Tuesday, November 27, 2007
Monday, October 22, 2007
The Debts Recovery Tribunals have been established by the Government of India under an Act of Parliament (Act 51 of 1993) for expeditious adjudication and recovery of debts due to banks and financial institutions.
Who can file cases before the DRTs?
Where a bank or financial institution has to recover any debt from any person, it makes an application called Original Application (OA) to the Tribunal against such person.
What are the functions and procedure of the DRTs?
The DRTs function under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and as per the Debts Recovery Tribunal (Procedure) Rules, 1993.
What is the pecuniary jurisdiction of the DRTs?
The provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 shall not apply where the amount of debt due to bank or financial institution or to a consortium of banks or financial institutions is less than ten lakhs rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification, specify.
What is the fee for filing an Original Application (OA) before the Tribunal?
The fee payable as per Rule 7 of the Debts Recovery Tribunal (Procedure) Rules, 1993 is Rs.12,000/- where an amount of debt due is Rs.10.00 lakhs, Rs.12,000 plus Rs.1000 for every one lakh of debt due or part thereof in excess of Rs.10.00 lakhs subject to a maximum of Rs.1,50,000/- where an amount of debt due is above Rs.10.00 lakhs.
What is the fee for Review Application?
The fee for Review Application is fifty per cent of the fee paid for the OA.
What is the fee for Interlocutory Application?
The fee for filing Interlocutory Application (IA) is Rs.250/-.
What is the fee for Vakalatnama?
What is the fee for an appeal against the order of the Recovery Officer?
Rs.12,000/- if the amount appealed against is less than Rs.10 lakhs.
Rs.20,000/- if the amount appealed against is Rs.10 to 30 lakhs.
Rs.30,000/- if the amount appealed against is more than 30 lakhs.
What is the fee for perusal of documents?
Rs.100/- per case.What is the fee payable for certified copies of documents?Rs.5 per page.
What is the place of filing of an Application?
The application shall be filed by the Applicant with the Registrar within whose jurisdiction the Applicant is functioning as a bank or financial institution as the case may be, for the time being.
What are the contents of the Application?
Every Application filed under Rule 4 of the DRT (Procedure) Rules, 1993, shall set forth concisely under distinct heads, the grounds for such application and such grounds shall be numbered consecutively and shall be typed in double space on one side of the paper.
1) Application form in duplicate.
2) A Floppy containing certain details of the application and synopsis.
3) 8 copies of full synopsis of the film in English.
4) 8 copies of songs if any with their reel numbers( 8 copies of song lines, in case of trailer).
5) 8 copies of full credit titles of the film.
6) Reel wise length of the film in duplicate, duly supported by Lab letter.
7) A shooting script.
8) Fees should be paid through two Demand drafts. Censor fee draft in favour of the designated Accounts Officer in the region and Cess fee draft in favour of Chairman, Central Board of film Certification, Mumbai. Drafts to be drawn on nationalised Bank only.
9) Lab letter declaring that the film is ready.
10) In case of revised version full details of addition/deletion/shifting of sequences should be given.
11) Title registration letter from the concerned chamber/association/ council in Which the title was registered.
Publicity Clearance CertificateIndian Short Films :
1) Application form in duplicate.
2) A floppy containing certain details of the application and synopsis
3) 5 copies of synopsis of the film (English )
4) 1 copy of the script / commentary.
5) Fees by Demand Draft drawn in favour of the designated Accounts officer in the region. Draft to be drawn on nationalised Bank only.
6) A declaration on the letter head (in the case of language version ) to the effect that the language version is identical to the master version and the commentary is same.
7) Lab letter declaring that the film is ready and also certifying the reel-wise length of the film.
Imported Short films:
1) Application Form in duplicate.
2) Floppy containing certain details of the application and synopsis.
3) Fee for the certification as per the rules. Demand Draft should be drawn in favour of the designated Accounts Officer in the region drawn on any nationalised bank. Draft to be drawn on nationalised Bank only.
4) Letter of authority or a copy of an agreement from the original producer/copyright holder/Importer etc.
5) A certified copy of the Customs Call Memo intimating the arrival of the film/video in the name of the Importer/applicants from Customs.
6) A certified copy of the Bill of Entry.
7) A certified copy of the purchase order, invoice etc. relating to the purchase of the film/video.
8) 5 copies of synopsis in English for each film/video duly signed by the Importer/Applicant in all the pages.
9) One copy of Script/Commentary duly signed by the Importer/ Applicant in all the pages.
10) CBFC will accept application for certification of Imported films/videos only on production of Bill of Entry through OGL.
Posted by Alok Kumar on 23.09.2007
Bill of Entry – Cargo Declaration:
Goods imported in a vessel/aircraft attract customs duty and unless these are not meant for customs clearance at the port/airport of arrival by particular vessel/aircraft and are intended for transit by the same vessel/aircraft or transhipment to another customs station or to any place outside India, detailed customs clearance formalities of the landed goods have to be followed by the importers. In regard to the transit goods, so long as these are mentioned in import report/IGM for transit to any place outside India, Customs allows transit without payment of duty. Similarly for goods brought in by particular vessel/aircraft for transhipment to another customs station detailed customs clearance formalities at the port/airport of landing are not prescribed and simple transhipment procedure has to be followed by the carrier and the concerned agencies. The customs clearance formalities have to be complied with by the importer after arrival of the goods at the other customs station. There could also be cases of transhipment of the goods after unloading to a port outside India. Here also simpler procedure for transhipment has been prescribed by regulations, and no duty is required to be paid. (Sections 52 to 56 of the Customs are relevant in this regard)
2. For other goods which are offloaded importers have the option to clear the goods for home consumption after payment of the duties leviable or to clear them for warehousing without immediate discharge of the duties leviable in terms of the warehousing provisions built in the Customs Act. Every importer is required to file in terms of the Section 46 an entry (which is called Bill of entry) for home consumption or warehousing in the form, as prescribed by regulations.
3. If the goods are cleared through the EDI system no formal Bill of Entry is filed as it is generated in the computer system, but the importer is required to file a cargo declaration having prescribed particulars required for processing of the entry for customs clearance.
4. The Bill of entry, where filed, is to be submitted in a set, different copies meant for different purposes and also given different colour scheme, and on the body of the bill of entry the purpose for which it will be used is generally mentioned in the non-EDI declaration.
5. The importer clearing the goods for domestic consumption has to file bill of entry in four copies; original and duplicate are meant for customs, third copy for the importer and the fourth copy is meant for the bank for making remittances.
6. In the non-EDI system alongwith the bill of entry filed by the importer or his representative the following documents are also generally required:-
- Signed invoice
- Packing list
- Bill of Lading or Delivery Order/Airway Bill
- GATT declaration form duly filled in
- Importers/CHA’s declaration
- License wherever necessary
- Letter of Credit/Bank Draft/wherever necessary
- Insurance document
- Import license
- Industrial License, if required
- Test report in case of chemicals
- Adhoc exemption order
- DEEC Book/DEPB in original
- Catalogue, Technical write up, Literature in case of machineries, spares or chemicals as may be applicable
- Separately split up value of spares, components machineries
- Certificate of Origin, if preferential rate of duty is claimed
- No Commission declaration
7. While filing the bill of entry and giving various particulars as prescribed therein the correctness of the information given has also to be certified by the importer in the form a declaration at the foot of the bill of entry and any mis-declaration/incorrect declaration has legal consequences, and due precautions should be taken by importer while signing these declarations.
8. Under the EDI system, the importer does not submit documents as such for assessment but submits declarations in electronic format containing all the relevant information to the Service Centre. A signed paper copy of the declaration is taken by the service centre operator for non-repudiability of the declaration. A checklist is generated for verification of data by the importer/CHA. After verification, the data is submitted to the system by the Service Centre Operator and system then generates a B/E Number, which is endorsed on the printed checklist and returned to the importer/CHA. No original documents are taken at this stage. Original documents are taken at the time of examination. The importer/CHA also need to sign on the final document after Customs clearance.
