2009 (10) TMI 378

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....rces and the rest of the materials are imported. During the material period, the manufacturing activity was carried out under supervision by officers of customs. The Department could claim cost recovery charges/Merchant Overtime (MOT) charges from the appellant for the services rendered by such officers of customs. An amount of Rs.10,84,450/- was charged for the period from 22-9-2004 to 4-11-2007. Out of this amount, an amount of Rs.6,89,096/-, which was paid under protest, came to be the subject-matter of a dispute between the appellant and the department. According to the appellant, this amount was not payable as cost recovery charges/MOT charges on account of the fact that, during the relevant period, no officer of customs was posted to ....

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....d. The appellate authority took the view that the refund claim could not be entertained for want of successful challenge to the earlier demands of cost recovery charges. Learned Commissioner (Appeals) relied on the Hon'ble Supreme Court's decision in Priya Blue Industries Ltd. v. Commissioner - 2004 (172) E.L.T. 145 (S.C.). The appellate Commissioner's order is presently under challenge. 3. The learned counsel has, at the outset, submitted that a similar issue was referred to Larger Bench by a Hon'ble Member of this Tribunal in the case of Commissioner v. Reliance Industries Ltd. - 2009 (236) E.L.T. 328 (Tri.-Ahmd.). He has also placed on record a copy of the referral order, which I have perused. The correct nature of the issue which aro....

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....ble. On this basis, the refund claim was not liable to be rejected on the ground stated by the Commissioner (Appeals). 5. After giving careful consideration to the submissions, I have found merit in the submissions made by the learned SDR. I have perused the correspondence between the appellant and the Department with regard to cost recovery charges. The relevant letters of the Assistant Commissioner of Customs consistently required the party to pay the charges, failing which, it was warned, action under Section 142 of the Customs Act would be taken for recovery of the amount. In one of the letters, the Assistant Commissioner even proposed to disallow de-bonding of the vessel manufactured in the appellant's warehouse. It is hardly possib....