Clearing agents seek dismissal of Customs officers who illegally involved in freight activities

 

Want establishment of independent tribunal to settle freight disputes

 

By Fredrick Wright

 

Clearing agents from five major associations in the freight forwarding practise in Nigeria have called for outright dismissal of any Custom officer found engaging in the acts of freight forwarding.

 

The agents also called for the establishment of independent tribunal to settle freight disputes.

 

SlyeNews reports that the clearing agents/freight forwarders have been groaning under intimidation by some Customs officers who allegedly double as brokers, thereby stiffling their businesses.

 

The agents lamented that such act by an officer will result to clash of responsibilities.

 

In their recommendations on the review of CEMA, recently presented to the House of Representatives, the agents stated in 11.2    Section 106 SS(1) that: “An officer under employment in the Service shall not engage in business as a Customs Representation to any person, penalty which shall be of summarily dismissal from the Service.”

 

 

The agents include members of ANLCA, NAGAFF, AREEF, NAFAC and NCMDLCA.

 

Details of the recommendations below:

 

The Chairman

House of Representatives Committee on Customs & Excise 

National Assembly

Three Arm Zone, FCT, Abuja

Nigeria. 

 

REQUEST FOR LEGISLATIVE ACTION TO AMEND BY ADDITION, CORRECTION OR EXPUNGING SPECIFIC SECTIONS, TENSES CONSIDERED OBNOXIOUS TO INTERNATIONAL CONVENTION ON TRADE AND EASE OF DOING BUSINESS IN NIGERIA AND CONTRAVENTION OF ADMINISTRATION OF CRIMINAL JUSTICE ACT, LFN 2005 AND GLOBAL BEST PRACTICES IN THE PROPOSED CUSTOMS AND EXCISE MANAGEMENT ACT, CAP C45 LFN, 2004 (CEMA)

 

Dear Sir,

 

1. The Council for the Regulation of Freight Forwarding in Nigeria CRFFN established by Act No 16 LFN, 2007 regulates the activities of Freight Forwarders and under its functions reference part 1, Section 4 of the Act has registered (5) five Associations of Trade Professional Freight Forwarders with Registration and Certificated as follows:

 

• ASSOCIATION OF NIGERIAN LICENSED CUSTOMS AGENTS ANLCA                                    –    001

• NATIONAL ASSOCIATION OF GOVERNMENT APPROVED FREIGHT FORWARDERS NAGAFF                –    002

• ASSOCIATION OF REGISTERED FREIGHT FORWARDERS, NIGERIA AREEF                            –    003

• NIGERIA ASSOCIATION OF AIR FREIGHT FORWADERS AND CONSOLIDATORS NAFFAC                    –    004

• NATIONAL COUNCIL OF MANAGING DIRECTORS OF LICENSED CUSTOMS AGENTS NCMDLCA            –    005

 

2.0    Consequently, the (5) five Federating Associations Registered by Government of Nigeria arising from a joint session, with a communiqué and resolutions agreed to present a common position for legislative actions by amendment to the propose CEMA Bill by correcting Specific Sections that contravene International Conventions of which Nigeria is a signatory, Administration of Criminal Justice Act, LFN 2005 and Global best practices.

 

• BACKGROUND

 

3.1    “When a National Legislation is to be enacted for the purpose of compliance of Trade protocols, it behooved on the enactors of the law to have broad consultations for relevant inputs, in this instance the Freight Forwarders who are in the front line, acting as principal and responsible for the Acts and Omission of third Party for the performance of the contract of carriage of other services, inclusive of Customs protocols subject to FIATA Model Rules for Freight Forwarding Services Part II, Section 7.3 Article 8 which is Freight Forwarders Liability”. 

 

3.2    Reference to WCO Customs Brokers guidelines and with accession to the Revised Kyoto Convention (RKC) in Nigeria context, it is still mandatory for the use of Licensed Brokers Services, once licensed for process of all Import and Export Customs clearance, generally acting as an intermediary between Traders and Customs Administration in Customs Clearance Processes with sound knowledge of Customs and other laws relating to Border Regulatory Requirements reference to WCO Customs Broker Guideline Section 27 issuance of License “Where all Customs Broker License requirements have been met, the designated Customs Administration Officer will issue a Customs Broker License and publicize its issuance. Section 34 “While performing several activities on behalf of Traders, License Customs Brokers were applicable have to make several obligation and liabilities depending on the National Legislation and Regulation of the country in which they are licensed”.

 

3.3    Section 86 trade facilitation between Customs and Brokers, once licensed is “uniquely position to contribute to Customs Administration objectives relating to efficiency and compliance, both as a party with whom Customs Administration directly engaged and as a communication Agent”. It is quite necessary from the foregoing that Nigeria Customs Service (NCS) needs Licensed Brokers input in this proposed National Legislation Bill meant to enforce compliance whereas no consultation was made. 

 

3.4     JUSTIFICATION

 

3.5     However, considering the lack of request for inputs of the Registered Association as an oversight by Nigeria Customs Service (NCS) the five (5) federating Freight Forwarders Associations registered by Nigerian Government has moral obligation to submit to your Distinguished Committee to move the Senate and the whole Assembly to amend by addition, correction or expunging specific Sections, tenses considered obnoxious to International Convention on Trade, ease of doing business in Nigeria and contravention of Administration of Criminal Justice Act, LFN 2005 and Global best practices in the proposed Customs and Excise Management Act, Cap C45 LFN, 2004 (CEMA).

 

3.6    Part II Function and Powers of Nigeria Customs Service (NCS) 

 

3.7    Section 4 I Approve and License Customs Agents, who shall be citizen of Nigeria

 

Now to Read: 

Approve and License Customs Agents, who shall be citizens of Nigeria renewable every four (4) years. 

 

3.8    7(1) Notwithstanding anything to the contrary contained in any other Law, no action shall be instituted against the Service in respect of the Act, neglect, or default done or omitted to be done by any officer in his capacity as an officer of the Service with regard to the regulations made pursuant to Section (5) of this Act unless it is commenced within three (3) months after the act or negligence complained of, or in the case of a continuing damage or injury, within three (3) months after the ceasing thereof. 

 

Now to Read:

 

7(1a) Notwithstanding Sub-Section 7(1) above any aggrieved Traders should have the right to an Appellate Customs Tribunal (CEAT) which establishment is hereby requested within 14 days after preliminary notice.

