Customs Act, 1962 Section 42 — No conveyance to leave without written order
Customs Act, 1962 · No conveyance to leave without written order
Plain-English Explanation
Overview
Section 42 of the Customs Act, 1962, mandates that a conveyance (ship, aircraft, vehicle) transporting imported or exported goods cannot leave a customs station without a written order from the proper officer. This ensures compliance with customs regulations, payment of duties, and prevents the illegal export of goods.
Who Does This Apply To?
This section primarily applies to the person-in-charge of a conveyance (e.g., captain of a ship, pilot of an aircraft, driver of a vehicle) that has either brought imported goods into India or loaded export goods for shipment out of India at a customs station. It also indirectly impacts importers, exporters, and customs officers responsible for overseeing the movement of goods.
How It Works
Here's a breakdown of the process:
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No Departure Without Order: The person-in-charge of a conveyance must not allow the conveyance to leave the customs station without a written order issued by the proper officer. This acts as the initial gatekeeping mechanism.
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Officer's Checks Before Issuing Order: Before the proper officer issues the departure order, several conditions must be met:
- Answers to Questions: The person-in-charge must answer all questions posed under Section 38 (relating to examination of persons). This ensures transparency and addresses any initial concerns.
- Compliance with Manifest Requirements: The provisions of Section 41 (relating to the delivery of import manifest or import report) must be fulfilled. This ensures accurate documentation of imported goods.
- Document Submission: All required documents, including shipping bills or bills of export, bills of transhipment (if applicable), and any other documents requested by the proper officer, must be submitted.
- Duty and Charge Payment: All duties applicable on stores consumed within the conveyance (e.g., fuel, provisions), and all charges and penalties due from the conveyance or the person-in-charge, must be paid. Alternatively, payment must be secured through a guarantee or deposit.
- Penalty Clearance: The person-in-charge must satisfy the proper officer that no penalty is leviable under Section 116 (related to offenses involving baggage), or if a penalty is levied, its payment must be secured through a guarantee or deposit.
- Export Compliance: If export goods were loaded without paying export duty or in violation of any customs law:
- The goods must be unloaded; OR
- If unloading is impractical, the person-in-charge must provide an undertaking, secured by a guarantee or deposit, to bring the goods back to India. This requires satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs.
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Written Order Issued: Once all conditions are met, the proper officer issues the written order, permitting the conveyance to depart.
Important Conditions & Exceptions
- Condition 1: The section emphasizes strict adherence to procedures. Even a minor lapse in documentation or payment can delay departure.
- Condition 2: The requirement for a guarantee or deposit provides a mechanism to secure future payments or compliance.
- Exception: There are no explicit exceptions detailed in the section itself. However, customs authorities might grant exemptions on a case-by-case basis in exceptional circumstances, subject to appropriate safeguards.
Practical Example
A cargo ship "MV Bharat" arrives at the Mumbai port with imported electronics. The captain, Mr. Sharma, is the person-in-charge. Before departing, Mr. Sharma must:
- Answer questions posed by the customs officer under Section 38.
- Ensure compliance with Section 41 regarding the import manifest.
- Submit the required shipping bills and other documents.
- Pay ₹50,000 as duty for fuel consumed during the voyage.
- Prove that no penalty is leviable under Section 116.
If, during inspection, it's discovered that export goods worth ₹1,00,000 were loaded onto MV Bharat without proper documentation, Mr. Sharma must either unload the goods or provide a bank guarantee for an equivalent amount to ensure the goods are brought back to India if required. Once these conditions are met, the proper officer will issue the written order allowing MV Bharat to depart.
Key Amendments
No major amendments since enactment.
No case laws found for this provision yet.
Browse all case laws →Frequently Asked Questions
What does Section 42 of the Customs Act, 1962, govern?
Section 42 of the Customs Act, 1962, prohibits any conveyance (ship, aircraft, vehicle) that has brought imported goods or loaded export goods at a customs station from departing without a written order from the proper officer. This section ensures compliance with customs regulations before a conveyance leaves the station.
Who is considered the 'person-in-charge' of a conveyance under Section 42 and what are their obligations?
The 'person-in-charge' refers to the individual responsible for the conveyance, such as the captain of a ship or the pilot of an aircraft. They are obligated to ensure that the conveyance does not depart without written permission and to comply with all requirements outlined in Section 42(2), including answering questions, providing documents, and paying duties or penalties.
What conditions must be met before a conveyance is allowed to depart under Section 42(2)?
Before departure is authorized, the person-in-charge must answer questions under Section 38, comply with Section 41 (delivery of import manifest), deliver necessary shipping bills and other documents, pay any applicable duties, charges, and penalties, and ensure no penalties are leviable under Section 116. Additionally, if export goods were loaded improperly, they must be unloaded, or a guarantee/deposit must be provided to ensure their return.
What happens if export goods are loaded without paying export duty? What are the options under Section 42(2)(f)?
If export goods are loaded without payment of export duty or in contravention of any law, Section 42(2)(f) mandates that either the goods must be unloaded, or if unloading is impractical, the person-in-charge must provide a guarantee or deposit to ensure the goods are brought back to India. The decision on whether unloading is impractical lies with the Assistant/Deputy Commissioner of Customs.
What is the practical implication of Section 42 for shipping companies and airlines?
Section 42 necessitates strict adherence to customs procedures by shipping companies and airlines. They must ensure all documentation is accurate and complete, duties and penalties are paid promptly, and all requirements are met to avoid delays in departure. Non-compliance can result in significant delays and financial repercussions.
What powers does the 'proper officer' have under Section 42?
The 'proper officer' has the authority to withhold departure permission until all conditions specified in Section 42(2) are satisfied. This includes requesting documents, determining if unloading is necessary, directing the amount of guarantee or deposit, and ensuring all duties and penalties are paid or secured. They also have the power to put questions to the person-in-charge under S. 38.
Is there a specific time limit for the 'proper officer' to issue the written order for departure under Section 42 after all conditions are met?
While Section 42 doesn't specify an exact time limit, the 'proper officer' is expected to issue the written order for departure promptly once all conditions under Section 42(2) are fulfilled. Any undue delay could be challenged based on principles of natural justice and administrative efficiency, however, the term 'promptly' is subject to interpretation based on the circumstances.
Key Conditions & Requirements
| Condition | Details |
|---|---|
| Written Order Required for Departure | A conveyance (ship, aircraft, vehicle) that has brought imported goods or loaded export goods at a customs station cannot depart without a written order from the proper officer. |
| Answering Questions under Section 38 | The person-in-charge of the conveyance must answer questions put to them by the proper officer, as per Section 38. |
| Compliance with Section 41 | The provisions outlined in Section 41 of the Customs Act, 1962, must be complied with. |
| Document Submission | Shipping bills, bills of export, bills of transhipment (if applicable), and other required documents must be delivered to the proper officer. |
| Payment of Dues | All duties on consumed stores, charges, and penalties due from the conveyance or person-in-charge must be paid or secured. |
| Penalty Assurance under Section 116 | The person-in-charge must satisfy the proper officer regarding potential penalties under Section 116 or secure payment thereof. |
| Unloading Illegally Loaded Goods | If export goods are loaded without export duty payment or in contravention of the law, they must be unloaded. |
| Undertaking for Goods' Return (Alternatives to Unloading) | If unloading illegal export goods is impractical, an undertaking with a guarantee or deposit is required for bringing the goods back to India. |
Amendment History
Substituted by s. 100 of the Finance Act, 1999 (27 of 1999). (w.e.f. 11-5-1999)