
would be payable on depreciated value as prescribed in rule 9 of SEZ Rules).
(xv) Further, in disposal (transfer/sales) of goods received under the claim of drawback of DEPB,
either directly or via another SEZ, to EOU/EHTP/STP, as it is, or after subjecting them to
processes not amounting to manufacture, the SEZ units would be required to pay back the
duty drawback or DEPB benefits so availed.
(xvi) in case of job work entire manufacturing process (hitherto substantial manufacturing process)
should not be transferred; However, the zone unit should have the production facility in the
zone and only to meet excess demand etc sub-contracting of production should be allowed;
status holders, units having unblemished track record, which have not come to the adverse
notice of Customs authorities for a period of at least last two years are also exempted from
furnishing security/bank guarantee for taking goods into DTA for the purpose of jobwork.
(xvii) The Developer’s requirement of goods shall be assessed by a Chartered Engineer and
approval would be given by the Development Commissioner. On the basis of approval given
by the Development Commissioner, the jurisdictional Deputy Commissioner or Assistant
Commissioner ,would allow duty tree import or procurement of goods by the developer for
the purpose of authorized operations. The developer would be required to submit certificate
of utilisation of duty free goods from a Chartered Engineer other than one who assessed the
requirement of goods, within six months of every import or procurement of goods, to the
Development Commissioner.
5.
In view of the above changes brought in vide SEZ Rules, SEZ Regulation- and incorporation
of Chapter XA of the Customs Act, the procedures of furnishing bond, clearance of import and
export cargo, procurement from DT A, disposal of goods, documentation and availment of DEPB
and drawback, in SEZ Noida, are detailed below.
5.1
Furnishing of Bond by SEZ Unit.- After issuance of the LOP/ LOA by the Development
Commissioner and execution and acceptance of the Legal Undertaking submitted by the. SEZ
unit, the SEZ- unit shall submit the bond (Form I annexed to the SEZ Rules 2003) with ‘surety for
the bond amount or security to the extent of 5% of the bond amount The SEZ units having turnover
of more. than Rs. 1 crore need not provide surety and bank guarantee in respect of the bond
furnished by them. The procedure prescribed under the Regulations shall be scrupulously’ followed.
The solvency of the company/individual or Director standing surety shall be certified by a Chartered
Accountant or a Bank in the Performa-given below:
“It is hereby certified that Shir___________________________S/o___________________
R/o____________________________(in case of individual/Ms._____________________
(Surety), a company registered under Indian Companies Act, 1956, having its registered
office at _____________(Complete address in case a company standing surety for the
other company) is solvent as on date and is able to meet liabilities and commitments of
__________________(executor) to the extent of the suretly.”
236
The multipurpose bond ( Form- annexed-to the SEZ Rules) complete in all respect shall be
submitted along’ with two photocopies under a covering letter to the NSEZ Customs Section and
dated acknowledgment on the covering letter shall be given. Once a bond is accepted by the Asstt/
Dy.. Commissioner of Customs, NSEZ, a letter confirming the acceptance of the bond enclosing
a photocopy of the bond shall be provided to the unit. The bond shall be a running bond and shall be
debited when there is fresh admission of duty free goods in the unit. The value debited from the
bond amount in respect of raw materials shall be credited again when the raw materials is used in
the manufacture of finished products and such manufactured goods either exported or cleared
into DT A under the provisions of Rules & Regulations.
6. Registration of Bill of Entry.-On receipt of arrival notice of the goods the unit shall file a Bill
of Entry for home consumption in quintuplicate giving therein complete description, model, make,
specifications, purpose of import of goods such as trading, manufacturing, nature of goods such
as capital goods, raw materials, pares, consumables with specially stamped endorsement as
Noida Special Economic Zone Cargo. along with Bill of Lading or Airway Bill, a copy of invoice,
packing list and purchase order or contract for noting of Bill of Entry in the zone- The noting section
will assign a running serial number by automatic numbering machine to the Bill of Entry with prefix
NSEZ/BE/(year) dated............. The Bill of Entry duly filled in all respect and with all the relevant
documents would be submitted by the SEZ unit or their authorized clearing agent to the NSEZ
Customs. for assessment which shall be undertaken by the customs officer posted at the zone
duly authorized by the Asstt./Dy. Commissioner of Customs, under self assessment, prior entry,
second appraisement procedure and out of charge after arrival of the goods shall be given after
verification of marks and numbers and packages and entry in the’ import register of the unit. In
other words, first the importer would indicate the classification based on detailed description of the
goods, rate of duty and duty foregone amount in the Bill of Entry on the basis of available documents
i.e., Invoice, Packing list, Purchase order, Contract etc., and the Custom officer would assess the
same after due scrutiny. In case of new products and capital goods, the unit shall also furnish
relevant catalog/literature to enable the Appraiser to determine the correct classification. The unit
shall also furnish bank attested invoice. In the case of goods previously cleared by the unit and if
there is no difference in value, the bank attested invoice will not be insisted upon by the customs.
In all other cases, the unit shall furnish the bank attested invoice which can be submitted even
after presentation of documents to the NSEZ Customs. In case of any’ difficulty in furnishing the
bank attested invoice the unit shall make the following declaration on the Bill of Entry “The bank
attested invoice not readily available with us. We will produce the same at a later date as and when
called’ for by the Customs” “Signed authorized Signatory” (name and designation of authorized
signatory). The Customs officer after scrutiny of the documents if found in order will complete the
assessment and forward the Bill of Entry to Asstt./Dy.. Commissioner of Customs for .his counter
signature. After the Bill of Entry is countersigned by Asstt./Dy.. Commissioner of Customs, the
clerk posted with NSEZ Customs would assign IDF No. Thereafter the original, triplicate and
quadruplicate copies of the Bill of Entry along with one set of relevant documents like Invoice,
Airway bill. Packing list etc., will be retained with Customs and the duplicate and quintuplicate
copies returned to the unit’s representative/CHA. On arrival of the goods in the SEZ, triplicate,
quintuplciate and quadruplicate and qunituplicate (with endorsement at SEZ regarding receipt of
goods) shall be returned to the Port The unit will. submit the quintuplicate copy of the bill of entry to
the Port through which the goods have been imported for their record.
6.1
Clearance of Imports. For clearance of imported goods at all ports, airports, land customs
stations, inland container depots, the zone unit or developers shall be required to file Bill of Entry
for’ home consumption in quintuplicate at the zone .itself and there will be no requirement for
execution of bond’ at the port or issuance of procurement certificate. In case of transshipment
procedure no separate documents shall be required to be filed and the transshipment permission
shall be stamped on the fifth copy of Bill of Entry. The procedure to be followed shall be self
assessment, prior entry, second check appraisement procedure and out of charge shall be given
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after verification of marks and numbers on the packages and entry in the import register of the unit.
The goods by the Zone unit or developer shall not be subject to detailed examination except in
case of prior intelligence or information or to maintain an element of surprise. Since the goods are
to be given notional out of charge after verification of marks and numbers or seal etc., the description
of goods being imported bears greater significance. Unit in the zone must ensure that proper
description as required under the Regulations is provided on the clearance documents and the
Customs Officer should also ensure that proper and correct description is given in all the
documents.
6.2 Transfer of goods other than precious cargo from port to Noida SEZ(i) Full container load (FCL)
In terms of SEZ Regulations, the Zone units or Developers, as the case may be shall submit the
assessed Bill of Entry to the Asstt./Dy. Commissioner of Customs at the place of import such as
Port, Airport, Land customs station. Inland container depot and the assessed Bill of Entry shall be
treated as permission for transfer of the goods to the Noida SEZ. In case of sealed container load,
the goods shall be allowed to be transferred from Port, Airport, Land customs station, Inland
Container depot to the Noida SEZ after verification of the seal and acknowledgement regarding
receipt of the container for transportation in sealed condition. The goods shall be transferred to the
Noida SEZ by the unit itself and no customs escort would be provided for this purpose. The Asstt./
Dy. Commissioner of Customs at the port shall ensure that a statement regarding release of such
container is prepared on day-to-day work basis and forwarded to the Asstt./Dy. Commissioner of
Customs at the zone by fax, e-mail, speed post etc. The Asstt./Dy. Commissioner of Customs of
the SEZ shall monitor the receipt of such containers on day-to-day basis and in case of non receipt
of any goods take up the matter with the SEZ units or Developers immediately.
(ii) In case of other cargo (LCL), the goods shall be allowed to be transferred to the zone on the
basis of assessed Bill of Entry under transshipment permit and for such transshipment
endorsement on the fifth copy of the Bill of Entry shall be treated as transshipment permission and
no separate document shalll be required to be filed at the port. Goods in LCL shall be superficially
inspected by the customs staff at the port for verification of marks, number etc., and packages,
wire sealed where necessary and allowed to be taken to the zone. In case of goods being
transported in a vehicle with close body, in place of individual packages, the vehicle itself may be
sealed. The unit on its option can request for transfer of LCL cargo under customs escort. In such
case after obtaining IDF No., the Bill of Entry shall be submitted to the zone customs for assigning
Preventive Officer for escort job. However in cases where the custodian appointed at the zone is
undertaking the transfer of goods from the port, no customs escort shall be required.
6.3 Transfer of precious cargo from port to NSEZ: The precious cargo consigned to the
NSEZ unit shall be transferred under the cover of assessed bill of entry by CWC/under Customs
escort. In case transfer by CWC, procedure prescribed vide P.N.53/03dated the 26th Dec, 2003
shall follow. In case of transfer under customs escort usual procedure in vogue shall be followed.
6.4 Transfer of precious cargo from IGI Airport Passenger Terminal
In case of import of goods through personal baggage by Gem & Jewellery units in the Noida SEZ,
the unit shall be allowed to file Bill of Entry in quintuplicate as in case of other goods and un such
cases the detention receipt no. issued by the customs at Airport at the time of arrival of passenger
shall be treated as Import General Manifest and Item No. The goods after being released by the
Airport customs on the basis of Bill of Entry assessed by NSEZ customs, the goods shall be
allowed to be transported to the zone under customs escort. However, in cases where the goods
detained at the Airport are transferred by the custodian in terms of the Public Notice No.53/2003Cus dated 26.12.2003, no customs escort shall be required.
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6.5 Packages landed in broken condition
In case of any consignment found to be damaged where it is suspected that some of the contents
are missing partially or completely, the concerned unit shall apply to the Asstt./Dy. Commissioner
of Customs at the port for conducting survey of the packages before taking delivery of the goods
from the Port, Airport, Land customs station. Inland Container depot as the case may be and get
the survey examination done at the port itself in the normal way and complete survey report shall
be shall be obtained on the assessed Bill of Entry as usual. The package so surveyed shall be
sealed by customs officer attending the survey. In the event of such cases, the unit shall obtain an
endorsement or a certificate i.e., landing remarks from the Airline/Shipping Line to the effect that
the packages were landed in sound conditions or otherwise. If the packages are landed in sound
condition and damage and shortage has occurred after landing, the normal procedure adopted at
Port shall be followed. The unit should ensure that the above procedure has been followed before
transferring such cargo to the zone. The value of goods will be determined by the customs on the
basis of survey report before out charge of the goods. In case, if any goods found missing before
the goods have been transferred to the zone the unit shall be liable for payment of duty on such
shortage. No other claim shall be entertained in absence of survey report from the customs at the
port. In case of units who do not intend to conduct the survey. the unit shall take the full responsiblity
for the shortage that may be noticed during the course of examination of the packages in the zone
and to this effect, they shall make an endorsement on the reverse of duplicate copy of Bill of Entry.
Such goods shall be examined by the customs in the zone when the duty on shortages if due shall
be payable by the unit.
6.6 Cargo landed in part:
If the time of delivery of packages, it is noticed that the cargo had landed in part (i.e. for example5 packages of lot of 10 packages) the unit would be permitted to take the the delivery of the
available packages provided a certificate to this effect is produced from the Airlines concerned.
After bringing the cargo to NSEZ, this matter shall be reported to the Asstt./Dy. Commissioner of
Customs, NSEZ and if the claim is found to be in order the Bill of Entry will be re-assessed. When
the remaining packages arrive, the unit can file fresh Bill of Entry for clearance. In such cases, the
unit shall declare on the Bill of Entry the details in respect of earlier clearance of the part consignment.
6.7 Clearance of post parcel
Where the goods have been imported by post, the NSEZ units or the Developers shall file the
Bill of Entry at the NSEZ Customs marking clearly “Postal Imports”. In such case the post office
registration no. as indicated in the intimation letter issued by the post office registration no. as
indicated in the intimation letter issued by the post office shall be taken as IGM and Item No. of the
Bill of Entry and the copy of intimation letter received from the Post office shall be pasted on the
reverse of the original Bill of Entry. The goods shall be allowed to be transported under customs
escort. In cases, where the goods are transferred by the Postal authorities there would be no
requirement of customs escort.
6.8 Courier parcels (General)
Where the goods are imported by Zone Unit, Customs officer in the Zone shall assess the
goods. In this regard, the procedure prescribed vide courier Import & Export (Clearances)
Regulations 1988 shall be followed.
6.9 Procurement from warehouse/Internatonal exhibition held in IndiaWhere the goods are to be procured from the warehouse appointed or licenced under section
57 or section 58 of Customs Act, the SEZ units or the Developers shall submit the Bill of Entry
assessed by Customs officers in the zone to the proper officer in charge of warehouse. The
goods shall be cleared from the warehouse on the cover of Ex-bond Shipping bill assessed by the
proper officer of the warehouse and on the basis of Bill of Entry assessed by customs officer in the
239
zone. The re-warehousing certificate on the copy of Ex-bond Shipping bill shall be forwarded to the
proper officer incharge of the warehouse of the receipt of the goods in the zone. Similar procedure
shall be followed in respect of procurement of goods from International exhibitions held in India.
6.10 Import through Data communication or Telecommunication link
Where the SEZ units or Developers import computer software through Data communication
or Telecommunication link, the importer shall file Bill of Entry within a period of 24 hours of such
import along with invoice and other relevant documents and shall be given notional out of charge
subject to submission of following documents.
(1) The documents such as invoice etc., in respect of such import of computer software can be
routed through banks.
(2) The value of such software shall be verified by the Development Commissioner of the Zone.
(3) Instructions issued by RBI from time, if any, in this behalf shall be followed.
7.
Verification/Examination of import cargo
7.1 FCL Cargo
In case of FCL cargo being transferred to the zone on the cover of Bill of Entry assessed by
zone customs, at the time of entry of the container into the Noida SEZ, the verification of container
no. and the seal shall lbe undertaken by the customs officer poster at the gate and an endorsement
to this effect shall be given by the officer on duplicate copy of Bill of Entry under his signature. The
gate entry no. as well as the date and time of the entry of the container shall be indicated on the
dulicate copy of Bill of Entry. The goods shall be taken straight to the NSEZ unit. The importer after
receipt of the goods shall certify on the duplicate copy of Bill of Entry that the goods as per packing
list and invoice have been received in full. The certificate shall be signed by the persons authorized
by the unit for self certification as defined under the SEZ Regulations. In case of arrival of the
container upto 20.00 hours on any working day, the notional out of charge shall be given on the
same day. In case of arrival of the goods beyond 20.00 hours, the notional out of charge shall be
given on the next working day.
7.2 LCL Cargo
In case of LCL cargo being transferred to the zone on the cover of Bill of Entry assessed by
zone customs, at the time of entry of the goods, the verification of marks and numbers on the
individual packages shall be undertaken by the customs officer posted at the gate and endorsement
given on the Bill of Entry. However, in cases where the number of packages is large and the
verification of marks and numbers can not be undertake at the gate, the goods shall be allowed to
be taken to the unit and verification of marks and numbers shall be undertaken by the customs
officer deputed for this purpose on the request of the importer. The gate entry no. and date and
time of arrival of the goods at NSEZ shall be noted by the customs officer posted at the gate under
his signature. Notional out of charge shall be given as in the case of FCl cargo. In case of goods
being transferred under customs escort: the receipt of the goods from the authorized signatory of
the unit shall be obtained. The escorting officer shall also make an endorsement on the Bill of
Entry regarding escort of the goods. from the port of import to NSEZ.
As stated above, there would not be any routine examination of precious cargo. However, all the
Gem & Jewellery units shall note that in case of import of Jewellery (for repairs, remaking and
samples etc.), the unit shall furnish invoice and packing list showing complete particulars of
diamonds/gem stones studded on the Jewellery.
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8.
Procurement from domestic tariff area
8.1 Filing and assessment of Bill of Export
8.1.1 Where the supply from DTA to SEZ units is under the claim of DEPB/drawback-the
procedure would be as follows:(i)
The DT A unit supplying the goods to Zone unit or the Zone unit on behalf of the DTA unit
shall file a Bill of Export giving therein complete description and specification of the
goods also marking dearly the nature of goods e.g. capital goods, raw materials, spares.
The Bill of Export shall be dearty marked Special Economic Zone Cargo.
(ii)
The bill of export shall be assessed by the Custom Officer in the Zone. A copy of assessed
Bill of Export shall be retained by the SEZ customs and rest of the copies shall be
handed over to the DT A unit or the zone unit filing document (on behalf of DT A unit), as
the case may be, after making entries in the register maintained in this regard.
(iii) The DTA unit shall be allowed to remove the goods under the cover of ARE-1 and the
assessed bill of export.
(iv) The goods so brought shall be allowed admission in the Zone and the duly endorsed
ARE-1 and a copy of bill of export shall be forwarded to the Central Excise Officer having
jurisdiction over the DT A unit within 45 days.
(v)
Where the bill of export is filed under claim of duty drawback or DEPB Scheme the
same shall be assessed keeping in view the instructions issued under respective export
promotion scheme and the valuation of such goods shall be done in terms of section of
the Customs Act, 1962.
(vi) Before entry in the Zone, the goods shall be examined by Customs’ Officer of the Zone
as per the examination norms laid down in respect of export goods and instructions
issued by the CBEC from time to time. The duty drawback or DEPB against such supply
of goods from DT A to the Zone unit shall be admissible only when payment is in freely co
vertible foreign exchange.
(vii) When goods are intended to be procured by the Zone unit from a trader or merchant, the
procedqre as stated hereinabove shall apply except that the goods shall not be required
to be brought to the Zone unit under the cover of ARE-1 and assessed copy of the bill of
export shall not be required to be submitted. to the jurisdictional Excise authority.
8.2.1 Where no DEPB or drawback is claimed.- When the goods are procured by the unit in
SEZ from a DT A unit and when no benefits under Duty drawback, DEPB, fulfillment of export
obligation under any export -pr-emotion schetme, or when no export benefit against such supplies
are claimed by the DTA unit or the SEZ unit, the SEZ unit may procure such goods for carrying out
authorized operation subject to following procedure namely:
(i)
The Zone unit shall apply to the Proper Officer for issue of pre-authenticated ‘Domestic
Procurement Certificate, which shall be issued in form specified in Annexure-I.
(ii)
The Superintendent of Central Excise having jurisdiction over the DTA unit shall on the
basis of Domestic Procurement Certificate allow the DTA unit to remove the goods
under the cover of ARE-1, whicn shall contain complete descriptions and specification
of the goods.
(iii) The goods so procured shall be allow admission into the Zone on the basis of ARE-1
and a copy of ARE-1 duly endorsed by the SEZ Customs shall be forwarded to the
jurisdictional Superintendent of the DTA unit within a period of 45 days from the date of
removal of goods from the DTA unit, failing, which a demand of duty shall be raised again
the DTA unit by the jurisdictional Central Excise Officer.
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(iv) Before permitting entry of such goods in the Zone, the goods shall be examined by an
Officer of the Zone Customs in respect of description, quantity, specifition etc as given in
ARE-1 and invoice and packing list in accordance with the instructions issued by the
Board and examination norms laid down in respect of export goods.
8.3 Where the duty paid goods are procured from DTA and no duty concession or export incentives
are daimed against such supplies by the DTA unit or the Zone unit such goods shall be allowed
admission into the Zone on the basis of invoice issued by the supplier of the goods and concerned
transport documents, if any.
8.4 Supply from Export Oriented Undertaking or Software Technology Park unit or
Electronic Hardware Technology Park unit
In respect of supplies of manufactured goods by an EOU/STP/EHTP unit, the Bill of Export shall
be required to be filed by the EOU/STP/EHTP unit or by the SEZ unit or Developer on behalf of
such EOU/STP/EHTP unit. The manufactured goods shall be cleared on the cover of ARE-1 on
the basis of authorization issued by the zone customs in form of Bill of Export assessed in advance.
9. Processing of Drawback/DEPB claims.- As stated above the goods entered into the SEZ
from the DTA shall be under the cover of a Bill of Export. This Bill shall be registered in the SEZ
Customs formation and assigned a running serial number. Thereafter, the goods shall be examined
by the Customs Officers posted in the SEZ like a normal export consignment. These goods shall
be eligible for drawback at the All Industry rates or Brand Rates, or DEPB as the case may be.
Drawback and DEPB shall be admissible to the SEZ Unit receiving supplies from DTA Unit on the
basis of a disclaimer certificate given by the DTA Unit in favour of SEZ Unit the manner as prescribed
above.
9.1 The processing of drawback claims would be done in the following manner.(i)
The DTA unit or SEZ Unit (on the basis of disclaimer issued by SEZ unit) shall authorize
the person (in the proforma given Annexure-A to be filled in duplicate) who would deal
with matter relating to DBK with Customs. Customs official shall give receipt on the
duplicate copy and return the same to the party.
(ii)
After proper verification of the information furnished in the above said form, a DBK ledger
A/C No. shall be allotted to the party in alphabetical order. All-DBK claims shall be posted
in the ledger.
(iii) The party shall file DBK claim with following documents:(a) Triplicate copy of Bill of Export
(b) CENVAT declaration as per CBEC circular No. 54/2001-Cus. dt. 19.10.2001 and 8/
03-Cus, dated 1.3.2-2003, wherever applicable, and any other declaration prescribed
under Drawback Rules or under the law in force for the time being.
(c) Bank attested invoice and packing list,
(d) Proof to the effect that the sale proceeds are realized by the DTA unit in freely
convertible currency.
(e) Customs attested invoice & packing list.
description of goods such as model, make, serial no., specification along with relevant
documents namely Invoice, Packing list, GR from (in duplicate) for noting. Now there is no distinction
of filling of documents where the export is from the local port or from the gateway port. The Shipping
Bill filed by SEZ unit and assessed by the customs officer in the zone shall be valid for export from
any port. However, at the time of export the unit has to declare as to from which port the goods
shall be exported. The goods shall not be examine in routine and Let export order shall be given on
the basis of self certification and sealing by the SEZ unit. However, during the transit of such cargo
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from zone to gateway port or at the gateway port, Airport or Land customs station, the customs
authorities may examine the consignments when there is specific information/intelligence, after
taking the approval of Asstt./Dy. Commissioner of Customs.
It may be noted that self certification on the shipping bill regarding sealing of container or packages
of goods and content thereof shall be given by the owner, the working partner or the Board of
Directors or Company Secretary of the unit or any person holding high position in the zone unit and
duly authorized.
11. Presentation of Shipping Bill
(a) When the goods are ready for export, the unit shall present Shipping Bill with distinguishing
mark “Noida SEZ” in quadruplicate for noting at the customs section during office hours on any
working day. The normal validity period of Shipping Bill for export shall be 72 hours from the date of
assessment and in case of export by sea it shall be 15 days. If the unit wants extension of said
time limit they should approach the Asstt./Dy. Commissioner of Customs, NSEZ stating reasons
thereof. While presenting the Shipping Bill the unit should ensure that all the relevant columns of
the Shipping bill are properly and correctly filled in either by typing or taking computer description of
the goods shall be required to be provided in the Shipping Bill as envisaged under the SEZ
Regulations. Declaration at the bottom of the Shipping Bill and submission of documents with
Shipping Bill are requirements under section 50 (2) of Customs Act, 1962 and also under various
other provisions of law Providing in-correct declaration in the Shipping bill may lead to a case of
misdeclaration and may attract various penal provisions of Customs Act, 1962 and other law for
the time being in force in India. The declaration shall be signed by the authorized signatory of the
unit clearly indicating his name and designation.
(b) The exports shall be allowed on the basis of self certification by the unit. Therefore, all the
units shall make the following declaration on the face of the Shipping Bill “We hereby certify that
the contents of the packages under the Shipping Bill are as per the attached invoice and packing
list.”
(c) The noting clerk in the customs section on receipt of Shipping Bill shall assign a running
serial No. “SB/NSEZ
/(year)”.dated___________This number will be assigned with a
numbering machine.
11.2 Processing of Shipping Bill and verification/examination
The noted Shipping Bill shall then be submitted to the concerned customs officer. After scrutiny,
the Shipping Bill will be forwarded with an endorsement on the original copy of shipping bill for
stuffing of the packages into the container and sealing of the container in case of FCL by the unit.
the original and duplicate copes of Shipping bill shall be countersigned by the Asstt./Dy.
Commissioner of Customs, NSEZ, the shipping bill shall be submitted back to the customs section
for assigning security no. on GR and detention of original copy of GR. The clerk in the customs
section shall assign a 10 digit serial no. known as security no. on both the copies of GR and will
retain the original copy of GR for forwarding to RBI and also the original copy of shipping bill with
the accompanying documents for records. There would be no examination of the goods and the
goods shall be allowed to be cleared after verification of the seal at the gate. The unit on the back
of original and duplicate copies of Shipping Bill shall make an endorsement “The contents of the
packages, serial no._________to________are as per invoice and packing list no._______dated
_____and all the packages as per invoice and packing list have been stuffed into container
no.____and container sealed with bottle seal bearing serial no._____and marks_____in may
presence”, Sd/-[self certification in terms of Regulations 2 (I)]. Similar endorsement on the
transferance copy of Shipping Bill regarding number of packages and sealing particulars shall be
endorsed by the person authorized for self certification. Self sealing report shall be recorded on
the reverse of transference copies of shipping bill by the unit. The Let export order shall be given
243
on the Shipping Bill and clearance of container on the cover of transference copy of the Shipping
Bill shall be allowed without customs escort after verification of the seal at the NSEZ gate and
entry in export register by the customs officer posted at the gate.
In case of LCL consignment, the endorsement shall be for verification of marks & numbers
and seal on the packages by the Preventive officer. The unit shall seal all the packages by their
own seal and record the sealing report on the reverse of the shipping bill as in case of FCL cargo
and present the packages in sealed condition to the officer attending the examination. Sealing may
be PVC/Metal strapping or stretch warp film. An endorsement has to be made to the effect that “the
contents in respect of packages bearing serial no.______to______are as per invoice and packing
list no.________dated_________and all the packages have been sealed in my presence”, Sd/(the person authorized in terms of Regulation 2(I) of the Special Economic Zone (Customs
Procedure) Regulation, 2003). The place of verification of marks and numbers shall be CWC
warehouse in the zone. The examination report limited to verification of marks and numbers shall
be given by the officer poster for examination and let ship order shall be given on the shipping bill.
In case of Gem and Jewellery items the place for verification of marks and numbers will be at
CWC warehouse. The procedure for verification of Gem and Jewellery items shall be same as
that of general cargo except that the unit shall present the parcel sealed with their own seal to the
officer attending examination at the CWC examination centre. After obtaining the let ship
endorsement on the Shipping Bill the parcel shall be deposited with CWC along with duplicate and
triplicate copies of Shipping Bill.
11.3 Transfer of Gem & Jewellery goods to the Airport (cargo/baggage)
The goods shall be transferred to the airport under the cover of assessed shipping Bill by the
CWC/under Customs Escort. In case of baggage the consignment shall be deposited with the
warehouse in the airport against “Detention Receipt” issued by the Customs Officers at the airport.
The consignment shall be handed over to the authorized passenger at the time of departure on
submission of original “Detention receipt”. The zone unit shall submit the proof of export issued by
the Customs Officer at the airport of export within a period of seven days from the date of removal
of goods from the zone to the customs in the zone. In case of other consignment on arrival of the
packages at the Airport/Port. The gate pass shall be signed by both the exporter (or his authorized
agent) and customs officer at the Airport as token of delivery and receipt of goods after recording
the seal verification report on the gate pass and dulicate copy of the Shipping bill by the customs
officer. Then the cargo along with the duplicate/quadruplicate copy of shipping bill shall be allowed
to be taken over by the Airlines/Port. Duly acknowledged Gate Pass will be deposited by the CWC/
Unit in the noting section of the NSEZ Customs within seven days of clearance from NSEZ in case
the transshipment is through one of the local ports i.e. ICD/Airport etc in Delhi, in other cases it will
be deposited within 14 days.
11.4 Export by Post- The normal procedure of sealing and verification will be followed and the
sealed parcel will be escorted by the Preventive Officer up to the Sub Foreign Post Office located
in the service centre of the zone.
11.5 Export by Courier- Exports through courier shall be allowed only through authorized courier
registered under the Courier Export and Import (Clearance) Regulations, 19998 and the procedure
under these regulations shall be followed.
11.6 Export through Data link- Export through data link, internet etc shall be allowed to software
units. Softex from duly certified by the Development Commissioner shall be submitted to the
Customs within one month from the date of export. Further unit engaged in providing services is
allowed to provide service on site subject to submission of details regarding the contract, purchase
order, foreign exchange remitted and the person deputed abroad.
11.7 Export for exhibition abroad- The Zone unit shall be allowed to export goods including
gems and jewellery for display or participating in exhibition subject to provision of EXIM Policy. In
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this regard, Zone Unit shall take permission from Development Commissioner for participating in
the exhibition. Goods shall be allowed clearnce on the provisional basis. In respect of goods sold
in the exhibition, unit will furnish inward remittance certificate. Goods unsold will be brought back
to the SEZ after filing a bill of entry. Such re-import will be allowed subject to establishment of
identity of goods.
12. Sale of goods by a SEZ unit in Domestic Tariff Area
12.1 General-The SEZ unit shall be allowed to sell goods manufactured or produced in the zone
unit including reject, waste, scrap, remnants and by-products arising out of such production in the
Domestic tariff area on payment of customs duty in terms of clause (b) of section 76 F of the
Customs Act, 1962 and subject to provisions of EXIM Policy.
The goods admited into SEZ i.e. the goods imported or procured including capital goods and
spares from DTA for authorized operations shall also be allowed to be cleared into DTA for valid
reasons in terms of para 7.22 (a) of the Exim Policy on payment of duties applicable under section
76 F of the Customs Act, 1962 and submission of import licence by DTA unit wherever applicable.
However, such clearance shall not be allowed as a matter of routine.
The zone unit engaged in trading activity shall be allowed to sell imported or indigenously
procured goods in domestic traiff area on payment of duty under clause (b) of section 76 F of the
Customs Act subject to the conditions that the zone unit has achieved positive NFE cumulatively
at the time of making sale in DTA and such sale of goods shall be allowed to the extent that net
foreign exchange earning of the unit remains positive. The trading unit in such cases while making
application for DTA sale shall ensure that NFE is positive and the sale is to the extent NFE remains
positive. A declaration to this effect should be given by the unit on the bill of entry. Where the goods
procured from domestic tariff area by the zone unit are supplied back to the domestic tariff area as
it is or without substantial processing, such goods shall be treated as re-imported goods and shall
be subject to such procedure and conditions as applicable in case of normal re-import of goods
from outside India. It is therefore required that the unit making DTA sale shall declare the details of
Bill of Entry or Bill of Export against which the goods were originally procured.
In case, the goods procured from DTA are cleared back to DTA, as such or without substantial
processing, such goods shall be treated as re-import and shall be subject to such procedure and
conditions as applicable to re-import, However, in case where procured goods are supplied back
to the domestic tariff area, as it is and where the import duty on such goods is “Nil” and while
procurement of such goods no export benefits were allowed against such goods, the zone units
shall be allowed to supply back such goods to domestic area on the basis of invoice only without
filing BE after obtaining permission from Dy. Commissioner.
The valuation of goods cleared into domestic tariff area shall be determined in accordance
with section 14 of the Customs Act and Rules made thereunder.
12.2 Procedure for DTA sale
Domestic tariff area unit intending to purchase goods from the zone unit or SEZ unit on
authorization from DTA unit on its behalf, shall be required to file bill of entry for home consumption
giving therein complete descriptions of goods such as make, model no., specification along with
invoice and packing list with the customs officer in the zone. Such Bill of Entry shall be marked as
“SEZ DTA sale”. The serial no. to be allotted to such Bill of Entry shall be” BE/NSEZ/DTA/ /(year)”,
dated_____. Such Bill of Entry can be filed by the SEZ unit on the basis of authorization given by
the buyer located in DTA. The Bill of Entry shall be assessed by the customs officer authorized by
the Asstt./Dy. Commissioner of Customs, NSEZ as in case of normal imports into India. The
goods shall be subject to such restrictions and conditions as are applicable in case of normal of
goods into India. The Bill of Entry shall be assessed on the basis of documents under self
assessment, prior entry, second appraisement procedure. The goods shall be allowed to be cleared
only after proper examination of the goods in the zone. After assessment, the Bill of entry will be
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put to the Asstt./Dy. Commissioner of Customs for overall scrutiny and countersignature and the
goods shall be allowed to be cleared after payment of duty.
13
Sub-contracting of production process in DTA
13.1 General
The procedure to be followed in respect of sub-contracting in DTA has been prescribed under
Regulation 25 of Special Economic Zone (Custom Procedure) Regulations, 2003. The same shall
be scrupulously followed. The removal of goods shall be on the cover of sub-contracting challan
prescribed under Annexure-B of this Public Notice and the records to be maintained by the SEZ
unit and that of the job-worker shall be in the format as prescribed under Annexure-C of this
Public Notice.
14. With the issuance of this Public Notice, the procedure prescribed by earlier Public Notices is
modified to the extent covered under this Public Notice. Problems and difficulties, if any with regard
to the procedures may be brought to the notice of undersigned either directly or through Dy.
Commissioner of Customs, NSEZ.
(K.R. Bhargava)
Commissioner, Air Cargo (Exports)
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Section – 9
CLEARANCE OF PRIVILEGED PERSONS
9.1 Clearance of VVIP flights
185
9.2 Exemptions to Certain Privileged Persons
185
9.3 Exemption to Diplomatic Personnel
186
9.4 Exemption to Officials of UNO
186
9.5 Diplomatic Persons and Other Privileged Persons in Transit
186
9.6 Diplomatic and Official Mail Bags
187
247
Section – 9
CLEARANCE OF PRIVILEGED PERSONS
9.1 Clearance of VVIP flights
Being the Capital city, IGI Airport is a hub of VVIP travel. The VVIPs fall under the following
broad categories:
(i)
The Hon’ble President and the Hon’ble Prime Minister of India.
(ii)
The Heads of States from other countries visiting India.
(iii) Other privileged persons like Cabinet Ministers/Secretaries of foreign countries (equivalent
Ministers), former Heads of States visiting India on official, semi-official or private visits.
(iv) Other VVIPs, both Indians and foreigners:
While the first three categories of the privileged persons are normally cleared from the Technical
Area; the last of these visitors take the flights from the normal terminal, Intimation about the visits
of these dignitaries are invariably received in advance.
For the visit of the President and the Prime Minister, advance meetings are held by’ the Special
Protection Group (SPG) where detailed arrangements are discussed. Such meetings should
invariably be attended at senior level, never below the rank of Deputy Commissioner. This meeting
is also usually followed by the Advance Liasoning Committee Meeting to review arrangements on
the spot. Special passes are required to enter this area for which requisition sufficiently in advance
should be sent not only in respect of officers concerned with the clearance but also senior officers
who may like to visit to oversee the arrangements. Similarly, passes should be obtained for the
vehicles that will ferry these officers to the area.
lt is a common complaint that the officers report a few minutes late, for which serious view is
taken by the SPG and the Department, These officers should, therefore, report punctually as
advised, which is normally three hours before departure and one hour before the arrival of the
flight.
ln respect of other dignitaries arriving or departing from the Technical Area, advance intimation
is received from the Ministry of Home Affairs about the arms and ammunition brought by the
members of the delegation along with the details of such passengers. The particulars of arms and
ammunition are required to be verified by the Customs and their re-export ensured at the time of
departure. Heads of States are also sometimes cleared Departure of other VVIPs from the Airport
terminal is not much different normal passengers except that they are usually cleared from the
ceremonial Lounge of the airport.
List of persons entitled to use of this facility is drawn by the Ministry of Civil Aviation and forms
a part of Section 14 on “Facilitation and Protocol”.
9.2 Exemptions to Certain Privileged Persons
Certain privileged persons are exempted from Customs duties:
i)
President
ii)
Vice-President (Notification l06 - Cus. dated 29/3/l958) (Annexure 1)
iii)
Governor {Clause 9 (of the G.O.I. Governor’s Allowances and Privileges) Order l950
dated l.l.l950.
249
iv)
Official Gifts received by Ministers/officials on foreign tours (Notification No. 326/1983
dated 23.12.83}
9.3 Exemption to Diplomatic Personnel
India is a signatory to the Vienna Convention on Diplomatic Relations, l96l which, Interalia,
governs the immunities from Customs duties and exemption of baggage of diplomatic personnel.
Diplomatic and other staff are divided in various categories, for the. purpose of Customs duties :
i)
Head of the Mission - Ambassador, High Commissioner
ii)
Career Consular officers
iii)
Administrative and Technical staff
iv)
Locally recruited persons.
Diplomatic persons mentioned at (i) & (ii) above are entitled to exemption from inspection of
their personal baggage unless there are serious grounds for believing that it contains articles not
covered by exemptions or immunities available to them. The baggage is not be examined without
prior consultation with the Protocol Division of the Ministry of External Affairs. Moreover, the baggage
examination must only be undertaken in the presence of the diplomatic person or his authorized
representative.
Exemption from Customs duties is available to all career consular officers throughout the
tenure of their appointment in India. They can import personal and household effects and other
articles, including motor vehicles, intended for their own use or for the use of their families till four
months from the date of their first arrival to take-up their appointment in India. On the basis of
reciprocity they have also been granted “tenure privileges” which entitle them to import their
requirements as above throughout their tenure in India as long as they continue to normally reside
in India and do not indulge in any gainful private occupation.
Members of administrative and technical staff are allowed the goods free of duty on their first
arrival within the limits fixed under Baggage Rules.
Locally recruited staff is not entitled to any exemption. The details of Customs exemptions
are contained in the notification No. 3-Cus/57, 1957, as amended. Annexure 3
The procedure for the availment of exemption from Customs duties is contained in Foreign
Privileged Persons (Regulation of Customs Privileges) Rules, 1957. Annexure 4
9.4 Exemption to Officials of UNO
Privileges of the UNO Organisations, its specialized agencies in India and their Annexure 5
officials are covered by the provisions of the Schedule to UN (Privileges and Immunities) Act,
1947. Basically the UN personnel have the right to import free of duty their personal effects at the
time of first taking up their post in India subject to condition that the goods will be re-exported.
Indian nationals working as international civil servants in the regional office of the United Nations,
including in India, which cover not only India but also other countries, are also granted the same
facilities and privileges as available to foreign nationals working in similar positions in India. The
exemption is available for import for own official use and not for projects funded by UN.
9.5 Diplomatic Persons and Other Privileged Persons in Transit
Diplomatic persons accredited to other States, and member of their families, who are in
transit through India between their home country and the State to which they are accredited, are
entitled to inviolability and such other immunities as may be required to ensure their transit. Therefore,
they may not be searched or detained or arrested. They are not entitled to any Customs concessions
250
but should be cleared expeditiously and examination of their baggage should only be done if there
is any good reason to suspect any attempt to smuggle dutiable or prohibited/restricted goods into
India.
9.6 Diplomatic and Official Mail Bags
All diplomatic mail bags, whether they are conveyed as mail, cargo or freight, should be
accompanied by the certificate or a declaration or a label from the consignors, who are usually the
Foreign Officers of the Government of the countries that the missions represent or their Diplomatic
missions in other countries, that the contents of the bags are “Diplomatic Official Mail”. They
should also bear the official seal or stamp of the consignor intact. All such mail bags imported into
India and declared in the manifest of the vessel or aircraft concerned as “Diplomatic/Official Mail”
or as “Diplomatic Cargo/Freight” will be allowed to be cleared by the Diplomatic missions or their
agents on production of a “Katcha” Bill of Entry in the prescribed form i.e. Bill of Entry in the usual
form which is not formally noted against the relative manifest of the importing vessel or aircraft,
provided contents on the bags are also described in the “Katcha” Bill of Entry as “Diplomatic Mail”.
The declaration to be made and attested at the lower right hand corner of the “Katcha” Bill of Entry
may be amended/deleted or modified by the missions or their agents to suit case.
In case the official seal on the mail bags are not found to be intact on arrival of the bags in
India owing to fault handling or other causes, the Customs authorities will affix their own seals in
the presence of the clearing agent or a representative of the mission concerned together with the
seal of the agent or the mission, if so desired by the agent or the mission. The bags will then be
released immediately on production of a “Katcha” Bill of Entry as indicated in the preceding
paragraph.
In cases where the bags are received in a seriously damaged or open condition, the Customs
authorities will refer the case immediately to the Diplomatic Mission concerned.
The above procedure will be applicable mutatis mutandis to outgoing Diplomatic Mail Bags
also. These bags will be passed without Customs examination on the strength of certificates
presented for the purpose under cover of shipping bills in which the bags should be described as
“Diplomatic Mail”.
The above procedure for the import and export of diplomatic mail bags also applies in the
case of bags addressed to or sent by foreign consular posts in India. The contents of the consular
bags should however be described as “Official Mail” instead of “Diplomatic Mail”.
The Diplomatic Mail Bags should be utilized only for the transmission of official correspondence.
Importation of films and other dutiable article through Diplomatic Bags amounts to abuse
of privileges.
251
ANNEXURE-1
Notification No. 106-Cus., dated 29-3-1958
Vice-President-imports by
In exercise of the powers conferred by section 23 of the Sea Customs Act, 1878 (8 of
1878), as in force in India and as applied to the State of Pondicherry, the Central Government
hereby exempts from payment of customs duty, the articles specified in the Schedule to this
notification, if imported or purchased out of bond by the Vice-President of India on appointment
or during his tenure of office.
SCHEDULE
(a) articles for the personal use, wear or consumption of the Vice-President or any
member of his family;
(b) food, drink and tobacco for consumption by members of the Vice-President’s
household or by his guests, whether official or not;
(c) articles for the furnishing of any of the Vice-President’s official residences;
(d) motor cars provided for the Vice-President’s use.
Notification No. 106-Cus., dated 29-3-1958
ANNEXURE-II
Notification No. 326-Cus., dated 23-12-1983
Exemption to articles of gift imported as baggage by Union or State Ministers,
Public Servants and foreign dignitaries.
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
late Department of Revenue and Banking (Revenue Wing) No. 125-Customs, dated the 1st
July, 1977, the Central Government, being satisfied that it is necessary in the public interest
so to do, hereby exempts articles of gift received from any foreign Government by a person
belonging to any class of persons specified in the Schedule annexed hereto and imported by
the said person into India as part of his baggage, and articles of gift imported into India by a
foreign dignitary, visiting India for any official purposes, as part of his baggage and to be
gifted to persons belonging to any class of persons specified in the aforesaid Schedule,
from —
(a) the whole of the duty of customs leviable thereon under the First Schedule to the
Customs Tariff Act, 1975 (51 of 1975); and
(b) the whole of the additional duty leviable thereon under section 3 of the said
Customs Tariff Act, subject to the conditions that —
(i)
a declaration is made by the concerned person or foreign dignitary, as the
case may be, in accordance with’the provisions of section 77 of the Customs
Act, 1962 (52 of 1962); and
(ii) (a) in the case of articles of gift received from any foreign Government by a
person belonging to any class of persons specified in the said Schedule and
imported by the said person into India as part of his baggage, the said person,
at the time of clearance of such articles of gift makes a declaration to the
Assistant Commissioner of Customs or Deputy Commissioner of Customs
that he is a person belonging to any class of persons specified in the said
Schedule; and
(b) in the case of articles of gift imported into India by a foreign dignitary, visiting India
for any official purpose, as part of his baggage and such articles of gift are to be
gifted to persons belonging to any class of persons specified in the said Schedule,
such foreign dignitary, at the time of clearance of such articles of gift, makes a
declaration to the Assistant Commissioner of Customs or Deputy Commissioner of
Customs that such articles of gift are to be gifted to persons belonging to any class
of persons specified in the said Schedule.
THE SCHEDULE
(1) Ministers of the Union or of a State or of a Union Territory.
(2) Persons holding any appointment in any public service or post in connection with
the affairs of the Union or of any State, but not being persons appointed in any
corporation established by or under any law or any corporation owned or controlled
by Government.
Notification No. 326-Cus., dated 23-12-1983
as amended by Notification No. 101/95-Cus., dated 26-5-1995
253
ANNEXURE-III
Notification No. 3-Cus., dated 8-1-1957
Exemption to imports by Diplomats, Trade Representatives, etc.
In exercise of the powers conferred by Section 23 of the Sea Customs Act, 1878 (8 of
1878), the Central Government hereby exempts each of the following categories of goods
imported into mdia and specified in column (2) of the Table below from the whole of the duty
of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act,
1975 (51 of 1975) and from the whole of the additional duty leviable thereon under Section
3 of the said Customs Tariff Act, subject to the conditions .and limitations specified against
each such category in column (3) of the said Table, namely :—
TABLE
Sl.No. Goods
Conditions and limitations
(1)
(2)
(3)
1.
All goods, including motor vehicles, imported or
purchased from bond, for the personal use by
the following classes of members of the
Diplomatic Missions in India and their families
or on their behalf —
(i) Ambassador, High Commissioner, Envoys,
Extraordinary and Ministers, Plenipotentiary
Charge-d’ Affairs, Counsellors, First
Secretaries, Second Secretaries, Third
Secretaries and Attaches.
(ii) Articles of office equipment and all
other-goods, including motor vehicles,
imported or purchased from bond by
Ambassadors, High Commissioners,
Envoys, Extraordinary and Ministers,
Plenipotentiary and Charge-d’ Affairs or
any officer of the Mission authorised in
this behalf for the Official use of their
Missions.
(iii) Calendars imported by the officers
mentioned in item (i) for free distribution
to the various agencies/public, if they
are the product or manufacture of the
country the officer represents.
Provided that —
(a) a corresponding exemption is allowed to
Indian Officers of the same status by the
Government of the Diplomatic Mission
concerned, and
(b) the exemption of goods imported or
purchased from bond under this concession
is also subject to the Foreign Privileged
Persons’ (Regulation of Customs Privileges)
Rules, 1957.
2.
(i) Personal and household effects, excluding
motor vehicles imported by the officials of the
Diplomatic Mission in India, other than those
holding diplomatic status, and by their families
for their personal use on their first arrival to
take up their appointments in India.
(ii) One motor vehicle each imported by the
officers of the Diplomatic Mission in India,
other than those holding diplomatic status,
for their personal use on their first arrival to
take up their appointments in India.
Provided that —
(a) the goods are imported within the time-limit
fixed under the Baggage Rules made under
Section 75 of the Sea Customs Act;
(b) a corresponding exemption is allowed to
Indian officers of the same status by the
Government of the Diplomatic Mission
concerned;
(c) the claimants are nationals of the State
employing them, are not normally resident in
India, are sent by their respective Governments
to posts in India and are not engaged in any
254
gainful private occupation in India; and
(d) the exemption of goods imported under this
concession is also subject to the Foreign
Privileged Persons’ (Regulation af Customs
Privileges) Rules, 1957.
3.
(i) Personal and household effects and other
articles, including motor vehicles, imported by
or on behalf of the following classes of Career
Consular Officers of Foreign States and their
families, Consuls-General, Consuls (including
Additional Consuls) and Vice-Consuls.
(ii) Articles of office equipment including motor
vehicles, imported for official use in a Consulate
of a Foreign State to which a Career Consular
Officer entitled to exemption under item
(i) is posted.
(iii) Calendars imported by the officers
mentioned in item (i) for free distribution to the
various agencies/public, if they are the product
or manufacture of the country the officer
Provided that —
(a) the goods are imported at any time during
the period the Consular Officer concerned
holds his appointment in India;
(b) a corresponding exemption is allowed to
Indian Consular Officers of the same status by
the Government which the Consular Officer
represents;
(c) the Consular Officer concerned is normally
resident in India;
(d) the Consular Officer is not engaged in any
gainful private occupation in India; and
(e) the exemption of goods imported under this
concession is also subject to the Foreign
Privileged Persons’ (Regulation of Customs
Privileges) Rules, 1957.
Provided that —
(a) a corresponding exemption is allowed in
respect of similar goods imported by the Indian
Consulate in those States;
(b) the goods are the property of the
Government of that State and imported for use
in their Consulate in India; and
(c) the exemption of goods imported under this
concession is subject to the Foreign Privileged
Persons’ (Regulation of Customs Privileges)
Rules, 1957.
3A
(i) Personal and household effects and other
articles including motor vehicles, imported by
or on behalf of the following classes of
privileged officers of Foreign States in India,
stationed outside Delhi, and their families.
Deputy High Commissioners, Assistant High
Commissioners, First Secretaries, Second
Secretaries, Third Secretaries and Attaches.