 

4.0    PART III – GOVERNING BOARD, MEMBERSHIP, FUNCTIONS AND POWER

 

4.1    Section 8 SS 3(a) The Board shall consist of:-

Sub-Section (a) A Chairman who shall be appointed by the President subject to confirmation by the National Assembly, shall be a retired Officer not below the rank of a Deputy Comptroller General for a period of four (4) years and may be renewed once and no more. 

 

Now to Read:

 

4.2    Sub-Section (3a) A Chairman, who shall be appointed by the President subject to confirmation by the National Assembly, shall be Minister of Finance.

 

4.3    Section 8 SS 3(I)

 

4.4    Representative of the council for the Regulation of Freight Forwarding in Nigeria. 

 

Now to Read:

 

4.5    Two (2) Representatives of the council for the Regulation of Freight Forwarding in Nigeria who shall be practicing Freight Forwarders.

 

4.6    Section 14(1) Notwithstanding anything to the contrary in other Laws, no action shall be instituted against the Service in respect of any act, neglect, or default done or omitted to be done by an officer, servant or agent of the Service in his capacity as an officer, servant or agent of the Service with regard to the powers in Section 11 of this Act unless it is commenced within three months after the act or negligence complained of, or in the case of a continuing damage or injury, within three months after ceasing thereof. 

 

Now to Read:

 

4.7    Expunged

 

5.0    PART VI PROVISION FOR CUSTOMS FORMALITIES AND CONTROL

 

5.1    Section 2(b) Shall be issued as soon as possible but in no event later than a hundred and fifty calendar days of receipt of a completed application and shall be binding only on the Service and the requesting party. 

 

Now to Read: 

 

5.2     Section 2(b) Shall be issued as soon as possible but in no event later than thirty calendar days reference to WCO Safe Frame Work of receipt of a completed application and shall be binding only on the Service and the requesting party.

 

5.3    Section 26 SS 2 The provisions of Sub-Section 1 of this Section notwithstanding, paper or other medium maybe used in lieu of electronic exchanges of data- 

 

Now to Read: 

 

5.4    Section 26 SS 2 The provisions of Sub-Section 1 of this Section notwithstanding, paper or other medium maybe used in lieu of electronic exchanges of data- provided it will not be in use for more than 72 hours.

 

6.0    PART VII- CUSTOMS SERVICE CONTROL

 

6.1    Section 31(1b) The control by the Service includes taking samples. 

 

Now to Read: 

 

6.2    Section 31(1b) The control by the Service includes taking returnable samples.

 

6.3    Section 31(1d) The control by the Service includes examining the accounts of the Traders, their records and data

 

Now to Read:

 

6.4    Section 31(1d) The control by the Service includes examining the records of the Traders.

 

6.5    Section 31 SS(3) In carrying out the examinations of goods or any means of transportation, an offer may use such reasonable and appropriate force to gain access to any locked cargo, storage compartment or any area where credible and reasonable suspicion and probable grounds exists to warrant the search of the compartment or area and to examine the goods or means of transportation without any warrant. 

 

Now to Read:

 

6.6    Section 31 SS(3) In carrying out the examinations of goods or any means of transportation, an offer may use such reasonable and appropriate force to gain access to any locked cargo, storage compartment or any area where credible and reasonable suspicion and probable grounds exists to warrant the search of the compartment or area and to examine the goods or means of transportation provided there is a search warrant.

 

7.0 PART VIII – IMPORTATION, EXPORTATION AND TRANSIT OF GOODS

 

7.1    Section 55 SS(1d) declarant or other responsible persons has paid all duties, Excise taxes, other taxes, charges and assessments and penalties determined to be due on the goods, except where the Service has authorized deferred payment under any applicable provisions of this Act. 

 

Now to Read:

 

7.2    Section 55 SS(1d) declarant or other responsible persons has paid all duties, Excise taxes, other taxes, charges and assessments and penalties determined to be due on the goods, except where the Service has authorized deferred payment under any applicable provisions of this Act. Provided no further control is exercised unless by Post Clearance Audit (PCA) after due diligence and release of control.

 

8.0    PART IX- DETERMINATION OF DUTIES AND TAXES

8.1    Section 69 SS(1B) The Service shall be responsible for- applying for Valuation in accordance with the provision of the relevant International Convention and agreement on implementation of Article VII of the general agreement on Tariffs and Trade as contained in this Act, to imported, exported and Excise goods. 

Now to Read:

8.2    Section 69 SS(1b) The Service shall be responsible for- applying for Valuation in accordance with the provision of the relevant International Convention and agreement on implementation based on Domesticated Valuation Act, 20 of 2003 with six (6) principles of Valuation in sequential order to Imported, Exported and Excise goods. 

8.3    Section 69 SS(3d) Without prejudice to the provision of World Trade Organization, Trade Facilitation Agreement, there shall be a Dispute Resolution Mechanism in the Service. Disputes shall be resolved through the following process – if not satisfied with the decision, the Importer/Exporter and Excise Traders may appeal to the Honourable Minister of Finance. 

Now to Read:   

8.4    Section 69 SS(3d) Without prejudice to the provision of World Trade Organization, Trade Facilitation Agreement, there shall be a Dispute Resolution Mechanism in the Service. Disputes shall be resolved through the following process – if not satisfied with the decision, the Importer/Exporter and Excise Traders may appeal to the Honourable Minister of Finance. If still not satisfied to have further right to Independent Appellate Tribunal which establishment is hereby requested. Annexing India and New-Zealand Customs Excise and Service Tax Appeal Tribunal Procedure Model.

8.5    Section 70 SS(4) A transaction value shall be applied if – 

Now to Read:

8.6    Section 70 SS(4) A transaction value shall be applied in line with Valuation Act 20 of 2003.

9.0    PART X – CUSTOMS DEBT AND PAYMENTS

9.1    Section 86 SS(4) Any person who acquired or held the goods referred to in Sub-Section (1) of this Section and who was aware or should reasonably have been aware at the time of acquiring or receiving the goods that an obligation under Customs Legislation was not fulfilled shall be a debtor – 

Now to Read:

9.2    Section 86 SS(4) Any person who acquired or held the goods referred to in Sub-Section (1) of this Section and who was aware or should reasonably have been aware at the time of acquiring or receiving the goods that an obligation under Customs Legislation was not fulfilled shall be a debtor. Provided he/she cannot produce the first respondent Trader/Consignee.    `

10.0    PART XI- CUSTOMS GUARANTEES AND SECURITY

10.1 Section 96 SS(3) The Service may require a guarantee to be provided to ensure a debtor, a person who may become a debtor, or a third person guarantor approved by the Service, may be required by the Customs to provide a guarantee to it.

