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East African Community Customs Management Act.

It Is An Act To Make Provisions For The management And Administration of Customs And Other Related Matters In The EAC.

The East African Community Customs Management Regulations 2006 Are Made By The Cabinet Secretary Under Section 251 Of The Act.

  1. Directorate of customs

The Directorate is responsible for initiation of policies on customs related matters in the community. Its other functions include:

  1. Enforcing EAC customs law.
  2. Administration of the Common External Tariff
  3. Training in customs related matters
  4. Enforcement of compliance and quality control in customs
  5. Determine the national source of products
  6. Monitor the activities of the Commissioners in the implementation of the act
  1. Commissioner

Section 5 of the act provides for the appointment of the Commissioner in each partner state who is responsible for management and control of customs collection and accounting for customs revenue as also provided for in regulation 3(1) of the East African Customs Regulations (2006).Other functions include:

  1. Prescribing working hours of the officer.
  2. Provide information on matters relating to offences.
  3. Establishing common boarder posts and carrying out joint customs controls.
  4. Appointments of boarding stations, customs areas, places of examination of goods, roads or routes among others by notice of gazette.
  1. Officers

Any officer appointed to hold a permanent office or employment should appear before a magistrate as set out in the first schedule. The commissioner has power  to authorize an officer to perform a duty. This will be deemed to have been done by the commissioner.

  1. Customs Union seal and flag

The design of seal of the union and flag is used to differentiate vessels of the union from others.

 

  1. Prohibited and Restricted Imports

The council has the power to prohibit imports through publication of an order in a gazette.

This however does not apply to goods imported in transit or for transhipment or as stores of any aircraft or vessel unless it is provided for in paragraph 2 of part A of the second schedule.

  1. Arrival and report of aircraft and vessels

Section 21 of the act provides for the procedure on arrival of vessel and aircrafts. Reports from such arrivals from foreign ports shall be in form C.2 and C.4 respectively by the master of the vessel and aircraft to a proper officer. Forms C.3 and C.5 applies to bill of lading declared packages and report on cargo respectively. These reports could be done electronically under regulation 13(1).

The master or agent of an aircraft or vessel is answerable to any question relating to the aircraft or vessel its cargo, stores, baggage crew or passengers among others as may be put to him by the proper officer among others as provided for in section 25.This in accordance to the provisions of regulation15.

Regulations 18,19,20,21 cover instances where an aircraft or vessel is empty and reports on the measurements of cargo.

  1. Arrival Overland

Any person in charge of a vehicle whether conveying goods or not unless permitted by the officer cannot enter partner states.Such a person should

  1. Report his or her arrival to the officer at the station
  2. Provide information concerning the vehicle or goods
  3. Make a declaration as to the truth of the information contained in the form
  4. Answer relevant questions put to him by the officer
  5. Produce consignment notes or other relevant documents needed
  6. Make due entry of the vehicle as provided for in the customs union

This also applies to trains. Where a person arrives through any other means other than a vehicle section 31 of the act makes provisions for such instances.

Other provisions relating to importation includes entry, examination and delivery, provisions relating to customs warehouses and passenger clearance

iv. Warehousing of goods

Any goods liable to import duty may be warehoused first without payment in a government warehouse. For such goods to be stored in a warehouse a procedure provided  has to be followed (Section 48). The commissioner has power to control such goods in a warehouse including imposing permit for such goods to be repacked, skipped or packed or to change the name of the owner of such goods.

In instances where goods are to be removed to another warehouse, the provisions of section 54 of the act are to be followed.

Types of Warehouses

Ø Bonded warehouses

Ø Government warehouse

Ø Customs warehouse

  1. Prohibited and Restricted Exports

This however does not apply to goods in transit, for transhipment among others.This could be amended from time to time by the council by order in the gazette.

  1. Entry outwards and loading of aircrafts and vessels

Entry of cargo to be exported is entered by the owner. This should be supported by documentary evidence, of the goods referred to in the entry. The rules governing this are provided for under regulations 88, 89, 90 and 91.

Loading of goods should be done with written permission of a proper officer. For personal baggage a proper officer can permit such to be exported without entry.

  1. Departure Overland

A vehicle is not allowed to depart overland from a partner state unless permitted by a proper officer. Before departure a person is required to:

ü Report the departure to the customs officer

ü Answer relevant questions put to him by proper officer

ü Provide any information required concerning the vehicle or goods

ü Produce any relevant documents before departure

ü Make due entry of the vehicles and goods

This also applies to departure overland otherwise than by vehicle. Regulation 103 expounds further on this issue.

  1. Goods in transit or for shipment

The Commissioner  can allow goods imported entered for transit without payment of import duties. Regulation 104 provides that such goods should be entered at the port using form C17.Additionally, a carrier cannot transport goods in transit unless licensed or by a competent authority in COMESA or SADC members and approved by the Commissioner.

