Provisions Relating to Post Clearance Audit, Search and Arrest
34. Power to make post clearance audit :
(1) In order to ascertain whether the goods cleared by the Customs Office are the same as declared by an importer or confirm to the declaration made by the importer or not, the Director General or Customs Officer may audit, inter alia, the importer’s books relating to the purchase, import or sale of goods, records, books of accounts or similar other documents, bank records, computer system and all records related to his or her business.
(2) If, upon audit made pursuant to Sub-section (1), it is found that the goods imported by the importer are different than those declared by the importer or are inconsistent with the declaration made by the importer or the transaction value or the quantity of the goods has been declared less and by virtue thereof lesser duty has been recovered, the Customs Officer shall immediately recover from the importer the duty chargeable on such less value or quantity at the time of import and take action against such importer for the declaration of less transaction value or quantity,
pursuant to this Act.
(3) If, upon audit made pursuant to Sub-section (1), it appears that less duty has been recovered by the reason of difference in sub-heading of commodity classification, the concerned Customs Office shall immediately recover such shortfall amount of duty from the importer.
(4) The audit referred to in this Section may be made until four years after the date of clearance of goods.
35. Goods and persons to be produced before Customs Officer : If any employee of the Customs Office or authority deputed by the Director General finds that any person has exported or imported any goods through any route
other than the route prescribed pursuant to Section 3 or smuggled the goods or is going to make such export or import, such employee or authority shall capture such goods and the person and motor vehicle carrying such goods and produce them before the Customs Officer. The Customs Officer shall institute action against and in relation to the goods, person and motor vehicle so produced on the offense of export smuggling or import smuggling.
36. To make search on suspicion or ground : If there is a reasonable ground or reason to believe that or there is a suspicion that any person has brought any goods subject to customs duty without paying such duty or smuggled and
imported such goods or is going to smuggle and export such goods or has exported or imported or is going to export or import any restricted goods, any employee of the Customs Office may, at any time, stop such person or any motor vehicle and search such person or motor vehicle.
37. Person to be searched may request to produce before Customs Officer:
(1) Where any employee other than the Customs Officer or the employee designated for that purpose intends to make search ursuant to Section 36, the concerned person may request to produce him/her before the Customs Officer prior to making such search.
(2) Where request for presence before the Customs Officer pursuant to Sub-section (1), the employee of the concerned Customs Office
shall produce him or her before the Customs Officer promptly.
(3) Where the Customs Officer has a reasonable ground to search the person produced pursuant to Sub-section (2), custom officer may search such person or cause any of his or her subordinate employees to make such search, and where the Customs Officer does not see such ground, he or she shall release such person immediately.
38. Import smuggling or export smuggling to be deemed : Where, upon making a search pursuant to Section 36 or 39, any goods which are subject to the customs duty or which have to be exported or imported by making declaration pursuant to this Act are seized, the Customs Officer shall give order to the person searched to submit the declaration form of such goods and evidence of payment of duty if such goods are those which are subject to customs duty. In the event of failure to submit such declaration or evidence, such person shall be deemed to have committed export smuggling or import smuggling.
39. To search house, building, godown or place :
(1) Where there is a reasonable ground to believe or doubt that any person has hidden or kept any goods brought into by evading the customs duty or by way of import smuggling in any house, building, go down or other place, the Director General or the concerned Customs Officer may make decision, accompanied by the reason, and search such house, building, go down or place or give order to make such search.
(2) The employee who gets order pursuant to Sub-section (1) shall, prior to searching such house, building, godown or place, give a notice, accompanied by the reason for making such search, to the owner of that house, building, godown or place or the person who are residing in such house, building, godown or place for the time being. If such owner or person refuses to acknowledge such notice, a copy of the notice shall be affixed to such house, building, godown or place in a manner conspicuous to all; and after the notice is so affixed, the concerned owner or person shall be deemed to have duly received the notice of search.
(3) After the notice has been given to the concerned owner or person pursuant to Sub-section (2), such owner or person shall allow the employee deputed to make search of such house, building, godown or place.
(4) If any person makes any obstruction or objection to making search pursuant to Sub-sections (2) and (3), the employee deputed to make search shall give a notice and opportunity to the persons who are staying in the house, building, godown or place to be searched to leave such house, building, godown or place. If such persons do not leave in spite of such notice and opportunity, such employee may search the house, building, godown or place required to be searched at any time between sunrise and sunset by opening or breaking the external or internal door, window or locker thereof also by using necessary force with the assistance of the security body.
