TMI Blog1995 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have done when the goods had landed. Even otherwise if the policy decision of capacity to pay is read along with rate prescribed, then levy of demurrage may defeat the very purpose and objective of the policy. Payment of three times or four times of demurrage of value of goods because the goods were detained at the instance of Customs Authorities does not accord with the policy decision. It is not in common interest. One of the settled principles of construction is to read a provision in such manner that it may not be self-defeating. The levy of demurrage at the prescribed rate by ignoring the Public Notice issued by the Customs Department in 1986 is apt to lead to such disastrous consequences. Appeal dismissed. - Civil Appeal 798 of 1992 - - - Dated:- 21-2-1995 - R.M. Sahai, S.P. Bharucha and N. Venkatachala, JJ. [Judgment per : R.M. Sahai, J.]. - International Airports Authority of India (hereinafter referred to as `IAAI') and the Central Warehousing Corporation, Container Freight Station, Patparganj (in brief `CWC') obtained leave of this Court under Article 136 of the Constitution of India against direction issued by the High Court of Delhi for release of importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,15,936/-. 4.In Appeal No. 4227 of 1992 the respondent imported a consignment of wool waste. It was seized by the Collector of Customs under Section 110 of the Act as on sample examination it appeared to be synthetic waste which was restricted item which could not be imported without a valid import licence. The respondent was issued notice to show cause why the goods of declared value of Rs. 1,93,237/- should not be confiscated under Section 111(d) and 111(m) of the Act and action under Section 112 be taken. The explanation of the respondent that test being based on sample drawn on 10% examination was not correct nor did it represent test of entire consignment, was not accepted. And the respondent was given an option to clear the goods on payment of Rs. 50,000/- as fine and in addition penalty of Rs.1,00,000/-. In appeal on test of 71% of consignment by the chemical examiner it was held that consignment was wool waste. Consequently the appeal was allowed. And in pursuance of the order of the Tribunal the Additional Collector of Customs passed the order dated 17th December 1990 directing release of the goods. On 24-1-1991 the Assistant Collector sent a letter to the appellant tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Detention Certificate, therefore, no demurrage could be charged for the period the proceedings were pending. The High Court relied on Trishul Impex v. Union of India [1992 (58) E.L.T. 182 (Del.) = 1991 (2) Delhi Lawyer 1]. This decision in its turn relied on an earlier decision given in Trans Asia Carpets v. Union of India, CCP No. 97/87. The decision in Trans Asia (supra) proceeded on the basis that Airports Authority being an agent of the Collector of Customs was bound by the Detention Certificate granted by the Collector of Customs. In Trishul Impex (supra) it was held that the container depot where the goods were deposited being the custodian for Customs Authorities it was bound by the certificate and was liable to release the goods without any demurrage. 7.It is the correctness of this view that has been assailed in these appeals. The learned counsel for the appellants urged that the power to levy demurrage by the IAAI is derived from the International Airports Authority Act, 1971. It could not be regulated or controlled by any other Statute. It was submitted that the Customs Authorities could neither levy demurrage nor waive it. Therefore, the Detention Certificate could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed are under the authority of law, the validity of which cannot be questioned." But that is not the issue in these appeals. The respondents did not claim any immunity from payment of demurrage because their goods were detained for no fault on their part. What was claimed and accepted was that the IAAI or CWC being a custodian of Customs Department, the intimation given by it that no demurrage should be charged from the respondent for the period mentioned in the detention certificate should have been accepted and acted upon by it. To examine the correctness of this claim it is necessary to ascertain the nature of relationship between the Customs Department and IAAI and notice certain provisions in the Act, the Public Notice issued under it, the Regulations framed by the IAAI and the rate schedule framed by it. Section 45 of the Act is reproduced below : "45. Restrictions on custody and removal of imported goods. - Save as otherwise provided in any law for the time being in(1) force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption or are warehous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Port Trust Authorities to modify its rates as it was unreasonable to charge an importer any demurrage once it was accepted that clearance was delayed on account of reasons beyond his control. But since this was only a letter of request and the Board in pursuance of it opted for graded scale, the court was of opinion that it could not be treated as a direction binding on the Port Trust. 