Every application made before the Appellate Tribunal, -
- in an appeal for grant of state or for rectification of mistake or
for any other purpose; or
- for restoration of an appeal or an application,
shall be accompanied by a fee of five hundred rupees.
35C. Orders of Appellate Tribunal.-
(1) The Appellate Tribunal may,
after giving the parties to the appeal an opportunity of being heard,
pass such orders thereon as it thinks fit, confirming, modifying or
annulling the decision or order appealed against or may refer the case
back to the authority which passed such decision or order with such
directions as the Appellate Tribunal may think fit, for a fresh
adjudication or decision, as the case may be, after taking additional
evidence, if necessary.
(1A) The Appellate Tribunal may, if sufficient cause is shown, at any
stage of hearing of an appeal, grant time, from time to time, to the
parties or any of them and adjourn the hearing of the appeal for reasons
to be recorded in writing :
Provided that no such adjournment shall be granted more than three times
to a party during hearing of the appeal.
(2) The Appellate Tribunal may, at any time within six months from the
date of the order, with a view to rectifying any mistake apparent from
me record, amend any order passed by it under sub-section (1) and shall
make such amendments if the mistake is brought to its notice by the
Commissioner of Central Excise or the other party to the appeal:
Provided that an amendment which has the effect of enhancing an
assessment or reducing a refund or otherwise increasing the liability of
the other party, shall not be made under this sub-section, unless the
Appellate Tribunal has given notice to him of its intention to do so and
has allowed him a reasonable opportunity of being heard.
(2A) The Appellate Tribunal shall, where it is possible to do so, hear
and decide every appeal within a period of three years from the date on
which such appeal is filed :
Provided that where an order of stay is made in any proceeding relating
to an appeal filed under sub-section (1) of Section 35B, the Appellate
Tribunal shall dispose of the appeal within a period of one hundred and
eighty days from the date of such order :
Provided further that if such appeal is not disposed of within the
period specified in the first proviso, the stay order shall, on the
expiry of that period, stand vacated.
(3) The Appellate Tribunal shall send a copy of every order passed under
this section to the Commissioner of Central Excise and the other party
to the appeal.
(4) Save as provided in section 35G or section 35L, orders passed by the
Appellate Tribunal on appeal shall be final.
35D. Procedure of Appellate Tribunal.-
- The provisions of subsections
(1), (2), (5) and (6) of section 129C of the Customs Act, 1962(52 of
1962), shall apply to the Appellate Tribunal in the discharge of its
functions under this Act as they apply to it in the discharge of its
functions under the Customs Act, 1962.
- Omitted
- The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose
of any case which has been allotted to the Bench of which he is a member
where—
- in any disputed case, other than a case where the determination of
any question having a relation to the rate of duty of excise or to the
value of goods for purposes of assessment is in issue or is one of the
points in issue, the difference in duty involved or the duty involved;
or
- the amount of fine or penalty involved, does not exceed ten lakh
rupees
35E. Powers of Board or Commissioner of Central Excise to pass certain
orders.-
- The Committee of Chief Commissioners of Central Excise may,
of its own motion, call for and examine the record of any proceeding in
which a Commissioner of Central Excise as an adjudicating authority has
passed any decision or order under this Act for the purpose of
satisfying itself as to the legality or propriety of any such decision
or order and may, by order, direct such Commissioner or any other
Commissioner to apply to the Appellate Tribunal for the determination of
such points arising out of the decision or order as may be specified by
the Board in its order.
- The Commissioner of Central Excise may, of his own motion, call for
and examine the record of any proceeding in which an adjudicating
authority subordinate to him has passed any decision or order under this
Act for the purpose of satisfying himself as to the legality or
propriety of any such decision or order and may, by order, direct such
authority to apply to the Commissioner (Appeals) for the determination
of such points arising out of the decision or order as may be specified
by the - Commissioner of Central Excise in his order.
