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2019 (2) TMI 507 - AT - CustomsConfirmation of cost recovery charge - legal provisions not clearly invoked - Invocation of provisions of Regulation 5(2) and 6(1)(o) of HCCAR - Held that:- The ld. Adjudicating authority has confirmed the demand under the provision raised by the show cause notice dated 29.3.2016. The show cause notice at para 16(ii) has invoked the provisions of Regulation 5(2) and 6(1)(o) of HCCAR. However, the Commissioner has confirmed the demand without invoking any of those regulation. 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 custom officers posted in the custom area on cost recovery charge basis as per the manner prescribed unless and until the same is exempted by the Ministry of Finance. Therefore, Regulation 6(1)(o) of the Regulation (6) is not meant for recovery of default payment but only it says that the CCSP will have to bear the cost of officer deployed at their premises. Similarly, Regulation (12) of the CCAR does not prescribe for the recovery of defaulted cost recovery charge. But only states that the same is procedure for suspension or revocation of approval and imposition of penalty. The ld. Adjudicating authority has not appreciated the legal provision as contained in HCR, which do not indicate the machinery for realisation of cost recovery charge on account of being defaulted. In fact, the show cause notice has invoked the provisions of Regulation 12 of HCCAR which does not provide for the realisation of the cost recovery charge but only revocation of the licence granted to CCSP on account of various breaches as contained therein. This regulation has no provisions for recovery of unpaid cost recovery charge on account of non-fulfilment of criteria as laid down in the CBEC circular - the order passed by the ld. Adjudicating authority is beyond the scope of the provisions of HCCAR, 2009. The provisions of Regulation 5(2) of HCCAR is clear and unambiguous that the cost recovery charge is not required to be paid when the same is specifically exempted by the order of Government of India and Ministry of Finance. It is on record that in the case of appellant Ministry has exempted cost recovery charge vide letter dated 23.5.2006 and 18.2.2009. We thus hold that the appellant is duly entitled for the benefit of cost recovery charge for the subsequent years in terms of the new regulation also under provisions of the HCCAR, 2009 - appeal allowed - decided in favor of appellant.
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