Page 209 - ELT_1st September 2020_Vol 373_Part 5

2020 ] QATAR AIRWAYS v. COMMISSIONER OF CUSTOMS (AIR), CHENNAI 647

the High Court erred in holding that the law settled by this Court in a cate-
na of judgments referred to above was no longer applicable in view of the
2009 Regulations. Reliance placed by the Union of India on Section 128 of
the Major Port Trusts Act is totally misplaced. This provision only deals
with the right of the Central Government to collect customs duties. It does
not deal with the rights of the Port Trust to collect rates including
demurrage.
36. The next issue which arises is whether any direction could be issued to
the DRI/Customs Authorities to pay the demurrage charges to the Port
Trust and the detention charges to the shipping line.
37. We have already referred to a number of decisions wherein the law
has been clearly laid down that even if the importer is not at fault, it is the
importer alone who is liable to pay the demurrage charges. As far as deten-
tion charges are concerned, this is a private contract between the importer
and the carrier i.e. shipping line. The DRI/Customs Authorities can be di-
rected to pay the demurrage/detention charges only when it has proved
that the action of the DRI/Customs Authorities is absolutely mala fide or is
such a gross abuse of power that the officials of the DRI/Customs should
be asked to compensate the importer for the extra burden which he has to
bear. Even if an importer feels that it has been unjustly dealt with, it must
clear the goods by paying the charges due and then claim reimbursement
from the Customs Authority.
*Handling of Cargo in Customs Areas Regulation, 2009.
78. The Hon’ble Supreme Court while giving the above decision has
however not considered the provisions of the Airport Authority of India (Storage
and Processing of Cargo, Courier and Express Goods and Postal Mail) Regula-
tions, 2003. Perhaps the Hon’ble Supreme Court may have come to a different
conclusion if it had considered the 2003 Regulation.
79. Para 34 of the above decision has practically rendered Regulation 6
of the Handling of Cargo in Customs Area Regulations, 2009 otiose by holding
that the said Regulation framed under the Customs Act was in the nature of sub-
ordinate legislation and there can be no manner of doubt that such subordinate
legislation framed by the Board under the Customs Act cannot in any manner
affect the power and authority of the Major Port Trust statutorily vested in it.
80. The Court thus followed its earlier decision in International Airport
Authority of India v. Grand Slam International [1995 (77) E.L.T. 753 (S.C.)] and Trus-
tees of Port of Madras v. Nagavedu Lungi & Co. [1995 (80) E.L.T. 241 (S.C.)].
81. If one were to go by the decision of the Hon’ble Supreme Court in
Mumbai Port Trust (cited supra) strictly in the question of issue of “Detention
Certificate” which was in vogue prior to Handling of Cargo in Customs Area
Regulations, 2009 is of no significance any longer. However, that interpretation
would militate in the light of Regulation 6 of the Airport Authority of India
(Storage and Processing of Cargo, Courier and Express Goods and Postal Mail)
Regulations, 2003. Therefore, this Court is not inclined to hold that such certifi-
cate can be issued at all.
82. The authorities under the Airport Authority Act, 1994 require certif-
icate from the Customs for granting waiver from payment of demurrage under
the policy framed under Regulation 6 of the Airport Authority of India (Storage
and Processing of Cargo, Courier and Express Goods and Postal Mail) Regula-
tions, 2003.
EXCISE LAW TIMES  1st September 2020  209