TaxTMI 
TaxTMI 
2020 (2) TMI 876
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....s of Handling of Cargo in Customs Areas Regulations, 2009 (HCCAR) and also imposed a penalty of Rs. 50,000/- (Rupees Fifty Thousand Only) on the appellant under Regulation 12(8) of the HCCAR, 2009 for contravention of the provisions of Regulation 5(1)(iii), 5(2), 5(3) and 13 of the HCCAR, 2009. 3. Briefly the facts of the present case are that the appellants are engaged in the activity of storage of containers and imported goods, de-stuffing of all FCL/LCL containers, Customs examination before clearance, storage, examination and stuffing of export cargo into containers and storage of export and import transshipment containers etc under Section 8(a) of the Customs Act, 1962. In terms of the Trade Facility No.02/2014, the appellants commenced its operations as CCSP in the CFS with effect from 10/01/2014. The appellants vide letter dated 08/01/2014 to the Commissioner of Customs, Cochin sought permission on a temporary basis to outsource its functions as CFS to M/s. APM Terminals India Pvt. Ltd. (APMT). The Commissioner of Customs, Cochin vide letter dated 16/01/2014 granted permission for outsourcing the functions of CFS by the appellants to APMT. The appellants had sought such ext....
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....em to the Commissioner that they were entitled to exemption as they had achieved the bench mark in the year 2015 itself. The Commissioner of Customs in the impugned order has admitted that the appellants have fulfilled the conditions of Regulation of 5(1)(iii) and 5(3) of HCCAR Regulation, 2009. The Commissioner of Customs has held that the appellant has violated the Regulation 5(2) by not paying the Cost Recovery Charges. 4. Heard both the parties and perused the records. 5. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. She further submitted that the impugned order is beyond the allegations levelled in the show-cause notice. She further submitted that in the impugned order the appellant has been directed to pay the pending dues of Cost Recovery Charges of Rs. 2,18,47,100/- (Rupees Two Crore Eighteen Lakhs Forty Seven Thousand and One Hundred only) for the period from 01/01/2016 till 31/03/2018 along with applicable interest, failing which the appellant's appointment as CCSP would be cancelled without any further notice and also imposed a penalty of Rs.....
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....appellant has been repeatedly following up with the Department for considering their application for waiver of Cost Recovery Charges but did not get any response regarding the status of their application dated 11/01/2016. She further submitted that the delay by the Department in acting upon the appellant's letter dated 11/01/2016 to grant the applicable exemption cannot be used against the Appellants. The appellant also relied upon the decisions in the case of Adani Ports and Special Economic Zone Limited vs. Union of India reported in 2018 (11) G.S.T.L. 150 (Guj.) wherein an identical issue before the Hon'ble High Court was whether the exemption shall be effective from the date of order or from date of application with respect to exemption from payment of Cost Recovery Charges. The Hon'ble High Court has noted that the petitioner has fulfilled all the requirements and at no stage there was any communication from the Department that in view of the outstanding payment of Cost Recovery Charges, application of the petitioners would not be considered for such period. Further the High Court held that exemption from payment of Cost Recovery Charges would be available from the date of app....
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....ve the CCSP from their liability to pay the Cost Recovery Charges. In support of his submissions, he relied upon the following decisions: * Mumbai International Airport Private Ltd vs. Union of India, 2014 (310) E.L.T. 3 (Bom.), * Thiru Rani Logistrics Pvt. Ltd., vs. Director General, DGHRD, C, & C.E., New Delhi, 2016 (340) E.L.T. 160 (Mad.) * Allied Icd Services Ltd., vs. Union of India 2018 (364) E.L.T. 59 (Del.) 6. After considering the submissions of both the parties and perusal of the material on record, we find that the appellant is an approved Customs Cargo Service Provider under the HCCAR, 2009. Further, we find that the appellants for the last two years have paid the Cost Recovery Charges of Rs. 42,11,029/-(Rupees Forty Two Lakh Eleven Thousand and Twenty Nine only) [01/01/2014 to 31/12/2014] and Rs. 58,23,776/- (Rupees Fifty Eight Lakhs Twenty Three Thousand Seven Hundred and Seventy Six only) [01/01/2015 to 31/12/2015] and the appellants were eligible for exemption from payment of Cost Recovery Charges from 04/12/2015 in terms of Boards Instructions dated 12/09/2005. Further, we find that the appellants vide letter dated 11/01/2016 to the Commissioner of Customs s....