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TMI Blog2022 (6) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act,1962 and the Rules made thereunder which fall within the four corners of Part XIV of the Constitution of India Cost Recovery Charges equivalent to the Salaries packs paid to such officials of the Customs Department cannot be justified. There are no merits in the contention of the respondents in the impugned order. Therefore, the writ petition stands allowed. - W.P.(MD).No.7744 of 2021 And W.M.P.(MD).No.5890 of 2021 - - - Dated:- 10-3-2022 - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.M.Karthikeyan For the R1 : Mrs.S.Ragaventhre Junior Standing Counsel For the R2 to R6 : Mr.R.Aravindan Senior Standing Counsel ORDER The writ petition has been filed for a writ of Certiorarified Mandamus to call for the records of the impugned demand notice, dated 06.07.2020 of the sixth respondent Assistant Commissioner of Customs, Inland Container Depot, SIPCOT at Hosur-26, demanding a sum of Rs.2,14,31,618/- from the petitioner. 2. The above amount has been demanded from the petitioner over and above the amount already paid by the petitioner towards cost recovery charges for deputing officers of the customs in the petitioner s Inla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms(CBEC). The petitioner as a custodian and licensee was required to pay 185% of total salary of officers actually posted at its ICD. 7. The Cost Recovery Charges for the period commencing from June 2017 to March 2017 for the services rendered to the petitioner, are as under: (A) Pending Cost Recovery Charges for Period from 25.06.2015 to 31.03.2020 3,40,53,147 Payment-1 Advance/Initial Amount paid vide TR6 challan dated 06.03.2015 21,45,330 Payment-2 Amount paid vide TR6 Challan 04/2019 dated 15.03.2019 43,96,401 Payment-3 Amount paid vide TR6 Challan 28/2019 dated 01.11.2019 for the period April 19 to 31.08.2019 3,62,234 (B) Total Amount Paid 69,03,965 A-B Balance to be paid 2,71,49,182 8. The Government had taken a decision to waive requirement of cost recovery charges to be paid by ICD/CFS, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by the Central Government. Cost Recovery Charges (CRC) can be only in proportion to the excess amount that may be required to be paid to officers on being deployed in such facilities on special occasions. Where such officers are required to be present all through the period in the facility outside the Custom House or the Port, question of recovering the entire salary from such facilities cannot be permitted except for such travel allowances and extra amounts that are paid. Therefore, unless there is an appropriate amendment to the provisions and the Customs Act,1962 and the Rules made thereunder which fall within the four corners of Part XIV of the Constitution of India Cost Recovery Charges equivalent to the Salaries packs paid to such officials of the Customs Department cannot be justified. 62.Since such officers deployed continue to be officers of the Customs Department and report to their jurisdictional superiors within the jurisdiction of the Custom House of their Chief Commissioner of Customs or Commissioner of Customs of the Custom House, there is neither a Legal basis nor any justification collecting the entire salary payable to such officer from Customs Cargo Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 11D of the Central Excise And Salt Act, 1944 as it stood then was unsustainable in absence of a proper machinery. Same reasoning is applicable to the facts of the present case. 71. The petitioner has reportedly paid an amount Rs. 45,01,960/- in the past. Neither the aforesaid amount nor the excess amount that was demanded would have been payable by the petitioner had a proper notification/order been issued. The amount collected also cannot be directed to be refunded back to the petitioner as the petitioner would have passed on incidence of such amount to the customer who had availed of services of the petitioner. Therefore, there can be no order for refunding of the amount. Therefore, only way out is to regularize the amounts already paid collected in the past. 72.Since the petitioner has also demonstrated that it had fulfilled the criteria/benchmark for exemption from payment of Cost Recovery Charges during the first two years of approval and operation, the case of the petitioner deserves to be considered for waiver/exemption from payment of Cost Recovery Charges in terms of the guidelines of the Central Board of Excise and Customs in its meeting he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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