9. The first stage for processing a bill of entry is what is termed the noting of the bill of entry, vis-à-vis, the IGM filed by the carrier. In the non-EDI system the importer has to get the bill of entry noted in the concerned unit which checks the consignment sought to be cleared having been manifested in the particular vessel and a bill of entry number is generated and indicated on all copies. After noting the bill of entry gets sent to the appraising section of the Custom House for assessment functions, payment of duty etc. In the EDI system, the Steamer Agents get the manifest filed through EDI or by using the service centre of the Custom House and the noting aspect is checked by the system itself – which also generates bill of entry number.
10. After noting/registration of the Bill of entry, it is forwarded manually or electronically to the concerned Appraising Group in the Custom House dealing with the commodity sought to be cleared. Appraising Wing of the Custom House has a number of Groups dealing with earmarked commodities falling under different Chapter Headings of the Customs Tariff and they take up further scrutiny for assessment, import permissibility etc. angle.
11. The basic function of the assessing officer in the appraising groups is to determine the duty liability taking due note of any exemptions or benefits claimed under different export promotion schemes. They have also to check whether there are any restrictions or prohibitions on the goods imported and if they require any permission/license/permit etc., and if so whether these are forthcoming. Assessment of duty essentially involves proper classification of the goods imported in the customs tariff having due regard to the rules of interpretations, chapter and sections notes etc., and determining the duty liability. It also involves correct determination of value where the goods are assessable on ad valorem basis. The assessing officer has to take note of the invoice and other declarations submitted alongwith the bill of entry to support the valuation claim, and adjudge whether the transaction value method and the invoice value claimed for the basis of assessment is acceptable, or value needs to be redetermined having due regard to the provisions of Section 14 and the valuation rules issued thereunder, the case law and various instructions on the subject. He also takes note of the contemporaneous values and other information on valuation available with the Custom House.
12. Where the appraising officer is not very clear about the description of the goods from the document or as some doubts about the proper classification which may be possible only to determine after detailed examination of the nature of the goods or testing of its samples, he may give an examination order in advance of finalisation of assessment including order for drawing of representative sample. This is done generally on the reverse of the original copy of the bill of entry which is presented by the authorized agent of the importer to the appraising staff posted in the Docks/Air Cargo Complexes where the goods are got examined in the presence of the importer’s representative.
13. On receipt of the examination report the appraising officers in the group assesses the bill of entry. He indicates the final classification and valuation in the bill of entry indicating separately the various duties such as basic, countervailing, anti-dumping, safeguard duties etc., that may be leviable. Thereafter the bill of entry goes to Assistant Commissioner/Deputy Commissioner for confirmation depending upon certain value limits and sent to comptist who calculates the duty amount taking into account the rate of exchange at the relevant date as provided under Section 14 of the Customs Act.
14. After the assessment and calculation of the duty liability the importer’s representative has to deposit the duty calculated with the treasury or the nominated banks, whereafter he can go and seek delivery of the goods from the custodians.
15. Where the goods have already been examined for finalization of classification or valuation no further examination/checking by the dock appraising staff is required at the time of giving delivery and the goods can be taken delivery after taking appropriate orders and payment of dues to the custodians, if any.
16. In most cases, the appraising officer assessees the goods on the basis of information and details furnished to the importer in the bill of entry, invoice and other related documents including catalogue, write-up etc. He also determines whether the goods are permissible for import or there are any restriction/prohibition. He may allow payment of duty and delivery of the goods on what is called second check/appraising basis in case there are no restriction/prohibition. In this method, the duties as determined and calculated are paid in the Custom House and appropriate order is given on the reverse of the duplicate copy of the bill of entry and the importer or his agent after paying the duty submits the goods for examination in the import sheds in the docks etc., to the examining staff. If the goods are found to be as declared and no other discrepancies/mis-declarations etc., are detected, the importer or his agent can clear the goods after the shed appraiser gives out of charge order.
17. Wherever the importer is not satisfied with the classification, rate of duty or valuation as may be determined by the appraising officer, he can seek an assessment order. An appeal against the assessment order can be made to appropriate appellate authority within the time limits and in the manner prescribed.
18. In the EDI system of handling of the documents/declarations for taking import clearances as mentioned earlier the cargo declaration is transferred to the assessing officer in the groups electronically.
19. The assessing officer processes the cargo declaration on screen with regard to all the parameters as given above for manual process. However in EDI system, all the calculations are done by the system itself. In addition, the system also supplies useful information for calculation of duty, for example, when a particular exemption notification is accepted, the system itself gives the extent of exemption under that notification and calculates the duty accordingly. Similarly, it automatically applies relevant rate of exchange in force while calculating. Thus no comptist is required in EDI system. If assessing officer needs any clarification from the importer, he may raise a query. The query is printed at the service centre and the party replies to the query through the service centre.
20. After assessment, a copy of the assessed bill of entry is printed in the service centre. Under EDI, documents are normally examined at the time of examination of the goods. Final bill of entry is printed after ‘out of charge’ is given by the Custom Officer.
21. In EDI system, in certain cases, the facility of system appraisal is available. Under this process, the declaration of importer is taken as correct and the system itself calculates duty which is paid by the importer. In such case, no assessing officer is involved.
22. Also, a facility of tele-enquiry is provided in certain major Customs stations through which the status of documents filed through EDI systems could be ascertained through the telephone. If nay query is raised, the same may be got printed through fax in the office of importer/exporter/CHA.
Examination of Goods:
23. All imported goods are required to be examined for verification of correctness of description given in the bill of entry. However, a part of the consignment is selected on random selection basis and is examined. In case the importer does not have complete information with him at the time of import, he may request for examination of the goods before assessing the duty liability or, if the Customs Appraiser/Assistant Commissioner feels the goods are required to be examined before assessment, the goods are examined prior to assessment. This is called First Appraisement. The importer has to request for first check examination at the time of filing the bill of entry or at data entry stage. The reason for seeking First Appraisement is also required to be given. On original copy of the bill of entry, the Customs Appraiser records the examination order and returns the bill of entry to the importer/CHA with the direction for examination, who is to take it to the import shed for examination of the goods in the shed. Shed Appraiser/Dock examiner examines the goods as per examination order and records his findings. In case group has called for samples, he forwards sealed samples to the group. The importer is to bring back the said bill of entry to the assessing officer for assessing the duty. Appraiser assesses the bill of entry. It is countersigned by Assistant/Deputy Commissioner if the value is more than Rs. 1 lakh.
24. The goods can also be examined subsequent to assessment and payment of duty. This is called Second Appraisement. Most of the consignments are cleared on second appraisement basis. It is to be noted that whole of the consignment is not examined. Only those packages which are selected on random selection basis are examined in the shed.
25. Under the EDI system, the bill of entry, after assessment by the group or first appraisement, as the case may be, need to be presented at the counter for registration for examination in the import shed. A declaration for correctness of entries and genuineness of the original documents needs to be made at this stage. After registration, the B/E is passed on to the shed Appraiser for examination of the goods. Along-with the B/E, the CHA is to present all the necessary documents. After completing examination of the goods, the Shed Appraiser enters the report in System and transfers first appraisement B/E to the group and gives 'out of charge' in case of already assessed Bs/E. Thereupon, the system prints Bill of Entry and order of clearance (in triplicate). All these copies carry the examination report, order of clearance number and name of Shed Appraiser. The two copies each of B/E and the order are to be returned to the CHA/Importer, after the Appraiser signs them. One copy of the order is attached to the Customs copy of B/E and retained by the Shed Appraiser.
Green Channel facility:
26. Some major importers have been given the green channel clearance facility. It means clearance of goods is done without routine examination of the goods. They have to make a declaration in the declaration form at the time of filing of bill of entry. The appraisement is done as per normal procedure except that there would be no physical examination of the goods. Only marks and number are to be checked in such cases. However, in rare cases, if there are specific doubts regarding description or quantity of the goods, physical examination may be ordered by the senior officers/investigation wing like SIIB.
Execution of Bonds:
27. Wherever necessary, for availing duty free assessment or concessional assessment under different schemes and notifications, execution of end use bonds with Bank Guarantee or other surety is required to be furnished. These have to be executed in prescribed forms before the assessing Appraiser.
