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Judgment
A.S. Supehia, J
By way of present writ petitions, the petitioner has inter alia prayed for the following reliefs, as prayed in Tax Appeal No.2005 of 2008:
“19.(a) that this Hon’ble Court be pleased to quash and set aside the impugned Order dated 10.12.2007(Ex.J) passed by the Customs Excise and Service Tax Appellate Tribunal.
(b) for such further and other relief as the nature and circumstances of the case may warrant.”
At the outset, learned advocates appearing for the respective parties submitted that the present appeal may be disposed of in view of the decision of Coordinate Bench in case of Naval Overseas Pvt. Ltd. Vs. Commissioner of Central Excise (2024) 17 Centax 298 (Guj.).
It is noticed by us that while admitting the present appeal and framing the substantial question of law vide order dated 23.12.2010, the Coordinate Bench has referred to the case of Naval Overseas Pvt. Ltd in Tax Appeal No.1610 of 2008 with Tax Appeal No. 1658 of 2008. The order dated 23.12.2010 reads thus:
“1. Heard Mr. Jaydeep Patel, learned counsel appearing on behalf of the appellant.
Learned counsel has invited attention impugned order of the Tribunal to point out that the Tribunal has placed reliance upon its earlier decision in the case of Naval Overseas Pvt. Ltd. Attention is also invited to the order dated 22 September, 2009 passed by a Division Bench of this Court in the case of Naval Overseas Pvt. Ltd. in Tax Appeal No. 1610 of 2008 with Tax Appeal No. 1658 of 2008, whereby the Court has admitted the appeal preferred by the assessee and formulated substantial questions of law.
In the aforesaid circumstances, the appeal is admitted.
The following substantial question of law arises for determination:
Excise Officers are "Whether the Central entitled to charge merchant overtime fee for carrying out examination and supervision of loading of export goods at the factory of the manufacturer during office hours days?"”
Learned advocates appearing for the respective parties are ad idem that the decision in case of Naval Overseas Pvt. Ltd (supra), would squarely cover and answer the substantial question of law. The relevant observations of the said decision are as under:-
Regulation 3 Regulations,1998 provides for Levy of Fees for rendering of services by Custom Officer, Regulation3(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 case of overtime postings immediately preceding or immediately following the working hours of the concerned cadre of officers.
(b) The period between midnight and 6 A.M. shall be treated as a block whether the services are required for the entire block or for a portion threof.
(c) 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 for the entire block whether the request for the services of such officer relates to the entire block or a portion thereof.”
It is not in dispute that the place of working/supervision was at the factory of the appellant and it is also not in dispute that supervision was made by the Range Cenral Excise Officer in whose territory the factory of the appellant is located. Chapter 13 of the C.B.E. & C. ‘s Customs Manuals deals with “Merchant Overtime Fee” wherein it is provided that if services are rendered by the Custom Officer at a place which is not his normal place of work or place beyond the custom area, overtime is levied even during the normal working hours.
Therefore, in the facts of the case, none of the condition for levy of the MOT charges is satisfied and accordingly, the appeal is allowed by answering the questions in negative and in favour of the appellant to the effect that the appellant would not be liable to pay Merchant Overtime Charges for carrying out examination and supervision of loading of export goods at the factory premises of the manufacturer during the office hours on working day by the Central Excise Officers contrary to the instruction of the Central Board of Excise and Customs.”
Hence, the present appeal stands allowed in favour of the appellant, in terms of the judgment and order dated 13.03.2024, passed by the Coordinate Bench of this Court in the case of Naval Overseas Pvt. Ltd (supra) and the substantial questions of law is answered accordingly.