- (1.) WE have heard the learned counsel appearing for the parries. This D.B. Excise Appeal under section 35G of the Central Excise Act, 1944, arising out of the order dated April 12, 2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, "the Tribunal"), by which it has set aside the order dated January 24, 2005 passed by the Commissioner of Central Excise (Appeals I), Jaipur. The Department has raised the following question of law for consideration of the court, on which the appeal was admitted : "Whether MOT charges are not legally leviable for the services provided by the Central excise officers during the normal working hours as held by the Customs, Excise and Service Tax Appellate Tribunal when the Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998 clearly warrant the levy of the same -
(2.) THE appellant is engaged in the manufacturing of cotton yarn, synthetic yarn and synthetic blended yarn. They are exporting goods after stuffing in containers at the factory premises under the supervision/examination of Central excise officers. The appellant paid merchant overtime (for short, "MOT") charges to the Department for stuffing of containers for supervision by the Central excise officers. They thereafter filed refund claim for MOT charges paid under protest during normal working hours from September, 2001 to June, 2003. The Deputy Commissioner, Central Excise Division, Kota rejected the refund claim filed by the respondent. The Commissioner (Appeals) upheld the rejection. The Tribunal relying upon Sigma Corporation (I) Ltd. v. CCE : [2004] 165 ELT 168 (Trib. -Delhi) and CCE v. Flair Filtration P. Ltd. vide order dated November 7, 2006, held that when the inspections were made by the officers of the Central Excise Department within the jurisdiction, the supervision charges were not payable.
(3.) IT is submitted by the learned counsel appearing for the Department that the supervisions and inspections were carried out beyond normal place of work of the officers of the Central Excise Department, and beyond the customs area at Bhawani Mandi, which is 125 k.m. from Kota, and thus the supervision charges were leviable. The contention is not acceptable, inasmuch as paragraph 5(c) of the Board circular dated September 7, 1998 says that "rendering services by customs officers" means that performances of customs work by the customs officers beyond the customs area at any time.;