Page 33 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] COST RECOVERY CHARGES A125

• Whether the appellant can be held responsible for non-payment of
cost recovery charges when no calculation was made by the Reve-
nue?
The Tribunal relied on the judgment of the Supreme Court in Commis-
sioner v. Larsen & Toubro Limited - 2015 (39) S.T.R. 913 (S.C.) (supra). The Appel-
late Tribunal held that in the absence of any calculation of the demand made by
the Revenue, the appellant cannot be responsible for non-payment of cost recov-
ery charges. As the appellant has achieved the benchmark performance, in that
circumstance, the Revenue is duty bound to examine the issue and disposed of
the claim of waiver failing which the Revenue cannot continue to demand the
cost of recovery charges from the appellant from 1-3-2010.
Against the order of the Appellate Tribunal the Revenue filed appeal be-
fore the High Court. [2020 (371) E.L.T. 633 (P & H)].
The High Court further held that the Tribunal is final fact finding author-
ity and in matters such as present, an appeal lies from the final order the Tribu-
nal to the High Court, only on substantial questions of law. Matters ordinarily
involving appreciation of evidence would not involve substantial question of
law. The High Court in exercise of its power conferred by Section 130 of the Cus-
toms Act, 1962 is not empowered to reappreciate the evidence, which has already
been appreciated by the Tribunal.
The High Court observed that respondent during 2008-2010 achieved
benchmark performance and instructions 2005 as well as 2009 nowhere require
filing of application by CFS seeking waiver of cost of recovery charges. As per
the instructions no dues should be pending on 31-8-2005 and it is not the case of
the Revenue that anything was pending against the respondent on 31-8-2005. The
respondent cleared the dues of 2008-2010 prior to the issue of notice dated 4-6-
2012 by the Revenue. Prior to 2009 only instructions were holding the field and
the respondent cannot be asked to pay cost recovery charges when it had already
achieved benchmark performance which is the paramount requirement. The
respondent has not claimed any exemption for the period 2008-2010, thus there
seems no reason to charge cost of officers when benchmark performance stood
achieved.
According to the HCCAR it was the duty of the Government of India to
specify rate and manner and it is axiomatic in taxation law that in the absence of
mechanism, no recovery can be made. The High Court did not find any reason
to interfere and set aside the findings recorded by the Appellate Tribunal. The
High Court dismissed the appeal filed by the Revenue.
Denial of exemption :
In Container Corporation India Limited v. Commissioner of Customs, Jodhpur -
2017 (358) E.L.T. 1160 (Tri.-Del.), the appellant was appointed as Custodian of
Inland Container at Jodhpur under Section 45(1) of the Customs Act, 1962. On
6-11-2011 the Ministry of Finance conveyed the sanction of 13 temporary posts of
Customs officials of various ranks, to manage the Customs work in the ICD. One
of the conditions for managing the ICD is that the appellants have to pay the cost
recovery charges @ 185% of the salary of the staff deployed to the Government.
The present appeal is relating to the appellant’s liability to pay such cost recov-
ery charges for the period from 1-4-2009 to 31-12-2012 amounting to ` 4.12 crores.
The jurisdictional Commissioner insisted on the full recovery of the said amount
EXCISE LAW TIMES  15th May 2020  33