Termination of transit can be done through presenting the goods and relevant entries at the office of destination within the time specified by the commissioner with the goods in good condition and having customs seals.

Any vessel or aircraft cannot depart from any port unless cleared. Thereafter certificate of clearance shall be issued as per regulation 107 to the master or agent of the aircraft or vessel.

Regulation 108 provides that the outward manifest of a vessel is in form C.2 and contains particulars of cargo shipped among others. This can be done in electronic form. Before departure the master of an aircraft or vessel should deliver to a proper officer a general declaration for the aircraft using form C.4 and thereafter a certificate of clearance is issued.

This applies to carriage coastwise of postal articles. The commissioner has discretion to accept the customs declaration form for the purpose of assessing the duty on the goods as per the requirements of the customs laws this also applies to goods imported and exported through a registered courier as provided in regulation 119.

For goods imported by post the time of entry is deemed to be when the goods are accessed by the proper officer, while for exported goods time of entry is deemed to be time of posting such goods.

This applies to all goods conveyed by sea or air from one partner state to another. If such goods are loaded and headed for different destinations, separate transires are prepared for each.

The council through publication in a gazette may prohibit and restrict carriage coastwise and transfer of goods. The Commissioner may permit an aircraft or vessel to be loaded or unloaded subject to conditions which he/she may impose.

In instances where security is required, it should be to the satisfaction of the commissioner by bond, cash deposit or partly cash deposit or bond. Where the conditions of any bond have not been complied with, the commissioner may notify in writing the person who has given security to pay the required amount in fourteen days.

  1. Liability and Computation of Duty

Goods on rates shall be paid in circumstances provided in the protocol. Goods from partner state are accorded community tariff treatment. Goods originating from COMESA and SADC or that imported under any other tariff arrangement approved by the council are accorded preferential treatment.

Goods remaining on board and exported in the aircraft which they were imported are exempted from liability to import and export duty.. Other goods duty free goods are listed in part A of the fifth Schedule.

The time of entry determines the rate of duty. The value of imported goods liable to import duty is determined according to the fourth schedule. Mode of payment of duty could be electronic as per Regulation 131(3).

For the purposes of collection of duty due the commissioner may by written notice appoint an agent to be the agent of another person (principal) for the purposes of collecting duty if the commissioner is satisfied that the agent has fulfilled the provisions of section 131.

  1. Anti-dumping and countervailing duties

The commissioner shall advice the Community on trade remedies established under the protocol in the following cases:

Ø Where goods are regarded as dumped ,collect anti-dumping duty

Ø Goods in respect of which subsidy has been granted, collect countervailing duty

Ø Take necessary measures in matters dealing with anti-dumping and countervailing duties

  1. Drawback, remission, rebate and refund of duty

Section 138 provides for a partial refund of import duty on certain conditions on certain goods. When the owner of such goods claims a drawback, he or she should:

ü Enter the goods to prescribed form and produce for examination to a proper officer.

ü Ensure that the conditions under which the drawback may be allowed is fulfilled.

ü Present the claim for drawback at a specified period of time

Drawback can be allowed in certain instances as per section 139.It cannot be allowed in respect of goods for home consumption less than the amount of the duty drawback and if the import duty on the goods is less than a hundred dollars.

The council may lessen the amount due on goods imported for manufactured goods in a partner state. Remission can be done when goods are destroyed by accident either:

v On board any aircraft or vessel

v In removing, loading or receiving them or delivering into a customs area or warehouse

v In customs area or warehouse before the goods are delivered out of the customs control to the owner

Where goods imported into a partner state are damaged before delivery out of the customs control then a deduction from an amount to be paid is made in respect of such goods. This applies to any goods (not goods in section 118 of the act) except where the proper officer is satisfied that such an amount cannot be paid.

If goods are destroyed by fire or unused and returned to the seller then repayment of customs duty shall be made. The claim should however be done within a period of twelve months from the date of payments of the duty.

Regulations 141,143,145 and 146 expound on this issue.

The officers have been given power to exercise their duties to prevent smuggling which includes:

§ To signal the master of a vessel to bring it for boarding.

§ Require a vessel to depart which should be done in twelve hours of such requirement

§ Patrol freely a motor vessel

§ Stop a vehicle suspected of conveying uncustomed goods

§ Ask questions to persons leaving or entering a partner state concerning baggage

§ Search persons and premises and arrest persons believed to have committed an offence under the act

§ To require production of books where he or she has information that goods are to be smuggled.

Goods in export processing zones should be entered for export after processing or for re-export in the same state from a Freeport. Provides that the commissioner has power to designate areas in export processing zones or freeports in which custom formalities shall be carried out.

