TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 813
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....ma for the opponent. 2. This Tax Appeal is filed under section 130 of the Customs Act, 1962 (for short 'the Act, 1962') arising out of order dated 28.09.2007 in Appeal No. E/141/06 & Appeal No. E/672/07 passed by the Customs, Excise & Service Tax Appellate Tribunal (for short 'the Tribunal'). 3. The Appeal was admitted vide order dated 22.09.2009 on the following substantial questions of law: "a) Whether the Customs, Excise and Service Tax Appellate Tribunal erred in holding that recovery of Merchant Over Time charges can be made for using the services of Central Excise Officers during office hours under Section 36 of the Customs Act, 1962 read with Customs (Fees For Rendering Services By Customs Officers) Regulation, 1998 and Circular ....
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....days a week and 365 days a year mandate for Customs Officers in accordance with MF (DR) Circular No. 5/2002-Cus., dated 17.1.2002 and in view of the fact Merchant Over Time charges tend to increase the transaction cost for imports/exports besides leading to enormous paperwork? g) Whether the impugned order passed by the Customs, Excise and Service Tax Appellate Tribunal is violative of Principles of Natural Justice in view of the fact that a plethora of judicial pronouncement cited and relied upon by the appellant with regard to demand and recovery of Merchant Over Time charges has not been considered ? h) Whether the Customs, Excise and Service Tax Appellate Tribunal erred in ignoring the provisions of Part-II of Chapter 18 of the CB....
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....cause notices dated 20.12.2004, 09.02.2005 and 06.01.2006 for the aforesaid period calling upon to show as to why the MOT charges for using service of Central Excise Officers during office hours should not be recovered under the aforesaid provision and regulation and notification. 6.1 After considering the reply given by the appellant, the Adjudicating Authority passed the Order-in-Original dated 23.02.2006 confirming the demand of MOT charges of Rs. 24,450/- for the period from 01.04.2004 and 30.09.2004 and Rs. 17,100/- for the period from 01.10.2004 to 31.01.2005. 6.2 The appellant being aggrieved by the Order-n-Original dated 23.02.2006 preferred Appeal No. 166 of 2006 before the Commissioner (Appeals), Ahmedabad. However, by order dat....
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....s placed on the decision of the Delhi High Court in case of Commissioner of Commissioner of Central Excise vs. Sigma Corporation India Pvt. Ltd reported in 2013 (293) ELT 649 (Delhi) wherein the Hon'ble Delhi High Court held that no MOT charges would be leviable when services rendered by the officers within his range only for supervision of stuffing work done in the factory of the assessee during the working hours as per section 36 of the Act, 1962 read with Regulations, 1998. 10. It was submitted that in case of CCE vs. Commissioner of Central Excise Garnet India Pvt. Ltd reported in 2017 346 ELT 243 (Mad) the Hon'ble Madras High Court followed the decision of the Delhi High Court. 11. Reference was also made to the decision of the Large....
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....gned work of the Jurisdictional Central Excise Officers, condition of payment of MOT charges has been prescribed even during the working hours of the Central Excise Officers working as Custom Officers. It was therefore, submitted that the Tribunal has rightly followed the decision in Appeal No. 672/2007 decided in favour of the department. 14. It was submitted that Regulations 1998 defines the Custom Officer, Customs work, working hours and levy of fees for rendering of services. Sub-clause (c) of Regulation (3) of the Regulations, 1998 provides that in relation to jobs to be performed by any Customs Officer during the working hours, there shall be two blocks-one before lunch and the other after lunch respectively and fees shall be charged....
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.... Chapter 13 of the C.B.E.C's Customs Manual deals with "Merchant Overtime Fee" wherein it is provided that if services are rendered by the Customs Officer at a place which is not his normal place of work or a place beyond the Customs area, overtime is levied even during the normal working hours." 16. Regulation 3 of Regulations, 1998 provides for Levy of Fees for rendering of services by Custom Officer. Regulation 3(3) reads as under: "(3) The fees levied under sub-regulation (1) shall be subject to the following conditions, namely:- (a) The levy of fees as aforesaid shall be for a minimum of 3 hours in each case, except in cases of overtime postings immediately preceding or immediately following the working hours of the concerne....