TMI BlogDemand / Show Cause Notice / Adjudication / AppealsX X X X Extracts X X X X X X X X Extracts X X X X ..... are some cases, where 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrigendum or subsequent show cause notice, if revised notice is making material changes in original notice or increasing the demand amount or raising entirely new or fresh grounds, is treatable as fresh notice and time limit will be calculated from the date of such fresh notice and not from the earlier notice. However, such corrigendum notice has no effect if it is issued beyond period of limitation or issued after matter is adjudicated. This time limit is mandatory and hence applies even in cases, for e.g. where interim stay order has been issued by the court unless there is specific stay order restraining them for issuing show cause notice. However there are certain situations were no time limit is 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, valuation, confiscation and imposing penalty. Adjudication is done by following the principles of natural justice. Following principles must be followed by both judicial and quasi-judicial authorities in every proceeding: - Authorities should decide a matter on the basis of the material facts and evidence. Opportunity of personal hearing to the party - The noticee shall be given an opportunity of personal hearing before the case is adjudicated. Adjudicating authority can give time to parties and adjourn the hearing for reasons to be recorded in writing. Maximum three adjournments can be granted during the proceeding. If a statement of a particular person (witness) is relied upon, opportunity of cross-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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification and valuation of excisable goods and Cenvat credit will be adjudicated as mentioned in the table below - 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 C. In cases relating to issues under 1 st proviso to section 35B (1) of central excise act, 1944 would be adjudicated by the Additional/ Joint Commissioners without any monetary lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of the decision or order against which appeal is filed. The department shall file appeal in prescribed Form no.E.A.-2 in duplicate which shall be accompanied with two copies (one of them shall be certified) of the decision or order passed by the adjudicating authority and a copy of the order passed by commissioner of central excise directing the authority to apply to Commissioner (Appeals). Appeal should state statement of facts and grounds of appeal. The form of appeal (i.e. E.A.-1) shall be verified that it is true to the best of knowledge and belief. If not verified in the prescribed time the appeal can be dismissed on this ground. Both form of appeal and ground of appeal shall be signed as per rule 3(2) of Central Excise (Appeals) Rules, 2001 : - In case of individual - by the individual himself or by some person duly authorized by him in this behalf. - In case of HUF - by the Karta or if he is absent or incapacitated by any other adult member of such family. - In case of company or local authority - by the principal officer. - In case of firm - by any partner but not minor partner. - In case of any other person - by a person compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng reasons for such order. The order shall be communicated to appellant, adjudicating authority, chief commissioner and commissioner of the central excise. The commissioner (appeals) shall hear and decide the appeal within a period of 6 months from the date on which application for appeal is made, wherever it is possible. Order of commissioner (appeals) shall be binding on the adjudicating authority. It shall also be binding on subsequent case of same assessee unless there are valid reasons to take different view. 5. Review of order passed by commissioner (appeals) - Commissioner appeal cannot review his final orders. But he can review his interim/ stay orders. No appeal lies against such interim orders with superior authority also. Appeals to Appellate Tribunal (or CESTAT) As per section 35B(1) of CEA , the appeals, against order of commissioner of central excise as adjudicating authority and order of commissioner (appeals), lies with appellate tribunal (or CESTAT), except in the following cases where revision application has to be made to the central government: - Loss of goods in transit from factory to warehouse or from warehouse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. can be filed either in person or by registered post to the Registrar or Assistant registrar of respective bench. The appeal must be accompanied by a fee. The fee is payable according to the amount of duty, interest demanded and penalty levied. Amount of duty, interest and penalty levied Fee for filing appeal Less than or equal to ₹ 5 lakhs Rs.1000 Between ₹ 5 lakhs to ₹ 50 lakhs Rs.5000 Exceeds ₹ 50 lakhs Rs.10000 Further a fee of ₹ 500 shall be paid for application made for cross objection or for rectification of mistake or for restoration of appeal or for any other purpose. No fee shall be payable in the cases where application is filed by or on behalf of the Commissioner of central excise or where appeal is filed when no duty, penalty or interest is demanded. Affixing of court fee stamp, of ₹ 2 on memorandum of appeal and of 50 paisa on copy of order appealed against (advisable to refer to the provisions of state), is required. If it is not affixed, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made 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. 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). Processing loss. Goods short landed. Provisions for revision made to Central Government 1. Filing of application - The application for revision shall be made in Form no.E.A.-8 in duplicate and shall be accompanied by two copies of order of commissioner (appeals) and two copies of original order against which commissioner (appeals) had passed the order (i.e. order passed by central excise officer). The revision application shall be submitted either in person to the Under-Secretary Revision Application Unit, Government of India, Ministry of Finance, Department of revenue, New Delhi or sent by registered post. The grounds of revision application and the form of verification as contained in E.A.-8 shall be signed by the persons as per rule 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is filed by the other party i.e. no fee is payable if appeal is filed by the commissioner of CE. 2. Time limit for filling appeal - Appeal must be filed within 180 days from the date on which the order appealed against is received by the commissioner of central excise or the other party. The high court may admit appeal beyond 180 days if it is satisfied that there was sufficient cause for not filing. 3. Procedure after application is filed - If the High court is satisfied that substantial question of law is involved, it will formulate the question. It is not necessary to hear the other party when appeal is admitted on a question of law. The High court will deliver the judgment on the substantial question of law either formulated by it or even if not formulated by it, if it is satisfied that the case involves such substantial question of law. Appeal to Supreme Court Appeal to Supreme Court can be made in the following cases: - Against the order of Appellate Tribunal, where it relates to rate of duty and valuation. The question related to rate of duty shall include the determination of taxability or excisability of goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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