CHAPTER 16

APPEALS
1. Introduction

1.1 The provisions for appeal are contained in Chapter VI A of the Central ExciseAct,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), AppellateTribunal, procedure, orders of appellate tribunal, powers of revisions of Board, revision byCentral Government, statements of case to High Court, application to High Court,appeal to the Supreme Court, transfer of certain pending proceedings and transitionalprovisions.

2. Appellate Stages

2.1 Under the new Chapter VIA of the Central Excise Act,1944 both assessee anddepartment has been conferred with a right of two or three stage remedies against theorders passed under Central Excise Act and Rules. For orders passed by officers lowerthan 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. Butwhere the order of the Tribunal does not relate to determination of rate of duty or valueof goods, a reference to the High Court lies under Sections 35G & 35H, instead of Appealto Supreme Court. In cases where the order-in-original is passed by a Commissioner ofCentral Excise, appeal lies directly to the Appellate Tribunal.

2.3 As per the provisions of Section 35 read with Sections 35B, 35G, 35H and 35L ofthe Central Excise Act, any person aggrieved by the order passed by the Central ExciseOfficer , can file an appeal to the following authorities:-

	Order passed by	Appellate Authority
1	All officers upto & including AdditionalCommissioner	Commissioner (Appeals)
2	Commissioner orCommissioner (Appeals)	CEGAT except in cases where order relates to:– a. a case of loss of goods, where the loss occursin transit from a factory to a warehouse or toanother factory, or from one warehouse toanother, or during the course of processing ofthe goods in a warehouse or in storage,whether in a factory or in a warehouse; b. a rebate of duty of excise on goods exportedto any country or territory outside India or onexcisable materials used in the manufactureof goods which are exported to any countryor territory outside India; c. goods exported outside India (except toNepal or Bhutan) without payment of duty; d. credit of any duty allowed to be utilizedtowards payment of excise duty on finalproducts under the provisions of this Act orthe rules made thereunder and such order ispassed by the Commissioner (Appeals) on orafter the date appointed under section 109of the Finance (No.2) Act, 1998].
3	Commissioner orCommissioner (Appeals)	Revision application to Central Govt. (in mattersrelating to baggage, drawback, export withoutpayment of duty, goods short landed, loss of goodsin transit). No further Appeal.
4	CEGAT	Supreme Court (Classification and Valuation cases)
5	CEGAT	High Court (Other than classification and valuationmatters)
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 madethereunder are subject to two departmental appeals except in the case where theOrder-in-Original is passed by the Commissioner as an adjudicating authority when onlyone right of appeal to the Tribunal is conferred. The First Appeal as per the provisions ofSection 35 of the Central Excise Act lies to the Commissioner(Appeals) if the order ordecision is of an officer lower in rank than the Commissioner of Central Excise. Such anappeal 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 theorder of the Commissioner (Appeals) can be filed to the Appellate Tribunal except forthe 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(induplicate) & shall be accompanied by a copy of the decision or order appealedagainst.

3.3 The grounds of appeal and the form of verification as contained in Form No.E.A.-1shall be signed -

(a) In the case of an individual, by the individual himself or where theindividual is absent from India, by the individual concerned or by someperson duly authorized by him in this behalf; and where the individual is aminor or is mentally incapacitated from attending to his affairs, by hisguardian 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 kartais absent from India or is mentally incapacitated from attending to hisaffairs, by any other adult member of such family.

(c) In the case of a company or local authority, by the principal officerthereof;

(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 orthe principal officer thereof; and

(f) In the case of any other person, by that person or some person competentto act on his behalf.

3.4 As per Rule 4, of Appeal Rules an application under sub-section (4) of Section 35E tothe Commissioner(Appeals) shall be made in Form No.E.A.2 & such an application shallbe treated as appeal.

3.5 The form of application in Form No.E.A.2 shall be filed in duplicate andaccompanied by two copies of the decision or order passed by the adjudicatingauthority (one of which at least shall be a certified copy) and a copy of the orderpassed by the Commissioner of Central Excise directing such authority to apply to theCommissioner (Appeals).

3.6 The order of the Commissioner of Central Excise shall be passed, where it is possibleto do so, within a period of six months from the date on which it is filed. The appeal shallbe 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 toproduce before the Commissioner (Appeals) any evidence, whether oral ordocumentary, other than the evidence produced by him during the course of theproceedings before the adjudicating authority except in the following circumstances,namely :

(a) Where the adjudicating authority has refused to admit evidence which ought tohave been admitted; or

(b) Where the appellant was prevented by sufficient cause from producing theevidence which was called upon to produce by the adjudicating authority; or

(c) Where the appellant was prevented by sufficient cause from producing beforethe adjudicating authority any evidence which is relevant to any ground ofappeal; or

(d) Where the adjudicating authority has made the order appealed against withoutgiving sufficient opportunity to the appellant to adduce evidence relevant to anyground 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 saidauthority has been allowed a reasonable opportunity -

(a) to examine the evidence or document or to cross-examine any witness1produced by the appellant, or

(b) to produce any evidence or any witness in rebuttal of the evidenceproduced by the appellant under sub-rule (1)

4.3 It is also provided that nothing contained in this rule shall affect the power of theCommissioner(Appeals); to direct the production of any document, or theexamination of any witness, to enable him to dispose of the appeal.