Payment of Duty:
28. The duty can be paid in the designated banks or through TR-6 challans. Different Custom Houses have authorised different banks for payment of duty. It is necessary to check the name of the bank and the branch before depositing the duty. Bank endorses the payment particulars in challan which is submitted to the Customs.Amendment of Bill of Entry:
29. Whenever mistakes are noticed after submission of documents, amendments to the of entry is carried out with the approval of Deputy/Assistant Commissioner. The request for amendment may be submitted with the supporting documents. For example, if the amendment of container number is required, a letter from shipping agent is required. Amendment in document may be permitted after the goods have been given out of charge i.e. goods have been cleared on sufficient proof being shown to the Deputy/Assistant Commissioner.
Prior Entry for Bill of Entry:
30. For faster clearance of the goods, provision has been made in section 46 of the Act, to allow filing of bill of entry prior to arrival of goods. This bill of entry is valid if vessel/aircraft carrying the goods arrive within 30 days from the date of presentation of bill of entry.
31. The importer is to file 5 copies of the bill of entry and the fifth copy is called Advance Noting copy. The importer has to declare that the vessel/aircraft is due within 30 days and they have to present the bill of entry for final noting as soon as the IGM is filed. Advance noting is available to all imports except for into bond bill of entry and also during the special period.
Mother Vessel/Feeder vessel:
32. Often in case of goods coming by container ships they are transferred at an intermediate ports (like Ceylon) from mother vessel to smaller vessels called feeder vessels. At the time of filing of advance noting B/E, the importer does not know as to which vessel will finally bring the goods to Indian port. In such cases, the name of mother vessel may be filled in on the basis of the bill of lading. On arrival of the feeder vessel, the bill of entry may be amended to mention names of both mother vessel and feeder vessel.
33. The import of goods are made under specialised schemes like DEEC or EOU etc. The importer in such cases is required to execute bonds with the Customs authorities for fulfillment of conditions of respective notifications. If the importer fails to fulfill the conditions, he has to pay the duty leviable on those goods. The amount of bond would be equal to the amount of duty leviable on the imported goods. The bank guarantee is also required alongwith the bond. However, the amount of bank guarantee depends upon the status of the importer like Super Star Trading House/Trading House etc.
Bill of Entry for Bond/Warehousing:
34. A separate form of bill of entry is used for clearance of goods for warehousing. All documents as required to be attached with a Bill of Entry for home consumption are also required to be filed with bill of entry for warehousing. The bill of entry is assessed in the same manner and duty payable is determined. However, since duty is not required to be paid at the time of warehousing of the goods, the purpose of assessing the goods at this stage is to secure the duty in case the goods do not reach the warehouse. The duty is paid at the time of ex-bond clearance of goods for which an ex-bond bill of entry is filed. The rate of duty applicable to imported goods cleared from a warehouse is the rate in-force on the date on which the goods are actually removed from the warehouse. (References: Bill of Entry (Forms) Regulations, 1976, ATA carnet (Form Bill of Entry and Shipping Bill) Regulations, 1990 ,Uncleared goods (Bill of entry) regulation, 1972, , CBEC Circulars No. 22/97, dated 4/7/1997, 63/97, dated 21/11/1997).
II. Export :
For clearance of export goods, the export or his agents have to undertake the following formalities:
35. The exporters have to obtain PAN based Business Identification Number(BIN) from the Directorate General of Foreign Trade prior to filing of shipping bill for clearance of export goods. Under the EDI System, PAN based BIN is received by the Customs System from the DGFT online. The exporters are also required to register authorised foreign exchange dealer code (through which export proceeds are expected to be realised) and open a current account in the designated bank for credit of any drawback incentive.
36. Whenever a new Airline, Shipping Line, Steamer Agent, port or airport comes into operation, they are required to be registered into the Customs System. Whenever, electronic processing of shipping bill etc. is held up on account of non-registration of these entities, the same is to be brought to the notice of Assistant/Deputy Commissioner in-charge of EDI System for registering the new entity in the system.
(b) Registration in the case of export under export promotion schemes:
37. All the exporters intending to export under the export promotion scheme need to get their licences/DEEC book etc. registered at the Customs Station. For such registration, original documents are required.
(c) Processing of Shipping Bill - Non-EDI:
38. Under manual system, shipping bills or, as the case may be, bills of export are required to be filed in format as prescribed in the Shipping Bill and Bill of Export (Form) regulations, 1991. The bills of export are being used if clearance of export goods is taken at the Land Customs Stations. Different forms of shipping bill/bill of export have been prescribed for export of duty free goods, export of dutiable goods and export under drawback etc.
39. Shipping Bills are required to be filed along with all original documents such as invoice, AR-4, packing list etc. The assessing officer in the Export Department checks the value of the goods, classification under Drawback schedule in case of Drawback Shipping Bills, rate of duty/cess where applicable, exportability of goods under EXIM policy and other laws inforce. The DEEC/DEPB Shipping bills are processed in the DEEC group. In case of DEEC Shipping bills, the assessing officer verifies that the description of the goods declared in the shipping bill and invoice match with the description of the resultant product as given in the DEEC book. If the assessing officer has any doubts regarding value, description of goods, he may call for samples of the goods from the docks. He may also call for any other information required by him for processing of shipping bill. He may assess the shipping bill after visual inspection of the sample or may send it for test and pass the shipping bill provisionally.
40. Once, the shipping bill is passed by the Export Department, the exporter or his agent present the goods to the shed appraiser (export) in docks for examination. The shed appraiser may mark the document to a Custom officer (usually an examiner) for examining the goods. The examination is carried out under the supervision of the shed appraiser (export). If the description and other particulars of the goods are found to be as declared, the shed appraiser gives a ‘let export’ order, after which the exporter may contact the preventive superintendent for supervising the loading of goods on to the vessel.
41. In case the examining staff in the docks finds some discrepancy in the goods, they may mark the shipping bill back to export department/DEEC group with their observations as well as sample of goods, if needed. The export department re-considers the case and decide whether export can be allowed, or amendment in description, value etc. is required before export and whether any other action is required to be taken under the Customs Act, 1962 for mis-declaration of description of value etc.
(d) Processing of Shipping Bill - EDI:
42. Under EDI System, declarations in prescribed format are to be filed through the Service Centers of Customs. A checklist is generated for verification of data by the exporter/CHA. After verification, the data is submitted to the System by the Service Center operator and the System generates a Shipping Bill Number, which is endorsed on the printed checklist and returned to the exporter/CHA. For export items which are subject to export cess, the TR-6 challans for cess is printed and given by the Service Center to the exporter/CHA immediately after submission of shipping bill. The cess can be paid on the strength of the challan at the designated bank. No copy of shipping bill is made available to exporter/CHA at this stage.
(e) Octroi procedure, Quota Allocation and Other certification for Export Goods:
43. The quota allocation label is required to be pasted on the export invoice. The allocation number of AEPC is to be entered in the system at the time of shipping bill entry. The quota certification of export invoice needs to be submitted to Customs along-with other original documents at the time of examination of the export cargo. For determining the validity date of the quota, the relevant date needs to be the date on which the full consignment is presented to the Customs for examination and duly recorded in the Computer System. In EDI System at Delhi Air cargo, the quota information is automatically verified from the AEPC/TEXPROCIL system.
44. Since the shipping bill is generated only after the 'let export order' is given by Customs, the exporter may make use of export invoice or such other document as required by the Octroi authorities for the purpose of Octroi exemption.
(f) Arrival of Goods at Docks:
45. The goods brought for the purpose of examination and subsequent 'let export' is allowed entry to the Dock on the strength of the checklist and other declarations filed by the exporter in the Service Center. The Port authorities have to endorse the quantity of goods actually received on the reverse of the Check List.
(g) System Appraisal of Shipping Bills:
46. In many cases the Shipping Bill is processed by the system on the basis of declarations made by the exporters without any human intervention. In other cases where the Shipping Bill is processed on screen by the Customs Officer, he may call for the samples, if required for confirming the declared value or for checking classification under the Drawback Schedule. He may also give any special instructions for examination of goods, if felt necessary.
(h) Status of Shipping Bill:
47. The exporter/CHA can check up with the query counter at the Service Center whether the Shipping Bill submitted by them in the system has been cleared or not, before the goods are brought into the Docks for examination and export. In case any query is raised, the same is required to be replied through the service center or in case of CHAs having EDI connectivity through their respective terminals. The Customs officer may pass the Shipping Bill after all the queries have been satisfactorily replied to.
