Affidavits [are] or Declarations
SECTION [114AA. Penalty for use of false and incorrect material. - If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods.]
Affidavits are declarations. So, it is better to obtain a sworn affidavit for following reasons:-
An affidavit, has written statements that is really true and is sworn in front of legal testifying authority. It contains the written facts of certain events as the author recalls them into memory. Conversely, a statutory declaration is just an affirmed statement by its author or declarant. The claims or statements asserted are merely believed to be true.
As a law enforcement official, when you want take a declaration which is other than a statutory requirement, better obtain it as a sworn affidavit. If the declarant later becomes hostile or dies, it may be more difficult to prove the authenticity of the declarant’s signature.
Don’t forget to see that whether the affidavit contains the verification by the person making it. http://indiankanoon.org/doc/654638/
Per chance you encounter any difficulty to get an affidavit, at least ensure that the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the declaration is made under penalty of perjury.
Read more: http://www.differencebetween.net/business/difference-between-affidavit-and-statutory-declaration/#ixzz1RT7jZfnb
Allied Acts - Border Controlling Agency Function
ONLY to ensure compliance of Allied Acts (Supplement to Chapter 8 – CBEC Customs Manual, 2011) - No power to relax, condone, adjudicate or prosecute for non-compliance.
Non-compliance of any of the provisions of the allied acts makes the goods 'prohibited'. The terms "Prohibited Goods" have been defined in sub-section 33 of Section 2 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".
Customs is the border controlling agency to ensure compliance of a number of Allied Acts, (Supplement to Chapter 8 – CBEC Customs Manual, 2011). But the Customs Officers are not vested with any power to relax, condone, adjudicate, prosecute etc. where any non-compliance is noticed since in none of the Allied Acts Customs Officer is declared as proper officer / authorized officer / competent officer. As such no discretion available to the customs officer to relax any provision of an allied Act or Rules or procedures made thereunder. In case there is provision in such law for relaxation, rectification etc., the importer may be asked to approach the concerned agency and obtain an order. e.g. as is being done for ADC, PQ, Food items, Silk etc. Where labelling requirement under the Legal Metrology Packaged Commodities Rules is not met, the Customs Officer has no power to exempt, relax or modify any condition. Either the goods to be absolutely confiscated under the Customs Act, 1962 or the party to produce proceedings under the respective act passed by the appropriate authority.
Import - Prohibited goods - Clearance for home consumption not permissible as per s. 47(1).
- Allied Acts to be enforced effectively to ensure a level playing field for the indigenous industry and as consumer protection.
- Wherever any provision of an allied act is contravened, such goods become prohibited goods. Prohibited goods cannot be allowed clearance for home consumption [s.47 (1)]
- Prohibited goods should be first seized since they are liable for confiscation.[Section 111(d)]
- Option is offered to the party to pay fine in lieu of confiscation. Payment of fine will not alter the prohibited nature of the goods.
- Commission or omission of the provisions of the law may be permitted to be made good by the party only where the adjudication officer gives the option to pay fine in lieu of confiscation.
- O-i-O should state "in the event of fine in lieu of confiscation is paid within the time allowed; any request for re-export may be acceded to by the proper offer or any request for clearance for home consumption be acceded to only on being satisfied by the proper officer that the provisions of the law contravened are since complied with."
- Time allowed to pay the fine should be clearly spelt out in the O-i-O.
- It should also be clearly stated in the O-i-O that in the event of the party not paying the fine within the time allowed, the goods would automatically stand confiscated to government.
Amendment (u/s 149)
Self Assessment came into effect from 8.4.2011. So, amendment after Bill of Entry is generated is available only through the re-assessment by the proper officer.
- It should be borne in mind that the party had made and subscribed to a declaration as to the truth of the contents of such BE/SB having in support of thereof, produced to the department the invoice, if any, relating to the goods. Amendment of a document might mean untruth in the declaration already made.
- No re-assessment provided for in the law as a consequence of the amendment u/s 149.
- When an assessment is on the basis of declaration of the party, the assessment becomes final and amendment altering the assessment is not permissible.
