Legal Issues for Abandoned Shipments & Legal Remedies for Abandoned Shipments: Best International Trade Law Advice in Delhi NCR
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“The most problematic part for a Freight Forwarder or for a Customs House Agent CHA is when the shipment is abandoned by the importer. The entire amount with respect to demurrages, detention and freight including the customs duty and other allied expenses are to be borne by someone. Generally the entire problem falls on the head of the Freight Forwarder and the shipping line starts demanding the clearance of the outstanding dues.
This emanates the start of a legal dispute or a legal tussle and thus involves the expert legal advice of import export attorney or a import export lawyer or a customs lawyer. The entire issue of clearance of outstanding dues needs to be resolved at the earliest as they keep on mounting on daily basis.”
Introduction
Abandoned cargo or shipment on ports translates to high logistical costs and port congestion. In order to understand the legal remedies to deal with abandoned shipment, it is imperative to understand what is termed as Abandoned Shipment. As per Section 48 of the Customs Act 1962, the reasonable period until which the Authorities do not take an action to deal with goods that have not been cleared for home consumption or warehoused or transhipped from the date of unloading is thirty days.
Legal Remedies for Disposal: Best Legal Advice from Import Export Law Firm
A conjoint reading of Sections 48 and 150 of Customs Act mentions that after a period of thirty days, these goods might be sold with the permission of the relevant Officer and prior notice to the importer. There is an exception to the shipment of perishables, animals and hazardous goods as they can be sold at any time, even before thirty days have passed. The shipment and arms and ammunition can be disposed off at any point with the prior permission of Central Government. As per Section 150 of the Customs Act, goods except confiscated goods can also be sold via auction or tender. The proceeds shall be applied to meet with the expenses of the sale, freight charges, payment of duty, payment to the person who had the custody of the abandoned shipment and lastly payment to the Central Government with respect to any amount due from the owner. In case there is a balance after these payments are made and six months have passed and no payment has been made to the owner, then such payment must be made to the Central Government.
Legal compliance under Major Port Act: Best Legal Advice from Import Export Attorney
As per Section 62 of Major Ports Trust Act, if a shipment has been in the custody of the Board for a period of one month and has not been removed by the owner, then a notice can be served upon the owner. In case the address of the owner is not known, then a notice can be published in Port Gazette or Official Gazette. Further, the notice must be published in a principal daily newspaper as well. However, if all the charges and rates that are payable under any applicable law have been paid, then the notice cannot be served till two months have passed to sell the goods via auction, tender or any private arrangement.
Legal Remedy as per Circulars: Best Customs Lawyer Legal Advice
As per Circular no. 50/2005 released by Central Board of Excise & Customs (CBEC), the liberalized procedure of disposal under Section 48 of Customs Act would apply only to applicable to the unclaimed cargo that has landed on year prior to the date on which No Objection list is made by Customs. It would be the duty of the Custodian to furnish the details of the items that have to be disposed. The list must contain important documents like Bill of Lading or Airway Bill, name of the consignee/consignor and even the description of the goods. After a notice being served, if the goods are not removed in fifteen days, the custodian can sell the goods. Further, the onus is upon the Customs to make a list of items that have to be retained for any kind of investigation, court procedure or adjudication. The date of sale of auction or e-auction must be publicized departmental website and daily newspaper. The price of the goods determined by the valuers would be considered as Reserve Price. A successful bidder in the auction, a consolidated Bill of Entry must be filed with the Customs in a prescribed format which is made clear in Section 46 of the Customs Act, 1962, read with Un-cleared Goods (Bill of Entry) Regulations, 1972 (Regulation 2 & 3).
The case of Board of Trustees for the port of Kolkata v. German Express Shipping further gives clarity on the application of Section 48 of Customs Act and Section 61 and 62 of the Major Ports Trust Act. It must be noted that Indian Maritime Law is still an evolving field and various regulations/deregulation as the case may be are needed for efficient trade and logistics.
Conclusion
The manner in which this shipment can be disposed of depends on the nature of the shipment. The manner in which abandoned arms and ammunition is disposed is different from the procedure of disposing perishables or shipment of less value.
Authored By: Adv. Anant Sharma & Afsana Khan
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