Customs demurrage waiver policy turns on fault: provisional release may be secured, but waiver is denied after fine and penalty.

Customs no-demurrage directions and a cargo operator's waiver policy are to be read harmoniously, with waiver not automatic for seized or detained cargo. The policy distinguishes between importers not found at fault and those against whom fine, penalty, personal penalty, or warning is imposed. Where goods are provisionally released pending adjudication, release may be obtained on furnishing a security bond and bank guarantee securing demurrage liability. Where adjudication ends in fine and penalty, demurrage waiver is unavailable and charges remain payable.

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Issues: (i) Whether demurrage or detention charges for seized or detained cargo are payable by the cargo service provider despite a customs direction to waive such charges, and how the Customs regulations and the Airports Authority waiver policy are to be harmoniously construed; (ii) whether an importer whose goods are provisionally released pending adjudication is entitled to waiver of demurrage charges; (iii) whether an importer against whom fine and penalty have been imposed is entitled to waiver of demurrage charges.

Issue (i): Whether demurrage or detention charges for seized or detained cargo are payable by the cargo service provider despite a customs direction to waive such charges, and how the Customs regulations and the Airports Authority waiver policy are to be harmoniously construed.

Analysis: The relevant Customs framework places imported goods in the custody and control of customs-approved custodians in a customs area and empowers regulation of their handling. The cargo regulations contain a no-demurrage clause for seized, detained, or confiscated goods, but it operates subject to other law. The Airports Authority policy separately governs waiver of demurrage and draws a distinction between cases where the importer is not at fault and cases where fine, penalty, personal penalty, or warning has been imposed. The two regimes were held capable of coexistence, and the waiver policy was treated as governing the availability of waiver in the classes of cases considered.

Conclusion: The regulations and the waiver policy are not mutually exclusive and must be read harmoniously; waiver is not automatic in every case of seizure or detention.

Issue (ii): Whether an importer whose goods are provisionally released pending adjudication is entitled to waiver of demurrage charges.

Analysis: Where adjudication is pending and the goods are ordered to be released provisionally, the matter is treated as one in which the importer's entitlement to waiver remains contingent. The importer may obtain release by furnishing security for the demurrage liability and undertaking to pay the charges if the adjudication ends in an adverse finding such as fine, penalty, personal penalty, or warning. This preserves the balance between release of goods and the waiver regime.

Conclusion: The importer is entitled to release of the goods on furnishing a security bond and bank guarantee securing demurrage liability.

Issue (iii): Whether an importer against whom fine and penalty have been imposed is entitled to waiver of demurrage charges.

Analysis: Where the adjudication has culminated in a finding of fault and imposition of fine and penalty, the case falls within the class excluded by the waiver policy. In such circumstances, granting waiver would treat compliant and non-compliant importers alike and would defeat the distinction built into the policy between innocent and defaulting importers. The importer therefore cannot claim the benefit of waiver.

Conclusion: The importer is not entitled to waiver of demurrage charges and the goods are releasable only on payment of those charges.

Final Conclusion: The petitions were disposed of by allowing provisional-release relief in one matter with security for demurrage and by denying waiver relief in the other where fine and penalty had been imposed; the waiver policy was held to apply only where the importer is not finally found at fault.

Ratio Decidendi: A customs no-demurrage direction and a cargo operator's waiver policy must be harmoniously construed, and waiver of demurrage is available only in cases where the importer is not found at fault and no fine, penalty, personal penalty, or warning is imposed on adjudication.

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