Any industrial, commercial or service activity authorised by the operator should be notified to the commissioner in advance. Any person who doesn’t comply with the provisions of the act is restricted from carrying out any activity in an export processing zone in a Freeport.

The act defines compensating products as the result of manufacturing, processing or repair of goods for which the use of the inward or outward processing procedure is authorised (Sec 71)

Inward processing is the custom procedure where certain goods brought to the partner state can be exempted from duty on the basis that they are intended for manufacturing, processing or repair. This is outward processing for goods exported.

The commissioner has the discretion to prescribe time limits for inward processing. For outward processing, compensating products should be imported into the partner state within a period of one year from the date the goods were exported as per section 179.

The commissioner can prescribe procedures which may be carried out using information technology. Any person who wishes to access customs computerised system should be registered.

SECTION

OFFENCE

INGRIDIENTS

PENALTY

9(1)

 

 

 

 

 

(2)

Unlawful claims, rewards or payments

 

 

 

 

Unlawful disclosure of information

committed where an officer directly or indirectly in connection with his or her duty asks for a payment or reward

 

Committed where an officer discloses important information regarding a person ,firm or business without the approval of a court or commissioner

Imprisonment for a term not exceeding three years

 

 

 

 

Fine not exceeding 2500 dollars or imprisonment for a term not exceeding three years or both

14

Failure to license an internal container depot

Committed where a person contravenes any direction given by the Commissioner under this section

Fine not exceeding 1000 dollars

15

Failure to enter or leave customs area through an entrance or exit.

Committed where a person enters or leaves the customs area through another section other than entrance and exit or enters a forbidden part of the customs area.

Fine not exceeding 100 dollars

16

Interference of goods subject to custom control

Committed where a person contravenes the provisions of section16(2)(b)

Fine not exceeding 1000 dollars or imprisonment for a term not exceeding 3 years

23

Failure to comply with provisions on boarding a vessel

Committed where a restricted person boards a vessel before a proper officer

Fine not exceeding 250 dollars

61

Failure to deposit in a warehouse goods entered for warehousing

Committed where a person takes goods from the warehouse, wilfully destroys goods from a warehouse

Imprisonment for a term not exceeding 2 years or a fine equal to 25% of dutiable value of the goods

105

Refusal to produce documents or answer questions put across by a proper officer

Committed where a master of a vessel refuses to answer any questions or produce documents as directed by a proper officer.

Fine not exceeding 250 dollars and aircraft and vessel detained until fine paid.

192

Interference with customs computerised system

Falsifying information stored in the computer or damages or impairs any customs computerised system

Imprisonment not exceeding 3 years or fine not exceeding 10,000 dollars

193

Conspiring to contravene the provisions of the act

Where a person conspires with another to contravene any provision of the act

Imprisonment for a term not exceeding 5 years

194

Offences with violence

Malicious shooting of an aircraft or an officer

Imprisonment for term not exceeding 20 years

195

Removing or defacing custom seals

A person wilfully removes any custom seals from a ship, aircraft, vehicle, train or package without the authority of proper officer.

Imprisonment for term not exceeding 3 years or fine not exceeding 2000 dollars or both

196

Inducing another to commit an offence

Procuring, inducing or authorizing another person to commit any offence under the act

Imprisonment for a term not exceeding one year

197

Warning an offender

A person with intent to obstruct an officer warns another person engaged in commission of an offence under the act.

Imprisonment for a term not exceeding 2 years or fine not exceeding 2500 dollars or both.

199

Master of a vessel or aircraft used for smuggling

Committed where any person in charge of an aircraft or vehicle uses smuggling goods

For a master of a vessel less than 250 tons register fine not exceeding 7000 dollars

202

Import or export of concealed goods

Import or export of goods concealed packed in any manner likely to deceive an officer

5 years Imprisonment or fine equal to 50% of the value of goods involved.

203

Falsifying documents

Knowingly falsifying or using when counterfeited any documents for purposes of the customs

Imprisonment not exceeding 3 years or fine not exceeding ten thousand dollars

In instances where the commissioner is satisfied that a person has committed an offence , he or she may order the person to pay a fine not higher than if he or she would have paid if prosecuted for the offence as per section 219 of the act.

Any offence committed under the act can be heard and determined before a subordinate court. These cases are dealt with according to the criminal procedure of the partner state as per section 220 of the act.

Any proceedings may be brought by or against the commissioner. The commissioner is liable for the acts and defaults of any officer as if such officer were his or her servant. Proceedings can be commenced within five years of the date of the offence.

The place of trial is the place where he or she is in custody for the offence committed. The person may however apply to be tried in other place. A proper officer can appear and prosecute before a subordinate court for any offence committed under the act.

Any person affected by the decision of a commissioner on matters relating to customs can lodge an application for review within thirty days of the date of the decision. If dissatisfied, the person can appeal to tax appeal tribunal.

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