10.It appears the Collector of Customs, New Delhi in order to overcome this difficulty and for maintaining and regulating control over goods which are unloaded at Indira Gandhi International Airport, issued Public Notice in 1986 in exercise of powers vested under Sections 8, 33, 34 and 45 of the Act read with Rules 56, 57, 58 and 59 of the Aircraft Rules, 1920. Paragraph (a) of it specifies the limits of customs area as whole of existing area constituting the Indira Gandhi International Airport, New Delhi including domestic arrival and departure area, Cargo Terminal New International Terminal Complex (`CTNITC' for short) and the entire premises of the Central Warehousing Corporation located at Gurgaon Road, New Delhi excluding IAAI's Import Cargo Warehouse (Monkey torn). Paragraph (b) approves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any reliance was placed on it by the respondents. But reference of it was found in one of the decisions rendered by the High Court and thereafter on our request, the learned counsel for the appellants supplied copies of it. Even when the appeals were listed for further hearing the learned counsel for the appellants did not urge and probably rightly that it was issued in violation of statutory power or the Collector of Customs exceeded its jurisdiction yet it appears necessary to trace the source of power of this Notice as it shall have important bearing on the legal effect of it. It purports to have been issued under Sections 8, 33, 34 and 45 of the Act and Rules 56 to 59 of the Aircraft Rules, 1920. Each paragraph of the Notice appears to have been issued to carry out the purpose of the Sections mentioned in it. For instance, Section 8 of the Act empowers the Collector to approve proper places in the airport for unloading of goods and clause (b) of it empowers the Collector to specify the limits of customs area. Paragraph (a) of the Notice achieves this purpose. Paragraphs (b) and (c) of the Notice have been issued to carry out the objective of Sections 33 and 34 of the Act and R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain the scope of expression `otherwise dealt with'. How it has to be understood in the context in which it has been used? That would obviously depend on the nature of functions of the custodian in respect of imported goods. Section 16 of the International Airports Authority Act, 1971 is the only Section which lays down the functions which are required to be performed by the IAAI. Clause (d) of sub-section (3) of Section 16 empowers the IAAI to establish warehouses at the airport for the storage or processing of goods. This would include providing for levy of charges for storing of goods, handling it, insurance etc. And on failure to pay the charges to dispose of the goods. The IAAI has in fact framed Regulations to carry out its function of warehousing. It shall be adverted to later. But in view of clause (b) of sub-section (2) of Section 45 of the Act, it cannot deal with goods placed in its custody in any manner except with the permission of the Customs Department. The function of the appellants in respect of warehousing of the goods would, thus, be covered in the expression, `otherwise dealt with' used by clause (b) of sub-section (2) of Section 45 and, therefore, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be legitimately urged that the Customs Department could not issue a Notice which would affect the right of appellants to fix charges etc. The Public Notice issued in 1986 does not interfere with rate schedule of the appellants but it only fixes free period or period during which no rent can be charged in exercise of statutory power. The International Airports Authority Act, 1971 does not preclude the Customs Department expressly or impliedly from framing any such regulations. 14.What is apparent from a study of these various Sections of the Act is that the provisions in the International Airports Authority Act, 1971 and Regulations framed thereunder cannot be read in isolation so far as the custody of imported goods placed under it by Customs Department is concerned. If sub-paragraph (vii) of the Notice is understood, as urged by the learned counsel for the appellants, as having no effect on the appellants as they are statutory bodies then it would result in rendering the Notice as dead letter or waste paper or it would create conflict between two parallel provisions in two different statutes dealing with same subject. That would not be in consonance either with principles of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals, the demurrage charges are three to four times of value of the goods. And that too when it has been found that delay was due to adjudication proceedings. It is to overcome this practical difficulty yet statutory necessity that the Customs Department issued