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2019 (12) TMI 957 - HC - CustomsImposition of Demurrage charges - liability is of the importer or customs department - On examination of the consignment, it was felt that there had been misdeclaration of quantity. Pursuant thereto, vide Panchnama, the Commissioner seized the consignment and handed it over, to CELEBI for safe custody - petitioner represented, to the Commissioner requesting that the aforesaid goods be permitted to be warehoused, so that further demurrage charges could be avoided - whether Respondent No.1 (CELEBI) could charge demurrage, on the goods imported by the petitioners, which have been stored in the premises of CELEBI? - Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. HELD THAT:- The charging of demurrage by the CELEBI, being in terms of the concessionaire agreement, between the DIAL and CELEBI, which was entered into, by them, in terms of the OMDA, which, in turn, stands sanctified by Section 12A of the AAI Act, the CELEBI must be treated as charging, and recovering, demurrage, in accordance with “law for the time being in force”. The inevitable sequitur would be that the injunction, engrafted in Regulation 6(1)(l) of the Handling of Cargo Regulations, on the charging of demurrage in respect of goods detained/seized, or confiscated by the customs authorities, would not apply to, or affect, CELEBI - It is also settled, by various decisions that the liability, to pay demurrage to the CELEBI, was of the petitioner - the Customs authorities have acted mala fide or have contributed, in any manner, to delay in release of the consignment imported by the petitioner. It is only where a clear case of unquestionable delay, bordering on mala fides and demonstrative of unreasonable harassment of an importer, is made out, that the customs authorities can be mulcted with the liability to pay demurrage or detention charges. A reading of sub-section (1) of Section 13 of the AERA Act makes it abundantly clear that the AERA is basically concerned with fixing tariff, and not with other airport services, including actual collection of demurrage, for continued storage of the goods. The prayer, of the petitioner, for issuance of directions to the respondents, not to collect any demurrage, in respect of the goods, imported by the petitioner and in the custody of CELEBI, is bereft of merit - CELEBI is entitled, despite Regulation 6(1)(l) of the Handling of Cargo Regulations, to charge demurrage in respect of the goods consigned to its custody, and to retain custody over such goods till the demurrage is paid - demurrage, to CELEBI, would be payable by the petitioners-importers in these writ petitions, and not by the Customs authorities. Petition dismissed.
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