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2021 (6) TMI 429 - HC - CustomsDemand of arrears of amount payable towards Cost Recovery Charges - Container Freight Licence - implementation of the VI Pay Commission as a result of which the salaries of the Central Government Employees were increased drastically - HELD THAT:- There is ample power vested with the Central Government and the Central Board of Excise and Customs as the case may be to make regulations for levying fees in respect of applications, amendment of documents, furnishing of duplicates of documents, issue of certificates, and supply of statistics, and for rendering of any services - there is no difficulty in arriving at a conclusion that both the Central Government and the Central Board of Excise and Customs have power to make a regulation Handling of Cargo in Customs Areas Regulations, 2009 and to levy Cost Recovery Charges from service providers to whom it deputes its officer. The practice of levy and payment of Cost Recovery Charges (CRC) from Custom Cargo Service Providers such as Container Freight Stations (CFS) and Internal Container Depots, (ICDS) is to be viewed from the historical perspective. Private participants were encouraged to develop them near the ports to relieve the congestion at ports for proper storage and Faster clearance of the import and export goods - the concept of a CFS is known as ‘Off Dock Container Yard’ (CY), which acts as an extended arm of the port to facilitate the clearance of the goods to reduce the congestion and delay in the Ports. There is no question of the Customs Department deploying any person who is not an employee of the Customs Department or was already in the Public Service of the Union. Though, section 158(2) of the Customs Act, 1962 permits the Central Government or the Central Board of Excise and Customs to frame Rules for rendering of any services by officers of the Customs, under the provisions of the Customs Act, 1962, it cannot permit recovery of the entire salary to be paid to the such amounts are payable by the Central Government. Cost Recovery Charges (CRC) can be only in proportion to the excess amount that may be required to be paid to officers on being deployed in such facilities on special occasions - unless there is an appropriate amendment to the provisions and the Customs Act,1962 and the Rules made thereunder which fall within the four corners of Part XIV of the Constitution of India Cost Recovery Charges equivalent to the Salaries packs paid to such officials of the Customs Department cannot be justified. In absence of any direct notification/government order specifying the rates to be levied towards Cost Recovery Charges under the aforesaid Regulation for deploying its officers the collection of Charges on Cost Recovery basis from the petitioner has been made contrary to the above Regulation - Since the petitioner has reportedly paid an amount ₹ 45,01,960/- in the past amounting. Neither the aforesaid amount nor the excess amount that was demanded would have been payable by the petitioner had a proper notification/order been issued. The amount collected also cannot be directed to be refunded back to the petitioner as the petitioner would have passed on incidence of such amount to the customer who had availed of services of the petitioner. Therefore, there can be no order for refunding of the amount. Therefore, only way out is to regularize the amounts already paid & collected in the past. While disposing these writ petitions in favour of the petitioner by directing the respondents to regularize the payments already made by the petitioner and by directing the respondents to grant waiver to the petitioner for the period after the petitioner has achieved the required benchmark/criteria as per the CBEC Circular dated 12.09.20-5 bearing Reference F.No.434/17/2004 - it is directed to issue appropriate notifications for the benefit of Trade and Public within a period of 6 months specifying the rates /charges payable by a “Customs Cargo Service Providers” on Cost Recovery Charges(CRC)basis operating under the Provisions of the Handling of Cargo in Customs Areas Regulations, 2009 in consonance with the provisions of the Customs Act, 1962 and the Constitution of India. Petition disposed off.
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