(ii) Articles of office equipment including motor
vehicles, imported for official use in a Foreign
Mission to which a privileged officer entitled
to exemption under (i) above is posted.
(iii) Calendars imported by the officers
mentioned in item (i) for free distribution to the
various agencies/public, if they are the product
or manufacture of the country the officer
represents.
Provided that —
(a) the goods are imported at any time during
the period the privileged officer concerned
holds his appointment in India;
(b) a corresponding exemption is allowed to
Indian Officers of the same status by the
Government which the privileged person
concerned represents;
(c) the privileged officer concerned is not
normally resident in India;
(d) the privileged officer is not engaged in any
gainful private occupation in India; and
(e) the exemption of goods imported under this
concession is also subject to the Foreign
Privileged Persons’ (Regulation of Customs
Privileges) Rules, 1957.
Provided that —
(a) a corresponding exemption is allowed in
respect of similar goods imported by the Indian
Mission of similar status in the country
represented by the Mission concerned;
(b) the goods are the property of the
255
Government of their country and imported for
use in their Mission; and
(c) the exemption of goods imported under this
concession is subject to the Foreign Privileged
Persons’ (Regulation of Customs Privileges)
Rules, 1957.
4.
(i) Personal and household effects, excluding
motor vehicles, imported by the official of a
Consulate of Foreign State other than the
Career Consular Officers mentioned in Serial
No. 3 for their personal use, on their first arrival
to take up their appointments in India.
(ii) One motor vehicle each imported by the
officials of a Consultate of Foreign State,
other than those holding diplomatic status
(other than the career Consular Officers
mentioned in S. No. 3) for their personal
use, on their first arrival to take up their
appointments in India.
Provided that —
(a) the goods are imported within the time-limit
fixed -under the Baggage Rules made under
Section 75 of the Sea Customs Act;
(b) a corresponding exemption is allowed to
Indian Officers of the same status by the
Government of the Consulates concerned;
(c) the claimants are nationals of the State
employing them, are not normally resident in
India, are sent by their respective Governments
to posts in India and are not engaged in any
gainful occupation in India; and
(d) the exemption of goods imported under this
concession is also subject to the Foreign
Privileged Persons’ (Regulation of Customs
Privileges) Rules, 1957.
4A
(i) Personal and household effects, excluding
motor vehicles, imported by the official of a
Deputy High Coimmission or an Assistant
High Commission of a foreign country in India
outside Delhi, other than the privileged officers
mentioned in Serial No. 3A(i) above for their
personal use, on their first arrival to take up
their appointments in India.
(ii) One motor vehicle each imported by the
officers of the Deputy High Commission in
India, outside Delhi, other than those holding
diplomatic status, for their personal use on
their first arrival to take up appointments in
India.
Provided that—
(a) the goods are imported within the time-limit
fixed under the Passengers’ (Non-Tourist)
Baggage Rules, I9601.
(b) a corresponding exemption is allowed to
Indian Officers of the same status by the
Government of the country concerned;
(c) the claimants are nationals of the State
employing them, are not normally resident in
India, are sent by their respective Governments
to posts in India and are not engaged in any
gainful occupation in India; and
(d) the exemption of goods imported under this
concession is also subject to the Foreign
Privileged Persons’ (Regulation of Customs
Privileges) Rules, 1957.
5.
(i) Personal and household effects and all
articles including motor vehicles intended for
personal use imported by a Trade
Commissioner, Trade Representative or a
Trade Agent appointed by the Government of
a foreign or Commonwealth country and the
members of their families.
(ii) All articles, including motor vehicles,
imported for the official use of the officers
mentioned in item (i).
(iii) Samples (including advertising literature,
if any) imported by the officers mentioned in
item (i), if they are the produce or manufacture
of the country the officer concerned represents
and are in ten ded solely for display in the
office of the officer concerned.
Provided that—
(a.) a corresponding exemption is allowed to
Indian Officers of the same status by the
Government of the country concerned; and
(b) the exemption of goods imported under
this concession is also subject to the Foreign
Privileged Persons’ (Regulation of Customs
Privileges) Rules, 1957.
256
(iv) Calendars, publicity posters and booklets
imported by the officers mentioned in item
(i) for free distribution to the various agencies/
public, if they are the product or manufacture
of the country the officer represents.
6
Personal and household effects excluding
motor vehicles, imported by the officials in
the office of a Trade Commissioner, Assistant
Trade Commissioner, Trade Representative
or a Trade Agent mentioned in Serial No. 5
for their personal use on their first arrival to
take up their appointments in India.
Provided that —
(a) the goods are imported within the time-limit
fixed under the Baggage Rules made under
Section 75 of the Sea Customs Act;
(b) a corresponding exemption is allowed to
officers of the same status by the Government
which Trade Commissioner, Assistant Trade
Commissioner, Trade Representatives or the
Trade Agent concerned represents;
(c) claimants are nationals of the State
employing them, are not normally resident in
India, are sent by their respective
Governments to posts in India and are not
engaged in any gainful occupation in India;
and
(d) the exemption of goods imported under this
concession is also subject to the Foreign
Privileged Persons’ (Regulation of Customs
Privileges) Rules, 1957.
Notification No. 3-Cus., dated 8-1-1957as amended by Notification No. 159-Cus., dated 27-8-1966; No. 112Cus., dated 26-7-1969; No. 135-Cus., dated 20-9-1969; No. 56-Cus., dated 7-6-1975; No. 128/86-Cus.,
dated 17-2-1986 and No. 36/90-Cus.(N.T.), dated 27-6-1990.
257
Annexure-IV
Foreign Privileged Persons (Regulation of Customs Privileges) Rules, 1957
M.F. (D.R.) Notification No. 4-Cus., dated 8th January, 1957 as amended by C.B.R. No.
15-Cus., dated 19th January, 1957; Notifications No. 177-Cus., dated 29th November, 1962;
No. 124-Cus., dated 11th May, 1963; No. 221-Cus., dated 30th September 1963; No. 91Cus., dated 17th July, 1965; No. 151-Cus., dated 2nd October, 1965; M.F. (D.R. & I.)
Notification No. 160-Cus., dated 27th August, 1966; C.B.E. & C. Notification No. 156-Cus.,
dated 26th October, 1966; Notifications No. 111-Cus., dated 26th July, 1969; No. 163-Cus.,
dated 18-8-1978; No. 32-Cus., dated 9th February, 1979; Notification No. 34/85-Cus., dated
20-2-1985; Notification No. 35/99-Cus. (N.T.), dated 8-6-1999; No. 43/99-Cus. (N.T.), dated
2-7-1999 and No. 33/2001-Cus. (N.T.) dated 27-6-2001; and No. 71/2002 - Cus (N.T.),
dated 20/11/2002
In exercise of the powers conferred by clause (c) of section 9 of the Sea Customs Act,
1878 (8 of 1878), the Central Board of Excise and Customs hereby makes the following rules
for the purpose of laying down the procedure for the recovery of customs duty on goods
imported free of such duty in the first instance and sold or otherwise disposed of later on in
India by the officers referred to in Serial Nos. 1, 2, 3, 3A, 4, 4A, 5 and 6 in the notification of
the Government of India in the Ministry of Finance (Department of Revenue) No. 3-Customs,
dated the 8th January, 1957.
1.
Short title, commencement and application. —
(1) These rules may be called the Foreign Privileged Persons (Regulation of Customs
Privileges) Rules, 1957.
(2) They shall come into force on the 8th January, 1957.
(3) They shall apply to the goods exempt from customs duty in accordance with the
notification of the Government of India in the Ministry of Finance (Department of
Revenue) No. 3-Customs, dated the 8th January, 1957.
2.
Definitions. — In these rules, unless the context otherwise requires,
(a) “goods” means all articles imported or purchased locally from bonded stocks free
of duty in accordance with the notification referred to in sub-rule (3) of rule 1 and
includes
(i)
motor vehicles so imported or purchased; and
(ii) all articles including motor vehicles purchased by any privileged persons from
another privileged person, on which customs duty has not been paid; (ii)
(b) “privileged person” means a person entitled to import or purchase locally from bond
goods free of duty for his personal use or for the use of any member of his family or
for official use in his Mission, Consular Post or Office or in Deputy High Commission/
Assistant High Commission;
(c) “Non-privileged person” means a person other than a privileged person.
258
3.
Formalities to be observed at the time of clearance of the goods. —
(1) No goods shall be allowed to be cleared free of duty unless in addition to the
formalities required to be observed ordinarily for clearing them, exemption from
duty is claimed in writing at the time of the clearance of the goods through customs
and such claim is accompanied by an exemption certificate in Triplicate in the Forms
in Appendix IA, IB, IC, ID, IIA, IIB, IIIA, IIIB, IIIC as the case may be. [See Form Numbers
9, 10, 11, 12, 13, 14, 15, 16 and 17 in Part 5].
(2) Such certificate shall be signed by (a) the Head of the Diplomatic Mission concerned or, in the case of a Diplomatic
Mission having more than fifteen Diplomatic Officers, a Diplomatic Officer, duly
authorised by the Head of the Mission for this purpose, if the goods are meant
for official use in the Diplomatic Mission; or
(b) the Consular Officer or Deputy High Commissioner/Assistant High
Commissioner or Trade Commissioner in-charge of the Consular Post or
Deputy High Commission/Assistant High Commission or Trade
Representation, or in the case of a Consular Post or Deputy High Commission/
Assistant High Commission or Trade Representation having more than ten
privileged persons a Consular Officer or a Diplomatic Officer or an Officer of
the Deputy High Commission/Assistant High Commission or Trade
Representation, authorised for this purpose by the Head of the Consular Post
or Deputy High Commission/Assistant High Commission or Trade
Representation, as the case may be, if the goods are meant for the official use
in the Consular Post or Deputy High Commission/Assistant High Commission
or Trade Representation; or
(c) the privileged person concerned if the goods are meant for his personal use or
for the use of any member of his family:
Provided that the certificate is countersigned by the Head of the Mission or the
Consular Post or the Deputy High Commission/Assistant High Commission or
Trade Representation, as the case may be, and if the privileged person is
attached to a Diplomatic Mission or Consular Post or Deputy High Commission
or Assistant High Commission or Trade Representation having more than ten
privileged persons, by a Diplomatic Officer or Consular Officer or an officer of
the Deputy High Commission/Assistant High Commission or of the Trade
Representation, as the case may be, who is duly authorised.
(3) Two of the three copies of the exemption certificate referred to in sub-rule (1) shall
be sent to the [Commissioner of Customs] of the port of importation of the goods
and the other copy shall be sent to the Protocol Division, Ministry of External Affairs,
Government of India.
(4) Where exemption from duty is claimed in respect of a motor vehicle, an exemption
certificate in triplicate in the Form in Appendix IV-A, or Appendix IV-B (See Form
No. 18 or 19 in Part 5), as the case may be, shall be given. The provisions of subrules (2) and (3) shall apply in relation to the signature, countersignature and
transmission of copies of exemption certificates.
259
4.
Permission for the sale or disposal of the goods. — (1) No privileged person shall,
without obtaining the prior concurrence of the Central Board of Excise and Customs,
sell, or otherwise dispose of, to any privileged person or to any, non-privileged person,
any goods in respect of which exemption from customs duty was given at the time of
their importation or clearance from bond, within three years from the date on which they
are imported.
(1A) Where the privileged person —
(a) relinquishes his post, or
(b) is transferred out of India,
within the period of three years referred to in sub-rule (1), he shall with the prior
concurrence of the Central Board of Excise and Customs effects the sale, or the disposal
otherwise, of such goods before the expiry of three months from the date of the
relinquishment of his office or, as the case may be, of his departure out of India or within
such longer period as the Central Board of Excise and Customs may allow.
(1B) Nothing contained in sub-rule (1A) shall be deemed to affect the right of the privileged
person to take away the goods with him on relinquishing his office or, as the case may
be, on being transferred out of India.
(2) Every application for such concurrence shall be made by the privileged person in the
Form in Appendix V (See Form No. 20 in Part 5) to the Central Board of Excise and
Customs through the Protocol Division, Ministry of External Affairs, Government of India.
(3) A copy of the communication of the Central Board of Excise and Customs giving its
concurrence to the sale or disposal of the goods shall be sent to the [Commissioner of
Customs] nearest to the headquarters of the privileged person concerned in addition to
each of the officers to whom copies of the exemption certificate, with undertaking if any,
were sent under rule 3.
(4) Nothing in this rule shall apply to the sale or disposal otherwise of a motor vehicle in
respect of which exemption from Customs duty was given at the time of its importation or
clearance from Bond.
4A. Permission for the sale or disposal of motor vehicles. — (1) No privileged person
shall sell or otherwise dispose of any motor vehicle in respect of which exemption from
customs duty was given at the time of its importation or clearance from bond except in
accordance with sub-rule (2).
[(2) Any privileged person may —
(a)
sell or otherwise dispose of any motor vehicle referred to in sub-rule (1) to another
privileged person, with the permission of Central Board of Excise and Customs
through the Ministry of External Affairs;
(b)
re-export the motor vehicle, with the permission of the Ministry of External Affairs;
(c) sell or otherwise dispose of the motor vehicle to any non-privileged person, with the
permission of Central Board of Excise and Customs through the Ministry of External
Affairs, on payment of appropriate customs duty, on expiry of three years from the
date on which such motor vehicle was imported :
260
Provided that a privileged person, on his transfer out of India, may sell or otherwise
dispose of a motor vehicle, which was imported within one year of his posting in
India, to a non-privileged person prior to expiry of above-said period of three years
from the date on which such motor vehicle was imported;
(d) sell or otherwise dispose of an accidented / totally damaged motor vehicle, with the
permission of Central Board of Excise and Customs, to the Insurance Company
with whom the motor vehicle was insured without prejudice to his rights to sell or
otherwise dispose of the motor vehicle in terms of clauses (a) and (b) :
Provided that in case the insurance company declines to accept the offer for sale of
the motor vehicle, the motor vehicle, with the permission of Central Board of Excise
and Customs, may be sold to the Metal Scrap Trading Corporation or any other
suitable disposal agency for scrapping.]
[(3) Every application for sale or disposal otherwise of a motor vehicle to another
privileged person or, as the case may be, to a non-privileged person under clauses
(a) and (c) of sub-rule (2) respectively or sale or disposal of an accidented or totally
damaged vehicle under clause (d) of sub-rule (2), shall be made to the Ministry of
External Affairs, in the Form prescribed by the Ministry of External Affairs for the
purpose, and that Ministry shall remit the application to the Central Board of Excise
and Customs.]
[(4) Any special purpose vehicle such as communication vehicle or armoured vehicle
may only be;
(a) sold to another privileged person; or
(b) re-exported; or
(c) surrendered to the nearest Custom House, for scrapping or authorising a
suitable Indian agency for scrapping and the sale proceeds, of scrap so
obtained, if any, shall be reimbursed to the privileged person after deducting
the duty leviable for such vehicle.]
[4B. Permission to retain the motor vehicle after retirement, etc. —
(1) Where a privileged person on retiring from service or relinquishing his post in India
decides to stay in India and retains the motor vehicle, in respect of which exemption
from customs duty was given at the time of its importation or purchase from bond,
for his bona fide use, the Central Board of Excise and Customs may, on an
application made to it in this behalf, allow the person concerned to do so without
payment of customs duty subject to the condition that the said motor vehicle has
been used in India for a period of three years or more on the date on which the said
person ceases to be a privileged person or relinquishes his post in India (hereinafter
referred to as the relevant date).
(2) Where the motor vehicle has not been used in India for a period of three years or
more on the relevant date or if the said person chooses to sell or otherwise dispose
of the motor vehicle at a later date, customs duty shall become payable.
(3) Where the said person proposes to sell or otherwise dispose of the motor vehicle,
he shall offer the same to the State Trading Corporation for the said purpose with
the permission of the Central Board of Excise and Customs.
261
(4) The provisions of rule 5 shall apply mutatis mutandis to the customs duty payable
under this rule.]
5.
Recovery of goods sold or disposed of to non-privileged persons. —
(1) Where goods, other than motor vehicle, are cleared free of customs duty by a
privileged person and they are sold or otherwise disposed of by him (other than reexported) to a non-privileged person within three years from the date of their
importation, customs duty shall be recovered from such privileged person by the
[Commissioner of Customs] nearest to the headquarters of the privileged person
concerned. [The duty to be recovered shall be assessed in consultation with the
Commissioner of Customs nearest to the headquarter of the privileged person in
India]
] * * * * * * * * [(1A)
[(1B) The custom duty on any vehicle sold or otherwise disposed of under clause (c)
of sub-rule (2) of rule 4A shall be paid to the Commissioner of Customs nearest to
the headquarters in India of the privileged person concerned, the duty to be recovered
for such motor vehicle, except in case of accidented or totally damaged vehicle,
shall be assessed on the depreciated value arrived after providing for depreciation
at the scales specified by the Central Board of Excise and Customs in case of
import of second hand motor vehicles, and the rate of duty on such vehicle and the
exchange rate for conversion of foreign currency into Indian currency shall be taken
as applicable on the date of approval of such sale or otherwise disposal by the said
Board under clause (c) of sub-rule (2) of rule 4A :
Provided that the facility of duty-free sale of vehicles, after four years of import, shall
be allowed on reciprocal basis to privileged persons of those countries, which are
allowing similar facility of duty-free sale of vehicles to Indian privileged persons
posted in those countries, and for this purpose applications made to the Ministry of
External Affairs before the applicants leave India shall be entertained.]
Provided further that the facility of duty free sale of vehicles, after four years of import,
shall be allowed to all privileged persons belonging to the United Nations or any
other International Organisation irrespective of the fact as to whether the United
Nations or such other International Organization is allowing similar facility of duty
free sale of vehicles to Indian privileged persons posted in the United Nations or
such other International Organization, as the case may be.
[(1C) In the case of any accidented or totally damaged vehicle referred to in clause
(d) in sub-rule (2) of rule 4A, the Customs duty shall be calculated taking the sale
price as cum-duty price and rate of duty shall be taken as that applicable to such
motor vehicle, if it had not been so accidented or damaged at the time of such sale.]
[(1D) in case a vehicle has been stolen, customs duty shall be calculated taking the
amount of insurance claim as cum duty price and rate of duty shall be taken as that
applicable to such motor vehicle.]
(2) The privileged person concerned shall furnish such relevant information and
documents relating to the goods as the officer who is to recover duty under sub-rule
(1) may require and shall also arrange to produce the goods desired to be sold or
262
sold before that officer or any customs officer for inspection so as to enable that
officer to make a correct appraisement of the value of the goods for the purpose of
assessing them to duty.
(3) As soon as the amount of duty leviable has been paid, all the other authorities who
received copies of the certificate together with the undertaking if any, in respect of
the goods, shall be informed of this fact by the Collector who makes the recovery.
] * * * * * * * * [(4)
6.
Sale or disposal of goods to privileged person. —
(1) Where goods which were cleared free of customs duty by a privileged person are
sold or otherwise disposed of by him in favour of any other privileged person within
a period of three years from the date of their importation, it shall be the duty of the
privileged person selling or disposing of such goods to obtain from the privileged
person buying or taking them, an exemption certificate in duplicate, as required by
sub-rules (1) and (2) of rule 3, and in the case of a motor vehicle, also an undertaking
in duplicate as required by sub-rule (4) of that rule and to forward copies thereof to
the persons referred to in sub-rule (3) of that rule and in every such case, a report
shall be sent to the Central Board of Excise and Customs by the privileged person
selling or disposing of the goods as well as by the privileged person buying or
taking them.
(2) The provisions of this rule shall apply to the goods sold or disposed of under subrule (1) as often as they are sold or otherwise disposed of by a privileged person to
another privileged person :
Provided that this rule shall cease to apply to such goods other than motor vehicles
after the expiry of three years from the date of their importation.
7.
Powers of [Commissioners]. — A [Commissioner of Customs] may adopt such
procedure as he thinks necessary for the purpose of giving effect to these rules.
263
ANNEXURE-IV
The United Nations (Privileges And Immunities) Act, 1947
[Act No. 46 of 1947]
An Act to give effect to the Convection on the Privileges and immunities of the United Nations.
WHEREAS it is expedient to give effect to the Convention on the Privileges and Immunities
of the United Nations, and to enable similar privileges and immunities to be enjoyed by other
international organisations and their representatives and officials ; It is hereby enacted as
follows:1.
Short Title
This Act may be called the United Nations (Privileges and Immunities) Act, 1947.
2.
Conferment on United Nations and its representatives and officers and certain
privileges and immunities.
(1) Notwithstanding anything to the country contained in any other law, the provisions
set out in the Schedule to this Act of the Convention on the Privileges and Immunities,
adopted by the General Assembly of the United Nations on the 13th day of February,
1946, shall have the force of Law in India.
3.
Power to confer certain privileges and immunities on other international
organisations and their representatives and officer.
Where in pursuance of any international agreement, convention or other instrument it is
necessary to accord to any international organisation and its representatives and officers
privilege and immunities in India similar to those contained in the provisions set out in
the schedule, the Central Government may, by notification 2*In the Official Gazette, declare
that the provisions set out in the schedule shall, subject to such modification, if any it may
consider necessary or expedient for giving effect to the said agreement, convention or
other instrument, apply mutatis mutandis to the international organisation specified in
the notification and its representatives and officers, and thereupon the said provisions
shall apply accordingly and, notwithstanding anything to the country contained in any
other law, shall in such application have the force of law in India.
1. Provision set out in the Schedule has been extended with certain modifications to the
following organisations by various notifications
(1) International Civil Aviation Organisation.
(2) World Health Organisation.
(3) International Labour Organisation.
(4) Food and Agriculture Organisation of the United Nations.
(5) United Nations Educational, Scientific and Cultural Organisation.
(6) International Monetary Fund.
(7) International Bank of Reconstruction and development.
(8) Universal Postal Union.
264
(9) International Telecommunication Union.
(10) World Meteorological Organisation.
(11) Permanent Central Opium Board.
(12) International Hydrographic Bureau [vide Notifn.No.S.O.2480, dated 10-10-1960, Gazette
of India, Pt.ll, Sec.3(ii), p.3001].
(13) Commissioner for Indus Waters, Govt. of Pakistan and to his advisers and
Assistants.(Article lV).
4.
Power to make rules.
1
[1] The Central Government may. 2[by notification in the Official Gazette] make rules for
carrying out the purposes of this Act.
2
[(2) Every rule made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions the aforesaid, both
Houses agree in making any modification in the rule of both agree that the rule should not me
made, the rule shall there after have effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification on annulment shall be without prejudice
to the validity of anything previously done under that rule.]
THE SCHEDULE
(See sections 2 and 3)
ARTICLE I
JURIDICAL PERSONALITY
SECTION 1.
The United Nations shall possess juridical personality.
It shall have the capacity :
(a) To contract;
(b) To acquire and dispose of immovable and movable property;
(c) To institute legal proceedings.
ARTICLE II
PROPERTY FUNDS AND ASSETS
SECTION 2.
The United Nations, its property and assets wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except in so far as in any particular case it
has expressly waived its immunity. It is, however, understood that no waiver of immunity shall
extend to any measure of execution.
SECTION 3.
The premises of the United Nations shall be inviolable. The property and assets of the United
Nations, wherever located and by whomsoever held, shall be immune from search, requisition,
265
confiscation, expropriation and any other form of interference, whether by executive,
administrative, judicial or legislative action.
SECTION 4.
The archives of the United Nations, and in general all documents belonging to it or held it,
shall be inviolable wherever located.
SECTION 5.
Without being restricted by financial controls, regulations or moratoria of any kind,
(a) The United Nations shall be free to transfer its funds, gold or currency of any kind and
operate accounts in any currency;
(b) The United Nations shall be free to transfer its funds, gold or currency from one country to
another or within any country and to convert any currency held by it into any other currency.
SECTION 6.
In exercising its rights under section 5 above, the United Nations shall pay due regard to any
representations made by the Government of any Member in so far as it is considered that
effect can be given to such representations without detriment to the interests of the United
Nations.
SECTION 7.
The United Nations, its assets, income and other property shall be:
(a) Exempt from all direct taxes; it is understood, however, that the United Nations will not
claim exemption from taxes which are, in fact, no more than charges for public utility
services;
(b) Exempt from customs duties and prohibitions and restrictions on imports and exports in
respect of articles imported or exported by the United Nations for its official use.It is
understood, however, that articles imported under such exemption will not be sold in the
country into which they were imported except under conditions agreed with the Government
of that country;
(c) Exempt from customs duties, prohibitions, and restrictions on imports and exports in
respect of its publications.
SECTION 8.
While the United Nations will not , as a general rule, claim exemption from excise duties and
from taxes on the sale of movable and immovable property which form part of the price to be
paid, nevertheless when the United Nations is making important purchase of official for official
use of property on which such duties and taxes have been charged or are chargeable. Members
will, whenever possible, make appropriate administrative arrangements for the remission or
return of the amount of duty or tax.
266
ARTICLE III
FACILITIES IN RESPECT OF COMMUNICATIONS
SECTION 9.
The United Nations shall enjoy in the territory of each Member for its official communications
treatment not less than that accorded by the government of that member to any other government
including diplomatic mission in the matter of priorities, rates and taxes on mails, cables,
telegrams, telephotos and telephone and other communications; and press rate for information
to the press and radio. No censorship shall be applied to the official correspondence and
other official communications of the United Nations.
SECTION 10.
The United Nations shall have the rights to use codes and despatch and receive its corresponds
by courier or in bags, which shall have the same immunities and privileges as diplomatic
couriers and bags.
ARTICLE IV
THE REPRESENTATIVE OF MEMBERS
SECTION 11.
Representative of Members to the principal and subsidiary organs of the United Nations and
to conferences convened by the United Nations, shall while exercising their functions and
during their journey to and from the place of meeting, enjoy the following privileges and
immunities:
(a) Immunity from personal arrest or detention and from seizure of their personal baggage,
and, in respect of words spoken or written and all acts done by them in their capacity as
representatives, immunity from legal process of every kind;
(b) Inviolability for all papers and documents;
(c) The right to use codes and to receive papers or correspondence by courier or in sealed
bags;
(d) Exemption in respect of themselves and their spouses from immigration restrictions,
aliens registration or national service obligations in the state they are visiting or through
which they are passing in the exercise of their functions;
(e) The same facilities in respect of currency or exchange restrictions as are accorded to
representatives of foreign governments on temporary official missions;
(f)
The same immunities and facilities in respect of their personal baggage as are accorded
to diplomatic envoys; and also
(g) Such other privileges, immunities and facilities not inconsistent with foregoing as
diplomatic envoys enjoy, except that they shall have no right to claim exemption from
customs duties on goods imported (otherwise than as part of their personal baggage) or
from excise duties or sales taxes.
267
SECTION12.
In order to secure, for the representatives of Members to the principal and subsidiary organs
of the United Nations and to conferences convened by the United Nations, complete freedom
of speech and independence in the discharge of their duties, the immunity from legal process
in respect of words spoken or written and all acts done by them in discharging their duties
shall continue to be accorded. notwithstanding that the persons concerned are no longer the
representatives of Members.
SECTION 13.
where the incidence of any form of taxation depends upon residence, periods during which
the representatives of Members to the principal and subsidiary organs of the United Nations
and to conference convened by the United Nations are present in a state for the discharge of
their duties shall not considered as period of residence.
SECTION 14.
Privileges and immunities are accorded to the representatives of Members not for the personal
benefit of the individuals themselves , but in order to safeguard the independent exercise of
their functions in connection with the United Nations Consequently a Member not only has the
right but is under a duty to waive the immunity of its representative in any case where in the
opinion of the Member the immunity would impede the court of justice, and it can be waived
without prejudice to the purpose for which the immunity is accorded.
SECTION 15.
The provisions of sections 11, 12 and 13 are not applicable as between a representative and
the authorities of the state of which he is a national or which he is or has been the representative.
SECTION 16.
In this article the expression “representative” shall be deemed to included all delegates, deputy
delegates, advisers, technical experts and secretaries of delegations.
ARTICLE V
OFFICIALS
SECTION 17.
The Secretary-General will specify the categories of officials to which the provisions of this
Article and Article VII shall apply. He shall submit these category s to the General Assembly.
Thereafter these categories shall be communicated to the Governments of all members. The
name of the officials included in these categories shall from time to time be made Known to
the Government of Members.
SECTION 18.
Officials of the United Nations shall;
(a) Be immune from legal process in respect of words spoken for written and all acts
performed by them in their official capacity;
(b) Be exempt from taxation on the salaries and emoluments paid of them by the United
Nations;
268
(c) Be immune from national service obligations;
(d) Be immune, together with their spouses and relatives dependent of them, from
immigration restrictions and alien registration;
(e) Be accorded the same privileges in respect of exchange facilities as are accorded to
the officials of comparable ranks forming part of diplomatic missions to the Government
concerned;
(f)
Be given, together with their spouses and relatives dependent on them, the same
repatriation facilities in time of international crisis as diplomatic envoys
(g) Have the right to import free of duty their furniture and effects at the time of first taking up
their post in the country in question.
SECTION 19.
In addition to the immunities and privileges specified in section 18, the secretary-general and
all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses
and minor children, the privileges and immunities exemptions and facilities accorded to
diplomatic envoys, in accordance with international law.
SECTION 20.
Privileges and immunities are granted to officials in the interests of the United Nations and
not for the personal benefit of the individuals themselves. The Secretary-General shall have
the right and the duty to waive the immunity of any official in any case where, in his opinion. the
immunity would impede the course of justice and can be waived without prejudice to the
interests of the United Nations. In the case of the Secretary-General, the Security Council
shall have the right to waive immunity.
SECTION 21.
The United Nations shall co-operate at all times with the appropriate authorities of Members
to facilitate the proper administration of justice, secure the observance of police regulations
and prevent the occurrence of any abuse in connection with the privileges, immunities and
facilities mentioned in this Article.
ARTICLE VI
EXPERTS ON MISSIONS FOR THE UNITED NATIONS
SECTION 22.
Experts (other than officials coming within the scope of Article V ) Performing missions for the
United Nations shall be accorded such privileges and immunities as are necessary for the
independent exercise of their functions during the period of their missions, including the time
spent on journeys in connection with their missions. In particular they shall be accorded:
(a) Immunity from personal arrest or detention and from seizure of their personal baggage;
(b) In respect of words spoken or written and acts done by them in the course of the
performance of their mission, immunity from legal process of every kind. This immunity
from legal process shall continue to be accorded notwithstanding that the persons
concerned are no longer employed on missions for the United Nations;
269
(c) Inviolability for all papers and documents;
(d) For the purpose of their communications with the United Nations, the right to use codes
and to receive papers or correspondence by courier or in sealed bags;
(e) The same facilities in respect of currency or exchange restrictions as are accorded to
representatives of foreign governments on temporary official missions;
(f)
The same immunities and facilities in respect of their personal baggage as are accorded
to diplomatic envoys.
SECTION 23.
Privileges and immunities are granted to experts in the interests of the United Nations and
not for the personal benefit of the individuals themselves The Secretary- General shall have
the right and the duty to waive the immunity of any export in any case where, in his opinion, the
immunity would impede the course of justice and it can be waived without prejudice to the
interests of the United Nations.
ARTICLE VII
UNITED NATIONS LAISSEZ-PASSER
SECTION 24.
The United Nations may issue United Nations Laissez-passer to its officials. These laissezpasser shall be recognised and accepted as valid travel documents by the authorities of
Members, taking into account the provisions of section 25.
SECTION 25.
Applications for visa (where required ) from the holders of United Nations Laissez-passer,
when accompanied by a certificate that they are travelling on the business of the United
Nations, shall be dealt with as speedily as possible. In addition, such persons shall be granted
facilities for speedy travel.
SECTION 26.
Similar facilities to those specified in section 25 shall be accorded to experts and other
persons who, though not the holders of United Nations Laissez-passer, have a certificate that
they are travelling on the business of the United Nations.
SECTION 27.
The Secretary- General, Assistant Secretary- General and Directors travelling on United
Nations Laissez-passer on the business of the United Nations shall be granted the same
facilities as are accorded to diplomatic envoys.
SECTION 28.
The provisions of this article may be applied to the comparable officials of specialized agencies
if the agreements for relationship made under Article 63 of the charter so provide.
270
ARTICLE VIII
SETTLEMENT OF DISPUTES
SECTION 29.
The United Nations shall make provisions for appropriate modes of settlement of;
(a) Disputes arising out of contracts or other disputes of a private law character to which the
United Nations is a party;
(b) Disputes involving any official of the United Nations who by reason of his official position
enjoys immunity, if immunity has not been waived by the Secretary- General.
SECTION 30.
All differences arising out of the interpretation or application of the present convention shall
be referred to the International Court of Justice, unless in any case it is agreed by the parties
to have recourse to another mode of settlement. If a difference arises between the United
Nations on the one hand and a Member on the other hand, a request shall be made for an
advisory opinion on any legal question involved in accordance with Article 96 of the Charter
and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as
decisive by the parties.
Indian Laws – Bare Acts
271
272
CHAPTER 10
SEARCH, SEIZURE AND INVESTIGATION
10.1.
Powers of search
191
10.2
Who to search?
191
10.3
How to Search
191
10.4
Recommendation and guidelines for search
192
10.5
Rectum concealment
193
10.6
Vaginal concealment
193
10.7.
Locating Suspect-Need for Caution
194
10.8.
Power to screen or X-Ray bodies of the suspects.
194
10.9
Power to arrest
195
10.10
Search of Premises
195
10.11
Search of conveyances
195
10.12
Seizure under Section 110
196
10.13
Panchnama (Search list) Drawing of-
200
10.14
PANCHNAMA
201
10.15
Panchnama may be drawn as follows:-
203
10.16
MODEL PANCHNAMA FOR BAGGAGE CASES
203
10.17
SEARCH UNDER NDPS ACT, 1985
205
10.18
Details of Drugs seized
206
10.19
Details in case of foreign National:
206
10.20
Questions to be asked while recording statement under section 53 of
NDPS Act
207
10.21
POST SEIZURE INSTRUCTIONS
207
10.22
FORM-F
208
10.23
SAARC WORKSHOP ON NETWORKING APPARGEMENT AMONG APEX
NATIONAL INSTITUTIONAL LAW ENFORCEMENT AGENCIES AND NGO’S
WITH REGARD TO SUPPLY CONTROL DEMAND REDUCTION
208
10.24
DETAIL REPORTING FORM -SAARC D.R. FORM
210
10.25
DRAWAL, STORAGE, TESTING AND DISPOSAL OF SAMPLES FROM
SEIZED NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES-PROCEDURE
220
10.26
INVESTIGATIONS STATEMENT UNDER THE CUSTOMS ACT, 1962
227
273
10.27
STATEMENT UNDER THE CUSTOMS ACT, 1962
227
10.28
POWER TO SUMMON PERSON TO GIVE EVIDENCE AND PRODUCE
DOCUMENTS
228
10.29
DOCUMENTS:
228
10.30
SMUGGLING:
228
10.31
SUMMONS
229
10.32
PROFORMA OF SUMMONS UNDER SECTION 108 OF THE
CUSTOMS ACT, 1962.
229
10.33
ADMISSIBILITY OF A CONFESSIONAL STATEMENT MADE UNDER
THE CUSTOMS ACT, 1962
230
10.34
INTERROGATION OF SUSPECTS:
230
10.35
HOW TO RECORD A STATEMENT:
232
10.36
PATTERN OF RECORDING OF A STATEMENT
234
10.37
NATURE OF STATEMENT
234
10.38
COPY OF STATEMENT-WHEN TO BE GIVEN:
234
10.39
ROLE OF LAWYER DURING RECORDING OF A STATEMENT
234
10.40
WHERE SUSPECT REFUSES TO ANSWER
234
10.41
INVESTIGATING THE STATEMENT
235
10.42
RETRACTION OF STATEMENTS
235
10.43
RECORDING OF STATEMENT:
236
10.44
MODEL STATEMENT FOR BAGGAGE CASES
236
10.45
SEIZURE OF COUNTERFEIT CURRENCY NOTES
237
10.46
Submission or seizure reports and progress reports to D.R.I.
237
10.47
DRI-2 (SEIZURE REPORT)-ANTI SUMGGLING CASES
238
10.48
Streamlining of procedure for seizure of goods and preparation of
Panchnama-guidelines.
240
10.49
DRI SERIES OF FORMS
241
274
Chapter 10
SEARCH, SEIZURE AND INVESTIGATION
10.1. Powers of search
Powers of search under the Customs Act are authorised under sections 100 to 103.
2. Who to search? Persons liable to search are detailed in Section 100 and 101 of the Act. If the
proper officer has reason to believe that any person has secreted on his person any goods liable
to confiscation or documents relating thereto, such person can be searched and the Section
specifically applies to such person who has landed from or he is about to Board on is no board any
vessel within Indian Customs Waters who has landed from or is about to board or is on board a
foreign going aircraft. In addition any person who has got out of, or is about to get into or is in a
vehicle which has arrived from or is to proceed to any place outside India and any person has
entered or is about to leave India otherwise. In addition to above, if an officer of Customs has
reason to believe that any person has secreted about his person any of the following goods and
which are liable to confiscation or any documents relating there to, he may search such person.
The goods specified are gold, diamonds, manufactures of gold or diamonds, watches and any
other class of goods which the Central Govt. may by notification in the official Gazette, specify. It
is, therefore, clear that for specified goods a person can be searched any where within the Union
of India and for other than specified goods a person may be searched while on board or is coming
down of a vessel or aircraft or vehicle as stated earlier. A search can be carried out provided the
officer has reason to believe that such person has secreted about his person any goods which are
liable to confiscation.
Certain officers required to assist officers of customs-The following officers are hereby
empowered and required to assist officers of Customs in the execution of this Act viz:(a) officers of the Central Excise Department;
(b) officers or the Navy;
(c) officers of Police;
(d) officers of the Central or State Governments employed at any port or airport;
(e) such other officers of the Central or State Government or a local authority as are specified
by the Central Government in this behalf by notification in the Official Gazette.
1.
Officers of the Enforcement Directorate - powers- Sec. 151 of the Customs Act empowers
the officers mentioned in the section to assist the officers of customs in the execution of this
Act. Officers of the Enforcement Directorate have no power to seize articles from person.
They can merely assist the officers of the customs in the execution of the Act vide Vasantlal
Ranchchoddas v Union of India AIR 1967 Bom 138.
2.
Police-officers - powers- Sec. 151 does not empower police officers to exercise the powers
of customs officers under the Customs Act, 1962. They can simply assist the customs
officers. Where gold is seized by police officers and subsequently transferred to the customs
authorities, the seizure could not be said to have been effected under the Customs Act by
invoking sec. 151 -1970 All LJ 390.
10.3 How to Search
Section 102 required that where any officer of Customs is about to search any person, the
officer of Customs shall if such person so requires, take him without unnecessary delay to
275
the nearest Gazetted Officer of Customs or Magistrate. Upon such requisition, the officers of
Customs may detain the person making it, until he can bring him before Gazetted Officer of
Customs or the magistrate. The power of detention is, thus, involved and is vested in the
Customs Officer till the time the suspected person can be produced before the Gazetted
Officer of Customs or the magistrate. The Gazetted Officer of Customs or magistrate, if he
sees no reasonable grounds for search may forthwith discharge the person but otherwise
shall direct that search be made, it is further directed, that before making the search, the
officer of Customs shall call upon two or more persons to attend and witness the search and
the search shall be made in the presence of such persons and a list of all things seized in the
course of such search shall be prepared by such officer or other person and signed by such
witnesses. The last provision is that no female person shall be searched by anyone except
by a female. In other words the Act makes it mandatory for the Customs Officer to take
orders of either Gazetted Officer of Customs or the Magistrate in the event the person to be
searched make a requisition to be so conveyed before the Gazetted Officer of Customs or
the Magistrate. Further provision is also made for correctly counting for the goods revealed
as a result of the search. In as much as two or more persons are required to witness the
search in addition to the officer carrying out the search. Lastly provision has also been made
regarding search of a female person in that only a person of female sex can search suspected
female persons.
10.4 Recommendation and guidelines for search
When conducting searches of person, there are some recommendations and guidelines and
the officer should constantly bear in mind. The most obvious of these is the need for two
officers to be present whenever any individual is to be thoroughly searched. The second
officer can physically assist in controlling the suspect if necessary. He can also witness the
seizure of evidence or testify concerning any accusations made by the suspect about the
conduct of the searching officer.
There are three types of searches that are commonly made of individual: (a) the frisk search;
(b) the field search; and (c) strip search
(a) Frisk search:
The frisk is a cursory search also known as a pat-down. It is usually a brief search for
weapons and is limited to the general area of the outer clothing. A frisk may be conducted
on persons not subject to arrest. A frisk is lawful when the officer (1) has observed
suspicious activity on the part of the person being frisked; (2) has reason to believe that
the suspect is armed; and (3) the officer limits himself to a search for weapons. A
suspect may also be stopped and searched when a reliable informant has advised that
the suspect is armed. A frisk under either decision is restricted to a quick pat down or its
equivalent, plus an examination of bags or other objects that may contain weapons.
(b) Field search
A field search is conducted on the scene of arrest. The search is done subsequent to
handcuffing. This is a systematic search performed by dividing the body down the
middle and searching one-half of the body at time. This search is conducted for weapons,
narcotics, narcotics paraphernalia and other contraband goods.
(c) Strip search
The Strip Search is conducted in a controlled and private environment such as a jail cell
or detention area. This suspect is made to undress completely and all clothing is
thoroughly searched. While in the wall position, the suspect is given a through search
which includes body cavities - mouth, ears, nose and rectum.
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10.5 Rectum concealment
Rectum is lower part of the large intestine between the sigmoid flexure and anal canal. The
rectal region of the human body is a convenient cavity suitable for secreting contraband items
like gold, silver watches and narcotics. Smugglers regularly employ carriers, both male and
female, who specialize in carrying contraband in their rectums.
This is a very painful process and calls for great physical endurance. The standard procedure
employed is to abstain from consumption of solid food several hours prior to the insertion, of
the material. The bowels are purged by taking suitable laxatives. Thus all waste material
inside the body is flushed out. Fresh intake of solid food is restricted well in advance. The
contraband meant for concealment is reduced in size and length. Precious metals are
converted into small pellets and put into latex condom. The condom and the anal region are
subjected to large doses of lubrication in order to facilitate easy movement. Depending on the
body size and structure, approximately, between 0.250 kg and 1.000kg, can be stored inside
the rectum. Once inside the rectum, the body is capable of retaining this foreign matter for
duration of four to six hours. After this duration, it becomes difficult to retain the material
inside. The pressure to eject the material becomes tremendous.
Customs personnel are able to detect cases of rectal concealment because the presence
foreign material inside the rectum affects the normal gait of the person. Normal walking
becomes difficult; the legs do not appear steady, and the person always adjusting his posterior
posture. If such persons are examined, the heavy lubrication of the anal region becomes
apparent. The possibility of bloodstains cannot be excluded. The material is ejected in the
normal way and if necessary medical assistance is sought.
10.6 Vaginal concealment
The vaginal passage in females affords a safe and private area for effective concealment.
Vaginal concealment has been used from time immemorial by female couriers, spies and
underground activists.
The advantages of this system of concealment area:
-
Easy to insert and retrieve
-
Does not cause physical injury
-
Can be retained in the body for a long duration of time
-
Cannot be detected easily
-
When used in conjunction with sanitary napkin, it is a highly effective form of concealment.
Females can be searched only by females. Hence trained female searchers are essential in
an Investigating team. Since these are delicate and sensitive issues, the trained officer should
be able to detect potential suspects by cleverly reading facial and body language. Any individual
resorting to such devious means of secreting goods in her private area are prone to display;
-
A guilty look;
-
An embarrassing look;
-
Unseemly haste to leave the place as quickly as possible;
-
Get unnecessarily hostile when questioned; and
-
Put up resistance to be searched.
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Only a highly observant female officer can successfully detect cases of vaginal concealment
by visual observation. It would be most advisable to used confirmatory test by way of handhold metal detector, which has so far proved to have unfailing records.
Whenever a suspect is searched, an entry shall be made in a register of personal searches
to be maintained in the form given in Appendix G. This shall be a permanent record and shall
bear running serial numbers for each calendar year.
When a suspected person is searched, he should be required to take off his outer-garments
and shoes etc. so as to examine closely if he is wearing a belt, which may contain the
contraband, or whether he has the contraband strapped to his body by means of adhesive
tapes. When searching for metals it may also be useful to apply the metal detector to the
armpits, the private parts, groin side of the thighs and rectal regions.
In case the contraband looked for, a precious stones, a metal detector will show nothing and
the visual examination of the armpits, private parts, groins and inside of the thighs has to be
thorough. X-Ray examination should be resorted to if suspicion of concealment in body cavities
exists.
The search should not be confined only to feeling the various parts (DRI. F. No. 337/18/63Ad II 27.7.63).
S.No.
1
Date
2
Name of passenger
3
Service by which arriving
or departing and place
from which arriving or to
which departing
References
Result
Signature of
to information officer/s shift in
if any
making the
search
Initial of the
4
5
8
6
7
charge
10.7 Locating Suspect-Need for Caution
The Officers while being alert and active in operations, they should show more circumspection
in choosing suspects especially Railway/Bus Passengers, without prior information or sufficient
reason so that innocent persons are not subject to unnecessary trouble. The officer performing
such duties should also have proper knowledge regarding the baggage rules, when carrying out
such searches.
(Letter F. No. 9/74/67-LC II dated 23.4.1967 from Board)
10.8 Power to screen or X-Ray bodies of the suspects.
The provision is incorporated is Section 103 of the Act, where the proper officer has reason to
believe that any person has any goods secreted inside his body, and such goods are liable
confiscation, the officer may detain such person and produce him without unnecessary delay
before the nearest Magistrate. The period of such detention can be at most 24 hours excluding
the period of Journey. Though the Customs Act does not specifically incorporate the above
period of detention in Custody, yet the maximum period is laid down by Constitution itself in
Article 22(2). Further there must not be an unnecessary delay in taking the accused person
before a Gazetted Officer of Customs or a Magistrate if such person is to be detained under
the Customs Act. Similar Provision also applies in cases where a person is arrested under
the Section 104 of the Customs Act.
Section 103 (2) provides that Magistrate before whom any person is brought, under subSection (1) shall if he sees no reasonable ground for believing that such person has secreted
in his body any such goods may forthwith discharge such person. If on the other hand the
magistrate has reasonable ground to believe that such secreted goods exist inside the body
of the person he may order that the body of such person is screened or X-rayed by properly
qualified and recognized Radiologist.
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Notification H.F. (D.R.) No. 173-Cus dated 29th December, 1956 (any person who is employed
as Radiologist in a Government hospital or he is a graduate in medicine holding a degree of
D.M.R. or other equivalent post-graduate qualification and has at least five years experience
as a radiologist will be deemed to be qualified Radiologist recognized by the Central
Government for the purposes of this Section.)
By the orders of the Magistrate the arresting officer shall take such person before a radiologist
as defined above for purpose to screen or X-Ray the body of the detained person. Upon
report of Radiologist undertaking that some such goods are secreted in the body and the
Magistrate is satisfied that such goods are liable to confiscation may direct that suitable
action for bringing out such goods are taken on the advice and under the supervision of the
Radiologist to take out such secreted goods. In case of a female person to such action will
be authorised except on the advice and under the supervision of a female registered medical
practitioner. For the above purposes the Magistrate may also order detention of the person in
enforcing of the provision of this section in custody. Lastly nothing in this Section shall
apply to any person who admits that goods liable to confiscation are secreted inside
his body, and who voluntarily submits himself for suitable action being taken for
bringing out such goods.
10.9 Power to arrest
Under Section 104 of the act if an officer of the Customs has reason to believe, that any
person in India or within the Indian Customs waters has been guilty of an offence punishable
under Section 135, he may arrest such person and shall as soon as possible inform him of
the grounds for such arrest. The grounds of arrest are briefly to be informed after arrest and
before the arrested person is taken to the Magistrate. Further sub-section 3 provides that the
arresting officer for purpose of release of such person on bail or otherwise shall have the
same powers and be subject to the same provisions as an officer-in-charge of Police station
and is subject to the code of Criminal Procedure, 1893. The provision of Criminal Procedure
Code are incorporated in Section 433 of the amended Code of Criminal Procedure, 1973.
1010 Search of Premises
Under Section 105 of the Act, an Assistant Commissioner of Customs may order such officer
duly authorised by the Board, having reason to believe that any goods or documents liable to
confiscation or any documents pertaining thereto are secreted in any place, the Assistant
Commissioner or such other officer may authorise any officer of Customs to search such
place or may himself search for such goods, documents or things. The provision of Code of
Criminal Procedure, 1973 relating to searches shall apply to searches under this section.
10.11. Search of conveyances
Power of stop and Search conveyances are incorporated in Section 106 of the Customs Act.
