2001 (6) TMI 67 - HC - Customs

Issues Involved:
1. Entitlement of custodian to claim demurrage charges.
2. Period for which demurrage charges can be claimed.
3. Physical custody of goods and demurrage applicability.
4. Protection of goods and claim for damages.
5. Interpretation of "customs area" under the Customs Act.

Detailed Analysis:

1. Entitlement of custodian to claim demurrage charges:
The primary issue was whether a custodian appointed under Section 45 of the Customs Act, 1962, is entitled to claim demurrage charges only for the period during which the imported goods are in their actual physical custody or from the date of unloading in a customs area. The court held that the custodian is entitled to claim demurrage charges from the date of unloading of the imported goods in a customs area. This conclusion was based on the statutory mandate in Section 45(1) of the Customs Act, which states that all imported goods unloaded in a customs area shall remain in the custody of the custodian until cleared for home consumption, warehoused, or transshipped.

2. Period for which demurrage charges can be claimed:
The petitioner argued that demurrage charges should only be applicable for the period during which the goods were in the actual physical custody of the custodian and after excluding seven days as per Circular No. 2, dated 22-9-1989. However, the court rejected this contention, stating that the custodian had the custody of the imported goods immediately after unloading at the Hyderabad airport, even if the goods were not physically handed over to the custodian or kept in their godowns. The court emphasized that the statutory mandate under Section 45(1) of the Customs Act does not admit any other interpretation.

3. Physical custody of goods and demurrage applicability:
The petitioner contended that the goods were handed over to the custodian only on 12/13th July 1994, and hence demurrage charges should not be applicable before these dates. The court, however, held that the custodian had the custody of the goods from the date of unloading at the airport, as per the statutory mandate. The court also referred to the norms evolved in a meeting held on 7-2-1989, which allowed for heavy packages to be customs examined and delivered at the airport itself, without shifting to the custodian's godowns.

4. Protection of goods and claim for damages:
The petitioner argued that the goods were lying in the open without protection and were damaged due to exposure to sun and rain. The court noted that there was no pleading or proof regarding the damage to the goods in the affidavit filed in support of the writ petition. The court stated that even if the goods were damaged due to negligence, the petitioner would have to seek damages from the Indian Airlines or the custodian in a competent Civil Court. This issue was not within the scope of the present case.

5. Interpretation of "customs area" under the Customs Act:
The petitioner argued that the custodian could not claim demurrage charges for goods not stored in their premises at Begumpet, Hyderabad, as per Public Notice No. 151/86. The court held that the "customs area" as defined under Section 2(11) of the Customs Act includes the entire area of the customs station, not just the custodian's premises. The court rejected the contention that the custodian's premises alone constituted the customs area, stating that such an interpretation would restrict the statutory definition and was impermissible.

Conclusion:
The writ petition was dismissed, and the court upheld the custodian's right to claim demurrage charges from the date of unloading of the imported goods in the customs area. The court found no merit in the petitioner's contentions regarding the period for which demurrage charges could be claimed, the protection of goods, and the interpretation of the customs area.

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