(i) Customs Examination of Export Cargo:
48. After the receipt of the goods in the dock, the exporter/CHA may contact the Customs Officer designated for the purpose present the check list with the endorsement of Port Authority and other declarations as aforesaid along with all original documents such as, Invoice and Packing list, AR-4, etc. Customs Officer may verify the quantity of the goods actually received and enter into the system and thereafter mark the Electronic Shipping Bill and also hand over all original documents to the Dock Appraiser of the Dock who many assign a Customs Officer for the examination and intimate the officers’ name and the packages to be examined, if any, on the check list and return it to the exporter or his agent.
49. The Customs Officer may inspect/examine the shipment along with the Dock Appraiser. The Customs Officer enters the examination report in the system. He then marks the Electronic Bill along with all original documents and check list to the Dock Appraiser. If the Dock Appraiser is satisfied that the particulars entered in the system conform to the description given in the original documents and as seen in the physical examination, he may proceed to allow "let export" for the shipment and inform the exporter or his agent.
(j) Variation Between the Declaration & Physical Examination:
50. The check list and the declaration along with all original documents is retained by the Appraiser concerned. In case of any variation between the declaration in the Shipping Bill and physical documents/examination report, the Appraiser may mark the Electronic Shipping Bill to the Assistant Commissioner/Deputy Commissioner of Customs (Exports). He may also forward the physical documents to Assistant Commissioner/Deputy Commissioner of Customs (Exports) and instruct the exporter or his agent to meet the Assistant Commissioner/Deputy Commissioner of Customs (Exports) for settlement of dispute. In case the exporter agrees with the views of the Department, the Shipping Bill needs to be processed accordingly. Where, however, the exporter disputes the view of the Department principles of natural justice is required to be followed before finalisation of the issue.
(k) Stuffing / Loading of Goods in Containers
51. The exporter or his agent should hand over the exporter copy of the shipping bill duly signed by the Appraiser permitting "Let Export" to the steamer agent who may then approach the proper officer (Preventive Officer) for allowing the shipment. In case of container cargo the stuffing of container at Dock is dome under Preventive Supervision. Loading of both containerized and bulk cargo is done under Preventive Supervision. The Customs Preventive Superintendent (Docks) may enter the particulars of packages actually stuffed in to the container, the bottle seal number particulars of loading of cargo container on board into the system and endorse these details on the exporter copy of the shipping bill presented to him by the steamer agent. If there is a difference in the quantity/number of packages stuffed in the containers/goods loaded on vessel the Superintendent (Docks) may put a remark on the shipping bill in the system and that shipping bill requires amendment or changed quantity. Such shipping bill also may not be taken up for the purpose of sanction of Drawback/DEEC logging, till the shipping bill is suitably amended for the changed quantity. The Customs Preventive Officer supervising the loading of container and general cargo in to the vessel may give "Shipped on Board" endorsement on the exporters copy of the shipping bill.
(l) Drawal of Samples:
52. Where the Appraiser Dock (export) orders for samples to be drawn and tested, the Customs Officer may proceed to draw two samples from the consignment and enter the particulars thereof along with details of the testing agency in the ICES/E system. There is no separate register for recording dates of samples drawn. Three copies of the test memo are prepared by the Customs Officer and are signed by the Customs Officer and Appraising Officer on behalf of Customs and the exporter or his agent. The disposal of the three copies of the test memo are as follows:-
i) Original – to be sent along with the sample to the test agency.ii) Duplicate – Customs copy to be retained with the 2nd sample.iii) Triplicate – Exporter’s copy.
53. The Assistant Commissioner/Deputy Commissioner if he considers necessary, may also order for sample to be drawn for purpose other than testing such as visual inspection and verification of description, market value inquiry, etc.
54. Any correction/amendments in the check list generated after filing of declaration can be made at the service center, provided, the documents have not yet been submitted in the system and the shipping bill number has not been generated. Where corrections are required to be made after the generation of the shipping bill No. or after the goods have been brought into the Export Dock, amendments is carried out in the following manners.
i) If the goods have not yet been allowed "let export" amendments may be permitted by the Assistant Commissioner (Exports).
ii) Where the "Let Export" order has already been given, amendments may be permitted only by the Additional/Joint Commissioner, Custom House, in charge of export section.
55. In both the cases, after the permission for amendments has been granted, the Assistant Commissioner/Deputy Commissioner (Export) may approve the amendments on the system on behalf of the Additional /Joint Commissioner. Where the print out of the Shipping Bill has already been generated, the exporter may first surrender all copies of the shipping bill to the Dock Appraiser for cancellation before amendment is approved on the system.
(n) Export of Goods Under Claim for Drawback:
56. After actual export of the goods, the Drawback claim is processed through EDI system by the officers of Drawback Branch on first come first served basis. There is no need for filing separate drawback claims. The status of the shipping bills and sanction of DBK claim can be ascertained from the query counter set up at the service center. If any query has been raised or deficiency noticed, the same is shown on the terminal. A print out of the query/deficiency may be obtained by the authorized person of the exporter from the service center. The exporters are required to reply to such queries through the service center. The claim will come in queue of the EDI system only after reply to queries/deficiencies are entered by the Service Center.
57. All the claims sanctioned on a particular day are enumerated in a scroll and transferred to the Bank through the system. The bank credits the drawback amount in the respective accounts of the exporters. Bank may send a fortnightly statement to the exporters of such credits made in their accounts.
58. The Steamer Agent/Shipping Line may transfer electronically the EGM to the Customs EDI system so that the physical export of the goods is confirmed, to enable the Customs to sanction the drawback claims.
(o) Generation of Shipping Bills:
59. After the "let export" order is given on the system by the Appraiser, the Shipping Bill is generated by the system in two copies i.e., one Customs copy, one exporter’s copy (E.P. copy is generated after submission of EGM). After obtaining the print out the appraiser obtains the signatures of the Customs Officer on the examination report and the representative of the CHA on both copies of the shipping bill and examination report. The Appraiser thereafter signs & stamps both the copies of the shipping bill at the specified place.
60. The Appraiser also signs and stamps the original & duplicate copy of SDF. Customs copy of shipping bill and original copy of the SDF is retained along with the original declarations by the Appraiser and forwarded to Export Department of the Custom House. He may return the exporter copy and the second copy of the SDF to the exporter or his agent.
61. As regards the AEPC quota and other certifications, these are retained along with the shipping bill in the dock after the shipping bill is generated by the system. At the time of examination, apart from checking that the goods are covered by the quota certifications, the details of the quota entered into the system needs to be checked.
(p) Export General Manifest:
62. All the shipping lines/agents need to furnish the Export General Manifests, Shipping Bill wise, to the Customs electronically within 7 days from the date of sailing of the vessel.
63. Apart from lodging the EGM electronically the shipping lines need to continue to file manual EGMs along with the exporter copy of the shipping bills as per the present practice in the export department. The manual EGMs need to be entered in the register at the Export Department and the Shipping lines may obtain acknowledgements indicating the date and time at which the EGMs were received by the Export Department.
64. The above is the general procedure for export under EDI Systems. However special procedures exist for specified schemes, details of which may be obtained from the Public Notice/Standing Orders issued by the respective Commissionerates.
Posted by Shaji Joseph on 27.09.2007
The Consumer Protection Act, 1986 (here in after to be referred to as the ‘Act’) is one of the benevolent social legislation intended to protect the large body of consumers from exploitation. The Act has come as a panacea for consumers all over the country and has assumed the shape of practically the most important legislation enacted in the country during the last few years. It has become the vehicle for enabling people to secure speedy and in-expensive redressal of their grievances. With the enactment of this law, consumers now feel that they are in a position to declare “sellers be aware” whereas previously the consumers were at the receiving end and generally told “buyers be aware”.
The Act postulates establishment of Central Consumer Protection Council and the State Consumer Protection Councils for the purpose of spreading consumer awareness. Central Council is headed by Minster, incharge of the Consumer Affairs in the Central Government and in the State it is the Minister incharge of the Consumer Affairs in the State Government who heads State Council.
