Central Excise Law

(1).Appeal Provision & Procedure.- If a person is aggrieved by the order passed by a Central Excise Officer lower in rank than Commissioner (Additional) Commissioner not being treated as ‘Commissioner’ for the purpose), he can file an appeal to the Commissioner of Central Excise (Appeals). It has been held that despite amendment of Section 35A(3) in 2001, Commissioner (Appeals still has the power to remand the case back to the adjudicating Authority—C.C.E. V. Medico LBS-2004(173) E.L.T 117 (Guj.)(DB) read with U.O.I V. Umesh Dhaimode- 1998(98) E.L.T. 584 (S.C.). Those subscribing to this view hold that the world “annul” read with the words “ as he thinks just and proper” which continue to exist in Section 35A(3) would mean that the Commissioner (Appeals) has power to remand as held by the Supreme Courtin Umesh Dhaimode case. As per 2009 (236) E.L.T. 613 (Tri.)—C.C.E V. Raymond Ltd., where facts require verification, Commissioner (Appeals) can remand. Though there are conflicting decisions on this issue, at least in two of the orders, Tribunal has categorically held that Commissioner (Appeals) cannot remand- Rajpurohit Card Tee v. Commissioner—2009 (243) E.L.T. 369 (Tri.) and Commissioner v. Mahalaxmi Steel Industries –2009 (248) E.L.T. 385 (Tri.) The Department relying on 2007 (210) E.L.T. 188 (S.C.)- MIL India Lt. Holds the view that Commissioner (Appeals) is not empowered to remand after amendment made in 2001-C.B.E. & C. Clarification in F.No.275/34/2006-CX.A, dated 18.02.2010.

(2).A second appeal lies to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). However, if the order has been passed by Commissioner, appeal there-against lies direct to the Tribunal. Only one appeal to the Tribunal need be filed where the impugned order is one, irrespective of the number of show cause notice it relates to- Echer Motors Lt V. Collector---2000 (116) E.L.T. 306 (Tri.-LB).

(3).A final appeal under Section 35L lies to the Supreme Court against the Tribunal’s order if it relates to rate of duty or value of goods and in all other cases in respect of orders passed on or after 01.07.2003. an appeal on a substantial question of law lies to the High Court under the new Section 35G, as inserted by the Finance Act, 2003. Reference application filed before the High Court in respect of pre 01.07.2003 orders of the Tribunal will be governed by Section 35H. The Karnataka High Court in case of Mangalore Fefineries & Petrochemicals [2011 (270) E.L.T. 49 (Kar.)] has enlisted the matters where the appeal would not lie before High Court against the Tribunal order.

(3A).Section 35G has been amended retrospectively with effect from 01.072003. This retrospective amendment is intended to provide for power to condone delay in filing appeal beyond 180 Sys by the High Court if sufficient cause in shown. Section 34H (Reference Application to High Court), has been amended retrospectively with effect from 01.07.1999. This retrospective amendment is intended to provide for power to condone delay in filing of reference application beyond 180 days by the High Court if sufficient cause is shown.