9911796707
TMI Blog2020 (2) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellants have achieved the bench mark in the year 2014-15 and 2015-16 and that the appellants have also remitted the Cost Recovery Charges up to 31/12/2015. In the show-cause notice the allegations against the appellant was that they have violated the Regulations 5(1)(iii) relating to Insurance Policy and Regulations 5(2) relating to non-payment of cost recovery charges and Regulation 5(3) relating to Bank Guarantee. Out of these three charges, the Commissioner has held that the appellant has complied with the Regulation 5(1)(iii) and 5(3) and has confirmed the demand under Regulation 5(2) - Further, the impugned order directing the appellant to pay Cost Recovery Charges of ₹ 2,18, 47,100/- is beyond the show-cause notice because in the show-cause notice the only allegation is that the appellant has not fulfilled the conditions as laid down in Regulations 5 (1) (iii), 5(2) and 5(3). Therefore, the payment of recovery in the impugned order is beyond the show-cause notice and is not sustainable. In HCCAR, 2009, no recovery mechanism for recovery of Cost Recovery Charges has been provided and this has been considered by the Tribunal in the case of CONTAINER CORPOR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Facility No.02/2014, the appellants commenced its operations as CCSP in the CFS with effect from 10/01/2014. The appellants vide letter dated 08/01/2014 to the Commissioner of Customs, Cochin sought permission on a temporary basis to outsource its functions as CFS to M/s. APM Terminals India Pvt. Ltd. (APMT). The Commissioner of Customs, Cochin vide letter dated 16/01/2014 granted permission for outsourcing the functions of CFS by the appellants to APMT. The appellants had sought such extension from time to time which was granted by the Commissioner of Customs, Cochin. CFS functions were outsourced to APMT for the period from January 2014 to December 2016. Further the appellants vide letter dated 11/01/2016 to the Commissioner of Customs, Cochin sought exemption/waiver from payment of Cost Recovery Charges in respect of their CFS in terms of the Board s Instructions vide letter No.F.No.A.11018/12/2008-Ad.IV dated 02/07/2008. The appellant has paid the Cost Recovery Charges for the Officers posted at their CFS on quarterly basis and discharged all their dues up to December, 2015 as per the guidelines and they were eligible for exemption from payment of Cost Recovery Charges from 04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is beyond the allegations levelled in the show-cause notice. She further submitted that in the impugned order the appellant has been directed to pay the pending dues of Cost Recovery Charges of ₹ 2,18,47,100/- (Rupees Two Crore Eighteen Lakhs Forty Seven Thousand and One Hundred only) for the period from 01/01/2016 till 31/03/2018 along with applicable interest, failing which the appellant s appointment as CCSP would be cancelled without any further notice and also imposed a penalty of ₹ 50,000/- (Rupees Fifty Thousand only) for contravention of provisions of Regulations 5(1)(iii), 5(2), 5(3) and 13 of the HCCAR, 2009. She further submitted that in the present case, show-cause notice was issued to the appellants for non-fulfillment of conditions as laid down in Regulations 5(1)(iii), 5(2), 5(3) of the HCCAR, 2009 and thereby proposing to take action under Regulation 11 and 12 of the HCCAR, 2009 for suspension and revocation of approval of appointment of the appellant as CCSP. She also submitted that in the impugned order the Commissioner has directed the appellant to pay the Cost Recovery Charges which was not proposed/raised in the show-cause notice and hence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Adani Ports and Special Economic Zone Limited vs. Union of India reported in 2018 (11) G.S.T.L. 150 (Guj.) wherein an identical issue before the Hon ble High Court was whether the exemption shall be effective from the date of order or from date of application with respect to exemption from payment of Cost Recovery Charges. The Hon ble High Court has noted that the petitioner has fulfilled all the requirements and at no stage there was any communication from the Department that in view of the outstanding payment of Cost Recovery Charges, application of the petitioners would not be considered for such period. Further the High Court held that exemption from payment of Cost Recovery Charges would be available from the date of application. She further submitted that as per the Regulation 7 of the HCCAR, 2009, the Commissioner of Customs has the power to exempt CCSP from complying with the conditions prescribed under Regulation 5 when he is unable to comply with any of the conditions for reasons beyond his control. Learned counsel also submitted that Regulation HCCAR 2009 does not provide for any recovery mechanism for recovery of Cost Recovery Charges. She also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er considering the submissions of both the parties and perusal of the material on record, we find that the appellant is an approved Customs Cargo Service Provider under the HCCAR, 2009. Further, we find that the appellants for the last two years have paid the Cost Recovery Charges of ₹ 42,11,029/-(Rupees Forty Two Lakh Eleven Thousand and Twenty Nine only) [01/01/2014 to 31/12/2014] and ₹ 58,23,776/- (Rupees Fifty Eight Lakhs Twenty Three Thousand Seven Hundred and Seventy Six only) [01/01/2015 to 31/12/2015] and the appellants were eligible for exemption from payment of Cost Recovery Charges from 04/12/2015 in terms of Boards Instructions dated 12/09/2005. Further, we find that the appellants vide letter dated 11/01/2016 to the Commissioner of Customs sought exemption/waiver from payment of Cost Recovery and the Commissioner of Customs vide its letter dated 16/02/2016 to Additional Director General and Under Secretary to the Ministry of Finance, Department of Revenue informed that the appellants have achieved the bench mark in the year 2014-15 and 2015-16 and that the appellants have also remitted the Cost Recovery Charges up to 31/12/2015. Further, we find that the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of Cost Recovery Charges has been provided and this has been considered by the Tribunal in the case of Container Corporation of India Ltd. Vs. CC, Jodhpur reported in 2019 (366) E.L.T. 745 (Tri.-Del.) and it has been held by the Tribunal that if the Regulation has no provisions for recovery of unpaid Cost Recovery Charges then the recovery cannot be effected in law. 8. In view of our discussions above, we are of the considered view that the impugned order directing the appellant to pay the pending dues of Cost Recovery Charges for the period from 01/01/2016 till 31/03/2018 along with interest is premature and cannot be given effect to unless the application of the appellant dated 11/01/2016 to the Commissioner of Customs seeking exemption/waiver from payment of Cost Recovery Charges is decided by the respondent. We find that the claim of the appellant for exemption has been recommended by the Commissioner from time to time but no action was taken by the concerned authority. Further the claim of the appellant was not even rejected by the Department. Hence we set aside the impugned order and direct the Department to decide his pending claim regarding his eligibility of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
