M/S Hindustan Gum & Chemicals Ltd vs Cce Ahmedabad

Appeal No.E/496/2012-DB; Application No.E/Early Hearing/15774/2014 [Arising out of OIA No.137/2012(AHD-II)CE/MM/Commr(A)/Ahd, dt.30.03.2012, passed by Commissioner of Central Excise & Customs (Appeals), Ahmedabad]

M/s Hindustan Gum & Chemicals Ltd. Appellant

Vs

CCE Ahmedabad Respondent

Represented by:

For Appellant: Shri Pravin Sharma, Adv.

For Respondent : Shri Jitendra Nair, A.R.

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial) Mr. R.K. Singh, Honble Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL) MR. R.K. SINGH, HONBLE MEMBER (TECHNICAL)

Date of Hearing/Decision:16.01.2015

Order No. A/10075 / 2015, dt.16.01.2015

Per: P.K. Das

1. The applicant filed this application for early hearing of the appeal. Ld.Advocate on behalf of the applicant submits that the issue involved in this case is covered by the decision of Honble Delhi High Court which was followed by the Larger Bench of this Tribunal.

2. After hearing the matter at length, we find that the appeal may be decided at the stage of early hearing application. Ld.Authorised Representative for the Revenue fairly submits that the appeal should not be decided at the stage of hearing of early hearing application as per the instructions issued by the Board.

3. After hearing both the sides and on perusal of the records, we find that the issue is covered by the decision of High Court and Larger Bench of the Tribunal, which is not seriously disputed by the ld.Authorised Representative. In view of that, we take up the appeal for hearing.

4. On perusal of the impugned order, we find that the issue involved in this case is as to whether the applicant is required to pay the MOT charges (Merchant Overtime Tax) for the services rendered by the Departmental Officers (as Customs Officers) during office hours for any Customs examination/work is being done in their factory/ware house. We find that the Honble Delhi High Court in the case of CCE Vs Sigma Corporation Ltd  2013 (293) ELT 649 (Del.), held that no fee is payable on the stuffing work done in the factory of the assessee under the supervision of jurisdictional Central Excise Officers during working hours only. The relevant portion of the said decision is reproduced below:

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-C.E. (N.T.), dated 8-3-2002 as amended by Notification No. 22/2002-C.E. (N.T.), dated 4-6-2002, the jurisdiction of Delhi-II, Range 26 of Central Excise Division-V includes Mayapuri Indl. Area Ph.-II where the factory of respondent is located, the services were rendered by the officer within his range only. The same fell within the jurisdiction of the Central Excise Range Officer who supervised the work. 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.

9. In the present? case, none of the conditions for levy of MOT is satisfied.

10. Accordingly,? we answer the substantial question of law in the affirmative. The appeal is accordingly dismissed with no order as to costs.

5. We find that the Larger Bench of the Tribunal in the case of CCE Rajkot Vs Reliance Industries Ltd.  2013 (294) ELT 403 (Tri-LB), following the decision of Honble Delhi High Court in the case of Sigma Corporation Ltd, on the identical issue, held that in view of the decision of Honble Delhi High Court, the issue referred for constitution of Larger Bench, does not survive. The issue referred to Larger Bench is whether there is requirement for payment of Merchant Overtime Charges (MOT) towards services rendered by Central Excise Officers during working hours, in respect of services pertaining to supervision of boarding of goods exported through containers, i.e. levy of fees the under Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998, these Regulations having been issued in exercise of powers under Sections 157 and 158 of the Customs Act, 1962 read with para 1.2, part II, Chapter 18 of the C.B.E. & C. Excise Manual of supplementary instructions.

6. Respectfully following the decision of Honble Delhi High Court and Larger Bench of the Tribunal, we find that the impugned orders cannot be sustained. Accordingly, the impugned order is set aside and the appeal is allowed. Early hearing application is disposed of.

(Dictated & Pronounced in Court)

(R.K. Singh) (P.K. Das) Member (Technical) Member (Judicial)

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