TaxTMI 
TaxTMI 
2024 (12) TMI 1671
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....titions have been preferred claiming, in sum and substance, the following reliefs: Appeals by the Revenue (Customs Department): "1. It is, therefore, prayed that this appeal be accepted and the Hon'ble Court may be pleased to set aside the impugned final order dated 26.07.2019 passed by the ld. CESTAT and restore the Order-in-Original dated 26.02.2019 passed by the ld. Commissioner. 2. It is also prayed that the substantial question of law mentioned in para 12 of the present appeal, arising out of the impugned Final Order dated 26.07.2019 passed by the ld. CESTAT may be admitted, decided, considered and an ordainment or direction, which may be just and proper in favour of the appellant may be passed. 3. It is also prayed that an ad-interim stay be granted and the operation of the impugned Final Order dated 26.07.2019 passed by the ld. CESTAT may be stayed until the final decision of the instant appeal is taken. 4. Any other order or direction which this Hon'ble court deems just and proper in the facts and circumstances of the case may also be passed in favour of the appellant." Writ Petitions Companies (in short, 'Dry Ports'): "It ....
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....th functioning of the CFSs/ICDs on the basis of cost recovery charges. The Dry Ports in question, like M/s. Thar Dry Port was declared as custodian vide notification dated 19.11.2001 and declared as an ICD vide order dated 29.11.2001. 5. As the facility developed, the Government brought in a notification dated 17.03.2009, notifying the Handling of Cargo in Customs Areas Regulations, 2009 (hereinafter referred to as 'HCCAR, 2009') and thereby replaced the earlier Guidelines of 1995. On 08.01.2013, a show cause notice was given by the Commissioner of Customs for the suspension or revocation in terms of Regulation 11(1) of HCCAR, 2009 and the order of forfeiture of security and also an outstanding cost recovery charges of Rs.1,71,44,034/- on account of arrears of 6th Pay Commission and the non-payment of Rs.69,57,425/- for the period from 01.04.2011 to 31.03.2012 along with the interest; in addition a sum Rs.40,98,978/- for the period from 01.07.2013 to 21.12.2013 and therefore, the aggregate amount of Rs.8,92,58,172 was sought to be recovered. 6. This Court also takes note of the Circular dated 19.01.2021, wherein it has been stated in para 4 that there is no requirement of bea....
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....at the said issue has been considered and decided by it in the case of Container Corporation of India Vs. Commissioner of Customs, Jodhpur, 2019 (366) E.L.T. 745 (Tri. Del.); relevant portion whereof reads as under: "13. The issue involved in this case is regarding confirmation of cost recovery charge against the Appellant vide the impugned order. The learned Adjudicating Authority has confirmed the demand under the provision raised by the show cause notice dated 29 march, 2016. The show cause notice at para 16 (ii) has invoked the provisions of Regulations 5(2) and 6(1)(o) of HCCAR). However, the commissioner has confirmed the demand without invoking any of those regulations. For the better appreciation of the issue involved we would like to refer to Regulation 5(2), 6(1)(o) and 12 of the Regulation of HCCAR. A perusal of the regulation reveals that the same is intended for levying of cost recovery charge and payment thereof. Similarly, the condition at 5(2) only states that custodian or CCSP will have to undertake to bear expenses of the Customs officers posted in the customs area on cost recovery charge basis as per the manner prescribed unless and until the sa....
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.... in the present case, the learned Commissioner in the impugned show cause notice had only invoked Regulations 11(1) and 12(8) of the HCCAR, 2009, however, confirmed the demand without invoking any of those Regulations. 12.1. Learned counsel further submitted that Commissioner had only invoked Regulation 5(2) and 6(1)(o) ordering for recovery of outstanding demand and thus, in view of the fact that both the Regulations do not provide for recovery, there could have been no recovery ordered under the aforesaid Regulations. 12.2. Learned counsel also submitted that there is a complete absence of any regulation in HCCAR, 2009 providing for either an order to be made for recovery or any mechanism or rules providing the manner of recovery, and thus, no recovery could have been ordered other than that of revocation/suspension of custodianship. 12.3. Learned counsel further submitted that as no other provision have been invoked nor any other provision had been cited in support of the stance that there exist any provision either in the HCCAR, 2009 or in the Act of 1962, recovery of cost recovery charges could not be made. In fact, there had been an obligation and requirement to pay ....
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.... International Airport Limited, Writ Appeal No. 1321 of 2012. (11) Commissioner of Central Excise Surat v. Favourite Industries (2012) 7 SCC 153. 12.7. Learned counsel for the Revenue submitted that the Dry Ports like M/s. Thar Dry Port, were appointed as Custodian of ICD, Pal-Barmer Road, Village Pal, Jodhpur under Section 45(1) of the Act of 1962 vide Public Notice No.27/2001 (Customs) dated 13.11.2001, subject to the conditions laid down therein. As per Condition No.(iii), the custodian were under obligation to pay cost recovery charges of the Customs Officers posted at ICD, as prescribed, in advance on year basis. 12.7.1. The Custodian communicated their acceptance of the guidelines dated 14.12.1995 on stamp paper and submitted undertaking that the custodian shall bear the cost of Customs staff posted at ICD concerned. As per para 10 of the undertaking, the custodian shall bear the cost of customs staff posted at ICD concerned, besides other conditions. 12.8. Learned counsel further submitted that the HCCAR, 2009 were promulgated vide Notification dated 17.03.2009 by the CBIC in exercise of powers conferred under sub-section (2) of Section 141 read with Sectio....
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....ed in ICD/CFC/ACC. The Ports in question claimed that they have achieved the requisite target and thus, they are seeking the waiver of cost recovery charges. 16. This Court also observes that the Commissioner in pursuance of the notices made earlier confirmed the demand of outstanding cost recovery charges under Regulations 5(2) & 6(1)(o) of the HCCAR, 2009; against which appeals were preferred before the learned CESTAT. 17. At this juncture, this Court considers it appropriate to reproduce Regulations 5(2), 6(1)(o), 11(1), 12(1) & 12(8) of the HCCAR, 2009, as here under: Regulation 5(2): "5. Conditions to be fulfilled by an applicant for custody and handling of imported or export goods in a customs area.- Any person who intends to be approved as a Customs Cargo Service Provider for custody of imported goods or export goods and for handling of such goods, in a customs areas, hereinafter referred to as the applicant, shall fulfil the following conditions, namely:- (1) . . . . (2) the applicant shall undertake to bear the cost of the Customs officers posted, at such custom area, on cost recovery basis, by the Commissioner and shall m....
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....l(s) dealt with the recovery of cost recovery charges, in pursuance of the show cause notices issued in 2013 and the order of the Commissioner passed in the year 2019. 19. The learned CESTAT after detailed consideration found that the recovery of the cost recovery charges under the aforesaid provisions of HCCAR, 2009 was not possible. The penalty as per the learned CESTAT was imposed under Regulation 12 (8) of the HCCAR, 2009, and thus, the cost recovery charges could not have been recovered under the provisions of HCCAR, 2009. 20. In the opinion of this Court, the impugned notices and the order of the Commissioner, ought to have been considered on merits by the learned CESTAT while also dealing with the issue as to whether such recovery was lawful or not. Further, it was also a point of determination as to whether if at all the recovery was required, under which provisions the same can be made. This is more so when the record reveals that the revenue has not been able to point out any such provision. The learned CESTAT in such circumstances should have remanded the matter back to the Commissioner for passing appropriate orders pertaining to recover in question under the rele....