GOVERNMENT OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
NOTIFICATION No. 26 / 2009 - Customs (N.T.)
NEW DELHI, THE 17th MARCH, 2009.
26 PHALGUNA, 1930 (SAKA).
G.S.R._________(E) - In exercise of powers conferred by sub-section (2) of
section 141 read with section 157 of the Customs Act, 1962 (52 of 1962), the
Central Board of Excise and Customs hereby makes the following regulations,
namely:-
1. Short title and commencement. –
(1) These regulations may be called the Handling of Cargo in Customs Areas
Regulations, 2009.
(2) They shall come into force on the date of their publication in the Official
Gazette.
2. Definitions. –
(1) In these regulations, unless the context otherwise requires, -
(a) “Act” means the Customs Act, 1962 (52 of 1962);
(b) “Customs Cargo Services provider” means any person responsible for receipt,
storage, delivery, dispatch or otherwise handling of imported goods and export
goods and includes a custodian as referred to in section 45 of the Act and
persons as referred to in sub-section (2) of section 141 of the said Act;
(c) “specified“ means specified by a notification or an order issued under the
provisions of the Act;
(2) the words and expressions used herein and not defined but defined in the Act
shall have the same meanings respectively assigned to them in the Act.
3. Application. – These regulations shall be applicable to the handling of
imported and export goods in customs areas as specified under section 8 of the
Act.
4. Retrospective Application. – Any action taken or anything done in respect of
appointment of Customs Cargo Service providers, immediately preceding the coming
into force of these regulations, shall be deemed to have been done under the
corresponding provisions of these regulations. Customs Cargo Service providers
already approved on or before the date of coming into force of these regulations
shall comply with the conditions of these regulations within a period of three
months or such period not exceeding a period of one year as the Commissioner of
Customs may allow from the date of coming into force of these Regulations.
5. Conditions to be fulfilled by an applicant for custody and handling of
imported or export goods in a customs area. –
Any person who intends to be approved as a Customs Cargo Service provider for
custody of imported goods or export goods and for handling of such goods, in a
customs area, hereinafter referred to as the applicant, shall fulfill the
following conditions, namely:-
(1) The applicant shall provide the following to the satisfaction of the
Commissioner of Customs, namely:
(i) Infrastructure, equipment and adequate manpower for loading, unloading,
stacking, handling, stuffing and de-stuffing of containers, storage, dispatch
and delivery of containers and cargo etc., including:
(a) standard pavement for heavy duty equipment for use in the operational and
stacking area;
(b) building for Customs office, Customs Electronic Data Interchange (EDI)
Service Centre and user agencies with basic amenities and facilities;
(c) storage facility, separately for imported, export and transshipment goods;
(d) gate complex with separate entry and exit;
(e) adequate parking space for vehicles;
(f) boundary wall;
(g) internal service roads;
(h) electronic weigh-bridge and other weighing and measuring devices;
(i) computerized system for location and accountal of goods, and processing of
documents;
(j) adequate air-conditioned space and power back up, hardware, networking and
other equipment for secure connectivity with the Customs Automated system; and
for exchange of information between Customs Community partners;
(k) facilities for auction, including by e-auction, for disposal of uncleared,
unclaimed or abandoned cargo;
(l) facilities for installation of scanning equipment;
(m) security and access control to prohibit unauthorized access into the
premises, and
(n) such other facilities as the Commissioner of Customs may specify having
regard to the custody and handling of imported or export goods in a customs
area;
(ii) safe, secure and spacious premises for loading, unloading, handling and
storing of the cargo for the projected capacity and for the examination and
other operations as may be required in compliance with any law for the time
being in force;
(iii) insurance for an amount equal to the average value of goods likely to be
stored in the customs area based on the projected capacity, and for an amount as
the Commissioner of Customs may specify having regard to the goods which have
already been insured by the importers or exporters.
(2) The applicant shall undertake to bear the cost of the Customs officers
posted, at such customs area, on cost recovery basis, by the Commissioner and
shall make payments at such rates and in the manner prescribed, unless
specifically exempted by an order of the Government of India in the Ministry of
Finance;
(3) The applicant shall execute a bond equal to the average amount of duty
involved on the imported goods and ten per cent. of value of export goods likely
to be stored in the customs area during a period of thirty days and furnish a
bank guarantee or cash deposit equivalent to ten per cent. of such duty:
Provided that the condition of furnishing of Bank guarantee or cash deposit
shall not be applicable to ports notified under the Major Ports Act, 1962 (38 of
1963) or to the Central Government or State Governments or their undertakings;
(4) The applicant shall also execute a separate bond for an amount equal to ten
percent of value of export goods with a bank guarantee for an amount equal to
ten percent of the value of the bond, towards the export goods transported from
the customs area to any other customs area for export or transshipment, as the
case may be;
(5) The applicant shall undertake to comply with the provisions and abide by all
the provisions of the Act and the rules, regulations, notifications and orders
issued thereunder.
