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Judgment
M. Sathyanarayanan, J.—The Commissioner of Central Excise, Tirunelveli, aggrieved by the order of CESTAT, South Zone, Chennai, dated 2-5-2008, passed in the Appeal filed by the respondent in Appeal No. E/713/2005 [2008 (229) E.L.T. 77 (Tri. Chennai)], in and by which, the directive contained in the Circular dated 7-4-2003 issued by the Central Board of Excise and Customs, is not enforceable one, as it ultra vires the Regulation 3 of the Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998, had filed this Civil Miscellaneous Appeal and it was admitted on the following substantial question of law :
"Whether, in the facts and circumstances of the case, the Tribunal is right in concluding that the Circular No. 31/2003, dated 7-4-2003 is not enforceable in law as it is ultra vires Regulation (3) of the Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998?"
The learned Standing Counsel for the appellant/revenue would submit that admittedly, the respondent herein is willing to pay the supervision charges on the basis of the Merchant Over Time (in short ''MOT'') charges and also exercised the option dated 28-6-2003 to avail the services of the Central Excise Officers on payment of said charge, in terms of the Board''s Circular dated 7-4-2003 and therefore, it is not open to resile from the terms and conditions of the Board''s Circular dated 7-4-2003 and take a contra stand. He would further urge that in the light of the judgment in Naval Overseas Pvt. Ltd. v. Commissioner of Central Excise, Ahmedabad reported in 2007 (218) E.L.T. 673 (Tribunal - Ahmedabad), the impugned order passed by the Tribunal warrants interference.
Per contra, the learned Counsel for the respondent has drawn the attention of this Court to the judgment of the Larger Bench of the CESTAT, West Zonal Bench, Ahmedabad, in Commissioner of Central Excise, Rajkot v. Reliance Industries Ltd., reported in 2013 (294) E.L.T. 403 (Tribunal - Larger Bench) and would submit that in the light of the conflict/contrary view expressed in (i) Naval Overseas Pvt. Ltd. v. Commissioner of Central Excise, Ahmedabad reported in 2007 (218) E.L.T. 673 (Tribunal - Ahmedabad) and (ii) Commissioner v. Reliance Industries Ltd. reported in 2009 (236) E.L.T. 313 (Tribunal), a reference was made and by that time, a decision came to be rendered by the High Court of Delhi in Commissioner of Central Excise v. Sigma Corporation India Pvt. Ltd. reported in 2013 (293) E.L.T. 649 (Del.) wherein it has been held that "where an Excise Officer (who is a deemed Customs Officer) provides supervisory services/functions at the factory of an assessee within the jurisdiction of such Excise Officers, the services are rendered within the range of such officer and since admittedly these functions were executed during "normal working hours", such levy is impermissible and therefore, held that the issue for consideration by the Larger Bench does not survive and rejected the reference" and would further contend that in the light of the judgments rendered by the Hon''ble Supreme Court, the appeal deserves dismissal and therefore, prays for appropriate orders.
This Court paid its best attention to the rival submissions and also perused the materials available on record.
The original authority as well as the appellate authority has held that in view of the Board''s Circular dated 7-4-2003, the Export-Oriented Units have to pay MOT charges even for Customs/Central Excise-related works even during office working hours and as such, the respondent had also exercised his option on 28-6-2003 and therefore, the prayer sought for by the respondent herein cannot be granted.
The respondent filed an appeal before the CESTAT, South Zone, Chennai and the Tribunal after taking into consideration the decisions rendered in Sandur Laminates Ltd. v. Commissioner reported in 2005 (190) E.L.T. 109 (Tribunal - Bangalore) and Rajasthan Textile Mills v. Commissioner reported in 2007 (216) E.L.T. 380 (Tribunal - Delhi), has held that the Board''s directive in Circular dated 7-4-2003 is not enforceable as it ultra vires the Regulation 3 of the Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998 and therefore, allowed the appeal.
In the considered opinion of this Court, that issue also arose for consideration before the High Court of Delhi in Commissioner of Central Excise v. Sigma Corporation India Pvt. Ltd. reported in 2013 (293) E.L.T. 649 (Del.) and the following substantial question of law was framed under Section 35G(2) of the Central Excise Act, 1944 :
"Whether the Central Excise Officer discharging his duties as a Customs Officer, in the factory premises of the assessee, could be said to be discharging such functions in a "Customs Area" as defined in sub-section (11) of Section 2 of the Customs Act, 1962?"
The High Court of Delhi having referred to the fact that overtime fee is collected under the Customs Act, 1962 read with 1998 Regulation and also referred to the 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, issued by the Central Board of Excise and Customs and concluded as stated supra.
The said decision rendered by the High Court of Delhi has not been put to challenge and therefore, it has become final.
Though the issue was referred to a Larger Bench of the CESTAT, West Zonal Bench, Ahmedabad, taking into consideration the abovecited judgment, the Tribunal held that the issue referred for consideration does not survive and also rejected the reference vide judgment in Central Excise, Rajkot v. Reliance Industries Ltd., reported in 2013 (294) E.L.T. 403 (Tribunal - Larger Bench).
Thus, in the light of the abovecited judgment rendered by the High Court of Delhi in Commissioner of Central Excise v. Sigma Corporation India Pvt. Ltd. reported in 2013 (293) E.L.T. 649 (Del.), the substantial question of law is answered in negative against the appellant.
Accordingly, this Civil Miscellaneous Appeal is dismissed, confirming the order in Final Order No. 439/2008, dated 2-5-2008 passed by the CESTAT, Chennai, in Appeal No. E/713/2005. No costs. Consequently, the connected miscellaneous petition is also dismissed.