TaxTMI 
TaxTMI 
2019 (12) TMI 899
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....(ii) Whether CESTAT is justified in holding that cost recovery charges cannot be collected after coming into operation of HCCAR,2009 as Instructions issued prior to it are inapplicable yet holding that CFS had achieved benchmark performance for exemption from payment of CRC based on one such Instruction? (iii) Whether CESTAT is justified in its findings that once the bench mark performance has been achieved by the Respondent in terms of Ministry's letter F. No. 434/17/2004-Cus IV dated 12.09.2005, there is no need to pay CRC afterwards automatically, even though the said Instruction specifically laid down certain conditions/procedure to be fulfilled/followed before exemption is granted which the Respondent did not fulfil or follow? (iv) Whether CESTAT is justified in holding that the waiver of CRC shall apply even when no specific order for waiver of CRC has been issued by the competent authority as required under CBEC's Circular No. 13/2009-Cus dated 23.03.2009 read with Ministry's letter dated 12.09.2005? 3. Mr. Amit Goyal, counsel for the Appellant contended that even after introduction of Handling of Cargo in Customs Area Regulations, 2009 (for short '2009 ....
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....nt did not pay cost recovery charges during 2008-2010 and Appellant issued notice dated 04.06.2012 (Annexure A-1) raising demand. The Respondent though deposited charges of 2008-2010 late i.e. during 2010-2012, yet prior to demand notice. The instructions dated 12.09.2005 relied upon by Appellant nowhere require filing of an application by CFS. The instructions further direct that no charges should be pending on 31.08.2005. Instructions dated 23.03.2009 require that CFS should be in existence for two consecutive years and achieve norms in terms of number of import or export containers. 7. The Tribunal has allowed Appeal of Respondent-CFS relying upon judgment of Hon'ble Supreme Court in the case of Commissioner of Central Excise and Customs, Kerala Vs. Larsen and Toubro Ltd. 2015 (39) STR 913 (SC) and holding that CFS achieved minimum benchmark, thus was entitled to waiver of cost recovery charges in future. The relevant extracts of impugned order are reproduced here under: 6. On careful consideration of the submissions made by both sides, we find that short issue involved before us: (a) Whether the appellant is entitled for exemption from payment of cost recovery ch....
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....7 post amendment (by the Finance Act, 2006) for the first time prescribes, in cases like the present, where the provision of service is for a consideration which is not ascertainable, to be the amount as may be determined in the prescribed manner. 26. We have already seen that Rule 2A framed pursuant to this power has followed the second Gannon Dunkerley case in segregating the 'service' component of a works contract from the 'goods' component. It begins by working downwards from the gross amount charged for the entire works contract and misusing from it the value of the property in goods transferred in the execution of such works contract. This is done by adopting the value that is adopted for the purpose of payment of VAT. The rule goes on to say that the service component of the works contract is to include the eight elements laid down in the second Gannon Dunkerley case including apportionment of the cost of establishment, other expenses and profit earned by the service provider as is relatable only to supply of labour and services. And, where value is not determined having regard to the aforesaid parameters, (namely, in those cases where the books of account of the co....
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....ules are framed for computation, it does not follow that no tax is leviable." [at Para 36] 36. In a recent judgment by one of us, namely, Shabina Abraham & Ors. v. Collector of Central Excise & Customs, judgment dated 29th July, 2015, in Civil Appeal No. 5802 of 2005 = 2015 (322) E.L.T. 372 (S.C.), this Court held :- " It is clear on a reading of the aforesaid paragraph that what Revenue is asking us to do is to stretch the machinery provisions of the Central Excises and Salt Act, 1944 on the basis of surmises and conjectures. This we are afraid is not possible. Before leaving the judgment in Murarilal's case (supra), we wish to add that so far as partnership firms are concerned, the Income Tax Act contains a specific provision in Section 189(1) which introduces a fiction qua dissolved firms. It states that where a firm is dissolved, the Assessing Officer shall make an assessment of the total income of the firm as if no such dissolution had taken place and all the provisions of the Income Tax Act would apply to assessment of such dissolved firm. Interestingly enough, this provision is referred to only in the minority judgment in M/s. Murarilal's case (supra). The ....