The proper officer has reason to believe that any aircraft, vehicle or animal in India or any
vessel in Indian or within Indian Customs Waters has been, is being, or is about to be used in
the Smuggling of any goods or in the carriage of any goods which have been smuggled, such
officer may at any time stop any such vehicle, animal or vessel or in the case of an aircraft,
compel it to land and rummage and Search any part of the aircraft, vehicle or vessel and
examine and Search any part of the aircraft, vehicle or vessel and examine and search any
goods in the aircraft, vehicle or vessel or on the animal and break open the lock of any floor or
package for exercising the powers conferred by the section, if the keys are with held. For
stopping such vessel or to compel any aircraft to land, if would be lawful for any vessel or
aircraft their service of the Government while flying her proper flag and any authority authorized
in this behalf by the Central Government to summon such vehicle to stop or the aircraft to
land by means of an International signal code or other recognized means and thereupon
279
such vessel shall forthwith stoop or such aircraft shall forthwith land if it fails to do so chase
may be given thereto by any vessel or aircraft as aforesaid and if after a gun is fired as a
signal the vessel fails to stop or the aircraft fails to land, if may be fired upon. For stopping
any vehicle or animal, the proper officer may use all lawful means for stopping it, and where
such means fail, the vehicle or animal may be fired upon. Under Notification No. MF (D.R. &
I) No. 149/Cus dated 4th October, 1969 a preventive Officer and Inspectors of Central Excise
appointed for any area adjoining the land frontier or the coast of India is authorised to exercise
the powers under the Section.
10.12. SEIZURE UNDER SECTION 110
Authorised proper Officer, when has reason to believe that any goods are liable to confiscation
may seize such goods. The Proper Officer, where it is not practicable to seize any such
goods may also serve order on the owner stipulating that he shall not remove, part with,
otherwise deal with the goods except with the previous permission of such officer. Sub
Section (2) provides that where goods are seized but no notice in respect thereof is given
under Clause (a) of Section 124 within 6 months of the Seizure of the goods, the goods shall
be returned to the person from whose possession they were seized. The provisions however,
has been made for extending the aforesaid period of six months on sufficient cause being
shown to the Commissioner of Customs for a period not exceeding 6 months. The proper
Officer may also seize any documents or things which in his opinion will be useful for or
relevant to any proceeding under this Act. The person from whose custody any documents
are seized under sub Section (3) shall be entitled to make copies thereof or take extracts
from in the presence of an officer of Customs.
It is interesting to note that provision have been made under section 110 for detaining goods
where it is not practicable to seize such goods. The proper Officer has also been given wide
power to seize any documents or things apart from the smuggled goods which in his opinion
will be useful or relevant to in any proceeding under this Act.
‘Any Goods’-what they include-The words ‘any goods’ used in sec. 110 would obviously
include both dutiable goods and goods as defined in Sec. 2(22). Therefore, any conveyance
or animals, used as a means of transport in smuggling of goods or in the carriage of any
smuggled goods, shall be liable to confiscation under sec. 110(2) unless the owner of the
conveyance shows that it was so used without his knowledge or connivance - Tarlok Singh V.
Supdt. of Customs 1978 EL T (Delhi): (1979) 15 DLT 183.
10.12 (i) Seizure of Documents
Sub-sec. (3) of sec. 110 empowers the proper officer to seize the documents, which in his
opinion will be useful for or relevant to any proceeding under the Act. It is, therefore, obvious that
sub-sec. (3) gives an independent power in the matter of seizure of documents and the said
power is not subservient to the power exercisable by the proper officer under sub-sec. (1) of sec.
110. Since the purpose of the two subsections is different, the documents or things can be seized
under sub-sec. (3) of sec. 110 even in those cases where there may be no seizure of goods on the
ground that the goods are liable to confiscation. In other words, the seizure of goods on the
ground that the proper officer has reason to believe that such of sub-sec. (1) of Sec. 110 cannot
be read as a condition precedent to the exercise of power of seizure of documents under sub-sec.
(3) of sec. 110 of the Customs Act. 1962.
Document includes “any matter written, expressed or described upon any substance by
means of letters, figures or marks, or by more than one of those means which is intended to be
used, or which may be used, for the purpose of recording that matter”. [Section 3 (18) General
Clauses Act]. This definition has to be applied to the Customs Act which does not define ‘document’.
British Physical Labs. v. Asstt. Commissioner, DRI-1983 (14) E.L.T. 2270 (Kar.)
280
10.12 (ii) Passport -whether document.
Passport is a prima facie evidence of nationality, a document of identity and essential for exit/
entry into countries. It has become a condition of free travel vide Satwant Singh v. RamarathnamAIR 1967 SC 1836.
The Criminal Court has the power to withhold or impound the passport of any person, more
so of a foreigner, accused of a grave offence vide Assistant Commissioner v. Abdul Samathu1985 (22) E.L.T. 761 (Mad.)
Passport may be seized under FERA (on summons issued under Section 40 and in exercise
of the powers under Section 38). It can be said to be both a document and a thing (vide Section
38), or at a least a thing which is capable of being perceived. - Abdul Kadir Md. Jhaveri v. U.O.I. (1987) 14 ECC 81 (Guj.).
Passport is a document liable to seizure under sec. 110 (3) - Devadasan Daya V.
Commissioner of Customs (1986) 26 EL T 728 (Ker) referred with approval in P.O. Thomas V.
Union of India 1990 Cr. LJ 1028 (Ker) (DB)
10.12 (iii) SECTION 110 (1A) OF THE CUSTOMS ACT, 1962
Section 110 (1) (A) of the Customs Act, 1962, stipulates that the Central Government may,
having regard to the perishable or hazardous nature of any goods, depreciation in the value of the
goods with the passage of time, constraints of storage space for the goods or any other relevant
consideration, by notification in the Official Gazette, specify the goods or class of goods which
shall, as soon as may be after its seizure under sub-sec. (1) be disposed of by the proper officer
in such manner as the central Government may from time to time, determine after following the
procedure hereinafter specified.
Notification issued in this regard has been reproduced below:
“In exercise of the powers conferred by sub-section (1A) of section 110 of the Customs Act,
1962 (52 of 1962), the Central Government, having regard to the perishable nature, depreciation in
the value with the passage of time, constraints of storage space and valuable nature, of the goods,
mentioned in the Schedule hereto annexed, hereby specifies the said goods for the purposes of
that sub-section.
The Schedule
1.
Liquors;
1A. Photographic Films;
1B. Patent or Proprietary medicine, Le., any drug or medicinal preparation, in whatever form,
for use in the internal or external treatment of, or for the prevention of ailments in human
beings or animals, which bears either on itself or on its container or both, a name which
is not specified in a monograph, in a Pharmacopoeia or Formulary;
2.
Primary cells and primary batteries including re-chargeable batteries;
3.
Wrist watches including electronic wrist watches; watch movements, parts or
components thereof;
3A. Zip fasteners;
4.
All electronic goods including television sets, Video Cassette Recorders, Tape recorders,
calculators, computers; components and spares thereof including diodes, transistors,
integrated circuits, etc;
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4A. Gold in all forms including bullion, ingot, coin, ornament crude jewellery;
5.
Dangerous drugs and psychotropic substances.
6.
Conveyance;
7.
Man-made yarn and fabric;
8.
Currency, Indian & Foreign;
9.
Bulk drugs and chemicals falling under Section IV of the First Schedule to the Customs
Tariff Act, 1975 (51 of 1975).
10. Diamonds, precious and semi-precious stones.
11. Ball Bearings.
12. Cellular Phones.
[Notification No 31/86-Cus. Dt. 5.2.1986, as amended by No. 42/89-Cus. (NT), dt. 30.6.1989, No.
7/93-Cus. (NT), dt. 25.1.1993, No. 10/95-cus. (NT), dt. 1.3.1995, No. 12/96-Cus. (NT), dt. 11.3.1996,
No. 72/97-Cus. (NT), dt. 22.12.1997 and no. 90/98-Cus. (NT), dt. 12.11.1998]
10.12 (iv) (i) SECTION 110 (2) OF THE CUSTOMS ACT, 1962
Sub-sec. (1) of sec. 110 authorizes seizure, the only requirement being reasonable belief on
the part of the concerned officer at the time of seizure. The powers of seizure founded on a mere
reasonable belief, being obviously an extraordinary power, the second sub-section envisages
completion of the enquiry within a period of six months from the date of seizure. But it provides
that if such an enquiry is not completed within that period and a notice under Sec. 124(a) is,
therefore not given, the person from whom the goods are seized becomes entitled to their
restoration. However, on the supposition that in some cases such an investigation may not be
completed owning to some difficulties, the legislature gave under the proviso power to the
Commissioner, an officer superior in rank, to extend the time on two conditions, namely, (1) it does
not exceed one year, and (2) on sufficient cause being shown. The policy of the legislature,
therefore, clearly was that in view of the extraordinary power of seizure, the enquiry should ordinarily
be completed within six months but since it might not be possible to do so in some cases, it gave
power of extension to the Commissioner. The legislature was thus careful to entrust the power of
extension would have to be asked for and granted are thus envisaged as exceptions to the general
rule of six months laid down in sub-sec. (2). The second limitation to the power is that such as
extension can be granted only on sufficient cause being shown, a phrase often used for condonation
of delay, such as sec. 5 of the Limitation Act, 1963.
There can be no doubt that the proviso of second sub-section of sec. 110 contemplates
some sort of enquiry. The Commissioner, obviously, is expected not to pass extension orders
mechanically or as a matter of routine, but only on being satisfied that there exists facts which
indicate that the investigation could not be completed for bona fide reasons within the time laid
down in sec. 110 (2) and that, therefore, extension of that period has become necessary. He
cannot therefore, extend the time unless he is satisfied on facts placed before him that there is
sufficient cause necessitating extension. The burden of proof in such an enquiry is clearly on the
Customs officer applying for extension and not on the person from whom the goods are
seized. The question, therefore, is as to the nature of such a function and power entrusted to and
conferred on the Commissioner by the proviso. It will be noticed that whereas sub-sec. (1) of sec.
110 uses the expression ‘reason to believe’ for enabling a Customs officer to seize goods the
proviso to sub-sec. (2) uses the expression ‘sufficient cause being shown’. It would seem that
sub-sec. (1) does not contemplate an enquiry at the stage of seizure, the only requirement being
the satisfaction of the concerned officer that there are reasons their illegal importation. Even so,
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such satisfaction, is not absolutely subjective in as much as the reasons for his belief have to be
relevant and not extraneous. It is clear that the legislature was not prepared to use the same
language while giving power to the Commissioner to extend time and deliberately used the
expression ‘sufficient cause being shown’. The words ‘sufficient cause being shown’ must mean
that the Commissioner must determine on materials placed before him that they warrant extension
of time. Where an order is made in bona fide exercise of power and reading the provisions of the
Act which confers such power, the order undoubtedly is immune from interference by a court of
law, and, therefore, the adequacy of the cause shown may not be ground for such interference.
But there can be no doubt at the same time that the enquiry to be held by the Commissioner has
to be on facts, i.e. materials placed before him. There is, therefore, no question in such cases of
the subjective satisfaction of the Commissioner for, what he is asked to do by the proviso is to
determine that the cause shown before him warrants an extension of time.
The right to restoration of the seized goods is a civil right which accrues on the expiry of the
initial six months and which is defeated on an extension being granted, even though such extension
is possible within a year from the date of the seizure. An exparte determination by the Commissioner
would expose his decision to be one-sided and perhaps one based on an incorrect statement of
facts.
10.12 (iv) (ii) Notice under section 124(a) of the Customs Act and service thereof.
Sub-sec. (2) of sec. 110 requires notice under sec. 124 (a) to be ‘given’ to the person from whose
possession the goods were seized within six months of the seizure of the goods. This is a mandatory
provision in the sense that failure to do so entitles the person from whose possession the goods
were seized to get return of the same. Incidentally, Sec. 124 of the Act provides that no order
confiscating any goods or imposing any penalty under the Chapter (Chapter XIV) shall be made on
any person unless the owner of the goods or such person(a) is given a notice in writing;
(b) is given an opportunity to make a representation in writing.
Interestingly, sec. 124(a) does not provide any time limit for issuing such show-cause notice.
The object of service of such notice is also different so far as sec. 124 is concerned, though in
view of sec. 110(2), the goods seized should be returned for non-service of such notice within the
specified time frame. It does not, however, denude the adjudicating authority of the power to
initiate proceedings even thereafter.
As to the service of notice, sec. 153 of the Act provides that it may be effected
(a) by tendering it or sending it by registered post; or
(b) affixing it on the notice board of the customs house, if it cannot be served in the manner
provided in cause (a).
Service of order, decision, etc. - Any order or decision passed or any summons or notice
issued under this Act, shall be served(a) by tendering the order, decision, summons or notice or sending it by registered post to
the person for whom it is intended or to his agent; or
(b) if the order, decision, summons or notice cannot be served in the manner provided in
cause (a), by affixing it no the notice board of the customs house.
10.12 (iv) (iii) Period of limitation under section 110(2) - whether affects proceedings
under section 124.-Sec. 124(a) makes service of notice upon the concerned person or the owner
of the goods, a pre-condition to confiscation of goods or imposition of penalty. Incidentally, the
section does not provide any time limit for issuing such show-cause notice, through sec. 110(2)
283
does. Now, sec. 110 relates to seizure of goods, which the proper officer has reason to believe,
are liable to confiscation. Service of notice in respect of such seized goods under sec. 124(a) is
necessary in order to enable the concerned person to show cause why such seized goods shall
not be confiscated or why personal penalty should not be imposed on him. Sub-sec. (2) of sec.
110, in this connection provides what where any goods are seized under clause (a) of sec. 124
within six months of the seizure of the goods, the goods shall be returned to the person from
whose possession they were seized. Thus, so far, as sec. 110 is concerned, non-service of
notice under sec. 124(a) within the prescribed period renders such goods returnable. The legislative
object behind this provision is obviously, not to allow the Customs authorities to keep the goods
under seizure for indefinite time without a proper enquiry being held as to whether such goods are
actually liable to confiscation. So, in relation to sec. 110, non-service of notice within the prescribed
period affects merely the validity of the seizure. It does not affect the confiscation and penalty
proceedings as contemplated by sec. 124. Because though the goods seized on a reasonable
belief that they are liable to confiscation, proceedings may still be held and or continued.
10.12 (v) Time-limit of six months- whether applicable to seizure under section 110(3).
Sec. 110 (1) of the Act deals with seizure of goods; sub-sec. (2) stipulates the condition when
the seized goods are to be returned and sub-sec. (3) and (4) deal with the documents seized. The
Legislature in its wisdom thought it proper to lay down condition and time for return of seized
goods, but has not done so in case of seized documents. In view of this it cannot be urged that
along with the seized goods, seized documents should also be returned. It is, however, expected
that the seized documents would be retained so long they are required for investigation etc &
should not held indefinitely.
It is a settled issue that the last date for issuing the show cause to a party/assessee is the
date of dispatch of the same through the modes prescribed under section 153 of the Customs Act,
1962 which reads as under:
10.12 (vi) SECTION 153.Service of order, decision, etc. – Any order or decision passed or any
summons or notice issued under this Act, shall be served (a) by tendering the order, decision, summons or notice or sending it by registered post to the
person for whom it is intended or to his agent; or
(b) if the order, decision, summons or notice cannot be served in the manner provided in clause
(a), by affixing it on the notice board of the customs house.
This is further strengthened by the fact that the Hon’ble Madras High Court in the
case of SMP Gandhi V. Commissioner of Customs (Airport), Chennai, in disposing of the
writ petition 31718 of 2003 has held it to be as above.(Annexure-I)
10.13. Panchnama (Search list) Drawing of(i)
The Search list, as far as practicable must be prepared in the premises from which the
goods were recovered. In a case where more than one room is searched in a building
the search list can be prepared in anyone of the rooms from which the goods are
recovered. When goods, liable for confiscation, are found in different rooms they must
be shown to the search witnesses in the rooms where they are found before they are
removed to another room. It is to be borne in mind that immediately on detection the
goods should be allowed to remain in its original place until the search witnesses have
seen them.
(ii)
In a case where goods are recovered from the person of a carrier as a result of personal
search, the search list may either be drawn in the premises where the person is searched
or if it is not practicable at the spot as near, to the search premises as possible.
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(iii) Great care should be exercised in selecting exhibits which have a bearing on the mode
of concealment etc. The officers should invariably take possession of the packages,
boxes, bags, writing papers containers, in which the goods were concealed etc.
(iv) While seizing the documents, the following procedure should be adopted:(a) All loose documents should be signed by the witnesses.
(b) Each page of all exercise books registers etc. must be numbered and the pages
containing writing must be signed by the witnesses. The number of written pages
and the pages should be separately indicated in the, documents.
(c) The first and last document in the register, the exercise books etc. must be signed
by the witnesses.
(d) The seizing officer will also cause all seized goods to be properly sealed with the
Customs seal as well as the seal of the accused (if any) if he so desires.
(v)
10.14
As required under section 103 (2) of the Criminal Procedure Code 1973 a list of all
things seized in the course of the search and of the places in which they are respectively
found shall be prepared by the officer executing the search warrant and be signed by the
two witnesses. As far as possible, a full inventory should be prepared before the seizure.
Where for any reason this is not possible, with the owner’s consent, the goods may be
seized in packages, bundles, boxes etc. and the containers sealed carefully with the
owner’s seal and the seal of the supervising Customs Officer. A memo should be served
on the specified day and time for the preparation of the detailed inventory, examination
and valuation of his goods. If inspite of this memo, the owner fails to attend the Custom
House within the specified time-Limit for examination of the goods etc., the goods may
be examined in his absence before two independent witnesses.
PANCHNAMA
1.
A Panchnama is essentially a document recording certain things which occur in the
presence of the panchas and which are seen and heard by them”. Panchas are taken to
the scene of an offence to see and hear certain things. Obviously, therefore, panchas
are liable to be examined at the trial to depose to those things, and their evidence is
relied upon in support of the testimony of an Investigating Officer. A Panchnama of this
kind recorded and relied upon in support of an evidence from the panchas is
akin to a statement previously made by them under Section 157 of the Indian
Evidence Act, 1878 which says that former statements of witnesses may be proved
to corroborate later testimony is to same fact.
2.
A Panchnama is an essential document not only influencing the course of proper
investigation but a record of memory and refresher of the memory so that important
details are not forgotten on. Section 159 of the Evidence Act, 1878 say a witness may
refresh his memory by referring to writing made by himself and even written by any one
else.”
3.
Accordingly, therefore, the Panchnama must in all its facts must to be truly a factual one
incorporating what was actually seen and heard by the witnesses written in their hand
and written out and certified by them as found to be true and correct and as seen,
witnessed, and heard by them, Certificate on the Panchnama in the language known to
the Panchas would be appropriate.
4.
A Panchnama is also a rescue value and in other words a cover against all possible
false allegations against the Investigating Officer. A Police officer takes recourse to a
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Panchnama at almost every stage of the investigation to have corroboratory evidence
ready at hand to drive home the facts in the Court of Law. The Police Officer, however,
is at certain disadvantage as compared to officers of enforcement under special section
162 of the Criminal Procedure Code, 1973 which says that no statement made by any
person to a police officer in the course of an investigation shall be signed by the witness,
for every statement made by the witnesses shall be duly proved. It is essential, therefore,
for panch witnesses and witnesses who make statements to a police officer to necessarily
appear in a court for proving the statements and testify to what they have seen and or
heard.
5.
A Panchnama seen and heard by the panchas and recorded by a scribe or an
officer is only a modus as dictated by an officer and will not render, the panchnama
invalid and the panchnama would be admissible in evidence. This has been the
ruling of the Supreme court in the case of Sant Singh V. State of Punjab AIR 1956
SC).
6.
No person shall be denied equal protection of law in terms of Article 14 of the Constitution
of India. Any persons can claim such a protection when his place is searched or person
in searched and a panchnama to the effect is made. Now the object of the Act, in Customs
is to prevent smuggling; in Central Excise Act is to prevent snuggling of goods by resort
to non-observation of the duties required to be performed under the Act; in foreign
exchange law the smuggling of currencies and documents and instruments affecting
the economy of the country. A Panchnama properly down and carefully done incorporating
the facts seen and heard will cover a major part of an prosecution, for that much of
evidence as offender may stand adduced.
7.
Panchas should be independent and respectable people. They should normally belong
to the locality and or neighborhood of the place where the panchnama is drawn. There
is, however, no bar in getting panchas from distant places also if needs be or to overcome
the availability of panch witnesses. The requirement, however, is that the panchas should
be:(a) Intelligent,
(b) Literate as far as possible,
(c) Respectable citizens,
(d) Should be of an understanding and on impartial type,
(e) Must have a good record with goods antecedents and without conviction,
(f)
Should have no interest in the matter,
(g) Should not be influenced with pecuniary considerations or other considerations
(h) Should not be minors
(i)
Acceptable to the religious sentiments of the owner of the house
(j)
Free from contagious deceases and infirmities as to affect their being proper panchas
for instance (deaf, mute, blind etc.)
(k)
Should have no relationship either with the place or person searched or the officerrelations, debtor, rivalry, master, servant etc.
(l)
Complainant or owner of the house should not be given the chance or choice of
being panchas
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(m) Well-to-do or affluent persons may not necessarily be respectable persons
(n) No objection if panchas are Govt. Servants
(o) Panchas should be present from the tine of entry into the premises.
(p) They should have knowledge of the purpose of the Search.
(q) Should be present from the beginning to the end of the Search.
(r)
Should initial the documents/records for identification of having seen if at the time
of search at a later date.
(s) They may be explained that they should carefully watch the proceedings in the
search.
10.15. Panchnama may be drawn as follows:(a) Heading, Time and Date.
(b) Names, Son/Wife of, address of the panchas
(c) Occupation.
(d) Age.
(e) Residential Address.
Where female members are, there is the place of search, try to include female panch witness
also. Panchas should be either two or more, not less than two. Explain to the Panchas the
purpose of the search. Introduce the owner or the suspect. Identify the suspect in the
panchnama by taking his full name, his father’s husband’s name etc, occupation, residential
address, and identification marks, if any. Take the signatures of the panchas, the owner/
suspect on the warrant or the authorisation for search and specify the details of the said
documents in the panchnama and state that the same has been dated and signed by the
panchas and suspect. Give a brief and accurate description of the search carried out. Offer
yourself for personal search before entry and again at the time of the closure of search,
specify clearly and descriptively as to article where found in what manner, its identification
marks, size numbers, weight, color etc.
If documents are found collect them, serially number them, have each page dated and signed
by panchas and suspect and if voluminous stitch them together by sealing the ends of the
thread on a piece of paper with seal and signatures and date of the panchas and suspect and
have the papers in the bunch serially numbered. Panchnama should be drawn on the spot.
10.16.
MODEL PANCHNAMA FOR BAGGAGE CASES
Witness:
1.
2.
Name
Age
Occupation
Address
Name
Age
Occupation
Address
We the above mentioned panchas, were called upon by the Air Customs Officer
Shri.......................................................................................................................at (time) on
......................... (date), to witness the search of baggage and/or person of a passenger, inside the
arrival/departure customs hall. We were shown a passenger at Counter No. ........ with
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..............pieces of baggage. The Name of the passenger was ascertained to be Shri/
Smt..................................as per the (Nationality) Passport No............. held by him. In our presence
claimed ownership of the said........pieces of baggage which bore tag Nos:................and stated
that he had arrived from ...........................by flight/Bus/Rail No................on Ticket No.
Thereafter the passenger was informed about his right of to be searched before a magistrate
or a Gazetted Officer and a written option U/550 of NDPS Act, 1985 & under section 102 of Customs
Act, 1962 was given to the passenger on which he put his signature. He opted to be searched by
the Customs Officer.
Thereafter, the said passenger opened.............pieces of baggage, claimed by him with the
keys, in his possession.
The contents of the said..........pieces of baggage were examined by the aforesaid Customs
Officers in our presence and in the presence of the passenger, and the following items of goods
were recovered there from.
(Details of goods to be shown here. If there are number of items a separate inventory duly
signed by the panchas may be prepared).
The said goods were far in excess of the declaration earlier made by the passenger under his
signature and now shown to us the these goods, inter alia, included the following items;
(Details of items to be shown).
After emptying the contents of the baggage, the said Customs Officer in our presence and in
the presence of the passenger, inspected the containers and observed that one of which i.e.,
suitcase, had a false bottom. The said Customs Officer therefore opened the bottom of the said
suit case in our presence and in the presence of the passenger when the following goods were
found concealed therein and the same were recovered there from:
(Details of the goods).
Thereafter, the said passenger was escorted by us and the Customs Officer to an adjacent
room where the passenger’s personal search was taken by the Customs Officer in our presence
when the following items of goods concealed on his person were recovered.
(Details of the goods and place and method of concealment).
On questioning by the Customs Officer the said passenger admitted in our presence that he
had concealed the goods in the baggage and or on his person to avoid detection by the Customs.
All the aforesaid goods recovered from the baggage and person of the aforesaid passenger
and collectively valued at Rs...................(c.i.f.) and Rs........................... (m.v.) where taken over
and seized by the Customs Officer in the reasonable belief that the same were smuggled into
India and hence liable to confiscation under the provisions of the Customs Act, 1962. The said
suitcase/container used for concealing the contraband goods, the Tickets No..............., Boarding
Card, baggage tags Nos........... stubs, were taken into possession.
The goods admissible to the passenger under free allowance were detained vide DR No.............
The panchnama started at...........hrs on.......................... (date) at the same place and
completed at ..........hrs. During the course of the panchnama no religious feelings were hurt nor
any physical force or coercion was used by the said Customs Officer.
This Panchnama has been recorded by Shri............................ and has been explained to us
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in the vernacular. Whatever has been recorded is true and has been fully understood by us.
Place
Time started
Time finished
Panch (1) Signature
Recorded by me
Signature of Air Customs Officer
Panch (2) Signature
Received Copy
Signature of passenger
Read over and explained by me in (known language) to Shri................................ (name of the
passenger) and he accepted that the contents of the Panchnama are true and correct.
(Signature of the interpreter)
10.17.
SEARCH UNDER NDPS ACT, 1985
10.17(A) MANDATORY CONDITION FOR PERSONAL SEARCH:
Section 50 is a very important provision. The conditions given therein are mandatory. The
accused to be searched in person should be given the opportunity to be taken before a gazetted
officer or a judicial magistrate and this fact has to be taken in writing with the signature of the
accused. This fact is also to be incorporated in the panchnama. MANDATORY CONDITION
FOR PERSONAL SEARCH
The conditions given therein are mandatory. The accused to be searched in person should
be given the opportunity to be taken before a gazetted officer or a judicial magistrate and this
fact has to be taken in writing with the signature of the accused. This fact is also to be
incorporated in the panchnama.
Points to be noted while recording panchnama:
Name, occupation, age and address of panchas.
Time, date and place of start of proceedings.
Reason for search.
Authority for search.
Identify yourself by showing identity card.
Mention names of a few other officers included in the search part
Offer personal search of each member.
Mention presence of the occupants of the premises/person to be searched.
Before conducting personal search ask the person whether he would like to be taken before
a gazetted officer or a magistrate.
Mention description of place to be searched e.g. area of flat, number of rooms, telephone no.
etc.
Ask the person to be searched to give declaration of this baggage wherever necessary e.g.
whether he is having any contraband.
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Give graphic description of the search operation e.g. who opened the suitcase, who had the
key, from where the incriminating documents or contraband was recovered, how it was
concealed etc.
Test drugs with field testing kit and mention results.
Mention where and how the weighment of contraband goods was done. Give gross & net
weight.
Mention value of contraband to be seized.
Mention no. of samples drawn and their weight, what identification marks were given to
contraband exhibits, samples and documents proposed to be seized/taken over.
Mention “Nothing else was taken over” or “Religious feelings hurt.”
Mention time of conclusion of Panchnama.
Offer personal search on conclusion of search before leaving the place of search.
Take photographs, fingerprints wherever possible.
Mention money and valuables given back to the person searched or seal them for handing
over later in the court.
Seal contraband and exhibits mentioning seal no.
Take signature of panch as, officer writing the panch name and the person being searched on
labels pasted on contraband, exhibits and documents.
Mention under what provisions the seizure was done.
Mention any important events taking place during search e.g. Arrival of more officers/persons
etc.
Give a copy of panchnama of the persons searched and obtain his receipt.
10.18.
Details of Drugs seized:
Note the exact date and place of discovery. Record the weight and type of the drug.
Describe the wrapper, material, colour, trademark, subsequent markings, number of parcels
making up the whole amount.
Note the means of transport used and the hiding place.
Seize the vehicle and make a complete and thorough search of it.
10.19.
Details in case of foreign National:
Check his passport carefully. Are there any signs of alteration: e.g. Erasures (transparency),
insertion, missing pages, restrictions on travel? For nationals of certain countries: do they
have appropriate visas?
Has he several different passport?
If they bear the photograph of person concerned, but give particulars of different identities?
From whom did he obtain these passports? Where and when did he obtain them? How much
did he pay for them? For what purposes has he used them? Where? When? On what date
did he enter the country? At which border check-point? Where has he stayed since?
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Note the frontiers crossed (dates and places of Immigration/Emigration stamps).
10.20.
Questions to be asked while recording statement under section 53 of NDPS Act:
1.
Does he know the type of drug he was carrying? Who gave it to him? Where? Through
which towns and along which roads did he travel before reaching the place where the
drug was seized? where did he stay on the journey? At what hotels?
2.
To whom was he to hand over the drug? Where? When Is there a prearranged code so
that the carrier and the intended recipient recognise each other (e.g. Words, signs, or an
article to show)? What was he to have been paid? When? Where? Obtain details that
can lead to the identification of the individuals involved (First names, family names,
description, accents, origins, etc.).
3.
Make full use of all the information obtained during the investigations. Send to all countries
that may be concerned, because of the nationality of the individuals arrested, their place
of residence, the point of departure or destination of the drug, the place of transit, or for
any other reason, all information liable to be of interest, or to suggest lines of enquiry
which will produce useful results for the investigators working on the case. Do not fail to
send the photographs and fingerprints of all persons arrested.
The above points are few tips to the officers working in the Narcotic Cell or those dealing
in Narcotic cases. If the officers follow these instructions meticulously, then the conviction
rate increase.
10.21.
POST SEIZURE INSTRUCTIONS
The Narcotic Control Bureau is handling the work relating to coordination of anti-smuggling/
trafficking work. The Bureau is also to keep the international agencies posted with the details
of seizures effected, trends of seizure report), in respect of all narcotic drugs and psychotropic
substances seizures to:(1) The Deputy Director,
Narcotics Control Bureau,
R.K. Puram, West Block-I,
Wing -5, 2nd floor,
New Delhi.
(2) The Deputy Director,
Narcotics Control Bureau,
having jurisdiction over the State in which the seizure is made.
2.
This procedure may be following for all cases detected. “Form F” in respect of all cases
from this date may be arranged to be sent to sent Narcotics Control Bureau immediately.
Seizure report in “Form F” need not sent in respect of seizures involving equal quantity
of drugs, as below:
Name of the Drug
Quantity seized
Opium
Below 1 Kg
Ganja
Below 5 Kgs
Hashish
Below 500 gms.
Morphine
Below 20 gms.
Heroin
Below 10 gms.
substances
Rs. 1,000/-
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However, these seizures may be included in the Monthly Seizure Report.
3.
In addition, in major cases, a telex message may be sent, briefly indicating place of
seizure, date of seizure, type of drug and quantity seized, person arrested, Passport
Number, date, place of issue and address, and short summery of the circumstances.
Telex messages may be sent to Deputy Director, Narcotics Control Bureau, New Delhi.
4.
In respect of the foreigners arrested in India, Telexes may be invariably sent so that the
Bureau can keep the respective countries / Interpol /CCC etc. informed of the fact.
5.
For statistical purposes, at the end of each month, a consolidated statement be prepared
and sent to the Bureau Hqrs, as also the concerned Zonal Units.
10.22.
FORM-F
(Seizure report of Opium and other dangerous Drugs)
To be forwarded immediately after the seizure
1.
Time and date of seizure:
2.
Place of seizure (in Capital letters)
3.
Quantity, description & value of the drug seized.
4.
Packing and marking if any:
5.
Method of Transport:
6.
Vehicles involved
i.
Registration No.
ii.
Owner’s name
7.
Name, parentage, address & Nationality of Persons arrested.
8.
Suspected source of Opium:
9.
Name, parentage, address & Nationality of others persons be lived to be implicated.
10. Suspected destination
11. Brief facts of the case
(Itinerary of the carrier, i.e. the details about Rly. Ticket held or other useful details.)
10.23. SAARC WORKSHOP ON NETWORKING APPARGEMENT AMONG APEX NATIONAL
INSTITUTIONAL LAW ENFORCEMENT AGENCIES AND NGO’S WITH REGARD TO
SUPPLY CONTROL DEMAND REDUCTION
SAARC drug Offence Monitoring Desk (SDOMD) is an apex organisation based at Colombo,
Sri Lanka and works under the Rules and Regulations framed by the member SAARC countries.
The drug trafficking cases effected in India involving any persons from another SAARC country
and having international ramifications are to be reported to the SDOMD within 24 hours and
not later than 72 hours. The details of the case are to be reported in two forms viz. INITIAL
REPORT FORM SAARC I. R. FORM and DETAIL REPORTING FORM - SAARC D.R. FORM
the covering letter enclosing these forms should be addressed to the SUPERINTENDENT
OF POLICE, DEPUTY DIRECTOR, SAARC DRUG OFFENCES MONITORING DESK,
POLICE NARCOTICS BUREAU, 3RD FLOOR, NEW SECRETARIAT, COLOMBO-01, SRI
292
LANKA. The relevant I.R. and D.R. Forms are enclosed herewith for necessary action at
your end.
[Letter F.No. NCB/BZUIPOLICY-9/97/848 Dtd. 18.04.2000, from Zonal Director, NCB, Mumbai]
ANNEXURE 3
Sender:
Date:
Recipient:
Ref. No.
INITIAL REPORT FORM-SAARC I.R. FORM
1.
Agency which effected the arrest
2.
Date of seizure and nature of offence
3.
Place of seizure or offence
4.
Type of drug:
+ Quantity seized
Herbal Cannabis
Cannabis Resin
Opium:
Morphine
Heroin:
Cocaine:
L.S.D.
Others (specify)
5.
+ Weight in Kilograms
Full identity particulars of Accused I Suspects/Associates*:
i.
Full name with father’s full name (with aliases if any)
ii.
Date of birth:
Country of birth
Place of birth
iii.
Nationality:
iv.
Sex: Male / Female
National identity card number:
Date of issue:
Place of issue:
* For cases implicating more than one person, please use the additional form
Cases implicating more than one person Full identity particulars of Accused I Suspects I Associates
i.
Full name with father’s full name (with aliases if any)
ii.
Date of birth:
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Country of birth
Place of birth
iii.
Nationality:
iv.
Sex: Male / Female
National identity card number:
Date of issue:
Place of issue:
v.
Travel documents
Date of issue:
Place of issue:
vi.
Complete residential address
State:
District:
Police Station:
Village:
In the case of Towns /Cities:
House No.:
Street I Colony
Date of Departure from last port :
Mode of Departure from the port:
Route of Departure from last port:
The local connection or details where the drugs were obtained, with names, telephone numbers
and addresses of the supplier:
Any other matters of importance which would assist the investigation:
Signature and Seal of Designation
ANNEXURE-VII
Sender:
Date:
Recipient:
Ref. No.
10.24.
DETAIL REPORTING FORM -SAARC D.R. FORM
1.
Agency which effected the arrest:
2.
Type of drug:
+ Quantity seized
Herbal Cannabis
Cannabis Resin
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+(Weight in Kilograms)
Opium:
Morphine
Heroin:
Cocaine
L.S.D.
Others (specify)
3.
Date of seizure:
Place of seizure:
4.
Marking, labeling and Trade Marks
5.
Means of transport used
6.
Mode of concealment
7.
Origin of the drug:
Route of the drug:
8.
Where drug was produced
9.
Place where drug was obtained-Full particulars of the supplier of the drugs
10. Place where drug was to be sent-Full particulars of the receiver of the drugs
11. Articles / equipment seized
12. Persons implicated : Accused / Suspects / Associates *
Full name of suspects with aliases if any:
Full name of suspects father with aliases if any
Date of birth:
Country of birth
Place of birth
Nationality
Travel documents held by the suspect:
Date of issue :
Place of issue:
Sex : Male/Female
National identity card number:
Date of issue:
Place of issue
Profession:
Complete residential address
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State:
District:
Police Station:
Village:
In the case of Towns/Cities:
House No. :
Street/Colony
* in cases implicating more than one person, please use the additional form
13. Part played
14. Copies of photographs
Side (Right)
Side (Left)
Front
15. Copies of fingerprints: To be annexed please (Standard finger printing ink to be used)
16. Whether arrested, detained or at-large
17. Summary of the case
Signature and seal of Designation
NARCOTICS CONTROL BUREAU NEW DELHI
STANDING ORDER NO. 2/88
RECEIPT, CUSTODY, STORAGE AND DISPOSAL OF SEIZED CONFISCATED NARCOTIC
DRUGS AND PSYCHOTROPIC SUBSTANCES
Consequent upon the enforcement of the Narcotic Drugs and Psychotropic Substances Act,
1985, with effect from 14.11.1985, the enforcement activities against drug traffickers in the country
have been stepped up resulting in seizures of huge quantities of narcotic drugs and psychotropic
substances (hereinafter referred to as the drugs). For successful prosecution of drug offenders,
it has been felt necessary to formulate a uniform procedure for drawal of samples of the seized
drugs, which from the primary evidence in the course of prosecution proceedings before the courts
of law keeping this in view, the Narcotics Control Bureau; the Central Authority created under
section 4(3) of the Narcotic Drugs and Psychotropic Authority created 1985 (hereinafter referred to
as the ‘new law’) which functions as the apex coordinating and enforcement agency in the country
has formulated and circulated a Standing Order No. 1/88 dated 15.2.1988.
2. Recognizing the importance of dispatch transit receipt, safe custody, storage, proper
accounting and disposal + destruction of the seized/confiscated drugs, and the need for evolving
a uniform procedure for regulating the above mentioned operations, both by the Central and State
drug law enforcement agencies in the country, the Narcotics Control Bureau has formulated the
following procedure to be complied with in this behalf.
3.1 All drugs should be properly classified, carefully weighted and sampled on the spot of seizure.
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3.2 All the packages/containers should be serially numbered arid kept in lots of sampling.
The procedure set out in Standing Order No. 1/88 referred to above should be scrupulously
followed.
3.3 After sampling, detailed inventory of such packages/containers should be prepared for
being enclosed to the panchnama, Original wrappers must also be preserved for
evidentiary purposes.
3.4 After completion of panchnama, the drugs should be packed, in heat sealed plastic
bags. For bulk quantities of ganja, instead of plastic bags, gunny bags may also be
utilised wherever those are not readily available.
3.5 Agencies of the Central and State Government, who have been vested with the powers
of investigation under the new law, must specifically designate their godowns for storage
purposes. The godowns should be selected keeping in view their security angle,
juxtaposition to courts, etc.
3.6 All drugs must invariably be stored in safe and vaults provided with double-locking system.
3.7 Such godowns, as a matter of rule, be placed under the overall supervision and charge
of a Gazetted Officer of the respective enforcement agency, who should exercise utmost
care, circumspection and personal supervision, as far as possible such officers should
not be below the rank of Superintendent in the Departments of Customs, Central Excise,
Directorate of Revenue Intelligence, Central Bureau of Narcotics, Narcotics Control
Bureau, C.B.I., B.S.F., etc.,
(Central agencies and Station House Officer/Officer-in-charge of a police station,
Superintendent of State Excise, Naib Tehsildar of Revenue, Drug Control Department,
etc. in the States and U.T. enforcement agencies. They will personally be held accountable
for safety and security of the drugs.
3.8 Each seizing officer should deposit the drugs fully packed and sealed with his seal in the
godown within 48 hours of seizure of such drugs, with a forwarding memo indicating.
(i)
NDPS Crime No. as per crime and prosecution register under the new law (i.e.
NDPS Act.)
(ii)
Name (s) of accused
(iii) Reference of test memo
(iv) Description of drugs in the sealed packages/containers and goods, if any.
(v)
Drug-wise quantity of each package/container and other goods, if any
(vi) Total number of all packages/containers
Annexure I
3.9 The seizing officer, after obtaining an acknowledgement for such deposit in the format
(Annexure-I), will hand over the same to the Investigating Officer the seizing officer himself
of the Case along with the case dossiers for further proceedings.
4.0 The officer-in-charges of the godown, before accepting deposit of drugs, will ensure that
the drugs are properly packed and sealed. He will also arrange the packages/containers.
4.1 The godown in-charge is required to maintain a register wherein entries of receipt should
be made (as per format at Annexure II).
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Annexure II
4.2 It will be incumbent upon the Inspecting Officers of the various departments mentioned
as Annexure II to make visits to the godowns for ensuring adequate security and safety
and for taking measures for timely disposal of drugs. The Inspecting Officer should
record their remarks /observations against col. 15 of the Format at Annexure II.
4.3 That Heads of respective enforcement agencies (both Central and State Governments)
may prescribe such periodical reports and returns, as they may deem fit, to monitor the
safe receipt, deposit, storage, accounting and disposal of seized drugs.
Annexure III
4.4 While quarterly returns of disposal of drugs by the Central Government agencies
concerned shall be furnished to the Director General, Narcotics Control Bureau by the
15th of the month following the quarter (in the format at Annexure III), the state
enforcement agencies are required to submit their reports to the State Police Headquarters
(CID) Director General, Narcotics Bureau informed of the same as per Annexure III.
Annexure IV
4.5 Since the early disposal of drugs assumes utmost consideration and importance, the
enforcement agencies should obtain orders for pre-trial disposal of drugs and other
articles (including conveyances, if any) by having recourse to the provisions of Section
451 of the Criminal Procedure Code, 1973 (extracts enclosed at Annexure IV) and those
of the provisions of section 110 (IA), (IB) and (IC) of the customs Act, 1962 read with
Government of India’s notification No. 31/86 Cus. (AS) dated the 5th February, 1986,
issued in this behalf which specifies ‘Dangerous drugs and psychotropic substances’.
4.6 While preferring the application under section 451 before the Court of Sessions
immediately, emphasis may be laid on ‘expediency of disposal’. The grounds that may
be high-lighted may pertain to,
(i)
risk of pilferage, theft and substitution
(ii)
high potential and vulnerability of abuse
(iii) high temptations to traffickers
(iv) diminution in the value of other articles (including conveyances) due to long storage,
etc.
4.7 Since the filling of the charge-sheet/plaint is a condition precedent for expeditious issue
of orders for pre-trial disposal, complaints by the respective enforcement agencies must
be filed after completion of investigation within the stipulated period of 90 day of seizure/
arrest, on a priority basis. They should meticulously be adhered to.
4.8 While moving the application under Section 451 of the Criminal Procedure Code as
above, production of all seized/articles/drugs, etc., along with the panchnama (in original)
and detailed Inventory thereof is essential. The inventory should be complete in all respects
and contain such particulars as may be relevant to establish nexus/identity of articles.
The chemical analysis report should also be simultaneously filed.
4.9 After the court orders are passed for pre-trial disposal of drugs, those drugs which have
no legitimate commercial value (excepting opium, morphine, codeine which are required
to be transferred to the Government Opium and ‘Alkaloid Works Undertaking at Ghazipur
or Neemuch, as the case may be) are required to be destroyed consistent with the
guidelines issues under this order and not repugnant to the court’s order.
298
5.0 As bulk of seizures of drugs relate to illicit import or export and are made at the points of
entry or exit or in transit traffic, such drugs are liable to seizure under section 110 of the
Customs Act, 1962 and confiscation under section 111 or 113 ibid. In such Gases, it
would be appropriate to initiate proceedings under the Customs Act also.
Annexure V
5.1 The relevant provisions of section 110 (IA), (IB) and (IC) are reproduced at Annexure-V.
5.2 A three member Committee of the respective enforcement agencies (both Central and
States), known as the Narcotics Drugs and Psychotropic Substance’, Disposal
Committee should be constituted to discharge its functions from the Head Quarters of
the respective Heads of Departments. The Committee will be headed by an officer not
below the rank of(i)
Deputy Commissioner of Customs and Central Excise with two members of the
rank of Assistant Commissioner of Customs and Central Excise in the case of a
Customs and Central Excise Commissionerate;
(ii)
Deputy Narcotics Commissioner with two members of the rank of Assistant Narcotics
Commissioner in the case of Narcotics Commissioner’s Organisation;
(iii) Deputy Director of Revenue Intelligence with two members of the rank of Assistant
Director in the case of the Directorate of Revenue Intelligence.
(iv) Deputy Director and two other officers as may be authorised by the Director General,
Narcotics Control State Police Organisation;
(v)
Deputy Inspector General of Police with two members of the rank of Superintendent
of Police in respect of State Police Organisation; and
(vi) Deputy Commissioner of Excise with two officers of the rank of Assistant
Commissioners, in respect of State Excise Organisations.
The Committee will be directly responsible to the Head of the Department concerned.
5.3 The functions of the Committee will be to
(a) undertake detailed analysis of drugs pending disposal
(b) advise the respective investigating officers/ supervisory officers on the steps to be
initiated for expeditious disposal.
The Committee will meet, as frequently as possible, as may be considered necessary
for quick disposal of drugs and at least once in two months. While the Central agencies
will endorse a copy of the minutes of such meetings directly to Narcotics Control Bureau,
the State enforcement agencies concerned will report the same to their respective state
police Head Quarters (CID), who , in turn, will keep the Narcotics Control Bureau
information of the progress made from time to time.
5.4 The officers - in - charge of godowns will prepare a list of all such drugs that have
become ripe for disposal to the Chairman of the respective drug disposal committee.
After examining that they are fit for disposal and satisfying that they are no longer required
for legal proceedings and the approval of the court has been obtained for the purpose,
the Members of the respective drug disposal committee will endorse necessary certificates
to this effect. The committee will, thereafter, physically examine and verify the drug
consignments with reference to the seizure report and other documents like chemical
analysis, etc., including its weighment and record its finding in each case.
299
Note: The drugs become ripe for disposal after they are confiscated by the competent
court or the competent authority of the Customs on expiry of the period of appeal or
when ordered by the court for disposal under section 451 of the Cr. P.C., 1973 or section
110 (c) of the Customs Act, 1962.
5.5 In the case of tempering with seal, etc. the composite sample will by drawn for getting
the same tested by the Central Revenue Control Laboratory or the State Forensic Science
Laboratory / State Drug Control Laboratory concerned. If no variation in either in purity or
quantity is found, the same will be ordered for destruction by the Department. Where
any minor variations are noticed, a detailed report should be submitted to the Head of the
Department of the Enforcement Agency concerned. In the case of wider variation, the
matter should be immediately reported to the Narcotics Control Bureau indicating the
follow up action taken in this regard. The destruction of drugs in such cases can be
done only after obtaining the orders of the Head of the Department concerned.
5.6 The Committee will be empowered to order destruction of the seized drug in the following
cases.
Name of the Drug
Quantity (Kgs.)
Heroine
2
Hashish (Charas)
50
Hashish Oil
10
Ganja
500
Cocaine
1
Mandrax
150
Other Drugs
Up to the value of Rs 5 Lakhs
The disposal committee should intimate the Head of the Department concerned the
programme of destruction (giving complete details) in advance (at least 15 days before
the date of destruction), so that in cases, he deems fit, he may either himself conduct
surprise check, or depute an official for conducting such surprise checks. The disposal
committee should inform the respective Head of the disposal committee should inform
the respective Head of the Departments in respect of every destruction made by it
indicating the date of destruction, quantities destroyed etc.
7.7 All drugs excepting Opium, Morphine, Codeine shall be destroyed by incineration in such
place where adequate facility and security arrangements exist for the same after ensuring
that this will not be a health hazard from the point of view of pollution.
Annexure VI
5.8 A certificate if destruction (in triplicate) (Annexure -VI) containing all the relevant date of
godown entry no., file no., gross and net weight of the drug seized etc., shall be prepared
and duly endorsed by the signature of the Chairman as well as the members of the
Committee. This could also serve the purpose of Panchnama. The original copy will be
pasted in the Godown Register after making necessary entries to this effect, the duplicate
copy to be retained in the seizure case file and the triplicate copy will be kept by the
Disposal Committee.
6.
The procedure as outlined in Section II of the Opium Manual (Vol.III) will continue to apply
for drugs like Opium, Morphine, Codeine. Disposal of Poppy straw shall continue to be
300
regulated by the procedure as stipulated by the respective State Excise Departments in
this behalf.
ANNEXURE I
(Para 3.9)
GODOWN RECEIPT (No. II)
RECEIVED (No.)........................ packages/containers said to contain................................
(Description of Drugs) sealed with the seal No..............of (Name & Designation) seizing officer
and entered into godown register vide entry No.....................
Facsimile of the Seal..............
Place:
Signature of the Officer
Date:
in-charge of godown
Time:
with full name and official seal
301
ANNEXURE -II
(Para 4.1)
FORMAT OF REGISTER REQUIRED TO BE
MAINTAINED BY THE GODOWN IN CHARGE
N.C.B.III
1.
Godown entry S.No.
2.
N.D.P.S. Crime No.
3.
Description of drugs in the scaled packages/containers and other goods, if any
4.
No. of packages/containers (drug-wise)
5.
Quantity of drug (package/container-wise)
6.
Particulars of the test memos.
7.
Name(s) and address(es) of accused
8.
