APPEALS
The provisions for appeal are contained in
Chapter VI A of the Central Excise Act, 1944. Central Excise (Appeals) Rules,
2001 (Appeal Rules) have been notified w.e.f. 1.7.2001.
Section 35, 35A, 35B, 35C, 35D, 35E, 35EE,
35F, 35G, 35H, 35L, 35J, 35K, 35L, 35M, 35N, 35O, 35P, 35R, 36 deals with the provisions
of appeal in the Central Excise Act , 1944
These provisions provide for appeals to
Commissioner (Appeals), Appellate Tribunal, procedure, orders of appellate
tribunal, powers of revisions of Board, revision by Central Government,
statements of case to High Court, application to High Court, appeal to the
Supreme Court, transfer of certain pending proceedings and transitional
provisions.
Under the new Chapter VIA of the Central Excise
Act,1944 both assessee and department has been conferred with a right of two or
three stage remedies against the orders passed under Central Excise Act and
Rules.
For orders passed by officers lower than the
rank of Commissioner of Central Excise,
·
the first appeal lies
to the Commissioner (Appeals) and
·
next to the Appellate
Tribunal and
·
finally to the Supreme
Court.
But
where the order of the Tribunal does not relate to determination of rate of
duty or value of goods, a reference to the High Court lies under Sections 35G
& 35H, instead of Appeal to Supreme Court.
As per the provisions of Section 35 read with
Sections 35B, 35G, 35H and 35L of the Central Excise Act, any person aggrieved
by the order passed by the Central Excise Officer, can file an appeal to the
following authorities:-
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Order passed by
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Appellate Authority
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1
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All officers upto & including Additional Commissioner
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Commissioner (Appeals)
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2
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Commissioner or Commissioner (Appeals)
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CEGAT except in cases where order relates to:–
1.
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;
2.
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;
3.
goods
exported outside India (except to Nepal or Bhutan) without payment of duty;
4.
credit
of any duty allowed to be utilized 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].
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3
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Commissioner or Commissioner
(Appeals)
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Revision application to Central
Govt. (in matters relating to baggage, drawback, export without payment of
duty, goods short landed, loss of goods in transit). No further Appeal.
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4
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CEGAT
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Supreme Court (Classification and
Valuation cases)
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5
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CEGAT
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High Court (Other than
classification and valuation matters)
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6
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High Court
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Supreme Court
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Appeals to Commissioner (Appeals)
The First Appeal as per the provisions of
Section 35 of the Central Excise Act lies to the Commissioner (Appeals) if the
order or decision is of an officer lower in rank than the Commissioner of
Central Excise. Such an appeal can be filed within sixty days from the date of
the communication of decision/ order. This period can be extended by a further
period of thirty days by Commissioner (Appeals) on sufficient cause being
shown.
Thereafter, the Second Appeal against the
order of the Commissioner (Appeals) can be filed to the Appellate Tribunal.
As per Rule 3 of Central Excise (Appeals)
Rules, 2001 an appeal under sub-section (1) of Section 35 to the Commissioner
(Appeals) shall be made in Form No.E.A.-1(in duplicate) & shall be
accompanied by a copy of the decision or order appealed against.
The grounds of appeal and the form of
verification as contained in Form No.E.A.-1 shall be signed -
·
In the case of an
individual, by the individual himself or where the individual is absent from
India, by the individual concerned or by some person duly authorized by him in
this behalf; and where the individual is a minor or is mentally incapacitated
from attending to his affairs, by his guardian or by any other person competent
to act on his behalf.
·
In the case of a Hindu
undivided family, by the karta and, where the karta is absent from India or is
mentally incapacitated from attending to his affairs, by any other adult member
of such family.
·
In the case of a
company or local authority, by the principal officer thereof;
·
In the case of a firm,
by any partner thereof, not being a minor;
·
In the case of any
other association, by any member of the association or the principal officer
thereof; and
·
In the case of any
other person, by that person or some person competent to act on his behalf.
As per Rule 4, of Appeal Rules an application
under sub-section (4) of Section 35E to the Commissioner (Appeals) shall be
made in Form No.E.A.2 & such an application shall be treated as appeal.
The form of application in Form No.E.A.2 shall
be filed in duplicate and accompanied by two copies of the decision or order
passed by the adjudicating authority (one of which at least shall be a
certified copy) and a copy of the order passed by the Commissioner of Central
Excise directing such authority to apply to the Commissioner (Appeals).
The order of the Commissioner of Central
Excise shall be passed, where it is possible to do so, within a period of six
months from the date on which it is filed. The appeal shall be filed within a
period of sixty days from the date of communication of order.
In response to the long outstanding demand of
the trade and industry for establishing an independent machinery to redress the
grievances of the Excise and Customs assesses, the Central Government set up
the Customs, Excise and Gold Control Appellate Tribunal in the year 1982 to
hear and dispose of appeals in Central Excise, Customs and Gold Control
matters.
