FEBRUARY 08, 2021

By S Murugappan, Advocate

TECHNOLOGY is fast catching up with the Customs Act. In the Finance Bill moved by the Finance Minister this year, there is a proposal to include a provision in the Customs Act, by adding Section 154C, for establishment of a common portal to be called 'Common Customs Electronic Portal'. As per this proposal, CBIC may notify a common portal for facilitating registration, filing of bills of entry, shipping bills, other documents and forms prescribed under the Customs Act and the related rules or regulations, payment of customs duty and for 'such other' purposes.

The reason for establishment of such a portal is not made very clear by CBIC so far. Already, at present, the Indian Customs Electronic Gateway (ICEGATE) is functioning as a national portal of Indian Customs providing all the filing services, including, filing of bills of entry, shipping bills and takes care of various customs processes such as e-payment of customs duty, refund of IGST etc. We have SWIFT and e-SANCHIT facilities in place as single window interface and for uploading of documents, respectively. More importantly, the present electronic portal is working reasonably well.

In this background, what is this 'Common Customs Electronic Portal' about and what is it, it is expected to achieve? Is it going to be like the GST network, all-encompassing? Installation and operation of the GST network without a sufficient trial run brought numerous glitches in its wake and resulted in a plethora of litigation across the country which are reverberating even today.

To a certain extent the significance and utility of the proposed portal can be garnered from Clauses 89 and 90 of the Finance Bill. Clause 89 proposes to amend Section 149 of the Customs Act to enable amendment of bills of entry or shipping bills by the importers or the exporters by themselves in the common portal. Of course, what amendments can be made in this manner will be notified by CBIC.

While the above is like a 'carrot', the amendment proposed through clause 90 appears to be the 'stick'.

It proposes to amend section 153 of Customs Act relating to service of orders, notices etc. and to include 'making such orders, notices etc. available in the common portal' as one mode of service.

At present the following modes of services are recognised under section 153 - (1) direct delivery to the addressee in person. (2) sending it by registered post or speed post. (3) sending it by email. (4) publishing it in the newspaper. (5) affixing it in a conspicuous place and if that is not practicable, then, putting it up on the notice board of the office concerned.

Added to the above modes, now, it will be by 'making it available on the common portal'.

This portends serious implications for importers and exporters. As it is, in section 153, there is no order of priority for adopting different modes. It is left to the discretionary powers of the officer. If 'making available notices or orders in the common portal' is incorporated as a 'mode of service', then that is bound to be the norm of the day to the exclusion of other modes as that will be the most convenient and preferred method for the officers.

Recently, there was a case of an enthusiastic Assistant Commissioner announcing 'mass' personal hearings to various exporters located across the country through a public notice affixed to the notice board of one of the Custom Houses requiring them to turn up for hearings within a specific period before the said officer. The issue related to recovery of drawback in respect of goods exported nearly 15 years back. Thus, an exporter with address in Mumbai was required to watch the notice board of a Custom House, say, at Chennai or Cochin, regularly to see if he is asked to appear for any hearing for any of his cases. If he fails to show up, then orders will be passed slapping demands or recoveries stating that the noticee failed to utilise the opportunity granted.

While uploading of communications on the common portal is a laudable effort, making available summons, show cause notices, orders and similar communications in the 'common portal' can lead to great hardships to the trading public. The damages caused due to failure to track communications can be irreparable at times and can result in serious civil consequences. It would become the duty of every importer or exporter to login and watch for notices and orders on the common portal, whether they expect any communication or not. As a matter of fact, several communications come out the blue and the importer or the exporter is taken unawares. On the other hand, government will insist that the communication was made available to the person through the common portal.

There can be a time lag between the date of uploading of the documents and its actual notice by the importer or the exporter concerned on the portal. This also can lead to distortions with regard to the date of effective knowledge of such documents including notices or summons. The fate of the orders to be made available on the common portal may not be much different. It will be too onerous to ask the importers and exporters to look for any orders or notices everyday by logging in and by keeping an 'eagle' eye over the common portal. The larger question will be 'can a person be compelled to login to the portal and watch every day for any communication?'

Interesting questions with regard to completion of service can crop up. Whether it is the date and time of uploading of the orders on the common portal or the date and time of logging in by the individual on the portal, will become hot issues in litigation irrespective of the stipulation in Section 153(2) of the Customs Act. Other modes of alerting the importers and exporters, such as 'SMS' messages may become necessary. This will mean only additional work. In any case, making the communication available on the common portal should be the last resort.

Irrespective of all the above, it is essential that all the stakeholders are taken into confidence and their views taken into consideration before any such 'common portal' is designed and sufficient trial runs are undertaken before its actual implementation. If this is not done then the Customs services 'in the cloud' can become customs services 'in the clouds' and clouded.

[The author is a Chennai based Advocate and the views expressed are strictly personal.]