Name with official designation and address of seizing / depositing officer
9.
Facsimile of the seal put on the packages/containers by the seizing officer
10. Date and time of deposit
11. Particulars of exit and re-entry for exhibiting to court.
12. Date and time of removal for disposal
13. Disposal particulars including destruction or despatch to Central Govt. Opium Factory.
14. Certificate of disposal including price payment particulars, from Govt. Opium Factory, where
applicable.
15. Remarks of the Inspecting Officer(s)*
* Inspecting Officers: In the case of Central Enforcement Agency: (1) D.G.NCB (2) Dy. D.G.NCB
(3) Narcotics Commissioner of India (4) Dy. Narcotics Commissioners (5) D.G. BSF, (7) Sr.
Officers of CBI, (8) Chief Commissioner, Customs & Central Excise, (9) Commissioner of
Customs and Central Excise.
In the case of State Enforcement Agency: (1) D.G. of Police (2) I.G. of Police (3) Dy. I.G.P. (4)
Superintendent of Police (5) State Excise Commissioner (6) Dy. Excise Commissioner (7)
Superintendent of Excise and Equivalent officer of State Govt. in the authorised departments.
ANNEXURE
FORMAT OF QUARTERLY RETURN TO BE FURNISHED BY THE CENTRAL ENFORCEMENT
AGENCIES TO N.C.B.
Name of the
drug
Opening
Balance as
on 1st day
of the quarter
Receipts
during
the Qr.
Qty. disposed
by destruction
Qty.
Dispatched to
opium
factories
Stock in hand
at the end
of Qr.
Remarks
1.
2.
3.
4.
5.
6.
7.
302
ANNEXURE III
PROVISIONS OF SECTION 110 (1A) (1B) AND (IC) OF THE CUSTOMS ACT, 1962
110 (IA): The Central Government may, having regard to the perishable or hazardous nature
of any goods, depreciation in value of the goods with the passage of time, constraints of storage
space for goods, or any other relevant considerations, by notification in the Official Gazette specify
the goods or the class of goods which shall, as soon as may be, after its seizure, under subsection (1) be disposed of by the proper officer in such manner as the Central Government may,
from time to time, determine after following the procedure hereinafter specified.
110 (1B): Where any goods, being goods specified under subsection (1A) have been seized
by a proper officer under subsection (1), he shall prepare an inventory of such goods containing
such details relating to their description, quality, quantity, mark, numbers, country of origin and
other particulars as the proper officer may consider relevant to the identity of the goods in any
proceedings under this Act and shall make an application to Magistrate for purpose of:(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of the magistrate photographs of such goods and certifying such
photographs as true; or
(c) allowing to draw representative samples of such goods, in the any list of samples so
drawn.
110 (1C): Where the application is made under sub-section (1B) the Magistrate shall, as
soon as may be, allow the application.
ANNEXURE IV
PROVISIONS OF SECTION 451 OF THE CRIMINAL PROCEDURE CODE, 1973
451. Order for custody and disposal of property pending trial in certain cases:When any property is produced before any criminal court during any enquiry or trial, the court
may take such order as it things fit for the proper custody of such property pending, the conclusion
of the enquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise
expedient so to do, the court may, after recording such evidence as it thinks necessary, order
it to be sold or otherwise disposed of.
Explanation: For the purpose of this section “property” includes(a) Property of any kind or document which is produced before the court or which is in its
custody.
(b) Any property regarding which an offence appears to have been committed or which
appears to have been used for the commission of any offences.
303
ANNEXURE-VI (Para 5.9) (IN TRIPLICTE)
CERTIFICATE OF DESTRUCTION OF NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES (PARA 9, 10 OF THE STANDING ORDER NO. 2/88-DETAILS OF THE DRUGS
AND SUBSTANCES DESTROYED.
Particulars on of the
drugs verification
Seizure case
file ref. No.
Godown Register
entry No
As recorded in
the Godown register
1
2
3
4
Gross Wt
Net Wt.
Gross Wt.
Net Wt.
(a)
(b)
(c)
(d)
Weight
ascertained
physical
Name and address
of the witnesses
Date/Place/Mode
5
6
of destruction
7
It is certified that a Committee consisting of S/Shri..................... supervised the destruction of
narcotic drugs and psychotropic, substances particulars above, in the presence of following
witnesses.
SIGNATURE
SIGNATURE
SIGNATURE
WITH DATE
WITH DATE
WITH DATE
(CHAIRMAN)
(CHAIRMAN)
(CHAIRMAN)
STANDING ORDER NO. 1/88
10.25. DRAWAL, STORAGE, TESTING AND DISPOSAL OF SAMPLES FROM SEIZED
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES-PROCEDURE
1.1 It has been brought to the notice of this Bureau by the Chief Chemist, Central Revenues
Control Laboratory that different investigating officers of various enforcement agencies adopt
different Procedures in drawing samples from seized narcotic drugs and psychotropic
substances, particularly with regard to the number of samples drawn, quantity of the sample,
sealing, mode number of samples drawn, quantity of the sample, sealing, mode of packing,
despatch of samples etc., to the concerned laboratory, for test. It has also been found that
handling of samples at different stages and places may also become an issue of dispute
during the trial, and hence a clear and uniform procedure is necessary to avoid any doubt or
confusion at any level. With a view to bring uniformity of approach in such matters, and also
to provide for a secure system of handling of drug samples it is decided to standardise the
procedure with regard to drawing, forwarding and testing of samples.
1.2 It may be noted that all drugs and psychotropic substances, materials, apparatus utensils, or
any other articles in respect of which or by means of which any offence punishable under
Chapter IV of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been committed,
are liable to confiscation under Section 60 of the Narcotic Drugs and Psychotropic Substances
Act. In other words, an act of omission, or commission, constituting an offence under Chapter
IV of the Narcotic Drugs and Psychotropic Substances Act, 1985 is only in relation to such
narcotic drugs or psychotropic substances which are liable to confiscation. As such all offence
under N.D.P.S. Act have to be proved only in relation to such drugs or psychotropic substances
which are liable to confiscation.
304
1.3 All illicit narcotic drugs or psychotropic substances recovered from a person, place, conveyance
etc. are material evidence as they are liable to confiscation. Further, they constitute primary
evidence for any act, omission or commission on the part of a person rendering him liable for
punishment under Chapter IV of the N.D.P.S. Act, 1985. Most of the narcotic drugs and
psychotropic substances cannot be conclusively proved to be such drugs or substances
merely by visual examination in the trial Court and they require to be proved by chemical
analysis to be conducted by chemists authorised under section 293 of Cr. P.C. 1973. The
provisions of subsection 4 of section 293 of Cr. P.C. are reproduced hereunder for ready
reference.:Sec. 293 (4):This section applies to the following government scientific experts, namely:(a) Any Chemical Examiner or Assistant Chemical Examiner to the Government.
(b) The chief Inspector of Explosive.
(c) The Director of Finger Print Bureau.
(d) The Director Hoffkin Institute Bombay.
(e) The Director (Deputy Director or Assistant Director) of a Central Forensic Science
Laboratory or a State Forensic Science Laboratory;
Note:-Sub-Section (4) of section 293 has been amended to include Deputy Directors and
Assistant Directors of Central and State Forensic Science Laboratories in the list of
Government Scientific experts.
Government of India, vide notification No. 74F.Ne. 50/53/76-Ad. 1I dated 17th July 1976 as
amended vide notification dated 2nd February 1977 have declared chemists of different grades
working in Central Revenues Control Laboratories as Chemists to Government for the purpose
of section 293 of Cr. P.C.
1.4 If the drugs seized are found in packages/containers the same should be serially numbered
for purposes of identification. In case the drugs are found in loose form the same should be
arranged to be packed in unit containers of uniform size and serial numbers should be assigned
to each package/container. Besides the serial number, the gross and net weight, particular of
the drug and the date of seizure should invariably be indicated on the packages. In case
sufficient space is not available for recording the above information on the package, a Card
Board label, should be affixed with a seal of the seizing officer and on this Card Board label,
the above details should be recorded.
1.5 Place and time of drawl of sample
Samples for the Narcotic Drugs and Psychotropic Substances seized, must be drawn on the
spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person
from whose possession the drug is recovered, and mention to this effect should invariably be
made in the panchnama drawn on the spot.
1.6 Quantity of different drugs required in the sample
The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all
narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/
Hashish where a quantity of 24 grams in each case is required for chemical test. The same
quantities should be taken for the duplicate sample also. The seized drugs in the packages
/ containers should be well mixed to make it homogeneous and representative before the
sample in duplicate is drawn.
305
1.7 Number of samples to be drawn in each seizure case
(a) In the case of seizure of single package/ container one sample in duplicate is to be
drawn. Normally it is advisable to draw one sample in duplicate from each package/
container in case of seizure of more than one package/container.
(b) However, when the package/container seized together are to identical size and weight,
bearing identical markings and the contents of each package give identical results on
colour test by U.N. kit, conclusively indicating that the packages are identical in all respect/
the packages/container may be carefully bunched in lots of 10 packages/containers
may be bunched in lots of 40 such packages such packages / containers. For each
such lot of packages/containers, one sample in duplicate may be drawn.
(c) Where after making such lots, in the case of Hashish and Ganga, less than 20 packages/
containers remains, and in case of other drugs less than 5 packages/containers remain,
no bunching would be necessary and no samples need be drawn.
(d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja
and Hashish, one more sample in duplicate may be drawn for such remainder package
containers.
(e) While drawing one sample in duplicate from a particular lot, it must be ensured that
representative drug in equal quantity is taken from each package/container of that lot
and mixed together to make a composite whole from which the samples are drawn for
that lot. Subject to the detailed procedure of identification of packages/containers, as
indicated in para 1.4 each package / container should be securely sealed and an
identification slip pasted / attached on each one of them at such place and in such
manner as will avoid easy obliteration of marks and numbers on the slip. Where more
than one sample is drawn, each sample should also be serially numbered and marked
as S-1, S-2, S-3 and so on, both original and duplicate sample. It should carry the serial
number of the packages and market as P-1, 2, 3, 4 and so on.
1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the
accused, Panchnama witnesses and seizing officer and all of them shall be required to put
their signatures on each sample. The official seal of the seizing officer should also be affixed.
If the person from whose custody the drugs have been recovered, wants to put his own seal
on the sample, the same may be allowed on both the original and the duplicate of each of the
samples.
1.10 Packing and sealing of samples:
The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and
safe. The plastic bag container should be kept in a paper envelope may be sealed properly.
Such sealed envelop may be marked as original and duplicate. Both the envelopes should
also bear the S.No. of the package (s)/ container (s) from which the sample has been drawn.
The duplicate envelop containing the sample will also have a reference of the test memo.
The seals should be legible. This envelope along with test memos should be kept in another
envelope which should be also be sealed and marked “secret-Drug sample/Test memo” to
be sent to the concerned chemical laboratory.
1.11 Laboratories to which samples may be sent
The seizing officers of the Central Government Departments viz. Customs, Central Excise,
Central Bureau of Narcotics, Narcotics Control Bureau, D.R.I., etc. should despatch samples
of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory
nearest to their offices depending upon the availability of test facilities. The addresses of the
Dy. Chief Chemists of the Central Revenues Control Laboratories are given below:
306
1.
General Manager, Govt. Opium and Alkaloid Works, Ghazipur (U.P.).
2.
General Manager, Govt. Opium and Alkaloid Works, Neemuch (M.P.).
3.
Chief Chemist, Central Revenue Control Laboratory, Pusa Road (IARI), New Delhi.
4.
Dy. Chief Chemist, Office of the Collector of Customs House, Chennai 600 001.
5.
Dy. Chief Chemist, Chemical Laboratory, Customs House, Calcutta 1.
6.
Dy. Chief Chemist, New Customs House, Ballard Estate, Mumbai 400 038.
7.
Dy. Chief Chemist, Central Excise Laboratory, Estrella Batteries Compound, Dharavi
Road, Mumbai 400 019.
8.
Chemical Examiner, Office of the Commissioner of Customs, Customs House, Cochin
9.
9.
Chemical Examiner, Central Excise Laboratory, Yashkamal Building, 8th floor, Baroda 5
(Gujarat).
10. Chemical Examiner, Central Excise Laboratory, Central Excise Laboratory, CORIL
Refinery, Vishakhapatnam (A.P.)
11. Chemical Examiner, Customs House, Kandla, Gujarat.
12. Chemical Examiner, Customs House, Laboratory, Sada, MARMUGOA GOA 403803.
13. Chemical Examiner, Central Excise Laboratory, Assam Oil Refinery, Dibboi (Assam).
14. Chemical Examiner, Central Excise Laboratory, Bureau Oil Refinery, Distt. Begusarai
(Bihar).
15. Chemical Examiner, HPCL, Refinery, Corridor Road, Trombay, Mumbai 400 074.
The other Central Agencies like B.S.F., C.B.I. and other Central Police organisations may
send such samples to the Director, Central Forensic Laboratory, New Delhi. All State Enforcement
Agencies may send samples of seized drugs and psychotropic substances to the Director/Deputy
Director / Assistant Director of their respective State Forensic Science Laboratory.
The Addresses of State Forensic Science Laboratories are given below:
1.
Director, Forensic Science Laboratories, Govt. of Bihar Patna-800 023.
2.
Director, Police Forensic Science Laboratory, Rajasthan, Nehru Nagar, Jaipur-6.
3.
Director, Forensic Science Laboratory, Mini Punjab Secretarial, Plot No. 2, Sector-9A,
Chandigarh.
4.
Director, State Forensic Science Laboratory, Rasulgarh, Bhubaneshwar-10 (Orrisa).
5.
Director, Forensic Science Laboratory, Madhuban, Haryana.
6.
Director, Forensic Laboratory, Red Hills, Hyderabad-4, Andhara Pradesh
7.
Director, Forensic Science Laboratory, Thiruavananthapuram-10 (Kerala).
8.
Director, State Forensic Science Laboratory, Govt. of West Bengal, Balgachia Road,
Kolkata-37.
9.
Director, Forensic Science Laboratory, 5-Miller Road, Om Mehal Building, Bangalore-560052.
307
10. Director, Forensic Science Laboratory, Assam, Kahitapara, Guwahati-19.
11. Director, Forensic Science Laboratory, Forensic House, Kamaragar Slai, Mysore, Madras-4.
12. Director, Forensic Science Laboratory, Gujarat State, New Mental Corner, Ahmedabad-380016.
13. Director, Forensic Science Laboratory, Maharashtra State, Vidyanagari, Kalina, SAntacruz
(East), Mumbai-400 098.
14. Director, Forensic Laboratory, Civil Lines, Sagar (M.P.)-470 001.
15. Director, Forensic Science Laboratory, Mahanagar, Lucknow (U.P.)
16. Director, Forensic Science Laboratory, Sector-18, Chandigarh.
17. Director, Forensic Science Laboratory, Bureau of Police Research and Development (MHA),
Govt of India, O.V. Campus, Ramnathpur, Hyderabad-500013.
18. Director, Central Forensic Science Laboratory, C.B.I., Block-4, C.G.O. Complex, Lodhi Road,
New Delhi.
19. Assistant Director, Forensic Science Laboratory, Janagarh (Gujarat).
20. Chemical Examiner to the U.P. Govt. Agra (U.P.)
21. Govt. Examiner of questioned documents, Railway Board Building, Simla (HP).
22
Director, forensic Science Laboratory Opposite C.D. Hospital, Sri Nagar J.K.)
1.12 Test Memo
The Samples of seized drugs or substances should be despatched to the respective
laboratories under the cover of a Test Memo which shall be prepared in triplicate in proforma
NCB1. This test Memo and put his signature with official seal. The original and duplicate of
the Test Memo should be sent to the Laboratory concerned alongwith the samples. The
triplicate shall be retained in the case file of the seizing officer.
1.13 Mode and time limit for despatch of sample to Laboratory.
The sample should be sent either by insured post or through special messenger duly authorised
for the purpose. Despatch of samples by registered post or ordinary mail should not be
resorted to. Samples must be despatched to the Laboratory within 72 hours of seizure to
avoid any legal objection.
1.14 Each Unit of every Enforcement Agency will maintain a Register of samples to monitor the
progress of testing, which will have the following columns:Crime No Date of Seizure
qty.
Name & Address of offender Description of seized drugs and net
1
2
3
Name of the officer
drawing and
dispatching the
sample
S.No. of samples
Test Memo Reference
and S.No. of
Packages/containers
from which samples
were drawn
308
4
Name & Designation
of custodian of
sample
5
6
7
8
The authority to
whom Dispatched
Date of receipt
of analysis Result
and its reference
Result in brief
Date of receipt of
remnant sample
9
10
11
12
Date of Destruction/
disposal of remnant
samples
Date of destruction/
disposal of duplicate
samples
Remarks
13
14
15
The register should be received once a month by the Head of unit and once in three months
by the supervising officer.
15. Receipt in the Laboratory.
The sealed envelope containing the samples received in the Laboratory concerned should be
carefully opened so as to preserve the seals on the envelope to be sent back along with the
report on the test for evidence purposes. In the laboratory every sample received for test
must be given a distinct Laboratory number. A separate register for Narcotic Drugs and
Psychotropic Substances shall be maintained. The Laboratory may further subdivide the
register Agency-wise. The Laboratory number should form a continuous series, beginning
on the 1st January every year and ending on the 31st December. The sample clerk must
enter the laboratory number and the date of registration on the Test Memo and enter the same
number with date of registration on the label of the sample container. Often there may be
number of sample coming under once Test Memo, each sample must be given a separate
number and all the numbers must be entered on the Memo.
The samples and memos having been marked with Laboratory numbers should be entered
in a Register. The headings of the columns in the register will be as indicated below:9
10
11
12
S.No. (Lab. No.)
Date of receipt
Name of the officer
drawing & dispatching
Test Memo Ref. &
Date
1
2
3
4
Description of the
drug as per the
Test Memo
To whom allotted
Date of receipt by the
Details of Test Result
concerned chemist with
his signature
5
6
7
Date of dispatch of
remnant samples
Remarks
9
10
8
Note: Columns & 6 should be filled up respectively at the time of actual forwarding of the sample to
the concerned chemist.
Allotment of Samples
Samples of narcotic drugs and psychotropic substances should be taken to the chemical
examiner or such officer in the Laboratory for this purpose. He will mark the sample to a
chemist. While so doing the chemical examiner or such officer will kept in view the provisions
309
of section 293 of Cr. P.C. The sample clerk will hand over the sample and test memos to the
chemist named as above and obtain his initial for receipt in his register. All drug samples
must reach such chemist the same day and the chemist will keep the samples in his safe
custody under lock and key in his steel almirah, provided for the purpose.
Examination of sample with reference to Test Memo
On receipt of the samples such chemist will examine the same and record its weight in the
Test Memo. He will compare the markings on the Test Memos with the markings on the
packages/containers. It will be his responsibility to ensure that he tests that relevant sample.
Expeditious test
Expeditious analysis of narcotic drugs and psychotropic substances in of essence to all
proceedings under N.D.P.S. Act, 1985. In many cases the court may refuse to extend Police/
judicial remand beyond 15 days in the absence of a chemical report. Accordingly, it is essential
that the analysis is, completed and the report is despatched within 15 days from the date of
receipt of the sample. However, where quantitative analysis requires longer time, the results
of the qualitative test should be despatched to the officer from whom the samples were
received within the aforesaid time limit on the original copy of the Test Memo so that court
proceedings can start immediately. In the next 15 days the results of quantitative test (purity
of the drug) should also be indicated on the duplicate test memo and sent to the officer from
whom the samples were received.
1.18 Test Register
All results both the qualitative and quantitative tests should be entered into the Register of
samples (para 1.15). This register is intended to serve as a reference and as a reference and
as such should be quite durable. It should carry the results and the date of despatch with
reference to the Test Memo. Thee should be clear and adequate reporting of the results in the
Test Memo. As soon as the analysis is over the test result should be despatched by registered
post in the name 0 the officer who forwarded the sample for test.
1.19 Remnants of samples
Remnants of all narcotic drugs and psychotropic substances samples should be returned
with reference to the Test Memo to the analysis of the drug.
1.20 Custody of duplicate sample
Duplicate sample of all seized narcotic drugs and psychotropic substances must be preserved
and kept safety in the custody of the Investigating officer along with the case property. Normally
duplicate sample may not be used but in case property. Normally duplicate sample may not
be used but in case of loss of original sample in transit or otherwise or no account of trial
court passing an order for a second test the publicate sample will be utilise.
1.22 Disposal of Remnant sample /duplicate sample and the drug
At present, the remnant sample/duplicate sample and seized narcotic drugs and psychotropic
substances can be disposed of after the proceedings of prosecution id over or by obtaining
an order from such court under section 110 of the Customs Act, 1962 and / or 451 or Cr. P.C.
While obtaining the order of the court under the aforesaid section it is necessary that specific
order in respect of the remnant sample / duplicate sample is also obtained.
After such order has been obtained, the drug or substance along with the samples including
remnants shall be disposed of in the manner prescribed. Please acknowledge the receipt of
the standing order.
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10.26 INVESTIGATION
PRELIMINARY
Investigation constitutes one of the most important functions of the Intelligence branch.
Establishing an offence depends entirely on efficient investigations. The nature of the
investigations varies from case to case. However, in so far as, Customs cases are concerned,
basically investigation will mean the efforts to locate the source of the offending goods, the
brains behind the entire smuggling operations, the operators, funds, etc. The investigating
officer is required to keep his knowledge update about all the relevant laws, rules/regulations
so as to come to a proper local conclusion about the case entrusted to him for investigation.
One of the important tools of investigation is interrogation, which is widely used in Customs
cases. The main reason being that the statements recorded by Customs Officer are not hit
by Sec. 25 of the Evidence Act. In the Customs department, interrogation is very often treated
as a casual recording of a statement in relation to a particular incident. Interrogation is entrusted
to anyone who is available without consideration whether the officer has the necessary
background and ability to interrogate the person. Interrogation is an art or perhaps even a
science. The interrogator will have to approach his subject, i.e. the person under interrogation
in the proper way so that he can elicit as much information as possible from a subject. The
ability to conduct a good interrogation is closely related to the experience that the interrogating
officer has. His personality counts a lot.
An interrogation cannot start in vacuum. The interrogator must prepare the outlines of his
approach and his questions before actually commencing the interrogation. Preparation would
include the acquisition of a thorough knowledge of the background data regarding the subject
and complete details regarding the particular incident, which had resulted in the person being
brought for interrogation. At the same time the officer should be capable of switching his
approach depending upon the developments during the course of interrogation.
At the outset, every officer should inform the subject about the provisions of the Customs Act,
1962 particularly regarding the need for the subject to be truthful in his statement. The
provisions of Section 108 of the Customs Act should be explained in a language, which the
subject understands. The particular way in which an interrogation is commenced would
naturally depend upon in which an interrogation is commenced would naturally depend upon
not only the personality of the subject but also the extent of his involvement.
10.27 STATEMENT UNDER THE CUSTOMS ACT, 1962
Recording of the interrogation is known as ‘statement’. Section 107 of the Customs Act,
1962 stipulates that:
“Any officer of Customs empowered in this behalf by general or special order of the
Commissioner of Customs may, during the course of any enquiry in connection with the
smuggling of any goods(a) require any person to produce or deliver any document or this relevant to the enquiry;
(b) examine any person acquainted with the facts and circumstances of the case.
Section 107 refers to an enquiry by a Custom Officer. Such enquiry does not have the
attributes of judicial proceedings unlike the enquiry under Section under Section 108. It also
does not enable the enquiry officer to compel the attendance of witnesses or production of
documents or things and the witness also cannot be compelled to speak the truth under
penalty. What Section 107 contemplates, is therefore, a less formal and rigorous type of
enquiry by Customs officer. Section 108 contemplates an enquiry. Under Section 107 nor the
enquiry under Section 108 can in any way, in substance or in law, be considered to be the
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same as an investigation into a Criminal offence, by an officer in-charge of a Police Station
under Chapter XIV of the Code of Criminal Procedure.
Section 107 of the Act does not empower any and every Gazetted Officer of the Customs
Department to record statements during the inquiry under the Section. It specifically says that
only an officer of the Customs empowered in that behalf by general or special order to the
commissioner of Customs can record statements under the Section.
Under Section 5(2) of the Customs Act, 1962 vide Office Order No. 5 dtd. 1.2.1963 issued by
Commissioner of Customs, Bombay, from the file C-1086/63, all officers except Clerks and
Class IV officers, of the Preventive Department are the officers empowered to record the
statement under Section 107 of the Customs Act, 1962.
10.28 POWER TO SUMMON PERSON TO GIVE EVIDENCE AND PRODUCE DOCUMENTS:
Sec. 108 of the Customs Act 1962 stipulates that(1) Any Gazetted Officer of Customs shall have power to summon any person whose
attendance he considers necessary either to give evidence or to produce a document or
any other thing in any inquiry which such officer is making in connection with the smuggling
of any goods.
(2) A summons to produce documents or other things may be for the production of certain
specified documents or things or for the production of all documents or things of a
certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised
agent, as such officer may direct; and all persons so summoned shall be bound to state
the truth upon any subject respecting which they are examined or make statements and
produce such documents and other things as may be required.
Provided that the exemption under Sec. 132 of the Code of Civil Procedure, 1908 (5 of
1908) shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be judicial proceedings within the
meaning of Sec. 193 and Sec. 228 of the Indian Penal Code (45 of 1860).
10.29 DOCUMENTS:
Customs Act does not define ‘Document. ‘Section 3(18) of General Clauses Act define
‘Document’ as under“Document includes, “any matter written, expressed or described upon any substance by
means of letters, figures or marks, or by more than one of those means which is intended to
be used, or which may be used, for the purpose of recording the matter.”
This definition has to be applied to Customs Act, 1962. Similarly the ward “attempt” & concealed
have not been difined.
10.30 SMUGGLING:
In the context, the expression ‘smuggling’ has been defined in Sec. 2(39) of the Act to mean
‘any act or omission which will render such goods liable for confiscation under Sec. 111 or
Sec. 113’. The same definition has been adopted in COFEPOSA Act. Even the general
concept of the smuggling has two elements; one, the bringing into India of goods the import of
which is prohibited; and two, the bringing into country’s stream of goods the import of which
is permitted, without paying the Customs duty which they are chargeable. The second
eventuality can occur not only where there is a clandestine removal without payment of duty.
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Under Sec. 108 of the Customs Act, 1962, a Gazetted Customs Officer is given the power to
interrogate any person in connection with the smuggling of any goods which is officer’s duty
to prevent. Such a person may have nothing to do with the smuggling although he may know
the whereabouts of the goods and persons. Sub-sec. (3) of sec. 108 does not compel any
person to make a statement, but if he makes a statement he has to state the truth in order to
avoid punishment under Sec. 193, IPC. At that stage nothing may be known as to whether an
offence has been committed or who has committed it and the person interrogated at that
stage certainly is not a person accused of or charged with an offence. He is merely called
upon to give evidence to facilitate the inquiry. He is not a witness giving evidence in a court
and his testimony will make him liable under Sec. 193 of IPC, because of the express provision
of law in sub-sec (4) of sec. 108 of the Customs Act, 1962.
10.31 SUMMONS
Under Section 108 of the Customs Act, 1962, Section 14 of Central Excise Act, 1944,
Summons, as understood in the legal parlance, is an intimation requiring the person to whom
it is issued to appear to give evidence and/or to produce some documents. It is not an order
is the sense that it decided any question or communicates a decision taken.
10.32. PROFORMA OF SUMMONS UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.
OFFICE OF THE ADDL. COMMISSIONER OF CUSTOMS, IGI AIRPORT, T-3, NEW DELHI-37
(Name and address of the section)
SUMMONS UNDER SECTION 108 OF THE CUSTOMS ACT, 1962.
Summons No
File No:
Date:
WHEREAS, I...............................................................................of Customs, .......................................
duly employed in the prevention of smuggling, consider the attendance of
Shri..................................................................... necessary for giving evidence and/or producing
relevant documents in respect of an enquiry being make by me in connection with the alleged
smuggling / seizure of.....................on...................
WHEREAS, I am satisfied that the relevant documents are in your possession, or are under your
control. Now, therefore, in exercise of the powers conferred on me under Section 108 of Customs
Act, 1962, I hereby summon you to appear before me in person to give evidence and /or produce
the below mentioned documents at...................................(place) on the ..................... day of
...................... (year) at ..............hours.
You are not to leave the above-mentioned Customs Office without leave and if the case is
adjourned without ascertaining the date of adjournment.
Non compliance with this summon is an offence under Sections 174 and a175 of the Indian
Penal Code, 1880.
You are warned that giving false evidence in these enquiry proceedings is in offence punishable
under Section 193 of the Indian Penal Code.
ISSUED TODAY, THE.............DAY OF.............(YEAR)
Documents required:
................OF CUSTOMS
(Name & address of Office)
(Seal of Office)
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10.33 ADMISSIBILITY OF A CONFESSIONAL STATEMENT MADE UNDER THE CUSTOMS
ACT, 1962
As to the admissibility of a confession made by a person summoned for an enquiry under
Section 108 of the Customs Act, 1962, it can be seen that such a person is not an accused
person and the officer summoning that person is not a Police officer. Any confession made
by such person is admissible in law since it is not hit either by Section 25 or Section 26 of the
Evidence Act. However, if it is shown in a given case that such a confession was obtained by
the Customs officer by exertion of inducement, threat, coercion or duress, or extracted by
illegally detaining the person in an unauthorised prolonged custody, or obtained by using third
degree methods, then the question about the acceptability and reliability of such involuntary
confession would arise. Caution or warning, embodies under Section 164 (2) Cr. P.C, must
be administered to a person from whom a confessional statement is recorded that the same
could be used against him in a judicial proceeding, before recording a statement of confessional
nature, from the person summoned.
10.34 INTERROGATION OF SUSPECTS:
Whilst the following suggestions will apply to the majority of interrogations, they obviously
have to be varied with particular circumstances and suspect. Perhaps, to assist in this
performance, suspects could be divided into the following three categories:
-
Suspects who will confess readily;
-
Suspects who will confess their part in crimes, only after lengthy and skilful interrogation;
-
Suspects who decline to answer questions.
-
One of the most consistent weaknesses in the interrogation of suspects who readily
confess is that interrogators are apt to shorten the interrogation and all essential questions
are not put to cover every aspect of guilt. Additionally, they frequently overlook the fact
that although the suspect did confess quite early in the interrogation, he almost invariably
made certain denials at the start.
Before asking any specific questions about a particular crime, remember that the suspect
may have committed other offences and that a vague question may lead him to confess a
number of other offences. Very often, he himself will open the conversation by asking “Just
what am I, supposed to have done this time?” Instead of mentioning the crime under enquiry
a reply “you know very well why you are here, what about telling us the truth?”, can often lead
to the clearing up of other crimes. This is particularly how this unintelligent suspects and
juveniles who will very often admit crimes of which the interrogating officers were not even
aware.
The following are rules that should be considered in all interrogations:
(1) Open the interrogation as friendly and firmly as the circumstance may permit.
(2) Attempt to develop in the suspect’s mind impression that you are in possession of
substantial evidence to establish his guilt.
(3) The suspect will be attempting, early in the interrogation, to decide how much evidence
you have against him the whether or not you are bluffing on certain aspects.
(4) Sympathetic enquiring as to whether or not he is able to obtain bail, how his family may
fare in his absence, whether they can obtain social services, accommodation, etc.,
whilst he is in jail, are undoubtedly the most convincing matters which can be put to
develop in him the certainly that you have solid evidence against him.
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(5) Not only do these questions conform to your planning, but they are also enquiries which
will, in most cases, convey to the suspect that you have a sympathetic and genuine
interest in his welfare and the future of his family.
(6) Be careful not to exaggerate the seriousness of his offence. If possible, take the opposite
stand and look for factors, which will reduce the offensiveness of his crime and make
confession easier for him.
(7) In difficult cases, direct your questions to establish suspect’s him at the scene. This is
vital and, having placed him at the scene, you may then question him about his complicity
in the crime itself.
(8) Avoid complicated or double questions.
(9) Once the interrogation is well under way, keep a constant stream of question directed to
the suspect. Keep talking so that he is forced to think and answer questions fairly
quickly.
(10) Do everything possible to keep pressing on him so that he will go on answering your
questions. The more he talks, the more he will lie or the more he will say things, which
will establish his innocence or guilt.
(11) Where he has not answered a question, repeat the question or state quite firmly “Come
on now, what do you say about that?”
(12) Avoid, at all costs, long periods of silence, suspects under pressure are often on the
verge of confessing but if allowed time to reconsider will frequently change their minds.
(13) Remember at all times that whilst he is talking about the crime, he is building up a word
picture you can visualize. It may be true or false but in most cases it will be part truth and
part falsity.
(14) Where he is answering questions it is generally best to follow this order:
(a)
a broad question first;
(b) then a narrower one; and
(c) a very specific question to remove any ambiguity.
(15) Do not be too quick to tell the suspect you know he is lying. Allow him to commit himself
to a false story at some length, then go back over it and point out some (not all, at this
stage) of his lies.
(16) This method makes him wonder just how much you know or more importantly whether
there is anything in fact, you don’t know.
(17) At this stage, ask him to go over his story again, but tell him this time not to waste your
time and his by telling you lies.
(18) By not pointing out all his lies on the first occasion you have retained an important check
on the nest story he begins to tell you.
(19) On the second occasion, stop him quickly and firmly at the first direct lie and let him see
you are displeased with his false story. If the interrogator does this convincingly the
suspect will, in most cases, immediately confess his part in the crime.
(20) With difficult suspects, the interrogator should first question him about minor facts and
surrounding issues; avoid direct questions as to the offence itself.
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(21) Having established the presence at the crime-scene and obtained his agreement to
these minor points, gradually work up to the major issue of his part in the crime itself.
(22) Not only have you now developed valuable evidence but you have made it more difficult
for him to deny complicity and perhaps have made it easier for him to confess.
(23) Having in your possession studies of his previous modus operandi you should be in an
excellent position to question him on similarities between the present crime and those
committed by him in the past.
(24) Where suspect has been answering questions but now refuses to do so, a stage has
been reached where it can almost certainly be assumed that he is the guilty person.
(25) If he persists in his refusal to answer, make written notes about his physical reaction at
this time.
For example: Have his hands started to shake? Are there tears in his eyes? Have his lips
commenced to tremble? Does he generally appear to be agitated or unsettled?
(26) Do not overlook other questions, which can be put to him even though he still declines to
answer.
10.35 HOW TO RECORD A STATEMENT:
As a direct result of interrogation, statements have to be recorded. It is significant to note that
the Customs Act, 1962 does not prescribe any procedure for recording of statements.
The absence of a proper prescribed procedure for recording of statements has resulted in
wide variance and disparity in the form and manner in which statements are being obtained.
This has also resulted in officers having to face accusations of malpractice, unjustifiable
exercise of power, irregularities, illegalities, etc.
As a matter of manifest convenience and usefulness, it is necessary that all officers follow a
uniform manner and format for recording of statements. A systematic and detailed pattern of
questioning and recording the statement is necessary to project a profile of fair functioning.
Before recording of a statement, particularly under Sec. 108 of the Customs Act, 1962, it is
mandatory to incorporate the following clauses. The details of which are as under:“I am in receipt of your summons issued from your file No.————- dated issued by................
I have been explained the provisions of Sec. 108 of the Customs Act, 1962 and have been
warned that giving false evidence in these enquiry proceedings is an offence punishable
under Sec. 193 of the Indian Penal Code 1860. Further, I have also been warned that my
statement can be used against me in these enquiry proceedings or in any other proceedings
which may be initiated against me.”
10.36 PATTERN OF RECORDING OF A STATEMENT:
(1) The relevant Act and section should be boldly indicated e.g. ‘Statement recorded under
Section 107/108 of the Customs Act, 1962.
(2) Full name and address of the person giving the statement.
(3) Full name and designation of the officer recording the statement.
(4) If the person giving the statement has been summoned, indicate the reference number
and date of issue of summons. If the summons is oral, it should be so indicated and
also the manner, whether telephonic or through messenger.
(5) Date and time of appearance of the person summoned for giving the statement.
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(6) Information about the person.
(a) Full Name and aliases, if any.
(b) Address: (I) Business (II) Residential
(c) Age, Date of Birth
(d) Occupation
(e) Names and addresses of partners, if any
(f)
Annual income
(g) Marital status
(h) No of Children
(i)
Languages know-read/write/speak
(j)
Any known medial complaints
Note: The more background details that can be elicited, the better.
(7) Why the person is giving the statement
(8) Factual details of the case as known to the person.
(9) How the above facts are known to the person:
(a) Personal knowledge
(b) Hearsay
(c) Documentary evidence
(d) Material evidence
(10) If the evidence is hearsay, explanation of the person as to why it is reliable.
(11) If other people are sought to be implicated, get:
(i)
Full identification
(ii)
Address
(iii) Age
(iv) Precise role played
(12) The nature of the violation committed.
(13) Affirmation that all details have been truthfully disclosed and voluntarily given.
(14) Full signature and name to be obtained at the end of each page of statement.
Genuineness of signature to be checked with other material documents summoned or
from driving license/PAN card/other correspondences entered into by him
(15) Date and time of conclusion of statement
(16) Full name, signature and designation of officer recording the statement.
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10.37 NATURE OF STATEMENT:
Section 108 of the Customs Act, 1962 is conspicuously silent about the nature of the statement
Le. whether it should be written or oral, whether the person summoned should give the
statement in his own hand-writing or the officer summoning will record the deposition in his
own hand-writing. Sub-Sec. (3) of Sec. 108 of the Customs Act, 1962 only states that-” all the
person so summoned shall be bound to state the truth upon any subject respecting which
they are examined or make a statement.
“Thus it is left to the person whether he should write the statement or not. No person can be
compelled to make a statement in his own handwriting. The person can choose to answer
the Question orally Vitthalnathan v. Collector of Customs decided by Hon’ble Madras High
Court).
10.38 COPY OF STATEMENT-WHEN TO BE GIVEN:
A person who has given a statement to a Customs officer cannot insist that a copy of the
same should be given to him immediately. The right to get a copy of the statement occurs
only at the stage of departmental adjudication or criminal prosecution in a court of law against
the person. During the stage of investigation copies of the statement are not given. But, if the
person wishes to keep a note of the submissions made by him he is at liberty to do so. He
can separately make a written note of the questions and submissions. The departmental
authorities cannot object to this. (Delhi High Court, Cr. M (M) No. 205 of 1983, Cr. M(M)
No. 251 of 1983, K.T. Advani Vs. The State).
10.39 ROLE OF LAWYER DURING RECORDING OF A STATEMENT:Requiring a lawyer to be present while examining or interrogating a person during investigation
is not permitted as held by Supreme Court in the case of Poolpandi Vs Supdt. Central Excise
in a Criminal Application No. 301 and 302 of 1987.
SEC. 108 OF THE CUSTOMS ACT. 1962 DOES NOT REQUIRE THAT THE STATEMENT
SHALL BE TAKEN ON OATH OR AFFIRMATION:It was reported in order No. 75/Cal/90-75 in Appeal No. C-389 of 1989 decided by Shri
Sankaraman, Member (T) and T.P. Nambiar, Member (J), CEGAT Calcutta in the case
of Md. Alamgir Vs. Collector of Customs (Prev.) that“Under Sec. 108 of the Customs Act, 1962 any Gazetted Officer of Customs shall have
power to summon any person to give a statement and such person so summoned shall be
bound to state the truth upon the subject respecting which were examined makes statement.
There is nothing in Sec. 108 of the Customs Act, 1962 which requires that the statement
should be taken on oath or affirmation.”
10.40 INVESTIGATING THE STATEMENT:
Mere recording of a statement is not sufficient in law. There has to be an Independent
confirmation of the version given in the statement. Obtaining the independent confirmation is
the fundamental responsibility of the investigating officer. The statement is only a narration of
the activities and the people involved in it. It need not represent the truth or the genuine facts.
It can be just explanatory fiction, doubtful observation and wrong inference or even suspect
evidence. The conclusions in statement can be superficial or based on unsubstantiated
rumors and speculation. The investigating officer has to ensure that he is not duped by
outright false and convoluted information. Hence, his first duty is to investigate the statement
to ascertain the correctness of it.
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The investigation has to be done systematically and scientifically. It should not be forgotten
that often falsehoods are asserted and reiterated as truth. Hence the object of any investigation
is to reveal the truth.
The simple and direct way to commence the investigation is to identify the verification data
given in the statement. Elementary information like names, addresses, telephone numbers
and location, are readily verifiable and if found correct, begins to give a ring of authenticity to
the statement. The statement is to be evaluated with other evidence and attending
circumstances to prove the fact in issue as has been held in the case of Orient Enterprises
V. Collector of Customs, Cochin-Order No. 584/1985-A, CEGAT, New Delhi.
10.41 WHERE SUSPECT REFUSES TO ANSWER
Very often, suspect, having had legal or other advice, will refuse to answer questions put to
him by the interrogator. This situation can be very difficult, particularly as courts and judges
very considerably their decisions as to the admissibility of questions put thereafter. There is
only one safe method and that is for the interrogator to pursue his questioning as vigorously
as possible in an attempt to ensure that all conceivable questions are put to the suspect. The
following procedure can be of assistance:
(a) Ask suspect why he refuses to answer.
(b) Be patient, take him quietly and explain to him that your inquiries have brought him under
suspicion but he is innocent, his answer to questions will undoubtedly assist in clearing
him of this suspicion.
(c) Inform him that you are prepared to go to any lengths to establish his innocence and will
interview anybody he wishes, make any inquiries or transport him anywhere to assist.
(d) If he persists to answer, keep asking questions to cover every aspect of crime.
(e) Ask him of he has any witnesses or people who can provide him with an alibi or assist in
establishing his innocence.
(f)
Try to pin-point the defence he will later put forward and question him now to destroy or
nullify its effect.
(g) Finally, if he has answered, put this question to him:
“Are we to take it from your refusal to answer questions that you have in fact no answer
to the allegations which I have put to you?”
10.42 RETRACTION OF STATEMENTS
Retraction of a statement means to withdraw or revoke a statement. Very often, persons
who give statements under Section 107 or 108, as the case may be, give intimation to the
Customs authorities about their decision to retract the statements given by them.
The general reasons given for retraction are:
(1) Statement recorded under coercion, threat and duress
(2) Statement recorded by giving inducement
(3) Statement dictated by the authorities
Belated retraction does not merit consideration. What will constitute a belated retraction will
depend upon the fact and circumstances, and the reasons for belated retraction.
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10.43 RECORDING OF STATEMENT:
Statement should be recorded in duplicate in the language known to the person. If not, the
same should be read out and explained to the passenger in his own language. The statement
can be recorded either under Section 107 or under Section 108 of the Customs Act, 1962.
When the accused volunteers to give any document or thing relevant to the enquiry he may
be examined and his statement may be recorded by the customs officers under section 107
of Customs Act, 1962. Under section 108, statements should be recorded under an oath
(summons) that the person concerned shall tell the truth and nothing but truth. It is to be
recorded in the presence of the Gazetted Officer. In case of prosecution, recording of statement
under Section 108 is preferred. Giving false evidence in a statement recorded under Section
108 is an offence punishable under Section 193 of the Indian Penal Code 1860. This fact
should be explained in the Statement. A specimen of statement is given below.
Powers to summon person to give evidence.
10.44 MODEL STATEMENT FOR BAGGAGE CASES
Statement of Shri/Smt.
Address
Date
recorded under Section 108 of the Customs Act, 1962 (in the Arrival/ Departure customs hall)
at............on.............
I have duly received the Summons No...............dated............. issued under section 108 of the
Customs Act, 1962 by the Air Customs Supdt. , ........ and in response thereof I have appeared
before you, today to give evidence. I have been explained the provisions of Section 108 of the
Customs Act, 1962 and I have understood that giving false evidence in these proceedings in an
offence punishable under Section 193 of the Indian Penal Code, 1860. I therefore give below a true
and correct statement of facts to the best of my knowledge and belief.
My name is ................. and my age is ......... My address in ............. is
.............................................where I live with my wife/husband. My native place address
is............................... Where my parents Shri........................ and Smt................................are staying.
I have.........brother(s) and ........sister(s). They are employed with..........................., and the sister(s)
(are) married to ......................... and live(s) at.......................... I have studied up to .............. and I
am working with..........................
My passport Dumber is ....................................Today I arrived from...............................................
by flight/Train/Bus........................ My baggage Comprised ................suit cases and................, brief
cases.
I opted for................channel and presented my baggage at counter No............. for clearance.
The Customs Officer(s) at the counter No.......... asked me to declare the contents of the baggage.
I have signed the written declaration of the goods valued at Rs as declared by me. Not being
satisfied with my declaration, the Customs Officer directed me for detailed examination of my
baggage. Two independent panchas were called to the examination counter. In their presence, I
opened my packages, (the suit cases and the brief cases) and the same were examined by the
Customs Officer, in my presence and in the presence of the two panchas. The Customs Officer
found goods worth Rs................which were (far) in excess of declaration. Then emptying the
contents the Customs Officer inspected the suitcases and the brief cases and noticed that (one
of) the suit case(s) had false bottom/side. The said suit-case was then ripped open in the presence
of panchas, and contraband goods as inventorised and valued at Rs.............. were recovered
therefrom. Thereafter, I was taken to an adjacent room, where my personal search was taken by
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the Customs Officer in the presence of the panchas when goods as enumerated in the panchnama
were also found concealed on my person (or nothing was found).
All the undeclared/concealed goods valued, at Rs........................(C.I.F. and
M.V.)............................ recovered from the false bottom of the suit case and the concealed goods
worth Rs.............recovered from the baggage/from my person were taken over and seized under
a panchnama by the Customs Officer and I have received a copy of the same.
I admit that I did not declare the goods with the intention of evading Customs duty. The goods
recovered from the false bottom of the suit case and from my person were concealed by me in
order to avoid detection by the Customs.
The goods recovered from the false bottom of the suit case do not belong to me. A person
named..................................................................... at ......................................gave me this suit case
to carry and to deliver to another person named........................................................
For this job I was promised ticket and cash consideration Rs.............. I was tempted with the
offer and hence I agreed to carry this suitcase containing the contraband goods. I know that
smuggling of contrabands / importing excess trade baggage is an offence.
I am sorry for what I have done, I have fully realised that I have committed an offence. I plead
for leniency.
Signature and date of the Passenger
Recorded by me
Full Signature and Name of Customs Officer
Before me
Summoning Officer
10.45 SEIZURE OF COUNTERFEIT CURRENCY NOTES:
The details of all the cases of counterfeit currency notes detected by DRI/Customs is to be
provided to CIEB and FIRs are to be filed in all the cases of counterfeit currency notes detected
in order to enable the Police to initiate appropriate investigations under I.P.C. And all the cases
of smuggling of Counterfeit Currency notes detected by Police should be investigated by
Customs from Smuggling angle.
10.46 Submission or seizure reports and progress reports to D.R.I.
(a) The copies of the following types of seizure reports for purposes of collation and study are
required to be sent tot he Directorate of Revenue Intelligence.
(i)
Seizure reports for all goods including currency seized, for violation of Foreign Exchange
Regulation Act, and Dangerous Drugs Act.
(ii)
Seizure reports for goods to which the provisions of section 123 of Customs Act apply
like Gold, Manufacture, Diamond, Precious Stones, Cigarettes and Cosmetics, and other
goods notified under the said section of the Customs Act, 62,
(iii) Seizure report where the value of the goods involved is Rs. 5000/- or above.
(iv) Seizure reports wherein offenders, associates or accomplices have come to adverse
notice earlier, and
(v)
Reports of seizures based on information received and communicated by the Directorate
even when not covered by (i) and (iv) above. Proforma of seizure reports in respect of
321
smuggling of goods and for history sheets of the offenders are appended in this part.
These are to be sent within 72 hours of a seizure being affected.
(vi) The first progress report of a seizure case in which a report has been sent to the Directorate
of Revenue Intelligence should be forwarded to the Directorate within 7 days of the
seizure.
(b) Subsequent fortnightly progress reports are to be sent to the Directorate for the following
categories of the seizures only(i)
Seizure in which foreigners other than Pakistanis are involved:
(ii)
Seizure where the value of the offending goods is Rs. 5,000/- or above;
(iii) Seizure which provided clue to organised smuggling;
(iv) Cases in which specific request for further progress report is made by the Directorate of
Revenue Intelligence. Proforma of the progress report is at Appendix-C
(D.R.I. POL/2/57 dated 24.12.1957) and of 28.12.1960.
10.47 DRI-2 (SEIZURE REPORT)-ANTI SUMGGLING CASES
DRI-2 reports should be sent irrespective of the value of the goods in cases where winder
ramifications are perceived. Similarly attention is invited to instructions at iv (c) where even in
cases where only documents are recovered but preliminary scrutiny suggests smuggling of
contraband of more than Rs. 10 lakes, it has been decided that DRI -2 forms should be
submitted. It is strongly advised that the Commissionerate Hqrs. may continue to insist on
receiving DRI-2 in respect of all cases, made by the officers of the Commissionerates
irrespective of the value.
a)
While basically the format remains the same, additional information about the alleged
offenders has been sought in column-5. Thus, new sub-columns have been added in
column-5 relating to date of birth and particulars of passport 1 driving licenses and places
of issue. The sub-columns of column 5 have also been reorganized thereafter. The
Notes at the end of the DRI-2 form have been partially changed. A value limit of Rs.
