1. ' We have heard both the learned counsel. The relevant provisions on which either side relies are Notes (6), (8), (9) and (13) of the General Notes to Table I appended with the Notification dated 9- 2-1988 bearing No, SRO 20 (KE)/88 issued pursuant to section 43B of the Karachi Port Trust Act, 1886.
2. Such notes are in these terms:-- ' Note(6).---Seven working days after the landing date will be treated as FREE PERIOD except in the case of Afghan-in-transit cargo where 14 days free period will be allowed.
3. ' The Traffic Manager or his Deputy may, at his discretion, grant an extension of free period where a full consignment has been landed after the "landing date'.
4. ' In exceptional cases, an extension of free period may also be granted where portions of consignments are landed subsequent to the landing date.
5. ' Where consignments cannot be cleared through no fault of the importer, an extension of free period may be allowed, but the period of such extension will be regulated by the quantity of goods ready for clearance and will commence from the time they are available for delivery.
6. ' Note (8).---In cases where a Customs Detention Certificate, is issued for the whole or ,part of a consignment, storage charges will be levied at the rate of Rs,5 per tonne or part thereof plus Rs, 10 per tonne or part thereof per day on the whole or part of a consignment, as the case may be, for the period of detention and three working days thereafter unless in the opinion of the Board there are other reasons which do not justify this concession.
7. ' This concession will not apply to items specified under exceptions above.
8. ' Note (9).---Customs Detention Certificate for consignments detained because of infringement of any Import Trade Control Regulations, will not qualify for obtaining the concession detailed in Note (8), but where a Customs Detention Certificate is issued in respect of part of a consignment, the remaining portion of which has been penalized under the Import Trade Control Regulations, such part of the consignment which has not infringed the Import Trade Control Regulations qualify for obtaining that concession.
9. ' Note (13).---All goods examined by the Customs at East Wharf, West Wharf, Juna Bunder or M.I.
10. Yard must be removed from the premises of the Board a's soon as examination by the Customs has been completed. Any goods not so removed shall be at the risk of the owner and may be removed by the Port Trust at the risk and cost of the owner to a warehouse where they shall be at the risk and cost of the owner. All goods with the exception of iron not removed by their owner on the expiration of free days or within five working days of their examination whichever is later, shall, in addition to the payment of storage charges under the above Table, be liable to an additional storage charge of Rs, .5 per day or part of a day per package: ' Provided always that the Traffic Manager may, if satisfied that any goods could not be removed within the above period, exempt such goods from payment of the aforesaid additional storage charges for such further period as he may deem fit, with the approval of the General Manager (Operations).
11. ' The above additional storage charges will be levied for working days excluding Fridays and holidays."
12. ' Now it is a position admitted at all ends that a Customs Detention Certificate was issued to the petitioner but such was accepted only in relation to a part of the consignment on account of delayed examination of the same by the Customs, as covered by Note (13) above but demurrage was refused to be waived in relation to the rest on account of the fact that the relevant consignment, allegedly, consisted of heavy lifts covered by clauses (i) and (j) of the Exceptions to such Note (8). It is obvious to us that in so far as Customs Detention Certificates are concerned such are issued in exercise of powers vesting in the Customs authorities and there can be a number of reasons on account of which such certificates are issued the most common apparently being delay in inspection, suspected infringement of Import Trade Control Regulations etc. Once the Customs have exercised their powers and a Delay Detention Certificate is issued, in appropriate cases covered by law, it falls for the KPT functionaries to act thereupon in terms of their own Rules and Regulations. Generally, it would be under Note (8) and in context the concession would not apply to the items specified in the preceding Exceptions. But before Note (8) is applied it is essential that the consignment should have been examined in terms of Note (13) by the Customs and cleared per Note (6). In other words, the postulates in Note (8) cannot be resorted to before the hurdle of Notes (13) and (6) is crossed. Such Notes necessarily deal with situations where goods or part thereof could not be removed within the period(s) contemplated by the provisions. Once, therefore, a Customs Detention Certificate is issued, upon a question being raised, it is to come for examination at the level of the KPT functionaries, starting with the Traffic Manager to satisfy himself whether the goods could not be removed within the period prescribed by the said provisions because of want of examination by the Customs in which case exemption from additional storage charges for the further period consumed in storage can be waived with the approval of the General Manager (Operations). For this the basis has to be, a Customs Detention Certificate and then an independent exercise of powers by the KPT functionaries. Relief is to be accorded in all cases, irrespective of the nature of the consignment, where delay in removal is occasioned on account of non-examination by the Customs. It, relevantly, matters little whether the goods fall within the concept of Exceptions referred to above or not. Exceptions can be clamped only in cases where the Customs Detention Certificate has followed upon detention after Customs examination and clearance, not where such examination was not at all made.
13. ' It is obviously not in this light that the matter was examined by the Customs and deserves to be so examined. With this both the learned counsel agree. Accordingly and by consent, we set aside the impugned orders and remand the case back to the Customs authorities for appropriate exercise of powers. Till that is done at the end of the KPT functionaries, the bank guarantee already furnished by the petitioner would not be encashed. In that context, of course, it would be the obligation of the petitioner to have the bank guarantee extended for such period or periods of time as may become necessary.