Offences Under the Customs Ordinance - Part 1

OFFENCES UNDER THE CUSTOMS ORDINANCE - PART 1

The Customs Ordinance of Sri Lanka is the general law that regulates imports and exports to and out of the country. Dating back to 1869, to the British Colonial rule, this law was amended time to time. However, the law is still catering to the demands of globalised trade and finance and Sri Lanka Customs, which comes under the Ministry of Finance, also corporates with the World Customs Organization and follows its standards.

The Customs Law is a revenue law, while it also is a penal law. The Customs law in one hand facilitates global trade and on the other hand stands as the watch dog to prevent evasion of Customs duty, in order to ensure that State revenue is earned. 

The goods which are the subject matter related to the Customs offences are provided to be forfeited under series of Sections of the Ordinance and the persons concerned are often subjected to pay heavy penalties. The penalty could reach upto three times of the "value" of the goods. The fines, penalties and/or forfeitures are imposed after a Customs Inquiry conducted in that regard, except when forfeiture is effected by operation of law, where importers or exporters or other suspects have to show cause as to why such fines, penalties and/or forfeiture should not be imposed. 

The arrangement of Sections of the Customs Ordinance under their topics is as follows:

Part I -MANAGEMENT 

Section 1 to Section 9C

Part II - LEVYING OF CUSTOMS DUTIES 

Section 10 to Section 22A

Part III - PORT DUES  

Section 23 to Section 26

Part IV - REGULATIONS INWARDS

Section 27 to Section 52A

Part V - ENTRY OF GOODS RE-IMPORTED 

Sections 53 and 54

Part VI - REMOVAL OF GOODS BY SEA OR INLAND CARRIAGE

Section 55

Part VII - REGULATIONS OUTWARDS

Sections 56 to Section 64

Part VIII - TRADE BY VESSELS OF LESS THAN 15 TONS BURTHEN

Section 65

PART IX - REGULATIONS COASTWISE

Sections 66 and 67

PART X - REGULATION OF MOVEMENTS, & C., OF SHIPS UNDER 250 TONS TONNAGE

Section 68 

PART XI -  WAREHOUSING OF GOODS

Section 69 to Section 100A

PART XII - GENERAL REGULATIONS

Section 101 to Section 124 

PART XIII -  SMUGGLING, SEIZURES, AND PROSECUTIONS GENERALLY

Section 125 to Section 166B

Part XIV - INTERPRETATION OF TERMS USED IN THIS ORDINANCE

Section 167

Accordingly, Part IV provides for regulating the import of goods and Part VII provides for regulation of export of goods. Most of the offences in respect of which investigations are conducted and considered in Customs Inquiries fall under the sections in these two parts. Several other offences coming under Part XII and XIII may also be in issue during such inquiries. 

In a number of Sections that provide for the offences under the Customs Ordinance, the sanctions imposed could be forfeitures, penalties or fines.

Forfeitures are imposed under following Sections- 

4 - 

19(6) -

19A(3) -

21(1) -

27 - 

29 -

30 - goods concealed forfeited;

31 - 

33 -

34 -

35 -

37 -

38 -

43 -

44 -
47 -

50 - 

50A(1) -

52 - 

55 -

56 -

57 -

58(b) -

59 -

62 -

63 -

64 -

65 -

67 -

68(5) - 

72 -

75 - 

76 -

77 -

80 -

100A(2) -

103(2) -

107,

107A(1) - 

107A(2) -

118 -

119 -

121 -

122 -

125 -

129 -

130 - 

131 -

132 -

133 -

135 -

136 -

137 -

141 -

142 -

146 -

153 -

Penalties are imposed under following Sections-

4 - officers taking fee or reward;

22A(6) - falsely claiming rebate;

27 - master of ship shall forfeit;

29 - master to deliver manifest, failure offence;

32 - penalty on master not having delivered goods, or cargo doesn't correspond with papers;

33 - goods unshipped contrary to regulations. Penalty on Persons concerned;

38 - Owners of boat to provide statement of quantities (manifest?). Failure incurs penalt;

42 - Penalty for neglect to handle with care or refusal;

43 - 

47- importer to deliver bill of entry together with other documents;

48- misdescription or undervaluation in the Cusdec;

52 - forfeiture and penalty on the  person on false declaration of value;

52A - penalty for failing to keep, destroying or altering records;

57 - Exporter to enter bill of entry;

58(b) - exporting prior to the presentation of Cusdec;

68(6) - regulation of movements of ships below 250 tons;

74 - Goods warehoused to be marked and numbered;

95,96- warehoused good not to be delivered without Warrant;

103B(2)- regulation of the movement of containers;

110(2) - 

104 - transport of goods overland under band;

116 - when boat to be removed;

117- 

128A(6)

129 - 

130 - 

132 - Goods if removed prior to examination; 

133 -  

134 - how value calculated in case of penalty;

141 - penalty on officers for misconduct with respect of search;

