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2022 (11) TMI 1013 - AT - CustomsCustodian of ICD - cost recovery charges of the custom staff - whether there is a procedure set out for recovery of the outstanding cost recovery charges for the posting of the custom officers at ICD/CSF/ACC under the 2009 Regulations? - Handling of Cargo in Customs Area Regulations 2009 HELD THAT:- The show cause notices were issued to the appellant under regulation 12 of the 2009 Regulations. What was stated was that the appellant has rendered itself liable for suspension/revocation of approval of the custodianship in terms of the provisions contained in regulation 11(1) of the 2009 Regulations and also for forfeiture of security and imposition of penalty under regulation 12(8) of the 2009 Regulations. The Commissioner, under the impugned orders, did not revoke the approval of the custodianship nor was the security forfeited. This issue was also examined at length by the Division Bench of the Tribunal in M/S. THE THAR DRY PORT AND M/S. JAIPUR GEMSTONE EXCHANGE VERSUS C.C.E. & S.T., JAIPUR I [2019 (7) TMI 1788 - CESTAT NEW DELHI] and it was held that the Commissioner could not have ordered for cost recovery charges under the aforesaid provisions of regulations 5(2) and 6(1)(o) of the 2009 Regulations. The penalty that was imposed under regulation 12(8) was also set aside. It has, therefore, to be held that the Commissioner committed an illegality in ordering recovery the cost recovery charges under the aforesaid provisions of the 2009 Regulations. The penalty that has been imposed is also liable to be set aside - the impugned orders dated 30.10.2018, 17.01.2019 and 29.04.2019 passed by the Commissioner to the extent that the demand of outstanding cost recovery charges have been confirmed and penalty has also been imposed are liable to be set aside and are set aside. Appeal allowed.
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