2010 (8) TMI 375 - AT - Central Excise

Overtime charges paid for the supervision outside the factory - Department was of the view that since storage is permitted outside the factory there shall be physical supervision of departmental officer on such goods for which cost of supervision popularly known as overtime charges collectable from the assessee - government and the policy issued is very clear that there was no physical supervision warranted on non-duty paid goods to be compensated by overtime charges - appeal filed by the appellant is allowed and refund permissible subject to scrutiny under the law

Summary

Issues:
Appeal against refund claim based on circular dated 23-4-2003 regarding overtime charges for supervision outside the factory.

Analysis:
The appellant sought a refund relying on Circular No. 709/25/2003-CX, dated 23rd April, 2003, claiming no overtime charges for supervision outside the factory. However, the adjudicating authority noted that the circular was issued after the period for which the charges were paid, as Circular No. 610/1/2002-C.X., dated 1-1-2002, was in force at that time. Consequently, the authority held that the appellant was liable to pay the overtime charges.

The department contended that the circular dated 23-4-2003 was prospective, denying the appellant's refund claim. The department's stance was supported by the decision in the case of CCE, Rajkot v. Reliance Industries Ltd., where it was argued that the matter should be referred to a Larger Bench and the appellant should not succeed.

Upon review, it was established that the circular dated 1-1-2002 allowed storage of sugar outside the factory, subject to physical supervision by a departmental officer, necessitating the collection of overtime charges. However, the subsequent circular dated 23-4-2003 clarified that physical supervision was no longer required for non-duty paid goods stored outside the factory, eliminating the need for overtime charges. The government's policy was clear that no physical supervision was warranted for such goods, thereby absolving the appellant from liability.

The decision cited by the department regarding customs issues and physical supervision inside containers was deemed irrelevant in the context of the government's policy against collecting unnecessary charges. Consequently, the appeal filed by the appellant was allowed, granting permission for the refund, subject to legal scrutiny.

In conclusion, the judgment favored the appellant, emphasizing the government's policy against imposing overtime charges for supervision outside the factory, as clarified in the circular dated 23-4-2003. The decision highlighted the importance of aligning with the evolving regulatory framework and policies to ensure fair treatment in refund claims related to such charges.