9911796707
TMI Blog2024 (3) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 (for short 'the Act, 1962') arising out of order dated 23.11.2007 in Appeal No. E/339/2007 and order dated 09.06.2008 in Rectification Application No. 491/2008 passed by the Customs, Excise & Service Tax Appellate Tribunal (for short 'the Tribunal'). 3. The Appeal is admitted vide order dated 14.09.2009 on the following substantial questions of law: "1. Whether for carrying out examination and supervision of loading of export goods at the factory of the manufacturer during office hours on working days the Central Excise Officers are entitled to charge Merchant Overtime Fee ? 2. Whether the Tribunal was not in error in not following its earlier decisions and in taking a different view without referring the issue to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations, 1998') issued by Notification No. 69/1998 dated 14.09.1998. 4.3 The show-cause notice was also issued as to why the penalty should not be imposed under Rule 27 of the Central Excise Rules and also as to why interest should not be charged on Rs. 1,35,135/- under section 11AB of the Act. 4.4 The appellant filed reply dated 05.06.2006 raising preliminary objection challenging the show-cause notice as the subject-exported goods were stuffed in containers in the appellant's factory itself in the supervision of the Central Excise Officer (Range Officer) having jurisdiction over the factory during working hours. 4.4 However, the Adjudicating Authority held that the factory premises, where the Jurisdictional Range Officer had supervis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal, preferred application for restoration and rectification of mistake. The Tribunal, by order dated 09.06.2008 while allowing the appellant's application for restoration, recalled the order dated 23.11.2007 and restored the appeal but turned down the application for rectification of mistake and reiterated the earlier order dated 23.11.2007 by following the decision in Tax Appeal No. 672/2007 and thereby, the appeal filed by the respondent-Revenue was allowed. 5. Learned advocate Mr. Hardik Modh appearing for the appellant submitted that the Tribunal had taken consistent view in similar matters that MOT charges would not be payable for examination and supervision of loading export goods undertaken by the Central Excise Range Officer at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on working days of week and even during office hours. 6.1 Learned advocate for the Revenue referred to and relied upon Regulations, 1998 to submit that the intent and purpose for claiming such charges by the exporter for attending the stuffing work within the office hours and within the territorial jurisdiction of the officers who are assigned jobs by the Senior Executive Officers for such work and accordingly, section 36 of the Act, 1962, should be applied in proper perspective as in the port area, there is no concept of self-examination, self-clearance and goods are necessarily subject to examination by the officer and charge for such examination being given by the officers to the Central Excise Officer for supervising the stuffing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The rate and the manner of collection of such fee is given in the aforesaid Regulations of 1998. 8. In the present case, it is an admitted position that stuffing work was done in the factory of respondent under the supervision of jurisdictional Central Range Officer during working hours only. The place of working/supervision was at the factory of the respondent which is at Mayapuri. Learned counsel for the respondent has pointed out that as per Notification No. 14/2002-CE(NT) dated 08.03.2002 as amended by Notification No. 22/2002-CE(NT) dated 04.06.2002, the jurisdiction of Delhi II. Range 26 of Central Excise Division-V includes Mayapuri Indi. Area Ph.-II where the factory of respondent is located, the services were rendered by the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that supervision was made by the Range Central Excise Officer in whose territory the factory of the appellant is located. Chapter 13 of the C.B.E. & C.'s Customs Manuals deals with "Merchant Overtime Fee" wherein it is provided that if services are rendered by the Custom Officer at a place which is not his normal place of work or place beyond the custom area, overtime is levied even during the normal working hours. 10. Therefore, in the facts of the case, none of the condition for levy of the MOT charges is satisfied and accordingly, the appeal is allowed by answering the questions in negative and in favour of the appellant to the effect that the appellant would not be liable to pay Merchant Overtime Charges for carrying out exa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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