Speed Post/Regd. A/D
भारत
सरकार/GOVERNMENT
OF INDIA
सहायक
आयुक्त का कार्यालय/OFFICE OF THE ASSISTANT COMMISSIONER,
सिलीगुड़ी
सीमा शुल्क प्रमण्डल/SILIGURI CUSTOMS DIVISTION,
केन्द्रीय
राजस्व भवन,(तीन
तल्ला)/CENTRAL
REVENUE BUILDING (3RD FLOOR),
हरेन
मुखर्जी रोड, हाकिमपरा, सिलीगुड़ी/ HAREN MUKHERJEE ROAD, HAKIMPARA, SILIGURI
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:
Order-in-Original No. /AC/CUS/SLG/16-17 Date of Order: .09.2016
PASSED BY:- ASSISTANT COMMISSIONER OF CUSTOMS, SILIGURI
CUSTOMS DIVISION, SILIGURI
izLrkouk
PREAMBLE
N.B.
1
vkns’k dh ;g izfr ml O;fDr ds futhiz;ksx ds fy, fu%’kqYdnhtkrhgSftls ;g tkjh dh x;hgSA
This copy is granted free of charge for private
use of the person to whom it is issued.
2
blvkns’klsizHkkforकोईO;fDrइसके विरुद्ध
आयुक्त (अपील) कोलकाता---I, केन्द्रीय
उत्पाद शुल्क भवन, चतुर्थ
तल, 169, ए॰जे॰सी॰
बोस रोड, बाम्बूविला, कोलकाता-700014 को दो प्रतियों
में अपील कर सकता
है।उपरोक्त पत्र
के जारी होने की
दिनों के भीतर
अपील दायर की जा
सकती है। इस अपील
के साथ 60 कोई शुल्क
देय नहीं है।
Any person deeming
himself aggrieved by this order may file an appeal in duplicate against the
same to the Commissioner (Appeal) Kolkata-I, KendriyaUtpad
Sulk Bhawan, 4th. Floor, 169,A.J.C. Bose Road, Bamboo Villa, Kolkata-700014 . The appeal
should be filed within 60 days from the date of Communication of the above. Any
fee need not accompany the appeal.
3
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1982 ds fu;e 3 ds vuqlkj&blslhek
’kqYdvf/kfu;e 1962 ds vuwPNwwsn 128 ds lkFkपढ़ाtk;]nksizfr;ksavkSjmldslkFkvkns’k
dh izfr ;k fu.kZ; ftlds f[kykQvihydjuhgSftlijfuEufyf[krdksVZशुल्कyxhgksuhpkfg,A
Appeal should be filed in
duplicate in form C.A-1 (vide Rule 3 of Customs (Appeal) Rules, 1982 read with
Section 128 of the Customs Act, 1962 and shall be accompanied by a copy of the
order or decision appealed against which should bear a court stamp as below.
(i)
;fnfo”k; oLrq dh ewY; 50 #i;kgS ;k 50 #i;kls de gSrks-------------------40
iSlk
If the amount of value of the subject
matter is Rs. 50/- or less than Rs.
50/-…..40 Paisa.
(ii) ;fnfo”k; oLrq
dh ewY; 50 #i;klsT;knkgSrks
----------------------------------- 75 iSlkA
If the amount of value of the subject matter exceeds Rs.
50/-…75 Paisa.
विषय/Sub – Adjudication
order in respect of Notice to show cause cum Demand issued under Sec. 36 of
Customs Act.,1962 by the Asstt. Commissioner, Siliguri Customs Division, Siliguri
vide C.No.VIII(23)17/Slg/CUS/T/Demand/2014-15/2924-25
dated 22/09/2014.
नोटिसी कीनाम और पते/Name and address of Noticee:
1.
M/S M.K. Traders, Merchant Road, Vill + P.O. – Changrabandha, Distt – Cooch Behar (West Bengal) PIN-735301.
घटना
का संक्षिप्त विवरण
/Brief
facts of the Case:
1.0
Whereas it emerged that M/s.M.K.
