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TMI Blog1991 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ch Airlines and the five by Air India. 3. To understand the issues involved in the present writ petitions it will be appropriate to refer to facts only in one of the petitions (C.W. : 1197/89). The petitioner here booked 26 packages direct from Singapore to Kathmandu. There were no direct flights from Singapore to Kathmandu and the goods had to first land at Delhi from Singapore and then transhipped to Kathmandu. Petitioner has said that these packages contained his personal effects as unaccompanied baggage. This consignment arrived at New Delhi by K.L.M. Royal Dutch Airlines flight on 11 July 1987. The customs authorities acting under the provisions of the Customs Act, 1962, effected seizure of the consignment on 14 July 1987 and prepared a panchnama on a belief that importation was improper and goods liable to confiscation under Section 117 of the Act. The goods were warehoused with the first respondent whose warehouse had been declared as customs warehouse. Adjudication proceedings then were initiated under the Customs Act. A show cause notice was issued on 7 December 1987 alleging violation of the provisions of the Act. The petitioner took the defence that his case was not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought over by Air India for transhipment to Nepal, but those which had come to New Delhi by the third respondent were not released. This led to the filing of the present writ petition. 5. The petitioner has contended that action of the first respondent in not releasing the goods and insisting on claiming of demurrage/storage charges is illegal as the goods were never handed over by it to the first respondent and it was the customs authorities which had done so and once the customs authorities having issued a detention certificate, the demurrage charges, if any, should have been waived completely and in any case the petitioner was not liable to pay any charges. The petitioner said that goods were his personal baggage and no demurrage charges could be leviable and that the first respondent was bound by the Public Notice No. 29/86 issued by the second respondent in the exercise of his powers conferred by the Customs Act. The second respondent did not file any return. First respondent said that it was a body corporate constituted under the International Airport Authority Act, 1971, to manage international airports whereat international air transport services were operated. By virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition it is not necessary to refer to the same. 7. The questions that arise for consideration are : How the first respondent has been declared as a customs warehouse and under what provision, and whether the first respondent is bound to waive demurrage charges on issue of detention certificate by the customs authorities for the period when the goods were detained by the first respondent at the instance of the customs authorities, and if in any case the first respondent is entitled to its charges, who is to pay the same? Then if the first respondent could charge demurrage when the goods were baggage and which of the Public Notices No. 29/86 or 30/86 is applicable and to what extent? It is not necessary to examine the provisions of the Treaty between Nepal and India as in our view in the present petition nothing turns on that as the adjudication proceedings under the Customs Act have already been dropped and goods allowed to be taken to Nepal under proper customs escort. 8. In support of his submission Mr. Saini, learned counsel for the petitioner, referred to two Bench decisions of this Court in Trishul Impex v. Union of India, 1991 Rajdhani Law Reporter 213, and in Raghubir S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Customs Authorities under the Customs Act in the case of baggage. If it was commercial cargo then two decisions of the Supreme Court in (1) The Trustees of the Port of Madras v. Aminchand Pyarelal and Others, AIR 1975 Supreme Court 1935, and (2) The Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co., AIR 1977 Supreme Court 1622, and of the Bombay High Court in (3) Gansons Ltd. v. Union of India, 1990 (49) E.L.T. 501, would certainly appear to support the case of the first respondent. These decisions were rendered under the Madras Port Trust" Act 1905 and Bombay Port Trust Act, 1879. In Gaurisons and Another v. International Airport Authority of India and Another, 1988 (34) E.L.T. 550 (Del.), Bahri, J. took the view that the Airport Authority was bound to grant waiver of demurrage charges to the extent mentioned in the directives even though in that case goods were released by the customs authorities after holding adjudication proceedings under the Customs Act, 1962, and issuing a detention certificate for the period for which the goods were not cleared. The court observed that the Airport Authority was independent statutory body constituted to manage the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57 or a private warehouse licensed under Section 58 of the Act. The term "customs warehouse' has been defined nowhere. "Cargo" has also not been defined, but under Clause (b) of Regulation 2 of the International Airports Authority of India Regulations, cargo means any property carried on an aircraft other than mail, stores and baggages. For our purpose this definition of cargo is quite relevant. Under Section 8 of the Act, the Collector of Customs is to specify limits of any customs area and may also approve proper places in any customs port or customs airport or coastal port for the unloading and loading of goods or for any class of goods. Chapter VII of the Act containing Sections 44 to 51 deals with clearance of imported goods and export goods. Section 44 says that the provisions of this Chapter shall not apply to baggage and the goods imported or to be exported by post. Section 45 which deals with the restrictions on custody and removal of imported goods will, therefore, be not applicable in the case of baggage. Chapter VIII which deals with goods in transit and contains Sections 52 to 56 again does not apply in the case of baggage. Chapter IX which contains provisions of wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baggage will be cargo and further that in the case of accompanying baggage there will be a baggage tag but in the case of unaccompanied baggage there would be Airway Bill. He said with reference to the Annexure to the Public Notice 29/86 that it requires particulars of baggage tag and not of Airway Bill and, therefore, this public notice would be applicable only in the case of accompanying baggage. This distinction does not appear to us to be of any substance. Baggage includes unaccompanied baggage. In this view of ours we find support from a Bench decision of this Court in Ashok Dhawan's case. The court held that the Airport Authority, i.e., respondent No. 1, was not entitled to charge demurrage on unaccompanied baggage in terms of the Regulations issued by it. There is a clear distinction between these two Public Notices 29/86 and 30/86. While Public Notice 29/86 applies in the case of detained/mishandled baggage and its custody and clearance at the port. Public Notice 30/86 applies to the unloading and loading, custody of imported/export cargo at the Airport. Public Notice 30/86 is certainly not applicable which had expressly been shown to have been issued under Sections 8/33/34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rforms functions enjoined upon it under this public notice. If the first respondent is bound by all these directives contained in the public notice, we fail to see how it is not so bound when public notice provided that charges for the period the goods are detained at the instance of the customs should not be recovered. It is not that public notice has not been issued under any authority. Since the goods in the present case are baggage and the regulations of the first respondent do not provide for charge of any demurrage for storage of the baggage, this argument that first respondent is not bound by clause (vii) of the public notice also otherwise fails. If henceforth the first respondent amends its regulations to include baggage as well, there will be apparent conflict between the Public Notice 29/86 and the Regulations, but that is something which we are not at the moment called upon to decide. 14. Detention certificate is to be issued by the customs authorities is nowhere mentioned in the Act. The clearance of the goods, however, cannot be made unless so authorised by the proper officer under the Act. At times proper officer does not authorise clearance of the goods pending co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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