Demurrage waiver for seized goods overrides carrier charging rights and supports suspension of customs registration.
Customs cargo service providers, including NVOCCs operating in customs areas, cannot charge rent, detention or demurrage for goods seized, detained or confiscated by Customs. The prohibition under the Handling of Cargo in Customs Areas Regulations operates independently of the sixty-day provision allowing authorised carriers to demand container detention charges under the Sea Cargo Manifest and Transhipment Regulations. Accordingly, the carrier allowance does not qualify the waiver obligation for seized goods. Breach of that obligation constitutes regulatory non-compliance and can support immediate suspension of customs registration where a post-decisional opportunity to make representations is provided, consistent with natural justice.
Issues: (i) Whether an NVOCC functioning as a customs cargo service provider was obliged to waive detention and demurrage charges under the waiver certificate beyond sixty days; and (ii) whether immediate suspension of its customs registration for non-compliance was sustainable.
Issue (i): Whether an NVOCC functioning as a customs cargo service provider was obliged to waive detention and demurrage charges under the waiver certificate beyond sixty days.
Analysis: Regulation 10(1)(l) of the Sea Cargo Manifest and Transhipment Regulations, 2018 permits an authorised carrier to demand container detention charges after sixty days. However, Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 independently prohibits a customs cargo service provider from charging rent or demurrage on goods seized, detained or confiscated by Customs. An NVOCC operating in the customs area falls within the category of customs cargo service provider. As the goods had been seized, the prohibition under Regulation 6(1)(l) applied without the sixty-day limitation. Non-compliance also constituted failure to abide by applicable regulations under Regulation 10(1)(m) of the Sea Cargo Manifest and Transhipment Regulations, 2018.
Conclusion: The NVOCC was required to comply with the waiver of detention and demurrage charges beyond sixty days in respect of the seized goods, in favour of Revenue.
Issue (ii): Whether immediate suspension of its customs registration for non-compliance was sustainable.
Analysis: The established breach of the obligation under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 attracted non-compliance with Regulation 10(1)(m) of the Sea Cargo Manifest and Transhipment Regulations, 2018. Immediate suspension was imposed under the regulatory power governing suspension of registration, and a post-decisional opportunity to make a representation was provided, satisfying principles of natural justice.
Conclusion: The immediate suspension of customs registration was legally sustainable, in favour of Revenue.
Final Conclusion: Customs cargo service providers, including NVOCCs, must honour the statutory prohibition on detention and demurrage charges for seized or detained goods; breach of that obligation supports regulatory suspension of registration.
Ratio Decidendi: The sixty-day qualification applicable to an authorised carrier under the Sea Cargo Manifest and Transhipment Regulations, 2018 does not limit the independent prohibition on charging demurrage or detention for seized or detained goods applicable to a customs cargo service provider under the Handling of Cargo in Customs Areas Regulations, 2009.