10,00,000/- (Ten lakhs) has been invited to instructions at iv (b) of the notes, wherein it
has been clarified that
DRI-2 (SEIZURE REPORT)
Commissionerate
Division
File No.
Unit.
Date
1.
Description of goods seized
2.
Date & time of seizure
3.
Place & state of seizure
4.
(a) Quantity, value & country of origin of each description of goods seized (including
conveyances).
(b) No. and type of packages & markings.
322
5.
List of alleged offenders
a)
Name with alias
b) Date of Birth
c)
Father’s name
d)
Address
e) Identifying particulars
f)
Passport/Driving License,
Particulars and places of
issue
g)
Whether assessed
to Income tax, if so,
Permanent
Account No.
h) Part played in the case
i)
Whether interrogated and
arrested,
j)
Whether any
admission made
about guilt
k) Place from which
arrested
l)
Particulars of ship/
aircraft or vehicle by
which travelling
6.
Whether the seizure was on the basis of prior information. If so, No. & date of information
report sent to DRI or the Alert Notice issued by DRI, if not, the circumstances which led to the
seizure.
7.
Other departments associated in the matter or to which the matter has been reported.
8.
List of officers of all departments who participated in the seizure, indicating the role played by
each.
9.
Brief facts of the case. (Here make a mention of copies of the important statements if any
enclosed)
PLACE/DATE:
Signature,
name in block letter,
Designation of Officer
heading the seizing
party
Note:-i)
(ii)
The seizure report is to sent to the DRI within 72 hours of the seizure.
Separate sheets may be attached wherever necessary.
(iii) The brief facts of the case should include results of investigations done till the time of
writing this report and details not covered by other columns of this report, such as modus
operandi, nature of evidence collected, offences involved, name of owner and / or tenant
of premises from where the goods were seized, name of persons producing the keys in
cases where the seizure was effected from locked premises, further line of investigation
etc.
(iv) DRI-2 report has to be sent in the following category of seizure to the DRI Hqrs. and to
the jurisdictional offices of the DRI:
a)
in respect of cases where the value of seizure is Rs. 10,00,000/- (Ten lakhs) &
above.
323
b)
where, however, an isolated seizure appears to be part of a smuggling racket and
wider ramifications are indicated, DRI-2 reports should be sent irrespective of the
value of goods seized.
c)
Where only documents are recovered, DRI -2 report should be sent only if the
preliminary scrutiny of the documents prima-facie reveals transactions above Rs.
10,00,000/- (Ten lakhs). There may be cases in which subsequent scrutiny alone
may reveal transactions over Rs. 10,00,000/- (Ten lakhs). In such cases the report
in DRI-2 form should be submitted at that stage.
d)
In respect of the seizures made by the officers of this Directorate or on the
information furnished by this Directorate, DRI-2 reports should be sent irrespective
of the value of the goods seized. In respect of the seizure made by officers of the
Commissionerates, DRI-2s may be sent to the jurisdictional Commissionerates
Hqrs. Irrespective of the value of goods seized.
10.48 Streamlining of procedure for seizure of goods and preparation of Panchmanaguidelines.
The Central Vigilance Commission, in one of its annual report has observed that the procedures
for seizure of goods, and preparation of “Panchnama” needed to be streamlined, as in a
number of cases, several deficiencies were allowed to remain in these areas, due to which,
the vigilance cases initiated against particular officers could not succeed at enquiry stage
eventually. The officers stressed on certain omissions/deficiencies to counter department’s
relied upon evidence and this could not be ignored by the Enquiry officer. It has also come to
Board’s notice that as the laid down guidelines are not followed strictly, unnecessary complaints
are received e.g. searches by unauthorized persons or seizures not recording all the goods
recovered or copies of seizure memos / Panchnamas not being given. Deficiencies in
Panchnama is often also exploited by the unscrupulous parties involved in smuggling / tax
evasion and they escape penalty/ punishment otherwise due, by establishing that the
Panchnama did not reflect the facts properly & properly & therefore could not be relied upon.
2.
The Board would like you to ensure that officers under your charge, engaged in enforcement/
preventive functions, scrupulously adhere to the laid down guidelines while undertaking any
searches of any premises, place or person(s) or effecting seizure of any goods in such
searches specially valuables like currency, watches, precious and semi precious stones,
gold silver (including jewellery), sensitive goods like narcotics arms and ammunition or other
contraband goods of considerable value etc. Though a large number of instructions already
exist on the procedure to be followed (some of which are given in the Department’s Preventive
Manual), some of the important points mentioned below are reiteration for guidance of field
officers:(a) The search of the premises/ persons should be conducted, invariably, by persons with
due authorisation authorities, in the presence of two independent and respectable Panch
witnesses of the locality and the occupants of the place or their representatives(s). The
leader of the party conducting search must show / read out the search authorisation to
the Panch witnesses as well as the occupants of the premises on the search
authorisation, in token of the same having been seen by them:
(b) All the members of the search party, before starting search, must offer themselves for
being searched by the witnesses and / or the occupants of the premises and / or their
representative (s) and this fact must be clearly incorporated in the Panchnama. Great
care must be taken in recording in the Panchnama, all relevant & precise details of the
incriminating goods including valuables, currency notes or documents recovered and
seized during the search. The denominations of currency & total amount, details of
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valuables or other contraband goods (with identification marks, wherever possible), both
in quantities and value term and the manner of packing/sealing of the goods seized.
should be clearly mentioned in the Panchnama, to avoid any controversy of the actual
contents I value in different seized packages, at a late date;
(c) Detailed inventory of all contraband goods on Customs side or clandestinely manufactured
unaccounted excisable goods etc. on central Excise side proposed to be seized under
the reasonable belief that these are liable to confiscation under the provisions of Customs
Act, 1962/Central Excise Act, 1944 should be prepared & got duly authenticated by the
Panchas as well as representative(s) of the person(s) whose premises are searched:
(d) The description of places / packages etc., from where these goods / currency / valuables
etc, were recovered & if concealed, the manner of concealment etc., in case of sensitive
goods and even other goods seized-should be clearly mentioned, (unless it becomes
impractical to undertake a detailed inventory of contents of each packages) and each
package should be got sealed and labelled, presence of Panchas and the owner / person
in charge, form whose premises these goods are recovered and labels got duly signed;
(e) The detailed inventory, as stated above, and copies of Panchnama, on each page, must
be got signed by the Panchas and the owner / person in-charge of the premises, who
have witnessed the search / seizure & a copy of the Panchnama shall be handed over to
him;
(f)
It should be clearly mentioned in the Panchnama that except for the documents / goods
seized under Panchnama, nothing else was seized and nor taken in possession;
(g) The time and date of starting the search as well as the time and date of concluding the
search, should be clearly mentioned in the Panchnama and a facsimile of the seal
used during the search should also be embossed on the Panchnama;
(h) Any untoward incidence occurred during search, this fact should be mentioned in the
Panchnama;
(i)
On completion of the search, all members of the search party, must again offer
themselves for being searched by the witnesses and / or the occupants of the premises,
and / or their representative(s) and this fact should also be incorporated in the Panchnama;
(j)
On completion of the Panchnama, it must be read over to all concerned, in vernacular
and signatures of Panch witnesses as well as occupants of the premises / their
representatives(s) should be obtained on the Panchnama;
(k)
A copy of the Panchnama should be handed over to the occupants of the premises or
their representative (s), under proper acknowledgement.
(Ministry’s letter No. 394/226/98-Cus (AS) dt. 30.8.1999)
10.49 DRI SERIES OF FORMS
1.
DRI-I (INFORMATION REPORTS)
To be sent in respect of all cases where information has been recorded.
As soon as the information is received, should be recorded, in the form DRI-I in the handwriting
of the informer or the intelligence officer. It must be in the form of informer’s statement in first
person. In the information report, the informer’s name will not be mentioned but only his code
number if any will be given. In case the informer is not registered, his name and full address
(in form given at App. A) will be submitted in a sealed cover alongwith the information report.
In case this is not done, the information shall not be treated as from an informer. As soon as
325
information report is ready, it should be registered and the same sent to the Assistant
Commissioner and issue necessary instructions for its follow-up after scrutiny. The information
report should also be immediately registered in the Register of Information (App. D). The
Register should be prepared commodity wise. Cross-references should be given under
other commodities mentioned in the information report. The information report itself should
be filed in a separate guard file. Only such orders as are necessary to follow-up and such
information will be conveyed to the concerned officer for further investigation or enquiry. The
information report should be sent to the Directorate of Revenue Intelligence within 24 hours of
its receipt by the Assistant Commissioner and where the information is of interest to more
than one Commissionerate and / or Custom House, such Custom Houses and the
Commissionerates should also be informed.)
[Para from DRI letter F.No. POL/1/160 dated. 12.12.60]
SECRET
FORM DRI-I
INFORMATION REPORT
Commissionerate.............................Division.............................Circle. ..................
CUSTOM HOUSE
Code No. of Informer:
Time-Date:
1.
Commodity:
2.
Value (where possible):
3.
Names of subjects with parentage of address:
4.
Place where goods are suspected to be secreted;
5.
Proposed action:
* Information recorded
Place of recording the information.
Signature.
Name and
Designation of the officer recording the information.
Signature:
Designation:
All information are to be recorded in the form of informer’s Statement in first Person. A copy of the
report is to be sent to the Director of Revenue Intelligence. New Delhi within 24 hours of its, having
been recorded.
NGIPCBE-S2-28 DCSI/CE/63-26-7-66-52, 400
3.
DRI-3-(HISTORY SHEET)
a)
The DRI-3 is to be sent only in cases where the value of seizures is Rs. 50 lakes and
above; however, as has been specified in the notes at the end of the DRI-3 form, even in
specified in the notes at the end of the DRI-3 form, even in cases of seizures less than
326
Rs. 50 lakh where the persons involved are repeat offenders, or major operators, the
DRI -3 may be sent. The purpose of the DRI-3 ultimately is to build up a data bank.
Hence, care should be taken to ensure that all columns are filled. Care should be taken
to ensure that the file number remains the same as shown in the DRI-2.
b)
While the format remains basically the same, slight changes have been made in column2, where particulars of telephone numbers have been included and also details of driving
licenses 1 election card number. In column-4 brief facts of the case and the role of the
individual in the alleged offence have also been added
DRI-3 (HISTORY SHEET)
Commissionerate:
Division:
File No.
Date
Date of seizure:
1.
2.
Unit:
Value of the seized goods;
a)
Full Name: ......................
b)
Alias:........................
a)
Place & date of birth........................
b)
Father’s / Husband’s name:...........................
c)
Address in India including Telephone No’s:.......................
d)
Address abroad, if any:..........................
e)
Pass port No. ..............................
i)
Place & date of issue:.............................
(ii)
Valid up to:........................
f)
Nationality:..........................
g)
Profession/Occupation:........................
h)
Business address including Telephone Nos:........................
i)
Driving license No./Election identity card:.......................
No. and places of issue
3.
Details of Descriptive roll:
a)
Height.................
b)
Complexion.................
c)
Colour & condition of hair d)
e)
Built............................
g)
Visible marks of identification...................................
Colour of eyes...............
f)
Weight.........................
(Photographs in triplicate to be sent wherever possible alongwith this report)
4.
Brief facts of the case, role of individual in the offence and Modus
Operandi..................................................
5.
Area of Operation............................
327
6.
Details of vehicle used.........................
7.
Name of the gang to which he belongs & the role in it
8.
Previous Offences, brief details there of, including particulars of adjudication & prosecution.
9.
Associates in offences (name, alias, parentage and address are to be given)
10. Whether assessed to Income-Tax and his Permanent Account Number
10-A. Details of property
i)
Immovable properties (e.g. House, plots, lands, commercial building)
ii)
Details of moveable properties (e.g. vehicles, Boats, Planes, jewelry, luxury items, bank
accounts, safe deposits, lockers, shares, securities)
iii)
Business interests (e.g. partnership firms, companies)
(if space is not enough, please attach a separate sheet).
11. Whether previously detained or ordered to be detained under COFEPOSA Act-brief details
thereof.
Time, date and place
Signature, name and Designation
of the officer
NOTES:
i)
This report should be sent within 1 month of filing of DRI-2. This report should be sent in all
cases where the value of seizure is Rs. 50,00,000/- or above normally. However, in cases
where the alleged offenders involved are major operators or have come to adverse notice
repeatedly in the past or are persons against whom substantial intelligence exists, DRI-3 is to
be sent irrespective of the value of seizure. However, a small note may accompany giving
the background in which the DRI-3 has been sent despite the value of the seizure being
lesser than Rs. 50 lakhs.
ii)
This report should be sent in all cases, where any person is found involved whether the
person is arrested or not. The directions regarding photographs as given below column 3
above should be carefully noted.
iii)
The information at column. NO.1 0-A needs to be collected in every cases as it would be
helpful for recovery of duty/penalty etc. under section 142 of the Customs Act, 1962 and also
for taking necessary action under SAFEM (FOP) A/PITNDPS.
4.
DRI-4 (COMMERCIAL FRAUD IMPORT / EXPORT)
a)
An exhaustive DRI-4 to deal with cases of commercial fraud whether involving seizures
or not had been prescribed in 1996, to distinguish cases of this nature from cases of
outright snuggling. However, the response from the Commissionerates has been
disappointing and reports in DRI-4 have not been coming. It is reiterated that reports in
DRI-4 is all cases of commercial fraud should be sent. As has been specified in the
notes, DRI-4s would be expected in all cases where estimated loss of duty or the amount
involved in the contravention of schemes such as DEEC, DEPB, EPCG, DBK etc. is
Rs. 10 lakes or above; Cases involving violations of Trade & Merchandise Marks Act,
Indian Patents and Designs Act, Copy Right Act, Wild Life Act and Antiquities and Art
Treasures Act may be sent irrespective of the value of the case.
328
b)
Minor additions have been made in the existing DRI-4 form. Thus, in column-6, subcolumn (b) relating to furnishing the IEC No. has been included. In Para 22 along with
brief facts of the case specific mention has been made about the estimated loss of duty.
4.A It has been observed that there are large number of cases where the duty liability/
penalty adjudged against the offenders could not be realized because the Department
did not have any information on their assets. Similar problem arises when the cases are
to be referred to Competent Authority under SAFEMFOPA/PITNDPS Act. It, therefore,
becomes necessary particularly when the provisions of section 142 have been amended
that Department should collect as many details as possible on the financial profiles of
the offenders during investigations of the cases against them. As such during the recording
of the statements, the persons under investigation should be questioned to find out their
immovable properties e.g. house, plots, lands, commercial buildings; their moveable
properties e.g. vehicles, boats, planes, jewelry, costly luxury items, their band accounts,
safe deposits, lockers, shares and securities; and their business interest in partnership
firms, companies, etc. In order to incorporate these details in DRI series, certain further
amendments are hereby made in DRI 3 and DRI-4.
DRI-4
COMMERCIAL FRAUD CASES OF IMPORT / EXPORT
1.
Commissionerate:................................
2.
a)
Date of seizure/Detection & Place
b)
Port/Airport/ICD/FPO from where the goods were seized/cleared
3.
Division:.................... File No.
Commodity.......................... Value (LMV in INR).......................... Brand.....................................
Value (FOB or CIF in US$)..............
Model No..............................
4.
Name of Person I Firm involved........................................................
5.
Address
6.
a)
Name of importer/exporter firm
c)
RBI Code number
7.
Address
8.
Name of Director / Partner / Proprietor
9.
Address (Residential) & Tel. Nos.
b) IEC Number
10. Names of persons arrested
11. Address: a) Office with Tel. Nos.
b) Residential with Tel. Nos.
11-A. (i) Immovable properties (e.g. House, Plots, lands, Commercial building)
(ii)
Details of moveable propertis (e.g. vehicles, Boats, Planes, jewelry, luxury items, bank
accounts, safe deposits, lockers, shares, securities)
(If space is not enough, please attach a separate sheet).
12. Name of Overseas Consignor / Consignee firm
329
13. Address
14. Name of key persons thereof
15. Whether any DRI-I filed,
YES/NO
if Yes Date & Reference No.
16. Name of the CHA firm involved
17. a) License No
Customs House
b) Address
18. Name of Director / Partners / Proprietor
19. Residential Address including Tel. Nos.
20. Name of authority older, if any
21. Residential Address including Tel. Nos.
22. Brief facts of the case including estimated loss of duty
23. Any intelligence regarding operators or commodity or modus operandi learnt during the
detection of the case and not covered by the above particulars
24. Role played by the officers
Time, date and place
Signature, name and Designation
of the officer
NOTES:
i)
This report should be sent to the DRI immediately after a prima facie case of commercial
fraud is noticed, where the value of seizure / estimated loss of duty amount involved in the
fraud is Rs. 10,00,000/- (Ten lakhs) or above.
ii)
This report should be sent in all appraising cases of Import and Export e.g.
iii)
a)
forged documents such as bills of lading, licences and release orders;
b)
duplication of marks and numbers;
c)
mis-declaration of quantity, description and value (under lover invoicing) involving a value
for ITC action or duty or foreign exchange over Rs. 10,00,000/-;
d)
other ITC offences involving value of offending goods over Rs. 10,00,000/-;
e)
diversion of export goods valued at Rs. 10,00,000/- from rupee payment area to hard
currency area;
f)
However, in respect of cases detected involving violation of allied acts such as Trade &
Merchandise Marks Act, Wild Life Act, Antiquities and Art Treasures Act, Indian Patents &
Designs Act, Copy right Act, a report in DRI-4 may be sent irrespective of the value.
The information at column. No. 11-A needs to be collected in every case as would be helpful
for recovery of duty 1 penalty etc. under section 142 of the Customs Act, 1962 and also for
taking necessary action under SAFEM (FOP) PITNDPS.
330
DRI-4A (HISTORY SHEET OF PERSONS INVOLVED IN COMMERCIAL FRAUD CASES OF
IMPORT I EXPORT)
a)
A new form DRI-4A have been devised. This relates to the history sheet of companies / firms
/ persons involved in commercial fraud cases including violations such as DEEC, DEPB,
and Drawback etc; it is the equivalent of DRI-3. DRI-4A would be expected only in cases
where the estimated loss of duty / contravention is Rs. 50 lakes and above. However, as has
been mentioned in the notes, in cases of repeat offenders/major operators the DRI-4A may
be sent irrespective of the value. Care should be taken to ensure that the file number remains
the same as shown in the corresponding DRI-4.
b)
Specifically against column-4 relating to brief facts of the case details regarding the firm
involved in the offence, the custom house agent concerned, the clearing agent concerned
should also be given.
DRI-4A
HISTORY SHEET OF PERSONS INVOLVED IN COMMERCIAL FRAUD CASES OF IMPORT/
EXPORT
1.
Commissionerate:
File No.:
Division
2.
3.
4.
5.
a)
Date of Seizure / Detection & Place
b)
Port/Airport/ICD I FPO where the goods were seized /cleared
a)
Full Name:
b)
Alias
a)
Place & date of birth
b)
Father’s / Husband’s name
c)
Address in India including Telephone Numbers
d)
Address abroad, if any
e)
Passport No.
i)
Place & date of issue
ii)
Value up to
f)
Nationality
g)
Profession/Occupation
h)
Business address including Telephone numbers
i)
Driving License No. / Election identity Card No. & Places of issue
Details of Descriptive roll:
a)
Height.........
b)
Complexion
c)
Colour & condition of hair
d)
Colour of eyes
e)
Built
f)
Weight
g)
Visible marks of identification
331
(Photograph in triplicate of be sent, wherever possible along with this report
6.
Details of firm / company involved in the Contravention:
a)
Regd. Office address/Tel. No’s
b) Name, address & Tel.
No’s of Directors / partners of the company
c)
IC Code Number
e)
RBI code Number
d) IT assessment number
(Photographs in triplicate to be sent in cases where the offender has been arrested/convicted
by Court).
7.
Name of the Importer-Exporter firm including LEC No. and designation of the offender
8.
Brief facts of the case, role of individual in the offence, estimated loss of Customs Duty and
Modus Operandi
9.
Previous Offences of the individual & the firm brief details thereof, including particulars of
adjudication & prosecution
10. Associates in offences (name, alias parentage and address are to be given)
11. Whether assessed to Income-Tax and his Permanent Account Number
12. Whether previously detained or ordered to be detained under COFEPOSA Act brief details
thereof
Time, date and place
Signature, name and Designation of the officer
NOTES:i)
This report should be sent within one month of filing DRI-4. This report should be sent in all
appraising cases of import/export where the value of the seizure/estimated loss of duty/
amount involved in the contravention is Rs. 50,00,000/- or above normally. However, in cases
where the alleged offenders involved are major operators or have come to the adverse notice
repeatedly in the past or are person against whom there exists substantial intelligence, DRI4A is to be sent irrespective of the value of the seizure. However, a small note may accompany
giving the background in which the DRI 4A has been sent despite the value of the seizure
being lesser than Rs. 50 lakhs.
ii)
This report should be sent in all cases, where any person in found involved whether the
person is arrested or not. The directions regarding photographs as given below column 5
above should be carefully noted.
DRI-5(INVESTIGATION REPORT)
The DRI-5 seeks to get the details of the case after the filing of a DRI-2 I DRI-4. It may be sent
only in cases where the value of the seizure/evasion of duty is Rs. 50 lakes and above. The idea
is thus to focus on major offences only. Care should be taken to ensure that the file number
remains the same as shown in the corresponding DRI-2/DRI-3/DRI-4/DRI-4A as the case may be.
332
DRI-5(INVESTIGATION REPORT)
Commissionerate:
Division:
File No............................
Unit:
Date.................
Date of seizure / detection of case
: ..................................................................
Value of the seized goods / loss of duty
: ..................................................................
1.
Brief facts of investigation conducted
since submission of DRI-2/DRI-4
2.
:..................................................................
Names of offenders including those
absconding not furnished in DRI-2/
DRI-4 including parentage and address: ..................................................................
3.
Date of issue of Show Cause Notice
: ..................................................................
(copy of SCN to be enclosed)
4.
Date of Gist of Adjudication Order
(Adjudication order to be enclosed).
Time, date and place
Signature, name and Designation of the officer
NOTES:i)
To be sent only in cases where value of seizure/loss of customs duty is Rs. 50,00,000/- or
above, or in all cases wherever a DRI-3/DRI-4A has been sent.
ii)
Separated sheet may be attached wherever necessary.
iii)
The first DRI-5 report should be submitted after three months from the date of seizure
iv)
After the initial DRI-5report, the subsequent DRI-5 reports should be submitted at the time of
issue of show cause notice & issue of adjudication order
DRI-6-(PROSECUTION REPORT)
The DRI-6 is to be sent in cases where the value of seizure/estimated loss of duty is Rs. 50
lakes and above. The 1st report is to be sent after filing of complaint in the Court. All important
developments, which the Commissionerates feel should be brought to the attention of the DRI,
may be communicated through subsequent reports in the same format. The final DRI-6 report
may be sent after pronouncement of the judgment. Care should be taken to ensure that the file
number remains the same as shown in the corresponding DRI-2/DRI-3/DRI-4/DRI-4A as the case
may be.
DRI-6 (PROSECUTION REPORT)
Commissionerate:
Division:
File No..............................................
Date of seizure: ................
Unit:
Date..............................
Value of the seized goods:..................
333
1.
Total no. of persons involved
2.
Total number of persons arrested
3.
Total No. of persons against whom the complaint has been filed (copy of complaint to be
enclosed)
4.
Progress of the case in the court
5.
Names of persons convicted showing the punishment awarded to each (copy of judgment to
be enclosed)
Time, date and place
Signature, name and Designation of the officer
NOTES:i)
Separate sheet may be enclosed wherever necessary.
ii)
This report should be sent to DRI in all cases where the value of seizure/ estimated loss of
Customs duty is Rs. 50,00,000/- and above only or in all cases where DRI-5 has been sent.
a)
Imbed at by after filing the complaint in the court.
b)
As and which there is any important development till the end of court (framing of charges)
proceedings.
c)
Immediately after the announcement of the judgment.
DRI-7 (COFEPOSA-DETENTION REPORT)
The DRI-7 is to be sent in report of all individuals who have been detained under COFPOSA
by either the Central or State Government. This is to be sent as and when a person is detained
under COFEPOSA.
DRI-7 (COFEPOSA DETENTION REPORT)
1.
This report is to be sent to DRI (Hqrs.) addressed to Asstt. Director, upon a detention order
issued by either the Central or State Governments having been served.
2.
Upon service of the order information relating to SL. No. 9 & 10 should be immediately
communicated. Upon release of the Detenu, information relating to SL. No. 11 & 12 should
be immediately communicated.
1.
Name of the formation
2.
File No.
3.
Detaining Authority:
File No.:
4.
Name of the Detenu:
Father’s Name:
5.
Address:
Res.
334
Off.
Contact
6.
Personal Particulars
Age
Date of birth
Passport no.
Date of issue
Issued from
PHOTOGRAPH
7.
Names and addresses of co-accused
1.
2.
3.
8.
OFFENCE IN BRIEF (Include value / quantity / date of seizure as well as duty evasion &
hawala etc. if any; modus operandi; gangs linked with; role of the accused)
9.
Date of service
10. Jail Lodged in
11. Date of Release
12. Ground of Release
PLACE:
(SIGNATURE OF ASSTT. COMMISSIONER)
DATE:
335
Annexure-I
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/11/2003
CORAM
THE HON’BLE MR.JUSTICE R.BALASUBRAMANIAN
W.P.NO.31718 OF 2003
Sha Moolchand Praopchandji Gandhi
..Petitioner
-Vs1.
The Commissioner of Customs
(Airport), Customs House
33, Rajaji Salai, Chennai - 1
2.
The Addl.Commissioner of Customs
(Airport), Anna International Airport
Chennai - 600 027
..Respondents
Prayer: Writ petition under Article 226 of the Constitution of India praying to issue a writ of
mandamus as stated therein.
For Petitioner : Mr.B.Satish Sundar
For Respondents : Mr.J.Madhanagopala Rao, SCGSC :
ORDER
Return of the seized goods is asked for on the ground that a period of six months
have elapsed from the date of seizure of the contraband, when the show cause notice
was served on the petitioner. The following dates are not in dispute:
The seizure was on 23.04.2003; the show cause notice is dated 16.10.2003 and the
petitioner’s case is that, it was served on him on 30.10.2003. Sub section (1) of Section 110 of
the Customs Act enables the proper officer, if he has reason to believe that any goods are liable to
confiscation under the Act, to seize such goods. Under SubSection (2) of Section 110 of the Act,
when any goods are seized under Sub-Section (1) referred to above and no notice in respect
thereof is given under clause (a) of Section 124 of the Customs Act within six months of the
seizure of the goods, the goods shall be returned to the person from whose possession they were
seized. Section 124 of the Customs Act directs issue of a show cause notice before confiscation
of goods. Contending therefore that the show cause notice under section 124 of the Customs
Act has been served on the petitioner beyond the period of six months from the date of seizure of
the goods, the petitioner wants the goods to be returned to him.
2. I applied my mind to the arguments advanced. The date of seizure was on 23.04.2003.
The show cause notice is issued under section 12 4 of the Customs Act. The notice is dated
16.10.2003. Assuming that the show cause notice was served on the petitioner only on 30.10.200
3, can it be said that the show cause notice had been issued beyond the period of six months
from the date of seizure. A careful reading of Sub-Section (2) of Section 110 of the Customs Act
would show that a notice for confiscation as contemplated under section 124 (a) of the Act
should be given within six months from the date of seizure of the goods. In other words, mere
despatch of notice within a period of six months would be sufficient compliance of the requirement
of law as provided for under Sub-Section (2) of Section 110 of the Customs Act.
3. If the argument of the learned counsel for the petitioner that the date of service of such
notice on the person concerned alone should be taken into account to calculate the period of six
months is accepted, then it would end in hazardous results. In my opinion, that cannot be the
336
correct interpretation of Sub-Section (2) of Section 110 of the Customs Act. If the date of service
of notice on the person concerned alone should be the date to be taken into account, then any
person, on whom the notice is attempted to be served, would evade receipt by avoiding and
keeping the notice away from being served on him for a period beyond six months and then he
would put that as a ground in the forefront to claim return of the goods. For such a construction
namely, the date of service of notice on the person concerned should be taken into account in
deciding the period of expiry of six months, I do not find any support from the Statutory provision
itself and referred to above. Learned counsel for the petitioner would rely upon Section 153 of the
Customs Act to contend that the notice must have been served in the first instance personally on
the petitioner and failing such service only, it ought to have been served by registered post. In this
case, notice had been served under registered post. A reading of section 153(a) of the
Customs Act does not show the order of priority in which any order or decision or any
summons or notice issued under the Act, must be served. In my considered opinion, the
mode of service as provided for in Sub-Clause (a) of Section 153 of the Customs Act is in
the alternative. In other words, the serving authority can adopt any one of the modes
prescribed therein. Therefore finding that the notice in this case is shown to have been
sent on 16.10.2003, I hold that there is strict compliance of the requirement of SubSection (a) of section 110 of the Customs Act. Consequently the writ petition stands
dismissed. No costs. W.P.M.P.No.385 05 of 2003 is closed.
337
Section -11
MISCELLANEOUS INSTRUCTIONS
S. NO.
CONTENTS
11.1
Re-constitution of Air Customs Pool
257
11.2
Wearing Uniform by the Staff and Officer posted
at the Airport regarding
261
11.3
Uniform Allowance
262
11.4
Diet allowance to personnel posted at International Airport
262
11.5
Posting/Duties in Shift
262
11.6
Officer of the Month Award
263
11.7
Leaves
263
11.8
Grievance Redressal
263
11.9
Vigilance and Integrity
264
11.10
M.I.S Report of Weekly performance of shift
266
11.11
Incident Register
268
11.12
Entry of Visitors to Customs Area
268
11.13
Airport Security
268
11.14
Sale of Liquor from Duty Free Shop
269
11.15
Disposal of imported fire arms
270
11.16
Leviability of customs duty on fuel and other stores
Consumed on board during extension flights in domestic section
270
11.17
Records Management
271
11.18
User Perception Survey
273
11.19
Traveler’s Charter
275
11.20
Effective Coordination at the Airport among various agencies
275
11.21
R.C. Jain Report on Management of Airports in India
276
339
Section – 11
MISCELLANEOUS INSTRUCTIONS
11.1 Air Customs Pool
I am directed to refer to Board various instructions/guidelines as mentioned in
F.No. 34(7)61-Ad.IV
Dt. 25.5.1993
F.No. 6/37/68-Ad.IV
Dt. 22.2.1975
F.No. A-11013/C/34/72-Ad..IV
Dt. 22.2.1975
F.No. A-1101911/85-Ad..IV
Dt. 31.1.1975
F.No. A-1101911/85-Ad..IV(II)
Dt. 1.2..1985
F.No. A-11019/13/91-Ad..IV
Dt.11.3.1991
The left ………… on the above subject and to say
that the Air pool policy has been under the
review of the Government for sometime.
Keeping in view the original objective behind
the creation of Air pool and various administrative
considerations in the matter of clearance of
passenger baggage/air cargo, the
government have now decided upon the
following modifications to the existing policy
guidelines
Constitution of the Air Pool
The Air pool would include (i) Inspectors and Superintendents of Central Excise and (ii)
Preventive Officers and Superintendents of Customs. All other cadres are excluded.
Distribution of posts included in the Air pool 75% to be filled from the officers of the controlling
Collect orates – Central Excise or Customs as the case may be- and 25% from other (outside)
Custom Houses /Central Excise Collect orates. This distribution will be applicable uniformly to
both Group C and Group B cadres, included in the Air pool.
The distribution of posts (a) between controlling Collect orates and outside collect orates (b)
between customs houses against 25% quota posts for IGI, New Delhi and Trivandrum airports and
(c) between Central Excise Commissionerates against 25% quota posts for airports at Bombay,
Calcutta and madras will be as shown in the worksheets Annexure I-III.
Method of Selection
Selection of officers for the air pool would be made for each cadre to the extent of quota
available in each airport from
Among the Zone of senior officers (five times number of posts ………to each Central Excise
Collectorate /Cadre);
On the basis of CCRs;
On the basis of their positive integrity; and
On the basis of the interview (as was being done prior to 1991) by a committee consisting of
the Chief Commissioner of the cadre, from which the officers are to be selected and the Chief
Commissioner in charge of the particular airport and DGRI.
Tenure
(i) Air Customs Superintendents (ACS’) Air Customs Officers (ACOs) selected from outside
341
Commissionerates for air pool posting will have two year tenure (ii) officers from the controlling
Commissionerates will have a tenure of one year only by way of rotation.
The tenure of Assistant Commissioner at Airports will be for two years only. Junior Time Scale
Officers (Direct Recruit) will not be eligible for posting at Airports
Unutilized quota
In the eventuality of some posts falling into the quota of one Commissionerate cannot
be filled up due to non-suitability/non-availability/non-selection of officers from that
Commissionerates, those posts can be filled up from officers of having very small Commissionerate
quotas, or other participating cadres, subject to the same selection process.
2.
Earlier instructions / guidelines, therefore, stand modified to the extent as mentioned
above.
3.
the above air customs policy will come in to force with immediate effect.
4.
Receipt of this letter may please be acknowledged.
F.No. A-11019/102/91-Ad. IV dated 21.10.1993
Annexure -1
POSTS SANCTIONED FOR INTERNATIONAL AIRPORTS IN THE AIR POOL (CUSTOMS)
Int. Airport
Total number of posts
sanctioned
Posts allotted for
jurisdictional collect
orate (75%)
Posts allotted for
outside collect orate
(25%)
ACS
ACO
ACS
ACO
ACS
ACO
Bombay
125
543
94
387
31
136
Calcutta
9
60
7
45
2
15
Madras
19
80
14
60
5
20
IGI, Delhi
93
330
70
247
23
83
Trivandrum
13
52
10
39
3
13
Total
259
1065
195
778
64
267
342
F.No. A-11019/102/91-Ad. IV dated 21.10.1993
Annexure -11
Name of Custom
Houses
Supdt.
S.S %
Prev.
officer
IGI Delhi Airport
Trivandrum
Airport
ACS
ACO
ACS
ACO
Bombay
Goa
Nhava Sheva
218
58
142
61
13
48
2
8
Calcutta
72
19
437
18
5
19
1
3
Cochin
20
5
110
5
1
4
-
1
MadrasVizag
68
18
366
10
4
12
-
1
Total
378
100
2342
100
23
83
3
13
343
F.No. A-11019/102/91-Ad. IV dated 21.10.1993
Annexure -111
DISTRUBUTION OF POSTS SANCTIONED FOR INTERNATIONAL AIRPPRT AMONG CENTRAL
EXCISE COLLECTORATE
Name if the
CE
Collectorate
Supdt.
S.S %
Inspector
S.S %
Bombay
Airport Airport
ACS ACO
Madras
Airport
ACS ACO
PC DELHI
CCE DELHI
JAIPUR
CHANDIGARH
288
118
172
7
3
4
ACS ACO
1282 7
520
3
889
4
2
10
1
5
1
1
1
1
1
1
PC KANPUR
ALLAHABAD
KANPUR
332
8
1561 8
3
11
1
2
1
MEERUT
PATNA
JAMSHEDPUR
CCEP PATNA
140
3
641
4
1
5
1
-
PC VADODARA
AVADODARA
SURAT
RAJKOT
KANDLA
AHMEDABAD
CCP
AHMEDABAD
INDORE
RAIPUR
NAGPUR
436
10
195
3
2
14
7
2
2
2
1
7
4
Calcutta
5
(Authority : MFDR letter issued vide F. No.A- 11019/102/91-Ad.IV dated 21st October, 1993)
Sub:- Air pool policy – clarification regarding tenure
Please refer to Board’s Guidelines contained in letter F. No. A-11019/102/91-IV dated 21. 10.
93 on the Air Customs policy. Following modification/fresh guidelines are being issued.
Modifications/Fresh Guidelines on tenure and method of selection of officers drawn from
controlling Commissionerates of Central Excise and Customs as the case may be.
Selection of officers from the local commissionerates: Selection of officers from the controlling
commissionerates for the Air pool would be made on the basis of: a) CCRs, b) positive integrity,
c)on the basis of interview to be conducted by a committee consisting of Chief Commissioner of
the cadre from which the officer are being drawn and concerned cadre controlling Commissioner
and the commissioner in charge of the airport, where there is a separate commissioner for the
airport.
As regards selection of officers from outside the controlling commissionerates the existing
method shall continue to be followed.
344
Tenure: Air Customs Supdt./Air Customs Officers drawn from controlling Commissionerate
will have tenure of 2 year. This tenure of 2 year shall not be applicable to those officers who have
been selected and posted at the airports in accordance with the existing procedure. In other words,
the revised tenure of 2 year shall be applicable in respect of the officers selected and posted at the
airports in the manner sated at I) above.
Separation of Air Intelligence Unit from Air pool – fresh guidelines thereon.
The question of separation of Air Intelligence units (AIU) from Air pool has been under
examination and consideration by the Board for some time. As per the existing practice Air
Intelligence Units are functioning as part of Air pool and Air Customs Officers/Air Customs Supdts.
are rotated from baggage duties to AIU etc. Frequent changes of officers at short interval from AIU
have not been found to be conducive to effective functioning of the Air Intelligence Unit. Accordingly,
Board has decided that AIU will function separately form Air pools. In other words, AIU, at airports
will no longer remain part of the Air pool. Its functioning will be independent and there will be not
rotation of officers from AIU to Air Pools or vice versa.
2. Control of AIUs- Control of AIUs shall be vested with concerned Commissioner under whose
control the Air pool comes – Commissioner of Custom or Commissioner of Central Excise – as
the case may be.
3. Tenure of Officers at AIU – Tenure of officers to be posted at AIU will be 2 year and such
officers will be exclusively for Air Intelligence work during their tenure with AIU.
4. Strength etc. of AIU – Since AIU is currently a part of Air pool, there may not be separate
sanction for Air Intelligence Units. Each controlling Commissioner will determine the number of
posts that they would like to utilize for the Air Intelligence Unit for the Airport concerned and
accordingly that number of posts will stand separated from strength of Air pool.
5. Manning of AIU – Since posts to be utilized for Air Intelligence Unit are being drawn from within
the sanctioned strength of Air Pools, the distribution of posts to be utilized for AIU will be in the
same proportion, ie., 75% & 25% on the strength of AIU will be manned by officer from the outside
commissionerates. Basic principle as laid down in the main Air pool Policy (No. A-11019–Ad.IV
dated 21.10.1993) with reference to distribution between controlling commissionerates and outside
commissionerates will also be applicable for manning Air Intelligence Unit.
6. Selection etc. for Officers of AIU – Criteria for eligibility/selection will be same as enumerated
in Air pool policy guidelines (F. No. A-11019/102/91-Ad.IV dated 21.10.1993).
7. Cooling off period – “Cooling off” condition will be not be applicable for officers posted in the
AIU for the purpose of their selection for the Air pool.
8. However, the officers presently service in AIU as per rotation practice shall continue to be part
of Air pool. The separation from Air pool will apply to future inductees to AIU.
9.
Officer posted at AIU will be entitled to same allowances as are admissible to Air pool Officers.
III.
Tenure etc. for Public relations Officers/Protocol Officers at Airports.
It has also been decided that Protocol/Public Relation Officers at Airports should not be rotated
too frequently and there should be a reasonable tenure for them.
All other existing norms/guidelines as contained in the Air Pool Policy will remain the same.
Modified/ amended provisions except to the extent specified at I(iii) above, (Authority: F. No. A11019/102/01-Ad.IV dated 17.05.95).
Please refer to Board’s guidelines contained in our letter No. 11019/102/91-Ad. IV dated 17.7.95
on Air pool policy.
345
2. In modification to Para I (iii) regarding tenure of Air Customs Supdts./Air Customs Officers
drawn from the controlling commissionerates, it has since been decided that 2 year tenure shall
be uniformly applicable to all the officers posed to Air pools under the earlier order and serving at
present. However, if some officers stand reverted, they need not be recalled to extend the benefit
of extended tenure.
3.
Please acknowledge.
(Authority: MFDR letter issued vide F. No. A-11019/102/Ad.IV dated 31.8.95)
11.2 Wearing Uniform by the Staff and Officers posted at the Airport regarding.
The Parliamentary Standing Committee on Transport & Tourism in their Fortieth Report
presented to Rajya Sabha have made certain suggestion in regard to wearing of uniforms by the
officers at the Airports. An extract of the Report is enclosed for perusal. The Committee has
recommended that in respect of identity badges, the names of the official should be embroidered
in big letters on the uniform itself and the identity cards should be displayed on the uniform.
2. The matter has been examined by the Board and it has been deiced to accept the
recommendations of the Parliamentary Standing Committee. Therefore, suitable instructions may
kindly be issued to all concerned to ensure that all officers and staffs of Customs posted at the
Airports (except for Preventive/Air Intelligence Unit staff) must wear the stipulated uniform.
3. The name of the officer may also be embroidered in big letters on the uniform and the officials
may be directed to display their identity cards on their uniform at all time.
11.3 Uniform Allowance
The revision of existing rates of Uniform Allowance to Gazetted and Non-Gazetted executive
staff of Customs, Central Excise and Narcotics, Departments including Air pool Staff who are
required to wear uniform on duty and are in receipt of Uniform Allowance has been enhanced as
under in terms of Board’s letter F. No. A.26017/22/2008-Ad.II(A)(pt) dated 28.9.2010
Initial Equipment
Allowance
Annual
Replacement Allowance
Summer areas
Rs. 3,000/-
Rs.2,000/-
Summer-cum-Winter areas
Rs. 4,000/-
Rs. 2500/-
11.4 Diet allowance to personnel posted at International Airport
The current rate of diet allowance payable to all the Officers posted at the airport is
Rs.400/The daily allocation of duties to the ACSs and ACOs should henceforth be done personally be
DC (Shift).
I find that the Sepoys and Havaldars in many shifts stand at the gate and personally divert
passengers for x-ray examination. There cannot be a more serious misconduct in the treatment of
passengers. Henceforth only on sepoy, that too when there is rush, be posited at gate only to
collect OD cards with strict instructions not to interact with any passenger or to divert passenger
for x-ray. Becides the DC(Shift), it will be the direct responsibility of the Gate Officers of the shift
and of the Preventive to ensure that no unauthorized staff is present at the gate. Failure to enforce
this discipline will reflect adversely.
346
11.6
Officer of the Month Award
In order to encourage officers to achieve excellence in different facets of working at IGI Airport
it has been decided to institute an award for. “Officer of the month” for the officers at the level of
Group B, C and D. The Officers so adjudge will be award a certificated of recognition and as far as
possible exempted from mandatory one cell duty out of two required normally.
The name of the Officers along with his photograph will be displayed a suitable place in the
Airport.
All the Deputy Commissioner/ Assistant Commissioners are requested to send
recommendations for the above award by last working day or each month to Deputy Commissioner
(Admn.).
The first of these award will be conferred on 31st January i.e. on the conclusion of the
courtesy week.
(Authority: Office Order No 18/2001 dated 17.01.2001 issued vide C.NO VIII (AirCus)48/Tech./
6/2001/ )
11.7 Leaves
I have seen indiscriminate a ailment and sanction of both casual leave and earned leave, by
the staff at various levels. Earned leave applications have not been sent to AO for processing and
recording in respective service book. Needless to say subsequent explanation of having taken
such assumed earned leave is without any authority and sanction.
Henceforth all earned leave applications of non-gazetted staff will be sanctioned by D.C.
(Administration) on the basis of recommendation by the concerned supervising Deputy
Commissioner. Sanction of earned leave to the Gazetted Officer will be made after my approval.
Casual leaves will be sanctioned by concerned Deputy Commissioner for all staff up to
Group ‘B’ and by me for me for Group ‘A’ all past applications may be regularized immediately after
entering in the respective service book.
(Autority: Oficer Order dated /5/2001 issued vide C.NO Misc/IGIA/2000/Pt)
11.8 Grievance Redressal
Grievances can primarily be divided into three categories:
Complaints of corrupt practices against officers.
Delay in decision making by officers.
Grievances against merits of the decision taken by officers.
For dealing with complaints against corrupt practices by officers, the department has a
separate vigilance organization headed by the Directorate General of Vigilance. Any complaint of
corruption against the officer can be logged with the D.G. Vigilance at New Delhi or the Zonal units
of the Directorate of Vigilance.
Similarly, for redressed of grievances against the merits of decision taken by any officers, the
law itself provides for remedial measures in the form of appeals, revisions etc. to the departmental
officers or to the tribunal as the case may be. An order passed by the officer contains a preamble
indicating the authority to whom the appeal can be made and the procedure thereof. For the derails
of the mechanism for appeals, revisions the relevant provision in the Customs and Exercise law
may be referred.
347
System of Grievance Redressal at Airport
The Citizen’s Charter of the Department envisions that the Customs & Central Exercise
officers shall carry out their assigned tasks with integrity and judiciousness; courtesy and
understanding; objectivity and transparency; promptness and efficiency. The officers are also
committed to providing every possible assistance to the public and trade in implementation fo the
Customs policies and procedures. The Customs department has also initiated a number of
measures to unsure that complaint(s) grievance(s) are minimized and where received these are
attended to promptly.
Passenger Facilitation/grievance redressal mechanism:
More then 90% of the passengers walk through the green channel if they have nothing to
declare. The officers of Customs have been sensitized to show due courtesy and exemplary
conduct especially towards the elderly, illiterate passengers. However, in case the passenger still
has a grievance there are a number of illuminated boards installed by Customs in the arrival/
departure halls and in the immigration areas suggesting that they may approach the PRO (Customs)
for help.
Senior officers of the rank of Assistant Commissioner/Deputy commissioner of Customs are
available round the clock and passenger can directly approach them for redressal of their grievances.
Complaints may be made to the Commissioner (Telephone No. 25652970, Fax No. 25652547)
and/or the Chief Commissioner (Telephone No. 25654160, Fax No. 25655392) or now at
[email protected].
It has also been displayed that for any vigilance angle grievance the passenger can lodge the
complaint with the Commissioner of Customs or the CVC.
The Airport facilitation committee has also been constituted to look into the complaints of the
passengers arriving at the airport. The committee meets once in a month and has members form
various agencies working at the airport like IAAI, customs, Immigration, and Police etc.
11.9 Vigilance and Integrity
In view of the enhanced public perception of corruption in the customs department and an
alarming spurt in vigilance cases involving officers and staff of customs and central excise, stringent
measures have been taken to curb corrupt practices from eroding organizational culture.
The central board of excise and customs has reviewed the situation and the following
instructions have been conveyed to all concerned for immediate implementation and reporting
compliance thereof:Commissioners shall ensure that officers of all ranks working in sensitive areas give a daily
declaration of Rs. 5000/- before they enter the sensitive areas like airport arrival and departure
halls, docks or any other premises considered sensitive by the commissioner. A proper computer
aided system should be worked out to facilitate the declarations, and until then, the concerned
officer shall make a declaration under their dated signatures in a register while entering the work
premises. The register should be kept in safe custody by the officer nominated by the commissioner.
The central Intelligence unit and Vigilance Unit should organize surveillance and collection of
intelligence with regard to corrupt practices of facilitating extorting, or accepting and giving of
bribes. They will carry out surprise checks including personal search at the sensitive work places
in cooperation with CBI including arranging traps, where necessary.
Movement of unauthorized/unscrupulous persons in work places of in customs areas declared
sensitive by the commissioner should be checked by enforcing the system of Identity cards and
visitors passes.
348
Commissioners shall review the existing system of ensuing punctuality in office attendance
through respective heads of section/ branches and reinforce it with personal example and with the
help of electronic devices for effective monitoring with a view to bring about qualitative improvement
in public perception of a new work culture .
Chief Commissioner shall review the existing system of ensuing punctuality in office attendance
through respective heads of sections/ Branches and reinforce it with personal example and with
the help of electronic devise for effective monitoring, with a view to bring about qualitative
improvement in public perception of the new work culture.
Chief Commissioners shall review the existing guidelines for transfer and posting of executive
and Ministerial officers in the offices under them, in consultation with Staff associations, give it
wide publicity and adhere to it with transparency. A copy of the instructions./ circulars on the subject
should be endorsed to the Board/ D.G (vig); Inputs relating to performance of officers in relation to
integrity and efficiency should be computerized as they come to notice during meetings with
importers, exporters, CHAs, and other members of public as well as through CIU/Vigilance staff,
to serve as tools of decision making with objectivity.
Commissioners/Additional/ Deputy commissioners should improve supervisory effectiveness,
by personally checking how long documents like Bills of Entry/ Shipping Bills remain pending
beyond prescribed norms, and for this purpose take round of the desks of officers, particularly in
the appraising or other sensitive branches
The Chief Commissioner will substantially augment the administrative machinery for time
bound completion of disciplinary proceedings so as to adhere strictly to the time limit prescribed
by C.V.C. for completion of disciplinary proceedings starting from registration of complaint; through
investigations to the imposition of penalty. The augmentation will be done through redeployment of
Air Pool Officers; in terms of numbers rendered surplus due to enhancement of the baggage
allowance.
