9911796707
TMI Blog2023 (8) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) On 21st December 2015, Respondent No. 1 approved a proposal of the Petitioner for setting up Container Freight Station (CFS) at village Dighode, District Raigad, Maharashtra. (ii) On 6th December 2016, a notification was issued by Respondent No. 3 being CFS Notification No. 11/2016, notifying the CFS station of the Petitioner for 'unloading of imported goods and for loading of export goods'. (iii) On 21st August 2017, Respondent No. 3 issued a further Notification No. 10/2017 appointing the Petitioner to be a 'Custodian' of the imported goods received at the CFS of the Petitioner. The Petitioner was also approved as 'Customs Cargo Service Provider' under the said notification. The duration for which the Petitioner was appointed as 'Custodian' and as a 'Customs Cargo Service Provider' was for two years from the date of the notification dated 21st August 2017. (iv) On 7th November 2017, Respondent No. 3 issued a public notice notifying the Petitioner as Customs Cargo Service Provider w.e.f. 7th November 2017. (v) On 16th January 2020, an application was made by the Petitioner to Respondent No. 4 seeking exemption of Cost Recovery Charges in respect of CFS since the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grant of exemption from payment of cost recovery charges in respect of eligible facilities. The said circular, therefore, lays down guidelines which subsumes various circulars/letters/instructions including Circular No. 13/2009-Customs dated 23rd March 2009. The said Circular No. 2/2021-Customs revamps the whole norms and process with respect to posting of staff at customs area and collection of cost recovery charges. Para 8 of the said circular deals with eligibility for exemption for cost recovery charges. It states that the cost recovery post should have the Department of Expenditure's specific permission for continuation before seeking/claiming exemption in respect of any given customs facility. Para 8.2 provides for exemption from payment of cost recovery charges upon fulfilling the performance criteria given in the table therein. The period for meeting the criteria was two financial years or four financial years as the case may be. Para 8.5 of the said circular states that in respect of all the cases for which exemption from cost recovery charges have not yet been granted though, application for the same is received and all other cases for which application would be receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery Charges up to 31st March 2020 was paid on 20th July 2020 by the Petitioner and, thereafter, vide letter dated 4th August 2020, Respondent No. 3 forwarded the application for exemption to Director General of Human Resource Department (DGHRD) for waiver of Cost Recovery Charges. The Respondents, therefore, contended that since there was a delay in making the payment, the application was not considered till July 2020. The Respondents also relied on an undertaking of the Petitioner dated 4th May 2020, wherein, they had undertaken to pay all the arrears for the Cost Recovery Charges as per demand notice issued by customs. The Respondents relied upon Circular No. 2/2021-Customs dated 19th January 2021 to justify the grant of exemption w.e.f. 19th April 2021. 6. REJOINDER OF THE PETITIONER :- In rejoinder, the Petitioner stated that Circular No. 2/2021-Customs should be read to have application prospectively and not retrospectively. The Petitioner further contended that at no point of time, the Respondents intimated that the claim of exemption is not being considered on account of non-payment of dues and it is only in reply to the present petition that the said case is made out. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020, for grant of exemption from payment of Cost Recovery Charges in respect of the Petitioner. Therefore, in our view, the Respondents were not justified in issuing exemption order w.e.f. 19th April 2021, when the application was made by the Petitioner in April 2020 and reiterated vide letter dated 26th November 2020 and the delay by the Respondent in processing the application is not attributable to the Petitioner. 10. It is settled position that the circulars cannot be given effect retrospectively unless expressly provided therein and if the law so permits. The circular dated 19th January 2021 revamps various circulars issued from time to time and a totally new set of guidelines are issued for dealing with Cost Recovery Charges, Exemption, etc. The eligibility condition as per Circulation No. 2/2021-Customs itself has changed drastically compared to the eligibility condition specified in Circular No. 13/2009-Customs. The Circular No. 2/2021-Customs specifies meeting of criteria I and criteria II in preceding two financial years or anyone of the criteria in the preceding four financial years for being eligible to claim exemption. The criteria I and criteria II deals with volume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of exemption shall be prospective in the said circular would not mean that the period for which delay is not attributable to the applicant should come in the way of exemption not being applicable for such period. The letter of DGHRD dated 10th August 2018 specifying check list for exemption provides that all the payment should have been paid till the date of waiver. In the instant case, the Petitioner has made all the payments upto March 2020 albeit delayed. 14. Para 13 of Circular No. 2/2021 states that earlier circular to the extent of its inconsistency with Circular No. 2/2021 would continue to apply. This shows that Circular No. 2/2021 is not retrospective in its application. 15. It is also to be noted that when application was made in January 2020, there was no outstanding dues since the Petitioner had paid all the dues upto December 2019, which is not disputed by the Respondents. The undertaking given on 24th December 2019 by the Petitioner that they will pay all dues was on the premises that they will get exemption from January 2020 when first time application was made and when in fact as stated above there was no outstanding or demand notice. 16. The view whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ims to make such exemption available only from the date of order and not from the period anterior to the date of the order. This is for variety of reasons. Firstly, upon issuance of the circular, the Commissioner in terms of para 6 would undertake an exercise to review the facilities and the cargo handling data of a particular seaport and make a recommendation within 60 days. Any such report of the Commissioner would have to be processed minutely by the concerned departments and this would take a reasonable time. The circular never intended that during all this while even if a particular entity is entitled to exemption, such exemption would be denied for the period during which the authorities i.e. the Commissioner and the concerned department take time to process the data and come to a definite conclusion. Further, para 6 itself provides that similar exercise would be undertaken in April of every year. Even otherwise, no such exercise can be undertaken prior to month of April since it is the cargo handing over the last two years a sea port for the purpose of clause (2) of immediately preceding year which would decide its eligibility for grant of exemption. The data for such period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India to insist that pending such application for exemption, the petitioners should have gone on depositing the recurring cost recovery charges. However, in the present case, non-payment of the charges cannot be the base for rejecting the grant of exemption from the date of the application. This is so because admittedly all the while when such application was pending, the petitioners were never conveyed that such application shall not be processed, entertained or granted since the current charges are not paid. It is part of the record that once the petitioners through show cause notice were called upon to make such payments, the same were made without delay. If the stand of the department therefore was that even for the period during which the petitioners had applied for exemption, till such exemption is not granted, the petitioners must go on depositing the charges as scheduled, the department should have conveyed the same to the petitioners. One way of looking at condition contained in clause (c) of para 5 is that at the time of making of the application, no past charges should be pending. If the stand of the Government of India was and a stand which may even be plausible, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