To provide cheap, speedy and simple redressal to consumer disputes, quasi-judicial machinery is set up at each District, State and National levels called District Forums, State Consumer Disputes Redressal Commission and National Consumer Disputes Redressal Commission respectively. At present, there are 604 District Forums, 35 State Commissions with apex body as a National Consumer Disputes Redressal Commission (NCDRC) having its office at Janpath Bhawan, A Wing, 5th Floor, Janpath, New Delhi.
The District Forums are headed by the person who is or has been or is eligible to be appointed as a District Judge and the State Commissions are headed by a person who is or has been a Judge of High Court.
National Commission was constituted in the year, 1988. It is headed by a sitting or retired Judge of the Supreme Court of India. National Commission is presently headed by Hon’ble Mr. Justice M.B. Shah, former Judge of the Supreme Court of India as President and having five Members, viz. Mrs. Rajyalakshmi Rao, Mr. B.K. Taimni, Hon’ble Mr. Justice K. S. Gupta, Hon’ble Mr. Justice S.N. Kapoor & Dr. P. D. Shenoy. Hon'ble Minister for Consumer Affairs, Food & Public Distribution, Government of India has inaugurated the Additional Bench of the National Commission on 24th September, 2003.
The provisions of this Act cover ‘Products’ as well as ‘Services’. The products are those which are manufactured or produced and sold to consumers through wholesalers and retailers. The services are of the nature of transport, telephones, electricity, constructions, banking, insurance, medical treatment etc. etc. The services are, by and large, include those provided by professionals such as Doctors, Engineers, Architects, Lawyers etc.
A written complaint, as amended by Consumer Protection (Amendment) Act, 2002, can be filed before the District Consumer Forum (upto Rupees twenty lakhs), State Commission (upto Rupees One crore), National Commission ( above Rrupees One crore) in relation to a product or in respect of a service, but does not include rendering of any service free of cost or under a contract of personal service. The service can be of any description, the illustrations given above are only indicative and not exhaustive.
The Consumer Protection Act is an alternative and cheapest remedy already available to the aggrieved persons/consumers by way of civil suit. In the complaint/appeal/petition submitted under the Act, a consumer is not required to pay any court fees or even process fee.
Proceedings are summary in nature and endeavour is made to grant relief to the parties in the quickest possible time keeping in mind the spirit of the Act which provides for disposal of the cases within possible time schedule prescribed under the Act.
If a consumer is not satisfied by the decision of the District Forum, he can challenge the same before the State Commission and against the order of the State Commission a consumer can come to the National Commission.
In order to attain the objects of the Consumer Protection Act, the National Commission has also been conferred with the powers of administrative control over all the State Commissions by calling for periodical returns regarding the institution, disposal and pendency of cases. National Commission is empowered to issue instructions regarding, (1) adoption of uniform procedure in the hearing of the matters; (2) prior service of copies of documents produced by one party to the opposite parties; (3) speedy grant of copies of documents; and (4) generally over-seeing the functioning of the State Commissions or the District Forums to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.
Posted by Kirankumaradv on 06.10.2007
(i) To inquire or cause an inquiry or investigation to be made on a reference made by the central Government wherein it is alleged that a public servant being an employee of the Central Government or a corporation ,established by or under any Central Act. Government company, society and any local authority owned or controlled by that Government, has committed an offence under the Prevention of Corruption Act- 1988.
(ii) To cause an inquiry or investigation to be made into any complaint against any official belonging to the, following category of officials, namely:-
a) Group 'A' Officers of the Central Government;
(b) such level of officers of the Corporations established by or under any Central Act,Government companies, societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf, herein it is alleged that such official has committed an offence under the Prevention of Corruption Act, 1988;
(iii) review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act 1988;
(iv) tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise;
(v) exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act,Government companies, societies and local authorities owned or controlled by that Government.4. The proceedings of the Commission shall be conducted at its present headquarters.
5 . The Commission shall observe such rules of procedure and the principles of the natural justice in regard to transaction of its business.
6. The Central Vigilance Commissioner, or, if for any reason he is unable to attend any meeting of the Commission, the senior most Vigilance Commissioner present at the meeting, shall preside at the meeting
Posted by Legal India on 07.10.2007
Time once again to review the winners of the Annual "Stella Awards." The Stella Awards are named after 81 year-old Stella Liebeck who spilled hot coffee on herself and successfully sued McDonald's (in NM). That case inspired the Stella Awards for the most frivolous, ridiculous, successful lawsuits in the United States Here are this year's winners:5th Place (tie):Kathleen Robertson of Austin, Texas, was awarded $80,000. by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving little toddler was Ms. Robertson's son.
5th Place (tie):19-year-old Carl Truman of Los Angeles won $74,000 and medical expenses when his neighbor ran over his hand with a Honda Accord. Mr. Truman apparently didn't notice there was someone at the wheel of the car when he was trying to steal his neighbor's hubcaps.
5th Place (tie):Terrence Dickson of Bristol, Pennsylvania, was leaving a house he had just finished robbing by way of the garage. He was not able to get the garage door to go up since the automatic door opener was malfunctioning. He couldn't re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation, and Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found, and a large bag of dry dog food. He sued the homeowner's insurance claiming the situation caused him undue mental anguish. The jury agreed, to the tune of $500,000. This is so outrageous that it should have been 2nd Place!
4th Place:Jerry Williams of Little Rock, Arkansas, was awarded $14,500. and medical expenses after being bitten on the buttocks by his next door neighbor's beagle. The beagle was on a chain in its owner's fenced yard. The award was less than sought because the jury felt the dog might have been just a little provoked at the time by Mr. Williams who had climbed over the fence into the yard and was shooting it repeatedly with a pellet gun.
3rd Place:A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania, $113,500. after she slipped on a soft drink and broke her coccyx (tailbone). The beverage was on the floor because Ms Carson had thrown it at her boyfriend 30 seconds earlier during an argument.
2nd place:Kara Walton of Claymont, Delaware, successfully sued the owner of a night club in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms. Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge . She was awarded $12,000 and dental expenses.
1st Place:This year's runaway winner was Mrs. Merv Grazinski of Oklahoma City, Oklahoma. Mrs. Grazinski purchased a brand new 32-foot Winnebago motor home (caravan). On her first trip home, (from an OU football game), having driven onto the freeway, she set the cruise control at 70 mph and calmly left the driver's seat to go into the back & make herself a sandwich. Not surprisingly, the RV left the freeway, crashed and overturned. Mrs.Grazinski sued Winnebago for not advising her in the owner's manual that she couldn't actually do this. The jury awarded her $1,750,000. plus a new motor home. The company actually changed their manuals on the basis of this suit, just in case there were any other complete morons around.
JUDGE's DILEMMA================In a court trial, a small-town prosecuting attorney called his first witness, an elderly grandmother to the stand.He approached her and asked; "Mrs.. Jones, do you know me?"She responded, "Why, yes, I do know you, Mr. Williams. I've known you since you were a young boy, and frankly, you're a big disappointment to me. You lie, cheat on your wife, manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you never will amount to anything more than a two-bit paper pusher. Yes, I know you."The lawyer was stunned! Not knowing what else to do, he pointed across the room and asked, "Mrs.. Jones, do you know the defense attorney?" She again replied, "Why, yes, I do. I've known Mr. Bradley since he was a youngster. He's lazy, bigoted, and has a drinking problem. He can't build a normal relationship with anyone and his law practice is one of the worst in the state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes I know him."The defense attorney almost died.The judge asked both lawyers to approach the bench and in a quiet voice said: "If either of you rascals asks her if she knows me, I'll send you to the electric chair."
Posted by Octavious on 11.06.2007
Thursday, September 27, 2007
Persons involved in smuggling and other modus operandi of imports and exports, in violation of prohibitions/ restrictions in vogue or with intent to evade duties or fraudulently claim export incentives are liable to serious penal action under the Customs Act. The offending goods can be confiscated and heavy fines and penalties imposed. There are also provisions for arrests and prosecution to deter them from smuggling and commercial frauds-which seriously affect the economy and even society at large when it comes to sensitive goods like drugs, arms and ammunition. The following paras briefly indicate the provisions in law for seizure, confiscation of goods, imposition of penalties by adjudication. Later paras indicate the arrests and prosecution provisions.