The Chief Commissioners/Commissioners will ensure that official records/documents, which
are required to be transmitted through the departmental channels and kept in official custody, are
not allowed to be handled by any representative of the trade.
Commissioners should regularly organize seminars, discussions and presentations on
customs laws and procedures and also .P.C. Act and conduct rules, and instructions issued by
C.V.C for officers.
A comprehensive in line electronic system viz, the Vigilance Alert System (VAS), has already
been launched for receiving complaints grievances of public and for initiating, on the internet and
further on-line follow up action such as inquiries through appropriate officers and providing on-line
feed back to the complainant on the internet. Chief commissioner/ commissioner shall ensure that
the required infrastructure is in place for implanting the same, in consultation with the DG(Vig.)/
Member(P&V). Member (P&V). The VAS should be given due publicity through trade notices.
A list of public grievance offices, the designated officers, their telephone numbers and postal
address should be prepared and displayed in the sensitive areas pf work.
Chief Commissioners shall also constitute a team of senior officers to study on going modus
operandi of corrupt practices in functional areas and suggest ways to check the same.
The Central Board of Excise & Customs has introduced a bold new action plan to combat
corruption. The salient features of the plan are given below:
Pending disciplinary cases/ vigilance inquiries may be speeded up a time bound manner so
that the guilty are punished expeditiously. Simultaneously , it should be ensured that the honest
349
and the innocent officers are properly protected against any harm while dutifully and vigilantly
performing their tasks.
The work relating to installation of CCTV at all major International Airports may be completed
at the earliest.
Bearing of name badges by all officers/ staff having public dealing may be made mandatory
and this should be enforced strictly.
All documents pertaining to customs such as Baggage Receipts, Detention receipts,
Adjudication orders, Bills of Entry , shipping Billing etc. should bear rubber stamp below the signature
of officer/ staff.
(Authority :Director General Vigilance letter No. V-500/100/2000/3777 Dt 11/10/2001)
11.10 M.I.S Report of weekly performance of shift
The daily report submitted by the shift had now been replaced by the enclosed weekly report.
This report should be submitted for the period ending on the last working day of the shift preceding
7th , 15th, 22nd and the end of the month.
The daily report may henceforth be discontinued. You may personally take car that during the
time of transition the figures of revenue are properly reflected, in particular, no errors creep into the
figures of revenue for the month and up to the year.
DC (Shifts)may, however keep me informed orally or in writing, as appropriate, about and
major daily developments.
(Authority : D.O.C, letter No. Misc / ADC/IGIA/2/2001 date 1.8.6.2001)
WEEKLY REPORT OF SHIFT (BAGGAGE)
SHIFT_________________
Dated____________
REVENUE (including RF & PP): Rs. in lakes)
S.No. Description
1
Courier
2
Gold & Silver
3
Other Baggage
4
Day Warehouse
For the week
Month to date
Year to date
TOTAL
B ARRIVAL TRAFIC AD REVENUE ANALYSIS
S. No.
No. of Pax
1
Gulf (including (ET)
2
Western Europe, USA & Canada
3
CIS (Including Moscow)
4
South East Asian & East Asia
5
Neighboring countries
6
Domestic Sector
7
Others, if any
Total
350
Revenue (Rs. in lakhs)
S. No.
No. of Pax
1
Gulf (including (ET)
2
Western Europe, USA & Canada
3
CIS (Including Moscow)
4
South East Asian & East Asia
5
Neighboring countries
6
Domestic Sector
7
Others, if any
Total
D.
PERCENTAGE OF PAX:-
S.No.
Gulf
flights
1
Walking through Green channel
2
Red Channel with –dutiable baggage
3
With dutiable baggage
E.
Other
sensitive
flights
Nonsensitive
flights
Aggregate
PARTICULARS OF UNAUTHORIZED ABSENTEE OFFICERS:
S. No.
Name of Designation
No. of days of absence
Action taken
F. ANALYSIS OF SHORT VISITORS NOTICED
S. NO
Name of
the Pax
No. of
visits in
last one year
Duration
stay of
the last visit
1
2
3
4
351
Value of
goods (Rs.)
Results of
Adjudication
G.
CASES OF OTHER DIVERSIOUNS/MISDECLARATIONS
S.No.
Name
Nationality
Value of Goods
Results of Adjudications
1
2
3
4
5
H General observations, if any
ACS(Admn.)
DC (Shift)
11.11 Incident Register
DC (Admn) may start an incident register, common for all the shifts, which may be kept in the
drawer of the table of DC (Shift)’s room, for recording any major happening. This register should
be made liberal use of by the shift in charge for recording incidences such as rude behavior of any
passenger leading to unpleasant exchange with a Custom Officer, Unpleasant exchange with any
departmental or any other Government officer, lapse in the execution of any important protocol,
complaints on any matter from any passenger or agency operating at the Airport, anonymous call
giving factual information
About the possibility of smuggling by any passenger or vigilance matters or any other important
matter. The register should be placed before the additional commissioner at the earliest whenever
any such incident is recorded. A copy of the order shall be pasted at the beginning of the register.
(Authority: Office Memorandum date 8.1.2001 issued vide C.NO:Misc/IGIA/2000/Pt)
11.12 Entry of visitors to Customs Area
To regulate entry of visitors to the Customs Arrival Hall register with the following columns
may be started with immediate effect.
SI. No.
Name of the Visitor
Authority for Entry (PIC/Temporary Pass No.)
Status / Designation
Purpose of Entry
Signature
The register will be common for all the shifts.
(Authority: OFFICE ORDER NO. 205/2001 Dated: 17th sep. 2001C.No. Misc/1/IGIA/2000/Pt).
11.13 Airport Security
Enclosed us a copy of the instructions issued by the Deputy Commissioner (Police) for the
free entry or exit form any of the gates of the international airport
352
The copies of these instructions may be used by the staff whenever they are obstructed by
any of the police officials at any point of time.
I have separately brought to the notice of Deputy commissioner (Police ) that in view of the
entire airport, comprising the terminal-I as well, being notified as the customs area under section
7 of the customs Act, the instructions would apply at both the terminals.
(Authority: Office Order dated 24.8.01 issued vide C.No. Misc/1/IGIA/2000/Pt)
In view of the increased perception of security threat, steps have been taken by the airlines
and the security agencies to tighten the arrangements.
Complaints have been received about the angry outburst of our officers when they have been
asked to comply with the security requirements e.g. production of PIC cards. you may kindly hold
a meeting of your staff and emphasize to cooperated in this area.(Authority: Office Order dated:29th Oct., 2001 issued vide C.NO. Misc/I/IGIA/2000/Pt).
11.14 Sale of Liquor from Duty Free Shop
The present checks being carried out at the Duty Free shop in terms of Customs letter C.No.
VIII(Air-Cus) shift-C/2001 dated 3.5.2001 stands modified as follows:
All sales from Duty Free Shops shall be made only after recording the details of passport and
obtaining signature of the passenger both on the arrival and departure side.
The seat numbers of the departing passengers who have purchased three or more bottles
shall be noted by the Duty Free Shop and given to Customs without delay as and when requested.
The Duty Free Shops shall display prominently the customs law/regulations relating to duty
free allowances, particularly in respect of alcoholic liquor so that the passenger is aware that the
purchases of liquor in excess of his duty free entitlement shall attract customs duties ranging from
60% or as the case may be.
Thus the information in respect of departing passengers shall be given by the Duty Free shop
staff to Customs as and when requested b customs. On the arrival side the obligation of informing
the customs in respect of dutiable liquor shall seize forthwith subject to above requirement being
followed.
This Circular shall come into effect from the day duty of 20.11.2001. The Deputy
Commissioners (Shift) will ensure that the ITDC is complying with the revised conditions.
(Authority: Office Order No. 254/2001Dated:-19th Nov., 2001 issued vide C.NO. Misc/I/IGIA/
2000/Pt).
Office Order No.254/2001dated 19th Nov. 2001 had been issued revising the procedure for
checking the sale of liquor from the duty free shops at the IGI Airport.
All Deputy Commissioners (Shift) may alert their staff to be vigilant about the unauthorized
sale of liquor for domestic consumption from the Departure and the possibility of evading duty on
excess liquor in Arrival.
Surprise checks may be carried out from time to time about the sale of liquor to authorized
passengers only. Cases of deviations may be viewed strictly, particularly where the involvement of
the Duty Free Shop Staff is noticed. Such cases should invariably be reported to the Additional
Commissioner for suitable action under the Customs Act. and/or intimation to the concerned
Organization.
(Authority: Office Order No. 255/2001Dated:-19th Nov., 2001 issued vide C.NO. Misc/I/IGIA/
2000/Pt).
353
11.15 Disposal of imported firearms
The undersigned is directed to refer to the Ministry’s letter F.No. 497/57/87-CUS.VI date 5.1.88
on the above subject, wherein it was clarified that fire arms allowed to be imported into India shall
not be transferred to any other person during the lifetime of the importer for consideration or otherwise.
recently, a request was received in the Department form a passenger(Who had earlier been allowed
in 1990 afire arm import on appropriate duty) to be allowed to dispose off the fire arms he had
become old and sick and wanted to spend money received form sale of fire arm for maintaining his
health/cost of living /On refusal of this request of this request the matter was taken by him to Delhi
High Court where the policy of the Government on disposal of firearms during the lifetime or later
came up for review. The Government was asked by this Hon’ble Court to clarify its disposal policy
especially after the demise of the persons if the firearm was not permitted to be disposed off
during especially after the demise of the firearm owner. The Ministry of Home Affairs who were
consulted had clarified and this was brought to notice of the Hon’ble Court that disposal of the fire
arms after the disposable of the person may be allowed in the following manner:
By transfer to the legal heirs; and
By sale of arm by the legal heir to a license holder or arms dealer.
The Hon’ble Court had taken note of the Government’s policy clarification and rejected the
request for disposal/transfer to fire arm to any other person as made by the petitioner.
You are, requested to bring the above position to the notice of all concerned. No. disposal of
customs cleared firearms is permitted during the lifetime of the owner, nut after the demise of the
person concerned, the disposal/ transfer be permitted as per above-mentioned latest clarification
of Home Ministry.
(Authority: Circular No. 30/2001-CUS .Dated:-19th Nov., 2001 issued vide F.NO.496/4/
99Cus.VI).
11.16 Leviability of customs duty on fuel and other stores consumed on board during
extension flight in domestic sector.
A reference has been received from the Ministry of Civil Aviation requesting the Board to allow
duty free supply of fuel and stores to domestic extension flights of Air India, which ply between two
airports in India carrying international as well as domestic passengers. Such extension flights are
presently operating between Mumbai and Ahmedabad/Hyderabad/Goa/ Calicut etc. The Ministry of
Civil Aviation had requested that such extension flights should be treated as foreign going aircrafts,
as these carry international passengers from an international airport in India. Most of the passengers
on such extension flights are stated to be either in bound or outbound to international destinations.
These flights allow passengers to travel between an international destination and an Indian such
as Ahmedabad/Hyderabad/Goa /Calicut etc. on a single flight coupon.
The matter has been examined. It is seen that these extension flights ply between two Indian
airports without a trip to a foreign airport on their voyage. They are assigned different flight numbers
and IGM/EGM No. per voyage, and ferry passenger within the territory of India only , Further, these
flights are stated to have no co-relation of any sort with the flights, which have arrived from or are
bound to a foreign porr at the point of loading or off-loading. It had, therefore, been felt that the
extension flights operating between two Indian airports cannot be considered as foreign going
aircraft, as section 2(21) of the Customs Act 1962 defines ‘foreign going aircraft’ as an aircraft for
the time being engaged in the carriage of passengers between an airport in India and any airport
outside India whether touching any intermediate Airport in India. The domestic extension flights
cannot be considered similar to flights, which operate between an airport in Indian and an airport
abroad, touching one or more Indian airports in between, Section 87 of the Customs Act. 1962
allows imported stores to be consumed without payment of duty in a foreign going aircraft. It has
354
therefore, been decided that the extension flights operated by Air India between Mumbai and other
airports or between two airport in India would not be entitled to duty free supply of fuel and other
stores
These instructions may be brought to the notice of all concerned by way of issuance of
suitable Public Notice/ Standing Order.
Difficulties, if any, in implementation of these instructions, may be brought to the notice of the
Board. Kindly acknowledge receipt of this Circular.
(Authority: Circular No. 65/2001-CUS .Dated:-19th Nov., 2001 issued vide F.NO.446/18/
99Cus.VI).
11.17 Records Management
Proper management of records is integral to the efficient functioning of any organization,
particularly at a place like the Airport, which handles an extremely. Large number of transactions
and where due to frequent rotation of the staff it is difficult to carry out accountability –base checks
and retrieve desired information expeditiously.
The matter has been reviewed by me and it has been decided to introduce the following
system for strict implementation.
1 one UDC (designated as the record Keeper) will issue the new books as follows:
Each ACS will be issued 2BR and 1DR books.
Each ACS (Admn) will in additional to books issued to him in personal capacity as per (i)
above be issued 2 TRs, 4 spot AOs, 4 export certificates, 4 currency declaration, 6 gate passes
for clearance of mishandled baggage and nay other books in such quantity as may last a period of
about one month.
ACS (Warehouse ) will be separately issued sufficient other books such as spot AO, Gate
passes in addition to BR and DR book for his purpose.
Each officer to whom the above books have been issued will take care to keep sufficient
stock available at all times. He will anticipate his requirement and get the books issued from the
record keeper may not be available.
Replenishment in place of used books will be provided by the record keeper strictly against
surrendering the exhausted books and only to the extent the books are deposited. Any exception
will be made with the approval of DC(Admn).
No officer would be relieved from the airport and his LPC sent unless he had obtained a
clearance certificate from the record keeper that there are no outstanding books against his name.
Before being relieved the officer concerned would record on the last unused page of the
concerned books that the has completed his posting at the airport. As far as possible such books
should not be re-issued to anybody except when it is felt that the book had not been sufficiently
used in which case it can be re-issued to a new officer, clearly recording in the register the number
of pages already used.
The record keeper will ensure that books are issued in the chronological order of their serial
number. He would also ensure from time to time that the concerned officers to whom such books
have been issued are depositing the used books from time to time. Any major gap would be
brought to the notice of DC (Admn.) who will carry out enquiries as to the grounds of non-depositing.
Each ACS (Admn.) will hand over all the books issued to him immediately after the quarterly
rotation to the next ACS(Admn.) against an acknowledgement, which he will ensure is also recorded
355
in the respective register for the issued of books with record keeper. The record keeper will also
ensure that after every quarterly rotation of ACS, the handing over reports are received by him
within 7 days failing which he should report the matter to DC(Admn.)
One ACO in the Technical Section will be designated as ACO (Records) and will maintain
record of clearance documents i.e. OD Cards, PIR report, DRs.
It shall be the responsibility of the gate officer of each shift to collect the OD cards, the flight
manifest and other relevant papers in respect of each flighty keep them in the pre-printed packets
and write the particulars on the concerned packets. He will take care to deposit all such records
collected at the gate flight-wise during his day duty with the ACO(Records)
Any shortage in the number of OD cards due to the possibility of any passenger having
slipped without handing over of the OD cards will be written on the concerned packet. The difference
between the number of passengers manifested and the number of OD cards collected would be
clearly written on each packet. ACS (Admn) of each shift and the DC/AC Shift would ensure that
such differences are not substantial and as far as possible eliminated completely at the earliest. In
the case of flight arriving from pax from CIS countries special care will be taken by gate officer and
the number of OD cards should invariably tally with the number of pax manifested.
If a flight is cleared in more than one shift, the OD cards will be kept in two separate envelopes.
The gate officers of concerned shifts would on their XIV- 23 respective envelopes make a mention
of this fact and as far as possible staple the two envelops tighter before depositing with
ACO(Records)
All records generated at counter No. 1 meant for the clearance of mishandled baggage in
terms of PIR stapled together with the written declaration prescribed by office order No. 3/2001
dated 7.2.2001 will be deposited by the Supdt. manning the counter at the first day duty on a
normal working day in a separately pre-printed packet meant for clearance .[DC (Admn.) to make
such packet available]
Each ACS (warehouse) will ensure that the record of clearance form the warehouse against
detention receipt is similarly deposited in separate packet for each duty on the next day with the
ACO (records)
Senior most appraiser in charge of courier would ensure that all prior bill of entries and nay
other record is similarly handed over to the ACO (Records) on a daily basis
The ACO(Records) will place the ID cards, the B.Rs. the DRs in three separate carton boxes
and place his paper his paper seal with dated signatures on each carton. The period for which the
documents in each of the boxes are contained will be written on each carton for easy retrieval .
All officers to whom any other books have been issued or who are required to maintain any
register would ensure that fully exhausted books should be deposited with the record keeper as
soon as they are completely used. Books should not continue to lie with them without any purpose,
particularly when they have been transferred to the Preventive or a Cell where they may not need
the books issued.
All registers opened for whatever purpose at the Airport would have a number issued by the
record keeper, each page will be serially numbered and the number of pages recorded on the first
last page of the register. A copy of the office order leading to the opening of the register shall be
pasted in the beginning of the register itself. The register will be authenticated by the ACS In
charge e.g. ACS(Admn), Supdt.(P-I/II) as the case may be. Practice of having unauthenticated
register should immediately stop.
356
All DCs will ensure that these instructions are being complied strictly. Till the system is able to
run smoothly the DC/AC (shift)/ Preventive will pay special attention to streamline the system.
DC (Admn) will take necessary steps for issuing instructions to ACO (Records),Record keeper
in the maintenance of appropriate register for the issue and deposit of books and other records
and also for printing of necessary envelops/packets wherever other record required to be preserved.
Any difficulties in the implementation of this order may be brought to the notice of the
undersigned .
(Authority: Office Order 39/2001 .Dated:-15th .1., 2001 issued vide C.NO Misc Misc/I/IGIA/
2000/Pt)).
11.18 User Perception Survey.
In order to get feedback on the performance of the officers of the customs, a survey named
user Perception Survey will be carried out w.e.f. 25.07.2001. A simple questionnaire has been
prepared, which will be filled in by the passengers in the following manner:10% of the passengers reporting at Mishandled Baggage Counter will fill in the form. 50 forms
in the night shift and 20 forms in the day shift should be filled in compulsorily by the pax. Form
Monday to Friday the frequency will be 50 forms per day in night shift. On Saturday and Sunday , it
will be 78 forms per day in night shift. All flights should be covered. The filled in forms should be
kept in the box and SDO(A) of each shift will coordinate. These will be reviewed by the DC(Admn.).
All efforts should be made to make this survey successful, representative and unbiased.
USER PERCEPTION SURVEY OF IGIA CUSTOMS
This is a survey of travelers who have gone through customs on Arrival at IGI Airport, New
Delhi.
The results of this survey will be used to improve the quality of service rendered by IGIA
Customs.
Please tick any one option. Write N.A when not applicable.
Which channel did you choose while clearing your baggage?
(a) Red Chnnel
(b) Green Channel
For Red Channel Passengers only
In case you were cleared at red channel, did you find out officer (s):
yes
No
(a) Polite and helpful
(b) Fair
© Prompt and Efficient
3
What was the approximate time at the red channel within which you were cleard?
(please choose a or b)
If your baggage was assessed non-dutiable
Less than 10 minutes
10-20 minutes
More than 20 minutes
357
If your baggage was assessed dutiable
Less than 10 minutes
10-20 minutes
More than 20 minutes
For Green Channel Passengers only
4 Did you find that travelers walking through green channel were being stopped and questioned
unnecessarily?
(a)
(b)
©
Yes
No
Can’t say
If your baggage was X-ray scanned after you were diverted while waking through green channel,
did you find our officer(s)
Yes
No
(a) Polite & helpful
(b) Fair
©
Prompt and Efficient
For all passengers the Traveler’s Charter Says that you can recognize our officers by their
uniform and identity badge. Was the officer wearing his identity nameplate?
(a)
Yes
(b)
No
©
Can’t Remember
The Traveler‘s Charter says we will offer help in repacking if we have made you unpack your bags.
Did the officer suitable assist you?
(a)
Yes
which of
(a)
(b)
©
(b)
No
©
Not applicable
the following facilities concerning Customs have come to your notice;
Illuminated Boards containing Customs rules
Special Facilitation Counter in the middle of the hall
Complaints and grievances on e-mail [email protected]
Looking at the difficult task before Customs of achieving twin objectives of facilitation and
compliance, how will you rate the quality of job performed by IGIA Customs?
(a)
(b)
©
(d)
(e)
Excellent
Very Good
Good
Just adequate
poor
358
Do you have any suggestions to help improve the quality of service rendered by customs at
IGI Airport?
Signature :
Name :
Address:
Flight:
11.19 TRAVELLER’S CHARTER
Passengers can walk through customs expecting courtesy, fairness and consideration
All uniformed officers who deal with the public will wear name badges and carry an Identity
Card.
Baggage of international Passengers will be opened only after explaining the reason and in
their presence.
We will help in repacking baggage if we have made you unpack them
We will explain the reasons if we need to search you and offer our own search before it.
Investigations and penalty proceedings will be initiated only after senior officers of the
Department are satisfied that prima facie evidence exists.
The investigation officer will
Explain the legal provisions and your rights and obligations
Seek confirmatory information by personal contact.
No seized document will be withheld beyond 60 days except where they are to be relied upon
in departmental proceedings or in any court of law.
Our performance will be measured against these standards and independent surveys of
clients’ perception and assessment of our performance and the results will be publicized through
the media.
We will promptly acknowledge your complaints and within 30 working days of their receipt,
provide final replies.
If you have a complaint or grievance you may also take up the matter with the Commissioner
(Telephone No. 25652970, Fax No.25652547) and /or the Chief Commissioner (Telephone No.
25654160, Fax No. 25655392) or at [email protected].
11.20 Effective Coordination at the Airport among various agencies
It has been brought to the notice of the Secretary, Ministry of Civil Aviation, that various
Organizations/Agencies at the Airports are not being represented at a Senior Level in the various
coordination committee meetings headed by the Airport Director and as a result important decisions
taken at these meetings are often not properly implemented.
359
In the regard, Member (Customs )has desired that the coordination committee meetings viz.,
(i) Airport Facilitation Committee;(ii) Airport Security Committee and (iii) Committee of Crore Group
should be attended by a Senior , not less than the rank of joint/ Additional Commissioner. The
Commissioner of Customs may take stock of the situation personally and may also attend such
meetings wherein important matters having a bearing on Customs, are expected to be discussed.
The Board may be kept informed of the action in this regard.
(Authority: CBEC letter issued vide F. No.520/53/2001-Cus. VI dated 12th June, 2001)
11.21 R.C Jain Report on Management of Airports in India (Relevant Extracts)
The Committee noted that the Customs procedures, though carried out under specific laws,
are an integral part of the airport functioning. There are several activities of other entities at the
airport, which impinge on the working of the customs procedures and vice versa. Some vital
information gathered by the customs section in regard to illegal/anti –national activity may have
ramifications for airport security and immigration. Further, the quality of facilitation at the Customs
counters make considerable difference to a user perception of the functioning of the airport as a
whole.
The committee felt that while all these inter-entity problems are attempted to be resolved
through formal meetings of the airport facilitation committee and informal interaction between
different entities, it is necessary to make some basic systemic change to ensure a more efficient
and efficient and efficacious functioning .
The committee has recommended that used of information technology particularly. In the
following areas should bring about improvements:
An integrated computerized information system which could be used by the other entities
concerned;
A central control Room (CCR) with computer and CCTV facilities;
Advance passenger information system (APIS) to e shard between the airlines, immigration,
custom and security functionaries.
The Committee felt that some of the information gathered by the customs agency would not
be susceptible to sharing with others and then customs could have their own dedicated
computerized system in addition to the information facility at the CCR.
The committee has recommended that to facilitate quick and hassle free customs clearance,
it would be useful to give prior information to passengers about their duty free entitlement, goods
which could be imported on payment of duty and contrabands. The Committee had made the
following suggestions in this regard:
Printed information, concise and attractive, should be made available at the time of issue of
boarding pass by the airline to every passenger departing from the airport and likely to return to the
country. Similar information could be made available to our embassies/consulates abroad while
issuing visas to passengers traveling to this country. The information cards in this behalf could be
prepared and printed in different languages like English, Hindi, Punjbai, urdu, Malayalam, Telugu,
Tamil etc.. And the cards made available to the traveling passengers as per their linguistic need.
Ready reckoner of duties leviable on goods generally imported, and other non-contraband
dutiable items, should be freely distributed on the passengers in the aircraft before disembarkation.
At the floor level in the customs area, customer friendly staff should be posted to guide the
passengers. For this purpose more’MAY I HELP YOU’ counters should be established. The staff
manning these counters must take special care of the uneducated and semi educated passengers
who have disembarked. Unfortunately, despite improvement in Customs services, complaints of
360
harassment of unwary passengers continue to be received. Installing of complaint boxes for this
purpose at the Delhi Airport is a welcome step.
There is need for improvement in the airport infrastructure relating to custom clearance. All
the baggage belts do not have X- Ray machines. Even those installed remain out of order very
frequently. Consequently, baggage arriving form all the sensitive flights cannot be screened. This
deficiency should be rectified. The X-Ray screening at conveyor belt in the arrival area has several
advantages. It is discreet and as such passenger friendly. It also reduces the number of diversions
form Green Channel to the Red Channel. Most importantly, it safeguards revenue interest of
exchequer .
AAI should provide separate transit lounge for transit passengers to obviate mischief both in
respect of customs as well as security. Mixing of regular passenger with transit passengers in not
at all desirable.
A separate space need to be earmarked for the courier goods for their storage/ assessment/
examination
The re-export baggage’s are to be made a available to the passengers in departure hall and,
therefore, warehousing facility needs to be extended to the departure halls, wherever this is physically
possible.
The Customs staff at the airport should be made a part of mock drills, which are required to
be organized to sensitize the airport staff to deal with the emergencies.
The customs should also lay down clear-cut procedures for handing passengers who are
traveling on international flights diverted to non-Customs airport due to an emergency or for any
other reason.
The overall ambience of the Customs area including the fixtures and furniture should be
tastefully coordinated with the overall interior of the airport terminal. This would enhance its integration
with the total airport functioning
[Authority: Report on management of Airports in India by High level Enquiry Committee headed by
Shri R.C Jain IAS (Retd.)]
361
Section -12
AIRPORT PREVENTIVE
S. NO.
12.1
Organizational setup
281
12.2
The Airport Environment For Fraud
282
12.2.1
The Human Element
282
12.2.2
Airport Precincts
283
12.2.3
Vehicles Which Can Facilitate Frauds
283
12.2.4
Passenger Profile
283
12.2.5
Profiling of Sensitive Flights
284
12.3
Tarmac Patrolling
284
12.4
Rummaging of Aircraft
284
12.5
Technical Aids
287
12.6(i)
Prosecution
287
12.6(ii)
COFEPOSA
12.7
Pre-Trial Disposal
287
12.8
MIS Reports
287
12.9
Rewards
287
12.10
Preventive Manual
288
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Section -12
AIRPORT PREVENTIVE
12.1 Organizational Setup
Working under the Assistant/Deputy Commissioner (Prev.). The preventive set up at IGI Airport,
Terminal-III comprises the following :
Shift (Prev.) for each of the four shifts further sub-divided into:
Arrival
- 2/3 ACS & 8 ACOs
Departure
- 3/4 ACS & 03-04 ACOs
The ACOs in the Arrival are reporting to the Air Customs Superintendent known as ACS (P-I)
and in the Departure to the Air Customs Superintendent known as ACS (Departure).
The Preventive formation in the Shift is as follows:
S.No.
Officer
ACS
ACO
Remarks
1.
Green Channel-1
1
2
1 ACO on Green Channel and 1 on X-Ray
machine
2.
Green Channel-2
1
2
-do-
3.
X-Ray on Belt
-
4
Every 4 hrs. of duty all the 4 ACOs should be
rotated with the Green Channel ACOs
4.
Preventive Dep.
2
1
-
5.
FSU/AIU
11
11
-
(a) Tarmac and
Baggage Break
Up areaInternational
(b) Arrival &
Departure way
side area
6.
Escort Duty
One maximum
Total: 18 Officers (ACS’ & ACOs)
II
Air Intelligence Unit/FSU
-01-03 ACS and 01-03 ACOs for each of the four shifts.
III
Special Investigation Unit -Comprising 1-2 ACS and 01-02 ACOs allocated among them.
Among them.
One maximum
IV
Intelligence - 01 ACS & 03 ACOS
V
Back offices - 10 ACS & 10 ACOs
VI
- Office Preventive & Rewards
: To handle non current preventive work — COFEPOSA
– Legal (including prosecution )
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The officers of shift preventive are responsible for carrying out of various preventive checks in
their respective areas of duties. They have the facility of technical aids such as: X-ray screening
machines installed on mezzanine floor for arrival as well as departure baggage & operation of 04
x-ray machines in the arrival hall, IONSCAN, Rummaging tool and equipments, Drug Testing Kits.
DC/AC shift shall implement the shift posing as brought out above and shall be responsible
solely for smooth functioning of shift. ACS(Admn.) in consultation with AC/DC (shift) shall be put
an ACS level officer for the transfer area on a fortnightly/weekly basis.
FSU/AIU officers will not sit in Departure side Customs rooms but will be covering Tarmac &
Baggage Break-up area of Arrival & Departure bay side area.
The DC/AC shift shall nominate / depute 04 ACOs/ACS for x-ray screening room at mezzanine
floor from shift open. This could be done on a daily/weekly basis. DC/AC Preventive shall also
depute 04 officers from shift preventive to x-ray control room on a daily/weekly basis. At any given
time x-ray control room shall be manned by 07-08 officers (ACOs/ACS’)
The Air Intelligence Unit has the freedom to move in any part of the airport, both arrival and
departure, and have the additional responsibility for carrying out checks at the Tarmac. They also
carry out rummaging of the aircraft with the assistance of the shift (Prev.). The detailed list of their
duties is contained in office order dated 29.06.2001 issued vide C.NO. D.C.(P) Misc/93/2001.
(Annexure 1)
The special Investigation Unit have the responsibility of carrying out investigations in case
above rupees five lakhs (involving arrest cases) after initial formalities up to the pointing of arrest
have been completed by the Shift (Annexure 2), Office Order date 22.06.2001 issued vide C.No.
Misc/IGIA/2000/pt (Annexure 3)
12.2 The Airport Environment For Frauds
A good preventive officer has to be aware of the airport environment and risks of various kinds
of the frauds at the airport. This requires an understanding of the various personnel working at the
airport, airport precincts, facilitating fraud, passengers profile and sensitivity profile of the various
flights. These aspects are discussed briefly as follows:
12.2.1 The Human Element
Various personnel working at the airport customs area and potentially important from the
point of view of preventive are:
Flight /Cabin Crew
Airline Ground Staff
Cleaning Service
Handlers and Airline companies’ staff
On board catering
Duty Free Shop
Concessionary companies
Restaurant and bar
Airport Authority/M/s GMR/DIAL
CISF And immigration staff
Trolley Retrieval Service
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Visitors permitted entry to received or see off passengers
Shopping area in Departure
Hotel area on 5th floor
Combined area of arrival of International & Domestic side
12.2.2 Airport Precinct
Officer must be aware of following aspects:Parameter Fencing
The Exist/Entry point to the airport, particular for vehicular movement ( T-III, T-II &T-I)..
Access Roads
Car Parking T-II, T-III , VIP, Staff Parking /Taxi Ways
Office Buildings, particularly accessible from Tarmac areas, Pantry areas of airlines handling staff
in tarmac area.
12.2.3 Vehicles which can Facilitate Frauds
Fuel and Supply Lorries
Airline Vehicles
Clearing and Maintenance Vehicles
Baggage Tractors
Other Misc. Vehicles
12.2.4 Passenger profile
With the ever increasing traffic and the speed with which customs are required to clear the
passengers and their respective baggage, it is no more possible to carry out routine checking of
passengers. Customs have to necessarily rely on selectively by intelligent profiling. Some of the
factors that lead to identification of suspect passengers are :
a) Age between early 20’s and late 30’s and from countries nationals of which have past record
of smuggling activities
No advance flight reservation;
No or little checked-in baggage;
Passport indicating frequent travels abroad without matching his financial or social status.
Unusual travel routing and travel itinerary.
Abnormal/heavy sized baggage securely packed/tied.
Multiple tickets as against a single ticket for travel.(conjunction Tickets)
Short stays in India or immediate departure and thereafter again arrival after a brief stay abroad.
Purchased ticket in cash.
Occupation for socio-economic background conflicts with expense or limited duration of travel.
Abnormal gait.
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12.2.5 Profiling of Sensitive Flights
With the globalization and removal of quantitative restrictions in international trade and
significant reduction in customs duties the earlier categorization of sensitive and non-sensitive
origins has undergone a major change. It is, therefore, not proper to completely consider any flight
as a safe flight from the customs point of view. Moreover, the sensitivity of the flight as a safe flight
from the Customs point of view. Moreover, the sensitivity of the flight has to be seen in the context
of specific need, for example: Narcotic drugs are unlikely to go to those destinations from where
they are commonly smuggled into India, while these destinations may continue to be sensitive
from the point of view of other goods. Officer thus has to profile flights keeping in view their specific
needs.
Some of the common parameters that help in identifying sensitive origins/destinations are as
follows:
Arrival
To and fro price of the tickets
VISA Controls
The Incidence of Customs duty
The geographical location of the destination country, particularly the easy smuggling of goods into
its territory from across borders
The quality of Customs control in countries of origin
The nature of penalties in these countries
Presence of ex- pretreated population
For example countries such as Dubai, Singapore, Bangkok & Nepal are commonly believed
to be sensitive destinations for the reasons that journey cost to these countries is relatively small,
VISA requirement is absent or easily available, rates of Customs duty low and the third country
good are freely available, coupled also with the facts that Customs in these countries are liberal
with respect good relevant to our country
Departure;
India continues to be the vulnerable to the smuggling out of foreign currency, Indian currency,
narcotics drugs and psychotropic substances, wild life products, antiques and commercial goods.
Export of currency is commonly seen in respect of destination from where import goods are
under–invoiced or smuggled in and the exports over–invoiced e.g. Dubai, Hong Kong, Singapore
and Bangkok. For narcotics Europe and American continents and South East are often used as
transit stations. Live birds and animals are commonly smuggled to the countries in the Gulf for
they have attractive market.
12.4 Rummaging of Aircraft
Section 37 empowers the proper officer to board any conveyance carrying imported goods or
export goods. He may remain on board as long as he decides to remain. The proper officer may
question the person in charge of the vessel or aircraft. He may demand production of documents
and also ask questions, to be answered by such person. The person in charge of the conveyance
is bound to comply with these requirements as laid down under Section 38 of the Customs Act,
1962.
Rummaging of the aircraft is necessary to detect concealments etc in the aircraft itself.
Commercial Aircrafts after they have landed are accessed by ground staff, cleaners, technicians,
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caterers etc who do have access to all the areas of the easily removed from the craft by these
persons when they board the aircraft Hence the rummaging of aircraft become becomes a important
functions and measure to check smuggling. Rummaging of the aircraft is a highly technical and
sophisticated function. Before undertaking to rummage aircraft intelligently plan and get information
on:
Type of the aircraft to be rummaged. Consult manual and / or good practice guides.
Check country of origin, routing , and flight plan. Consider flights from non-source countries where
good transit facilities apply.
Consider nature of cargo.
Identify the places to be rummaged and search.
After having decided to rummage, plan your operation Keeping in mind the safety of aircraft and
your own safety in mind .Rummage and inspect the following area of the aircraft.
Identify the panels that can be removed without endangering the safety of aircraft
Cabin
Galley
Toilets
Hold
All other areas of aircraft like seats etc.
Having identified the area of search proceed to look search the area.
Areas of search:
Instruction manual rack.
Storage areas for uniform.
On/under seats.
Pocket behind back of seat.
Toilets:
- Almost all panels are removable.
- Check ashtrays.
- Are there any signs of stuffing or swallowing .
- Check waste-bin ,cupboards and amenities.
- Check sick – bag disposal.
Galley
Food and drink containers.
Storage cupboards.
Waste –bins
Hot water units and cooker.
369
Fridges and cooling units.(Refrigerators)
Dry stores, fresh food and catering boxes.
Drink bar.
Removable ceiling panels.
Passenger Seating Area:
Seat pockets and meal trays.
Seat covers –any cut or damage giving access to seat.
Head rests and arm rests (space behind hinge mechanism )
Cushions and under seats.
Life jacket storage area.
Overhead lockers for crew and passengers.
Heating and fresh air ducts.
Ventilation outlets.
Undercarriage:
Space in main undercarriage housing .
Nose – Wheel housing
Retractable undercarriage boys.
Wheel spats – hollow.
Fuselage exterior:
Auxiliary power unit- access compartment.
Numerous panels which when opened give access to particular items of equipment or are for
inspection purposes.
Air Conditioning plant – service access.
Hold :
-Removable wall linings.
- Ceiling panels
-Hold door interior skin.
- Electronics and radio bay.
- Water storage tank area.
- Air sick bag disposal.
Action after completion of operation:
Inform pilot / crew about completion of the operation.
Inform if you are unable to close/ shut or replace something.
370
Replace any broken seals during search.
Remove all tools that were carried by you in the aircraft.
Inform the crew if any contrabands and goods found concealed in flight.
Tell the waiting personel like ground staff, technicians and cleaners to enter the aircraft.
Make entries as required before boarding the aircraft and also after completing the rummaging.
12.5 Technical Aids
A number of technical aids have been provided at IGI Airport
X-ray machines-two each on two hand-bag x-ray, one gate x-ray, one courier and two in departure.
Ion scan for the detection of narcotic drugs
Drug testing kit
Door frame metal detectors
Hand held metal detectors
Rummaging equipment
Walky-talky sets
12.6(i) Prosecution
Prosecution should be generally launched within a period of 60 days of the arrest failing which
the arrested person becomes eligible for release on bail. Statutory bail shall be granted by the
court under section 467 of Cr.P.C., 1973.
Sanction for prosecution under the Customs Act is required to be obtained from the
Commissioner of Customs (Section 137) Board has issued guidelines vide F. No. 394/71/97Cus(AS) dated 22.06.1999 (Annexure 4&5) for the launching of prosecution.
In the cases of narcotic drugs prosecution should be launched within a period of 90 days. No
prior sanction is necessary under NDPs Act.
12.6(ii) COFEPOSA
COFEPOSA proposal should be initiated immediately depending upon the gravity of the case
& the propensity of the passenger. Detailed instructions on the sub is at Annexure 6-10.
12.7 Pre-Trial Disposal
Section 110 (1A) provides for the pre-trial disposal of specified goods. The goods commonly
seized at the airport have the potential for quick deterioration of value, obsolescence or pilferage.
The provisions of this section should be made use for the early disposal of goods. Special care
should be taken for the disposal of foreign currency, which in many cases in the past, has been
found to have gone out of circulation. This commonly applies to non-convertible currencies. Similarly
in the case of electronic goods there is a danger of goods losing much of their value within a short
period of time. All these goods should be taken up for pre-trial disposal.
12.8 MIS Reports
A daily report of the Preventive working is submitted to the Deputy Commissioner (P) and
Additional Commissioner as per prescribed proforma (Annexure 11).
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12.9 Rewards
New instructions of rewards have been issued by the Board vide F. No. 1301/6/2001-Cus(AS)
dated 20.06.2001. (Annexure 12).
It is utmost necessary that the DRI-II or DRI-IV as the case may be, should give detailed role
of each officer. The practice of including the names of personnel with routine performance such as
Stenographer does not head to sanction of rewards.
Rewards to informer should be taken up on priority to encourage them to provide information
in future.
12.10 Preventive Manual
Other detailed instructions on various aspects of preventive are contained in the preventive
manual, which is updated from time to time.
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Annexure I
Air Intelligence Unit (AIU) will be responsible to check all aspects of preventive work at Arrival,
Departure and Tarmac.
While Tarmac Control will be the specific responsibility they would carry out other checks
both in arrival and departure halls acting on intelligence or reinforcing normal preventive control.
Emphasis is however placed on the following:1.
Rummaging of at-least two flights in the night and one in the day.
2.
Surprises checking of vehicles accessing the aircraft, baggage make up area.
3.
In respect of sensitive flights in departure they would keep surveillance over the embarking
passengers and conduct subsequent checking of their baggage/person either themselves or
entrust to regular preventive.
4.
In respect of CIS flights in departure they would keep surveillance over passengers carrying
baggage in excess of free allowance and ensure that such passengers are not cleared in a
routine way.
5.
While in the interest of freedom of approach detailed duties are not being specified. It is
expected that AIU will carry surprise checks covering all areas creating a feeling of effective
deterrent and detection setup.
It is also clarified that in case of detection of a case officer of AIU will not be expected to be a
seizing officer. The seizing officer will normally be an officer from P-II. (Authority: Deputy
Commissioner (Preventive) Office Order dated: 29.06.2001 issued vide C. No. D.C. (P)Misc/93/
2001).
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Annexure 2
Sub :- Constitution of Special Investigation Unit at IGI Airport
It may be recalled that Commissioner(G) had discussed the need to set up a specialized
Special Investigation Unit in view of the need to achieve the following two main objectives:
To provide an opportunity to the Preventive staff to concentrate on matters concerning
detections and not to be constrained by the file work arising out of post seizure formalities.
To devote concentrated attention for quality investigations.
I have discussed the matter with the DC(Prev) and DC(Admn). We have already issued
instructions that in respect of the cases detected by the Air Intelligence Unit formalities relating to
seizure need immediate investigations would be carried out by the shift Preventive I or II depending
on whether the case is made in arrival or departure.
In respect of the cases made by the Shift Preventive themselves the detecting officer would
not be nominated as the Seizing Officer unless he himself wishes to be. The Superintendent
(Prev) have been asked to entrust this work by rotation to others within the shift. I feel it would be
better if formalities up to the point of arrest and production of the offenders in the court should be
handled by the same officer so as to avoid subsequent cross examination during adjudication and
prosecution of more than one officer.
However, in view of the objectives listed above in para (i) and (ii), a workable approach can be
adopted if the case file is transferred to the Special Investigation Unit (SIU) which we may constitute
with one Supdt. And 3 ACOs to start with. This unit can take up investigations in cases of Rs. 5
lakhs and above. As regards the point when the investigation should be taken up the two views are
to take either immediately after arrest or on completion of COFEPOSA. Ideally the investigation
should be taken up after the arrest as there is not much investigation generally after COFEPOSA.
However, if the unit is asked to take up investigation after arrest it will be saddled with too much
work. It is, therefore, felt that while the file may be generally transferred after the arrest the concerned
Seizing Officer should continue to collaborate with the work relating to COFEPOSA with SIU which
shall continue to be his responsibility.
Commissioner (G) may see and approve.
(Authority: Office Note Dated: 20.6.2001 issued vide C.NO.Misc/IGIA/2000/Pt.)
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Annexure 3
A Special Investigation Unit (SIU) is hereby constituted to take up investigation of cases with
values of seized goods exceeding Rs. 5 lakh and such other cases as may be allotted from time
to time. The unit will comprise of one ACS and two ACOs and work under the supervision of D.C.
(Prev.).
Every case where value of seized goods exceeds Rs. 5 lakh will be transferred to SIU after
the arrest and production of offender in the court (if arrest is taken recourse to) and further
investigations will be conducted by SIU. However, the seizing officer will continue to collaborate
with SIU for the work relating to COFEPOSA which shall be the responsibility of seizing officer.
This issues with the approval of Commissioner (General), NCH, New Delhi.
(Authority: Additional Commissioner Office Order dated 22.6.01 issued vide C.No. Misc/IGIA/
2000/Pt).
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Annexure 4
ARREST AND PROSECUTION
Sub:- Arrests and/ or Prosecution for Customs offences – Guidelines on launching of
prosecution/arrests – Regarding.
Sir,
I am directed to refer to this Ministry’s instructions conveyed under F.No. 711/16/84-CUS(AS),
dated the 21st May, 1990 and 20th February, 1992, on the above subject and to say that in view of
the various changes in the policy and economic liberalization effected since 1990, the changes in
the value of the rupee and need to avoid arrests/ prosecutions in relatively petty offence cases
under the new environment the guidelines contained in the aforesaid letters have been reviewed
by the Government. Having due regard to the suggestions of various Chief Commissioners and
Commissioners in response to the Board’s communication on the above subject and after careful
consideration, the Government has decided to prescribe the following revised guidelines for launching
of prosecution for offences under the Customs Act, 1962, and arrests where warranted, in
supersession of the existing guidelines contained in the aforesaid letters:
2. Prosecutions should be considered and launched after very careful consideration of the nature
of offence, the role of the person concerned and evidence available to substantiate the case.
Prosecution may be considered in the following categories of cases:
(i)
(a) Cases involving unauthorized importation in baggage/ under Transfer of
Residence Rules, where the CIF value of the goods involved is Rs. 5,00,000/- (Rupees
Five lakhs) or more;
(b) Cases relating to importation of trade goods (i.e. appraising cases) involving deliberate
mis-declaration/misclassification with a view to attempt to defraud revenue or to smuggle
goods in the guise of trade consignments and where the CIF value of the offending
goods is Rs. 10,00,000/- (Rupees Ten lakhs) or more;
(c) Other cases involving smuggling of goods and cases of attempted unauthorized
exportation/smuggling of currency by outgoing passengers or town seizures, where the
CIF value of the goods/currency is Rs. 5,00,000/- (Rupees Five lakhs) or more;
(ii)
The above criteria would, however, not apply in cases of repeat offences or persons indulging
professionally or habitually in such violations or where criminal intent is evident in ingenious
way of concealment or otherwise, where prosecutions can be considered irrespective of the
value of goods/currency involved in such repeat, professional or habitual offences, etc. However,
prosecution may not be considered in petty repeat violations so long as cumulative value of
the offending goods/currency is not more than rupees five lakhs.
(iii) The above criteria would also not apply in the cases involving offences relating to very sensitive
items like narcotic drugs and psychotropic substances, arms, ammunitions and explosives,
antiques, art treasures, wildlife items and endangered species of flora and fauna. In such
cases, launching of prosecution should be considered invariably, irrespective of the value of
the offending goods involved.
It may be noted that considering the liberalization in Gold/Silver import policy since 1991,
these items have been taken out of the list of sensitive items as per earlier guidelines where
prosecution was considered irrespective of value limit. Prosecution for offences relating to
these items will now be covered by guidelines at (i) & (ii) above.
(iv) In respect of cases involving non-declaration of foreign currency by foreign nationals and
NRIs (normally visiting India for travel/ business trips etc.) detected at the time of departure,
376
exceeding the value limit of rupees 5 lakhs as prescribed under sub- para (i)(c) above, who
claim the currency having been legally acquired and brought into India but inadvertently not
declared, the arrest and prosecution need not be considered in routine. The status and business
standing of the foreign nationals/NRIs the manner and place of recovery, corrobative evidence
if any to substantiate the claim of bonafide and proper acquisition but inadvertent nondeclaration, and other attendant factors may be considered immediately by the Commissioner
concerned and a decision taken whether the case involves criminal intent warranting arrest
and launching of prosecution or not. Where the prosecution is not considered called for the
case can be adjudicated on the spot by the proper officer and suitable order for confiscation/
fine/ penalty etc. passed.
(v)
Except in respect of cases covered by sub-para (i) (b) above, in all other cases, prosecution
may be launched after due sanction by the concerned Commissioner of Customs. Prior
concurrence of the Chief Commissioner will be essential for prosecutions under category
covering by (i) (b) above.
3.
Arrests in Customs offence cases
(i)
Persons involved in customs related offence cases who may be liable to prosecution should
not be arrested in routine unless exigencies of certain situations demand their immediate
arrest. Thus, at times, prior to prosecution, arrest(s) may be necessary to ensure proper
investigations and penal action against the person(s), as otherwise the person involved in the
offence may hamper investigations or disappear from the scene/area – such as in cases
involving outright smuggling by Sea/Air/Land route.
(ii)
Arrest should be made only when it is intended to prosecute the offenders and the monetary
limits or conditions provided for prosecution would apply equally to arrests.
(iii) Though under Sec. 104 of the Customs Act, 1962, Commissioners of Customs have been
empowered to delegate to an officer of Customs by general or special order, powers of arrest
of persons guilty of offence punishable under Sec. 135, Government would like extreme
circumspection and care in exercising these powers and ordering arrests. In all commercial
fraud cases in relation to regular imports or exports, before arresting any person(s) the
Commissioner/ ADG concerned should be approached by the Investigating Officer and the
Commissioner/ADG should be personally satisfied that there are sufficient grounds warranting
arrest of the person(s). These grounds/reasons should also be recorded by the concerned
Commissioner/Additional Director General in writing on file before the arrest is ordered and
effected by the proper officer.