10.2    Section 96 SS(4) The third person guarantor refer to in Sub-Section(3) of this Section is an authorized dealer Bank – 

Now to Read:

10.3    Section 96 SS(3) The Service may require a guarantee to be provided to ensure a debtor, a person who may become a debtor, or a third person guarantor approved by the Service, may be required by the Customs to provide a guarantee to it. Section 96 SS(4) The third person guarantor refer to in Sub-Section(3) of this Section is an authorized dealer Bank and authorized Insurance Company.

10.4     Section 99 SS(3) The Service may refuse to approve a guarantor or the type of guarantee proposed, where the guarantor or the type guarantee proposed do not appear certain to ensure payment within the prescribe period for payment of the amount of the Customs debt. 

Now to Read:

10.5    Section 99 SS(3) The Service may refuse to approve a guarantor or the type of guarantee proposed, provided it is not in agreement with Section 99 Sub-Section(1a-c) where the guarantor or the type guarantee proposed do not appear certain to ensure payment within the prescribe period for payment of the amount of the Customs debt

11.0    PART XII – CUSTOMS REPRESENTATIVES AND AUTHORISED ECONOMIC OPERATOR

11.1    Section 106 SS(1) An officer under employment in the Service shall not engage in business as a Customs Representation to any person- 

Now to Read: 

11.2    Section 106 SS(1) An officer under employment in the Service shall not engage in business as a Customs Representation to any person, penalty which shall be of summarily dismissal from the Service.

 

12.0    PART XIII – STATUS OF GOODS AND CUSTOMS PROCEDURES

12.1     Section 117 SS(6) The Service may extend the normal working hours of a Customs Offices to facilitate trade and in such instances: A cost- based user fee maybe assess by the Service on person using this special Services- 

Now to Read:

12.2    Section 117 SS(6) The Service may extend the normal working hours of a Customs Offices to facilitate trade and in such instances: A cost- based user fee maybe assess by the Service on person using this special Services. In so much this Section is only applicable to out of station, escort and bonded transactions.

13.0    PART XIV- RELEASE OF GOODS 

13.1    Section 120 SS(6) The sales by auction act shall not apply to sales under the Customs and Excise Laws when conducted by an officer authorized by the Board- 

Now to Read:

13.2    Section 120 SS(6) The sales by auction act shall apply to sales under the Customs and Excise Laws when conducted by an officer authorized by the Board.

13.3    Section 121 where a person imports goods into Customs territory and abandons such goods, the person or the holder of the goods shall bear the cost of destruction or disposal of the goods 

 Now to Read:

13.4    Section 121 where a person imports goods into Customs territory and abandons such goods, the person or the holder of the goods shall bear the cost of destruction or disposal of the goods, the cost of destruction of disposal of the goods shall be bore by the Service and recoup same by auction sales.

 

14.0    PART XV- WAREHOUSES

14.1    Section 122 SS(7a) A License shall not be issued to an applicants under this part until the applicant has (a) furnished a Bank Guarantee for the due payment of all duties, Excise Taxes, other Taxes and Fees in an amount as the Service may require; 

Now to Read:

14.2    Section 122 SS(7a) A License shall not be issued to an applicants under this part until the applicant has (a) furnished a Bank or Insurance Guarantee for the due payment of all duties, Excise Taxes, other Taxes and Fees in an amount as the Service may require;

14.3    Section 133 SS(2) Any person who fails to leave any bonded warehouse or Government warehouse or any part of a bonded warehouse or Government warehouse when requested to do so by any officer shall be liable to a fine of ₦5,000,000.00 or to imprisonment for three years, or both. 

Now to Read:

14.4    Expunged

 

15.0    PART XVII – TEMPORARY ADMISSION PROCEDURE

15.1    Section 143 SS(5e) A guarantee is submitted covering the duties, Excise taxes and fees that the goods will be assessed if the goods are not re-exported; 

Now to Read:

15.2    Section 143 SS(5e) A Bank or Insurance Certificate guarantee is submitted covering the duties, Excise taxes and fees that the goods will be assessed if the goods are not re-exported.

 

16.0    PART XIX – EXPORT PROCEDURE COASTWISE CARRIAGE OF GOODS

16.1     Section 157 In this part “stores” means 

Now to Read:

16.2    Section 157 In this part “Stores” and “Parts” means

16.3    Section 157 (2) Stores shall be exempted from the payment of duties, Excise taxes and other taxes if retained on board the vessel, aircraft or other conveyance while in the Customs territory, and the quantities of such stores are deemed reasonable having regard to the number of passengers and crew, and to the length of stay of the conveyance, provided the length of any of the stay is considered reasonable- 

Now to Read:

16.4    Section 157 (2) Stores and spares for vessel, aircraft or other conveyance in distress while in the Customs territory shall be exempted from the payment of duties, Excise taxes and other taxes if retained on board the vessel, aircraft or other conveyance while in the Customs territory, and the quantities of such stores are deemed reasonable having regard to the number of passengers and crew, and to the length of stay of the conveyance, provided the length of any of the stay is considered reasonable.

17.0    PART XX- CROSS BORDER, e-COMMERCE, POSTAL AND EXPRESS SHIPMENTS

17.1 Section 159 SS(3a) The Service shall- Where a satisfactory guarantee has been submitted covering potential liability for duties, Excise taxes, other taxes and fees, express shipments shall in the usual course, be released for free circulation or in accordance with a requested Customs procedure within six hours after arrival of the shipment and submission of the necessary documents to the Service – 

 

Now to Read:

17.2    Section 159 SS(3a) The Service shall- Where a satisfactory Bank or Insurance guarantee has been submitted covering potential liability for duties, Excise taxes, other taxes and fees, express shipments shall in the usual course, be released for free circulation or in accordance with a requested Customs procedure within six hours after arrival of the shipment and submission of the necessary documents to the Service.