- Assessing Officer cannot reopen the finalized assessment. Since no grievance at the time of assessment, appeal is not permissible.
- Where any assessment done is contrary to the claim of the party, regarding valuation of goods, classification, exemption etc., the proper officer shall pass a speaking order within fifteen days from the date of assessment. [S.17[(5)]
- If the party is aggrieved, s/he may prefer an appeal and if any component of the assessment is altered, refund of duty or any consequential relief alone is extended and BE/SB not amended.
- Amendment of document affecting final assessment cannot be permitted.
- No amendment permitted if after clearance of the goods it is detected by the department that any information furnished in the Bill of Entry or Shipping Bill is not true in respect of any matter relevant to the assessment, adjudication proceedings are initiated after due investigation and on the basis of the orders passed the importer would pay the fine in lieu of confiscation, penalty and duty.
- In case an importer turns up after clearance and requests for amendment of the invoice to declare more value and s/he wants to pay the differential duty, amendment cannot be permitted since the invoice could not have been in existence at the time of clearance. (proviso to s.149) Had it been in existence then untruth sets in and contravention of s.111 (m) occurs. The only course open is to go in for adjudication proceedings where the adjudicating authority might demand differential duty, who may refrain from imposing fine in lieu of confiscation and or penalty since the importer himself comes forward to pay the differential duty. Reassessment is not permissible in such situation. (Reassessment can be done by officer only in respect of first appraisement where untruth of information detected before clearance).
First Check Appraisement:
Normally, amendments will not be allowed in case of BE under first check appraisement.
s.17.Assessment of duty
s.18. Provisional Assessment
5. Under the new scheme of
self-assessment, the Bill of Entry or Shipping Bill that is self-assessed by
importer or exporter, as the case may be, may be subject to verification with
regard to correctness of classification, value, rate of duty, exemption
notification or any other relevant particulars having a bearing on correct
assessment of duty on imported or export goods.
Such verification will be done selectively on the basis of the output of
the Risk Management System (RMS), which not only provides assured facilitation
to those importers having a good track record of compliance but ensures that on
the basis of certain rules, intervention, etc. high risk consignments are
interdicted for detailed verification before clearance. For the purpose of
verification, the Asstt./Dy. Commissioner may order for examination or testing
of the imported or export goods. The Asstt./Dy. Commissioner may also require
the production of any relevant document or ask the importer or exporter to
furnish any relevant information.
Thereafter, if it is found that self-assessment of duty has not been
done correctly by the importer or exporter; the proper officer may re-assess
the duty. This is without prejudice to
any other action that may be warranted under the Customs Act, 1962. On re-assessment of duty, the proper officer
shall pass a speaking order, if so desired by the importer, within 15 days of re-assessment. This requirement is expected to arise when
the importer or exporter does not agree with re-assessment, which is different
from the original self-assessment. There may be situations when the proper
officer of Customs finds that verification of self-assessment in terms of
Section 17 requires testing / further documents / information, and the goods
cannot be re-assessed quickly but are required to be cleared by the importer or
exporter on an urgent basis. In such
cases, provisional assessment may be done in terms of Section 18 of the Customs Act, 1962, once the
importer or exporter furnishes security as deemed fit by the proper officer of
Customs for differential duty equal to duty provisionally assessed by him and
the duty payable after re-assessment. http://www.jawaharcustoms.gov.in/newsite/StandingOrders/SO2011/SO-62-11.htm
· Assessment – Where the importer / exporter did not object to the assessment based on his own declaration, the assessment becomes final and since there was no grievance, no appeal lies.
· Re-assessment on request of the importer/Exporter on any reason not provided for under the Customs Act, 1962.
· S.17[(5): Where any assessment is done contrary to the claim of the importer, the Proper officer shall pass a speaking order within fifteen days from the date of assessment. [Though CBEC Manual 2011 - Chap.3 Para 3.6 - says that the importer / exporter can seek an assessment order, the provisions of the law would prevail over. So the proper officer shall pass order even where the importer/exporter do not seek.]