Public Notice in 1986. The IAAI or the CWC being only custodian of the Customs Department could not ignore the detention certificate issued in exercise of this power. No such Public Notice issued in exercise of power under Section 45 of the Act arose for consideration in the earlier cases. In Aminchand Pyarelal (supra) the decision turned on validity of bye-laws framed by the Port Trust. Clause 13(b) of it provided for graded charges for the period goods were detained on account of Import Trade Control Formalities. It was held by the High Court to be ultra vires as charging demurrage for period when consignee was not at fault was unreasonable and unwarranted. It was this view of the High Court which was reversed as the bye-laws had been framed by a Port Trust whose members were representatives including a Customs Officer. The Court found after examining Section 109 of the Act that levy of graded demurrage was neither arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned for the period in the detention certificate. Therefore, once the Customs Department issued directive to release the goods without charging any ground rent in pursuance of Public Notice issued under Section 45, the appellants as bailee could not but to follow the directions which were in accordance with law. The relationship of bailor and bailee arises out of the statutory provision between the Customs Department and the IAAI or CWC and not with the consignee. It does not make the IAAI or CWC a gratuitous bailee. In any case, even if any amount is legally due, the IAAI may claim from Customs Department but not from consignee. 17.The Regulations framed by the IAAI may now be examined. The IAAI has framed International Airports Authority (Storage Processing of Goods) Regulations, 1980 in exercise of the powers conferred by sub-section (1) of Sec. 37 of the International Airports Authority Act, 1971 (43 of 1971). Clause (g) of Regulation 2 of the Regulations defines `demurrage' which has been extracted earlier. Regulation 4 empowers the IAAI to levy charges/surcharges which may include terminal charges, storage charges, handling charges, demurrage, charges to cover insurance. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period into three classes; (1) commercial, (2) unaccompanied baggage, and (3) non-commercial cargo. It allows seven calendar days from the date of landing as free period to commercial and non-commercial cargo, whereas the unaccompanied baggage is allowed 14 days. Clause (d) provides that unscheduled holidays declared by Central Government would be considered as free period. And clause (e) allows as free period the period of processing application for waiver of demurrage. It further allows three days for postal communication as free period. But Paragraph 3 provides that beyond the period mentioned in Paragraph 2, the cargo may be entitled to remission of demurrage in the circumstances mentioned therein. Paragraph 3.1 provides that wherever detention certificate is submitted from the competent authority that the detention of the goods was for no fault of consignee, then the consignee shall be entitled to demurrage on the scale mentioned in sub-paragraphs (a) to (g). Clause (a) deals with detention of goods by the Customs in connection with I.T.C. formalities. It provides for 80% waiver for first 90 days, 50% thereafter for six months and full charges thereafter. Clause (b) permits 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read along with the detention certificate issued by the Customs Department. The High Court appears to be right in taking the view that if various clauses in the Public Notice issued by the Customs Department are followed by the IAAI, then there appears no rationale for the view that sub-paragraph (vii) is not binding on them as they have framed their own rate schedule. Any other construction would result in rendering sub-paragraph (vii) as meaningless. The learned counsel for the appellants submitted that it acted on the certificate and that is why it granted waiver of 80%. But that is not what sub-paragraph (vii) requires. It specifically provides for charging no demurrage for the period mentioned in the detention certificate. Therefore, the IAAI or CWC should not have levied any charge for the period mentioned in the detention certificate. In fact in clauses (b) and (c) of the Policy, 80% waiver is allowed on account of court cases where court has passed unconditional order in favour of the consignee. The Policy further provides that, `all the waiver in terms of powers (a) above shall be subject to condition that respective authority certifying detention has not levied any fine, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing rebate as provided in the Rate Schedule of the IAAI comes to Rs. 1,15,936/-. If this amount is not paid the only remedy of the IAAI would be to dispose of the imported goods and the total value it might be able to realise could be somewhere near Rs. 17,000/-. Therefore, except for the satisfaction of auctioning the goods, the IAAI in some