2014 (3) TMI 195 - AT - Central Excise

EOUs Must Pay Merchant Overtime Charges for Export Supervision

BNAZRUM AGRO EXPORTS (P) LTD. Versus COMMISSIONER OF C. EX., MADURAI

The Tribunal upheld the requirement for Export Oriented Units (EOUs) to pay Merchant Overtime (MOT) charges for supervision of exports by Central Excise ... Payment of Merchant Overtime - Supervision on export undertaken during office hours - Whether the appellant Export Oriented Unit (EOU), is required to pay Merchant Overtime (MOT) charges for supervision of exports undertaken by the Central Excise officers during office hours - Held that:- Board's Circular dated 7-4-2003 merely refers to an earlier Circular dated 2-1-2000 and states that EOUs would be given an option of either using the services of Customs/Central Excise officers on payment of cost recovery charges or on payment of MOT. This provision of providing an option appears to have been done to facilitate small EOUs and reduce their cost of operation. Normally, the EOUs which work under a customs bond outside the places where Custom Houses are located and customs officers are posted, have to bear the cost recovery charges for posting one or more officers specially to look after the work relating to EOUs. The small EOUs do not have sufficient work and bearing such charges would become costly. Hence, the circular gives a beneficial option to enable such EOUs for requiring the services of officers for a limited period of time on MOT. As such, the provisions of this circular could neither be held to be perverse or in any way contravening the provisions of the parent Act. As regards the MOT charges, the same are required to be collected as per Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998 which has been framed in exercise of the statutory powers vested in the Board. The practice of charging MOT is on age old practice not only under the present Customs Act framed in 1962 but also prevalent under the older Sea Customs Act, 1878. There appears to be nothing repugnant in the practice of charging MOT. The assessee should not hesitate to pay for the services which are required to be performed beyond the normal place of work of the customs officers and beyond the normal hours of duty - small amounts of MOT charged under the impugned orders are not unreasonable and the same are payable in accordance with the Regulations framed by the Board. The appellants, of course, have an option of paying cost recovery charges which definitely would be much more than the MOT charges considering the increased salary and allowances presently payable for the Customs and Excise officers - Decided against assessee. Issues:- Whether Export Oriented Units (EOUs) are required to pay Merchant Overtime (MOT) charges for supervision of exports undertaken by Central Excise officers during office hours.Analysis:- The judgment deals with three cases involving the issue of whether EOUs must pay MOT charges for supervision of exports by Central Excise officers during office hours. In two cases, the original authority ruled no MOT was payable, but the first appellate authority reversed this decision, leading to appeals before the Tribunal. In the third case, the original authority held MOT was payable, confirmed by the lower appellate authority, resulting in an appeal before the Tribunal.- The appellant's counsel acknowledged Tribunal decisions stating MOT is payable if work is not at the officers' normal place. However, citing specific cases where MOT was not chargeable, the counsel argued against the payment. The learned SDR relied on Tribunal decisions supporting MOT charges and highlighted the absence of Division Bench decisions on the issue.- The Tribunal noted that decisions cited were by Single Member Benches and not binding on others. Referring to a Circular giving EOUs the option to pay cost recovery charges or MOT for officer services, the Tribunal explained the rationale behind the Circular to reduce costs for small EOUs operating outside Customs Houses' locations. The Tribunal emphasized the legality of charging MOT under the Customs Regulations and the historical practice of such charges.- Ultimately, the Tribunal upheld the impugned orders, stating that the MOT charges were not unreasonable and should be paid in accordance with the Board's Regulations. The judgment highlighted the option for EOUs to pay cost recovery charges, likely higher than MOT charges due to increased officer salary and allowances.- In conclusion, the Tribunal rejected all three appeals, emphasizing the legality and reasonableness of the MOT charges under the existing regulatory framework.Conclusion:The judgment clarifies the requirement for EOUs to pay MOT charges for supervision of exports by Central Excise officers during office hours, emphasizing the legality and rationale behind such charges under the Customs Regulations.