- The Committee of Chief Commissioners of Central Excise or
Commissioner of Central Excise, as the case may be, shall, where it is
possible to do so, make order under sub-section (1) or sub-section (2),
within a period of six months, but not beyond a period of one year, from
the date of the decision or order of the adjudicating authority.
- Where in pursuance of an order under sub-section (1) or subsection
(2), the adjudicating authority or the authorised officer makes
an application to the Appellate Tribunal or the Commissioner (Appeals)
within a period of three months from the date of communication of the
order under sub-section (1) or sub-section (2) to the adjudicating
authority, such application shall be heard by the Appellate Tribunal or
the Commissioner (Appeals), as the case may be, as if such application
were an appeal made against the decision or order of the adjudicating
authority and the provisions of this Act regarding appeals, including
the provisions of sub-section (4) of section 35B shall, so far as may
be, apply to such application.
- The provisions of this section shall not apply to any decision or
order in which the determination of any question having a relation to
the rate of duty or to the value of goods for the purposes of assessment
of any duty is in issue or is one of the points in issue.
Explanation.—For the purposes of this sub-section, the determination of
a rate of duty in relation to any goods or valuation of any goods for
the purposes of assessment of duty includes the determination of a
question—
- relating to the rate of duty of excise for the time being in force,
whether under the Central Excise Tariff Act, 1985 or under any other
Central Act providing for the levy and collection of any duty of excise,
in relation to any goods on or after the 28th day of February, 1986; or
- relating to the value of goods for the purposes of assessment of any
duty of excise in cases where the assessment is made on or after the
28th day of February, 1986; or
- whether any goods are excisable goods or whether the rate of duty of
excise on any goods is nil; or
- whether any goods fall under a particular heading or sub-heading of
the First Schedule and the Second Schedule of the Central Excise Tariff
Act, 1985 (5 of 1986), or the Additional Duties of Excise (Goods of
Special Importance) Act, 1957 (58 of 1957), or the Additional Duties of
Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), or that
any goods are or not covered by a particular notification or order
issued by the Central Government or the Board, as the case may be,
granting total or partial exemption from duty; or
- whether the value of any goods for the purposes of assessment of
duty of excise shall be enhanced or reduced by the addition or reduction
of the amounts in respect of such matters as are specifically provided
in this Act.
35EA. Powers of revision of Board or Commissioner of Central Excise in
certain cases.-
- The Board may, of its own motion or on the
application of any aggrieved person or otherwise, call for and examine
the record of any proceeding in which a Commissioner of Central Excise
has passed any decision or order [not being a decision or order passed
under sub-section (2) of this section] of the nature referred to in
sub-section (5) of section 35E for the purpose of satisfying itself as
to correctness, legality or propriety of such decision or order and may
pass such order thereon as it thinks fit.
- The Commissioner of Central Excise may, of his own motion or on the
application of any aggrieved person or otherwise, call for and examine
the record of any proceeding in which an adjudicating authority
subordinate to him has passed any decision or order of the nature
referred to in sub-section (5) of section 35E for the purpose of
satisfying himself as to the correctness, legality or propriety of such
decision or order and may pass such order thereon as he thinks fit.
-
- No decision or order under this section shall be made so as to
prejudicially affect any person unless such person is given a reasonable
opportunity of making representation and if he desires, of being heard
in his defence.
- Where the Board or, as the case may be, the Commissioner of Central
Excise is of the opinion that any duty of excise has not been levied or
has been short-levied or short-paid or erroneously refunded, no order
requiring the affected person to pay any duty not levied or paid,
short-levied or short-paid or erroneously refunded shall be passed under
this section unless such person is given notice within the time limit
specified in section 11A to show cause against the proposed order.
- No proceedings shall be initiated under sub-section (1) of
subsection (2) in respect of any decision or order after the expiry of a
period of six months from the date of communication of such decision or
order:
Provided that in respect of any decision or order passed before the
commencement of the Customs and Central Excise Laws (Amendment) Act,
1988 (29 of 1988), the provisions of this sub-section shall have effect
as if for the words "six months", the words "one year" were substituted.