cases may not be able to compensate itself fully. And yet the consignee stands deprived of his goods. The construction as has been suggested by the appellants would, therefore, be unjust to small importers, and as observed self-defeating for the IAAI or CWC. To remedy from such hardship sub-paragraph (vii) was enacted by way of Public Notice. It recognises the legal consequences which must follow the adjudication by directing that no demurrage should be charged for that period as in law the decision by the Tribunal dates back to the date of detention. And by fiction of law it is assumed that the Customs Department clears the goods as it should have done when the goods had landed. Even otherwise if the policy decision of capacity to pay is read along with rate prescribed, then levy of demurrage may defeat the very purpose and objective of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Airport Authority of India (the Authority), to release the goods imported by the first respondents without charging any demurrage thereon for the periods for which detention certificates had been issued by the Collector of Customs. 24.The first respondents had imported goods by air and filed Bills of Entry with the Customs Authorities at the Delhi airport, which is the property of the Authority. The Customs Authorities detained the goods. Ultimately, they were released and the Collector of Customs issued detention certificates for the periods of the detentions. The first respondents thereupon applied to the Authority for waiver of demurrage charges for the periods covered by the detention certificates. The first respondents calculated demurrage, granting for these periods waiver on a graded scale. The first respondents preferred writ petitions before the Delhi High Court, impleading the Union of India and the Authority, challenging the requirement to pay demurrage for the periods for which the detention certificates had been issued. The High Court took note of the decision of an earlier Division Bench in the case of M/s. Trishul Impex v. Union of India [1992 (58) E.L.T. 182 (Del. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld pay the demurrage charges for that period to the authority holding the goods and upon such payment the authority should release the goods to the importer. The writ petitions filed by the first respondents before the Delhi High Court impleaded the Union of India and the Authority. The High Court did not direct the Union of India to pay to the Authority demurrage charges for the periods covered by the detention certificates, as had been done in the case of M/s.Trishul Impex, but directed the Authority to release the goods without payment of demurrage charges. 28.In Trustees of the Port of Madras v. M/s. Aminchand Pyarelal Ors., (1976) 1 S.C.R. 721, a detention certificate was issued by the Customs Authorities stating that the detention of imported goods for the period 24th April, 1963, to 21st August, 1964, was due to no fault or negligence on the part of the importer. Acting upon the detention certificate, the appellants, the Trustees of the Port of Madras (the Board), waived demurrage for the period covered thereby and charged Rs. 1963/-, instead of Rs. 3,20,951/-, by way of demurrage. The importer paid Rs. 1963/- and cleared the goods. In January, 1965, the Board wrote to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of the free days. After demurrage begins to accrue no allowance is made for Sundays or Board's holidays. The free days are fixed by the Board from time to time". Scale `A' of Chapter IV prescribed conditions governing `free days', the normal rule being that three working days in the case of foreign cargo, excluding Sundays and the Board's holidays, were treated as free after complete discharge of a vessel's cargo or the date when the last package was put overside. Free periods also included periods during which goods were detained by the Customs Authorities for a chemical test, which period was certified by them to be not attributable to any fault or negligence on the part of importers. Rule 13(b) read thus : where goods are detained by the Collector of Customs, on"(b) account of Import Trade Control formalities or for compliance of formalities prescribed under the Drug's Act and certified by the Collector of Customs to be not attributable to any fault or negligence on the part of Importers, demurrage shall be recovered for this period at the rate of 30 per cent of the normal rate, i.e. the rate at which the goods would incur demurrage had there been no detention by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant Board had framed scales of rates of demurrage of goods under its statute, which was similar in its terms to the statute that covered the Port of Madras. The Board claimed demurrage and, as the amount thereof was not paid, the goods in respect of which the claim was made were sold by public auction. The importer filed a suit for the recovery of the value of the goods; the Board denied the liability and pleaded that it was entitled to