18.0    PART XXII – PROTECTION OF INTELLECTUAL PROPERTY RIGHT

18.1    Section 169 The Service shall have the powers to detain, arrest or seize any importation or exportation that infringes or contravenes the Copyright Act – 

Now to Read:

18.2    Section 169 The Service shall have the powers to detain, arrest or seize any importation or exportation that infringes or contravenes the Copyright Act for prosecution by Copyright Commission.

19.0    PART XXX – GENERAL OPERATIONAL POWERS, CUSTOMS OFFENCES 

19.1    Section 227 SS(2a) Any officer engaged in the enforcement of the Customs and Excise Laws may for that purpose patrol upon and pass freely over and enter any place in Nigeria, and such officer shall not be liable for prosecution – 

Now to Read:

19.2    Section 227 SS(2a) Any officer engaged in the enforcement of the Customs and Excise Laws may for that purpose patrol upon and pass freely over and enter any place in Nigeria, and such officer shall not be liable for prosecution. Provided the action is in line with International Convention and National Legislation Law of the Federation of Nigeria.

19.3    Section 227 SS(5) Any person who fires upon any ship, aircraft or vehicle which is been used for the purpose of enforcing the Customs and Excise Laws or by an Officer while otherwise engaged in the execution of his duties shall be sentenced to death – 

Now to Read:

19.4    Section 227 SS(5) Any person who fires upon any ship, aircraft or vehicle which is been used for the purpose of enforcing the Customs and Excise Laws or by an Officer while otherwise engaged in the execution of his duties shall be prosecuted in line with Administration of Criminal Justice, Act 2015.

19.5    Section 228 SS(1) The Service may without previous notice and at any time enter any place, premises, or means of conveyance and make such examination and enquiry as deemed necessary where there are reasonable grounds to suspect that a Customs and Excise offence has occurred.

 Now to Read:

19.6    Section 228 SS(1) The Service may without previous notice and at any time enter any place, premises, or means of conveyance and make such examination and enquiry as deemed necessary where there are reasonable grounds to suspect that a Customs and Excise offence has occurred provided the is a search warrant in line with the Law of the Federation.

19.7    Section 230 SS(1) Any person who knowingly enter any goods upon payment of less than the amount of duty, Excise taxes, or other taxes and fees legally due, shall be issued Debit Note of the difference with a penalty of (25%) Twenty-Five Percent of the duty liability.

Now to Read:

19.8    Section 230 SS(1) Any person who knowingly enter any goods upon payment of less than the amount of duty, Excise taxes, or other taxes and fees legally due, shall be issued Debit Note of the difference with a penalty of (25%) Twenty-Five Percent of the duty liability (1a) Notwithstanding Sub-Section 1 above, provided it shall be applicable to total duty evasion and willful intention of fraudulent declarations. (1b) however, Debit Note of difference issued based on dispute on duty avoidance arguments shall have penalty not more than (₦20,000.00) Twenty Thousand Naira Only.

19.9    Section 234 SS(2a) Any person who imports or causes to be imported and goods concealed in a container holding goods of a different description; or Section 234 SS(2b)  directly or indirectly imports of causes to be imported or entered any goods found, whether before or after delivery, not to correspond with the entry delivered on the goods; commits an offence and is liable on conviction, if the goods are chargeable with duty, Excise taxes or other taxes to imprisonment for a term of three (3) years and to a fine of six times the true value of revenue lost and forfeiture of the item smuggled.

Now to Read:

20.0    Section 234 SS(2a) Any person who imports or causes to be imported and goods concealed in a container holding goods of a different description; or Section 234 SS(2b)  directly or indirectly imports of causes to be imported or entered any goods found, whether before or after delivery, not to correspond with the entry delivered on the goods; commits an offence and is liable on conviction, if the goods are chargeable with duty, Excise taxes or other taxes to imprisonment for a term of three (3) years and to a fine of six times the true value of revenue lost and forfeiture of the item smuggled. Provided the concealed goods is the substantial goods so imported or exported.

20.1 Section 235 SS(1) Where a person is found anywhere in Nigeria in possession of any goods to which this Section applies, the person commit an offence unless he proves- (a) That the goods were lawfully imported to Nigeria or as the case may be, that the duty chargeable on the goods are been paid; or (b) in the case any other person other than a seller of the goods that he has no reason to suspect that the goods were unlawfully imported or that the duty chargeable on the goods had not been paid.

 

Now to Read:

20.2    Expunged

20.3    Section 237 Any person who knowingly imports, exports, or attempts to import or export any – (a) Vehicles, vessel, aircraft, or part of any vehicle, vessel or aircraft, knowing the same to have been stolen; or (b) Vehicles or part of vehicles knowing that the Vehicle Identification Number (VIN) of such vehicle or part of motor vehicle has been removed, obliterated, tampered with, or altered; commits an offence and liable on conviction to a fine ₦2,000,000.00 or to imprisonment for two years, or both.

 

Now to Read:

20.4    Expunged

20.5    Section 239 SS(3) Who intimidates, harasses or threatens an officer by any means other than the use of a weapon, commits an offence and shall on conviction be liable to imprisonment for a term of five years 

 

Now to Read:

20.6    Section 239 SS(3) Who intimidates, harasses or threatens an officer by any means other than the use of a weapon, commits an offence and shall on conviction be liable to imprisonment for a term of five years under the Administration of Criminal Justice Act, 2015.

 

Please accept the very best of my Assurances.

 

Yours faithfully,

For: ACCREDITED FEDERATING FREIGHT ASSOCIATION

 

• Iju Nwabunike (National President ANLCA)………………………

• Chief Tochukwu Ezisi (National President NAGAFF)…………….

• Prince Adeyinka Bakare (National President NAFFAC)…………

• Ifeanyi Anakweze (President NCMDLCA)………………………….

• Bala Daura (National President AREEF)…………………………….

    

Annex Documents

1. Summary of case
2. Background
3. Kyoto Convention, General Convention
4. Explanation Note to the Revision of and Guidelines for the Usage of FIATA Model Rules for Freight Forwarding Services
5. WCO Customs Brokers Guideline
6. WCO Appeal in Customs Matter
7. India Customs, Excise and Service Tax Appeal Tribunal Procedure

 

 

Want establishment of independent tribunal to settle freight disputes

 

By Fredrick Wright

 

Clearing agents from five major associations in the freight forwarding practise in Nigeria have called for outright dismissal of any Custom officer found engaging in the acts of freight forwarding.