Traders, Merchant Road, Vill + P.O.-Changrabandha, Distt- Cooch Behar
,West Bengal-735301 (herein after referred to as the said importer), having
I.E.C. Code No. {0000008371} engaged
in the importation of food items,
(hereinafter referred as thesaid goods) from
Bangladesh through Changrabandha L.C.S, have
contravened the provisions of Section 36 of the Customs Act, 1962 (hereinafter
referred to as the said Act.) read with Customs(Fees for Rendering Services by
Customs Officers) Regulation, 1998 issued under CBEC Circular no. 69/98-Cus
dated 07.09.1998 in as much as the said importer did not pay overtime fee
(hereinafter referred to as the MOT fees) amounting to Rs.1800/- (Rupees One Thousand Eight hundred ) only for the
services rendered by Customs officers at the time of clearance of said goods from
private warehouse where it was stored under Section 49 of Customs Act,
1962.
1.1
During the period from 01.01.2014 to
31.07.2014 (hereinafter referred to as the relevant period) the said importer
imported 06(six)consignments of imported goodson self assessment of duty
as per Section 14 &17 of the said Act.Theimported
goodwere stored in a private warehouse with
permission obtained under Section 49 of Customs Act, 1962, till the completion
of required PFA testing and other tests.
1.2
That in terms of Customs (Fee for rendering services
by Customs Officers) Regulations, 1998 issued under circular no. 68/98-CUS
dated 07.09.1998 a fee shall be levied for rendering services including
escorting of goods by the Customs Officers, at the rate prescribed therein.
Further as per Para 2 of Chapter 12 of the CBEC’s Customs Manual relating to
merchant overtime fee (MOT), the MOT fee is levied for services rendered by the
Customs Officer to trade beyond normal working hours or on holidays. Moreover,
if the service is rendered by the customs officials at a place that is not
their normal place of work or at a place beyond the Customs area, overtime fee
is levied even during the normal working hours. The term service means any function
performed by customs Officers under the Customs Act, 1962 and it includes:
a. Examination of the goods and related
functions
b. Loading and unloading of goods
whether generally or specifically
c. Escorting goods from one Customs area
to other, and
d. Any other Customs work authorized by
Commissioner of Customs
1.3
That during the relevant period, the said
importer requisitioned the services of Customs Officer for escorting the said
goods covered by the bill of entries of the relevant period from zero point to private
warehouse where it was warehoused pending completion of required PFA and other
test. After completion of the required tests the said goods were cleared from
the said warehouse in the presence of the customs officers as per the condition
imposed by the Deputy Commissioner of Customs, Siliguri
Division while granting permission for warehousing under section 49 of the
Customs Act, 1962. In course of
auditing, it was observed that the said importer did not pay the MOT fees for
the services rendered by the Customs Officers by way of giving clearance of the
said goods from the private warehouse prescribed under the Customs (fees for
Rendering services by Customs Officers) regulations, 1998 read with CBEC
circular no. 68/98-CUS dated 07.09.1998.
1.4
As clarified in the Para 3 of Chapter 12 of
Customs Manual read with the above referred notification, the MOT is levied for
services rendered by Customs Officers even during the normal working hours if
the service is rendered by officials at a place that is not their normal place
of work or at a place beyond the Customs area, as rendered in the present case.
1.5
The said importer by willfully not paying MOT
fees amounting to Rs.1,800/- ( Rupees One Thousand
Eight hundred) only, for supervision by the customs officers at the time of
clearance of the said goods from the private warehouse as stated above during
the relevant periodhave violated Section 36 of the
Customs Act, 1962 read with Customs (Fee for rendering services by Customs
Officers) Regulations, 1998 issued under CBEC circular no 68/98 dated
07.09.1998. Thus demand
was raised by issuance of Show Cause Cum Demand Notice against
the said importer by invoking the provision of extended time period as
envisaged in section 28 of the Customs Act, 1962.