142 - penalty on persons on board who flsely deny having foreign goods about them;

144 - 

145- 

146 - persons liable to forfeiture or penalty is guilty of an offence;

149 - jointly and severely liable;

Fines are imposed under following Sections: 

4 -

8(2) -

9(2) -

100 -

126(4) -

128(4) -

Persons could be Guilty of an offence under following Sections:

8A -

44 -

78 -

101 -

104(2) -

126(4) -

128(2) - 

128(3) - 

128A(4), (5), (6);

143(2) -

146 - 

Principle Offences explained: 

Primarily, the Offences under aforesaid parts of the Ordinance may be categorized into following types of offences relating to

1. Declaration of goods
2. Valuation of goods
3. Classification of goods
4. Conditional import or export of goods
5. Prohibited or restricted goods

Offences regarding valuation and classification of goods fall under the broader category of offences relating to declaration of goods.

The importation of goods under duty concessions granted by way of an Agreement with the Board of Investment (BOI), under concessions provided in terms of ISAFTA, TIEP I, TIEP IV schemes  etc. are conditional imports. 

Several sections often cited during Customs Inquiries are considered in detail hereinafter:

Offences relating to prohibited or restricted goods:

Not all goods are permitted to be imported and there are some goods that could be imported only after fulfilling certain license requirement. This is laid down in Section 43, which provides as follows: 

"If any goods enumerated in the table of prohibitions and restrictions in Schedule B shall be imported or brought into Sri Lanka contrary to the prohibitions and restrictions contained in such table in respect thereof, such goods shall be forfeited, and shall be destroyed or disposed of as the Principal Collector of Customs may direct:

Provided that if any dangerous substance be imported or brought into Sri Lanka without the licence of the Minister, or contrary to any of the regulations which may be made from time to time by the Minister, for the safe landing and deposit of such substance, the person importing or bringing the same to Sri Lanka, and any person concerned in such importation or bringing of the same, shall, in addition to the forfeiture above provided, be guilty of an offence and be liable to a fine not exceeding two thousand rupees."

In the case of Adamjee Lukmanjee & Sons Lid. v. The Controller of Imports [71NLR153],  T.S.Fernando J decided that " A contravention of section 43 of the Customs Ordinance carries with it penalties of great severity, and before those penalties can be exacted, the importer is right in his contention that the licence shall speak without equivocation on the issue." 

In the same manner, in respect of exports, it is provided in Section 44, which states: 

"If any person exports or attempts to export or take out of Sri Lanka any goods enumerated in the table of prohibitions and restrictions in Schedule B, in contravention of the prohibitions and restrictions contained in such table in respect thereof, such goods shall be forfeited, and shall be destroyed or disposed of as the Principal Collector of Customs may direct."

Another provision is applicable here, which is Section 12(1) and provides that the goods enumerated in the  Schedule B shall not be imported or brought into or exported or taken out of Sri Lanka save in accordance with the conditions expressed in the said Schedule.

These provisions enclose a type of strict liability and, compared to some other significant sections, the mental element (mense rea) of the persons concerened in such importation of restricted or prohibited goods seems to be hardly material. According to the proviso to Section 43, the any person concerned in such importation or bringing of the same, shall, in addition to the forfeiture above provided, be guilty of an offence and be liable to a fine not exceeding two thousand rupees.

There is no penalty specified upon a person in respect of exportation of goods, under Section 44.

The forfeiture effected upon these goods, the importation or exportation of which is prohibited or restricted, is automatic, by operation of law. Both Sections 43 and 44 provide that "such goods shall be forfeited", and the phrase "liable to be forfeited" has not been used, as is the case with in many other Sections. Thus, there is no order for forfeiture to be made by an inquiring officer and once the goods are seized the same shall stand forfeited. 

This legal position is affirmed in the case of Ishak v. Laxman Perera, Director General of Customs and others [(2003)3 SLR18 CA].

Section 12 only provides for the restrictions on importation or exportation of certain goods and does not provide for any penalty or consequences in contravention of such restrictions. It is Sections 43 and 44 that provide for the consequences of violation of Section 12(1),  which is forfeiture of the goods necessarily followed by destruction or disposal of the goods forfeited. The words used are "shall be forfeited, and shall be destroyed…" It is clear therefore that for these actions to be taken upon the forfeiture being effected upon the goods by operation of law, the goods should have been imported or exported and also the goods should have been available in the custody of the Customs. In the the event the subject goods are not available in the custody of the Customs upon seizure of the same, there are no goods to be forfeited by operation of law and there are no goods to be destroyed or desposed of.  In addition, since these Sections do not provide for forfeiture of either “treble the value of the goods” or "hundred thousand rupees" as provided in many other Sections, where the discretion of the inquiring officer is involved, here, under Sections 43 and 44, the value of the goods cannot be considered for any forfeiture by operation of law.  

SWJ

To be continued….