6. Responsibilities of Customs Cargo Service provider:
(1) The Customs Cargo Service provider shall –
(a) keep a record of imported goods, goods brought for export or transshipment,
as the case may be, and produce the same to the proper officer as and when
required;
(b) keep a record of each activity or action taken in relation to the movement
or handling of imported or export goods and goods brought for transhipment;
(c) display or make available in any other manner, information of process or
movement or handling of imported or export goods and goods brought for
transhipment;
(d) demarcate separate areas for unloading of imported goods for their storage
with respect to the category of importers, nature of goods, place of
destination, mode of transportation or any other criterion as the Commissioner
of Customs may specify having regard to the custody and handling of imported
goods in a customs area;
(e) demarcate separate areas for loading of export goods for their storage with
respect to categories of exporters, nature of goods, examined and sealed
containers or other criterion as the Commissioner of Customs may specify having
regard to the custody and handling of export goods in a customs area;
(f) not permit goods to be removed from the customs area, or otherwise dealt
with, except under and in accordance with the permission in writing of the
proper officer;
(g) not permit any export cargo to enter the customs area without a shipping
bill or a bill of export having been filed with the proper officer;
(h) not permit any import cargo to enter the customs area or be unloaded therein
without the import report or the import manifest having been filed with the
proper officer;
(i) be responsible for the safety and security of imported and export goods
under its custody;
(j) be liable to pay duty on goods pilfered after entry thereof in the customs
area;
(k) be responsible for the secure transit of the goods from the said customs
area to any other customs area at the same or any other customs station in
accordance with the permission granted by the proper officer;
(l) subject to any other law for the time being in force, shall not charge any
rent or demurrage on the goods seized or detained or confiscated by the proper
officer;
(m) dispose off in the manner specified and within a time limit of ninety days,
the imported or export goods lying unclaimed, uncleared or abandoned:
Provided that the period of ninety days may be extended by the Commissioner of
Customs by such further period as may be allowed, on sufficient cause being
shown for delay in the disposal;
(n) not make any alteration in the entry or exit points or boundary wall without
the permission of the Commissioner of Customs;
(o) shall bear the cost of the customs officers posted by the Commissioner of
Customs on cost recovery basis and shall make payments at such rates and in the
manner specified by the Government of India in the Ministry of Finance unless
specifically exempted by an order of the said Ministry;
(p) shall observe the Central Government holidays as followed by the
jurisdictional Customs formations and in case of any variation in the working
days, intimate the same to Commissioner of Customs and the trade, at least seven
days in advance, and
(q) abide by all the provisions of the Act and the rules, regulations,
notifications and orders issued thereunder.
(2) The Customs Cargo Service provider 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.
(3) The Customs Cargo Service provider shall publish and display the schedule of
charges for the various services provided by him in relation to the imported
goods or export goods in the customs area.
7. Power to relax and regulate: (1) if the Commissioner of Customs is satisfied
that in relation to the custody and handling of imported or export goods in a
customs area, the Customs Cargo Service provider, for reasons beyond his
control, is unable to comply with any of the conditions of regulation 5, he may
for reasons to be recorded in writing, exempt such Customs Cargo Service
provider from any of the conditions of regulation 5.
(2) The Commissioner of Customs may regulate the entry of goods in a customs
area for efficient handling of such goods.
8. Commencement of operations: The Customs Cargo Service provider approved for
custody of imported or export goods and for handling of such goods shall not
commence any operations in a customs area for the first time unless the
Commissioner of Customs is satisfied that all the requirements of the Act have
been fulfilled and grants permission to commence the operations by an order in
writing.
9. Application for approval of Customs Cargo Service provider:
(1) An application to act as a Customs Cargo Service provider for custody of
imported or export goods and for handling of such goods in a customs area shall
be made in the form of a letter to the jurisdictional Commissioner of Customs
containing details as prescribed in ‘Form A’.
(2) The Commissioner of Customs shall dispose of the application within forty
five days of the receipt of the application.
