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2021 (4) TMI 135 - HC - CustomsSeeking provisional release of goods - waiver of demurrage, rent and detention charges - whether the direction given by the customs authority waiving the warehouse rent is valid or not? - customs cargo services provider or not - HELD THAT:- Clause 2(1)(b) of the Handling of Cargo in Customs Areas Regulations, 2009, defines the “Customs Cargo Services provider” as meaning any person responsible for receipt, storage, deliver, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of the Act and persons as referred to in sub-section (2) of Section 141 of the said Act - In the case on hand, the goods imported were very much in the custody of the warehousing entity. Therefore, even a plain meaning of the aforesaid provision would clearly lead one to the conclusion that Al-Hilai Storage, Tuticorin is a customs cargo services provider. There are no hesitation to reject the initial contention urged by the learned senior counsel for warehouse entity. This is because the said entity had not only received and stored goods but eventually delivered the same to the importer in the months of January and November 2012. Therefore, it would be rather futile to claim that the said entity falls out side the statutory definition of customs cargo services provider. The goods could not released only for the reason that they were detained by the customs authority. Clause 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 states that the customs cargo services provider shall not charge any rent or demurrage on the goods detained by the customs authorities - the importer cannot be fastened with any liability whatsoever. The statutory scheme is very clear. Whether the warehousing entity should be left utterly remediless? - HELD THAT:- The answer will have to be in the negative. The warehousing entity cannot be left remediless. The time-line or the sequence of events would speak for themselves. The goods had arrived way back in November 2010. The goods are edible items/perishable commodities. It is of course open to the customs authority to entertain reasonable suspicion and detain the goods, but then, this cannot be stretched to an unreasonable period - A warehousing entity as a part of its license obligations cannot charge rent/demurrage on the detained goods, if a waiver certificate is issued by the customs authority. But Clause 6(1)(l) of the Regulations will not be applicable for the period beyond a reasonable time-limit. Whoever is responsible for the resulting state of affairs must bear the burden. It can be the importer or the customs authority. Of course, if there is any delay due to Court, the maxim 'actus curiae neminem gravabit' will become applicable. Whether the warehousing entity has to be compensated and if so, by whom and what will be quantum of damages are issues that will have to be determined in the lights of the facts obtaining in each case. If the Court cannot undertake the exercise of confiscation, it can mandate the customs authorities to do it. A claim petition is to be submitted for compensation before the Chief Commissioner of Customs (Preventive), No.1 - petition closed.
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