collect demurrage and, since the importer had failed to pay the demurrage, it was entitled to sell the goods by auction. The City Civil Court at Bombay decreed the suit and the High Court in appeal affirmed the decree. The Board appealed to this Court. This Court said that under its statute it was the duty of the Board to recover rates. It had a lien on the goods and the right to seize and detain them until rates were fully paid; also, to sell the goods to enable recovery. The contention on behalf of the importer was that it was in no way responsible for the delay in clearing the goods as the goods had been detained under the Import Trade Control Regulations. This Court said : "It is no doubt true that before clearance is given by the Import Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely) under law and to show concession as regards demurrage charges in certain specified cases is recognised by the Court in the Trustees of the Port of Madras v. M/s. Aminchand Pyarelal Others, (1976) 1 S.C.R. 721 and in the Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co., (1977) 3 S.C.R. 343. These decisions are no doubt based on the relevant laws which were in force at the material time. But the decisions are still relevant insofar as cases arising under the Act because the Act also contains provisions more or less similar to the statutory provisions considered in the said decisions. Demurrage charges are levied in order to ensure quick clearance of the cargo from the harbour. They are laways fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases. ********** It is, however, to be observed that before compelling the Customs Authorities to issue a Detention Certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of demurrage that the Board would otherwise have charged. 32.The International Airports Authority Act, 1971, constitutes, under the provisions of section 3(1), the International Airports Authority of India (the Authority). By reason of section 3(2) the Authority is a body corporate having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and to sue and be sued by the aforesaid name. It is, by reason of section 3(3), to consist of a Chairman, the Director General of Civil Aviation and not less than six and not more than thirteen members to be appointed by the Central Government, whose names are required to be notified in the Official Gazette. By reason of section 12 the Central Government is empowered to vest in the Authority, by notification in the Official Gazette, all properties and other assets vested in it for the purposes of airports. Section 14 empowers the Authority to enter into and perform any contract necessary for the discharge of its functions. Section 16(1) states that it shall be the function of the Authority to manage airports efficiently. Section 16(2) makes it the duty of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar to the provisions of the Major Port Trusts Act, 1963, and the Port Trusts Acts that preceded it. The regulations framed by the Authority in regard to the storage or processing of imported goods and the policy in regard to the waiver of demurrage are also similar to those of the Boards of Trustees of the ports. The ratio of the judgments of this Court in the cases of M/s. Aminchand Pyarelal, Indian Goods Supplying Co. and Jain Hind Oil Mills Co. applies as much to the Authority as it does to the Boards of Trustees of the ports. 35.It was submitted by learned counsel for the first respondents that the judgments in the cases of M/s. Aminchand Pyarelal, Indian Goods Supplying Co. and Jain Hind Oil Mills Company decided only that an importer had to pay demurrage though the delay in clearing his goods was not due to his default or negligence. It was submitted that the contention in these appeals was different, namely, that the Authority was the custodian of the Customs Authorities and was obliged, by reason of the detention certificates issued by the Customs Authorities, not to charge demurrage for the periods covered by the detention certificates. The judgments aforementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns issued earlier would be deemed to have been modified to the extent mentioned in it. 37.The said Customs Public Notice has not been referred to in the pleadings before the High Court or this Court. It was not brought to the notice of the High Court. 38.As would appear from what has been stated above, the Authority's policy for the waiver of demurrage still covers Customs Detention Certificates and the Authority has levied demurrage for periods covered by Customs Detention Certificates even after the issuance of the said Custom's Public Notice. In the case of M/s. Trishul Impex referred to above the issue was whether demurrage charges for the period covered by a detention certificate should be borne by the importer or by the Customs Authorities and the Customs Authorities did not rely upon the said Custom's Public Notice to contend that the Authority could not charge demurrage for the period covered by a detention certificate and were ordered to make the payment. It appears, therefore, that the said Customs Public Notice has not been acted upon by the Authority and by the Customs Authorities. 