 

The agents also called for the establishment of independent tribunal to settle freight disputes.

 

SlyeNews reports that the clearing agents/freight forwarders have been groaning under intimidation by some Customs officers who allegedly double as brokers, thereby stiffling their businesses.

 

The agents lamented that such act by an officer will result to clash of responsibilities.

 

In their recommendations on the review of CEMA, recently presented to the House of Representatives, the agents stated in 11.2    Section 106 SS(1) that: “An officer under employment in the Service shall not engage in business as a Customs Representation to any person, penalty which shall be of summarily dismissal from the Service.”

 

 

The agents include members of ANLCA, NAGAFF, AREEF, NAFAC and NCMDLCA.

 

Details of the recommendations below:

 

The Chairman

House of Representatives Committee on Customs & Excise 

National Assembly

Three Arm Zone, FCT, Abuja

Nigeria. 

 

REQUEST FOR LEGISLATIVE ACTION TO AMEND BY ADDITION, CORRECTION OR EXPUNGING SPECIFIC SECTIONS, TENSES CONSIDERED OBNOXIOUS TO INTERNATIONAL CONVENTION ON TRADE AND EASE OF DOING BUSINESS IN NIGERIA AND CONTRAVENTION OF ADMINISTRATION OF CRIMINAL JUSTICE ACT, LFN 2005 AND GLOBAL BEST PRACTICES IN THE PROPOSED CUSTOMS AND EXCISE MANAGEMENT ACT, CAP C45 LFN, 2004 (CEMA)

 

Dear Sir,

 

1. The Council for the Regulation of Freight Forwarding in Nigeria CRFFN established by Act No 16 LFN, 2007 regulates the activities of Freight Forwarders and under its functions reference part 1, Section 4 of the Act has registered (5) five Associations of Trade Professional Freight Forwarders with Registration and Certificated as follows:

 

• ASSOCIATION OF NIGERIAN LICENSED CUSTOMS AGENTS ANLCA                                    –    001

• NATIONAL ASSOCIATION OF GOVERNMENT APPROVED FREIGHT FORWARDERS NAGAFF                –    002

• ASSOCIATION OF REGISTERED FREIGHT FORWARDERS, NIGERIA AREEF                            –    003

• NIGERIA ASSOCIATION OF AIR FREIGHT FORWADERS AND CONSOLIDATORS NAFFAC                    –    004

• NATIONAL COUNCIL OF MANAGING DIRECTORS OF LICENSED CUSTOMS AGENTS NCMDLCA            –    005

 

2.0    Consequently, the (5) five Federating Associations Registered by Government of Nigeria arising from a joint session, with a communiqué and resolutions agreed to present a common position for legislative actions by amendment to the propose CEMA Bill by correcting Specific Sections that contravene International Conventions of which Nigeria is a signatory, Administration of Criminal Justice Act, LFN 2005 and Global best practices.

 

• BACKGROUND

 

3.1    “When a National Legislation is to be enacted for the purpose of compliance of Trade protocols, it behooved on the enactors of the law to have broad consultations for relevant inputs, in this instance the Freight Forwarders who are in the front line, acting as principal and responsible for the Acts and Omission of third Party for the performance of the contract of carriage of other services, inclusive of Customs protocols subject to FIATA Model Rules for Freight Forwarding Services Part II, Section 7.3 Article 8 which is Freight Forwarders Liability”. 

 

3.2    Reference to WCO Customs Brokers guidelines and with accession to the Revised Kyoto Convention (RKC) in Nigeria context, it is still mandatory for the use of Licensed Brokers Services, once licensed for process of all Import and Export Customs clearance, generally acting as an intermediary between Traders and Customs Administration in Customs Clearance Processes with sound knowledge of Customs and other laws relating to Border Regulatory Requirements reference to WCO Customs Broker Guideline Section 27 issuance of License “Where all Customs Broker License requirements have been met, the designated Customs Administration Officer will issue a Customs Broker License and publicize its issuance. Section 34 “While performing several activities on behalf of Traders, License Customs Brokers were applicable have to make several obligation and liabilities depending on the National Legislation and Regulation of the country in which they are licensed”.

 

3.3    Section 86 trade facilitation between Customs and Brokers, once licensed is “uniquely position to contribute to Customs Administration objectives relating to efficiency and compliance, both as a party with whom Customs Administration directly engaged and as a communication Agent”. It is quite necessary from the foregoing that Nigeria Customs Service (NCS) needs Licensed Brokers input in this proposed National Legislation Bill meant to enforce compliance whereas no consultation was made. 

 

3.4     JUSTIFICATION

 

3.5     However, considering the lack of request for inputs of the Registered Association as an oversight by Nigeria Customs Service (NCS) the five (5) federating Freight Forwarders Associations registered by Nigerian Government has moral obligation to submit to your Distinguished Committee to move the Senate and the whole Assembly to amend by addition, correction or expunging specific Sections, tenses considered obnoxious to International Convention on Trade, ease of doing business in Nigeria and contravention of Administration of Criminal Justice Act, LFN 2005 and Global best practices in the proposed Customs and Excise Management Act, Cap C45 LFN, 2004 (CEMA).

 

3.6    Part II Function and Powers of Nigeria Customs Service (NCS) 

 

3.7    Section 4 I Approve and License Customs Agents, who shall be citizen of Nigeria

 

Now to Read: 

Approve and License Customs Agents, who shall be citizens of Nigeria renewable every four (4) years. 

 

3.8    7(1) Notwithstanding anything to the contrary contained in any other Law, no action shall be instituted against the Service in respect of the Act, neglect, or default done or omitted to be done by any officer in his capacity as an officer of the Service with regard to the regulations made pursuant to Section (5) of this Act unless it is commenced within three (3) months after the act or negligence complained of, or in the case of a continuing damage or injury, within three (3) months after the ceasing thereof. 

 

Now to Read:

 

7(1a) Notwithstanding Sub-Section 7(1) above any aggrieved Traders should have the right to an Appellate Customs Tribunal (CEAT) which establishment is hereby requested within 14 days after preliminary notice.