(5) In making search pursuant to this Section, the employee deputed to make search shall, to the extent of availability, make search in witness of the ward chairperson or ward member of the concerned Village
Development Committee or Municipality or an employee of any office or house owner or his or her agent or any person having attained the age of sixteen years. If no such person is found to witness the search or such person
refuses to witness the same, the person making search shall execute a memo of remarks to that effect and sign it.
(6) If, on making search pursuant to this Section, any goods brought by evading the customs or by way of import smuggling are seized, the employee making such search shall take such goods in his or her
custody, prepare an inventory indicating the details of such goods and deliver a copy of the inventory to the concerned person of the house, building, godown or place searched immediately. If the concerned person refuses to
receive such copy or if it is not possible to deliver it to such person, that copy shall be posted by executing a recognizance deed in witness of two witnesses. If the copy of inventory is so posted, it shall be deemed to have
been delivered to the concerned person.
(7) Such employee shall produce the goods and inventory as referred to in Sub-section (6) to the concerned Customs Officer; and upon such production, the Customs Officer shall take action under this Act.
40. Power to arrest : (1) Where, upon making a search pursuant to Section 36 or 39, any person is found to have committed any offence under this Act, the employee making such search may arrest, or cause to be arrested, such person.
(2) If there is a reasonable ground or reason to believe or doubt that any person is going to commit or has committed export smuggling or import smuggling or any act contrary to this Act, the concerned Customs Officer or any other employee of the Customs Office authorized by him or her may arrest, or cause to be arrested, such person in any motor vehicle or place.
(3) Any person arrested pursuant to Sub-section (1) or (2) shall be produced before the Customs Officer within twenty four hours excluding the time required for journey.
(4) The Customs Officer shall immediately take legal action against the person produced pursuant to Sub-section (3). Such person shall not be held in detention for more than twenty four hours without taking
41. Power to release on bail or detain :
(1) If any person produced pursuant to Sub-section (3) of Section 40 is found to be an offender based on the evidence available for the time being, the Customs Officer may release such person on bail which includes the amount for imprisonment and fine that can be imposed on such person pursuant to this Act and the amount equal to the amount in controversy where such amount is also to be recovered on the condition that such person shall make presence at the prescribed place and time.
(2) Any person who fails to furnish the bail demanded pursuant to Sub-section (1) shall be held in detention until such bail is furnished to the Customs Office.
(3) Notwithstanding anything contained in Sub-section (1), if there is a ground that such person may destroy evidence if he or she is released on bail, the Customs Officer may forward action by holding such person in detention, by assigning the reason for the same.
(4) Notwithstanding anything contained in Sub-section (2) or
(3), such person shall not be held in detention for a term that exceeds the maximum term of punishment that can be imposed on such person pursuant to this Act.
(5) While taking bail for punishment pursuant to Sub-section (1), it shall be taken by fifty rupees for one day of imprisonment.
42. Subsequent arrest of absconding person : If any person who commits any act that is considered an offence under this Act cannot be arrested at the time of commission of the offence or such person, despite being arrested, absconds, the Customs Officer or the employee authorized by him or her or the employee deputed for that purpose may arrest such person at any time. Action shall be taken against such person as if he or she were arrested at the time of commission of the offense.
43. Power to use maximum force:
(1) If any person attempts to export or import any goods through any route other than that prescribed pursuant to Section 3, the Customs Officer or the employee of the Customs Office authorized by him or her or the competent government employee may stop such person.
(2) If, while trying to stop such person pursuant to Sub-section (1), such person manhandles or uses force, the Customs Officer or such employee shall request and convince such person not to do so.
(3) If, despite the request and convincing pursuant to Sub-section (2), that person does manhandling or uses force, the Customs Officer or such employee may arrest him or her.
(4) If, while trying to make arrest pursuant to Sub-section (3), that person uses force or tries to escape or go away and cannot be arrested for the time being, the employee deputed for security on the spot may, by order
of such Customs Officer or competent authority for his or her security and for the observance of duties, first make an aerial firing and then open fire in such a manner as to cause a minimum of loss provided the situation cannot be
controlled despite such firing or the person using force has also a weapon.
(5) An employee of the Customs Office may order any person who makes movement by a motor vehicle through the route prescribed under Section 3 to stop, or cause to be stopped, such motor vehicle, as well. If such person
does not carry out such order but manhandles or uses force and attempts to take away or takes away such motor vehicle without getting it examined, the employee deputed for the security of customs may, by order of the Customs
Officer, open fire at the tyre of such motor vehicle in such a manner as to cause a minimum of loss.
(6) If it is necessary to open fire pursuant to Sub-section (4) and (5), the Customs Officer or the authorised person shall give by faster means the information of that matter to the Director General or the Concerned Chief District Officer