1.6
Therefore, the said importer was called upon
to Show Cause to the Assistant Commissioner of Customs, Siliguri
Customs Division3rd floor, C.R.Building, Haren Mukherjee Rd., Hakimpara,
Siliguri-734001 within 30(Thirty) days of the receipt of the Show Cause Notice
issued vide C.No:VIII(23)17/Slg/CUS/T/Demand/14-15/2924dated
22/09/2014 as to why:-
1.6.1
The
MOT charges of Rs. 1800/- (Rupees One Thousand Eight
hundred) only as indicated for the relevant period, should not be demanded and
recovered as per CBECcircular No.68/1998 dated
07.09.1998.
1.6.2
Penalty
should not be imposed under section 117 of the Customs Act, 1962 for contravening the above
regulations and
1.6.3
Interest
as applicable at appropriate rate should not be charged, demanded and realized
under the provision of Section 28AA of the said Act.
1.7
The said importer was further required to
indicate in their written reply to this notice the records, documents they intend to rely upon in support of their
defense and also to mention whether they would like to be heard in person or
through their legal representative.
1.8
If no cause was shown within 30 (Thirty) days
of receipt of this notice or they do not appear before the adjudicating
authority either in person or through their legal representative when the case
is posted for hearing, the case would be adjudicated on the basis of records available with the department without any
further reference whatsoever .
कारणबताओनोटिसकाजबाब/Reply to Show Cause Notice:
2.0 The
said importer in their reply to the SCN received on 16/10/2014 stated that they
had paid the MOT fees by depositing an amount of Rs.1800/- into SBI Changrabandha Branch vide TR-6 Journal No.036020174, Chl.
No. 00005 dated 13.10.2014, and enclosed the TR-6 challan
but without paying the interest portion.
व्यक्तिगतसुनवाई/Personal Hearing
3.0 The said importer appeared forPersonal
Hearing fixed on 22.06.2016 and requested for closure of the case. The payments
made as mentioned in their letter received on 16.10.2016 stating that MOT fees of Rs.1800/- (Rupees One
Thousand Eight Hundred) only was already deposited into SBI, ChangrabandhaBranch vide TR-6 challan Journal No. 036020174 No. 00005 dated 13.10.2014was
reiterated and the interest portion would be deposited and the challan submitted within 10 (ten) days from the date of
Personal Hearing.
विवेचनऔरजाँचपरिणाम/DISCUSSION AND FINDINGS:
4.0 I have
carefully gone through official records including the Show Cause cum Demand
Notice issued under Section 36 of the Customs Act, 1962, read with Customs (Fees for Rendering
Services by customs Officers) Regulation, 1998 issued under CBEC Circular no.
68/98-Cus dated 07.09.1998 and
letter dated NIL submitted by the said importer and received on 16.10.2014.
4.1 The
instant case was initiated on the basis of the objection raised by CRAD Audit
on nonpaymentof merchant overtime
(MOT) fees by the said importer for the services rendered by the Customs
Officers by way of giving clearance of said goods from private warehouse which
is not the normal place of posting of customs Officers during the period from
01.01.2014 to 31.07.2014.
4.2 MOT fees was levied and
collected for escorting the duty free imported goods from zero point of
Changrabandha LCS to the private warehouse only. However, the
same was not levied nor collected at the time of clearance of the said
goods from the same private warehouse in presence of customs officers as per
the condition imposed by the Deputy Commissioner of Customs, Siliguri Division while granting permission for warehousing
under section 49 of the Customs Act, 1962.
4.3 As per para
2 of Chapter 12 of the CBEC’s Customs Manual read with Customs (Fees for rendering service by Customs Officers )
Regulation 1998 read with CBEC Circular
no. 68/98-Cus dated 07.09.1998 merchant overtime (MOT) fees is levied for services rendered by customs
officers to trade beyond normal working
hours or on holidays. Furthermore, if the service is rendered by customs
officials at a place that is not normal place of work or at a place beyond the
Customs area, merchant over time fee is levied even during the normal working
hours. As such the MOT fees for the services rendered by the Customs Officers
by way of giving clearance of the said goodsin their
presence from private warehouse which was not the normal place of posting during the
period from 01.01.2014 to 31.07.2014 was quantified at Rs.
1800/- only.