 

4.0    PART III – GOVERNING BOARD, MEMBERSHIP, FUNCTIONS AND POWER

 

4.1    Section 8 SS 3(a) The Board shall consist of:-

Sub-Section (a) A Chairman who shall be appointed by the President subject to confirmation by the National Assembly, shall be a retired Officer not below the rank of a Deputy Comptroller General for a period of four (4) years and may be renewed once and no more. 

 

Now to Read:

 

4.2    Sub-Section (3a) A Chairman, who shall be appointed by the President subject to confirmation by the National Assembly, shall be Minister of Finance.

 

4.3    Section 8 SS 3(I)

 

4.4    Representative of the council for the Regulation of Freight Forwarding in Nigeria. 

 

Now to Read:

 

4.5    Two (2) Representatives of the council for the Regulation of Freight Forwarding in Nigeria who shall be practicing Freight Forwarders.

 

4.6    Section 14(1) Notwithstanding anything to the contrary in other Laws, no action shall be instituted against the Service in respect of any act, neglect, or default done or omitted to be done by an officer, servant or agent of the Service in his capacity as an officer, servant or agent of the Service with regard to the powers in Section 11 of this Act unless it is commenced within three months after the act or negligence complained of, or in the case of a continuing damage or injury, within three months after ceasing thereof. 

 

Now to Read:

 

4.7    Expunged

 

5.0    PART VI PROVISION FOR CUSTOMS FORMALITIES AND CONTROL

 

5.1    Section 2(b) Shall be issued as soon as possible but in no event later than a hundred and fifty calendar days of receipt of a completed application and shall be binding only on the Service and the requesting party. 

 

Now to Read: 

 

5.2     Section 2(b) Shall be issued as soon as possible but in no event later than thirty calendar days reference to WCO Safe Frame Work of receipt of a completed application and shall be binding only on the Service and the requesting party.

 

5.3    Section 26 SS 2 The provisions of Sub-Section 1 of this Section notwithstanding, paper or other medium maybe used in lieu of electronic exchanges of data- 

 

Now to Read: 

 

5.4    Section 26 SS 2 The provisions of Sub-Section 1 of this Section notwithstanding, paper or other medium maybe used in lieu of electronic exchanges of data- provided it will not be in use for more than 72 hours.

 

6.0    PART VII- CUSTOMS SERVICE CONTROL

 

6.1    Section 31(1b) The control by the Service includes taking samples. 

 

Now to Read: 

 

6.2    Section 31(1b) The control by the Service includes taking returnable samples.

 

6.3    Section 31(1d) The control by the Service includes examining the accounts of the Traders, their records and data

 

Now to Read:

 

6.4    Section 31(1d) The control by the Service includes examining the records of the Traders.

 

6.5    Section 31 SS(3) In carrying out the examinations of goods or any means of transportation, an offer may use such reasonable and appropriate force to gain access to any locked cargo, storage compartment or any area where credible and reasonable suspicion and probable grounds exists to warrant the search of the compartment or area and to examine the goods or means of transportation without any warrant. 

 

Now to Read:

 

6.6    Section 31 SS(3) In carrying out the examinations of goods or any means of transportation, an offer may use such reasonable and appropriate force to gain access to any locked cargo, storage compartment or any area where credible and reasonable suspicion and probable grounds exists to warrant the search of the compartment or area and to examine the goods or means of transportation provided there is a search warrant.

 

7.0 PART VIII – IMPORTATION, EXPORTATION AND TRANSIT OF GOODS

 

7.1    Section 55 SS(1d) declarant or other responsible persons has paid all duties, Excise taxes, other taxes, charges and assessments and penalties determined to be due on the goods, except where the Service has authorized deferred payment under any applicable provisions of this Act. 

 

Now to Read:

 

7.2    Section 55 SS(1d) declarant or other responsible persons has paid all duties, Excise taxes, other taxes, charges and assessments and penalties determined to be due on the goods, except where the Service has authorized deferred payment under any applicable provisions of this Act. Provided no further control is exercised unless by Post Clearance Audit (PCA) after due diligence and release of control.

 

8.0    PART IX- DETERMINATION OF DUTIES AND TAXES

8.1    Section 69 SS(1B) The Service shall be responsible for- applying for Valuation in accordance with the provision of the relevant International Convention and agreement on implementation of Article VII of the general agreement on Tariffs and Trade as contained in this Act, to imported, exported and Excise goods. 

Now to Read:

8.2    Section 69 SS(1b) The Service shall be responsible for- applying for Valuation in accordance with the provision of the relevant International Convention and agreement on implementation based on Domesticated Valuation Act, 20 of 2003 with six (6) principles of Valuation in sequential order to Imported, Exported and Excise goods. 

8.3    Section 69 SS(3d) Without prejudice to the provision of World Trade Organization, Trade Facilitation Agreement, there shall be a Dispute Resolution Mechanism in the Service. Disputes shall be resolved through the following process – if not satisfied with the decision, the Importer/Exporter and Excise Traders may appeal to the Honourable Minister of Finance. 

Now to Read:   

8.4    Section 69 SS(3d) Without prejudice to the provision of World Trade Organization, Trade Facilitation Agreement, there shall be a Dispute Resolution Mechanism in the Service. Disputes shall be resolved through the following process – if not satisfied with the decision, the Importer/Exporter and Excise Traders may appeal to the Honourable Minister of Finance. If still not satisfied to have further right to Independent Appellate Tribunal which establishment is hereby requested. Annexing India and New-Zealand Customs Excise and Service Tax Appeal Tribunal Procedure Model.

8.5    Section 70 SS(4) A transaction value shall be applied if – 

Now to Read:

8.6    Section 70 SS(4) A transaction value shall be applied in line with Valuation Act 20 of 2003.

9.0    PART X – CUSTOMS DEBT AND PAYMENTS

9.1    Section 86 SS(4) Any person who acquired or held the goods referred to in Sub-Section (1) of this Section and who was aware or should reasonably have been aware at the time of acquiring or receiving the goods that an obligation under Customs Legislation was not fulfilled shall be a debtor – 

Now to Read:

9.2    Section 86 SS(4) Any person who acquired or held the goods referred to in Sub-Section (1) of this Section and who was aware or should reasonably have been aware at the time of acquiring or receiving the goods that an obligation under Customs Legislation was not fulfilled shall be a debtor. Provided he/she cannot produce the first respondent Trader/Consignee.    `

10.0    PART XI- CUSTOMS GUARANTEES AND SECURITY

10.1 Section 96 SS(3) The Service may require a guarantee to be provided to ensure a debtor, a person who may become a debtor, or a third person guarantor approved by the Service, may be required by the Customs to provide a guarantee to it.