The Benches of the Tribunal are composed of
Judicial and Technical Members. Single member Bench has the jurisdiction to
hear appeals involving an amount of duty, fine or penalty not exceeding
Rs.50,000/-.
As per rule 7, an application under
sub-section (1) of section 35E to the Appellate Tribunal shall be made in Form
No.E.A.5. The form of application in Form No.E.A.-5 shall be filed in
quadruplicate and accompanied by an equal number of copies of the decision or
order passed by the Commissioner of Central Excise (one of which at least shall
be a certified copy) and a copy of the order passed by the Board directing such
Commissioner to apply to the Appellate Tribunal.
As per Section 35 B(2) of Central Excise Act,
1944, 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 any Central Excise Officer authorized by him in this behalf to
appeal on his behalf to the Appellate Tribunal against such order.
The Commissioner of Central Excise or the
other party may, within 180 days of the date upon which he is served with
notice of an order under section 35C after (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 Tribunal to refer to it any question of law arising out of such
order and, subject to the other provisions contained in this section. If the
High Court so directs, 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 :
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 an 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).
Sections 35E, 35EA, & 35EE of Central
Excise Act provide for review of an order passed by the adjudicating
authorities.
Section 35E gives powers to Board or
Commissioner of Central Excise to pass certain orders.
Section 35EA deals with powers of revision of
Board or Commissioner of Central Excise in certain cases while Section 35EE
deals with revision by Central Government.
As per Rule 9 & 10 of the Appeal Rules,
the revision application under Section 35 EE shall be in Form E.A.-8 &
presented in person to the Under-Secretary Revision Application Unit,
Government of India, Ministry of Finance, Department of Revenue, New Delhi or
sent by registered post addressed to such officer.
1.
The revision application
sent by registered post shall be deemed to have been submitted to the said
Under Secretary on the date on which it is received in the office of such
officer.
2.
The grounds of
revision application and the form of verification as contained in Form EA-8
shall be signed by the person specified in sub-rule (2) of Rule 3.
3.
The application shall
be filed in duplicate & shall be accompanied by two copies of following
documents, i.e.
1.
Order referred to in
1st Proviso to Section 35B(1)
2.
Decision or order
passed by Central Excise Officer which was the subject matter of the order
referred to in rule 9(4)(i)
Sections 35H of the Central Excise Act, 1944
provides for a reference to the High Court against any order of the Appellate
Tribunal provided such order does not relate to the determination of rate of
duty or value of goods among other things. But where there are conflicting
decisions of the High Courts in relation to the question of law involved,
Section 35 H of the Central Excise Act provides for a direct reference to the
Supreme Court.
Provisions relating to appeals, refunds etc.
as contained in Central Excise Act, 1944 and rules made thereunder are also
applicable to cases under Produce Cess Act, 1966, and for Handloom Cess leviable
under Khadi and other Handloom Industries Development (Additional Excise Duty
on Cloth) Act, 1953.
As per Rule 8 an application under sub-section
(1) of section 35 H requiring the High Court to direct the Appellate Tribunal
to refer to the High Court any question of law shall be made in Form No.E.A.6
and such application shall be filed in quadruplicate. Further provisions are as
below:
A memorandum of
cross-objections under sub-section (3) of section 35H to the High Court shall
be made in Form No.E.A.7 and such memorandum shall be filed in quadruplicate.
Where an application
under sub-section (1) of section 35H or a memorandum of cross-objections under
sub-section (3) of that section is made by any person other than the
Commissioner of Central Excise, the application, the memorandum or form of
verification, as the case may be, contained in Form No.E.A.-6 or Form No.E.A.-7
shall be signed by the person specified in sub-rule (2) of rule 3.
Appeal to Supreme Court
The Central Excise Act, 1944, provides a two
tier machinery for redressal of grievances against the decision of the
Appellate Tribunal. In cases where the decision of the Appellate Tribunal
relates to any question having relation with the determination of ‘rate of
duty’ or ‘value of goods’ amongst other things, the same is directly appellable
to the Supreme Court under Section 35L of the Central Excise Act, but where the
order of the Appellate Tribunal does not relate to ‘rate of duty’ or ‘value of
goods’, first a reference to the High Court has to be made under Section 35H
and thereafter an appeal, against the judgment of the high Court on a
reference, can be made to the Supreme Court provided the High Court certifies
it to be a fit case for appeal to the Supreme Court.
Orders appellable to
the Supreme Court
Section 35L of Central Excise Act, 1944, specifies two types of
orders which are appellable to the Supreme Court:
·
any judgment delivered
by a High Court on a Reference made under Section 35H.
·
any order of the
Appellate Tribunal having relation to the determination of rate of duty or
value of goods, among other things.