(iv) As far as possible, in other than commercial fraud cases also warranting prosecution under
Sec. 135, where arrest is considered necessary Commissioner’s / ADG’s prior clearance
and approval for arrest may be taken. However, there could be situations, for example in
outright smuggling cases in remote areas (and sometimes even in town seizure or international
passenger clearance offence cases) where it may not be administratively possible to get
prior permission of concerned Commissioner/ ADG before effecting arrest. In such cases,
the decision to arrest a person in accordance with the guidelines – taking due note of the
offence against the person which has come to light in investigations carried out, should be
taken at the minimum level of the concerned Assistant Commissioner / Assistant Director –
recording the reasons in writing. Further, in such cases, the concerned Assistant
Commissioner / Assistant Director or other higher officer (lower than Commissioner/ADG)
who has ordered arrest, should immediately after arrest furnish a report incorporating reasons
for arrest, to the jurisdictional Commissioner/ADG and his satisfaction for the arrest made
should also be kept on record in writing.
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4.
The following aspects of earlier instructions, (as modified where necessary) may also be
kept in view while considering launching of prosecution for offences under the Customs Act,
1962:-
(i)
Prosecutions should not be launched as a matter of routine and/or in cases of technical
nature, where the additional claim for duty is based solely on a difference of interpretation of
the law. Before launching any prosecution, it is essential that the department should have
sufficient evidence to prove that the person, company or individual, against whom prosecution
is being considered, had guilty knowledge of the offence or had fraudulent intention of committing
the offence, or in any manner possessed mens rea which would indicate his guilt. It follows,
therefore, that in the case of Public Limited Companies, prosecution should not be launched
indiscriminately against all the Directors of the Company, but should be restricted to only
such of the Directors like the Managing Director, Director in charge of marketing and/or Sales,
Director (Finance) or such other Directors who are concerned with the import/export of the
goods. The intention should be to take recourse to the prosecution only against those persons,
who have taken active part in committing, or have connived at, the offence relating to either of
smuggling or of Customs Duty evasion or of mis- declaration of value, quantity etc. for this
purpose, the Commissioners should go through the relevant case file thoroughly and ascertain
for themselves the definite involvement of different partners/directors/executives/officials,
against whom reasonable evidence about their involvement in the offence exists and should
be proceeded against, while launching the prosecution. For example, the nominee Directors
of the Financial Institutions, who are not concerned with day to day matters, should not be
prosecuted, unless there is a definite evidence to establish their active involvement. Prosecution
should be launched only against those Directors, Partners, Officials etc., who are found to
have guilty knowledge, fraudulent intention of mens rea necessary to bind them to criminal
liability;
(ii)
One of the important considerations for deciding whether prosecution should be launched, is
the availability of adequate evidence. Prosecution should be launched against top management
only if there is adequate evidence/material to show their involvement in the offence and after
proper application of mind at the level of Commissioners/Chief Commissioners;
(iii) Normally, adjudication proceedings should be completed before launching prosecution.
However, if the party deliberately delays the adjudication proceedings or in any case it is not
possible to complete the adjudication proceedings within a reasonable time limit, prosecution
may be launched even during the pendency of the adjudication proceedings, as undue delay
could weaken the department’s case. However, in straight cases, where persons, including
foreigners, are caught red handed and protracted investigations are not to be carried out,
prosecution may be launched immediately after the seizure of the goods;
(iv) Prosecution should not be kept in abeyance merely on the ground that the party has gone in
appeal/revision. However, in order to ensure that the proceedings in appeal/revision are not
unduly delayed, because the case records are required for purposes of prosecution, a parallel
file containing copies of the essential documents relating to adjudication should be maintained.
It is necessary to reiterate that in order to avoid delays, the Commissioners should indicate,
at the time of passing the adjudication order itself, as to whether they consider the case fit for
prosecution, so that it could be further processed for launching prosecution or for being sent
to the Chief Commissioner for prior approval, wherever necessary.
5.
Procedure for launching prosecution
(i)
In all such cases, where prior approval of Chief Commissioner is necessary for launching
prosecution i.e. in cases covered by para 2 (1)(b) above, an investigation report for the
purpose of launching prosecution (as per Annexure-I), should be carefully prepared and
signed by the Assistant Commissioner concerned. The investigation report, after careful
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scrutiny (for incorporation of all relevant facts) and duly endorsed by the Commissioner,
should be forwarded to the Chief Commissioner, for approval, within a month of the
adjudication of the case. A criminal complaint in a Court of Law in such cases, should be
filed only after the approval of jurisdictional Chief Commissioner has been obtained. The
Chief Commissioners should ensure that a decision about launching of prosecution or
otherwise, is taken after careful analysis of evidence available on record and
communicated to the Commissioners, within a month of the receipt of the proposal from
the Commissioners;
(ii)
In all other cases, where prior approval of Chief Commissioner is not required, the decision
about launching of prosecution or otherwise should be taken by the Commissioner after
careful application of mind and analysis of evidence brought on record. This should be
completed within a month of adjudication of the case (unless it is decided to go for
prosecution even prior to adjudication in certain category of cases/particular case,
mentioned earlier);
(iii) It is hardly necessary to emphasise that the prosecution once launched should be
vigorously followed. The Commissioners should monitor cases of prosecution at monthly
intervals and take corrective action, wherever necessary, to ensure that the progress of
prosecution is satisfactory;
(iv) With a view to ensure that the prosecutions have a deterrent effect, it is necessary that
convictions should be secured with utmost speed. This can only be done by regular
monitoring of the progress of the prosecution;
(v)
It has been observed that the delays in the Court proceedings occur due to the nonavailability of records required to be produced before the Magistrate. As a matter of
practice, whenever a case is taken up for seeking the approval of the Commissioner or
Chief Commissioner, as the case may be, for launching prosecution, an officer should
be nominated/designated, who shall immediately take charge of all documents,
statements and other exhibits, that would be required to be produced before a Court.
The list of exhibits etc. should be finalized in consultation with the Public Prosecutor at
the time of drafting of the complaint. Such exhibits should be kept in the safe custody;
(vi) Once conviction is obtained in a prosecution case, the Commissioner responsible for
the conduct of the prosecution, should study the judgement and where it is found that
the persons have been let off with light punishment than what is envisaged in the Act, the
question of filing appeal under the law should invariably be examined with reference to
the evidence on record within the stipulated time. This is equally applicable in cases in
which a Court orders acquittal without recording sufficient reasons in the judgement
even though adequate evidence is available and was provided before the Court;
(vii) Section 135-B of the Customs Act, 1962, grants the power to publish name/ place of
business etc. of persons convicted under the Act, by a Court of law. It is observed that
this power is being exercised very sparingly by the Courts. The Board desires that in all
cases in respect of all persons, who are convicted under the Act, the department should
make a prayer to the Court to invoke this section.
(viii) A Prosecution Register in the form enclosed as Annexure II to this letter, should be
maintained in the prosecution cell of the Commissionerate headquarters / Custom House.
6.
Director General (Inspection) and Chief Commissioners of Customs & Central Excise, while
carrying out inspection of the Commissionerates / Custom Houses, should specially check
all the above mentioned points, and make a mention about implementation of the guidelines
in their Inspection Reports.
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7.
Where a case is considered suitable for launching prosecution and where adequate evidence
is forthcoming, securing conviction largely depends on the quality of investigation. It is, therefore,
necessary for senior officers to take personal interest in investigations of important cases of
smuggling/duty evasion and to provide guidance and support to the investigating officers at
the stage of investigation itself.
8.
It has also been noticed that the officers posted for prosecution work do not have proper
training. The Director General, NACEN, Faridabad, should therefore, organize separate training
courses on prosecution/arrests etc., from time to time, and also should incorporate a series
of lectures on this issue in the courses organized for anti-smuggling. The Commissioners
should judiciously sponsor officers for such courses.
Annexure – I
Investigation Report for the Purpose of Launching Prosecution
Against _________________________________________________________________
Commissionerate _________________________________________________________
1.
Name & address of the Accused:
2.
Nature of offence including commodity:
3.
Charges:
4.
Date/Period of offence:
5.
Amount of duty Evasion/value of contraband goods involved:
6.
Particulars of persons proposed to be prosecuted:
(a) Name
(b) Father’s Name
(c) Age
(d) Sex
(e) Address
(f)
Occupation
(g) Position held in the company/firm
(h) Role played in the offence
(i)
Material evidence available against the accused.
(Please indicate separately documentary and oral evidence)
(j)
7.
Action ordered against the accused in adjudication proceedings
Brief note as to why prosecution is recommended
NOTE
(A) The proposal should be made in the above form in conformity with the guidelines issued by
the Ministry. With regard to column 3 above, all the charging sections in the Customs Act,
1962 and other allied Acts should be mentioned, if the provision for conspiracy as under
Section 120-B of IPC is sought to be invoked, this fact should be clearly mentioned. With
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regard to Column 6, information should be filed separately for each person sought to be
prosecuted.
(B) A copy of the show cause notice as well as the order or adjudication should be enclosed with
this Report, if any appeal has been filed against the adjudication order, this fact should be
specially stated.
(C) Where prosecution is being recommended even prior to completion of adjudication, as per
guidelines, brief reasons therefore be also indicated in the brief note mentioned at SI. No. 7
above.
Prosecution Register
Serial Number
Division/Preventive Unit/Appraising Group
File Number
Criminal Complaint Number
Date of Detection
Name of Accused
Nature of Offence
Amount of Customs Duty Evaded/Value of contraband Goods Seized
Period of Evasion, Date of Seizure
Name of Accused Persons
Date of Sanction of Prosecution
Date of Filing of Complaint
Date of Issue of Process
Name of Counsel
Date of Judgement
Date of Appeal Against the Judgement & Court in which Appeal Filed
Dates of Hearing
(Authority: MFDR letter issued vide F. No. 394/71/97-CUS(AS), June 22, 1999)
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Annexure 5
Sub:- Arrests and/ or Prosecution for Customs offences – Guidelines on launching of
Prosecution/Arrests – clarification regarding
Sir,
I am directed to refer to the Ministry’s instructions of even no. dated 22..6.99, on the above
subject and to say that certain queries/doubts have been raised as regards the policy to be followed
in the matter of launching prosecution wherever offence has been committed prior to 22.6.99, and
whether it is the new guidelines or older guidelines which will form the basis. there are also doubts
whether once arrest is made prior to 22.6.99, prosecution has to be launched invariably.
2. The matter has been examined in the Board. In this context it is pertinent to mention that
somewhat similar questions were raised, on Central Excise side when monetary limits for
prosecution were revised upward from erstwhile limit of Rs. 5 lakhs to Rs. 25 lakhs by Ministry in
December, 97. Chief Commissioner, Chennai had even consulted earlier Law Ministry (Branch
Secretariat) and the Public Prosecutor and furnished their views. Taking due note of these and
after careful examination, Board had issued the enclosed guidelines last year which interalia had
clarified that the monetary guidelines for prosecution as they exist on the date of filing of complaint
will be relevant. It was also clarified that prosecution already launched on the basis of lower monetary
limits were also sustainable and there was no question of considering their withdrawal, just because
monetray limits have now been raised. In the context of launching of prosecution and action to be
taken if any for prosecution already launched in view of modification/upward revision of monetary
limits on Customs side. Board has, after consulting Law Ministry, decided that same principles
and guidelines as for Central Excise side may be followed. Thus, it is clarified that the prosecution
under the Customs Act, 1962, should be launched in accordance with the guidelines applicable on
the date on which a formal complaint is filed in the Court of Law and not as per guidelines existing
on the date of offence and/or date of arrest.
The issue as to whether prosecution is warranted in respect of those cases, where arrests
may have been effected as per earlier guidelines/ monetary limits for launching prosecution, but
the formal complaints for prosecution are yet to be filed, has also been examined. In this regard,
as advised by Ministry of Law, it is clarified that the basic object of the arrest of the persons(s)
under the Customs Act, 1962 is to ensure a fair and just investigation of the case and that the
arrested person does not temper with the evidence. The Customs Act, 1962 however, does not
envisage that prosecution must follow in each and every case of arrest. For launching prosecution,
each case shall have to be assessed on its merits, and where, a person earlier arrested as per the
then existing guidelines, does not fall within the ambit of revised prosecution guidelines, a formal
complaint need not be filed against such person.
(Authority: MFDR letter issued vide F.No. 394/71/97-CUS(AS)
29th October, 1999)
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COFEPOSA
Annexure 6
Sub.: COFEPOSA Act, 1974 – Revised guidelines for implementation of – Question regarding
The question of application of the provisions of COFEPOSA Act, 1974, to smugglers and
foreign exchange racketeers in the light of recent developments has been engaging the attention
of the Government their resolve to deal firmly with smugglers and other anti-social elements indulging
in illegal transactions in foreign exchange. While stringent measures would continue to be taken
under the normal laws, preventive detention of smugglers may have to be resorted to in the certain
types of cases with a view of immobilizing organized smugglers and foreign exchange racketeers
from continuing their activities and to provide deterrent to those who are habitual offenders. Even
in those cases, detention should not be treated as an alternative or substitute for action under the
normal law and the enforcement authorities should reinforce their intelligence settings in order to
launch prosecutions against the smugglers in the ordinary course of law.
2.
Preventive detention may be resorted to in respect of the following categories of persons:
(a) Organisers, financiers and their agents who organise things from behind the scene.
These persons do not normally handle the smuggled goods themselves nor do they
closely engage in smuggling activities. They do not give any written instructions, and the
carriers and others who actually do the work on their behalf are afraid to give any evidence
against them. However, the intelligence gathered over a period of time and the
circumstantial evidence would be adequate to convince independent authorities like the
Advisory Boards that these persons have been organizing or financing smugglers, and
should therefore, be detained to prevent them from continuing their prejudicial activities.
(b) Smugglers caught red-handed with smuggled goods to be detained for prosecution/
preservation:
(i)
Carrier of smuggled goods through caught red-handed and proceeded against
continue to indulge in their illegal activities whenever released on bail. They are also
able to temper with witnesses and the evidence and thereby weaken the prosecution
case frustrating the ends of justice. However, in order to ensure the detentions of
these persons are done on a selective basis and confined to cases of organized
smuggling, a minimum monitory limit of Rs. 25,000/- as the value of contraband
involved may be adopted as a criterion for such cases. Persons found indulging in
these offences habitually should be considered for detention irrespective of the
value of goods seized from them.
(ii)
Crew members coming to India frequently are in a position to indulge in organized
smuggling. Many of them are foreigners. When released on bail they tend to jump
bail, even when the bail amount is high. To ensure that law could take its due course,
it is necessary to detain such persons as are found indulging in smuggling goods in
commercial quantities to secure their presence.
(iii) Hawkers and traders by the open display/sale of contraband constitute the main
media through which the smuggled goods are distributed throughout the country.
Even though at any particular time, these people may be caught with goods of
small value the collective harm they cause is so substantial that storing and selling
the smuggled goods should be justified.
In all above cases falling in category (b) the detention will be for the period required
for completion of investigation/prosecution proceedings in the court of law and not
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necessarily for the minimum period prescribed in the COFEPOSA Act. The
preventive detention in these cases will thus be a supplement to the normal law
and not a substitute.
(c) Foreign exchange racketeers
Preventive detention will be applied to persons who operate the illegal market in foreign
exchange or function as illegal channels for receipt and distribution for compensatory
payments. Similarly, in case of other violations of FERA preventive detention may be
applied if the appropriate authority is satisfied that the foreign exchange secreted abroad
is being used to finance smuggling. Other violations of FERA will continue to be dealt
with under the normal law.
3. It is requested that the above guidelines may be adopted for ordering future detention under
the COFEPOSA Act. Similarly it would be necessary to review all the cases of existing detenus/
absconders in view of these guidelines
4. Detention orders against persons involved in activities prejudicial to conservation or
augmentation of foreign exchange are at present being issued by the appropriate authority in Central
Government. In this connection, reference is invited to paragraph 9 of this department letter F.No.
671/8/74-Cus. VIII dated 31.12.1974. This practice shall continue in future also. In addition detention
orders against persons falling under category A of para II above namely organizers, financers and
their agents will be in future be issued by Central Govt. or its empowered officers. Preventive
detention in respect of other persons may continue to be dealt with by the appropriate authority in
the state government in accordance with the guidelines mentioned above.
(Authority: MFDR letter issued vide F. No. 671/33/77/Cus. VIII
dated 1st September, 1977).
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Annexure 7
Sub.: COFEPOSA Act, 1974 – Revised guidelines for implementation of –
Question regarding
Please refer to the guidelines for implementing the provisions of COFEPOSA Act circulated
to all the State Government/ Union Territories etc. wide Ministry’s letter No. 671/33/77 Cus. VIII
dated 1.9.77.
2.
It has now been decided that the following modifications be made in the existing guidelines.
(i) In regard to the Custom Act, preventive detention may be restricted to in the following
types of contravention besides those already covered by the existing guidelines.
(a) Gross abuse of Advance Licensing, duty exemption and other similar schemes.
(b) Imports by fictitious or benami persons or firms;
(c) Imports under forged or manipulated import licences; and
(d) Fraudulent or gross mis-declaration as to the description, quantity, value, quality,
specifications etc. of the goods imported, exported or attempted to be exported, if
any duty or value (c.i.f.) involved as the case may be, Rs. 2 lakhs or more in each
case.
(ii)
In regard to the FERA, preventive dentition may be considered in the following types of
contraventions in addition to those covered by existing guidelines :
Foreign exchange remitted for bogus imports;
Exports by bogus or other firms without any intention to have the sale proceeds repatriated
to the country;
Foreign exchange manipulation through under or over-invoicing of imports and exports ;
Secreting of foreign exchange abroad, or unauthorized transfer of Indian money in violation
of FERA in so far as its transfer has any nexus with smuggling or foreign exchange
violation attracting the provisions of the COFEPOSA Act.
Engaging in trade with or dealings in foreign exchange, including remittance thereof to
countries with which the foreign trade is banned.
(iii) The monetary limit is Rs. 25,000/- to Rs. 1 lakh (market value) for considering detention
of carriers of smuggled goods except in the case of those carrying gold bullion, narcotic
drugs and psychotropic substances, arms, ammunition and explosives, antiques, art
treasurers, wild-life items and endangered species of flora and fauna for which the limit
may be kept at Rs. 50,000/- (market value). However, in cases or repeat offences, the
monetary limit will not be the guiding factor.
It is once again emphasized that the COFEPOSA Act should not be a substitute for the
normal law and that it should be used only in serious and big cases/ individuals operating
on a large scale.
(Authority: MFDR letter issued vide F. No. 671/4/85-Cus. VIII, dated 10th October, 1985)
385
Annexure 8
Sub. : COFEPOSA Act, 1974 – Revised guidelines – strict observation –
Regarding
Reference is invited to Ministry’s guidelines dated 1.9.77 and 10.10.85 regarding implementation
of the COFEPOSA Act, wherein it was emphasized that preventive detention be treated as a
supplement to the normal law and not a substitute and it should be used only in serious and big
cases/ individuals operating on a large scale. It was also indicated therein that detention orders
against organizers, financiers and their agents will be issued by the Central Government or its
empowered officers while detention orders in respect of other persons should be dealt with the
appropriate authorities in the State Government.
2. However of late, sponsoring authorities are forwarding proposals for detention under the
COFEPOSA Act, all types of cases most of which can conveniently be dealt with by the State
Governments. In view of the guidelines mentioned herein able in general and in view of the
administrative problems such as paucity of staff as well as to maintain and improve the quality of
detentions, in particular. Such cases cannot be taken up by the Central Government and State
Government may be approached for passing detention orders. Only big cases involving heavy
stakes pertaining to organizers, financiers, kingpings and their agents may therefore be forwarded
to the Central Government for consideration and passing of detention orders.
3. In this connection I would also like to point out that sore of the sponsoring authorities are
rushing to the Central Government with a request to consider proposals for detentions by way of
circulation. It has now been decided that consideration of such proposals by way of circulation
would be taken up only in very exceptional cases where DG. DRI as Chairman of the Screening
Committee is satisfied of the urgency and necessary of such a course. All the sponsoring authorities
concerned are therefore requested to follow the procedure specified above scrupulously.
(Authority: MFDR letter issued vide 671/1/91-CusVIII Dated 11th July, 1991)
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Annexure 9
Sub.:- Preventive dentition under COFEPOSA Act, 1974 – Instruction regarding
I am directed to invite attention to this Ministry’s letters F. No. 671/8/74-Cus. VIII dated
31.12.1974, F. No. 671/3/77-Cus. VIII dated 1.9.1977 and F. No. 671/4/85-Cus. VIII dated 10.10.1985,
on the subject mentioned above and to say that the question of revision of monetary limits for
detentions under COFEPOSA Act, 1974 (as amended) has been engaging the attention of
Government for quite some time. It has been observed that the monetary limits in operation since
October, 1985 are too low and need a fresh look. Pending revision of guidelines, it has been
decided that the following monetary limits may be adopted by the sponsoring authorities as well as
screening committees while proposing/ clearing detention proposals under COFEPOSA :S. No.
Description of items
Monetary Limits
1.
Gold, bullion, silver, electronics etc.
Rs. 5 lakhs
2.
Fraudulent or gross mis-declaration etc. of
commercial goods
Rs. 5 lakhs (Value or duty)
3.
FERA cases
Rs. 5 lakhs
These value limits will not apply to kingpins, organisers, financiers etc. and cases of smuggling
of arms, ammunition and explosives as well as repeat offenders.
These instructions will be applicable to all pending cases as well as cases before Screening
Committee Meeting held on or after the date of issue.
(Authority: MFDR letter issued vide No. 671/94-Cus. VIII, dated 2nd February, 1994).
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Annexure 10
Subjects : COFEPOSA Act, 1974 – Procedural safeguards/ requirements to be observed.
The COFEPOSA Act, 1974 was enacted to immobilise by detention the persons engaged in
the types of prejudicial activities specified in Section 3 (1) of the Act and to disrupt the machinery
established for smuggling and foreign exchange manipulation, with all their ramifications. However,
a law of preventive detention by which a person is deprived of his personal liberty without usual
safeguards available to him in judicial trial is ought to be construed with greatest strictness. The
Advisory Boards and the Courts are, therefore, always vigilant to ensure that the detenu is not
deprived of the modicum of rights and safeguards which are available in Article 22 (4) to 22 (7) of
the Constitution and which the preventive dentition law itself affords to him. As the past experience
shows, non-compliance with the procedural safeguards has been virtually the main ground on
which Detention Orders have been quashed by the Courts or have been revoked on the basis of
the opinion of the Advisory Board.
2. Instructions have been issued from time to time indicating the procedural safeguards to be
ensured for effective implementation of the Act. In this context, the consolidated instructions issued
in the D.O. Letter No. 671/4/90-Cus. VIII dated 20.8.1990 by the then JS (COFEPOSA) and the
detailed instructions issued by the undersigned under cover of his letter F. No. 671/9/98-Cus. VIII
dated 9.6.98 followed by further instructions issued by the undersigned from the same file on
17.9.98 may please be referred to. The Detention Orders, however, continue to be occasionally
set aside by the Courts or are revoked on the basis of the opinion given by the Advisory Board, on
account of non-adherence to one or the other technical/procedural requirements. This is a matter
of serious concern. It is clear that adequate and proper attention is still not being paid to the
guidelines and instructions issued which in turn, reflects lack of required supervision at senior
level in various field formations to the special requirements of a preventive detention law like
COFEPOSA Act, 1974.
3. In dealing with any matter under the COFEPOSA Act, 1974 there is no scope for any routine,
mechanical or callous approach at any stage whatsoever. It must be clearly understood by all
concerned that this is an extra-ordinary law which requires extra ordinary level of promptness and
accuracy. Speed with quality is the essence. Once a Detention Order is issued, there is no scope
of rectifying any procedural/ technical lapse revoked/quashed. The entire mental framework for
dealing with preventive detention law has to be developed at all levels in such a manner as to be
attuned to its special requirements. The very object and purpose of detention must not be allowed
to be defeated through casual and careless handling leaving technical/ procedural gaps in the
process. The need to exercise extreme caution and promptitude at every stage of processing,
consideration, execution and follow up can hardly be over-emphasized. Posting of properly selected
staff/officers having proven track records and aptitude for dealing with COFEPOSA matters is a
must. Close monitoring and supervision at a senior level in the organizations sponsoring such
proposals/executing the Detention Orders is another important aspect that needs special attention.
Proper accountability needs to be ensured at every stage so that no aberration of the process is
allowed either deliberately or through ignorance.
4. Consistent and uniform approach in making the proposals under the COFEPOSA Act, 1974
is another important and relevant aspect which deserves special attention of all the Sponsoring
Authorities. There should no undue discrimination between cases as far as the decision to propose
preventive detention is concerned. It is worthwhile to reiterate in this context that the COFEPOSA
Act, 1974 does not make any distinction between a government servant and a person who is not a
government servant in the matter of invocation of the provisions of this Act. The employment
status of a government servant or any other person should not be a criterion for the purpose of
detention. It is the activity of the government servant/ or any other person that is to be taken into
consideration. However, before the issue of a Detention Order in respect of a Govt. servant, the
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Detaining Authority must assure himself that the detention is fully warranted to prevent recurrence
of collusion between the officer/official and foreign exchange racketeers and smugglers.
5. While the guidelines issued by the Central Govt. from time to time since the year 1974 for
implementation of the COFEPOSA Act, 1974 have to kept in view all the time, it must not be
forgotten that the basic objective of this Preventive Detention Law is to target the main operators
namely the organisers, financiers, kingpins and other who generally remain and operate from
behind the scene. Instances have been noticed where no worthwhile investigation is done to go
beyond the carriers or small operators who are caught red-handed and thus, the main operators
are not touched. It is once again emphasized that the main objective should be to reach the main
operators through proper and effective investigation so that such operators are detained under the
COFEPOSA Act, 1974 which would be in tune with the basic object and purpose of this Act.
6. Based on the past experience and on analyzing the relevant judgement of various High Courts
and the Supreme Court in important cases, a list of a few important and relevant areas where care
and attention must be specially bestowed by the Sponsoring Authorities/ Detaining Authorities is
enclosed as Annexure to this letter. These instructions may please be brought to the notice of
concerned officials under your charge for guidance and compliance.
7. The instructions enclosed to this letter are in consolidated form and must be read in conjunction
with the guidelines issued by the Central Govt. from time to time for implementation of the
COFEPOSA Act, 1974.
8. Last but not the least, it has been observed in the past that the concerned Authorities to whom
copies of such instructions had been sent did not devise a system by which such copies are
preserved in a Guard File which can be handed down to successors in the office. The inevitable
result is that the new incumbents remain unaware of such instructions and start acting in their own
way committing errors/ lapses in the process, which ultimately go against the interest of the case
and the Govt. It is, therefore, essential that continuity of knowledge and awareness about these
instructions is ensured at the operating levels by devising appropriate system in your organization
for this purpose.
Annexure I to the letter
And again that the Sponsoring Authorities are generally not ready with the updated, complete
and legible material when they forward the proposal to the Detaining Authority before the said
proposal is placed before the Screening Committee. The general tendency appears to be that the
Sponsoring Authorities wait for the outcome of the meeting of the Screening Committee and only
when they are informed that the proposal has been cleared by the Screening Committee they start
preparing the material for placing before the Detaining Authority. This practice, particularly noticed
for certain Sponsoring Authorities, has been found to result in delay which finally makes the Detention
Order liable to be challenged on this ground and same Sponsoring Authority fails to give satisfactory
explanation either before the Advisory Board or Court about the time gap caused by such delay.
This practice must be discontinued forthwith and it must invariably be ensured that the Sponsoring
Authority concerned presents up-dated, complete and legible material before the concerned
Detaining Authority within seven days of the date of communication to them about the clearance of
the proposal by the Screening Committee.
(ii)
Any material which is in a language other than English and Hindi should be translated
either into English or Hindi (in case the language in which that material appears is not
known to or understood by the Detaining Authority concerned) and should be forwarded
to the Detaining Authority along with the original material. It must be remembered that
such translated copies placed before the Detaining Authority for the convenience of
understanding the contents of such material will have to be supplied to the detenu along
with the original material. Otherwise, it will be construed as denying the opportunity to
389
the detenu to know whether the Detaining Authority has been made aware of the correct
content of the original material recorded in a language which is not know to or understood
Detaining Authority.
(iii) Particular attention should be given to retractions to the statements whether addressed
to the Investigating or any other Authority or submitted before the Ld. Courts and replies/
counter replies given by the Deptt. to such retractions. All such documents if existing at
the time of making the proposal must be enclosed as part of the material.
(iv) When the proposed detenu has been granted bail, the Sponsoring Authority must
immediately ascertain whether the person has actually been released on bail after fulfilling
the given conditions and report the correct/latest position to the Detaining Authority at the
time of making the proposal or thereafter till a decision is given on the proposal by the
Detaining Authority.
(v)
The material should be given along with an Index showing the list of documents sought
to be relied upon. The documents should be arranged chronologically and not in a
haphazard manner and the indexing must be done accordingly.
(vi) Any material generated after forwarding the proposal must be brought to the notice the
Detaining Authority forthwith till a decision is taken on the proposal. This is a very important
aspect which must not be forgotten by the Sponsoring Authority since such a failure may
prove fatal to the Detention order.
(vii) In case the Detaining Authority wants any further information/material this must be
attended to most expeditiously by the concerned Sponsoring Authority. This has to be
monitored at a senior level in the Sponsoring Authority’s office and no laxity should be
allowed to creep in while handling such matters. Instances have come to the notice
particularly where the proposals have been sent to or typed copy of the original documents
is likely to be challenged by the detenu on the ground that he has been deprived of the
opportunity of ascertaining the authenticity of the hand written or typed copy. Moreover,
important aspects of a document like signature, seal, stamp, logo etc. which may become
very relevant in a particular case can only be available in a photocopy. Therefore, to
avoid any possible lacuna or delay at a later stage, the proposals must be built up on the
basis of materials whose completely legible photocopies can be provided to the detenue
and this vital aspect must be taken care of at the investigation stage itself.
(f)
Once the investigation generating sufficient core-materials for the purpose of sustaining
a proposal for detention under COFEPOSA Act, has been over, the proposal for detention
of a person should be sent preferably within a period of 15 days from the completion of
such investigation to the concerned Detaining Authority. If there are unavoidable genuine
reasons for not sending the proposal within the aforesaid period, the same should be
explained while forwarding the proposal and it should be ensured that the proposal in
such an event is sent at lease within a period of one month from the date of completion
of the investigation. Any undue or unexplained delay in sending the proposal will adversely
add on to the time gap between the date of incident and passing of the Detention Order
and therefore, must be avoided at all costs.
(g) While forwarding any proposal for detention the Sponsoring Authority concerned should
keep the following aspects in view for compliance. Failure in respect of any of these
aspects would only result in correspondence between the Sponsoring Authority and
Detaining Authority’s Office causing delay in finalisation of the proposal :(h) The material forwarded to the Detaining Authority must be complete in all respects and
fully legible. It has been noticed time mentioned above. If this opportunity of recording
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such details at the first instance when the statements are being recorded is missed, it
may not be possible to gather all the details later on which should be a big handicap for
the Competent Authority to initiate action at the appropriate time under SAFEMFOPA.
(c) Legible photograph of the proposed detenu must also be taken and kept on record duly
attested for the purpose of identification at a later stage when the question of execution
of the Detention Order would arise.
(d) Apart from the address in which the proposed detenu is residing at the time when the
case is detected and his/her statement is being recorded, other addresses if any within
or outside the city where the case is detected must also be kept on record after
ascertaining them during interrogation and recording of the same statement. This would
help in tracking down the person once a Detention Order is issued in case he or she is
not available at the last known address of his/her residence. Details of his close relatives
including their addresses should also be found out at the investigation stage itself and
kept on record.
(e) If any important document seized or recovered during the investigation is itself found to
be such as not fit for producing a clearly legible photocopy for any reason, alternative
evidence must be gathered to support the proposal without the help of that document.
This is for the simple reason that any document which is finally relied upon by the Detaining
Authority must be communicated to the detenue. ‘Communication’ means that the relied
upon document must be completely legible. Failure on either of these two fronts means
that there is no communication as far as such a document is concerned. It is further
clarified that making a hand written provisions of COFEPOSA Act, 1974 it will be enough
to have that much basic material which will be sufficient for any reasonable mind to be
satisfied about the role and involvement of any person (for whom the proposal is sought
to be made) in the prejudicial activities from which he is required to be prevented. While
further investigation which may be necessary for the purpose of adjudication/ prosecution
may continue, the proposal for detention under COFEPOSA Act, 1974 need not be kept
pending till the completion of such elaborate investigation. The nexus between the date
of incident and passing of the Detention Order is a vital factor as far as preventive detention
is concerned. The essential distinction between the preventive detention and the punitive
action must always be specially kept in view. This would not only ensure drastic reduction
in the time gap between the date of incident and the passing of the Detention Order and
thus, the better proximity factor, but also cut down heavily the volume of material to be
considered and relied upon, while the object and purpose of issue of a Detention Order
would still be satisfied.
(iii) While doing the investigation, the following aspects must be kept in view and complied
with by the Investigating Official(s) concerned :(a) The educational background as well as the language (s) which the person concerned
can read, write and speak must be invariably recorded when the said person is tendering
his/her statement before the Investigating Officer. This information would become relevant
at the time of processing COFEPOSA proposal subsequently.
(b) Details of properties owned/held by the proposed detenue or by his/her relative or
associate (for this purpose Explanation 2 and Explanation 3 below Section 2 of the
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 may
be referred to) must be brought on record through interrogation. This will help to a very
large extent in initiating actions under SAFEMFOPA.
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Annexure II to the letter
Salient points to be kept in view while dealing with matters related to COFEPOSA Act, 1974.
A. Time gap between date of detection of a case and passing of Detention Order should be
shortest possible.
The Court/Advisory Boards have taken adverse view of any undue/unexplained delay in passing
the Detention Orders are issued In Shortest possible time from the time of detection of a case. For
this purpose, the following important aspects must be kept in view by the Investigating/Sponsoring
Authorities
(i)
Soon after a case is detected in assessment of the nature and gravity of the case in the
context of the object and purpose of COFEPOSA Act, 1974 read with the existing guidelines
issued from time to time for implementation of this Act should be made at a senior level
concerned with investigation of the Case. This is a crucial stage when a decision has to be
taken by the concerned investigating/sponsoring authority that the case is prima facie potential
enough to generate a proposal for detention under COFEPOSA Act.
(ii)
The investigation should be completed as fast as possible keeping in view the requirement
and purpose of preventive detention under the COFEPOSA Act, 1974. It must be noted in this
context that preventive detention is distinct from punitive proceedings like adjudication or
prosecution. For the purpose of invoking the concerned State Govts. That prolonged
correspondence generally continues for seeking and furnishing information/ clarification/
additional material and in the process the time gap gets unduly and unnecessarily widened.
Such routine approach must be avoided and things should be sorted out in shortest possible
time, if necessary, by personal contacts at fairly senior level between the two Authorities. If
and when written communications are to be sent forwarding the clarification/information/
material, the forwarding letters must be signed at least by Officers of the Deputy/Joint
Commissioner level in the Sponsoring Authority’s Office.
B.
Translation of materials wherever needed must be true and authenticated.
Whenever any material is required to be translated (for the purpose of making it in language
known to and understood either by the detenu or the Detaining Authority as the case may be),
it must be ensured that the translation is true to the original in all respects and does not
convey a meaning different from the original. No. portion of the original text should be missed
out in the translated copy. This is an aspect which has created extremely embarrassing
situation on a few occasions for the detaining Authority/Govt. concerned since any difference
between the original document and the translated version is generally adversely viewed upon
by the advisory Board/Courts resulting in the detention Order getting revoked/quashed. Nothing
can be more unfortunate than lack of adequate care and attention in getting the translation of
the material done. In this context, an instruction has been recently issued by J.S. (COFEPOSA)
addressed to all the Sponsoring Authorities vide this Ministry’s letter of even number dated.
9.5.2001 in which the fact of dissatisfaction and anguish expressed by the Hon’ble High Court
in recent case for such a failure has been already brought to the notice of the Sponsoring
Authorities. Considering the importance of this matter it is once again emphasized that
translation of material wherever needed must be done absolutely carefully and checked before
service to the detenu/forwarding to the detaining Authority as the case may be, so that the
translated text is completely true to the original in all respect. AS far as practicable, it must be
ensured that such translations are done by officially approved translators only. In any even, a
certificate should be obtained from the concerned translator to the effect that the translation
of the documents done by him/her is correct and true to the original text. This should be
signed and dated by the translator along with his/her designation. This will apply to any translator
392
who does the Job. Such translated texts should also be verified at a senior level in the Sponsoring
Authority’s office so that no variation creeps in between the translated text and the original
version in any manner whatsoever. It has got to be ensued that due care and caution are
exercised at all stages in this regard.
C.
D.
Proper framing of Detention Order and Grounds of Detention.
(i)
There should be enough material which would generate sufficient satisfaction in the
mind of a normal prudent person about the link between the person sought to be detained
and the prejudicial activity (ies) he is to be prevented from. The basis for an order of
preventive detention is the reasonable prognosis of the future behaviour of the person
based upon his past conduct. The Past conduct and antecedent history should be
proximate in the time and have rational nexus with the satisfaction about the detention.
The nexus or connection should be reasonably apparent on the face of the material and
should not be either far-fetched or arbitrary or illusory.
(ii)
The Detention Order should specifically mention the nature of the prejudicial activity(ies)
being indulged in by a person and from which he so sought to be prevented. The Grounds
of detention should bring out as to how the acts omission on the part of a person amount
to any one or more of the prejudicial activities mentioned in Selection 3(1) of the
COFEPOSA Act, 1974. If the material or grounds bring out more than one prejudicial
activity. Each of such activities should be specifically and separately mentioned. The
wordings describing the prejudicial activity both in the Detention Order and the
corresponding Grounds of detention should be strictly in accordance with the language
used in Section 3(1) of the Act Further, the prejudicial activity or activities narrated in the
Detention order and the Corresponding Grounds of detention must be identical since the
Grounds of detention form the basic material absed on which the Detention Order is
issued. Any variation between the two, therefore, gives an opportunity to the detenu to
question the application of mind by the Detaining Authority and also prompts him to take
the plea that he is not able to make an effective representation against his detention.
Communication/service of Detention Order, Ground sof detention and relied upon documents.
(i)
Detention Order: In a case where the person to be detained does not understand the
language in which the Detention Order has been issued by the Detaining Authority, The
said person will also have to be provided simultaneously with a translated copy of the
Detention Order in a language known to and understood by him. This must be ensured
without fail. A written acknowledgement from the detenu to the effect that the he has
received a copy of the Detention Order and has understood the contents thereof should
be obtained in his own handwriting. In case the person to be detained is illiterate, care
must be taken to get the contents of the Detention Order explained to him in the language
known to and understood him and a clear endorsement to this effect should be recorded
by the officer serving the Detention Order in the presence of independent witnesses/
Supdt. Of the jail (depending on whether the person is outside or inside jail at the time of
service of the Detention Order) Who should all Certify to this effect. Also if he is unable
to sign in token of receipt of the Detention Order, his thumb impression, duly witnessed,
should be taken as acknowledgement of receipt. The evidence about the proper service
of the Detention Order must be kept on record and sent to the detaining Authority’s
Office promptly. In case a persons refuses to accept the Detention Order. Despite all
reasonable efforts made by the official(s) concerned including explaining to the person
the contents of the Detention Order and legal implications of his/her refusal to accept
the said order, a proper Panchnama in the presence of independent witnesses/the Supdt.
Of the jail concerned (depending on whether the person is outside or inside the jail at the
relevant time) must be drawn keeping on record the proceedings which would be signed
393
by the official, drawing the panchnama. The independent witnesses as well as the Supdt.
Of the jail and this record should be forwarded to the Detaining Authority’s office promptly.
In case the help of an interpreter has been taken the same should also be recorded in
the Panchnama and the signature of the interpreter should also be obtained on the
Panchnama itself. All acknowledgements/endorsements must show the date clearly.
(ii)
Grounds of detention and relied upon documents: The Grounds of detention supported
by the relied upon documents form the basic material which affords and therefore, gives
him the basis for making effective representation against the detention. The Grounds of
detention and the relied upon documents must, therefore be invariable served together
to the detenu (including the copies translated into the language known to and understood
by the detenu, wherever necessary) normally within the statutory time limit of five days
from the date of his detention.
It is important to note that in case it is not possible to communicate the Grounds of
detention along with the relied upon documents within the normal time limit of five days.
Invocation of the extended time limit of 15 days from the date of detention under Section
3(3) of the COFEPOSA Act, 1974 will be possible only with the prior approval of the
concerned detaining authority who should be satisfied and record in writing that exceptional
circumstance do exist for the purpose of extending the time limit as above for
communicating the Grounds of detention and relied upon documents. The Sponsoring
Authorities and the Executing Authorities must keep this important requirement in view
so that there is no violation of Section 3(30 of the Act in any manner whatsoever.
(iii) Needless to say that utmost care should be taken to ensure that the Grounds of detention
as well the relied upon documents are all legible and complete, properly page marked
and there is an index of the relied upon documents should be certified to the legible and
signed by an authorized official of the Sponsoring Authority before service of the same to
the detenu. Proper acknowledgement of these documents must be obtained from the
detenu and the acknowledged set forwarded to the Detaining Authority’s Office promptly
for their record No page should be left out at the time of taking acknowledgement from
the detenu. In case the detenu is illiterate or refuses to accept the Grounds of detention
and relied upon document. The procedure indicated in respect of service of detention
order in such situations should be mutatis mutandis followed here also.
E.
Service of Detention Order while a person is in judicial remand
If the persons is in judicial custody at the time when the Detention Order is being issued, the
Detaining Authority should record in the Grounds of detent his awareness of this fact and
indicate the reasons for his satisfaction that there is an immediate possibility of release of the
person from judicial custody and once he is released on bail he is likely to continue to indulge
in the prejudicial activities) and therefore, there is a need to issue a Detention Order against
such a person. The Detention Order can be executed against the person even though he is in
judicial custody at the relevant time.
(ii)
It is person is not in judicial custody at the time the Detention Order is passed but
subsequently surrenders for whatever reason and is remanded to judicial custody, this
fact must be reported forthwith by the Sponsoring Authority/Executing Authority to the
concerned Determining Authority preferably by Fax/Speed post. While doing so, the details
about the factual background leading to his surrender and placement in judicial custody
should be furnished promptly by the Sponsoring Authority/ Executing Authority. A copy of
the bail application(s) of any, filed by or on behalf of the said person and the Deptt’s reply,
if any thereto, and any other documents and envelopments after his surrender and remand
to judicial custody should similar be furnished to the Detaining Authority without delay.
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The Detaining Authority would record his awareness about this fact and also give his
findings as to weather would record his awareness about this fact and also give his
findings as to weather or not considers it necessary to serve the Detention Order on the
person even when he is in decimal custody after his surrender and would also give
cogent reasons therefore. This consideration and decision by the Detaining Authority
has to be given before the execution of the Detention Order in such a situation. In case
the Detaining Authority is of the view (for the reasons to be recorded) that it is not necessary
to serve the Detention Order while the person is in judicial custody after his surrender,
the Sponsoring Authority should invariable keep the Detaining Authority promptly informed
in writing from time to time about further developments including the possibility of the
person getting released on bail so that the detaining time about the need to serve the
Detention Order in such a situation. In this context, the detailed instructions already
issued by this Ministry vide F.No. 671-1-97-cus. VIII dated 27.10.97 conveying the decision
of the Hon’ble Supreme Court in the case of Binod Singh Vs. District Magistrate, Dhanbad
reported in (1986) 4 SCC 416 may be referred to for guidance.
F.
Execution of Detention Order
As important as the expeditious passing of a Detention Order is the need for prompt service of the
same. On many occasions it has been the experience that the Sponsoring Authority apparently
tends to about a feeling that they have no further role to play in the matter and it is entirely for
the Detaining Authority and the Executing Authority to ensure service of the Detention Order.
This wrong notion needs to be dispelled forthwith. The Sponsoring Authority must keep in
mind the fact that their role and objective are not merely to have a Detention Order issue but
also to have the person detained because only then the object and purpose of issuing the
Detention because only then the object and purpose of issuing the Detention Order is really
achieved. It is relevant to Point out in this context that when there is any undue and unexplained
delay between the date of issue of the Detention Order and that of its execution, such a delay
is normally adversely viewed since it goes against the very object and purpose of issuing a
Detention Order. No doubt where the delay is adequately explained and is found to be the
result of recalcitrant or refractory conduct of the person concerned in evading the service of
the Detention Order, there is warrant to consider that the link is not snapped. On the contrary,
the link is further strengthened. Therefore, all out efforts must be made in getting the Detention
Orders executed in shortest possible time. While the exact strategy and method to be adopted
for this purpose are left to the individual sponsoring authority and the Executing Authority the
following few relevant aspects are highlighted for Guidance.
(i)
Close monitoring at a senior level of the executing and Sponsoring Authority is a must.
Mutual assistance and cooperation should be ensured so that conserved efforts can be
made in location the person against whom the detention order has been issued without
any loss of time.
(ii)
It is also essential for the Sponsoring Authority and the executing Authority to invariable
keep documentary records of efforts made by them. Whatever necessary the records
should be kept in the form of a Panchnama. It must be remembered that such
documentary evidence are very often required to be produced before the Hon’ble advisory
Boards/High courts and will be open to strict scrutiny. It has been noticed that often the
Executing Authorities tend to reduce their role to making routine periodical visits to the
known addresses of the person (s) concerned. Without maintaining close liaison with
the concerned Sponsoring Authority. This makes the effort ineffective while valuable
time gets lost. It would be highly desirable that periodical view of absconder’s cases is
taken jointly by the senior officials of the Sponsoring Authority and Police Authorities at
regular intervals.
395
(iii) Keeping surveillance and Developing proper intelligence about the possible whereabouts
of the persons concerned is extremely important. it goes without saying that this alone is
the most effective method by which the proposed detenue can be located as otherwise
he may continue to evade the service of the Detention Order by ensuring his non-availability
at his known address.
(iv) Photograph of the person against whom a Detention Order has been issued must be
made available to the concerned Executing Authority by the Sponsoring Authority for
ease of identification of the person. This should be done as soon the Detention Order is
issued. If any effective intelligence/ information is gathered by either of these Authorities
prompt action should be ensured and this would be possible if proper liaison is kept
between the two Authorities at the senior level.
(v)
It is equally important to keep a track of the Court proceedings, if any going on, in which
the proposed detenu is required to appear before the Hon’ble Court on a given date.
Here again, close liaison with the Executing Authority has to be maintained by the
sponsoring Authority to ensure that the chance of locating the Proposed detenu at the
earliest opportunity is not lost.
(vi) The Sponsoring Authority and the Executing Authority must send the details of efforts
made by them to execute the Detention Order every 15 days to the Detaining Authority
Concerned from the date of issue of the Detention Order. These reports should indicate
what new/fresh steps of measures have been taken by them in locating the proposed
detenus and should not be sent in a routine manner.
G.
Action against absconder
(a) Section 7 of the COFEPOSA Act, 1974 provides for the actions to be taken in relation to
absconding person. The actions under Section 7 of the Act should not only be initiated
promptly but should also be followed up closely so that they become most effective. For
this purpose, action under section 7(1) (b) should be taken preferably immediately on
expiry of the one month from the date of the Detention Order in case it remains unexecuted
during that period. Similarly, after issue of the Notification in the Official Gazette as required
under section 7(1) (b) it would be preferable to wait for one more month and in the event
of the person (s) still absconding, action under section 7(1) (a) should be initiated forthwith.
While adequate publicity many be given about the absconders evading service of the
Detention Orders issued under the COFEPOSA Act, simultaneously efforts must continue
to develop intelligence about their possible whereabouts. Similarly, the matter must be
closely followed up with the Jurisdictional Magistrate after a Report under section 7(1)
(a) has been made so that all the steps prescribed in this regard under the Code of
Criminal procedure, 1973 are effectively and promptly taken. The follow-up action taken
in this regard should invariably be reported to the Detaining Authority periodically. All
these steps would have a combined effect and would go a long way in compelling the
absconders to surrender before the process of law at the earliest. Any slackness at this
stage would only result in losing valuable time which may ultimately prove detrimental to
the very object and purpose of issuing the Detention Order.
(b) There have been instances where an absconder obtains a stay from the Hon’ble Court
against the execution of a Detention order. Needless to say that prompt action needs to
be taken to get the stay vacated by taking effective steps in this regard. In respect of
certain old Detention Orders it has been observed that such stay continued for years
which does not certainly reflect will on the efficiency and sincerity of purpose on the part
of the concerned Sponsoring Authority. In some of these cases the absconder tends to
approach the jurisdiction of another High Court on some pretext or the other and in such
a situation the concerned Sponsoring Authority must keep close liaison with the
396
jurisdictional Customs/ Central Excise/ Enforcement/ DRI Authorities for getting the stay
vacated. The concerned detaining authorities must be worthwhile to point out in this
context that the Hon’ble Supreme Court has clearly laid down five exceptional
circumstances in which alone the Hon’ble Courts may interfere with an unexecuted
Detention order.
