TaxTMI 
TaxTMI 
Demand / Show Cause Notice / Adjudication / Appeals
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.... no show cause notice is served. 'Authority' issuing show cause notice Show cause notice should be issued and signed by the 'Central Excise Officer' empowered to adjudicate the case and powers of adjudication depends upon the amount of duty or Cenvat credit involved on offending goods. Authority to adjudicate Amount of duty/ Cenvat credit Superintendents Upto ₹ 1 Lakh (excluding cases involving determination of rate of duty or valuation and cases involving extended period of limitation) AC/ DC Upto ₹ 5 lakhs (except the cases where Superintendents are empowered to adjudicate). Joint Commissioner Between ₹ 5 lakhs to ₹ 50 lakhs Additional Commissioner Between ₹ 5 lakhs to ₹ 50 lakhs Commissioner No limit However, above limit cannot be held as a ground that other officer had no jurisdiction to issue show cause notice, these limits are just administrative directions. These administrative directions cannot take away jurisdiction vested with central excise officer. Thus, the notice can be served and demand can be confirmed by any central excise officer. Time limit to issue show cause notice As per section 11A of CEA, 1....
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.... imposed for issue of show cause notice. For e.g. where demand is raised under sections other than section 11A or under specific scheme such as under compounded levy scheme. Exception The provisions of this section shall not apply to a case where the liability of duty not paid or short-paid is self-assessed and declared as duty payable by the assessee in the periodic returns filed by him, and in such case, recovery of non-payment or short-payment of duty shall be made in such manner as may be prescribed. (Inserted vide Finance Act, 2015) Mere issue of notice is not sufficient, it must be served also. Show cause notice is deemed to be served on the date on which it is delivered by post or courier or copy is affixed on notice board. It may be noted that in the case of post, notice is deemed to be served where recipient refuses to accept the notice, unless contrary is proved. However, where it is returned with the mark 'not found' it will be presumed not to have been served. Dispatch by speed post without proof of delivery and simultaneous affixing of order on notice board does not server legal requirement. Deeming provision of General Clause Act does not apply to excise ....
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....examining the person must be given if demanded. If such opportunity is not given, the statement cannot be relied upon. · Passing the order, giving reasons, by authority - After the hearing an order of adjudication is passed which is called order-in-original. Normally the order is passed within 5 days after personal hearing is over. If this is not possible, order must be passed within 15 days or at the most within one month from the date of conclusion of personal hearing. Officer shall pass a speaking order, which means, order should give reasons for such decision, quantifying correctly the duty demanded and confirmed, specifying the provisions under which duty is confirmed and penalty is imposed. Mere, simple letter asking for payment of duty is not an order. It is important to note that the same officer who has given personal hearing should pass the order if he is transferred before adjudication order is passed, new officer should give fresh personal hearing. · Unbiased authority - Quasi-judicial authorities should Act independently and should give unbiased decision. Also they are not bound by any trade notices or administrative instructions while deciding appeal....
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....limit. The cases under section 35B (1) are as follows: - · Loss of goods in transit from factory to warehouse or from warehouse to warehouse. · Rebate of duty of excise of goods exported. · Goods exported outside India, except Nepal and Bhutan, without payment of duty. · Credit of duty allowed to be utilized towards payment of excise duty on final products and such order is passed by the commissioner (appeals). Appeals The provisions for appeal are contained in chapter VI A of the central excise act, 1944. It consists of three stages of appeal [i.e. to Commissioner (Appeals), CESTAT (i.e. Appellate Tribunal), High Court], two stages of revision and further appeal to Supreme Court. In case of orders passed by superintendent, AC, DC, joint commissioner, additional commissioner as adjudicating authorities i.e. orders passed by the officers lower than the rank of commissioner of central excise, the first appeal is with Commissioner (Appeals) and second appeal is with Appellate Tribunal. However, in case of orders passed by commissioner as adjudicating authority the only appeal lies with the Appellate Tribunal. Tribunal is final fact finding authority ....
