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2020 (2) TMI 876 - AT - CustomsDemand of pending dues of Cost Recovery Charges alongwith the interest - Customs Cargo Service Provider (CCSP) - period from 01/01/2016 till 31/03/2018 - cancellation of CHA license on failure of payment of dues alongwith imposition of penalties - mechanism for recovery of dues not present - scope of SCN - HELD THAT:- The appellant is an approved Customs Cargo Service Provider under the HCCAR, 2009. Further, the appellants for the last two years have paid the Cost Recovery Charges of ₹ 42,11,029/- [01/01/2014 to 31/12/2014] and ₹ 58,23,776/- [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, the appellants vide letter dated 11/01/2016 to the Commissioner of Customs sought exemption/waiver from payment of Cost Recovery and the Commissioner of Customs vide its letter dated 16/02/2016 to Additional Director General and Under Secretary to the Ministry of Finance, Department of Revenue informed that the appellants have achieved the bench mark in the year 2014-15 and 2015-16 and that the appellants have also remitted the Cost Recovery Charges up to 31/12/2015. In the show-cause notice the allegations against the appellant was that they have violated the Regulations 5(1)(iii) relating to Insurance Policy and Regulations 5(2) relating to non-payment of cost recovery charges and Regulation 5(3) relating to Bank Guarantee. Out of these three charges, the Commissioner has held that the appellant has complied with the Regulation 5(1)(iii) and 5(3) and has confirmed the demand under Regulation 5(2) - Further, the impugned order directing the appellant to pay Cost Recovery Charges of ₹ 2,18, 47,100/- is beyond the show-cause notice because in the show-cause notice the only allegation is that the appellant has not fulfilled the conditions as laid down in Regulations 5 (1) (iii), 5(2) and 5(3). Therefore, the payment of recovery in the impugned order is beyond the show-cause notice and is not sustainable. In HCCAR, 2009, no recovery mechanism for recovery of Cost Recovery Charges has been provided and this has been considered by the Tribunal in the case of CONTAINER CORPORATION OF INDIA LTD. VERSUS CC, JODHPUR [2019 (2) TMI 507 - CESTAT NEW DELHI] and it has been held by the Tribunal that if the Regulation has no provisions for recovery of unpaid Cost Recovery Charges then the recovery cannot be effected in law. The impugned order directing the appellant to pay the pending dues of Cost Recovery Charges for the period from 01/01/2016 till 31/03/2018 along with interest is premature and cannot be given effect to unless the application of the appellant dated 11/01/2016 to the Commissioner of Customs seeking exemption/waiver from payment of Cost Recovery Charges is decided by the respondent - appeal disposed off.
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