[CHAPTER VIA] APPEALS
Section 35. Appeals to Commissioner (Appeals).
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(1) Any person aggrieved by any decision or order passed
under this Act by a Central Excise Officer, lower in rank than a
Commissioner of Central Excise , may appeal to the Commissioner
of Central Excise (Appeals) hereafter in this Chapter referred to
as the Commissioner (Appeals) within sixty days from the date of
the communication to him of such decision or order :
Provided that the Commissioner (Appeals)
may, if he is satisfied that the appellant was prevented by
sufficient cause from presenting the appeal within the aforesaid
period of sixty days, allow it to be presented within a further
period of thirty days.
(1A) The Commissioner (Appeals) 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) Every appeal under this Section shall be in the
prescribed form and shall be verified in the prescribed manner.
Section 35A. Procedure in appeal. -
(1) The Commissioner (Appeals) shall give an opportunity to
the appellant to be heard, if he so desires.
(2) The Commissioner (Appeals) may, at the hearing of an
appeal, allow an appellant to go into any ground of appeal not
specified in the grounds of appeal, if the Commissioner (Appeals)
is satisfied that the omission of that ground from the grounds of
appeal was not willful or unreasonable.
(3) The Commissioner (Appeals) shall, after making such
further inquiry as may be necessary, pass such order, as he
thinks just and proper, confirming, modifying or annulling the
decision or order appealed against:
Provided that an order enhancing any
penalty or fine in lieu of confiscation or confiscating goods of
greater value or reducing the amount of refund shall not be
passed unless the appellant has been given a reasonable
opportunity of showing cause against the proposed order:
Provided further that where the
Commissioner (Appeals) is of opinion that any duty of excise has
not been levied or paid or has been short-levied or short-paid or
erroneously refunded, no order requiring the appellant to pay any
duty not levied or paid, short-levied or short-paid or
erroneously refunded shall be passed unless the appellant is
given notice within the time-limit specified in Section 11A to
show cause against the proposed order.
(4) The order of the Commissioner (Appeals) disposing of
the appeal shall be in writing and shall state the points for
determination, the decision thereon and the reasons for the
decision.
(4A) The Commissioner (Appeals) shall, where it is possible
to do so, hear and decide every appeal within a period of six
months from the date on which it is filed.
(5) On the disposal of the appeal, the Commissioner
(Appeals) shall communicate the order passed by him to the
appellant, the adjudicating authority, the Principal Chief
Commissioner of Central Excise or Chief Commissioner of Central
Excise and the Principal Commissioner of Central Excise or
Commissioner of Central Excise
Section 35B. Appeals to the Appellate
Tribunal. -
(1) Any person aggrieved by any of the following orders may
appeal to the Appellate Tribunal against such order -
(a) a decision or order passed by
the Principal Commissioner of Central Excise or Commissioner of
Central Excise as an adjudicating authority;
(b) an order passed by the
Commissioner (Appeals) under Section 35A;
(c) an order passed by the Central
Board of Excise and Customs constituted under the Central Boards
of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter
referred to as the Board) or the Appellate Principal Commissioner
of Central Excise or Commissioner of Central Excise under Section
35, as it stood immediately before the appointed day;
(d) an order passed by the Board or
the Principal Commissioner of Central Excise or Commissioner of
Central Excise , either before or after the appointed day, under
Section 35A, as it stood immediately before that day :
Provided that no appeal shall lie to the
Appellate Tribunal and the Appellate Tribunal shall not have
jurisdiction to decide any appeal in respect of any order
referred to in clause (b) if such order relates to, -
(a) a case of loss of goods, where
the loss occurs in transit from a factory to a warehouse or to
another factory, or from one warehouse to another, or during the
course of processing of the goods in a warehouse or in storage,
whether in a factory or in a warehouse;
(b) a rebate of duty of excise on
goods exported to any country or territory outside India or on
excisable materials used in the manufacture of goods which are
exported to any country or territory outside India;
(c) goods exported outside India
(except to Nepal or Bhutan) without payment of duty ;
(d) credit of any duty allowed to
be utilised towards payment of excise duty on final products
under the provisions of this Act or the rules made thereunder and
such order is passed by the Commissioner (Appeals) on or after
the date appointed under Section 109 of the Finance (No. 2) Act,
1998:
Provided further that the Appellate
Tribunal may, in its discretion, refuse to admit an appeal in
respect of an order referred to in clause (b) or clause (c) or
clause (d) where -
(i) 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; o
(ii) the amount of fine or penalty
determined by such order, does not exceed Two lakh rupees;
(1A) Every appeal against any order of the nature referred
to in the first proviso to sub-Section (1), which is pending
immediately before the commencement of Section 47 of the Finance
Act, 1984, before the Appellate Tribunal and any matter arising
out of, or connected with, such appeal and which is so pending
shall stand transferred on such commencement to the Central
Government, and the Central Government shall deal with such
appeal or matter under Section 35EE as if such appeal or matter
were an application or a matter arising out of an application
made to it under that Section.
