9911796707
TMI Blog2023 (10) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... our Lordships may be pleased to issue a Writ of Certiorari or Mandamus or any other appropriate writ, order or direction quashing and setting aside letter dated 12.11.2020 issued by the office of respondent no. 3 calling upon the petitioners to make payment of establishment charges on cost recovery basis; (B) Your Lordships may be further pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction, holding and declaring that the petitioner no. 1 is eligible for waiver from payment of cost recovery charges as extended under Circular dated 12.09.2005 from the date on which the conditions mentioned in the said Circular were fulfilled and further directing the respondent authorities to refund any amounts recovered by the respondent authorities as cost recovery charges during this period along with interest as may be deemed fit by this Hon'ble Court; (C) In the alternative, Your Lordships may be pleased to hold and declare that recovery of cost recovery charges by the respondent authorities has been without any authority of law and the same may therefore, be refunded back to the petitioners along with appropriate interest as may be deemed fit by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... containers and the number of bills of entry / shipping bills processed were 1200. According to the petitioner, the petitioner had met this benchmark in the years 2017-18 and 2018-19 and was therefore entitled to waiver of cost recovery charges. Accordingly on 05.06.2019, the petitioner made an application that since the cost recovery charges were paid till 30.06.2019, the petitioner be exempted from paying such cost recovery charges with effect from 01.07.2019. 2.4 By a letter dated 31.08.2020, the petitioner company was informed that the application for waiver of cost recovery charges which was forwarded to the Principal Director General had been returned by the authorities by communications dated 25.08.2020 and 21.08.2020. As per the communications so received, the petitioner was informed that the proposal for exemption for payment of cost recovery charges can only be considered when the CFS has operated for two consecutive years from the date of sanction order of the creation of posts. Since the posts were sanctioned with effect from 18.03.2020, the waiver can be considered only two years after upon fulfillment of condition as provided in the circular dated 12.09.2005. 2.5 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not happened as the posts were sanctioned only with effect from 18.03.2020. He would submit that since the creation/sanction of posts which was essential before the commencement of the operation was only sanctioned with effect from 19.03.2020, the CFS was not entitled to exemption prior thereto even if it had fulfilled the benchmark as per the circular dated 12.09.2005. He would rely on a communication dated 22.08.2019 issued by the Ministry pointing out that it was foremost that the creation of costs recovery posts was essential before the issuance of notification which was not done in the case on hand and therefore the petitioners were not entitled to any relief. 5. Having considered the submissions made by the learned counsels for the respective parties, it is evident that the petitioners on 12.05.2008 made an application for establishment of a service unit at Mundra. By a notification dated 19.08.2011, in exercise of powers under Rule 11(11) of the Rules, the entire area of the CFS of the petitioner company was designated as Landing Place for unloading of imported cargo and loading of export goods meant for both SEZ and DTA. By a notification no. 2/2016-17, the office of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive years with following performance benchmarks for the past two years. In case of the petitioners , admittedly, for the two yeas i.e. 2017-18 & 2018-19 the benchmark beyond 1200 for handling containers and as far as the number of bills of entry and shipping bills has been complied with which is indicated from the details given under: No. of containers handled (TEUs) 1565 5363 No. of bills of Entry / Shipping Bills (per annum) 1311 2333 6. Admittedly, therefore, in accordance with the communication dated 12.09.2005, the petitioner company was entitled to waiver of cost recovery charges as applied by the petitioner company with effect from 01.07.2019. Despite this, it is evident from the communications impugned in the petition that in the perception of the respondents the proposal for exemption from payment of cost recovery charges can be requested when the CFS has been operated for two consecutive years from the date of sanction order of creation of posts. In the impugned communication, it is the case of the respondents that since the sanction of such posts was with effect from 18.03.2020 the waiver can be considered only after two years from such date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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