TMI Blog2019 (7) TMI 1788X X X X Extracts X X X X X X X X Extracts X X X X ..... should be covered from the Appellant and the Regulations 5(2) and 6(1)(o) of the 2009 Regulations and also imposed penalty. This about the issue as to whether the recovery of outstanding cost recovery charges could have been confirmed was examined by a Division Bench of the Tribunal in Container Corporation of India. The Tribunal after examining the various provisions of the regulation observed that the Adjudicating Authority could not have order for recovery of the outstanding cost recovery charges - The penalty is imposed under Section 12(8) of the 2009 Regulations if a Customs Cargo Service provider contravenes any of the provisions of the Regulation or fails to comply with any provision of the Regulation with which it was its duty to comply. As it was held that cost recovery charges could not have been recovered under the aforesaid provisions of the Regulations, the penalty also could not have been imposed as there is no contravention of the Regulations. The impugned orders dated 26 February 2019 and 29 March, 2019 passed by the Commissioner to the extent that the demand of outstanding cost recovery charges has been confirmed and penalty has also been imposed are liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ites for examination by the Customs Officers and after completion of the custom formalities are allowed to be exported. Similarly, goods which are imported are also brought directly from the ship to the sites after unloading them in the specified ports for examination. For providing this facility, the Custodian is permitted to charge a certain amount per container from the exporter/ importer as handling charges. Thar Port was appointed as Custodian of ICD and Gemstone was appointed as Custodian of ACC under section 45 of the Act. 5. The Circular dated 14 December 1995 set out the guidelines for appointment of Custodians of CFS, ACC and ICD. To ensure smooth working of all the facilities, a need was felt to draw up a standard set of undertakings to be given by the Custodians before they were appointed under section 45 of the Act. The undertaking to be given was also contained in another Circular dated 14 December, 1995. The undertaking, inter alia, provided that the Custodian should provide safe, secure and spacious premises for loading/unloading/storing of the cargo. The Customs Department had to provide sufficient modern handling equipments in operational condition for handling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... past period. Criteria would be applicable on actual performance of ICDs/CFSs. 2. Based on the performance of ICDs/CFSs in the Financial Year 2003-04 and 2004-05, you are requested to provide the information as per enclosure in respect ICDs/CFSs for which regularization of posts are suggested, no cost recovery charges are under dispute or pending payment as on 31 August 2005. 3. Member (Customs) has desired that information should be submitted by 19.09.2005 by return FAX and by email at anupam.prakash@rediffmail.com(.) 10. In terms of the aforesaid Notification, Thar Port submitted an application for waiver of Cost Recovery Charges but as no decision was taken, it filed a Writ Petition in the Rajasthan High Court being Writ Petition 87157 of 2017 for wavier of the charges in terms of the Notification dated 12 September 2005 as it claimed to have achieved the requisite target. The said petition is said to be pending. Gemstone also wrote a letter to the Board seeking waiver as, according to it, the conditions set out in the Notification dated 12 September 2005 stood complied with. 11. However, show cause notices dated 9 January 2013 and 11 December 2012, were issued to bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Jodhpur [2019(366) E.L.T. 745 (Tri. Del)]. Learned representative also submitted that the Appellants are clearly entitled to waiver of the cost recovery charges in terms of the Notification dated 12 September 2005, which issue is pending before the Rajasthan High Court in Writ Petition 17850 of 2017 filed by Thar Port. 16. Learned Authorised Representative of the Department, however, supported the impugned orders. Learned Authorised Representative placed reliance upon the Circular dated 23 March 2009 issued in connection with the 2009 Regulations as also the judgment of the Delhi High Court in Allied ICD Service Ltd Vs. Union of India 2018 [(364) E.L.T. (59) (Tri. Del)]. Learned Authorised Representative also submitted that the 2009 Regulations require the Appellants to pay the cost recovery charges and so it was incumbent upon the Appellants to have paid the amount and if the amount is not paid, recovery can be resorted to under the 2009 Regulations. Learned Authorised Representative submitted that the 2009 Regulations do provide for recovery of the outstanding recovery charges in terms undertakings submitted by the Appellant for payment of such charges. Learned Authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspension or revocation of the approval and imposition of penalty. The impugned orders rely upon Regulation 11(1) and 12(8). They are reproduced below: 11(1) The Commissioner of Customs may, subject to the provisions of these regulations, suspend or revoke the approval granted to the Customs Cargo Service Provider subject to the observance of procedure prescribed under regulation 12 and also order for forfeiture of security, if any, for failure to comply with any of the provisions of the Act and the rules, regulations notifications and orders made thereunder. 12(1) The Commissioner of Customs shall issue a notice in writing to the Customs Cargo Service provider stating the grounds on which it is proposed to suspend or revoke the approval and requiring the said Customs Cargo Service provider to submit within such time as may be specified in the notice not being less than thirty days, to the Assistant Commissioner or Deputy Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said statement whether the Customs Cargo Service provider desires to be heard in person by the Said Assistant Commissioner or Deputy Commissioner of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 12 of the 2009 Regulations. What was stated was that the Appellant has rendered themselves 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 forfeiture of security and imposition of penalty under Regulation 12(8) of the 2009 Regulations. The Commissioner under the impugned order did not either revoke the approval of the Custodianship or was the security forfeited. The Commissioner ordered that the outstanding cost recovery charges should be covered from the Appellant and the Regulations 5(2) and 6(1)(o) of the 2009 Regulations and also imposed penalty. 26. This about the issue as to whether the recovery of outstanding cost recovery charges could have been confirmed was examined by a Division Bench of the Tribunal in Container Corporation of India. The Tribunal after examining the various provisions of the regulation observed that the Adjudicating Authority could not have order for recovery of the outstanding cost recovery charges. In this connection, the Tribunal, particularly, noticed the provisions of the Regulation 5(2) and 6(1)(o) of the 2009 Regulations the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed penalty . Further, the learned Adjudicating Authority has also held that there is no provision of recovery of interest under the Regulation 2009. It is not appreciable that when he has held that there is no provision for imposition of interest under the Rule for the default made by the CCSP then how his attention escaped to notice that there is also no similar provision for recovery of default payment either under Regulations 5(2), 6(1)(o) of the Regulation. We also find that the Regulation 5(2) states undertaken to bear the cost of Custom Officer posted, at such Customs area, on cost recovery basis, by the Commissioner and shall make payment at such rate and in the manner prescribed unless specifically exempted by an order of the Government of India in the Ministry of Finance. [emphasis supplied] 27. Learned Authorised Representative for the Department, however, submitted that this decision would not come to the aid of the Appellants. This issue was specifically decided by the Tribunal in Container Corporation of India and, therefore, it is not possible to accept the contention of learned Authorised Representative of the Department that the aforesaid decision would ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