(1B) (i) The Central Board of Excise and Customs
constituted under the Central Boards of Revenue Act, 1963 (54 of
1963) may, by order, constitute such Committees as may be
necessary for the purposes of this Act.
(ii) Every Committee constituted
under clause (i) shall consist of two Chief Commissioners of
Central Excise or two Commissioners of Central Excise, as the
case may be.
(2) The Committee of Commissioners of Central Excise may,
if it is of opinion that an order passed by the Appellate
Commissioner of Central Excise under Section 35, as it stood
immediately before the appointed day, or the Commissioner
(Appeals) under Section 35A, is not legal or proper, direct any
Central Excise Officer authorised by him in this behalf
(hereafter in this Chapter referred to as the authorised officer)
to appeal on its behalf to the Appellate Tribunal against such
order.
Provided that where the committee of Commissioners of
Central Excise differs in its opinion regarding the appeal
against the order of the Commissioner (Appeals), it shall state
the point or points on which it differs and make a reference to
the jurisdictional Principal Chief Commissioner of Central Excise
or Chief Commissioner of Central Excise who shall, after
considering the facts of the order, if is of the opinion that the
order passed by the Commissioner (Appeals) is not legal or
proper, direct any Central Excise Officer to appeal to the
Appellate Tribunal against such order.
Explanation- For the purposes of this sub Section,
"Jurisdiction Chief Commissioner" means the Principal Chief
Commissioner of Central Excise or Chief Commissioner of Central
Excise having jurisdiction over the adjudicating authority in the
matter.
(3) Every appeal under this Section shall be filed within
three months from the date on which the order sought to be
appealed against is communicated to the Principal Chief
Commissioner of Central Excise or Commissioner of Central Excise
, or, as the case may be, the other party preferring the appeal.
(4) On receipt of notice that an appeal has been preferred
under this Section, the party against whom the appeal has been
preferred may, notwithstanding that he may not have appealed
against such order or any part thereof, 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 appealed against and such memorandum shall be
disposed of by the Appellate Tribunal as if it were an appeal
presented within the time specified in sub-Section (3).
(5) The Appellate Tribunal may admit an appeal or permit
the filing of a memorandum of cross-objections after the expiry
of the relevant period referred to in sub-Section (3) or
sub-Section (4), if it is satisfied that there was sufficient
cause for not presenting it within that period.
(6) An appeal to the Appellate Tribunal shall be in the
prescribed form and shall be verified in the prescribed manner
and shall, irrespective of the date of demand of duty and
interest or of levy of penalty in relation to which the appeal is
made, be accompanied by a fee of, -
(a) where the amount of duty and
interest demanded and penalty levied by any Central Excise
Officer in the case to which the appeal relates is five lakh
rupees or less, one thousand rupees;
(b) where the amount of duty and
interest demanded and penalty levied by any Central Excise
Officer in the case to which the appeal relates is more than five
lakh rupees but not exceeding fifty lakh rupees, five thousand
rupees;
(c) where the amount of duty and
interest demanded and penalty levied by any Central Excise
Officer in the case to which the appeal relates is more than
fifty lakh rupees, ten thousand rupees:
Provided that no such fee shall be payable in
the case of an appeal referred to in sub-Section (2) or a
memorandum of cross-objections referred to in sub-Section (4).