10.2    Section 96 SS(4) The third person guarantor refer to in Sub-Section(3) of this Section is an authorized dealer Bank – 

Now to Read:

10.3    Section 96 SS(3) The Service may require a guarantee to be provided to ensure a debtor, a person who may become a debtor, or a third person guarantor approved by the Service, may be required by the Customs to provide a guarantee to it. Section 96 SS(4) The third person guarantor refer to in Sub-Section(3) of this Section is an authorized dealer Bank and authorized Insurance Company.

10.4     Section 99 SS(3) The Service may refuse to approve a guarantor or the type of guarantee proposed, where the guarantor or the type guarantee proposed do not appear certain to ensure payment within the prescribe period for payment of the amount of the Customs debt. 

Now to Read:

10.5    Section 99 SS(3) The Service may refuse to approve a guarantor or the type of guarantee proposed, provided it is not in agreement with Section 99 Sub-Section(1a-c) where the guarantor or the type guarantee proposed do not appear certain to ensure payment within the prescribe period for payment of the amount of the Customs debt

11.0    PART XII – CUSTOMS REPRESENTATIVES AND AUTHORISED ECONOMIC OPERATOR

11.1    Section 106 SS(1) An officer under employment in the Service shall not engage in business as a Customs Representation to any person- 

Now to Read: 

11.2    Section 106 SS(1) An officer under employment in the Service shall not engage in business as a Customs Representation to any person, penalty which shall be of summarily dismissal from the Service.

 

12.0    PART XIII – STATUS OF GOODS AND CUSTOMS PROCEDURES

12.1     Section 117 SS(6) The Service may extend the normal working hours of a Customs Offices to facilitate trade and in such instances: A cost- based user fee maybe assess by the Service on person using this special Services- 

Now to Read:

12.2    Section 117 SS(6) The Service may extend the normal working hours of a Customs Offices to facilitate trade and in such instances: A cost- based user fee maybe assess by the Service on person using this special Services. In so much this Section is only applicable to out of station, escort and bonded transactions.

13.0    PART XIV- RELEASE OF GOODS 

13.1    Section 120 SS(6) The sales by auction act shall not apply to sales under the Customs and Excise Laws when conducted by an officer authorized by the Board- 

Now to Read:

13.2    Section 120 SS(6) The sales by auction act shall apply to sales under the Customs and Excise Laws when conducted by an officer authorized by the Board.

13.3    Section 121 where a person imports goods into Customs territory and abandons such goods, the person or the holder of the goods shall bear the cost of destruction or disposal of the goods 

 Now to Read:

13.4    Section 121 where a person imports goods into Customs territory and abandons such goods, the person or the holder of the goods shall bear the cost of destruction or disposal of the goods, the cost of destruction of disposal of the goods shall be bore by the Service and recoup same by auction sales.

 

14.0    PART XV- WAREHOUSES

14.1    Section 122 SS(7a) A License shall not be issued to an applicants under this part until the applicant has (a) furnished a Bank Guarantee for the due payment of all duties, Excise Taxes, other Taxes and Fees in an amount as the Service may require; 

Now to Read:

14.2    Section 122 SS(7a) A License shall not be issued to an applicants under this part until the applicant has (a) furnished a Bank or Insurance Guarantee for the due payment of all duties, Excise Taxes, other Taxes and Fees in an amount as the Service may require;

14.3    Section 133 SS(2) Any person who fails to leave any bonded warehouse or Government warehouse or any part of a bonded warehouse or Government warehouse when requested to do so by any officer shall be liable to a fine of ₦5,000,000.00 or to imprisonment for three years, or both. 

Now to Read:

14.4    Expunged

 

15.0    PART XVII – TEMPORARY ADMISSION PROCEDURE

15.1    Section 143 SS(5e) A guarantee is submitted covering the duties, Excise taxes and fees that the goods will be assessed if the goods are not re-exported; 

Now to Read:

15.2    Section 143 SS(5e) A Bank or Insurance Certificate guarantee is submitted covering the duties, Excise taxes and fees that the goods will be assessed if the goods are not re-exported.

 

16.0    PART XIX – EXPORT PROCEDURE COASTWISE CARRIAGE OF GOODS

16.1     Section 157 In this part “stores” means 

Now to Read:

16.2    Section 157 In this part “Stores” and “Parts” means

16.3    Section 157 (2) Stores shall be exempted from the payment of duties, Excise taxes and other taxes if retained on board the vessel, aircraft or other conveyance while in the Customs territory, and the quantities of such stores are deemed reasonable having regard to the number of passengers and crew, and to the length of stay of the conveyance, provided the length of any of the stay is considered reasonable- 

Now to Read:

16.4    Section 157 (2) Stores and spares for vessel, aircraft or other conveyance in distress while in the Customs territory shall be exempted from the payment of duties, Excise taxes and other taxes if retained on board the vessel, aircraft or other conveyance while in the Customs territory, and the quantities of such stores are deemed reasonable having regard to the number of passengers and crew, and to the length of stay of the conveyance, provided the length of any of the stay is considered reasonable.

17.0    PART XX- CROSS BORDER, e-COMMERCE, POSTAL AND EXPRESS SHIPMENTS

17.1 Section 159 SS(3a) The Service shall- Where a satisfactory guarantee has been submitted covering potential liability for duties, Excise taxes, other taxes and fees, express shipments shall in the usual course, be released for free circulation or in accordance with a requested Customs procedure within six hours after arrival of the shipment and submission of the necessary documents to the Service – 

 

Now to Read:

17.2    Section 159 SS(3a) The Service shall- Where a satisfactory Bank or Insurance guarantee has been submitted covering potential liability for duties, Excise taxes, other taxes and fees, express shipments shall in the usual course, be released for free circulation or in accordance with a requested Customs procedure within six hours after arrival of the shipment and submission of the necessary documents to the Service.

