2013 (12) TMI 924 - AT - Central Excise

Maintainability of Petition Held that - Section 35F is applicable only in respect of appeals against the decisions relating to duty demanded and penalty levied the present case is the appeal filed against the Commissioner (Appeals) s order are in respect of Merchant Overtime, not duty, the provisions of 35F are not applicable - Both the stay application dismissed as infructuous Decided against Assessee.

Summary

Issues:
Appeal against demand for Merchant Overtime - Applicability of Section 35F - Dismissal of stay application

Analysis:
The judgment pertains to appeals filed against the Commissioner (Appeals)'s order confirming the demand for Merchant Overtime (MOT) from the appellant, who are merchant exporters. The appellant had requisitioned the services of Central Excise Officers for supervision of in-factory stuffing of containers exported out of India. It was argued that if the containers were stuffed and sealed in the factory under the supervision of jurisdictional Central Excise officers, they would not require examination at the gateway port. The payment for the supervision services of the Central Excise staff, known as Merchant Overtime, is governed by the Custom (Fees for Rendering Services by Custom Officers) Regulations, 1998, on an hourly basis. The Department sought recovery of MOT separately for each consignment, even if goods covered under different ARE-I were stuffed during the same time period. The appellant contended that MOT should only be charged for the actual time period the supervision services were availed.

Upon hearing both sides in respect of the stay application, it was noted that Section 35F is applicable only in appeals against decisions related to duty demanded and penalty levied. In this case, the appeals were against the Commissioner (Appeals)'s order regarding Merchant Overtime and not duty. Consequently, the provisions of Section 35F were deemed inapplicable. As a result, both stay applications were dismissed as infructuous. The Registry was directed to list both appeals for regular hearing, indicating that the matter would proceed further in the standard course of appeal proceedings. The judgment was pronounced in open court, finalizing the decision on the stay applications and setting the stage for the appeals to be heard on their merits in due course.