2. An officer of Customs can seize any goods, if he has reason to believe that the same are liable to confiscation, under the Customs Act. The proper officer may also seize any document or things that may be relevant to any proceedings under the Custom Act. However, the person from whom these documents are seized is entitled to make copies of the same.
3. The person from whom the goods are seized is issued a show cause notice, usually within six months. However, the Commissioner of Customs, on sufficient cause being shown, can extend the time period for issue of Show cause notice, by a further six months.
4. In case the seized goods are perishable or hazardous in nature or is prone to depreciate in value over time or for reasons of constraints in space, the government can notify these goods and these goods can be disposed off before the conclusion of the proceedings eg. All electronic goods, Currency, Liquors, P&P medicine, Gold, Silver etc.
5. The word ‘confiscation’ implies appropriation consequential to seizure. The essence and the concept of confiscation is that after confiscation, the property of the confiscated goods vests with the Central Government.
6. The adjudicating authority makes the decision regarding confiscation of goods. The specific/ different categories of violations under which the import or export goods are liable to confiscation, are enumerated in Section 111 and 113 of the Customs Act. In general, the goods that are attempted to be smuggled into or out of the country, by route other than land routes or is attempted to be cleared by way of misdeclaration in quantity, description or value etc are liable to be confiscated. The import or exported goods are also liable to confiscation if there is an intention to evade Customs duty or to fraudulently avail the benefits available under various export promotion schemes, such as duty drawback, DEPB, 100% EOU etc.
Confiscation of Conveyances/ Packages & Their Contents
7. In additon to confiscation of Goods, the conveyances, i.e., vessels, aircrafts or vehicles, or animals that are used in the smuggling activities or in connection with fraudulent availment of drawback are liable to confiscation as per specific provisions in section 115 of the Customs Act. ( Tt is worth noting that the term " Smuggling", in Customs Act has vast connotations and it means " any act or omission which will render such goods liable for confiscation under section 111 or 113 of the Customs Act.)
8. In case the goods liable to confiscation are imported in a package, the package and its other contents, if any, are also liable to confiscation as per specific provisions in section 118 of the Customs Act.
Confiscation of goods used for concealing smuggled goods
9. The goods used for concealing smuggled goods are also liable to confiscation as per specific provisions in section 119 of the Customs Act.
Confiscation of smuggled goods notwithstanding any change in form, etc.
10. Smuggled goods may be confiscated even if its form has been changed. In case the smuggled goods with other goods in such a manner that the goods cannot be separated then the whole of goods are liable to be confiscated as per specific provisions in section 120 of the Customs Act.
Confiscation of sale proceeds of smuggled goods
Penal Provisions under the Customs Act:
12. The word ‘penalty’ means punishment under the law, i.e., such punishment as is provided in penal laws. It also means the sum payable as a punishment for a default.
Penalties in respect of improper importation of goods
13. The person involved in omission or commission under the Customs Act, in relation to any goods which renders such goods liable to confiscation under section 111, or abets the same, or acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable to penalties as follows :-
(a) in the case of goods in respect of which any prohibition is in force under the Customs Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees, whichever is the greater;
14. The person involved in commission or omission, in relation to any goods, which renders such goods liable to confiscation under section 113, or abets the same, shall be liable to penalties in different types of cases as follows:-
(i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding * the value of the goods or five thousand rupees, whichever is the greater;
(ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees, whichever is the greater;
(iii) in the case of goods under claim for drawback, to a penalty not exceeding the amount of drawback claimed or five thousand rupees, whichever is the greater.
Mandatory Penalty for Short-levy or Non-levy of duty in certain cases ( Section 114 A)
15. In cases of non-levy or short levy of duty or where the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (2) of section 28 shall also be liable to pay a penalty equal to the duty or interest so determined. However, where such duty or interest, as the case may be, and the interest payable thereon, is paid within thirty days from the date of the communication of the order, the amount of penalty to be paid shall be reduced to 25% of the duty or interest.
16. If the duty or interest determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the duty or interest as reduced or increased, as the case may be, shall be taken into account. Also, in a case where the duty or interest determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the benefit of reduced penalty shall be available if the amount of the duty or the interest so increased, along with the interest payable thereon, and 25% of the consequential increase in penalty have also been paid within thirty days of the communication of the order. Where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114.
Penalty for not Accounting for Goods ( Section 116)
17. If any goods loaded in a conveyance for importation into India, or any goods transhipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs, the person-in-charge of the conveyance shall be liable to: -
(a) in the case of goods loaded in a conveyance for importation into India or goods transhipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported;
(b) in the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported.Penalties for contravention, etc., not expressly mentioned
18. Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding ten thousand rupees.Adjudication of confiscations and penalties
19. The Customs Act enjoins quasi-judicial proceedings to be followed before any penalties are imposed and any confiscation action etc. initiated against any offending goods. Apart from issuing proper show cause notice under section 124, the persons concerned are also required to be given opportunity of representation in writing and personal hearing in the matter. The proper adjudication authority is then to pass final order taking due note of all evidences brought on record. As per Section 122 of the Customs Act, adjudication powers have been given to different class of officers as follows:-
(a) without limit, by a Commissioner of Customs or a Joint Commissioner of Customs
Generally, ‘mens rea’ is not required to be proof for the imposition of penalty under the provisions of the Customs Act. The amount of penalty depends on the gravity of the offence and is to act as the deterrent for future.20. Whenever the goods are confiscated by an adjudicating authority, if these are not prohibited goods, an option is to be given to the party as per Section 125 of the Customs Act, to pay a fine known as ‘redemption fine’ of quantum as the adjudicating authority deems fit, in lieu of the confiscation. Prohibited goods can be confiscated absolutely.
21. To tackle the menace of smuggling and other serious economic offences including commercial frauds effectively, apart from penal action in departmental adjudication, the Customs Act, also provides for criminal prosecution action. The persons involved can be arrested and prosecuted in a Court of Law. Prosecution action can also be taken for providing false documents/declarations to Customs and for obstructing Customs officers working intentionally.
22. Any person guilty of serious offence under Customs Act, which is punishable under section 135 of the said Act, can be arrested by a customs officer authorised in this behalf, as provided under section 104 (1) of the Act. Under the law, the person being arrested is entitled to be informed about the grounds for such arrest under the law. The said section also enjoins that provides that every person arrested under the Act has to be taken without unnecessary delay to the nearest Magistrate. Since the Customs Act doesn’t contain any provision regulating the manner in which a person arrested is to be dealt with by the Magistrate, therefore, the provisions of the Criminal Procedure Code which regulate this aspect would be applicable to the person arrested under the provisions of the Customs Act. The power to remand to judicial custody vests in the Magistrate by virtue of section 165 of the Cr.P.C.
23. Department has issued several instructions to ensure that powers of arrest by Customs officers are exercised with care at senior level and arrest should be resorted in sufficient grave nature of officers as per laid down guidelines.
Offences & Prosecution
The offences under the Customs Act can be broadly categorised in two categories – non-bailable or cognisable offences & bailable or non-cognisable offences
Non-bailable or cognisable offences
24. The offences punishable with imprisonment for a term of more than 3 years are covered in this category. As per section 135 (1) of the Customs Act if any person is involved, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be punishable, in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine.
25. If any person convicted of an offence under section 135(1) or of section 136 (1) (applicable to customs officers) of the Act is again convicted of an offence under the same sections, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine.
(ii) Bailable or non-cognisable offences
26. The offences punishable with imprisonment for a term of less than 3 years or only fine are covered in this category .The offences under this category are as follows:-
(a) If a person makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both (section 132)
Presumption of culpable mental state
28. No prosecution proceedings can be launched in a Court of Law against any person under Customs Act, and no cognizance of any offence under sections 132 to 135 of the Customs Act, 1962 can be taken by any Court, except with the previous sanction of concerned Commissioner of Customs. Based upon the results of investigations and evidence brought on record, Commissioners of Customs apply their mind before sanctioning prosecution- after being satisfied that there are sufficient reasons justifying prosecution. Criminal complaint is thereafter filed in appropriate Court of law and followed up with a view to get expeditious orders / conviction.