The importer / exporter would pay the fine in lieu of confiscation, penalty if any and duty. Filing a fresh BE/SB or getting the BE or SB amended NOT provided for.
· In cases where any assessment done is contrary to the claim of the importer u/s 46 or exporter u/s 50 regarding valuation of goods, classification, exemption etc., the proper officer and where the importer or the exporter, as the case may be, confirms his acceptance of the said assessment in writing the assessment becomes final. The importer/Exporter cannot go on appeal since there was no grievance at the time of assessment.
· · When an assessment becomes final, the proper officer does not have jurisdiction to reopen the assessment and re-assess except in first appraisement cases where the declaration is not found true. [Section 17(4)].
· S.17 (4):Any information so furnished in the Bill of Entry or Shipping Bill is not true in respect of any matter relevant to the assessment, adjudication proceedings are to be initiated for contravention of s.111 (m) and if the order passed necessitates demand of differential duty, reassessment is done.
· But if it is found, after clearance of the goods, that any information furnished in the Bill of Entry or Shipping Bill is not true in respect of any matter relevant to the assessment, case has to be registered andadjudication proceedings are initiated after due investigation. On the basis of the orders passed the importer would pay the fine in lieu of confiscation, penalty and duty, if any. Neither any amendment of the Bill of Entry or Shipping Bill is done nor any re-assessment is permissible.
· In situations where the importer requests for amendment u/s 149, it should be borne in mind that the importer/Exporter had u/s 46 (4) /s.50 (2) already made and subscribed to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. Proper investigation should be conducted as to the circumstances leading to such untruth. There is no provision in the law for re-assessment as a consequence of the amendment u/s 149.
· In case an importer turns up and says that the invoice amount is now more and he wants to pay appropriate duty, reassessment is not permissible (re-assessment available only in respect of first appraisement where untruth of information detected before clearance). Not even amendment of BE available since the invoice could not have been in existence at the time of clearance. (proviso to s.149) Had it been in existence then untruth sets in and contravention of s.111 (m) occurs. The only course is to go in for adjudication proceedings where the adjudicating authority might demand differential duty, who may refrain from imposing fine in lieu of confiscation and or penalty since the importer himself comes forward to pay additional duty. There is no provision in law to amend the BE in such situations.
· Provisional Assessment of duty u/s 18 (1) Provisional Assessment of duty is made only in the three situations mentioned u/s 18 (1) (a), 18 (1) (b), and 18 (1) (c). In all the three situations, due follow up action need to be taken in right earnest - to get the documents from the importer or to get the test result or to complete the further enquiry. In the interest of the trade, it is the responsibility of the department to take day to day action. Provisional assessment cannot be done unless the proper officer conducts an enquiry by the subject import which is pending. Investigation or inquiry done by other agencies or in respect of other imports cannot bind the assessing proper officer towards ordering provisional assessment of duty.
Baggage - Accompanied
http://www.cbec.gov.in/cs_manual2011.pdf [Web Page No. 200 onwards - Chapter 26 International Passenger Facilitation 2. Clearance of Arriving Passengers and Para 13 - CBEC’s Customs Manual, 2011]
1. Customs Series Form No. 37 Form of Baggage Declaration is prescribed u.s. 81 of the Customs Act, 1962.
2. Para 3 of Form No.37 says that no free allowance will be granted unless the quantities and value of the articles are declared fully.
3. Para 4 says that the items listed therein in limited quantities are entitled for exemption. Moreover it is required that personal effects not listed must also be fully declared.
4. Articles not belonging to the passenger or which are for sale etc. are required to be declared separately.
Passengers have nothing to declare and are carrying dutiable goods within the prescribed free may walk through the Green Channel after handing over the Customs portion of the Disembarkation Card.
No examination of the packages is done by the Customs Officer even when the passenger chooses the Red Channel. The declaration of goods and their values is generally accepted and duty assessed. [Examination of goods resorted to, only where mis-declaration of the quantity, description or value of dutiable goods or concealment is suspected.] Passenger who opt for the Red Channel to hand over the Customs portion of the Disembarkation Card to the officer on duty and in case the card is incomplete the Customs Officer to help record the Oral Declaration (O.D) of the passenger and thereafter countersign/stamp the same, after taking the passenger’s signature.