4.4 Para 3 of Chapter 12 of the CBEC’s Customs Manual
lays down the procedure for posting of officers on overtime basis wherein the
party is required to make prior request for such posting and once the party
pays the overtime fees the officers are posted for customs work. Several
importers including the said importer while getting the posting of customs
officer at their private warehouse at the time of clearance of the said goods
in compliance with the condition imposed in the warehousing permission by the Deputy Commissioner of
Customs, Siliguri Division under section 49 of the Customs Act, 1962 had
inadvertently missed the implication of Section 36 of the Customs Act,
1962, read with Customs (Fees for
Rendering Services by customs Officers) Regulation, 1998 issued under CBEC
Circular no. 68/98-Cus dated 07.09.1998 and the aforementioned procedure for
posting of officers was overlooked. Furthermore, after appreciation of the matter,
the said importer without any contention deposited the MOT fees of Rs. 1800/- only at SBI Changrabandha
Branch on 13.10.2014 vide TR-6 Journal No.036020174challan No.00005 dated
13.10.2014. However the interest portion is yet to be deposited by the
importer. Hence non-payment of MOT fees at the time of posting of
customs officer at their private warehouse appears to be without any malafide intention to evade the same. But the interest
portion is not yet paid by the importer despite the assurances made on
22.06.2016 at the time of personal hearing to deposit the same and submit the challan within 10(ten) days. As such they have willfully
delayed the same and without having paid the interest portion the said importer
cannot be considered to have fully discharged their liability. Hence it is
deemed fit to put the said importer to some penalty under section
117 of the Customs Act, 1962.
4.5
In view of the above discussions &
findings and in exercise of the powers
conferred upon me under Section 122 of the Customs Act, 1962, I pass the
following order(s):
आदेश/O R D E R
5.0 I order for recovery of MOT fees in terms of
Section 36 of the Customs Act, 1962 read with
Customs (Fee for rendering services by Customs Officers) Regulations, 1998,
CBEC (Customs) circular no. 68/98-CUS dated 07.09.1998 and Para 2 of Chapter 12
of Customs Manual, to the tune of Rs. 1800/-(Rupees
One Thousand Eight hundred)only under the provision of Section 28 of the
Customs Act, 1962.
5.1 I order for recovery of Interest as applicable at the
appropriate rate under Section 28AA of the Customs Act, 1962.
5.2 Since
the said importer deposited the MOT fees of Rs.
1800/-(Rupees One Thousand Eight hundred) only vide TR.6 Challan
TR-6 Journal No.036020174 challan No.00005 dated
13.10.2014.I order for appropriation of the deposited amount towards the demand
of short paid Customs MOT fees under Sec. 28 of the Customs Act.1962.
5.3 The said importer have deposited
the MOT charges but the interest portion was not paid by the said importer despite the
assurances given by them on 22.06.2016 at the time of personal hearing to
deposit the same and submit the challan within
10(ten) days. Considering the delay of three months till date the said importer willfully
delayed the same and without having paid the interest portion the said importer
cannot be considered to have fully discharged their liability. Hence it is
deemed fit to put the said importer to some penalty under section 117 of
the Customs Act, 1962 and therefore, I impose a penalty of Rs.200/- (Rupees two
hundred) only under Sec. 117 ibid.
(_______________)
सहायक
आयुक्त/Assistant Commissioner
सिलीगुड़ीसीमाशुल्कप्रमण्डल /Siliguri
Customs Division
सिलीगुड़ी /S I L I G U R I
आयुक्त
C.No.VIII(23)17/Slg/CUS/T/Demand/14-15/ Dated:
Copy forwarded for information and
necessary action to:-
1.
M/S
M.K. Traders, Merchant Road, Vill + P.O. Changrabandha, Distt- Cooch Behar,West Bengal-735301.
2.
The
Asstt. Commissioner, (Hq.A&R),
SiliguriCommissionerate.
3.
The
Superintendent, Customs, Changrabandha L.C.S with
direction to recover the interest as applicable at the appropriate rate and
penalty from the said Importer.
सहायक
आयुक्त/Assistant Commissioner
सिलीगुड़ीसीमाशुल्कप्रमण्डल /Siliguri
Customs Division
सिलीगुड़ी /S I L I G U R I
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