Tuesday, September 11, 2007
Register of Compensatory Holidays in Form No.9
Register of Adult Workers in Form No.12
Register of Adolescent Workers in Form No.14
Register of Leave with wages in Form No.15
Muster Roll in Form No.25
Register of Accidents in Form No.26
Register of Dangerous Occurrences in Form No.26 A
Register of exemptions in Form No.28
Register of particulars of rooms in the factory in Form No.29
Inspection register in Form 28, 29 & 7 The above are the general registers to be maintained. There are other registers under the Rules to be maintained depending upon the factory.
LIMITATIONS IN THE CATEGORY OF THE CASES PERTAINS TO CIVIL APPELLATE JURISDICTION
ART. /RULE/ SECTION
TIME FROM WHICH PERIOD BEGINS TO RUN
1] FIRST APPEAL (CPC)
Art.116 (a) of Limitation Act, 1963
The date of the decree or order.
R.15(2) of Bombay City Civil Court Act, 1948
The date of the decree or order.
a. Land Acquisition Act.
Art. 116 of Limitation Act.
The date of the decree or order.
b. Employees State Insurance Act.
Sec. 82 (3) ESI Act.
From the date of order
c. Railway Claims Tribunal Act.
Sec. 23 (3) of RCT Act.
From the date of order
d. Motor Vehicles Act.
Sec. 173(1) of MV Act.
From the date of order
e. Workmen's Compensation Act.
Sec. 30 (20 Workmen's Compensation Act. Sec.30(3) Section 5 of the Limitation Act is applicable
From the date of order
f. The Copy Right Act.
Sec. 72(2) The Copy Right Act
From the date of order
g. Securities & Exchange Board of India Act.
Sec. 15z of SEBI Act
60 Days, If prevented by sufficient cause to file within 60 days further period not exceeding 60 days.
From the date of communication of the decision or order to him.
h. Maharashtra 8 Electricity & Regulatory Commission Act.
Sec. 27 of MERC Act.
i. Foreign Exchange Regulation Act.
Sec. 35 of FERA
60 days, If sufficient cause shown for further 60 days.
j. Family Court Appeals Act.
Sec. 19 (3) of Family Courts Appeal Act.
From the date of judgment or order
k. Cross objection in Appeal
Order (41) of CPC R.22
Within one month from the date of service notice on him or his pleader of the day fixed par hearing of appeal or within such further time as the appellate court may allow.
2] SECOND APPEAL (CPC)
Art.116 of Limitation Act.
The date of the decree or order.
3] LETTERS PATENT APPEAL
Bombay High Court (A.S.) Rules Provisions of L.P.A. and Order 41 of CPC (117 Art.)
From the date of order.
4] APPEAL FROM ORDER
District - 90 Days.
Bombay - 30 Days.
From the date of order.From the date of order.
5] CIVIL REVISION APPLICATION(CPC)
Art. 131 of Limitation Act.
The date of the decree or order or sentence sought to be revised.
a. Application for setting aside Registrar's order
Revision of orders of Reg & Addl. Reg by motion u/ Chapter II,Rule 7
Bombay High Court (A.S) Rules Chapter XII Rule-2
Chapter II Rule - 7
From the date of order complained of
From the date of order
b. For bringing L.Rs. on record
The date of death of the plaintiff , appellant , defendant or respondent , as the case may be.
c. For setting aside abatement
The date of abatement.
d. For leave to appeal as a pauper(a) to the High Court
The date of decree appealed from.
e. To the High Court for a certificate of fitness of appeal to the Supreme Court clause 1 of Art. 132, 133 etc.
Art, 132 of Limitation Act
The date of the decree , order or sentence.
f. Application for restoration of appeal, application Review, Revision dismissed for default, want of prosecution.
Art. 123 of Limitation Act.
The date of the decree or where the summons or notice was not duly served, when the aplicant had knowledge of the decree.
g. Appeal under Sec. 35G(2) of Central Excise Act.
From the date on which order appealed against is received by commissioner or party order.
h. The Customs Act Appeal u/s. 130 (2)
From the date on which the order appealed against is received by commissioner of customs or the other party
The date of the decree or order.
8] CONTEMPT PETITION
From the date on which the contempt ------- to have been committed.
9] CONTEMPT APPEAL
Sec. 19(4) (a)
10] WRIT PETITIONS
Art. 226, 227 etc
No limitation but to be filed as early as possible.
The concept of charge sheet is derived from criminal law. Under the criminal procedure code the Magistrate frames the charges. In case of investigations made by the police, in terms of Sec.173 of Code of Criminal Procedure the officer in-charge of the police station shall forward a report in the form prescribed to the Magistrate empowered to take cognisance of the offence. The magistrate can discharge the accused person, if on consideration of the document, the charge is deemed groundless. Otherwise the magistrate is to frame the charge. In disciplinary inquiries in public and private employment the disciplinary authority frames such a charge, if he thinks fit to do so.
Basic Ingredients of a Valid Charge Sheet
The charge sheet pin-points the lapses of the employee. It is a document of indictment. The employee is called upon to explain properly or else the charges are deemed proved. But then the employee is not going to oblige and accept the charges. Issuing a charge sheet therefore calls upon the inherent obligation to prove the facts mentioned therein. It is easier to make allegations, but not so to substantiate the same, unless sufficient homework is done and proper care is taken in the expression of the allegations. It is possible to prove the charges, if the facts are correctly mentioned and supporting material by way of proof is readily made available. The employee could have in fact committed lapses bordering serious misconduct, and there could be material in support of the same. But it needs special skill to understand the exact lapses of the employee and state the same in precise terms, as is seen in the material placed as evidence. An objectivity of the mind, free from malice and bias towards the charged officer is needed to draft a proper charge sheet.
The charges should be specific and should not be expressed in generic or vague terms. Suspicions, assumptions or surmises expressed cannot constitute grounds for awarding punishment to the employee. What is needed is categorical statements. There is to be material information. Taken together, these material facts should convey an act/acts of misbehaviour and these have to be conclusively established through documents or witnesses. The documentation of the charge sheet, has, therefore, to be expressed as the initiator or pre-enquiry presentation of the allegations and thus to serve as the prime or basic record in a disciplinary case. There has to be an inherent harmony between the allegations expressed and the supporting material produced.
Charge of misconduct should not be vague. If it is so, it can be said rules of natural justice have not been followed. If the charge sheet is vague there is no reasonable opportunity to show cause. The charge sheet must be specific and must set out all the necessary particulars, irrespective of the fact, whether in view of the previous preliminary inquiry the delinquent officer knows about the charges.
What is meant by vague? Vague can be considered as the antonym of the word 'definite'. If the ground is incapable of being understood or defined with sufficient clarity, it can be called vague.
Whether Vagueness of the Charge will vitiate the Inquiry?
The government servants have got protection under Article 311 of the Constitution of India and their services can only be terminated after giving them reasonable opportunity to show cause. The reasonable opportunity implies that the charge sheet should not be vague. If the services of an employee are terminated in disregard to provisions of Article 311 then the dismissal is wholly void and the enquiry is vitiated.
Even when the employee have got no constitutional protection, the vagueness in the expression of the charge may prejudice the employee and disable him from properly understanding the implications and submitting his defence. If this happens the enquiry is vitiated.
There can be no hasty action. The competent authority should first order an investigation and call for the facts and then only he must issue a charge sheet. But if he were to issue a charge sheet, even before a regular investigation was done, one will find it difficult to draft a charge sheet setting forth precisely the lapses of the officer.
Drafting of Charge Sheet - Constituents of Charge
1. Time and place of the misconduct. Time and place are sometimes constituent of the charge itself.(e.g. riotous behaviour within the office premises and during office hours). Even when the time and place do not constitute an essential part of the charge, still they should be mentioned, so that the incident may be specific and concerned employee may be able to meet the case.
2. Each incident constituting misconduct should be stated as a separate charge.
3. The specific name of the misconduct should be mentioned. This is done by referring to the specific provision of the Code of Conduct Regulation, that has been violated.
4. In case of habitual committal of the misconduct is made, the word 'habitual' should be mentioned. The past record showing the habit should also be given.