(7) Every application made before the Appellate Tribunal -
(a) in an appeal for rectification
of mistake or for any other purpose; or
(b) for restoration of an appeal or
an application,shall be accompanied by a fee of five hundred
rupees :
Provided that no such fee shall be
payable in the case of an application filed by or on behalf of
the Principal Chief Commissioner of Central Excise or
Commissioner of Central Excise under this sub-Section.
Section 35C. Orders of Appellate Tribunal.
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(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 the 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 Principal Chief
Commissioner of Central Excise or 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:
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(3) The Appellate Tribunal shall send a copy of every order
passed under this Section to the Principal Chief Commissioner of
Central Excise or 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.
Section 35D.Procedure of Appellate Tribunal.
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(1) The provisions of sub-Sections (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.
(2) Omitted
(3) 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 -
(a) 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
(b) the amount of fine or penalty
involved, does not exceed Fifty lakh rupees.
Section 35E. Powers of Committee of Chief
Commissioners of Central Excise or Principal Commissioner of
Central Excise or Commissioner of Central Excise to pass certain
orders. -
(1) 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 Principal Chief Commissioner of Central
Excise or 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 Committee of Chief
Commissioners of Central Excise in its order.
Provided that where the Committee of
Chief Commissioners of Central Excise differs in its opinion as
to the legality or propriety of the decision or order of the
Principal Chief Commissioner of Central Excise or Commissioner of
Central Excise, it shall state the point or points on which it
differs and make a reference to the Board which, after
considering the facts of the decision or order, if is of the
opinion that the decision or order passed by the Principal Chief
Commissioner of Central Excise or Commissioner of Central Excise
is not legal or proper, 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 in its order.
(2) The Principal Chief Commissioner of Central Excise or
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 or any Central Excise Officer
subordinate to him 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 Principal Chief Commissioner of
Central Excise or Commissioner of Central Excise in his order.
(3) Every order under sub-Section (1) or sub-Section (2),
as the case may be, shall be made within a period of three months
from the date of communication of the decision or order of the
adjudicating authority.
Provided that the Board may, on
sufficient cause being shown, extend the said period by another
30 days.
(4) Where in pursuance of an order under sub-Section (1) or
sub-Section (2) the adjudicating authority or the authorised
officer makes an application to the Appellate Tribunal or the
Commissioner (Appeals) within a period of one month 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.
(5) Omitted
Section 35EA. Omitted
Section 35EE. Revision by Central
Government. -
(1) 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 Principal Chief Commissioner of Central Excise or
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 revision
of such order.
(2) 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.
(3) 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, -
(a) 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;
(b) 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).
(4) The Central Government may, of its own motion, annul or
modify any order referred to in sub-Section (1).
(5) No order enhancing any penalty or fine in lieu of
confiscation or confiscating goods of greater value shall be
passed under this Section, -
(a) 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
(b) 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.
(6) 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.
Section 35F. Deposit of certain percentage of
duty demanded or penalty imposed before filling appeal. -
The Tribunal or the Commissioner (Appeals), as the case may
be, shall not entertain any appeal, -
(i) under sub-section (1) of section 35,
unless the appellant has deposited seven and a half per cent. of
the duty demanded or penalty imposed or both, in pursuance of a
decision or an order passed by an officer of Central Excise lower
in rank than the Commissioner of Central Excise;
(ii) against the decision or order
referred to in clause (a) of sub-section (1) of section 35B,
unless the appellant has deposited seven and a half per cent. of
the duty demanded or penalty imposed or both, in pursuance of the
decision or order appealed against;
(iii) against the decision or order
referred to in clause (b) of sub-section (1) of section 35B,
unless the appellant has deposited ten per cent. of the duty
demanded or penalty imposed or both, in pursuance of the decision
or order appealed against:
Provided that the amount required to be
deposited under this section shall not exceed rupees ten crores:
Provided further that the provisions of
this section shall not apply to the stay applications and appeals
pending before any appellate authority prior to the commencement
of the Finance (No.2) Act, 2014.