39.In any event, the provisions of the Customs Act under which the said Customs Pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance of sea-ports and airports, the facilities to be provided thereat and the charges to be recovered therefor. An importer must land the imported goods at a sea-port or airport. He can clear them only after completion of Customs formalities. For this purpose, the sea-ports and airports are approved and provide storage facilities and Customs Officers are accommodated therein to facilitate clearance. For the occupation by the imported goods of space in the sea-port or airport, the Board or the Authority which is its proprietor is entitled to charge the importer. That until Customs clearance, the Board or the Authority may not permit the importer to remove his goods from its premises does not imply that it may not charge the importer for the space his goods have occupied until their clearance. 42.What is stated in the quoted clause of the said Customs Public Notice would be effective against the Authority only if it were shown that the Authority had, expressly or impliedly, consented to such arrangement; that is not even pleaded. 43.It cannot be gainsaid that, by reason of unjustified detention of his goods by the Customs Authorities, the importer is put to loss by having to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise in that regard, if by such notice or otherwise directs such custodians not to collect custody charges from the consignees of such goods - "the Cargo", because of detention certificates issued by him or his delegatee, will he be acting within the powers conferred upon him under the Act, its Rules or its Regulations, and, if not, can such direction be enforced against the custodians? 48.Divergent views are expressed on the said question by my revered brethren R.M. Sahai and S.P. Bharucha, JJ. in their separate judgments, the drafts of which I had the advantage of going through. The said question being of considerable importance I propose to consider it independently, express my view thereon and decide the present appeals accordingly. 49.Civil Appeal No. 798 of 1992 arises out of the judgment dated 24-9-1991 of the High Court of Delhi in Civil Writ No. 554 of 1991, by which the IAAI was directed to release the goods to respondent-1 here (petitioner in the Writ Petition) without collecting any demurrage charges for the period for which the detention certificate had been issued by the Assistant Collector of Customs. Such direction was issued by the High Court because of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the High Court in giving the directions to the IAAI, in its judgments under appeals, not to collect demurrage charges in respect of the periods covered by the detention certificates issued by the Customs Authorities. As has already been pointed out, a Division Bench of the same Court had, in the case, expressed its view that when the Container Corporation concerned there, was the custodian on behalf of the Customs Authorities under Section 45(1) of the Act, it was under an obligation to release the goods in its custody without collecting demurrage charges in respect of the period covered by the detention certificate issued by the Customs Authorities. In M/s. Grand Slam International (supra), which is another decision of the Division Bench of the same Court relied upon by it in its judgment in C.A. No. 3971 of 1992, the view taken is that the goods for which demurrage charges were levied by the custodian, it was solely on account of the fault of the Customs Authorities the liability for the same would be of those Customs Authorities and not of the consignee. But, when once the Customs authorities issued the detention certificate in respect of such period of detention of goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgo to be stored in its CTNITC by the said clause (d) requires IAAI to comply with condition (vii) imposed against it thereunder, thus : In case of goods detained/seized etc. by Customs, the"(vii) warehousing/storage charges shall be calculated by M/s. IAAI for the period due minus the charges for the period of detention at the instance of Customs as certified by the Assistant Collector of Customs." No doubt, as to what obligations should the custodian - the IAAI approved by the Collector of Customs under sub-section (1) of Section 45 by clause (d) of the said Public Notice, perform, are specified in sub-section (2) thereof which reads : Restrictions on custody and removal of imported goods."45. - ..................(1) The person having custody of any imported goods in a customs(2) area, whether under the provisions of sub-section (1) or under any law for the time being in force, — shall keep a record of such goods and send a copy thereof to(a) the proper officer; shall not permit such goods to be removed from the customs(b) area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer." 56.But, the said sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient portion of the goods as the warehouse-keeper may select." 