TaxTMI 
TaxTMI 
2019 (2) TMI 507
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....advance on a quarterly basis. The Ministry of Finance, Department of Revenue, New Delhi vide letter F. No. A-11018/50/2001/Ad. IV dated 6.11.2001 conveyed the sanction of creation of 13 temporary posts as under : S.No. Designation Nos. 1. Assistant Commissioner 1 2. Appraiser 2 3. Examiner 2 4. UDCs 2 5. LDCs 2 6. Sepoys 4 Total 13 3. The appellant vide letter dated 6.7.2001 agreed to guidelines contained in Circular No. 128/95 by executing a bond to that effect. The aforesaid provision (Circular No. 128/95) was replaced by HCCAR, 2009, vide which the existing custodians appointed under Section 45 of Customs Act, 1962, were continued to operate in terms of Regulation 4 of the HCCAR, 2009. The appellant agreed to abide by the terms and conditions as contained in the HCCAR, 2009 and for continuing their operation. During year, 2009-2010, it was found that the appellant did not achieve the prescribed benchmark performance as per Ministry's letter dated 12.9.2005 in terms of processing of documents as they have processed only 4884 documents as against the prescribed 7200 number documents (Bill of Entry/SB). Accordingly, cost recovery charges were dema....
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.... on behalf of the appellant submits that they were appointed as custodian in terms of Public Notice No. 18/2001 (Customs)) dated 27.6.2001 subject to payment of cost recovery charges. The Ministry vide letter dated 6th Nov. 2001 created the posts of 13 cost recovery officer as indicated in para (2) therein subject to payment of cost recovery charge for the posts @ 1.85 times of the monthly average cost of the post + DA, CCA, HRA by the appellant in advance subject to condition as contained in F. No. 434/17/2004-Cus.IV dated 12.9.2005. It is also indicated in para-3 of the letter that the performance of the various ICDs/CFSs regarding cost recovery charge as on 31.8.2005 be ensured, where regularisation of post is suggest as per the enclosure issued under F. No. 11018/12/2005, and proposed to be exempted/waived from the cost recovery. Thereafter the Ministry vide its letter dated 23.3.2006 has decided to exempt ICD/CFS who fulfilled the criteria on the basis of work load from the cost recovery post sanctioned for carrying out the customs function. The appellant's name figured at Sr. No. 16 of the said list. It was impressed upon by the ld. Advocate that thereafter vide letter dated ....
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.... states that the Hon'ble CESTAT has not considered the encadrement of the posts for the ICD run by the appellant. It is his submission that had this aspect been examined by the CESTAT in the previous appeal, the decision would have been different. He also suggested that the CESTAT in its earlier order has also not considered the fact that the demand has been raised under the Regulation 11(1) of HCCAR, 2009. He impressed upon the fact that the said regulation is only for the purpose of revocation/suspension of the licence only. The regulation does not provide for realisation of cost recovery charges and confirmation of demand for the non-payment of cost recovery charges. The ld. Advocate also drawn our attention towards the provision of Regulation 6 of HCCAR, 2009 which enumerates responsibility of Customs Cargo Service provider. Regulation 6(1)(o) thereof only mandates that the Customs Cargo Service Provider would undertake to bear the cost of the Customs officer posted by the Commissioner of Customs on cost recovery basis and shall make payment at such rates and in the manner specified by Government of India in the Ministry of Finance unless specifically exempted by an order of th....
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....ment of the condition and directed that the appellant should first deposit to cost recovery charges for the entire period and only then their application for the waiver of the cost recovery will be considered and also such exemption will be prospective. The similar issue came up before Hon'ble High Court of Gujarat in the case of Adani Ports and Special Economic Zone Ltd. Vs. Union of India - 2018 (11) GSTL 150 observed as under: "14. The impact of the said circular, therefore, would be that with respect to ports which have handled a minimum volume/value of imports and exports and also the minimum number of shipping bills in last two preceding years, the port operators would be exempt from payment of cost recovery charges for the set up specified in the said circular. The exemption would only be prospective and that no cost recovery charges of the past should be outstanding. As per para 6, the jurisdictional Commissioner would undertake the exercise of reviewing the existing facilities and send the proposal for waiver of the cost recovery charges for the eligible facilities within 60 days. Similar review should be undertaken in April of each year. 15. Two things emerge from para ....
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....icular 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 would be available only after 31st March of a particular year. The question of grant or non-grant of exemption from payment of cargo handling charges would relate to a beginning of the financial year and can be examined only after the end of the previous financial year. No intention appears from the circular that year a....
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....l 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, that awaiting outcome for application of exemption, the custodian should continue to deposit such amount with the Government, it should have specified the stand with the petitioners. 21. One more ground raised in the affidavit in reply to oppose the petition is that additional staff was deployed at the port which consumed some ....
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....s the same did not consider the instruction for the grant of exemption. 10. Ld. Advcoate also drew our attention towards the instruction available at www.dghrdcbec.gov.in/WriteReadData/-Instructions.cocx. apart from the other thing it is mentioned as under : "the concern facilities are granted exemption from payment of cost recovery charge with the prospective date with no claim for the past period and no cost recovery charges should be outstanding. After regularisation, the posts are encadred in the total staff strength of CBEC as permanent post. Thereafter, the cost of such post is borne by the department". In view of above from the date of encadrisation of post there is no question of charging of any cost recovery charge. Finally, ld. Advocate concludes his argument and submits that there is no requirement of payment of cost recovery charges by the appellant and thus the impugned order is liable to be set aside with consequential benefit to the appellant. 11. On the other hand, the ld. AR on behalf of the Revenue relied upon the order of this Tribunal in the case of appellant itself vide which the order of adjudicating authority was upheld, the order being Final Order No. 5184....
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....s posted, at such customs area, on cost recovery basis, by the Commissioner and shall make payments at such rates and in the manner prescribed, unless specifically exempted by an order of the Government of India in the Ministry of Finance; "6. Responsibilities of Customs Cargo Service provider: (1) The Customs Cargo Service provider shall - (o) shall bear the cost of the customs officers posted by the Commissioner of Customs on cost recovery basis and shall make payments at such rates and in the manner specified by the Government of India in the Ministry of Finance unless specifically exempted by an order of the said Ministry;" 12. Procedure for suspension or revocation of approval and imposition of penalty:- (1) The Commissioner of Customs shall issue a notice in writing to the Customs Cargo Service provider stating the grounds on which it is proposed to suspend or revoke the approval and requiring the said Customs Cargo Service provider to submit within such time as may be specified in the notice not being less than thirty days, to the Assistant Commissioner or Deputy Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said s....
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....ear the cost of Custom officer posted, at such Customs area, on cost recovery basis, by the Commissioner and shall make payment at such rate and in the manner prescribed unless specifically exempted by an order of the Government of India in the Ministry of Finance.' We also find that the CBEC which is part of Ministry of Finance has waived the cost recovery charge of the appellant vide its letter dated 23.5.2006 stating that it has been decided to cost recovery charge in respect of appellant at Sr. No. 16. Further, vide letter dated 18.2.2009, the Ministry has also encadred the post within the cadre strength of CBEC and clarified that after encadrisation of the post there will be no cost recovery charge on account of this vide clarification appearing on the CBEC site as cited by ld. Counsel on behalf of the appellant. 15. Ld. DR has categorically stated that the similar issue was decided by this very Tribunal vide Final Order No. 51848/2018 dated 16.5.2018, wherein the appeal filed by the appellant for the period was dismissed with a condition to approach this Tribunal after taking up the matter with CBEC for the waiver of cost recovery charge in the subsequent period. It is also ....