Goods that are essentially for commerce and not for personal use, or goods in commercial quantity become liable to confiscation and the passenger liable to strict penal action. Only bonafide baggage items for personal use or use by members of his family are allowed to be imported as baggage. In case of frequent ‘short visit’ passengers and repeat offenders, the Customs officers would impose higher levels of fines and penalties and for deterrent effect even consider prosecution.
Baggage detained:Full details to be inventorised before being taken in the custody of Customs
Duty when charged ad valorem is charged on the value of the goods in India including cost of importation. (Customs Series Form No. 37 – Form for Baggage Declaration – Paragraph 5)
Transaction value is the norm. Only if there is reason to believe the value
Examination of Import Goods
4. Examination of Cargo.
4.1 The Appraising Officers / Superintendents shall pay special attention to the alert notices / hold notice and any other instruction issued by the investigation agencies (DRI/CIU/SIIB/CSD) or the appraising groups related to a particular B/E. They should also visit the intranet site of Jawaharlal Nehru Custom House (available on the EDI system) to sensitize themselves with the various alert notices / IPR registrations. The SIIB Imports section shall ensure that all such alerts / IPR registrations are hoisted on the departmental intranet site and updated on regular basis.
4.2 The Docks examining officers shall insist on all the original documents in general and the packing list with running serial numbers of the packages of the cargo imported in particular.
4.3 The Appraising Officer / Superintendent should carefully go through EDI system generated instruction in the case of RMS facilated Bills of Entry or the examination order given by the Appraising Groups in other cases, and take a note of the special requirements specified therein.
4.4 The container selected for examination should be suitably de-stuffed to make gullies / galleries as considered appropriate by the Appraiser / Superintendent, so as to have an access and view of the entire cargo. The officer should be able to walk up to the rear walls of the container. Thereafter the specified percentage selection of the packages should be made to examine the cargo. In case of any doubt or discrepancy, the entire container should be de-stuffed for examination.
4.5 The examination report on the hard copy of the B/E and that entered into the EDI system should invariably contain the details of container number(s) and the package serial number(s), which were randomly selected on a percentage basis as per the examination order and opened for examination against any consignment covered by a particular B/E.
4.6 In case, where a particular consignment covered by a B/E has shipping marks as per import documents but does not bear any running serial number on the packages, then the appraising officer / superintendent shall ask the importer / CHA to prepare a local packing list detailing the running serial number of the packages and indicating the contents therein. The Appraising Officer / Superintendent should invariably put the number and date of the B/E and their initials on the packages randomly selected and examined as per the examination instructions on the particular B/E. This fact shall be recorded on the hard copy of the B/E as well as the EDI system.
4.7 In case the goods covered under particular B/E attract the provisions of Notification No. 44(RE-2000)/1997-2000 dated 24.11.2000 issued by the DGFT, Ministry of Commerce & and Industry, Government of India, then it must be ensured that these goods comply with the conditions stipulated in this notification. before they are cleared for home consumption. The notification stipulates that all the packaged products, which are subject to the provisions of the Standards of Weight and Measures (Packaged Commodities) Rules, 1977, shall in particular, carry the declaration such as, name and address of the importer, net quantity, month and year of packing and maximum retail price.
4.8 In cases where representative samples are to be drawn either for test or for inspection by the appraising group or any other agency, due care and caution is to be exercised. The samples should be drawn by the Appraising Officer / Superintendent as per the procedure prescribed and it should be representative of the entire consignment, covering all varieties and types. It should be in sufficient quantity as may be warranted by the testing laboratory / appraising group / agency. The representative samples must be sealed in presence of the AO / Superintendent and shall bear their signatures and that of the importer’s representative or the CHA. The details of the samples are to be entered in the sample register CFS wise. One set of samples is to be handed over to the person duly authorized for collection of samples and the duplicate set is to be kept in safe custody of the AO / Superintendent and is subsequently deposited in the sample storage centre.
