TaxTMI 
TaxTMI 
APPEALS
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....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, an appeal to the High Court lies under Sections 35G & reference application under 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. 2.3 The appellate remedy available for orders passed by different z is as follows:- Sr. No. Order passed by Appellate Authority 1. All officers upto & including Additional Commissioner Commissioner (Appeals) 2. Commissioner or Commisssioner (Appeals) CESTAT 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 o....
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....y 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 the Appeal Rules, an application under sub-section (4) Section 35E to the Commissioner (Appeals) shall be made in Form No.E.A.-2.and such an application shall be treated as an appeal. 3.5 The form of application in Form No. E.A.-2 (See Annexure 37 in part7) 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 (Ap....
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....st without giving sufficient opportunity to the appellant adduce evidence relevant to any ground of appeal. 5.2 No evidence shall be admitted under sub-rule (1) unless Commissioner (Appeals) records in writing the reasons for its admission. 5.3 The Commissioner (Appeals) shall not take any evidence produced under sub-rule (1) unless the adjudicating authority or an officer authorized - 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 produced 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) 5.4 It is also provided that nothing contained in the said 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 appeal. 6. Effective handling of Central Excise and Customs Appeals before Commissioner (Appeals) 16.1 The Board on recommendation of Expert Group in appeal matters, has issued the guideline that in order to make the Department's representation before Commissioner (Appeals) more effecti....
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....art 7) 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). 8. Appellate Tribunal against order of Commissioner (Appeals) 8.1 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 the Appellate Tribunal against such order. 9. Form of application to Appellate Tribunal 9.1 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 (see Annexure 40 in Part 7). The form of application in Form No. E.A.-5(see Annexure 40 in Part 7) shall be filed in quadruplicate and accompanied by number of copies of the decision or order passed by the Commissioner 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. 10. Order of Appellate Tribunal 10.1.1 As per Se....
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....authorisation for filing cross objection is to be given by Board, and therefore, Zonal Chief Commissioner has to send draft Review Order along with the ca records and the Memo of appeal filed by the assessee within ten days of receipt of notice from the CESTAT. Further, whenever any specific comments clarification is asked for, it should be very expeditiously attended to and well considered comments shall be sent by the Commissioners themselves under their own signature. 10.5 It may be ensured that applications for early and out of turn hearing are filed only in deserving cases giving proper and detailed reasons for the same. It should be ensured that such application should not be filed in a routine manner and due justification must be given for out of turn hearing while filing such applications. 10.6 The Board has issued instructions in the past reiterating the importance of language used in the authorisation. Circular No. 413/46/98-CX, dated 6-8-1998 (F. No. 390/120/98-JC) [(102) E.L.T. T31] & Circular No. 560/56/2000-CX, dated 30-11-2000 (F. No. 387/269/2000-JC) [(122) E.L.T.1281 in this regard are relevant. There may be cases where even though the Commissioner was inclined ....
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....d in routine and the review authority should give its observations for guidance of the adjudication authorities. The tendency to invariably pass the orders in favour of revenue without application of mind or to file frivolous appeals should end forthwith. Whenever any such cases noticed, the CDR should send a note to the Chief Commissioner concerned with a copy to the Board. 12. Application to High Court 12.1 As per Section 35H, the Commissioner of Central Excise or the z party may, within 180 days of the date upon which he is served with notice of an order under section 35C passed before 1.7.2003 (not being an order ting, 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 ....
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....all, 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. 14. Procedure for filing Revision Application 14.1 Sections 35E, 35EA, & 35EE of Central Excise Act provide for review of an order passed by the adjudicating authorities. 14.2. Section 35E gives powers to Board or Commissioner of Central se to pass certain orders. 14.3 Section 35EA deals with powers of revision of Board or iissioner of Central Excise in certain cases while Section 35EE deals with revision by Central Government. 15. Revision Application 15.1 As per Rule 9 & 10 of the Appeal Rules, the revision application e Section 35 EE shall be in Form E.A.-8 (See Annexure 43 in Part 7) & presented in person to the Under-Secretary Revision Application Unit, G of India, Ministry of Finance, Department of Revenue, New Delhi by registered post addressed to such officer. (1) The revision application sent by re....
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....the High Court certifies it to be a fit case for appeal to the Supreme Court. 17.2 Orders appealable to the Supreme Court An appeal under Section 35L of Central Excise Act, 1944 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 certified to be a fit one for appeal to the Supreme Court; or b) 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. 17.3 The petition of appeal under Section 35L of the Central Excises and Salt Act, 1944, shall, subject to the provisions of Section 4,5 and 12 of the Limitation Act, 1963 (36 of 1963) be presented within sixty days from the date of the order sought to be appealed against or within sixty days fro....