Explanation - For the purposes of this section
"duty demanded" shall include, -
(i) amount determined under section 11D;
(ii) amount of erroneous Cenvat credit
taken;
(iii) amount payable under rule 6 of the
Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the
Cenvat Credit Rules, 2004.
Section 35FF. Interest on delayed refund of
amount deposited under Section 35F. -
Where an amount deposited by the appellant under section
35F is required to be refunded consequent upon the order of the
appellate authority, there shall be paid to the appellant
interest at such rate, not below five per cent. and not exceeding
thirty-six per cent. per annum as is for the time being fixed by
the Central Government, by notification in the Official Gazette,
on such amount from the date of payment of the amount till, the
date of refund of such amount.
Provided that the amount deposited under
section 35F, prior to the commencement of the Finance (No. 2)
Act, 2014, shall continue to be governed by the provisions of
Section 35FF as it stood before the commencement of the said Act.
Section 35G. Appeal to High Court. -
(1) An appeal shall lie to the High Court from every order
passed in appeal by the Appellate Tribunal on or after the 1st
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), if the High Court is satisfied that the case
involves a substantial question of law.
(2) The Principal Chief Commissioner of Central Excise or
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 -
(a) filed within one hundred and
eighty days from the date on which the order appealed against is
received by the Principal Chief Commissioner of Central Excise or
Commissioner of Central Excise or the other party;
(b) accompanied by a fee of two
hundred rupees where such appeal is filed by the other party;
(c) in the form of a memorandum of
appeal precisely stating therein the substantial question of law
involved.
(2A) The High Court may admit an appeal after the expiry of
the period of one hundred and eighty days referred to in clause
(a) of sub-Section (2), if it is satisfied that there was
sufficient cause for not filing the same within that period.
(3) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate that
question.
(4) The appeal shall be heard only on the question so
formulated, and the respondents 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 or abridge the power of
the Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law not formulated by it, if it is
satisfied that the case involves such question.
(5) The High Court shall decide the question of law so
formulated and deliver such judgment thereon containing the
grounds on which such decision is founded and may award such cost
as it deems fit.
(6) The High Court may determine any issue which -
(a) has not been determined by the
Appellate Tribunal; or
(b) has been wrongly determined by
the Appellate Tribunal, by reason of a decision on such question
of law as is referred to in sub-Section (1).
(7) 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.
(8) 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.
(9) Save as otherwise provided in this Act, the provisions
of the Code of Civil Procedure, 1908 (5 of 1908), relating to
appeals to the High Court shall, as far as may be, apply in the
case of appeals under this Section.
Section 35H. Application to High Court. -
(1) The Principal Chief Commissioner of Central Excise or
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 1st 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.
(2) The Principal Commissioner of Central Excise or
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.
(3) 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).
(3A) The High Court may admit an application or permit the
filing of a memorandum of cross objections
after the expiry of the relevant period referred to in
sub-Section (1) or sub-Section (3), if it is satisfied that there
was sufficient cause for not filing the same within that period.
(4) 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.
Section 35-I. 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.
Section 35J. Case before High Court to be
heard by not less than two judges. -
(1) 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.
(2) 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.
Section 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 the
order passed on the appeal by the concerned Central Excise
Officer on the basis of a certified copy of the judgment.
(2) The costs of any reference to the High Court or an
appeal to the High Court or the Supreme Court, as the case may be
which shall not include the fee for making the reference, shall
be in the discretion of the Court.
Section 35L Appeal to the Supreme Court -
(1) An appeal shall lie to the Supreme Court from -
(a) any judgment of the High Court delivered -
(i) in an appeal made under Section 35G;
or
(ii) on a reference made under Section
35G by the Appellate Tribunal before the 1st day of July, 2003;
(iii) 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 passing of the judgment, the High Court
certifies to be a fit one for appeal to the Supreme Court; or
(b) any order passed before the establishment of the
National Tax Tribunal 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.
(2) For the purposes of this Chapter, the determination of
any question having a relation to the rate of duty shall include
the determination of taxability or excisability of goods for the
purpose of assessment.
Section 35M Hearing before Supreme Court. -
(1) 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.