18.0    PART XXII – PROTECTION OF INTELLECTUAL PROPERTY RIGHT

18.1    Section 169 The Service shall have the powers to detain, arrest or seize any importation or exportation that infringes or contravenes the Copyright Act – 

Now to Read:

18.2    Section 169 The Service shall have the powers to detain, arrest or seize any importation or exportation that infringes or contravenes the Copyright Act for prosecution by Copyright Commission.

19.0    PART XXX – GENERAL OPERATIONAL POWERS, CUSTOMS OFFENCES 

19.1    Section 227 SS(2a) Any officer engaged in the enforcement of the Customs and Excise Laws may for that purpose patrol upon and pass freely over and enter any place in Nigeria, and such officer shall not be liable for prosecution – 

Now to Read:

19.2    Section 227 SS(2a) Any officer engaged in the enforcement of the Customs and Excise Laws may for that purpose patrol upon and pass freely over and enter any place in Nigeria, and such officer shall not be liable for prosecution. Provided the action is in line with International Convention and National Legislation Law of the Federation of Nigeria.

19.3    Section 227 SS(5) Any person who fires upon any ship, aircraft or vehicle which is been used for the purpose of enforcing the Customs and Excise Laws or by an Officer while otherwise engaged in the execution of his duties shall be sentenced to death – 

Now to Read:

19.4    Section 227 SS(5) Any person who fires upon any ship, aircraft or vehicle which is been used for the purpose of enforcing the Customs and Excise Laws or by an Officer while otherwise engaged in the execution of his duties shall be prosecuted in line with Administration of Criminal Justice, Act 2015.

19.5    Section 228 SS(1) The Service may without previous notice and at any time enter any place, premises, or means of conveyance and make such examination and enquiry as deemed necessary where there are reasonable grounds to suspect that a Customs and Excise offence has occurred.

 Now to Read:

19.6    Section 228 SS(1) The Service may without previous notice and at any time enter any place, premises, or means of conveyance and make such examination and enquiry as deemed necessary where there are reasonable grounds to suspect that a Customs and Excise offence has occurred provided the is a search warrant in line with the Law of the Federation.

19.7    Section 230 SS(1) Any person who knowingly enter any goods upon payment of less than the amount of duty, Excise taxes, or other taxes and fees legally due, shall be issued Debit Note of the difference with a penalty of (25%) Twenty-Five Percent of the duty liability.

Now to Read:

19.8    Section 230 SS(1) Any person who knowingly enter any goods upon payment of less than the amount of duty, Excise taxes, or other taxes and fees legally due, shall be issued Debit Note of the difference with a penalty of (25%) Twenty-Five Percent of the duty liability (1a) Notwithstanding Sub-Section 1 above, provided it shall be applicable to total duty evasion and willful intention of fraudulent declarations. (1b) however, Debit Note of difference issued based on dispute on duty avoidance arguments shall have penalty not more than (₦20,000.00) Twenty Thousand Naira Only.

19.9    Section 234 SS(2a) Any person who imports or causes to be imported and goods concealed in a container holding goods of a different description; or Section 234 SS(2b)  directly or indirectly imports of causes to be imported or entered any goods found, whether before or after delivery, not to correspond with the entry delivered on the goods; commits an offence and is liable on conviction, if the goods are chargeable with duty, Excise taxes or other taxes to imprisonment for a term of three (3) years and to a fine of six times the true value of revenue lost and forfeiture of the item smuggled.

Now to Read:

20.0    Section 234 SS(2a) Any person who imports or causes to be imported and goods concealed in a container holding goods of a different description; or Section 234 SS(2b)  directly or indirectly imports of causes to be imported or entered any goods found, whether before or after delivery, not to correspond with the entry delivered on the goods; commits an offence and is liable on conviction, if the goods are chargeable with duty, Excise taxes or other taxes to imprisonment for a term of three (3) years and to a fine of six times the true value of revenue lost and forfeiture of the item smuggled. Provided the concealed goods is the substantial goods so imported or exported.

20.1 Section 235 SS(1) Where a person is found anywhere in Nigeria in possession of any goods to which this Section applies, the person commit an offence unless he proves- (a) That the goods were lawfully imported to Nigeria or as the case may be, that the duty chargeable on the goods are been paid; or (b) in the case any other person other than a seller of the goods that he has no reason to suspect that the goods were unlawfully imported or that the duty chargeable on the goods had not been paid.

 

Now to Read:

20.2    Expunged

20.3    Section 237 Any person who knowingly imports, exports, or attempts to import or export any – (a) Vehicles, vessel, aircraft, or part of any vehicle, vessel or aircraft, knowing the same to have been stolen; or (b) Vehicles or part of vehicles knowing that the Vehicle Identification Number (VIN) of such vehicle or part of motor vehicle has been removed, obliterated, tampered with, or altered; commits an offence and liable on conviction to a fine ₦2,000,000.00 or to imprisonment for two years, or both.

 

Now to Read:

20.4    Expunged

20.5    Section 239 SS(3) Who intimidates, harasses or threatens an officer by any means other than the use of a weapon, commits an offence and shall on conviction be liable to imprisonment for a term of five years 

 

Now to Read:

20.6    Section 239 SS(3) Who intimidates, harasses or threatens an officer by any means other than the use of a weapon, commits an offence and shall on conviction be liable to imprisonment for a term of five years under the Administration of Criminal Justice Act, 2015.

 

Please accept the very best of my Assurances.

 

Yours faithfully,

For: ACCREDITED FEDERATING FREIGHT ASSOCIATION

 

• Iju Nwabunike (National President ANLCA)………………………

• Chief Tochukwu Ezisi (National President NAGAFF)…………….

• Prince Adeyinka Bakare (National President NAFFAC)…………

• Ifeanyi Anakweze (President NCMDLCA)………………………….

• Bala Daura (National President AREEF)…………………………….

    

Annex Documents

1. Summary of case
2. Background
3. Kyoto Convention, General Convention
4. Explanation Note to the Revision of and Guidelines for the Usage of FIATA Model Rules for Freight Forwarding Services
5. WCO Customs Brokers Guideline
6. WCO Appeal in Customs Matter
7. India Customs, Excise and Service Tax Appeal Tribunal Procedure