10. Approval of appointment of a Customs Cargo Service provider and review
thereof:
(1) Where the Commissioner of Customs is satisfied that the applicant has
fulfilled the conditions prescribed in regulation 5, he may approve such an
applicant as a Customs Cargo Service provider, for a period of two years from
the date of issue of such approval.
Provided that a Customs Cargo Service provider already approved on or before the
date of coming into force of these regulations, shall be deemed to be approved
as a Customs Cargo Service provider under these regulations for a period of five
years from the date of compliance with the conditions of these regulations as
stipulated in regulation 4.
(2) The Commissioner of Customs shall review the approval granted under sub
regulation (1) before the expiry of the initial period of approval of two years
or five years, as the case may be, and may extend such approval to a further
period of five years at a time.
Provided that the Commissioner of Customs, for reasons to be recorded in
writing, may order for review of the approval granted to any Customs Cargo
Service provider before the completion of the period of approval.
11. Suspension or revocation of approval for appointment of a Customs Cargo
Service provider:
(1) The Commissioner of Customs may, subject to the provisions of these
regulations, suspend or revoke the approval granted to the Customs Cargo Service
provider subject to the observance of procedure prescribed under regulation 12
and also order for forfeiture of security, if any, for failure to comply with
any of the provisions of the Act and the rules, regulations, notifications and
orders made thereunder;
(2) Notwithstanding anything contained in sub-regulation (1), the Commissioner
of Customs may, in appropriate cases where immediate action is necessary,
suspend the approval granted to a Customs Cargo Service provider where an
enquiry against such Customs Cargo Service provider is pending or contemplated.
12. Procedure for suspension or revocation of approval and imposition of
penalty:-
(1) The Commissioner of Customs shall issue a notice in writing to the Customs
Cargo Service provider stating the grounds on which it is proposed to suspend or
revoke the approval and requiring the said Customs Cargo Service provider to
submit within such time as may be specified in the notice not being less than
thirty days, to the Assistant Commissioner or Deputy Commissioner of Customs
nominated by him, a written statement of defence and also to specify in the said
statement whether the Customs Cargo Service provider desires to be heard in
person by the said Assistant Commissioner or Deputy Commissioner of Customs.
(2) On receipt of the written statement from the Customs Cargo Service provider,
or where no such statement has been received within the time-limit specified in
the notice referred to in sub-regulation (1), the Assistant Commissioner or
Deputy Commissioner of Customs may inquire into such of the grounds as are not
admitted by the Customs Cargo Service provider.
(3) The Assistant Commissioner or Deputy Commissioner of Customs shall, in the
course of inquiry, consider such documentary evidence and take such oral
evidence as may be relevant or material to the inquiry in regard to the grounds
forming the basis of the proceedings and he may also put any question to any
person tendering evidence, for or against the Customs Cargo Service provider,
for the purpose of ascertaining the correct position.
(4) The Customs Cargo Service provider shall be entitled to cross-examine the
persons examined in support of the grounds forming the basis of the proceedings
and where the Assistant Commissioner of Customs or Deputy Commissioner of
Customs declines to examine any person on the grounds that his evidence is not
relevant or material, he shall record his reasons in writing for so doing.
(5) At the conclusion of the aforesaid inquiry, the Assistant Commissioner of
Customs or Deputy Commissioner of Customs shall prepare a report of the inquiry
recording his findings.
(6) The Commissioner of Customs shall furnish to the Customs Cargo Service
provider a copy of the report of the Assistant Commissioner or Deputy
Commissioner of Customs and shall require the Customs Cargo Service provider to
submit within the specified period not being less than thirty days any
representation that he may wish to make against the findings of the Assistant
Commissioner of Customs or Deputy Commissioner of Customs.
(7) The Commissioner shall, after considering the report of the inquiry, and the
representation thereon, if any, made by the Customs Cargo Service provider, pass
such orders as he deems fit.
(8) If any Customs Cargo Service provider contravenes any of the provisions of
these regulations, or abets such contravention or who fails to comply with any
provision of the regulation with which it was his duty to comply, then, he shall
be liable to a penalty which may extend to fifty thousand rupees.
(9) Any Customs Cargo Service provider aggrieved by any decision or order passed
under this regulation, may appeal under section 129A of the Act to the Customs
Central Excise and Service Tax Appellate Tribunal established under sub-section
1 of section 129 of the Act.