(2) The costs of the appeal shall be in the discretion of
the Supreme Court.
(3) 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.
Section 35N. Sums due to be paid
notwithstanding reference, etc. -
Notwithstanding that a reference has been made to the High
Court or the Supreme Court or an appeal has been preferred to the
Supreme Court, under this Act before the commencement of the
National Tax Tribunal Act, 2005 sums due to the Government as a
result of an order passed under sub-Section (1) of Section 35C
shall be payable in accordance with the order so passed.
Section 35-O. 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.
Section 35P. Transfer of certain pending
proceedings and transitional provisions. -
(1) 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.
(2) 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 -
(a) 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
(b) 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.
(3) Every proceeding which is pending immediately before
the appointed day before the Board or the Principal Commissioner
of Central Excise or 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
Principal Commissioner of Central Excise or the Commissioner of
Central Excise , as the case may be, as if the said Section had
not been substituted.
(4) Any person who immediately before the appointed day was
authorised to appear in any appeal or proceeding transferred
under sub-Section (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.
Section 35Q. Appearance by authorised
representative. -
(1) 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.
(2) For the purposes of this Section, "authorized
representative" means a person authorised by the person referred
to in sub-Section (1) to appear on his behalf, being -
(a) his relative or regular
employee; or
(b) any legal practitioner who is
entitled to practise in any civil court in India; or
(c) any person who has acquired
such qualifications as the Central Government may prescribe for
this purpose.
(3) 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.
(4) No person, -
(a) who has been dismissed or removed from Government
service; or
(b) 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
(c) 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 Principal Commissioner
of Central Excise or 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).
(5) If any person, -
(a) who is a legal practitioner, is found guilty of
mis-conduct 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;
(b) who is not a legal practitioner, is found guilty of
mis-conduct 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).
(6) 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:-
(a) no such order or direction
shall be made in respect of any person unless he has been given a
reasonable opportunity of being heard;
(b) 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
(c ) 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.
Section 35R. Appeal not to be filed in
certain cases. -
(1) The Central Board of Excise and Customs may, from time
to time, issue orders or instructions or directions fixing such
monetary limits, as it may deem fit, for the purposes of
regulating the filing of appeal, application, revision or
reference by the Central Excise Officer under the provisions of
this Chapter.
(2) Where, in pursuance of the orders or instructions or
directions, issued under sub-Section (1), the Central Excise
Officer has not filed an appeal, application, revision or
reference against any decision or order passed under the
provisions of this Act, it shall not preclude such Central Excise
Officer from filing appeal, application, revision or reference in
any other case involving the same or similar issues or questions
of law.
(3) Notwithstanding the fact that no appeal, application,
revision or reference has been filed by the Central Excise
Officer pursuant to the orders or instructions or directions
issued under sub-Section (1), no person, being a party in appeal,
application, revision or reference shall contend that the Central
Excise Officer has acquiesced in the decision on the disputed
issue by not filing appeal, application, revision or reference.
(4) The Commissioner (Appeals) or the The Appellate Tribunal or court hearing such appeal,
application, revision or reference shall have regard to the
circumstances under which appeal, application, revision or
reference was not filed by the Central Excise Officer in
pursuance of the orders or instructions or directions issued
under sub-Section (1).
(5) Every order or instruction or direction issued by the
Central Board of Excise and Customs on or after the 20th day of
October, 2010, but before the date on which the Finance Bill,
2011 receives the assent of the President, fixing monetary limits
for filing of appeal, application, revision or reference shall be
deemed to have been issued under sub-Section (1) and the
provisions of sub-Sections (2), (3) and (4) shall apply
accordingly
Section 36. Definitions. -
In this Chapter -
(a) "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;
(b) "High Court" means, -
(i) in relation to any State, the
High Court for that State;
(ii) 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;
(iii) in relation to the Union
Territories of Dadra and Nagar Haveli and Daman and Diu, the High
Court at Bombay;
(iv) in relation to any other Union
Territory, the highest court of civil appeal for that territory
other than the Supreme Court of India;
(c) "President" means the President of the Appellate
Tribunal.
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