- Any person aggrieved by any decision or order passed under
sub-section (1) or sub-section (2) may appeal to the Customs and Excise
Revenues Appellate Tribunal established under section 3 of the Customs
and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986), against
such decision or order.
35EE. Revision by Central Government.-
- The Central Government may,
on the application of any person aggrieved by any order passed under
section 35A, where the order is of the nature referred to in the first
proviso to sub-section (1) of section 35B, annul or modify such order.
Provided that the Central Government may in its discretion, refuse to
admit an application in respect of an order where the amount of duty or
fine or penalty, determined by such order does not exceed five thousand
rupees.
Explanation.—For the purposes of this sub-section, "order passed under
section 35A" includes an order passed under that section before the
commencement of section 47 of the Finance Act, 1984 against which an
appeal has not been preferred before such commencement and could have
been, if the said section had not come into force, preferred after such
commencement, to the Appellate Tribunal.
(1A) The Commissioner of Central Excise may, if he is of the opinion
that an order passed by the Commissioner (Appeals) under section 35A is
not legal or proper, direct the proper officer to make an application on
his behalf to the Central Government for revison of such order.
- An application under sub-section (1) shall be made within three
months from the date of the communication to the applicant of the order
against which the application is being made:
Provided that the Central Government may, if it is satisfied that the
applicant was prevented by sufficient cause from presenting the
application within the aforesaid period of three months, allow it to be
presented within a further period of three months.
- An application under sub-section (1) shall be in such form and shall
be verified in such manner as may be specified by rules made in this
behalf and shall be accompanied by a fee of,—
- two hundred rupees, where the amount of duty and interest demanded,
fine or penalty levied by any Central Excise Officer in the case to
which the application relates is one lakh rupees or less;
- one thousand rupees, where the amount of duty and interest demanded,
fine or penalty levied by any Central Excise Officer in the case to
which the application relates is more than one lakh rupees:
Provided that no such fee shall be payable in the case of an application
referred to in sub-section (1A).
- The Central Government may, of its own motion, annul or modify any
order referred to in sub-section (1).
- No order enhancing any penalty or fine in lieu of confiscation or
confiscating goods of greater value shall be passed under this section,—
- in any case in which an order passed under section 35A has enhanced
any penalty or fine in lieu of confiscation or has confiscated goods of
greater value; and
- in any other case, unless the person affected by the proposed order
has been given notice to show cause against it within one year from the
date of the order sought to be annulled or modified.
- Where the Central Government is of opinion that any duty of excise
has not been levied or has been short-levied, no order levying or
enhancing the duty shall be made under this section unless the person
affected by the proposed order is given notice to show cause against it
within the time limit specified in section 11A.
35F. Deposit, pending appeal, of duty demanded or penalty levied.-
Where
in any appeal under this Chapter, the decision or order appealed against
relates to any duty demanded in respect of goods which are not under the
control of central excise authorities or any penalty levied under this
Act, the person desirous of appealing against such decision or order
shall, pending the appeal, deposit with the adjudicating authority the
duty demanded or the penalty levied:
Provided that where in any particular case, the Commissioner (Appeals)
or the Appellate Tribunal is of opinion that the deposit of duty
demanded or penalty levied would cause undue hardship to such person,
the Commissioner (Appeals) or, as the case may be, the Appellate
Tribunal, may dispense with such deposit subject to such conditions as
he or it may deem fit to impose so as to safeguard the interests of
revenue.
Provided further that where an application is filed before the
Commissioner (Appeals) for dispensing with the deposit of duty demanded
or penalty levied under the first proviso, the Commissioner (Appeals)
shall, where it is possible to do so, decide such application within
thirty days from the date of its filing.
35G. Statement of case to High Court.-
- An appeal shall lie to the
High Court from every order passed in appeal by the Appellate Tribunal
on or after 1st Day of July 2003 (not being an order relating, among
other things, to the determination to the question having a relation to
the rate of duty of excise or to the value of goods for the purposes of
assessment) if the High Court is satisfied that the case involves a
substantial question of law.