13. Renewal of approval for appointment of Customs Cargo Service provider: The
Commissioner of Customs may on application made by the Customs Cargo Service
provider before the expiry of the validity of the appointment under regulation
10, renew the approval for a further period of five years from the date of
expiration of the original approval granted under regulation 10 or of the last
renewal of such approval, as the case may be, if the performance of the approved
Customs Cargo Service provider is found to be satisfactory with reference to his
obligations under any of the provisions of the Act and the rules, regulations,
notifications and orders made thereunder.
[F.No.450/55/2008-Cus.IV]
(M.M. Parthian)
Director (Customs)
Form – A
[see regulation 9 (1)]
To
The Commissioner of Customs,
…………………………… (Address)
Subject: Application Form for approval / renewal of Customs cargo service
provider under the Handling of Cargo in Customs Areas Regulations, 2009 issued
under Section 141(2) of the Customs Act, 1962 (52 of 1962).
Sir / Madam,
I/we, the undersigned hereby submit the following details for approval as a
Customs cargo service provider under the Handling of Cargo in Customs Areas
Regulations, 2009:
1. Name and address of the Applicant in full (Block Letters) :-
(a) Name of the Applicant_________
(b) Full Address (Registered Office, in case of limited Companies & Head Office
for others) ____________
(c) Tel. No.________
(d) Fax No.________
(e) Permanent E-Mail Address _____________
(f) Name and address of each of the Directors/Partners/ Promoters, as the case
may be ___________
2. Nature of the applicant Firm or Company:
(a) Public Limited Company
(b) Private Limited Company
(c) Proprietorship
(d) Partnership
(e) Others (please specify)
Note:- Copy of certificate of incorporation along with Article of Association
and Memorandum in case of companies and partnership deed in case of partnership
firms may please be attached.
3. Extent of the proposed premises, giving details of area allocated for
unloading / loading, operational and stacking area, storage area, delivery,
Customs Automated System, Customs office premises, service centre, other user
agencies etc. (Map to be provided).
4. Whether the applicant holds a valid Letter of Approval given by the
Inter-Ministerial Committee of the Ministry of Commerce or any other Government
Body for setting up of Customs cargo service facility at the premises applied
for? If so, provide details thereof.
5. Projected capacity of the cargo / container proposed to be handled in the
proposed premises.
6. Details of infrastructure and equipment put in place for handling of cargo in
the proposed premises. (Details to be given separately for loading / unloading,
stacking, storage and delivery).
7. Details of security system installed for entry / exit of cargo and other
safety and security measures.
8. Details of electronic weigh bridge, other weighing, measuring devices.
9. Details of the computerized system put in place for location of cargo /
container, processing of documents.
10. Whether any exemption from payment of cost recovery charges for posting of
Customs officers is claimed. If so, furnish the details of the order issued in
this regard by the Ministry of Finance.
11. Whether the applicant is already functioning as Customs cargo service
provider. If so, details of the premises along with the respective jurisdiction
of the Commissioner of Customs.
12. Whether the applicant had earlier applied for approval to act as Customs
cargo service provider and whether such application was approved / rejected:-
(i) within the jurisdiction of the Commissioner of Customs to whom application
has been made;
(ii) outside the jurisdiction of Commissioner of Customs referred at (i) above.
13. Whether the applicant has been penalized, convicted or prosecuted under any
of the provisions of the Customs Act, 1962 (52 of 1962) or any other law for the
time being in force. (If so, the details thereof).
14. If the application is for renewal, details of original approval granted
under regulation 9, along with the date of its expiration or the date of last
renewal of such approval.
15. List of documents furnished along with this application.
16. Declaration:
I am / we are authorized to make the following declarations:
I / We declare that all particulars given herein are true and correct.
I/We hereby affirm that I/we have read the Handling of Cargo in Customs Areas
Regulations, 2009 and agree to abide by them.
I/We hereby undertake to intimate any change in respect of the information
provided in the aforesaid application within a period of 30 days.
Date:
Place:
Signature and name
of the applicant(s)
or authorised signatory
EXPLANATORY MEMORANDUM
Handling of Cargo in Customs Area Regulations, 2009 provide for a comprehensive
mechanism for handling of goods in a customs area and set out the terms and
conditions for all facilities where customs cargo is handled. It also provides
for the conditions and responsibilities of the persons handling import or export
cargo in Inland Container Depot (ICD) or Container Freight Station (CFS) or
seaport or airport or Land Customs Stations (LCS) and provide adequate control
over the cargo handling entities to ensure that the adequate infrastructure is
set up at such facilities for efficient handling of import or export goods. This
also fulfills the recommendation made by the Public Accounts Committee
(2005-2006) for the Government to formulate appropriate provisions in this
regard.