Chapter 16
APPEALS
1. Introduction
1.1 The provisions for appeal are contained in Chapter VI A of the Central Excise Act,1944. The rules pertaining to Appeals i.e. Central Excise (Appeals) Rules, 2001 (hereinafter referred to as ‘Appeal Rules’) have been notified w.e.f. 1.7.2001.
1.2 Provisions in the Central Excise Act , 1944 relating to Appeals are –Section 35, 35A, 35B, 35C, 35D, 35E, 35EE, 35F, 35G, 35H, 35L, 35J, 35K, 35L, 35M, 35N, 35O, 35P, 35R, 36.
1.3 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.
2. Appellate Stages
2.1 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 there from 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. In cases where the order-in-original is passed by a Commissioner of Central Excise, appeal lies directly to the Appellate Tribunal.
2.2 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:-
| | Order passed by | Appellate Authority |
| 1 | All officers upto & including Additional Commissioner | Commissioner (Appeals) |
| 2 | Commissioner or Commissioner (Appeals) | CEGAT except in cases where 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 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]. |
| 3. | Commissioner or Commissioner (Appeals) | 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. |
| 4 | CEGAT | Supreme Court (Classification and Valuation cases) |
| 5 | CEGAT | High Court (Other than classification and valuation matters) |
| 6 | High Court | Supreme Court |
3. Appeals to Commissioner (Appeals)3.1 All decisions and orders passed under the Central Excise Act or the rules made thereunder are subject to two departmental appeals except in the case where the Order-in-Original is passed by the Commissioner as an adjudicating authority when only one right of appeal to the Tribunal is conferred. 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 except for the type of cases referred to in Sl.No.6 of the chart above.
3.2 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.
3.3 The grounds of appeal and the form of verification as contained in Form No.E.A.-1 shall be signed -
(a) 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.
(b) 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.
(c) In the case of a company or local authority, by the principal officer thereof;
(d) In the case of a firm, by any partner thereof, not being a minor;
(e) In the case of any other association, by any member of the association or the principal officer thereof; and
(f) In the case of any other person, by that person or some person competent to act on his behalf.
3.4 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.
3.5 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).
3.6 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.
4. Production of additional evidence before Commissioner (Appeals)
4.1 An appellant can produce any additional evidence before the Commissioner (Appeals). As per rule 5, of the Appeal Rules the appellant shall not be entitled to produce before the Commissioner (Appeals) any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority except in the following circumstances, namely :
(a) Where the adjudicating authority has refused to admit evidence which ought to have been admitted; or
(b) Where the appellant was prevented by sufficient cause from producing the evidence which was called upon to produce by the adjudicating authority; or
(c) Where the appellant was prevented by sufficient cause from producing before the adjudicating authority any evidence which is relevant to any ground of appeal; or
(d) Where the adjudicating authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.
4.2 No evidence shall be admitted under sub-rule(1) unless the Commissioner (Appeals) records in writing the reasons for its admission.
4.3 The Commissioner(Appeals) shall not take any evidence produced under sub-rule(1) unless the adjudicating authority or an officer authorized in this behalf by the said authority has been allowed a reasonable opportunity -
(a) to examine the evidence or document or to cross-examine any witness 1produced by the appellant, or
(b) to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1)
4.4 It is also provided that nothing contained in this rule shall affect the power of the Commissioner(Appeals); to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal.
5. Appeals to Appellate Tribunal5.1 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.
5.2 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/-.
5.3 As per rule 6, of Appeal Rules, an appeal under sub-section (1) of section 35B to the Appellate Tribunal shall be made in Form No.E.A.3 and the following shall be observed:
(1) A memorandum of cross objections to the Appellate Tribunal under sub-section (4) of section 35 B shall be made in Form No.E.A.4.
(2) Where an appeal under sub-section (1) of section 35B or a memorandum of cross-objections under sub-section (4) of that section is made by any person other than the Commissioner of Central Excise, the grounds of appeal, the grounds of cross-objections and the forms of verification as contained in Form Nos.E.A.3 and E.A.-4, as the case may be respectively shall be signed by the persons specified in sub-rule (2) of rule 3.
(3) The form of appeal in Form No.E.A.-3 and the form of memorandum of cross-objections in Form No.E.A.-4 shall be filed in quadruplicate and accompanied by an equal number of copies of the order appealed against (one of which at least shall be a certified copy ).
6. Form of application to Appellate Tribunal 6.1 As per rule 7 , of the Appeal Rules 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.
7. Appeal to Appellate Tribunal against order of Commissioner (Appeals) 7.1 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.
8. Reference Application8.1 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 :
8.2 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).
9. Procedure for filing Revision Application 9.1 Sections 35E, 35EA, & 35EE of Central Excise Act provide for review of an order passed by the adjudicating authorities.
9.1.1 Section 35E gives powers to Board or Commissioner of Central Excise to pass certain orders.
9.1.2 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.
10. Revision Application 10.1 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.
i) Order referred to in 1st Proviso to Section 35B(1)
ii) Decision or order passed by Central Excise Officer which was the subject matter of the order referred to in rule 9(4)(i)
11. Form of application to High Court 11.1 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.
11.2 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.
11.3 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:
(1) 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.
(2) 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.
12. Appeal to Supreme Court12.1 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.
12.2 Orders appellable to the Supreme Court 12.2.1 Section 35L of Central Excise Act, 1944, specifies two types of orders which are appellable to the Supreme Court:
(i) any judgment delivered by a High Court on a Reference made under Section 35H.
(iii) any order of the Appellate Tribunal having relation to the determination of rate of duty or value of goods, among other things.
[All Forms specified in this Chapter are in Annexure 36 to 43]
(Pl. select the category
New Central Excise Manual - 2002 for above Annexure)
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