Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Circular No. 54 / 2011-Customs
229-A, North Block,
New Delhi, dated 29th December, 2011.
To,
All Chief Commissioners of Customs / Customs (Prev).
All Chief Commissioners of Customs & Central Excise.
All Commissioners of Customs / Customs (Prev).
All Commissioners of Customs & Central Excise
All Director General under CBEC.
Subject: Handling of Cargo in Customs Areas
Regulations, 2009 – Clarification - regarding.
Attention is invited to the provisions of Handling of Cargo in Customs Areas
Regulations, 2009 (HCCAR) and various circulars and instructions issued by the
Board on the above subject from time to time.
- At the time of introduction of the said regulations it was explained that
it provides for a comprehensive mechanism for handling of goods in a customs
area and set out the terms and condition for all facilities where customs cargo
is handled. These Regulations also fulfilled the recommendation made by the
Public Accounts Committee for formulating appropriate provisions to exercise
adequate control over the cargo handling entities to ensure that the adequate
infrastructure is set up at all customs areas for efficient handling of imported
or export goods.
- In this context, it is stated that Regulations 5 and 6, provide for
conditions to be fulfilled by a Customs Cargo Service Provider (CCSP) and their
responsibilities in relation to imported or export goods. Regulation 6(2)
particularly provides that CCSP approved for custody of imported or export goods
and for handling of such goods shall not lease, gift, sell or sublet or in any
other manner transfer any of the premises in a customs area; or sub-contract or
outsource functions permitted or required to be carried out by him in terms of
these regulations to any other person, without the written permission of the
Commissioner of Customs. The condition of such permission has been provided for
the reason that the powers for approval of any place as ‘Customs Area’ and to
approve / appoint a custodian under section 8 and 45 of the Customs Act, 1962,
respectively, including the power for suspension or dismissal of such approval
is vested with the jurisdictional Commissioner of Customs.
- In this regard, a reference has been received from the Ministry of Shipping
pointing out that the developmental activities in respect of major ports on
Public Private Partnership mode are taking place wherein private operators are
constructing and operating terminals in the land leased out to them. Such
projects require obtaining the approval of Minister of Shipping/ Finance
Minister/ Cabinet Committee of Infrastructure depending upon the cost of the
project. Hence, they had represented that specific permission from another
authority i.e., the Commissioner of Customs is unwarranted. Hence, they had
requested to exclude Major port trusts from the purview of the said Regulations.
- 1. The matter was examined in detail. At the time of introduction of the said
Regulations itself it was clarified vide Board’s
circular No.13/2009-Customs
dated 23.3.2009 that Port Trusts of the notified major ports shall not be
required to make an application for approval or renewal under these regulations,
since section 45 of the Customs Act, 1962, which provides for approval of
custodians, makes an exception to major ports. However, they are required to
discharge the responsibilities cast upon them as specified in Regulation 6 which
include obtaining written permission from the Commissioner of Customs prior to
outsourcing or leasing part of the premises within a customs area. This has been
provided in order to take into account the concerns of the revenue for
safeguarding the duty on imported goods.
5.2. It is also important to note that the provisions of Section 128 of the
Major Port Trusts Act, 1963 provide for saving of the right of Central
Government for collecting duties and of power of Customs officers by
specifically providing as follows:
“128. Nothing in this Act shall affect—
(1) the right of the Central Government to collect customs duties …., or
(2) any power or authority vested in the customs authorities under any law for
the time being in force.”
- In view of the above, it is clarified that all cases of lease, gift, sale
or subletting or transfer of the premises in any other manner, in a customs area
by major ports may be firstly examined to see whether required permission from
the Central Government/ Ministry / Cabinet Committee has already been obtained
or not. In cases where appropriate authority has already given permission for
such lease or transfer of premises, then necessary written permission may be
given by the Commissioner for such lease or transfer. On the contrary, if no
approval of the Government has been obtained, then appropriate action may be
initiated against the erring Custodian under the said Regulations and the
Customs Act, 1962.
- These instructions should be brought to the notice of all the concerned by
way of issuance of instructions/ trade notice.
- Difficulty faced, if any, may be brought to the immediate notice of the
Board.
Yours faithfully,
(G.S. Sinha)
OSD (Customs IV)
Internal Circulation: As usual
F.No.450/55/2008-Cus.IV (Pt.III)