5. When the time of the incident involving the misconduct is material and is given, the employer should always mentioned the word 'about' or 'around' i.e. 'about 2.00 pm' or 'around 2.00 PM'. Even if it is proved that the employee did not commit the misconduct at 2.00 PM, and it had taken place at 2.10 or 2.15, the use of the word will save the situation. On account of the difficulty of being very precise the charge is technically defective if either of the words mentioned is not used.
6. Charge sheet should contain facts instead of mere inference or judgement from facts. Mere use of words like "insolence" or "unsatisfactory work", "negligence", "misbehaviour or indiscipline" cannot constitute a misconduct, unless supported by information about material incidents corroborating the words used.
7. The time allowed for submission of reply by the delinquent officer and a statement that if no reply is received within that time, it will be presumed that the delinquent officer has nothing to reply and that he has admitted the charges and further action on the charge sheet will follow accordingly. However despite this statement, if no reply is received, an oral inquiry should be conducted, after expiry of time allowed for the reply.
The Central Vigilance Commission has stressed the importance of documentation of the charge sheets in precise and clear terms and has also pin-pointed the omissions in this important formality observed frequently. The contents of their circular letter No.3(v)/99/8 Dated the 5th October,1999 is appended hereunder for an understanding of the importance of this prime formality.
Defective Framing of Charge Sheet - Adverse Effects
(Observations of CVC about Inadequate skill in Drafting Charge Sheets)
Inadequate skill in drafting the charge sheet is one of the reasons that help the charged officials to get away with lapses/misconduct committed by them. Many cases fail before the Courts of Law just because of the defective framing of charge sheets. It has been observed by the Commission that the charge sheets are sometimes framed in a very general way and the existing practice with regard to framing of charges and imputations vary widely.
1. Sometimes the charge itself is framed in a very general way, only pointing out that the official concerned has acted in an unbecoming manner or has shown lack of devotion to duty or has acted without integrity. The real issues, in such circumstances, are to be found in the statement of imputations. It has also been observed by the Commission that the organisations/Ministries etc. while framing the charge sheets list serious irregularities/charges in the imputations but do not mention the same in the articles of charge.
2. Many a times the charges are not framed in accordance with the advice given by the Commission, thereby diluting the central issues.
3. Rule 14(3)(i) of the CCS (CCA) Rules stipulates " the substance of the imputations of misconduct or misbehaviour into distinct articles of charge" should be drawn up by the Disciplinary Authority whenever it is proposed to hold an enquiry against a Government servant. This would mean that no charge could be proper or complete without including therein elements of the main content of the allegations/imputations. Therefore, the spirit of all Conduct, Discipline & Appeal Rules imply that there should be a specific finding on each allegation made against the officer. At the end, the Inquiry Officer must then apply his mind to come to a conclusion as to whether the charge as a whole has been proved wholly, partially or not at all.
4. It has to be understood that the statement of imputations/ allegations annexed are supplementary/supportive material to the charge sheet; they are details of facts/evidence to support the charges made, and should contain names of witnesses/documents in support of the charges. That is, the statement of imputations is to make the basis of the charge, allegation-wise, precise and specific and should include details of what exactly each witness/document is going to prove regarding every charge.
5. Each charge should also have a separate statement of imputations of misbehaviour/misconduct. The common failing of listing out one long statement of misconduct/misbehaviour ought to be avoided.
The Commission has also issued instructions earlier that are reproduced in Para 14.1 to 14.3 of Chapter X of Vigilance Manual Part I stipulating that the articles of charge should be framed with great care. Broad guidelines as to how the articles of charge should be framed have also been indicated therein. Similarly, the common mistakes that have been noticed by the Commission in framing the charge sheet have also been incorporated in Para 12.1.3 of the special Chapter on Vigilance Management in Banks and Para 20.1.3 in the Special Chapter in PSEs. These are reproduced below:-
"Special care has to be taken while drafting a charge-sheet. A charge of lack of devotion to duty or integrity or unbecoming conduct should be clearly spelt out and summarised in the Articles of charge. It should be remembered that ultimately the Inquiry Officer would be required to give his specific findings only on the Articles as they appear in the charge-sheet. The Courts have struck down charge-sheets on account of the charges framed being general or vague (S.K. Raheman Vs. State of Orissa 60 CLT 419.) If the charge is that the employee acted out of an ulterior motive that motive must be specified (Uttar Pradesh Vs. Salig Ram AIR 1960 All 543).
Equally importantly, while drawing a charge sheet, special care should be taken in the use of language to ensure that the guilt of the charged official is not pre-judged or pronounced upon in categorical terms in advance.
(Meena Jahan Vs. Deputy Director, Tourism 1974 2SLR 466 Cal).
However, the statement merely of a hypothetical or tentative conclusion of guilt in the charge, will not vitiate the charge sheet
(Dinabandhu Rath Vs. State of Orissa AIR 1960 Orissa 26 cf. Also Powari Tea Estate Vs. Barkataki (M.K.) 1965 Lab LJ 102)".
Notwithstanding the extant instructions/guidelines many organisations continue to make avoidable mistakes while framing the charge sheets. Therefore, it is reiterated that the extant instructions on the subject as stated in the aforesaid paragraphs may be followed carefully while drafting the charge sheet, in order to avoid subsequent difficulties. The CVOs of the organisations/Ministries etc. should ensure that these instructions are implemented scrupulously.
In addition as already summarised above, an IO is required to give his finding in respect of each article of charge and reasons thereof. As the articles of charge are definite and distinct substance of the statement of imputations of misconduct or misbehaviour, the findings on each articles of charge have to be inter alia based on statement of imputations. Therefore, the Inquiry Officers are required to record their findings in respect of each allegation framed in support of an article of charge in order to ensure that inquiry reports do not suffer due to deficiencies.
[Source Circular instructions No.18 of CVC bearing office No. 3(v)/99/8 dated 5th October, 1999 on the subject "Drafting of charge- sheet"]
Drawing List of Lapses from the Report of Investigation
Various lapses of the delinquent officer listed in the Report of the Investigation should be grouped category-wise and they should then be graded according to their severity. Discretion should be exercised whether to include minor lapses, along with more serious one, as it puts a severe load on the inquiry proceedings, by way of producing several dozens of documents and witnesses from both sides. When there are a number of lapses of the same category, it may be sufficient to make a general statement and give only a few salient cases as examples, instead of reproducing all such individual instances. If there are large number of minor lapses, it may be advisable to issue a separate charge sheet under minor penalty procedure, so that the core items of irregularities are only included in a compact charge sheet issued for major penalty, for which alone oral inquiry is to be conducted.
It is advisable not to group different types of lapses in a single charge sheet, i.e. lapses with vigilance angle, administrative misconduct and technical or procedural lapses (including negligence).
Similarly it is wrong to issue a consolidated charge sheet covering the entire tenure of an officer spread over 3 to 5 years at a branch. Does it mean that the watchdog was asleep for all three years or more, and wake up only leisurely, for a one-time vigilant action, and trying to clear all the old arrears, on a wholesale turnover stretching half-a-decade?
Other Frequently Observed Deficiencies in Issuing Charge Sheets
Age-old lapses should not crop up at the time of the retirement of the officer, for a last minute encounter. These is in bad taste, and reflects the Disciplinary Authority, himself not adhering to discipline. When there is inordinate delay in taking action, it leads to the logical surmise that the management has condoned the misconduct, and dropped the case already.
Charge sheet should not be issued without holding the supporting evidence on hand. It is violative of the provisions of the DA Regulation. After issuing the charge sheet, the presenting officer should not be asked to gather evidence, but to present the evidence already gathered. It is not the function of the presenting officer to search for and locate evidence, which would imply that the charge sheet was issued originally without supporting evidence.
For one and the same set of transactions different officers should not be charge sheeted separately at different occasions, but such charge sheets should be drafted and issued as a single exercise, to be covered by one single common proceeding.
The Branch Manager is responsible for the work and integrity of subordinate officers reporting to him at the branch. Primary responsibility for the lapses of the group, may stick to the Branch Manager. But however in respect of more serious lapses, the Branch Manager should not be singled out, and charge sheeted exclusively. When there is a role for a second/junior officer, he also must be made accountable.
In fact from the study of the wording and expression of statements in a charge sheet, it can be conclusively drawn out, if the charge sheet represents a bona fide disciplinary action initiated, or an exercise in personal vindictiveness.