- The Commissioner of Central Excise or the other party aggrieved by
any order passed by the Appellate Tribunal may file an appeal to the
High Court and such appeal under this sub-section shall be -
- filed within one hundred and eighty days from the date on which the
order appealed against is received by the Commissioner of Central Excise
or the other party.
- accompanied by a fee of two hundred rupees where such appeal is
filed by the other party.
- in the form of a memorandum of appeal precisely stating therein the
substantial question of law involved.
- Where the High Court is satisfied that a substantial question of law
is involved in any case, it shall formulate that question.
- The appeal shall be heard only on the question so formulated, and
the respondent shall, at the hearing of the appeal, be allowed to argue
that the case does not involve such question.
Provided that nothing in this sub-section shall be deemed to take away
abridge the power of Court to hear, for reasons to be recorded, the
appeal or any other substantial question of law not formulated by it, it
is satisfied that the case involves such question.
- The High Court shall decide the question of law so formulated and
deliver such judgment thereon containing the grounds on which decision
is founded and may award such cost as it deems fit.
- The High Court may determine any issue which -
- has not been determined by the Appellate Tribunal, or
- has been wrongly determined by the Appellate Tribunal, by reason of
a decision of such question of law as is referred to in sub-section (1).
- When an appeal has been filed before the High Court, it shall be
heard by a bench of not less than two judges of the High Court, and
shall be decided in accordance with the opinion of such judges or of the
majority, if any, of such judges.
- Where there is no such majority, the judges shall state the point of
law upon which they differ and the case shall, then, be heard upon that
point only by one or more of the other judges of High Court and such
point shall be decided according to the opinion of the majority of the
judges who have heard the cases including those who first heard it.
- Save as otherwise provided in this section, the provisions of code
of Civil Procedure 1908, relating to the appeals of High Court shall as
far as may be apply in cases of appeals under this section.
35H. Application to High Court. -
- The Commissioner of Central Excise
or the other party may, within one hundred and eighty days of the date
upon which he is served with notice of an order under section 35C passed
before the first day of July 2003 (not being an order relating, among
other things, to the determination of any question having a relation to
the rate of duty of excise or to the value of goods for purposes of
assessment), by application in the prescribed form, accompanied, where
the application is made by the other party, by a fee of two hundred
rupees, apply to the High Court to direct the Appellate Tribunal to
refer to the High Court any question of law arising from such order of
the Tribunal.
- The Commissioner of Central Excise or the other party applying to
the High Court under sub-section (1) shall clearly state the question of
law which he seeks to be referred to the High Court and shall also
specify the paragraph in the order of the Appellate Tribunal relevant to
the question sought to be referred.
- On receipt of notice that an application has been made under
sub-section (1), the person against whom such application has been made,
may, notwithstanding that he may not have filed such application, file,
within forty-five days of the receipt of the notice, a memorandum of
cross-objections verified in the prescribed manner against any part of
the order in relation to which an application for reference has been
made and such memorandum shall be disposed of by the High Court as if it
were an application presented within the time specified in sub-section
(1).
- If, on an application made under sub-section (1), the High Court
directs the Appellate Tribunal to refer the question of law raised in
the application, the Appellate Tribunal shall, within one hundred and
twenty days of the receipt of such direction, draw up a statement of the
case and refer it to the High Court.
35I. Power of High Court or Supreme Court to require statement to be
amended.- If the High Court or the Supreme Court is not satisfied that
the statements in a case referred to it are sufficient to enable it to
determine the questions raised thereby, the Court may refer the case
back to the Appellate Tribunal for the purpose of making such additions
thereto or alterations therein as it may direct in that behalf.
35J. Case before High Court to be heard by not less than two judges.-
- When any case has been referred to the High Court under section 35G
or section 35H, it shall be heard by a Bench of not less than two judges
of the High Court and shall be decided in accordance with the opinion of
such judges or of the majority, if any, of such judges.
- Where there is no such majority, the judges shall state the point of
law upon which they differ and the case shall then be heard upon that
point only by one or more of the other judges of the High Court, and
such point shall be decided according to the opinion of the majority of
the judges who have heard the case including those who first heard it.
