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TMI Blog2023 (10) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... export goods meant for both SEZ and DTA. By a notification no. 2/2016-17, the office of the Principal Commissioner of Customs appointed the petitioner company as a Custodian of such cargo in accordance with the notification dated 19.08.2011 on certain conditions. Reading the aforesaid condition would indicate that the posting of custom officials at the CFS of the petitioner company, the petitioners had to bear costs of the custom officials posted at the station of the petitioners. This was on a cost recovery basis and the payments were at such rates and the manners specified by the Government of India. Reading of the notification dated 12.09.2005 would indicate that it deals with waiver of payment of cost recovery charges in respect of CFS. Reading the communication would indicate that the authorities considered regularization of those cost recovery posts at ICDs/CFS which have been in operation for two consecutive years with following performance benchmarks for the past two years. In case of the petitioners , admittedly, for the two yeas i.e. 2017-18 2018-19 the benchmark beyond 1200 for handling containers and as far as the number of bills of entry and shipping bills has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. By way of this petition, under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs: 8. (A) Your Lordships may be pleased to issue a Writ of Certiorari or Mandamus or any other appropriate writ, order or direction quashing and setting aside letter dated 21.08.2020 issued by respondent no. 5, letter dated 25.08.2020 issued by office of respondent no. 4 as well as consequent letter dated 31.08.2020 issued by office of respondent no. 3 denying the benefit of exemption to the petitioners; (AA) Your Lordships may be pleased to issue a Writ of Certiorari or Mandamus or any other appropriate writ, order or direction quashing and setting aside letter dated 12.11.2020 issued by the office of respondent no. 3 calling upon the petitioners to make payment of establishment charges on cost recovery basis; (B) Your Lordships may be further pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction, holding and declaring that the petitioner no. 1 is eligible for waiver from payment of cost recovery charges as extended under Circular dated 12.09.2005 from the date on which the conditions mentioned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners. 2.3 The Government of India issued instructions on 12.09.2005 providing exemption in the form of regularization in the cadre and consequent waiver from payment of cost recovery charges if the benchmark performance as provided under said instructions were fulfilled by the concerned custodian. As per the said instruction, an exemption from payment of cost recovery charges shall be granted if the concerned CFS was in operation for over a period of two years and was able to achieve the benchmark which inter alia provided that it had handled more than 1200 containers and the number of bills of entry / shipping bills processed were 1200. According to the petitioner, the petitioner had met this benchmark in the years 2017-18 and 2018-19 and was therefore entitled to waiver of cost recovery charges. Accordingly on 05.06.2019, the petitioner made an application that since the cost recovery charges were paid till 30.06.2019, the petitioner be exempted from paying such cost recovery charges with effect from 01.07.2019. 2.4 By a letter dated 31.08.2020, the petitioner company was informed that the application for waiver of cost recovery charges which was forwarded to the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facility. However on the other hand while considering the eligibility for exemption a technical objection is raised that the custom official who were posted at the facility were not sanctioned. 4. Mr. P.Y. Divyeshwar, learned counsel for the respondent no. 1, 2 5 would submit that the petitioners was notified under Section 45 of the Act on 11.05.2016. The operations commenced from 01.12.2016. The first and foremost requirement was that there should have been a sanction for creation of posts on cost recovery basis before issuance of notification in case of the petitioners. This had not happened as the posts were sanctioned only with effect from 18.03.2020. He would submit that since the creation/sanction of posts which was essential before the commencement of the operation was only sanctioned with effect from 19.03.2020, the CFS was not entitled to exemption prior thereto even if it had fulfilled the benchmark as per the circular dated 12.09.2005. He would rely on a communication dated 22.08.2019 issued by the Ministry pointing out that it was foremost that the creation of costs recovery posts was essential before the issuance of notification which was not done in the case on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd attention that it has been decided to consider regularization of those cost recovery posts at ICDs/CFSs which have been in operation or two consecutive years with following performance benchmark for past two years:- (i) No. of containers held by ICD : 7200 TEUs per annum (ii) No. of containers handled by CFS : 1200 TEUs per annum (iii) No. of BE or SB processed by ICD/s CFSs: 7200 per annum for ICDs and 1200 for CFSs . 5.2 Reading the communication would indicate that the authorities considered regularization of those cost recovery posts at ICDs/CFS which have been in operation for two consecutive years with following performance benchmarks for the past two years. In case of the petitioners , admittedly, for the two yeas i.e. 2017-18 2018-19 the benchmark beyond 1200 for handling containers and as far as the number of bills of entry and shipping bills has been complied with which is indicated from the details given under: No. of containers handled (TEUs) 1565 5363 No. of bills of Entry / Shipping Bills (per annum) 1311 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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