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TMI Blog2020 (4) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts it is evident that such issue was never raised by the appellant earlier and it was raised for the first time on 28.03.2014. As regards the allegation of short recovery of cost recovery charges , admittedly such charges (short paid) amounting to ₹ 71,25,382/- have been paid under protest and after sometime the appellant have applied for refund of the same. Thus, the finding of the Commissioner is factually wrong. The impugned order is set aside and appeal is allowed, so far as it has confirmed the levy of cost of recovery charges. Such cost recovery charges of ₹ 38,51,558/-, the Assistant Commissioner is directed to refund the above amount alongwith interest as per Rules, within a period of thirty days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OU etc., and as a measure of trade facilitation it was provided that EOU etc. units will be given an option of either using the services of Customs /Central Excise Officers on payment of cost recovery charges or on payment of Merchant Over time (MOT) charges. The existing units should indicate their intention to opt out of the scheme of cost recovery charges by 31.06.2003. Once they opt out of the cost recovery charges Scheme, such units shall be required to pay MOT for Customs/ Central Excise related work, even during office working hours. The case of the appellant is that they have paid both the Merchant Overtime Charges and also cost recovery charges on sharing basis till the time of debonding, when application was made on 08.12.2014. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 100% EOU, having accepted the conditions laid on them, and have raised the issue after debonding that they were not liable to pay the said charges. The appellant should have raised the issue of not being liable to pay cost recovery charges when they were functioning as a 100% EOU at the relevant time. Further, observed that as the appellant have opted for payment of only MOT charges w.e.f. 01.04.2014 in terms of Board Circular dated 07.04.2003, they are liable to pay the cost recovery charges as held payable by the Assistant Commissioner. It was further observed that it is not their claim that they have paid MOT charges for services rendered during office hours even when cost recovery charges were paid. If that be so, the cost recovery cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re attracted and accordingly, the question is answered against the Revenue and in favour of the assessee. (emphasis supplied) 3.1 Learned Counsel further points out that the Hon ble Madras High Court in the case of Commissioner of C. Ex. Tirunelveli vs. Transworld Garnet India P. Ltd., -2017 (346) ELT 243 (Mad.), wherein the question before the Hon ble High Court was Whether, in the facts and circumstances of the case, the Tribunal is right in concluding that the Circular No. 31/2003, dated 7.4.2003 is not enforceable in law as it is ultra vires Regulation (3) of the Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998? The Hon ble Madras High Court took notice of the ruling in Sandur Laminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that appellant admittedly has paid MOT charges all throughout, and it has been accepted by the Department. The Court below have erred in holding that the appellant has paid the MOT charges on 01.07.2014, and accordingly the learned Counsel prays for allowing of the appeal. 4. Learned Authorised Representative appearing for the Revenue has relied on the impugned order. 5. Having considered the rival contentions, I find that the Commissioner (Appeals) have erred in holding that the appellant have not raised the issue initially. Admittedly, from the facts it is evident that such issue was never raised by the appellant earlier and it was raised for the first time on 28.03.2014. As regards the allegation of short recovery of cost re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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