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.... his behalf. · Affixing of court fee stamp, of 50 paisa, to appeal and copy of order is required while filing of appeal before Commissioner (Appeals). If it is not affixed, it is curable and appeal cannot be dismissed on this ground. · No fee is payable along with such an application. 2. Time limit for filing appeal to commissioner (appeal) - Appeal must be filed within 60 days from the date of communication of order. However, this period can be extended with further 30 days, on showing sufficient cause, by Commissioner (Appeals). 3. Procedure after filing appeal [section 35A of CEA]- · The commissioner (appeals) shall give an opportunity of hearing to the appellate, if he so desires. The commissioner (appeals) cannot dismiss appeal for non-appearance. In such a case the notice must be served to the appellant if case is not decided in favour of him. · As per rule 5 of Central Excise (Appeals) Rules, 2001 , the appellant is not allowed to produce additional evidences i.e. evidences which are not submitted before the adjudicating authority. However in the cases mentioned below the additional evidences can be admitted provided Commissioner (Appeals) ....
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....house. * Rebate of duty of excise of goods exported. * Goods exported outside India, except Nepal and Bhutan, without payment of duty. * Refund of duty drawback. * Credit of duty allowed to be utilized towards payment of excise duty on final products and such order is passed by the commissioner (appeals). Tribunal is the final fact finding authority i.e. facts arrived at by tribunal cannot be upset by higher authority unless found to be based on irrelevant evidence or incorrect principles. Benches of tribunal Tribunal sits in benches. The benches of the tribunal are composed of judicial and technical members. Presently benches are at New Delhi, Mumbai, Kolkata, Chennai and Bangalore. Formation of benches and allocation of work to the benches is done by President of CESTAT. Single member bench has the jurisdiction as authorized by president of CESTAT to hear appeals involving an amount of duty, fine or penalty not exceeding ₹ 10 lakhs. If the bench does not agree to a previous decision of bench (with same number of members), the matter should be referred to president for forming a larger bench. Provisions for appeal to CESTAT 1. Filling of Form and application fo....
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....f order to be appealed against i.e. from the date of receiving of order of commissioner of central excise as adjudicating authority and order of commissioner (appeals). 3. Procedure after filing appeal - · Tribunal on its own can call for any document or examine any witness or ask for filing of affidavit. · Additional evidence can also be permitted, after recording the reasons in writing, if adjudicating authority had not given sufficient opportunity to party to produce the evidence. · Tribunal will scrutinize the appeal and any defects found are informed to the party concerned for removal of defects in the specified time otherwise matter will be dismissed and will be restored only if sufficient cause for delay is shown. · Tribunal shall give an opportunity of hearing to the appellant, if he so desires. If the appellant does not appear, tribunal may dismiss the appeal or can pass ex-parte order. If non-appearance was due to sufficient reasons, the dismissed appeal can be restored. · Normally, hearing of appeal is done in chronological order. However, tribunal can give early and out of turn hearing if matter is of recurring nature. · ....
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....nd interest demanded exceeds ₹ 1 lakh. However, if duty, interest and penalty is equal to or less than ₹ 1 lakh fee of ₹ 200 is payable. 2. Time for filling revision application with the Central Government - Revision application to the central government shall be made within 3 months from communication of order by commissioner (appeals). However, this period can be extended with further 3 months, on showing sufficient cause. 3. Procedure after application is made - · The Central Government shall give an opportunity of personal hearing to the appellant. · If Central Government proposes to enhance the penalty or fine in lieu of confiscation, a show cause notice has to be given to the appellant within the time limit as per section 11A. · The central government shall pass the order on its own motion, annul or modify the order of commissioner (appeals). 4. Other points to be noted in respect of revision application to Central Government - · The Central Government may refuse to accept the revision application, if the amount of duty, interest and penalty does not exceed ₹ 5000. · No time limit has been prescribed for pass....