No conveyance to leave without written order [Section 42]:
The person-in-charge of the conveyance which has brought any imported goods or has loaded any export goods at a customs station shall not cause or permit the conveyance to depart from that customs station until a written order to that effect has been given by the proper officer.
Subsection (2) of section 42 stipulates that no such order shall be given until
(a) The person-in-charge of a conveyance has answered the questions put to him under Section 38;
(b) The provisions of section 41 have been complied with;
(c) The shipping bills or bills of export, the bills of transshipment, if any and such other documents, as the proper officer may require, have been delivered to him;
(d) All duties leviable on any stores consumed in such conveyance and all charges and penalties due in respect of such conveyance or from the person-in-charge thereof have been paid or the payment secured by such guarantee or deposit of such amount as the proper officer may direct;
(e) The person-in-charge of the conveyance has satisfied the proper officer that no penalty is leviable on him under section 116 or the payment of any penalty that may be levied upon him under that section has been secured by such guarantee or deposit of such amount as the proper officer may direct;
(f) In any case where any export goods have been loaded without payment of export duty or in contravention of any provision of this Act or any other law for the time being in force in relation to export of goods-
(i) Such goods have been unloaded, or
(ii) Where the Assistant Commissioner is satisfied that it is not practicable to unload such goods, the person-in-charge of the conveyance has given an undertaking, secured by such guarantee or deposit of such amount as the proper officer may direct, for bringing back the goods to India.
The obligations on the part of the conveyance and/or the person-in-charge have been numerated in sub-section (2). They are explained one by one below: –
(a) Apart from filing the IGM/Import report the person-in-charge of the vessel has to answer the questions put to him under section 38. Section 38 is invoked normally, when the particulars furnished, are inadequate and when the customs department feel that the person-in charge is deliberately suppressing some vital facts. If the same are not furnished in spite of use of section 38, obviously there is something wrong and the vessel cannot be permitted to depart without furnishing such information.
(b) Obvious fulfillment of provisions of section 41 is a pre-requisite for any conveyance leaving an Indian port. Either the Export General Manifest or Export Report should have been filed or the necessary undertaking given by the ship’s agent and with necessary security deposit.
(c) The shipping bills and other shipping documents in respect of the exported goods have to be furnished to the proper officer of customs department. The original shipping bill/bill of export forms the voucher record of the duty and other amounts paid and duplicate the proof of quantity actually shipped. These are basic records relating to shipment.
(d) Technically speaking, all stores consumed during the stay of the conveyance at a particular customs station amount to import and home consumption. Thus customs duty is leviable on such stores. It is customary to have an inventory of ship stores at the time of arrival and again at the time of departure of the conveyance. Customs duty is leviable on the difference.
(e) Similarly, a liability is cast on the person-in-charge of the conveyance, to account for all goods manifested for discharge at a particular station. If the goods manifested for discharge are not unloaded, the person-in-charge has to explain under section116 of the Customs Act, as to what happened to such goods. He can show that
(i) The goods were really unloaded at the particular customs station;
(ii) The goods were not unloaded but were over carried and brought back to that particular station later;
(iii) The goods were not unloaded, but were over carried and delivered in some other place.
If he does not give a satisfactory explanation with supporting documents, a presumption arises that such goods are surreptitiously landed in India and smuggled into the country, in which case he is liable to penalty equal to twice the amount that would be leviable on such goods as duty and other charges had such goods been properly landed in India.
As seen from above, the liability to penalty for short landing of goods i s on the person-incharge of the conveyance. The proceedings usually take a long time and if the notice is served on the pilot, the aircraft will have to be detained for a long time. Hence it is held that it is sufficient if the notice is served on the owner of the conveyance i.e. the airlines. [Singapore Airlines v. UOI, 2000 (121) ELT 289 (Del)]