35K. Decision of High Court or Supreme Court on the case stated.-
(1)
The High Court or the Supreme Court hearing any such case shall decide
the question of law raised therein and shall deliver its judgment
thereon containing the grounds on which such decision is founded and a
copy of the judgment shall be sent under the seal of the Court and the
signature of the Registrar to the Appellate Tribunal which shall pass
such orders as are necessary to dispose of the case in conformity with
such judgment.
(1A) Where the High Court delivers a judgment in an appeal filed before
it under section 35G, effect shall be given to order passed on the
appeal by the concerned Central Excise Officer on the basis of a
certified copy of the judgment; (with effect from first day of July
2003).
(2) The costs of any reference to the High Court or an appeal to the
High Court or the Supreme Court, which shall not include the fee for
making the reference, shall be in the discretion of the Court.
35L. Appeal to the Supreme Court.
An appeal shall lie to the Supreme
Court from—
- any judgment of the High Court delivered -
- In an appeal made under section 35G; or
- On a reference made under section 35G by the Appellate Tribunal
before the first day of July 2003;
- On a reference made under section 35H,
in any case which, on its own motion or on an oral application made by
or on behalf of the party aggrieved, immediately after the passing of
the judgment, the High Court certifies to be a fit one for appeal to the
Supreme Court; or
- any order passed by the Appellate Tribunal relating, among other
things, to the determination of any question having a relation to the
rate of duty of excise or to the value of goods for purposes of
assessment.
35M. Hearing before Supreme Court.-
- The provisions of the Code of
Civil Procedure, 1908 (5 of 1908), relating to appeals to the Supreme
Court shall, so far as may be, apply in the case of appeals under
section 35L as they apply in the case of appeals from decrees of a High
Court:
Provided that nothing in this sub-section shall be deemed to affect the
provisions of sub-section (1) of section 35K or section 35N.
- The costs of the appeal shall be in the discretion of the Supreme
Court.
- Where the judgment of the High Court is varied or reversed in the
appeal, effect shall be given to the order of the Supreme Court in the
manner provided in section 35K in the case of a judgment of the High
Court.
35N. Sums due to be paid notwithstanding reference, etc.-
Notwithstanding that a reference had been made to the High Court or the
Supreme Court or an appeal has been preferred to the Supreme Court, sums
due to the Government as a result of an order passed under subsection
(1) of section 35C shall be payable in accordance with the order so
passed.
350. Exclusion of time taken for copy.-
In computing the period of
limitation prescribed for an appeal or application under this Chapter,
the day on which the order complained of was served, and if the party
preferring the appeal or making the application was not furnished with a
copy of the order when the notice of the order was served upon him, the
time requisite for obtaining a copy of such order shall be excluded.
35P. Transfer of certain pending proceedings and transitional
provisions.-
- Every appeal which is pending immediately before the
appointed day before the Board under section 35, as it stood immediately
before that day, and any matter arising out of or connected with such
appeal and which is so pending shall stand transferred on that day to
the Appellate Tribunal and the Appellate Tribunal may proceed with such
appeal or matter from the stage at which it was on that day:
Provided that the appellant may demand that before proceeding further
with that appeal or matter, he may be re-heard.
- Every proceeding which is pending immediately before the appointed
day before the Central Government under section 36, as it stood
immediately before that day, and any matter arising out of or connected
with such proceeding and which is so pending shall stand transferred on
that day to the Appellate Tribunal and the Appellate Tribunal may
proceed with such proceeding or matter from the stage at which it was on
that day as if such proceeding or matter were an appeal filed before it:
Provided that if any such proceeding or matter relates to an order
where—
- in any disputed case, other than a case where the determination of
any question having a relation to the rate of duty of excise or to the
value of goods for purposes of assessment is in issue or is one of the
points in issue, the difference in duty involved or the duty involved;
or
- the amount of fine or penalty determined by such order, does not
exceed ten thousand rupees, such proceeding or matter shall continue to
be dealt with by the Central Government as if the said section 36 had
not been substituted:
Provided further that the applicant or the other party may make a demand
to the Appellate Tribunal that before proceeding further with that
proceeding or matter, he may be re-heard.
