Presentation Transcript

1. CENTRAL EXCISE ACT, 1944APPEALS

2. Central excise, custom and service tax laws empower officer to pass assessment and adjudication orders. The assesses aggrieved by assessment made or or order passed by a central excise officer may appeal to appellate forum for getting relief. Similarly the department can rectify an assessment made . The appellate scheme under the excise law comprises of: The commissioner (Appeals) The customs, excise and service tax control appellate tribunal (CESTAT) Reference to the HIGH COURT on questions of law Central government as revisionary authority.
3. APPEALS TO COMMISSIONER (APPEALS) [SECTION 35] Any person aggreived by any decision or order passed by a Central Excise Officer, lower in rank than a commissioner of the central excise may appeal to the commissioner of central excise (appeals)within 60days from the date of communication to him of such decision or order.
4. 2)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 the case of H.U.F , by the karta and where the karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult of such family; In case of the co. or local authority, by the principal officer thereof; In case of the firm by any partner thereof, not being a minor; In case of any other association by any member of the association or the principal officer thereof; In case of any other person by that person or some person competent to act on his behalf.
5. 3) Appeal shall be filed in form no. E.A.-1 in duplicate with a copy of decision or order appealed against verified in specified manner. Production of additional evidence before the commissioner (appeals) [rule 5] (1)the appellant shall not be entitled to produce before the commissioner any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the adjudicating authority. (2)no evidence shall be admitted unless the commissioner records in writing the reasons for its admission. (3)the commissioner shall not take any evidence produced unless the adjudicating authority or an officer authorized in his behalf by the said authority has been allowed a reasonable opportunity. (4)nothing contained in this rule shall affect the power of the commissioner to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal.
6. Procedure in appeal[sec- 35A] The commissioner shall give opportunity to the appellant to be heard, if he so desires. The commissioner 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 is specified that the omission of that ground from the appeal was not willful or unreasonable. The commissioner may after making such further enquiry as may be necessary, pass such order as he think fit confirming, modifying or annulling the decision or order appeal against The order of the commissioner shall be in writing and shall state the points of determination, the decision thereon and the reasons for the decision. The appeal, the commissioner shall communicate the order to the appellate, the adjudicating authority and the commissioner of central excise.
7. CESTAT [CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL] CESTAT has been formed under Section 129 of Customs Act. Such Tribunal is a quasi-judicial body. It hears appeals against the orders of commissioner as adjudicating authority and commission (appeals). The tribunal consists of Judicial Members and Technical Members. Judicial Members are persons from Judicial background whereas technical members are person who have held post of commissioner of Customs or Central Excise or equivalent or highest post. Tribunal sites in benches.
8. APPEALS TO CESTAT [SECTION35B] 1)Any person aggrieved by any of the following orders may appeal to the appellate tribunal against such order- a decision or order passed by the commissioner of central excise as an adjudicating authority; An order passed by the commissioner (appeals) under section 35A. 2)The president or any other member of the Appellant Tribunal authorized in his 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-
9. In any disputes 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 the issue or is one of the point in issue, the difference in duty involved ;or The amount of fine or penalty involved, does not exceed Rs. 10 lakh. 3)The application shall be in the form EA-8 And shall be verified in the prescribed manner and shall be accompanied by a fee based on plus the amount of the duty and interest demanded, fine or penalty levied by any Central Excise in the case.
10. APPEAL TO HIGH COURT[SECTION 35G] An appeal shall lie to 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. 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 shall be-
11. (a) 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; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party (no. fee if appeal by CCE); (c) In the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (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:
12. 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 sis 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 ground 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).
13. (7) When an appeal has been filed before the high court, it shall be heard by a bench of not les than two judges of the high court, and shall be decided in accordance with the opinion of such judges or 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, b 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 head it.
14. (9) Save as otherwise provided in this act, the provisions of the code of civil procedure, 1908 relating to appeals to the high court shall, apply. Power of high court or supreme court to require statement to be amended-[section 35-I]. 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 raise thereby, the court may refer the case back for the purpose of making such statements sufficient. Case before high court to be heard by not less than two judges-[section 35J]. When any case has been referred to the high court it shall be heard by a bench of not less than two judges 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, 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 decided according to the opinion of the majority of the judges who have heard the case including those who first heard it. decision of high court or supreme court on the case stated-[section 35K]. (1) The high court or the supreme court hearing any such case hall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is grounded 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.
15. (1 A ) where the high court delivers a judgment in an appeal filed before it under section 35F, 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 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.
16. APPEAL TO THE SUPREME COURT [SECTION 35L] An appeal shall lie to the supreme court from- Any judgement of the high court delivered (i) in an appeal made under section 35G; or (ii) on a reference made U/S 35G by the Appellate Tribunal before 1.7.2003. 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. Hearing before supreme court-[section35M]. The provisions of the code of civil procedure, 1908 apply to appeals to the supreme court under section 35 L. the costs of the appeal shall be in the discretion of the supreme court. effect shall be given to the order of the supreme court in the manner provided in section 35K in the case of a judgement of the high court.
17. Sums due to be paid not withstanding reference, etc.-[section 35N]. 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, sums due to the government as a result of an order passed under section 35c(1) shall be payable (no escape). Excluding time taken for copy of order (section 35O). For computing the time limit for making appeals in this chapter, following shall be excluded : They day when order was served and time taken to obtain copy of the orders. Procedure of filling appeals etc.-[rule 11.] An appeal in form no. E.A.-3 or a memorandum of cross-objections in form no. E.A.-4 or form no. E.A.-7 or an application in form no. E.A,-5 or form no. E.A.-6 shall be presented in person to the registrar or an officer authorised in this behalf by the registrar , or sent by registered post addressed to the registrar or such officer. an appeal or a memorandum of cross-objections or an application sent by post shall be deemed to have presented to the registrar or the officer by the registrar on the date on which it is received in the office of the registrar, or, as the case may be, in the office of such officer.
18. APPEAL NOT TO BE FILED IN CERTAIN CASES [SECTION 35R] The provisions of sec. 35R are as follows: The CBEC 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. where, in pursuance of the orders or instructions or directions, issued under (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 officer from filing appeal, revision or reference in any other case involving the same issue or similar issues or questions of law; Notwithstanding the fact that no appeal, application, revision or reference has been filed by the central excise officer pursuant to the orders or instruction or directions issued under (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;
19. (4) 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 (1); (5) Every order or instruction or direction issued by the CBEC on or after 20.10.2010, but before the date on which the finance bill, 2011 receives the assent of the president, fixing monetary limits of filing of appeal, application, revision or reference shall be deemed to have been issued under (1) and (2), (3) and (4) shall apply accordingly.