TMI BlogAPPEALSX X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise 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 ware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y some person duly authorized by him in this behalf; and where the individual is a minor or is mentally incapacitated from attending to his affairs, by his guardian 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient cause from producing before the adjudicating authority any evidence which is relevant to any ground of appeal; or (d) Where the adjudicating authority has made the order appealed against 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the persons specified in sub-rule (2) of rule 3. (3) The form of appeal in Form No. E.A.-3 (See Annexure 38 in Part 7) and the form of memorandum of cross-objections in Form No. E.A.-4 (See Annexure39 in Part 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 Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on receipt of the notice from CESTAT and Cross Objections/comments shall be filed within prescribed time limit. It may be kept in mind that where the order under challenge is passed by the Commissioner as an Adjudicating Authority 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the subject, within the stipulated period of 45 days. Conversant officers should be deputed to brief the DRs so that the case can be presented effectively before the CESTAT. d. The improper order in favour of revenue should not be accepted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial question of law involved. 13.3 Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. 13.4 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the order of the Appellate Tribunal does not relate to 'rate of duty' or 'value of goods', first a reference to the High Court has to be made under Section 35H and thereafter an appeal, against the judgment of the high Court on a reference, can be made to the Supreme Court provided 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. 1 ..... 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