Are exporters required to pay merchant overtime (MOT) fees to the excise department for factory sealing of containers?
The question has come up because some excise commissioners have issued trade notices stating that the exporters have the option to remove their containers by self-sealing and if they forsake the option and request for sealing by excise officials, then they must pay MOT. Many exporters have received demands for MOT for past last three years besides the charges for bottle seals also.
The Customs (Fees for Rendering Services by Customs Officers) Regulations, 1998, prescribes the schedule of fees for rendering of services by the Customs Officers (notification no. 69/98-Cus (NT) dated 4.9.98) at the request of importers or exporters. The fees are payable for performance of Customs work by the Customs officer beyond the working hours but within the Customs area or beyond the Customs area at any time, and includes examination of the goods and related functions, loading and unloading of the goods, escorting goods from one Customs area to the other or any other customs work authorised by the Commissioner of Customs.
The Excise Manual, released by Central Board of Excise and Customs, says [at Chapter 19, Part II, Page 261] that whenever an assessee or exporter requests the services of excise officers beyond office hours, he shall be required to pay MOT and if the service is for supervision and examination of export cargo, such officers shall discharge duties as Customs officers.
In spite of this clear direction that MOT is payable only if the services are requested after office hours, the excise department demanded MOT for sealing export containers and disputes went to the Tribunal. In the case of Sigma Corporation [2004(165) ELT 168], the Delhi Tribunal held that no MOT is payable as the superintendent attending to factory stuffing within his area of jurisdiction is supervising the work in his normal place of work only. When the MOT matter is pending for resolution by larger bench of the Tribunal and for decision on several legal points before the high court, the proper course for the government is to await the court decisions rather than pressurise exporters to pay MOT. The Finance ministry should intervene and save unnecessary nuisance caused to exporters.
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