SHAHEEN AIRPORT SERVICES (SAPS) THROUGH GENERAL MANAGER, PESHAWAR vs YASIR TRADERS, ARMS AND AMMUNITION DEALER

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SHAHEEN AIRPORT SERVICES (SAPS) THROUGH GENERAL MANAGER, PESHAWAR VS YASIR TRADERS, ARMS AND AMMUNITION DEALERS AND IMPORTERS, PESHAWAR. Ss. 14A & 156(1)(7a)---Customs Rules, 2001, R. 556---Import of hunting carbines---Goods declarations filed---Seizure before assessment---Issuance of delay and detention certificate---Refusal by terminal operator to honor delay and detention certificates---Legality---Powers and obligations of terminal or port operator---Scope---Demurrage and detention charges, refund and waiver of---Whether the importer was entitled to any relaxation, concession or complete waiver of the detention and demurrage charges, plea of---Briefly, the respondents, importers of hunting carbines, filed goods declarations for clearance of their consignments, which were initially seized by the Directorate of Intelligence and Investigation Customs before assessment by the Collectorate. Following proceedings before the High Court, the seized goods were ordered to be handed over for processing, resulting first in confiscation by an order-in-original, then its setting aside by the Collector (Appeals) with remand, and eventual assessment and clearance of the consignments. In parallel, additional consignments imported by another respondent were subjected to adjudication regarding non-attachment of financial instruments, leading initially to a conditional release with penalty, which was later set aside in appeal and the goods released unconditionally. Thereafter, delay and detention certificates under Section 14A of the Customs Act, 1969 were issued by the competent customs authority in favour of both respondents, but the petitioners declined to comply with those certificates, prompting the respondents to approach the High Court, which allowed their writ petition with directions, against which the present civil petition for leave to appeal was filed. Held: Sub-paragraph (iv) of the Customs Rules compelled the terminal operator, who was under an obligation to honor the delay and detention certificate and grant concession from port handling and demurrage charges. Indeed, if on issuance of delay and detention certificate the importer was not found to be at fault then it did not necessarily mean that the terminal operator was at fault. However, the two claims were independent and not necessarily be taken up together. Unadjudicated claim of terminal operator could not be pressed against importer on issuance of delay and detention certificate. It was for the convenience of the importer and further accrual of claim that goods ought to be released on issuance of such certificate. Port operator which was only a licensee under the agreement and thus could not be a judge of his or its own cause. It was at this point in time when paragraph (iv) of Rule 556 of the Customs Rules would come into play. Interestingly, despite the use of the word 'entertain' the word 'shall honour' used in the aforesaid sub-paragraph was not changed. This sub-paragraph continued to bind the terminal operator to honour the delay and detention certificate issued by an officer of customs, not below the rank of Assistant Collector, for concession from ports handling or demurrage charges in cases of hardship, where the delay in clearance of the imported cargo was not on the part of the consignee or importer; provided that the consignee or, as the case may be, the importer shall substantiate their case with corroborative documents. Once the delay and detention certificate was issued, it ought to be entertained and in consequence whereof demurrage charges were to be refunded. Thus, the phrase 'shall entertain' used in subsection (2) of Section 14A of the Act casted a mandatory obligation upon all agencies, including port authorities, terminal operators and container freight stations, to receive, acknowledge, and act upon a delay and detention certificate issued by a customs officer not below the rank of Assistant Collector. Failure to refund or waive demurrage and detention charges for the certified period constituted a violation of statutory duty and attracted penal consequences under Section 156(1)(7a) of the Act. When the law required an authority to 'entertain' a document or application, it was not a mere formality but an obligation to consider and give effect to it. Section 14A(2) of the Act signified that a port authority must not only receive but act upon the delay and detention certificate issued by customs authorities. Hence, the statutory mandate left no discretion with the port authorities to disregard or partially comply with such certificates; the obligation was absolute, enforceable and mandatory in nature. The proposed question of law was answered in the negative. The present petition was converted into an appeal and was dismissed in the circumstances.

SHAHEEN AIRPORT SERVICES (SAPS) THROUGH GENERAL MANAGER, PESHAWAR vs YASIR TRADERS, ARMS AND AMMUNITION DEALERS AND IMPORTERS, PESHAWAR — 2026 PTD 997 SUPREME-COURT

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