Attention may be drawn to be decision of the Hon’ble Supreme Court in the case of
Additional secretary V. Alsk Subhash Gadia reported in (1992) Suppl. (1) SCC 496. This
has been reiterated in various other judgments of the Hon’ble Supreme Court. Reference
in this regard may be made to the decision reported in (1995) Suppl. (4) SCC 252,
(2000) 8 SCC 630 and 92001) 3 SCC 92. These judgments must be cited and relied
upon whenever such a case comes before the High Court for securing a prompt disposal
of the matter.
(c) In case a person against whom a Detention order has been issued and who is absconding
was initially released on bail, prompt action must be taken by approaching the Hon’ble
Court with granted bail to such a person with the prayer to get the bail cancelled. This
action should be taken along with other actions indicated above under section 7 of the
act.
(d) In case the Passport details of the proposed detenu are available the same should be
promptly sent to the Ministry of External Affairs with the request to get the passport
cancelled Similarly, action should be taken quickly to issue alert notices at the Airports
and other possible routes of exit of the proposed detenus by intimating the Agencies
concerned.
(e) Equally important is the action to be initiated by the Competent Authorities under the
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(SAFEMFOPA). Details of the properties as might be available with the Sponsoring
Authority should be forwarded promptly to the concerned CA for this purpose and all
possible help should be extended to the CA for initiating action under SAFEMFOPA. It
may be clarified that the provisions of SAFEMFOPA, 1976 apply, inter-alia, to every person
in respect to whom an order of detention has been made under the COFEPOSA Act,
1974. Therefore, initiation of action under SAFEMFOPA need not wail till a Detention
Order has been executed.
H.
Disposal of representation
(a) One of the important remedies available to a detenu is his right to make representation
against the Detention Order. The Authorities to whom a detenu may make a
representation against his order of detention are indicated in the Grounds of detention.
Utmost care has to be taken at every stage of dealing with such representations to
ensure that there is no undue or unexplained delay in handling such representation. The
Supdt. of the concerned Jail where the detenu is lodged mist ensure that any representation
against the Detention Order received by him from or on behalf of a detenu under his
charge is sent to the correct Authority and address forthwith by Special Messenger/
Speed post and proper record is kept about the date and time of the receipt of the
representation by him from the Detenue and the despatch to the concerned Authority.
The representation itself must be addressed properly so that there is no confusion
whatsoever on this aspect.
(b) Whenever comments are called on the points raised in the representations, the Authority
from whom the comments have been called must act with utmost promptitude and
forward the required comments by FAX or by Speed Post. No slackness or indifference
should be shown in dealing with the representations and while forwarding the comments
397
the concerned authority in the forwarding letter must invariably indicate the date on which
the received the letter calling for the comments so that the rime taken in preparation of
the comments after receipt of the letter can be worked out. By and large it should be
ensured that the comments reach the Authority who called for them within 5 days of
receipt of the letter calling for such comments.
I.
Disposal of application for temporary release on parole.
(a) Generally factual details are called for them the concerned sponsoring authority on the
grounds taken in the application for granting parole to a detenu. Proper inquiry on the
factual aspects ahs to be done promptly and the report, supported by documentary
evidence, wherever necessary, should be forwarded by the sponsoring authority without
avoidable loss of time.
(b) Attention is drawn to the decision of the Hon’ble Supreme Court in the case of Sunil
Fulchand Shah Vs. Union of India & Others reported in (2003) 3 SCC 409 in which the
court, inter-alia, considered the provisions of Section 12 of the COFEPOSA Act. 1974
dealing with the powers of the appropriate Govts. To grant temporary release of a detenu
(on parole). All concerned are expected to study this judgment for important decisions
indicated therein. One of the important points of decision which must be noted is that
parole does not interrupt the period of detention and, thus, that period needs to be counted
towards the total period of detention unless the terms for grant of parole, rules or
instructions, prescribe otherwise. For example, if a person has been detained say on
20.4.2000 and was granted parole for say 15 days during the period he was under
detention, his date of release on completion of one year period of detention computed
from 20.4.2000 will remain unaffected despite his release on parole for 15 days, unless
the authority competent to order release on parole, specified in the order granting parole
that the period for which the detenu remained on parole will not be counted towards the
total period of detention. In that event, the total period of detention would get extended by
the period (15 days in the above example) (Authority: MFDR letter issued vide F. No. 671/
6/2001-Cus. VIII dated the 12th July, 2001.)
I have had a look at the daily reports submitted by the Saudis Shift Preventive . The
report has begun to be rather to be rather routine. I do not find from the reports any effort
being made to check possible areas of smuggling. Generally the report Is silent on
rummaging of the aircrafts, visits to the apron area, special operations being carried out,
deployment of detector dogs., unscheduled X-raying of any flights, special surveillance
or watch of any kind. You may kindly take a meeting of new ACSs in Preventive and
emphasis that this report should be given the highest priority.
ACSs (AIU-I/II) should also send a report whenever they visit the Airport for any special
operation .Once a week, the two ACS(AIU)should meet me with you to discuss the
efforts made by them for collection of intelligence .I expect the AIU to concentrate on
more serious work and in particular collect market intelligence about the trends in
smuggling .Observations on the frequent visits by short visitor in any particular shift may
be brought to my notice.
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Annexuare II
OFFICE OF THE ADDITIONAL COMMISSIONER OF CUSTOMS
I.G.I.AIRRORT : NEW DELHI.
DAILY REPORT OF SHIFT (PREVETIVE)1
Details of fight required to be X- rayed but could not be X- rayed and reasons:Belt xrayHand baggage x- ray
2
Whether visa desk terminals well operational and manned at all times
3
Details of equipment that a went out of order wholly or partly during the duty and action
taken to rectify defects.
4
Details of any frequent /short visitor noticed
5
Names of unauthorised absentee officers (for whole shift preventive)
6
Special initiatives taken @ training of staff ,summating, checking of any special areas.
7
General observation ,if any.
and action taken
AIR Customs Superintendent (PREV-I)
B DEPATURE (P-II)
1.
Details of flights rummaged
2.
Want checks were conducted at Tarmac
3.
Whether visa desk terminals well operational and manned at all times
4.
Details of equipment that become dysfunctional wholly or partly during the duty
5.
Details of any frequent /short visitor noticed and action taken
6.
Special initiatives taken @ training of staff, rummage checking of any special areas.
7.
General observation ,if any.
AIR CUSTOMS SUPERINTENDENT (PREV-II)
(Authority :OFFICE ORDER DATED :12.1.2001 issued vide C.No Misc ./I/I/GIA/2000/pt.)
Subject: Grant of reward to informers and Government Servants- Review of Policy ,Procedure
and Guidelines –regarding.
The existing policy procedure and guidelines in respect of grant of reward to informers and
Govt. servants ,issued under Ministry ‘latter F. No . 13011/3/85-AD.V dated 30th March 1985 ,as
amended from time to time, so far as it relates to the cases of seizures made /infringement or
evasion for duty etc. detector ,by the field formations under the administrative control of central
board of Excise & Customs , have been subject to comprehensive review by the Government in
the light of the Department of made by the working group set up to review the Reward Schemes in
the Department of Revenue and various suggestions received from the field formations . It has
been decided to keep the scheme, without any fundamental changes, though in with the various
recommendations and changing scenario of smuggling & commercial frauds certain modified
399
have been considered necessary. Accordingly it has been decided to lay down the following revised
consolidated guidelines for grant of reward to informers and Govt . servant .All previous guidelines
issued on the subject may be deemed to be procedure contained in the previous order /instructions
issued by the Ministry in so far as they are not inconsistent with the present/revised guidelines, will
however remain unchanged.
2.
Scope of the Reward Guidelines
2.1 These guidelines will be applicable for grant of rewards to the informers and Govt servants in
respect of cased of seizures made and/or infringement /evasion of duty etc detected under
the provisions of the following Acts:(1) The Customs Act, 1962,
(2) The Central Excise Act, 1944,
(3) Narcotic Drugs & psychotropic substances(NDPS )Act, 1985
2.2 These guidelines will also be applicable for grant of rewards in respect of cases of detection
of Drawback frauds or abuses of duty exemption schemes such as DEEC, EPCG etc
unearthed on the basis of specific prior information .
3.
Eligibility for Reward to Govt. Servants
3.1 Ordinarily. Govt. servants up to the level of Group ‘A’ officers of the rack of Dy. Commissioner
of Customs & Central Excise ,will as in their individual capacity with regret to collection of
intelligence ,surveillance , effecting of seizure /detection of duty evasion and post – seizure
investigate .
3.2 Group ‘A’ officers above the rack of Dy. Commissioner of Customs & Central Excise will not
be eligible for reward on the basis of the value of seized goods/amount of duty evaded etc.
However, in appropriate, cases , they may be considered for grant of lump – sum payment
and/or recognition, in nay other manner, of the services rendered by them , for which proposal
may be forwarded by the jurisdictional Chief Commissioners of Customs and Central Excise
to the Ministry through DGRI or DGCEI , as the case may be.
3.3 Govt. servants working in other Departments / Agencies such as Police, BSF and Cost Guard
etc. may also be considered for sanction of reward in respect of cases of seizures of contraband
goods effected by these agencies of under the provisions of Customs Act, 1962. However
only such officers of these Department /Agencies who hold rack equivalent to the Dy.
Commissioner of Customs and Central Excise or lower rack ,will be considered eligible for
sanction of rewards in terms of para 3.1 above.
3.4 In view of the emphasis of economic crime shifting now –a-days from outright smuggling to
commercial frauds which require an in – depth investigation and collection of evidence for
establishing the various infringement of law – there is a need for better appreciation of the
work of the officers engaged in the investigation work of the officers engaged in the investigation
work . The officer (s) engaged in the collection of intelligence and search/seizure operations
,while sanctioning reward.
3.5 Govt. servants involved in post- investigation work such as those posted in adjudication ,
COFFPOSA, Legal or Prosecution Cells of the Commissioner ate /
Custom House may also be considered for grant of lump – sum payment of reward not
exceptional zeal, enthusiasm or initiative displayed by the officer (s) to assist in speedy and
effective finalization of adjudication like confiscation of seized goods, confirmation of duties
demanded and /or imposition of penalties detention convictions .etc.
400
3.6 Govt. servant engaged in audit/special audit who have made outstanding contribution in
detecting major cases of evasion of central excise duty , may also be considered for grant of
lump – sum payment of reward , not exceeding Rs.5,000/ - in each case on work . The
officer (S) engaged in the investigation work should , there fore be considered at par with the
officers.
3.7 The Departmental Representatives and other officers /staff working in the office of chief
Department Representatives (CDR) CEGAT , may also be considered for sanction of reward
in deserving cases. For which purpose specific proposals may be sent to the Ministry by the
Chief Departmental Representative .Only such cases should be recommended for reward
where the opposite party was represented by a senior advocate or eminent always and effective
pleading by the Departmental Representative .Clear – Cut cases where the point at issue
was already , just because the stakes involved in the case were very high.
4.
Quantum and ceiling of Reward
4.1 Informers and Govt. .servants will be eligible up to 20% of the net sale- proceeds of the
contraband goods seized and /or amount of duty evaded plus amount of fine and penalty
levied /imposed and recovered . However in receipt of gold silver, opium and other narcotic
drugs etc. seized under the provisions of the Customs Act ,1962 /Narcotic Drugs and
Psychotropic substances (NDPS) Act, 1985 the overall ceiling of reward will be as specific
rates indicated in the Annexure. These ceilings would be subject to periodicals revision in the
light of the price fluctuation of these items, for which periodicals intimations may be sent to
the DGRI who in turn will send suitable recommendations to the Ministry
for appropriate
revision as and when warranted.
4.2 In respect of cases of detection of Drawback frauds or duty exemption schemes such as
DEEC, EPCG etc unearthed on the basis of specific prior information , the informers and
Govt servants will be eligible for reward up to 20% of recovery of drawback claimed fraudulently
and /or recovery of duties evade under DEEC/DEPB/EPCG schemes ,plus amount of fine /
penalty /imposed and recovered.
4.3 Reward to Govt servants however may ordinarily be paid up to 10% of the net sale-proceeds’
of the contraband goods seized and /or amount of duty evaded and/Or amount of fraudulently
claimed Drawback recovered plus amount of fine /penalty levied /imposed and recovered
.Similarly in respect of Gold , Silver ,Opium & Narcotic in the Annexure .Reward in excess of
this limit but not exceeding 20% of the value may be considered only in such cases where the
Govt . servant has exposed himself /herself to a grant personal effort have been mainly
responsible for the detection of case of seizure/evasion of duty .
4.4 Govt servant will be eligible for sanction /payment of total reward not exceeding Rs. 10 lakes
during their entire career .As regards reward in a single case. An individual officer should not
be sanctioned a total reward ( advance reward and final reward put together )exceeding
Rs.1lakh . However , in exceptional cases reward in excess of this limit I . e. above Rs 1 lakh
can be sanctioned to an individual officer , by the Board on the recommendations of the
Reward sanctions authority for which proposals may be sent to the Ministry , thought DGRI or
DGCEI as the case may be.
5.
Reward should not be Granted as a Mater of Routine
5.1 Reward is purely an ex- gratia payment which, subject to guidelines , may be granted on the
absolute discretion of the /authority competent to grant rewards and cannot be claimed by
anyone as a matter of right . In determining the reward which may be granted the authority
competent to grant reward will keep in king the specificity and accuracy of the information ,
the risk and trouble undertaken the extent and nature of the help rendered by the informer
401
,whether information gives clues to persons involved in smuggling .or their associates etc.
the risk involved for the Govt . servants in working out the case the difficulty in securing the
information the extent to which the vigilance of the staff led to the seizure the securing
,special initiative efforts and ingenuity displayed etc. and whether besides the seizure of
central initiative efforts and goods the owners /organizers /financiers/ racketeers as well as
the carriers have been apprehended or not.
5.2 Reward Should not be sanctioned for routine and normal nature of work.
Payment of Advance /Interim Reward
6.1 Advance /interim reward may be paid to informers and .Govt .servants up to 50% of the total
admissible reward immediately on seizure in respect of the following categories of goods
namely:.
A)
gold /sliver bullion,
b)
Arms and ammunition , explosives ,and
C)
opium and other narcotic drugs
6.2 In other cases of outright smuggling , involving seizures of contraband goods
Including foreign currency , advance / interim reward up to 25% of the total admissible reward
may be paid to the informers and Govt ,servant ,immediately after seizure, if the authority
competent to sanction reward is satisfied that the goods seized are reasonably expected to
be confiscated on adjudication and the adjudication order is likely to be sustained in appeal/
revision proceedings.
6.3 In all other cases , including Customs appraising cases , cases of town – seizures and
Central Excise duty evasion cases , normally no advance/ interim reward will be granted.
However in cases where the parties/persons involved have volunteering paid the amount of
duty evaded during the course of investigation , admitting their liability , 25% of the voluntary
deposits may be considered for payment as advance interim reward to the informers ,the
issue of the show- cause notice (scn) provided the authority competed to sanction reward is
satisfies that there is being established in adjudication and sustained in appeal/reversionary
proceeding s. However in such cases , the Govt servant will become eligible for payment of
advance /interim reward only after adjudication of show – causes notice resulting in
confirmation of duty.
6.4 In exceptional cases , the Heads of Department may, having regret to the value of the seizures
effected and magnitude of the evasion of duty /infringement detected and special efforts or
ingenuity displayed by the officered concerned , sanction suitable reward on the sport to be
adjusted against the advance /interim reward that be sanctioned subsequently.
7.
Payment of final Reward
7.1 Final rewards both to officers as well as informers should be sanctioned and disbursed only
after conclusion of adjudication /appeal /revision proceeds .The final reward will be determined
on the basis of the net sale proceeds of goods seized /confiscation (if any) or the amount of
additional duty and directly claimed .Drawn back recoded plus penalty /fine recovered and
directly claimed . Drawn back recorded plus penalty /fine recovered and the total award
admissible i.e advance and final input together .will not exceed the ceiling of 20% of the net
sale proceeds (if any) plus amounts of additional duty /fine/penalty recovered or the amount
of subject to instructions in para 4.3 above as regards rewards to Govt serpents is concerned
.the advance /interim reward sanctioned and disbursed .if any shall be adjusted fro m the final
reward to be paid to the officers/informers.
402
8.
Delegation of Power for Sanction of Reward
The monetary limit for sanction of rewards to informers and Govt servants are given below
Monetary Lakhs
Reward Sanctioning Authority
Up to Rs. 5 Lakhs
Jurisdictional Head of Department, i.e. Commissioner of Customs
and Central Excise AddI .Director General , DRI/ADDI .director General
,DGCEI.
Above Rs. 5 Lakhs
&up to Rs.10 Lakhs
A c committee comprisingJurisdictional Commissioner of Customs
& Central Excise /ADG,DRI/ADG,DGCEIOne of Jurisdictional Addl.
Commissioner /Director or Senior most Jt. Commissioner Director
of the Commissioner or the DRI/DGCEI as the case may be, andAn
officer of equivalent rank, out of said the Commissioner /Directorate
i./c ,Addl or Jt . Commissioner of Customs &Central Excise of another
local Commissionerate near it Joint Director (DRI) or jt. Director
(CE) or jt . Director (DPO),nominated by jurisdictional Commissioner
/ADG,DRI,ADG, CEI.
AbovRs.10 lakhs &
up to Rs. 20 lakhs
A committing comprisingJurisdictional Chief Commissioner /DGRI/
DGCEI,Jurisdictional Commissioner of Customs & Central Excise /
ADG,DRI/ADG,DGCEI andCommissioner (Preventive Operations) or
any other Commissioner rank officer nominated by the Chief
Commissioner /DGRI/DGCEI.
Monetary limit
Up to Rs. 5,000/-
Reward Sanctioning AuthorityJurisdictional AddI. Commissioner /jt
commissioner /Director of Customs & Central Excise.
Above Rs. 5,000/&
up to Rs.10,000/-
Jurisdictional Head of the Department i.e. Commissioner of Customs
& Central Excise AddI. Director General (DRI) ADDI . Director General
(CEI)
About Rs. 10,000
& up to Rs. 50,000/.
A committee comprising(1) Jurisdictional Commissioner of Customs
& customs & Central Excise /jt. Director General (DRI) jt . Director
General(AE)(2)Jurisdictional Addl/jt Commissioner /Jt Director (DRI)
jt. Director (CEI)(3)An out said
ADDI/jt . Commissioner Director
(DRI) jt Director (CEI) , nominated by Jurisdictional Commissioner in
Consultation with concerned commissioner /DG/ADG.
Above Rs. 50000/but less than Rs . I lakh
A Committee comprising(1)Jurisdictional Chief commissioner /DGRI/
DGCEI,(2)Jurisdictional Commissioner of Customs & Central Excise
/ADG(DRI)/ADG(CEI) and(3)Commissioner (Preventive operations)
or any other commissioner of Customs /Central Excise , nominated
by the Chief commissioner /DGRI/GCEL.
10. Mechanism to Monitor the Reward Sanctioned to the Govt . ServantsTo ensure that the Govt.
servant do not exceed the ceiling of Rs. 10 lakh of total reward during their cares ,all rewards
sanctioned to the Govt . servants should be entered in their Service Book , before the same
are disbursed . Detailed instructions issue vide Ministry s, letter F. No .394/95-Cus /As)dated
18 th September 1998,may be scrupulously followed in this regard.11. In view of the
liberalisation of rewards the Heads of Department will take special are to ensure that the
value of goods the time of seizure is fully realistic and represent the ensured valve of goods.12.
To ensure that rewards is not cornered by a few officers only. It is necessary that large number
of officer are given an opportunity to work on the anti- smuggling and anti-evasion posts. It is
403
,there fore ,desired that there should be periodic rotation of officers and no officer should be
allowed to be posted to airports ,DRI,DGCEI or Headquarters .Preventive of a Commissioner
ate /Custom House for more than the prescribed tenure ,as per the existing instructions of
the Board on the subject .13. Undertaking by the InformerAt the time when an informer
furnishes any information or documents, an undertaking should be taken from the informer
that he /she is a aware that the extent of that the award depends on the precision of the
information furnished by him /her that the provisions of Section 82 of the Indian Penal Code
have been read by and/or explained to him/her, that he/she would be liable to prosecution
,that he/she accepts that the Govt ,is under no obligation to enter into any correspondence
regarding the details of seizures made etc.if any and that the payment reward is ex- gratia in
the absolute discretion of the authority competent to grant reward . It may also be made
specifically the maximum admissible reward up to 20% of the net sale proceeds of the
seized/confiscated goods .,(if any)and /or the mount of to be sanctioned to the informer will,
purely depend on the specificity & accuracy of the information & other dependent factor as
indicated in Para 5.1 of these guidelines.
14. Please acknowledge receipt of this letter.
404
ANNEXURE
(Paras 4.1 and 4.3)
SI. NO. Commodity
Range of Illicit
Prices indicated
Rte of maximum
@ 20% of illicit
prices
Prescribed Purity
(1)
(2)
3(a)
3(b)
(4)
1
Gold
-
Rs 500/-per
10grams
999.5 mile or more
2
Silver
-
Rs 10000/-per kg 99% or more
3
Opium
Rs 1,100/-Rs 2000/-
4
Morphine base
and its salts
Rs 40000/-Rs 50000/- Rs 8000/-per kg
5
Heroin and its salts
Rs 100000/Rs 300000/-
Rs 20000/-per kg 90% or more diacetyl
morphine
6
Cocaine and its
salts
Rs 200000/Rs 600000/-
Rs 40000/-per kg 90% or more of anhydrous
cocaine
7
Hashish
Rs 2000/-Rs 3500/-
Rs 400/-per kg
8
Hashish Oil
Rs 10000/-Rs 17500/- Rs 2000/-per kg
Should be comer-cailly
acceptable as Ganja
9.
Ganja
Rs 400/-Rs 500/-
Rs 80/-per kg
Presence of Methaqualone
10
Mandrax Tablets
-
Rs 500/-per kg
405
Rs 220/-per kg
Standard opium
90% or more of
anhydrous morphine
With THC content of 4%
or more
Section 13
ADJUDICATION
S. No.
13.1
Statutory Provisions
325
13.2
Essentials of Adjudications
325
13.3
Categories of Adjudications
326
13.4
Offences and Violations commonly Adjtidicated
326
13.5
Model Adjudication Order
327
13.6
Precautions before passing adjudication order
328
13.6.1
Adjudication
328
13.6.2
Show Cause Notice
328
13.6.3
Show cause Notice-Delivery
328
13.6.4
Issue of show cause notice in respect of
Seized good intimation to be sent to the
party in case of extension of time limit
328
13.6.5
Document in Departmental proceeding copies
referred to in the show cause notice to be
supplied of charge
329
13.6.6
Seizure Invoking section 123 of the Customs Act.
1962- mention of reasonable belief in the show cause notice
329
13.6.7
Issue of show cause notice and grant of personal
Hearing by officer other than the one issuing final order is
Instructions
329
13.6.8
Issue of show cause notice and grant of personal
hearing by officer other than the one issuing final
orders instructions
330
13.6.9
Powers of adjudication –computation of value of
the vehicles for determining the competency of the officer
where goods involved are considerably low in value
331
13.7
Power of adjudication
331
Annexure
Amendment to Customs Act 1962 reducing period of appeal to two months.
2 Recording of complete details on the spot adjudication order
407
Section-13
ADJUDICATION
13.1 Statutory Provisions
The relevant statutory provisions contained in the Customs Act are as follows:
Section 122: Give powers of adjudication. In cases where the C.I.F. value of offending goods
is up to Rs. 2,00,000/- adjudication is to be done by the Assistant Commissioner/Deputy
Commissioner and in cases where value of offending goods is more than Rs. 2,00,000/- adjudication
is done by the Joint/Additional Commissioner. There is no value limit imposed for the purpose of
adjudication of Airport cases by Joint/Additional Commissioner.
Section 124: Requires issue of a show causes notice, submission of written reply and grant
of personal hearing before passing an adjudication order for confiscation of goods or imposition of
penalty. The section permits, at the request of the person concerned, an oral show causes notice
and its reply.
Section 125: Permits absolute confiscation or prohibits goods and requires release of restricted
goods on imposition of fine. Care may be taken that the quantum of fine does not exceed the
market price of the goods confiscated, less the duty chargeable thereon.
Section 129: Provides for filing of appeal against the adjudication order before the
Commissioner (Appeals) within 60 days.
13.2 Essentials of Adjudication Order
Adjudication order is vital document and should be able to stand the judicial scrutiny. It should
clearly reflect the application of mind by the adjudicating authority to the various facts, law and
submissions made before him in arriving at the decision taken by been passed without proper
application of mind to survive.
Essentials of an adjudication order:
Facts: They are the starting point of the adjudication proceedings and should be recorded
precisely and compressively stating all details.
Law: The provisions of law which have been contravened with reference to the facts stated
and the authority in terms of which the said adjudication order is being passed should be clearly
mentioned in the adjudication order.
Submissions: The submissions of the accused on the points of law and fact should find
mention in the order. It is now a well-settled principal of law that any order
Passed in violation of the well established principles of natural justice is bad in law and would
be struck down on this ground only.
Analysis of facts and Law: It is now well established that adjudication orders are not opinion of
the adjudicating authority but are well deduced orders on the basis of sound analysis of the fact
and law by the adjudicating authority. The adjudicating authority should record analytically the
various reasons which led him to the final conclusion and decision taken by him.
Order: The final and most crucial aspect of the adjudication order is the Order part. The order
should be very clear and explicit without any ambiguity and doubt. It should clearly record the
provisions of law in terms of which the said order is being passed.
409
The adjudication order should clearly mention about appellate remedies available to the person
against the order.
13.3 Categories of Adjudications:
Adjudications at airport can be put in two categories:
Spot Adjudications
Detailed adjudications
Spot Adjudications:
These are the orders which are passed as matter of convenience for the passengers arriving/
departing from the airport. On a prescribed format the facts are recorded briefly by mentioning the
detailed inventory of contravening goods and the nature of violation. In case the passenger agrees
to waive the requirement of the show cause notice, the adjudicating officer records the personal
hearing and submissions made by the passenger in brief. After having recorded all the above the
officer gives analysis of the facts and law in the matter and passes the order. Although spot
adjudication orders are very short and brief but are viewed by the judicial authorities with equal
strictness and fulfill the required tests of judicial scrutiny.
Detailed Adjudications:
These orders are passed after following the complete procedure i.e.
Investigation
Show cause notice under Section 124 of Customs Act, 1962
Reply and written submissions by the noticee.
Personal Hearing
Analysis of the facts and law by the adjudicating authority
Final Order
Service of the Order.
Such adjudication are normally done in the case of preventive cases which require detailed
investigations and recording of the facts then what are available at the time of the passenger
clearance. All the facts are thoroughly investigated and are made part of the show cause notice
issued to the accused. Accused is allowed reasonable time to reply and engage counsel of his
choice to defend him. After hearing the passenger through his counsel or self the adjudication
order is passed.
13.4 Offences and Violations commonly adjudicated:
(a) Mis-declaration of the baggage
The mis-declaration may be in any one or more manners:
Misdeclaration of quantity;
Misdeclaration of value;
Misdeclaration of contents or description;
Walk through Green Channel with dutiable or prohibited or restricted goods;
410
Non-declaration of prohibited or restricted goods at the time of export.
(b) Importing Non- bona-fide Baggage
In terms of EXIM policy paras 4.1 and 5.6 the concept of bonafide baggage has been evolved.
It is now an accepted practice that the baggage carried by the person would include only
those goods which he/she would require during the course of his/her journey for making gifts
or personal use. Thus any goods which do not meet these requirements contravention of the
above. In terms of Section 3(3) of Foreign Trade (Development & Regulation Act) 1933 such
goods are also in contravention of the Section 11 of the Customs Act 1962 and hence liable
for confiscation under Sec 111(d) of the Customs Act, 1962.
(c) Exporting non-bonafide baggage
In terms of EXIM policy para 11.6 the concept of bonafide baggage in departure has been
evolved. Thus any goods which do not meet the above requirement are in contravention of
the above. In the terms of Section 3(3) of Foreign Trade (Development & Regulation Act)
1933 such goods are in contravention of the Section 11 of the Customs Act 1962 and hence
liable for confiscation under Sec 113(d) of the Customs Act.
Above mentioned are some of the offences which would involve confiscation of the foods and
imposition of the penalty on the person concerned. There can be various permutations and
combinations of the above and also some other specific offences which are not listed here.
13.5 Model Adjudication Order
MODEL SPOT ADJUCATION ORDER OF DETAINED GOODS
I.G.I. AIRPORT: NEW DELHI.
F. No. VIII(WH)
/DR/2002/
A.O.No.…………
Dated …………………….
The pax Mr. ————————————————— holder of —————————————
Passport No. —————————————————— had arrived by flight No. ———————
dated ——————. He was walking through the Green Channel and was diverted for X-ray
screening of his baggage. Based on suspicious indicators, the baggage was later on marked for
detailed examination. On detailed examination, the goods mentioned at page no. 1 of this order
valued at Rs. ————————— were recovered from the baggage. The same were detained
vide DR No. ———————— dated ———————— for adjudication. The pax has made ——
———— visits during the last one year.
I have heard the pax. He was requested for the waiver of show cause notice.
The pax admits that he has made an untrue declaration of his baggage in violation of the
provisions of Section 77 of the Customs Act, 1962 and that his baggage comprises non-bonafide
baggage and is matter for commercial sale for profit.
I have gone through the facts of the case. From the number of visits made by the pax it is
clear that he is a frequent traveler, well conversant with the law and had no reason to misdeclare
the goods.
The concept of Green Channel is now widely known as it is used in practically in all parts of
the world. By attempting walk through Green Channel pax has made it abundantly clear that he
wished to evade duty.
His bringing of commercial goods confirms the belief that he is engaged in the activity of
trading for profit, that too very frequently. Such passengers have tendency to distort Governments’
411
efforts to facilitate genuine pax and abuse the trust reposed by the Government in permitting a very
large number of passengers to walk through green channel without being subjected to routine
examination. The breach of this trust therefore needs to be dealt with severely.
From the foregoing it is evident that the violation of Section 77 & 79 of the Customs Act, 1962
is established and the goods have been imported in violation of para 4.1 and 5.6 of the ImportExport Policy issued under Section 5 of the Foreign Trade (Development and Regulation) Act,
1992 and by virtue if the provisions of Section 3(3) of the said Act the foods are deemed to be
prohibited under Section 11 of the Customs Act, 1962.
In view of the above, I order confiscation of goods valued at Rs………………….. under subSection(s) 111(d), 111(1) and 111(m) of the Customs Act, 1962. However, I give an option to the
pax to redeem the said goods on payment Redemption Fine of Rs. …………………………….under
the provisions of Section 125. The goods shall be cleared on payment of appropriate rate duty. I
also impose a Penalty of Rs. ………………………………under Section 112 of the Customs Act,
1962. Free allowance is denied as the imported goods are non-bonfide.
(Name)
Joint/Additional Commissioner of Customs
13.6 Precautions before passing adjudication order.
13.6.1 Adjudication.
The following are the instructions on adjudication which the preventive staff is required to
know in their day to day working are given below. For details orders on the subject the chapter on
Adjudication, in the Central Appraising Manual, any be referred to.
13.6.2 Show Cause Notice:
Before a penal action is taken the owner of the goods and/or person against whom it is
proposed to proceed against is given a show cause notice to the effect that he has contravened
the provisions of the Customs Act and why penal action should not be taken against him,. The
show causes notice should indicate the provisions of the Customs Act, 1962, and discuss the
material evidence which would be used against him. Copies of the documents relied on in evidence
should also be supplied to him Opportunity should be given to the person concerned to put in a
reply to the show cause notice. No show cause notice need to be issued if the owner of the goods
declares in writing that he does not require a show cause notice and requests that orders may be
passed after a personal hearing/without personal hearing.
13.6.3 Show Cause Notice-Delivery.
Every show cause notice shall be delivered by hand to the person concerned or sent by
registered post to the last address furnished to the Customs authorities or where no such address
was furnished, the address otherwise known to the Customs authorities. If the person concerned
has any agent, such notice may be delivered to such agent or sent to him by registered post.
Where it is found that the persons concerned or his agent, as the case may be served by the
registered post, such show cause notice can be affixed on the notice board of the New Custom
House. Also see the Judgement of Madras High Cour inthe case of SMP Gandhi v. Commissioner
of Customs (Airport), Chennai at page 252 of this Manual.
13.6.4 Issue of show cause notice in respect of seized goods intimation to be sent to the
party in case of extension of time limit.
Under section 110(2) of the Customs Act, 1962 investigations connected with seized goods
have to be completed and show cause notice issued within six months of the detention of goods.
412
In cases where this time limit is extended by the Commissioner of Customs by any further
period as prescribed under proviso to the said section, the fact of such extension having been
granted by the Commissioner should be intimated to the party (Board’s Order F. No. 2/2/65-Cus.IV
dated 25.5.66)
13.6.5 Documents in Departmental Proceedings – copies referred to in the show cause
notice to be supplied free of charge.
Copies of all documents referred to in the show cause notice have to be supplied free of
charge, no matter what those documents are. In all other cases the party should pay for the copies
of documents (CBR Lr. No. 1/26/63 Cus. VI dt. 28.11.63).
13.6.6 Seizure Invoking Section 123 of the Customs Act, 1962 – mention of reasonable
belief in the show cause notice.
In respect of goods covered by section 123 of the Customs Act, the burden of proof can be
transferred to the person concerned only if the goods have been seized “on the reasonable belief’
that they are smuggled goods.
In the cause covered by section 123 of the Customs Act the show cause notice should
indicate that the adjudicating officer has satisfied himself that the goods were seized on the
reasonable belief that they were smuggled goods. Such show cause notices should be issued by
the Adjudicating Officer himself. (M.F.D.R & I.F. No. 22/1/66/ LC & II dt. 23.9.66).
13.6.7 issue of show cause notice and grant of personal hearing by officers other than the
one issuing final orders instructions –
1.
Where the outgoing officer had given a personal hearing bit had unable to issue the final
order, the successor in office should allow a fresh personal hearing, before the formal order
is actually issued,. It is, however, open to the party concerned not to have any future hearing
after it has been offered to him.
2.
Signing an order after transfer may not be considered strictly legal, since an outgoing officer
cannot sign the draft order when he is no longer an Officer having jurisdiction in the matter. To
obviate any difficulty, when an adjudication Officer is likely to be transferred or promoted it
should be ensured that in all cases where a hearing has been given on request, but formal
orders have not been issued, the drafting of these orders is done on a top priority basis so
that formal orders in all drafting of are issued by the outgoing officer before relinquishing
charge. If despite this precaution, odd cases remain un-disposed of the successor in office
should after a fresh hearing to the party as mentioned above before issuing the formal orders.
A special mention of such cases should be made in the handing over notes of the outgoing
officer so the thy do not escape the notice of the successor.
3.
There may be cases where after the personal hearing is over and the cases is otherwise ripe
for adjudication, the officer issuing the show cause notice on hearing the party may feel that
the case merits penalty is in excess of is own powers, and decided to forward the case
papers to his superiors. In such cases, a personal hearing should be granted afresh by the
latter.
4.
So far as issue of show cause notice is concerned, it has been held that so long as the officer
to whom the cause is to be shown is indicated in the notice itself, there is no objection to such
a notice being issued by any other officer. It has to be borne in mind, however, that even then,
it is always open to the office, who has finally o take the decision to issue a fresh show cause
notice if he feels that the previous one was inadequate or defective for some reasons or on
some point. Where, however, causes has been shown to one officer as indicated in the show
cause notice, but the final adjudication is to be done by another officer, it may not be held to be
413
in strict observance with the principals of natural justice, if the latter does not issues a notice
himself. Here also, if the party concerned indicates in writing that he dies not desire to show
cause notice being issued.
13.6.8 Issue of show cause notice and grant of personal hearing by officers other than the
one issuing final orders instructions1.
Where the outgoing officer had given a personal hearing but had unable to issue the final
order, the successor in office should allow a fresh personal hearing, before the formal order
is actually issued. It is, however, open to the party concerned not to have any further hearing
after it has been offered to him.
2.
Signing an order after transfer may not be considered strictly legal, since an outgoing officer
cannot sign the draft order when he is no longer an Officer having jurisdiction in the matter. To
obviate any difficulty, when an adjudicating Officer is likely to be transferred or promoted it
should be ensured that in all cases where a hearing has been given on request, but formal
orders have not been issued, the drafting of these orders is done on a top priority basis so
that formal orders in all such cases are issued by the outgoing officer before relinquishing
charge. If despite this precaution, odd cases remain indisposed of the successor in office
should after a fresh hearing to the party as mentioned above before issuing the formal orders.
A special mention of such cases should be made in the handing over notes of the outgoing
officer so that they do not escape the notice of the successor.
3.
There may be cases where after the personal hearing is over and the case is otherwise ripe
for adjudication, the officer issuing the show cause notice on hearing the party may feel that
the case merits penalty is in excess of his own powers, and decided to forward the case
papers to his superiors. In such cases, a personal hearing should be granted afresh by the
latter.
4.
So far as issue of show cause notice is concerned, it has been held that so long as the officer
to whom the cause is to be shown is indicated in the notice itself, there is no objection to such
a notice being issued by any other officer. It has to be borne in mind, however, tat even then,
it is always open to the office, who has finally to take the decision to issuea fresh show cause
notice if he feels that the previous one was inadequate or defective for some reasons or on
some point. Where, however, cause has been shown to one officer s indicated in the show
cause notice, but the final adjudication is to be done by another officer, it may not be held to be
in strict observance with the principals of natural justice, if the latter dies not issue a notice
himself. Here also, if the party concerned indicates in writing that he does not desire to show
any further cause, the may be decided without a further show cause notice being issued.
An order of confiscation or penalty under the Customs Act is not a mere administrative or
executive act, but a quasi-judicial act and that, therefore, an application for a writ of certiorari lies in
respect of such an order. Hence, the need for issuing a proper and comprehensive show cause
notice and adjudication order cannot be over emphasized. It is, therefore, necessary that in all
complicated cases of contravention, the draft show cause notice should be submitted to the
adjudicating Officer (the Assistant Commissioner/Deputy Commissioner of Customs) as the case
may be and got approval before issue. The show cause notice should clearly indicate the officer to
whom the cause is to be shown. When it is clear even at the time of issuing the show cause
notice, that the adjudication is clearly beyond the powers of the Assistant Commissioner, it should
straightaway be indicated in the show cause notice that the cause be shown to the Additional
Commissioner or Commissioner of Customs as the case may be.
(C.B.R. Letter F. No. 100/62 LCI dated 5.2.62)
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13.6.9 Power of adjudication-computation of value of the vehicles for determining the
competency of the Officer where goods involved are considerably low in value.
The competence of the adjudicating officer should be determined by the value of the goods
liable to confiscation as whole, including vehicles used in the transport of goods, notwithstanding
the amount of fine (in lieu of confiscation of the conveyance).
(Board’s letter F. No. 40/11/63 dt. 29.4.64)
13.7 Powers of adjudication.
In the case of Baggage, the Additional Commissioner or Joint Commissioner shall continue
to adjudicate the cases without limit, since such cases are covered by the offences under Chapter
XIV and it is necessary to expeditiously dispose off the cases in respect of passengers at the
airport. In other cases, such as short landing, drawback etc., the adjudication powers shall be
continue to the same as provided under the Customs Act, 1962 or the Rules/Regulations made
there under.
The powers of F. No.450/117/2009-Cus.IVadjudication in terms Board’s Issued from Circular
No. 23/2009-Customs is as under:
Level of Adjudication Officer
Nature of cases
Monetary level(Rs. in lakhs)
Commissioner
All cases.
Without any limit.
ADC/JC
SCN in cases involving collusion,
willful mis-statement or suppression
of facts etc
Duty involved up to Rs. 50 lakhs.
ADC/JC
Other cases
Value of goods up to Rs. 50 lakhs.
AC
SCN with / without invoking extended
period.
Value of goods up to Rs.2 lakh.
Customs:
Cross examination of witnesses in departmental adjudications assistance by legal practitioners.
As adjudications of Customs cases are of a quasi judicial nature, denial of an opportunity of
cross-examining the “Departments” witness by the party concerned may amount to violation of
the principles of natural justice. The adjudicating authorities should not therefore reject requests
for cross-examination of witness as a matter of course, but consider the same on their merits.
However adjudicating authorities should exercise caution against permitting cross-examination
indiscriminately. Where, for instance, there is a question of calling informers for cross-examination
or of producing business men to substantiate the information gathered from them in the course of
confidential market enquiries whereby public interest is likely to suffer, the request for crossexamination need not be conceded by adjudication whereby public interest is likely to suffer, the
request for cross-examination need not be conceded by adjudicating authorities.
Some of the other circumstances under which the adjudicating authorities may turn down
request for cross-examination of witnesses may be way of illustration be given as under:When production of the witnesses would entail expense or effort not commensurate with the
value of the evidence the witnesses are likely to give having regard to the fact and circumstances
of the case;
When the witness are close relatives or dependents of the party concerned whom he can
produce himself.
415
When the witness have already been examined by the party concerned during the course of
any enquiry under section 108 of the Customs Act and/ or it is not possible to produce those
witnesses before the adjudicating authorities at the time of personal hearing etc. In any case the
department is not bound to offer for cross-examination any witnesses whose statements have not
been relied on in the show cause notice.
For the purpose of administrative record, it will however, be necessary to record briefly in
writing on the file of the reasons for refusal of the request to permit cross-examination of the
witnesses.
It will be the responsibility of the Department to produce its witnesses whose crossexamination is permitted by the adjudicating authorities. The expense, if any, for the production of
such witnesses will have to be borne by the department itself.
The adjudicating authorities should themselves decide in their discretion whether having regard
to the facts and complexity of any case under consideration assistance of legal practitioners should
be regarded as a part of reasonable opportunity or not. This principal should be applied to the case
as a whole and a decision should be taken on the facts and circumstances of each case as to
whether a legal practitioner should or should not be allowed to assist the party in the adjudication
proceedings. But such a decision should be with respect to the case as a whole and not merely for
the purpose of cross-examination.
In the view of the above, adjudicating authorities should ensure that legal practitioners are not
allowed to appear before that except with their specific permission. The adjudicating authorities
should however, be liberal in permitting the appearance of legal practitioners in complicated and
important cases and in cases involving heavy stakes. Like personal hearing, cross-examination
need not, however, be granted unless specifically asked for.
(M.F.(D.R.I.)F. No. 4/62/61 Cus. VI dt. 23.12.61)
Avoidance of piece meal adjudication of offences under Customs Act, 1962.
While normally attempts should be made to finalize the action both in respect of the goods
and the persons concerned at one and the same time, in the following types of cases the question
of passing separate orders should be considered by the adjudicating authority:Where the goods are perishable and it is considered that the finalization of the proceedings
against the persons concerned may be delayed.
In case where there is no doubt regarding liability to confiscation of the goods in question and
it is anticipated that adjudication proceedings against the persons concerned may be delayed.
It is not necessary to make a reference to the Board where separate orders are proposed to
be passed in the above circumstances.
(MFD of R&I) Letter F. No. 1/18/68-Cus dt. 25.7.68)
Adjudication of appraising related Show Cause Notices
It has been clarified by the Board vide F. No.437/143/2009-Cus.IV(pt) dated 15.4.2011 that in
terms of Hon’ble Supreme Court order, only such Customs officer who has been assigned the
specific functions of assessment and re-assessment of duty in the jurisdictional area where the
import concerned has been effected, by either the Board or the Commissioner of Customs, in
terms of Section 2 (34) of the Act is competent to issue notice under section 28 of the Act. The
Supreme Court in its judgement has also observed that these judgements shall not preclude the
revenue from initiating any proceedings against the importers for recovery of duty and other charges
payable in respect of subject goods, if permissible under the Act.
416
Drafting of adjudication orders-identifying particulars in duty receipt vouchers incorporation
ofIn order to prevent unscrupulous persons from using receipts given for fine in lieu of confiscation
paid on goods imported as baggage of repatriates or other passengers or as gifts by post etc.
covering up smuggled goods, the identifying particulars of the goods should be included on
the order in original issued in such cases so that detailed particulars of such gods available on the
respective order in original.
(Board’s letter F. No. 1/17/65/Cus. VI dt. 17.7.68)
Drafting of adjudication order major and common defects to be avoided. List of defects
noticed .
It is one of the important ingredient o the principles of natural justice that the authorities vested
with quasi judicial powers must pass ‘speaking orders’ even though no such obligation may have
been laid down in the statute. This is particularly so when there is provision for appeal against the
order. Every adjudicating officer should recount in their orders all the essential arguments put
forward by the parties, deal with each of them on merits and come to a reasonable conclusion on
every single point. Though no doubt, this will result in the orders being elaborate and consequently
take more time of the adjudicating officer, it is necessary that in the interest of justice, this is
invariably done.
An attempt should be made to consider carefully every piece of evidence submitted by the
party and sufficient grounds should be adduced in the order for rejecting; or accepting the same.
It is desirable that the provisions of the particular sections of the Customs Act or other Acts
that are alleged to have been infringed be set out clearly and that the same being brought out
unambiguously in the orders issued. The contents of the provisions which had been violated and
the manner in which they were violated should be brought out clearly and in a cogent manner. In
case dealing with the violation of Foreign-Exchange Regulation Act (now FEMA) if there is a misstatement or mis-declaration of the full export value in the shipping bills, the adjudicated orders
invariably should state that there has been an infringement of section 12(1) of FERA. Adjudication
orders should explain how mis-statement or mis-declaration amounts to a violation of section
12(1) of FERA. Similarly, while dealing with the offences under section 8 of the FERA, the particulars
notifications which are alleged to have been infringed should be quoted and the matter in which the
notifications has been infringed would be suitably brought out.
As vague orders are likely to be questioned in Courts of Law, it is always desirable to come to
a definite conclusion regarding the value of goods in cases of under valuation.
When imposing personal penalty under section 112 or 114 of the Customs Act, 1962 the
order should bring out how the person concerned has committed an act of omission or commission
or abetted such an act or how exactly section 112(b) of the Customs Act, 1962 is attracted before
a penalty is imposed.
In all baggage cases, it is necessary to state clearly in the order itself, the particular items
which have been treated as coming within the scope of the allowance admissible under the baggage
rules and their value. The practice of referring to some annexures attached to the order and
sometimes, leads to doubts in the mind of the Appellate Authority. When using cyclostyled printed
forms for issue of spot adjudication orders should be so worded that it is clear whether the redemption
fine is for the entire portion of the goods confiscated or only for a part thereof: The orders should be
drafted in a manner leaving no room for ambiguity.
Section 111(o) of the Customs Act, 1962, has been invoked for penal action in cases where it
is suspected that a person has sold certain items of his baggage in contravention of the proviso to
417
clause 11 (g) of the Import Control Order, 1955 dated 17.12.55. The adjudication orders dealing
with such cases should try to establish that the subject (a) The subject goods had, in fact been
imported as baggage; (b) The particular condition in the proviso to clause 11 (g) had been
contravened; and the manner in which the provision had been contravened. Before action can be
taken under section 111 (o) of the Customs Act, 1962, the onus of proof in such cases is invariably
on the Customs House.
(Board’s letter F. No. 15/21/66 Cus. VI dt. 28.5.66)
Sub: Amendment to Customs Act 1962 reducing period of appeal to two month
Consequent to the amendment in the Customs Act, the period of appeal of Adjudication Orders
passed by the officers at IGI Airport before the Commissioner (Appeals) been reduced from the
present three months to two months.
All officers may make necessary changes in their books. Administrative Officer may get the
necessary stamp made and incorporated in the records lying with the Record Keeper.
(Authority No: OFFICE ORDER NO. 210/2001 Dated :- 21.9.2001 issued vide C. No. Misc./IGIA/
2000/Pt)
418
Annexure 2
Sub: Recording of complete details on the spot adjudication order.
Commissioner had observed that passport details, brand name/exact description of the goods
and duty amounts are missing from the adjudication orders being prepared by some of the officers
at Airport. In the light of unfortunate happenings in the past this should not be repeated.(Authority:
Additional Commissioner note date 12.4.2001 issued videC. No. 16/2001/Review/IGIA
Circular No. 23/2009-Customs
F. No.450/117/2009-Cus.IV
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
North Block, New Delhi
1st September, 2009
To
All Chief Commissioners of Customs / Customs (Prev.).
All Chief Commissioners of Customs & Central Excise.
All Commissioners of Customs / Customs (Prev.).
All Commissioners of Customs (Appeals).
All Commissioners of Customs & Central Excise.
All Commissioners of Customs & Central Excise (Appeals).
Subject : Powers of adjudication of the officers of Customs.
Sir / Madam,
I am directed to invite your attention to the Board’s Circular No.87/2002-Customs dated
17.12.2002 regarding the powers of adjudication of officers of Customs. Board has reviewed the
monetary limits prescribed for adjudication of cases by Additional / Joint Commissioners of Customs
and it has been decided to enhance the powers of adjudication of these officers.
2. Accordingly, it has been decided that, under Section 28 of the Customs Act, 1962, the powers
of adjudication of various categories of officers shall be as follows.
Level of
Adjudication
Officer
Nature of cases
Monetary level(Rs. in lakh)
Commissioner
All cases.
Without any limit.
ADC/JC
SCN in cases involving collusion, willful Duty involved up to Rs. 50 lakhs.
mis-statement or suppre