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TMI Blog2022 (11) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod from 01.01.2016 to 30.06.2016 of the outstanding cost recovery charges against the appellant has been confirmed with penalty. However, the custodianship of the appellant has neither been revoked nor security has been forfeited. 3. Customs Appeal No. 51724 of 2019 has been filed by the appellant to assail the order dated 29.04.2019 passed by the Commissioner by which the demand for the period from 01.07.2016 to 31.03.2017 of the outstanding cost recovery charges against the appellant has been confirmed with penalty. However, the custodianship of the appellant has neither been revoked nor security has been forfeited. 4. As similar issues are involved in these three appeals, they are being decided by a common order. 5. The facility of customs clearance of goods for export/ import and for assessment, levy and collection of customs duty in hinterland in important cities with a view to decongest the Ports at Entry Points was started sometimes in 1995. For this purpose, help was sought from private/public sectors for providing premises suitable for customs officers and could be declared as "Customs Area" and "Customs Ports" as defined under the Customs Act 1962 [the Act]. Such Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire cost of the said posts which was 1.85 times of the monthly average cost of the post in advanced. Accordingly, the Managing Director of the appellant submitted an undertaking to the Customs Department that the custodian shall bear the cost of the staff. 9. It needs to be noted that the aforesaid Circular dated 14.12.1995 was replaced by the Handling of Cargo in Customs Area Regulations 2009 [the 2009 Regulations]. The Ministry of Finance also issued a notification dated 12.09.2005 regarding cost recovery posts in respect of the customs staff posted in ICD/CFS/ACC and the same is reproduced below: "I am directed to bring your kind attention that it has been decided to consider regularization of those cost recovery posts at ICDs/CFSs which have been in operation for two consecutive years with following performance benchmark for past two years:- (i) No. of containers handled by ICD : 7200 TEUs per annum (ii) No. of containers handled by CFS : 1200 TEUs per annum (iii) No. of BE or SB processed by ICDs/CFSs : 7200 per annum for ICD and 1200 for CFSs (iv) Benchmark at (1) to (3) shall be reduced by 50% for those ICDs/CFSs exclusively dealing with exports, as per staff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty could have been imposed under regulation 12 (8) of the 2009 Regulations and in support of this contention, reliance has been placed on a Division Bench decision of the Tribunal in Container Corporation of India vs. Commissioner of Customs, Jodhpur [2019 (366) E.L.T. 745 (Tri.-Del) ]. 15. Learned authorized representative of the Department, however, supported the impugned orders. Learned authorized representative placed reliance upon the Circular dated 23.03.2009 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 authorized representative also submitted that the 2009 Regulations require the appellant to pay the cost recovery charges and so it was incumbent upon the appellant to have paid the amount and if the amount was not paid, recovery can be resorted to under the 2009 Regulations. Learned authorized representative submitted that the 2009 Regulations do provide for recovery of the outstanding recovery charges in terms of the undertaking submitted by the appellant for payment of such charges. Learned authorized representative also submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations 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 Customs. ***** ***** (8) If any Customs Cargo Service provider contravenes any of the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ordered for recovery of the outstanding cost recovery charges. In this connection, the Tribunal, particularly, noticed the provisions of the regulations 5(2) and 6(1)(o) of the 2009 Regulations and the order of the Tribunal is reproduced below: "13. The issue involved in this case is regarding confirmation of cost recovery charge against the Appellant vide the impugned order. The learned Adjudicating Authority has confirmed the demand under the provision raised by the show cause notice dated 29 March, 2016. The show cause notice at para 16 (ii) has invoked the provisions of Regulations 5(2) and 6(1) (o) of HCCAR. However, the Commissioner has confirmed the demand without invoking any of those regulations. For the better appreciation of the issue involved we would like to refer to Regulation 5(2), 6(1)(o) and 12 of the Regulation of HCCAR. A perusal of the regulations reveals that the same is inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by an order of the Government of India in the Ministry of Finance." (emphasis supplied) 25. Learned authorized representative for the Department, however, submitted that this decision would not come to the aid of the appellant. 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 authorized representative of the Department that the aforesaid decision would not be applicable to the facts of these appeals. 26. Learned authorized representative also placed reliance upon the decision of the Delhi High Court in Allied ICD Service Ltd. to contend that cost recovery charges can be recovered. The contention of the petitioner before the Delhi High Court was that customs officers are Government Officers who perform sovereign functions and duties in terms of the statutory mandate and, therefore, the petitioner should not be required to pay any charge for their posting. This contention was not accepted by the Delhi High Court. This decision would, therefore, not help the Department. 27. This issue was also examined at length by the Division Bench of the Tribunal in M/s. The Thar Dry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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