TMI Blog2001 (6) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... to heat shrink sleeves. The petitioner has technical and financial collaboration with RXS Schrumpftechnik, Garnituren Gmbh, Germany. The petitioner company in the course of its business imports profiles for heat shrink sleeves from the said collaborator. Accordingly, the petitioner company in the course of business had imported several consignments under five Bills of Entry Nos. 058 3389 8465; 058 3389 8480; 058 3433 2045; 058 3389 0496 and 058 3389 8056 during the months of April to June, 1994. According to the petitioner company on importation, these goods were detained by the Indian Airlines, the 3rd respondent herein on the ground that they were too large and difficult to handle. It appears that the petitioner company did not clear the goods despite repeated reminders from the Indian Airlines. Under those circumstances the Cargo Manager of the Indian Airlines issued a letter dated 20-7-1994 to the petitioner company. It reads : "INDIAN AIRLINES Date : 20-7-1994 Our Reference Hyd : CGO : 16.473 To The Managing Director, XL Telecom Limited, 335, Chandralok. Secunderabad Dear Sir Sub : Consignments from Ger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Cargo Air Terminal Complex, Hyderabad (for short "CATCH") is entitled to collect demurrages only for the period during which the goods were in the actual physical custody of the 2nd respondent and that too after exclusion of seven days in accordance with the Circular No. 2, dated 22-9-1989 issued by the CATCH itself. Thereafterwards, it is stated that the petitioner company submitted fifteen applications for clearance of import cargo on 3rd August, 1994. In the said application in Column No. 3, the date of landing of cargo at CATCH, the petitioner company has mentioned the dates as "12th and 13th July, 1994". The 2nd respondent has scored off the date of the landing of cargo at CATCH, as filled by the petitioner and has charged demurrage for the period during which the imported goods were not in the actual physical custody of the 2nd respondent. The petitioner company addressed a letter dated 2-8-1994 to the Deputy Collector of Customs in the Office of the Collector of Customs, Hyderabad, the 1st respondent herein to direct the 2nd respondent to charge demurrage only from the day on which the goods landed in the godowns of the 2nd respondent and that the petitioner reliably under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd respondent Corporation delivers the consignment and till such time the consignments are kept in the custody of the 2nd respondent as per Circular No. 2, dated 22-9-1989 issued by CATCH. If the consignor files a Bill of Entry and pays the customs duty within a period of seven days from the date of landing of the cargo no demurrages are leviable by the 2nd respondent corporation. But, in the event if the Bill of Entry is not filed within seven days in accordance with the said Circular, the 2nd respondent is entitled under law to levy and collect demurrages. As per the understanding reached between the Indian Airlines, the Department of Customs and the 2nd respondent, in case of odd and big size goods, the person who imports them alone is responsible for transportation of the same. Once the consignment lands at Hyderabad Airport from then onwards, it is the 2nd respondent under whose custody the consignment is kept and if the said consignment is not lifted in accordance with the Circular dated 22-9-1989, the importer has to pay demurrages from the date of unloading of the goods at the airport. Lastly, it is stated that the 2nd respondent is not aware of the letter of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution. The learned counsel would maintain that the 2nd respondent as custodian of CATCH is entitled to collect demurrages only for the period during which the imported goods were physically in the custody of the 2nd respondent and that too after exclusion of seven days in accordance with the guidelines contained in Circular No. 2, dated 22-9-1989 issued by the CATCH itself. Adverting to the facts of this case, the learned counsel would point out that the consignments landed in the Hyderabad Airport during April, May and June, 1994, whereas those goods were handed over to the 2nd respondent only on 12/13th July, 1994 by the Indian Airlines and therefore the demand made by the 2nd respondent to pay the demurrage charges right from the date of landing at the airport i.e., even before the goods were transported by the Indian Airlines and handed over to the 2nd respondent is totally unjustified, illegal. The alternative contention of Shri S. Ravi, learned counsel is that when the consignments landed in the months of April, May and June, 1994 at the Hyderabad Airport, those goods were lying in the open space without any protection at the mercy of sun and rain which was extremely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Hyderabad Collectorate, under Section 45(1) of the Act is entitled to claim the demurrage charges right from the date of landing of the consignments at the Hyderabad Airport or it is entitled to claim damages only with effect from 12/13th July, 1994, the days on which the physical possession of the imported goods were handed over to the 2nd respondent by the authorities of the Indian Airlines. In deciding this question, it is relevant at the threshold to notice certain relevant statutory provisions. Section 45 of the Customs Act reads : "45. Restrictions on custody and removal of imported goods. - (1) Save as otherwise provided in any law for the time being in force, all imported goods, unloaded in a customs area shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. 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, — (a) shall keep a record of such goods and send a copy thereof t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian. In order to hold that a custodian appointed under Section 45(1) of the Act should be the custodian of the imported goods, three conditions should co-exist. The 1st condition is that the goods in question should be imported goods, the 2nd condition is that such imported goods are unloaded and the 3rd condition is that such unloading takes place in a customs area. If all these three conditions co-exist, then, by force of statutory mandate contained in sub-section (1) of Section 45 of the Act, the imported goods should remain in the custody of the custodian only. If this legal position is kept in our mind and look at the facts of this case, there will not be any difficulty or legal impediment for holding that the fifteen consignments landed in Hyderabad Airport during the months of April, May and June, 1994, were in the custody of the 2nd respondent immediately after unloading of the same at the Hyderabad airport. There is no controversy between the parties that the goods in question are imported goods; the goods were unloaded at the Hyderabad airport which is a "customs area" as defined under sub-section (11) of Section 2 of the Act. Before us, the validity of the statutory mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were not in physical custody of the 2nd respondent in its godowns is illegal. It is also stated in the counter-affidavit filed by the 2nd respondent that it has been the practice that all large and odd sized imported goods are always kept at the cargo section of the airport itself in terms of clause (3) of the norms evolved in the meeting held on 7-2-1989, and this factual assertion made in the counter-affidavit is not denied by the petitioner by filing any reply affidavit. In that view of the matter, we unhesitatingly reject the 1st contention of the learned counsel for the petitioner. 10.This takes us to the second alternative contention of the learned counsel for the petitioner. In the entire affidavit filed in support of the writ petition, not a word is said regarding the factual allegations put forth by the learned counsel for the petitioner at the time of argument that the imported goods were lying in the open without any protection and at the mercy of sun and rain and on account of the same, the goods were damaged. However, the petitioner in his letter dated 29-7-1994 addressed to the General Manager of the 2nd respondent has stated - "The result has been that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31st Dec., 86 It is notified for the information of the Trade and General Public that in pursuance of the powers vested under Section 45(1) of the Customs Act, 1962 (52 of 1962). I, R. Gopalnathan, Collector of Customs and Central Excise, Hyderabad, hereby approve the M/s. A.P. State Trading Corporation Ltd. (as the Terminal Operator of the Cargo Air Terminal Complex, presently located at 1-10-1 to 8, Main Road, Begumpet, Hyderabad), Hyderabad - 500 004 as Custodian of all imported goods landed at Airport, Hyderabad until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII of the Customs Act, 1962. This Public Notice comes into force with immediate effect. //Attested// Sd/- (T. Jagapathi Rao) Asstt. Collector (Customs) Sd/- (R. Gopinathan) Collector (Issued from File C. No. VIII/1/9/81-Customs)" 13.It is true that in the above public notice, the location of the 2nd respondent is shown to be at the premises bearing No. 1-10-1 to 8, Main Road, Begumpet, Hyderabad - 500 004. But, that space in which the office and the godowns of the 2nd respondent are located cannot be equated to "cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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