- Every proceeding which is pending immediately before the appointed
day before the Board or the Commissioner of Central Excise under section
35A, as it stood immediately before that day, and any matter arising out
of or connected with such proceeding and which is so pending shall
continue to be dealt with by the Board or the Commissioner of Central
Excise, as the case may be, as if the said section had not been
substituted.
- Any person who immediately before the appointed day was authorised
to appear in any appeal or proceeding transferred under subsection (1)
or sub-section (2) shall, notwithstanding anything contained in section
35Q, have the right to appear before the Appellate Tribunal in relation
to such appeal or proceeding.
35Q. Appearance by authorised representative.-
- Any person who is
entitled or required to appear before a Central Excise Officer or the
Appellate Tribunal in connection with any proceedings under this Act,
otherwise than when required under this Act to appear personally for
examination on oath or affirmation, may, subject to the other provisions
of this section, appear by an authorised representative.
- For the purposes of this section, "authorised representative" means
a person authorised by the person referred to in sub-section (1) to
appear on his behalf, being—
- his relative or regular employee; or
- any legal practitioner who is entitled to practice in any civil
court in India; or
- any person who has acquired such qualifications as the Central
Government may prescribe for this purpose.
- Notwithstanding anything contained in this section, no person who
was a member of the Indian Customs and Central Excise Service -Group A
and has retired or resigned from such Service after having served for
not less than three years in any capacity in that Service, shall be
entitled to appear as an authorised representative in any proceedings
before a Central Excise Officer for a period of two years from the date
of his retirement or resignation, as the case may be.
- No person,—
- who has been dismissed or removed from Government service; or
- who is convicted of an offence connected with any proceeding under
this Act, the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act,
1968 (45 of 1968); or
- who has become an insolvent, shall be qualified to represent any
person under sub-section (1), for all times in the case of a person
referred to in clause (a), and for such time as the Commissioner of
Central Excise or the competent authority under the Customs Act, 1962 or
the Gold (Control) Act, 1968, as the case may be, may, by order,
determine in the case of a person referred to in clause (b), and for the
period during which the insolvency continues in the case of a person
referred to in clause (c).
- If any person,—
- who is a legal practitioner, is found guilty of misconduct in his
professional capacity by any authority entitled to institute proceedings
against him, an order passed by that authority shall have effect in
relation to his right to appear before a Central Excise Officer or the
Appellate Tribunal as it has in relation to his right to practise as a
legal practitioner;
- who is not a legal practitioner, is found guilty of misconduct in
connection with any proceedings under this Act by the prescribed
authority, the prescribed authority may direct that he shall thenceforth
be disqualified to represent any person under sub-section (1).
- Any order or direction under clause (b) of sub-section (4) or clause
(b) of sub-section (5) shall be subject to the following conditions,
namely:—
- no such order or direction shall be made in respect of any person
unless he has been given a reasonable opportunity of being heard;
- any person against whom any such order or direction is made may,
within one month of the making of the order or direction, appeal to the
Board to have the order or direction cancelled; and
- no such order or direction shall take effect until the expiration of
one month from the making thereof, or, where an appeal has been
preferred, until the disposal of the appeal.
36. Definitions. In this Chapter—
- "appointed day" means the date of coming into force of the
amendments to this Act specified in Part II of the Fifth Schedule to the
Finance (No. 2) Act, 1980;
- "High Court" means,—
- in relation to any State, the High Court for that State;
- in relation to a Union territory to which the jurisdiction of the
High Court of a State has been extended by law, that High Court;
- in relation to the Union territories of Dadra and Nagar Haveli and
of Goa, Daman and Diu, the High Court at Bombay;
- in relation to any other Union territory, the highest court of
civil appeal for that territory other than the Supreme Court of India;
- "President" means the President of the Appellate Tribunal.