5. Appeals to Appellate Tribunal

5.1 In response to the long outstanding demand of the trade and industry forestablishing an independent machinery to redress the grievances of the Excise andCustoms assesses, the Central Government set up the Customs, Excise and Gold ControlAppellate 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 theAppellate 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 ofcross-objections under sub-section (4) of that section is made by any personother than the Commissioner of Central Excise, the grounds of appeal, thegrounds of cross-objections and the forms of verification as contained in FormNos.E.A.3 and E.A.-4, as the case may be respectively shall be signed by thepersons 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-objectionsin Form No.E.A.-4 shall be filed in quadruplicate andaccompanied by an equal number of copies of the order appealed against(one of which at least shall be a certified copy).

7. Form of application to Appellate Tribunal

7.1 As per rule 7 , of the Appeal Rules an application under sub-section (1) of section35E to the Appellate Tribunal shall be made in Form No.E.A.5. The form of application inForm No.E.A.-5 shall be filed in quadruplicate and accompanied by an equal number ofcopies of the decision or order passed by the Commissioner of Central Excise (one ofwhich at least shall be a certified copy) and a copy of the order passed by the Boarddirecting such Commissioner to apply to the Appellate Tribunal.

8. Appeal to Appellate Tribunal against order of Commissioner (Appeals)

8.1 As per Section 35 B(2) of Central Excise Act, 1944, the Commissioner ofCentral 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 Officerauthorized by him in this behalf to appeal on his behalf to the Appellate Tribunalagainst such order.

9. Reference Application

9.1 The Commissioner of Central Excise or the other party may, within 180 days ofthe date upon which he is served with notice of an order under section 35C after (notbeing an order relating, among other things, to the determination of any questionhaving a relation to the rate of duty of excise or to the value of goods for purposes ofassessment), by application in the prescribed form, accompanied, where theapplication is made by the other party, by a fee of two hundred rupees, apply to theHigh Court to direct the Tribunal to refer to it any question of law arising out of such orderand, 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 suchdirection, draw up a statement of the case and refer it to the High Court :

9.2 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 thathe may not have filed such an application, file, within forty-five days of the receipt of thenotice, a memorandum of cross-objections verified in the prescribed manner against anypart of the order in relation to which an application for reference has been made andsuch memorandum shall be disposed of by the High Court as if it were an applicationpresented within the time specified in sub-section (1).

10. Procedure for filing Revision Application

10.1 Sections 35E, 35EA, & 35EE of Central Excise Act provide for review of an orderpassed by the adjudicating authorities.

10.1.1 Section 35E gives powers to Board or Commissioner of Central Excise to passcertain orders.

10.1.2 Section 35EA deals with powers of revision of Board or Commissioner ofCentral Excise in certain cases while Section 35EE deals with revision by CentralGovernment.

11. Revision Application

11.1 As per Rule 9 & 10 of the Appeal Rules, the revision application under Section 35EE shall be in Form E.A.-8 & presented in person to the Under-Secretary RevisionApplication Unit, Government of India, Ministry of Finance, Department of Revenue, NewDelhi or sent by registered post addressed to such officer.

(1) The revision application sent by registered post shall be deemed to have beensubmitted to the said Under Secretary on the date on which it is received in theoffice of such officer.

(2) The grounds of revision application and the form of verification as contained inForm 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 copiesof following documents, i.e.

i) Order referred to in 1 st Proviso to Section 35B(1)

ii) Decision or order passed by Central Excise Officer which was the subjectmatter of the order referred to in rule 9(4)(i)

12. Form of application to High Court

12.1 Sections 35H of the Central Excise Act, 1944 provides for a reference to the HighCourt against any order of the Appellate Tribunal provided such order does not relate tothe determination of rate of duty or value of goods among other things. But where thereare 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 SupremeCourt.

12.2 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 IndustriesDevelopment (Additional Excise Duty on Cloth) Act, 1953.

12.3 As per Rule 8 an application under sub-section (1) of section 35 H requiring theHigh Court to direct the Appellate Tribunal to refer to the High Court any question of lawshall 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 tothe High Court shall be made in Form No.E.A.7 and such memorandum shallbe filed in quadruplicate.

(2) Where an application under sub-section (1) of section 35H or a memorandumof cross-objections under sub-section (3) of that section is made by anyperson other than the Commissioner of Central Excise, the application, thememorandum or form of verification, as the case may be, contained in FormNo.E.A.-6 or Form No.E.A.-7 shall be signed by the person specified in sub-rule(2) of rule 3.

13. Appeal to Supreme Court

13.1 The Central Excise Act, 1944, provides a two tier machinery forredressal of grievances against the decision of the Appellate Tribunal. In caseswhere the decision of the Appellate Tribunal relates to any question having relationwith the determination of ‘rate of duty’ or ‘value of goods’ amongst other things, thesame is directly appellable to the Supreme Court under Section 35L of the CentralExcise Act, but where the order of the Appellate Tribunal does not relate to ‘rate ofduty’ or ‘value of goods’, first a reference to the High Court has to be made underSection 35H and thereafter an appeal, against the judgment of the high Court on areference, can be made to the Supreme Court provided the High Court certifies it tobe a fit case for appeal to the Supreme Court.

13.2 Orders appellable to the Supreme Court

13.2.1 Section 35L of Central Excise Act, 1944, specifies two types of orderswhich are appellable to the Supreme Court:

(i) any judgment delivered by a High Court on a Reference made underSection 35H.

iii) any order of the Appellate Tribunal having relation to thedetermination of rate of duty or value of goods, among other things.

[All Forms specified in this Chapter are in Annexure 33, 34, 35, 36, 37, 38, 39, 40]

Click here [Previous - Ch. 15]

Click here [Next - Part I] of Ch. 17

Presented by eximkey.com