4.9 The examination report should be clear, precise and unambiguous. It should address to all the points raised in the examination order and the Compulsory Compliance Requirements generated by the EDI system.
5. In case of RMS Bs/E the appraiser / superintendent should ensure that the Load port seals on the container are intact and their number corresponds exactly with those on the import documents. The RMS Bs/E should be scrutinized for verification of CCR generated by the system. In case discrepancies are noticed, the same should be communicated to the LRM of the Custom House for insertion of suitable targets in the EDI system. Furthermore, if the examining officer feels the need of examining the goods covered by the RMS B/E, then the same should be done after obtaining approval from the Additional / Jt. Commissioner Docks.
6. A proper Discrepancy Register is to be maintained CFS wise and all discrepancies noticed during the course of examination should be entered therein on a daily basis. This register will record details of the B/E, importer, CHA, Description of the goods, Assessable value, the nature of discrepancy and the action taken thereof including realization of extra duty / redemption fine and personal penalty.
7. The DC/AC in charge of the CFS shall conduct sample checking of 5% of the consignments selected on random basis from the B/E registered for examination on a daily basis to check for any discrepancy. The B/E selected by the DC / AC should be rounded off and duly initialed by him in the registration register of the Bs/E maintained by the appraising officer / superintendent.
All these instructions should be strictly followed by all concerned.
[O/o The Commissioner Of Customs (Imports) Jawaharlal Nehru
Custom House, Nhava Sheva, Taluka – Uran, Dist.- Raigad, Pin – 400 707. F.No.
S/22-Gen-208/2008 AM(I) - Date : 17.0 2.2009.
STANDING ORDER NO. 07 / 2009 - Sub
: Examination of Import cargo at the CFSs – Reg. - http://www.jawaharcustoms.gov.in/newsite/StandingOrders/SO2009/SO-07-09.htm ]
F. No. S/5-Gen-48/2011 CFS M. Cell Dated: 06.09.2011. STANDING
ORDER NO. 65 /2011. Sub: Installation of Weigh Bridges by all CFSs in
their premises and weighment of all Containers handled by them before clearance
1. Attention is
invited to Para 5 of the ‘Handling of
Cargo in Customs Areas Regulations, 2009’, which requires certain conditions to
be fulfilled by Customs Cargo Service Provider (CCSP) / CFS for custody and
handling of imported or export goods in a Customs area to the satisfaction of
the Commissioner of Customs, like infrastructure, equipment and adequate
manpower for handling of imported or export cargo in a Customs area.
2. In this
regard, all the officers are hereby directed to compulsorily weigh all the
Containers handled by them before clearance from the CFSs. http://www.jawaharcustoms.gov.in/newsite/StandingOrders/SO2011/SO-65-11.htm
2. In partial modification of the said instructions, it has been decided that DC/AC shall conduct sample checking of 10% Bs/E registered for examination on a daily basis to check for any discrepancy. For example if 100 documents are registered in a CFS, they shall examine at least 10 documents. Though this 10% selection can be done on random basis, the following items should be taken up for examination in particular, if they have been registered for examination;
1) Items requiring verification of DGFT Notification RE 44(2004-09) compliance
2) Stock Lot of Plastics viz films, etc.
3) Mobile accessories
4) Computer parts
5) Water filters
6) Automobile parts imported by other than actual users
7) Water bottles and flasks
8) Gift articles such as lighting fixtures, glassware, etc.
9) DEPB documents having mixed consumer items
10) Items attracting Anti-Dumping duty such as CFL lamps
The Bs/E selected by the DC / AC should be rounded off and duly initialed by him in the registration register of the Bs/E maintained by the appraising officer / superintendent. A list of Bs/E so examined shall be forwarded to JC/ADC (Docks) every week for information.It may also be noted that this examination shall be done over and above the examination that is mandatorily done under DC/AC supervision. http://www.jawaharcustoms.gov.in/newsite/StandingOrders/SO2011/SO-58-11.htm