59.When sub-section (1) above, does not relieve the owner of any warehoused goods to pay to the warehouse-keeper rent and warehouse charges at the rates fixed under any law for the time being in force or where no rates are so fixed, at such rates as may be fixed by the Collector of Customs, although such goods were kept by the warehouse-keeper for and on behalf of the Customs Department and again when sub-section (2) enables the warehouse-keeper even to sell the warehouse goods with the permission of the proper officer for unpaid rent or warehouse charges, it is difficult to think that there could be any provision in the Act or the Rules or the Regulations made thereunder which confers on the Collector of Customs power to direct the release of the goods kept in the custody, as custodian of the Customs Department without demanding payment of keeping charges from the consignee of goods because of detention certificates issued in that regard by the Customs authorities, inasmuch as, the said provision shows the legislative intendment to be to the contrary. 60.In fact, when the IAAI in exercise of its powers confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erable support from the decisions of this Court, where this Court while dealing with the liability of consignees of imported goods or cargo to pay demurrage charges levied in respect of them according to scales of charges prescribed under Rules or Regulations made under respective Ports Acts because of their non-clearance from Customs areas in Ports, notwithstanding the fact that concerned Port Authority was the approved Custodian under the Customs Act, 1962 and the fact that Customs Collector or his delegatee had issued detention certificates which made it clear that the goods were detained for no fault of the consignee and the goods shall be released without collection of demurrage charges, they shall be adverted to presently. 62.Trustees of the Port of Madras v. M/s. Aminchand Pyarelal Ors. [(1976) 1 SCR 721] is the first of such decisions of this Court. That was a case, where imported goods of M/s. Aminchand Pyarelal — `the importer' were not cleared from the customs area of the Port of Madras by the Customs Authorities before the expiry of free days. The goods, therefore, continued to be in the custody of Trustees of the Port of Madras - "the Board", as approved custodian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the statute could never be imposed as long as goods were detained for the purpose of Import Trade Control Regulations. 64.Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills Co. Ors. [1987 (30) E.L.T. 633 (SC) = (1987) 1 SCR 932] is the third of such decisions of this Court. There, the provisions of the Major Port Trust Act, 1963, which were under examination of this Court having been found to be in pari materia with the provisions of the Ports Act considered by this Court in M/s. Aminchand Pyare Lal (supra) and Indian Goods Supplying Co. (supra), by following the decisions rendered therein, it was held thus : "The power of a Port Trust to fix rates of demurrage and to recover the same from an importer or exporter (although the question of an exporter paying demurrage arises rarely) under law and to show concession as regards demurrage charges in certain specified cases is recognised by the Court in the Trustees of the Port of Madras v. M/s. Aminchand Pyarelal Others, (1976) 1 S.C.R. 721 and in the Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co., (1977) 3 S.C.R. 343. These decisions are no doubt based on the relevant laws which were in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Warehousing Corporation created under Warehousing Corporation Act, 1962 stands in the same footing as that of the IAAI created under the International Airports Authority Act, 1971 in the matter of keeping of goods as custodians on behalf of the Customs Department and the entitlement of both of them under the respective Acts, Rules and Regulations to levy and collect demurrage charges from the owners or consignees of such goods, not being different, the view I have taken on the entitlement of IAAI to levy and collect charges or demurrage charges for keeping goods by it as custodian on behalf of the Customs Department, equally holds good for Central Warehousing Corporation. 68.Therefore, my answer to the question considered by me is in the negative i.e. the Collector of Customs is empowered under sub-section (1) of section 45 of the Customs Act, 1962 to approve persons to be custodians of imported goods in customs areas until they are cleared as provided for therein, while approving the International Airports Authority of India to be the custodian of such imported goods in the customs area of Indira Gandhi International Airport, New Delhi and Central Warehousing Corporation ..... 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