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TMI BlogFifth ScheduleX X X X Extracts X X X X X X X X Extracts X X X X ..... Collector (Appeals) within three months from the date of the communication to him of such decision or order: Provided that the Collector (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeals within the aforesaid period of three months, allow it to be presented within a further period of three months. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 128A. Procedure in appeal. - (1) The Collector (Appeals) shall give an opportunity to the appellant to be heard if he so desires. (2) The Collector (Appeals) may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the Collector (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. (3) The Collector (Appeals) may, after making such further inquiry as may be necessary, pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him by the President by a general or special order in writing. 129A. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Customs as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 128A; (c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under section 130, as it stood immediately before that day : Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Customs or the other party to the appeal : Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Collector of Customs and the other party to the appeal. (4) Save as otherwise provided in section 130 or section 130E, orders passed by the Appellate Tribunal on appeal shall be final. 129C. Procedure of Appellate Tribunal. - (1) The powers and functions of the Appellate Tribunal may be exercised and discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely :- (a) discovery and inspection; (b) enforcing the attendance of any person and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions. (8) Any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal Code (45 of 1860), and the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). 129D. Powers of Board or Collector of Customs to pass certain orders. (1) The Board may of its own motion, call for and examine the record of any proceeding in which a Collector of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to the Appellate Tribunal for the determination of such points ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue. 130. Statement of case to High Court. (1) The Collector of Customs or the other party may, within sixty days of the date upon which he is served with notice of an order under section 129B (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in such form as may be specified by rules made in this behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. (2) On receipt of notice that an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judges. - (1) When any case has been referred to the High Court under section 130, it shall be heard by a Bench of not less than two judges of the High Court and shall be decided in accordance with the opinion of such judges or of the majority, if any, of such judges. (2) Where there is no such majority, the judges shall state the point of law upon which they differ and the case shall then be heard upon that point only by one or more of the other judges of the High Court, and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it. 130D. Decision of High Court or Supreme Court on the case stated. - (1) The High Court or the Supreme Court hearing any such case shall decide the questions of law raised therein, and shall deliver its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment shall be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case in conformity with such judgment. (2) The costs of any reference to the High Court or the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately before that day, and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day: Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard. (2) Every proceeding which is pending immediately before the appointed day before the Central Government under section 131, as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it: Provided that if any such proceeding or matter relates to an order where- (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (b) in any disputed case, other than a case where the determination of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative. (2) For the purposes of this section, authorised representative means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being- (a) his relative or regular employee; or (b) a custom house agent licensed under section 146; or (c) any legal practitioner who is entitled to practise in any civil court in India; or (d) any person who has acquired such qualifications as the Central Government may specify by rules made in this behalf. (3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Service- Group A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service shall be entitled to appear as an authorised representative in any proceedings before an officer of customs for a period of two years from the date of his retirement or resignation, as the case may be. (4) No person,- (a) who has been dismissed or removed from Government service; or (b) who is convicted of an offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue Act, 1963 (54 of 1963), Collector of Central Excise (Appeals) or Appellate Tribunal; (aa) Appellate Tribunal means the Customs, Excise and Gold (Control) Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962);'. 2. For sections 35, 35A and 36, substitute CHAPTER VIA APPEALS 35. Appeals to Collector (Appeals) - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Collector of Central Excise may appeal to the Collector of Central Excise (Appeals) [hereafter in this Chapter referred to as the Collector (Appeals)] within three months from the date of the communication to him of such decision or order: Provided that the Collector (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 35A. Procedure in Appeal. - (1) The Collector (Appeals) shall give an opportunity to the appellant to be heard, if h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay; (d) an order passed by the Board or the Collector of Central Excise, either before or after the appointed day, under section 35A, as it stood immediately before that day: Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where 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 is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees. (2) The Collector of Central Excise may, if he is of opinion that an order passed by the Appellate Collector of Central Excise under section 35, as it stood immediately before the appointed day, or the Collector (Appeals) under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Collector of Central Excise and the other party to the appeal. (4) Save as provided in section 35G or section 35L, orders passed by the Appellate Tribunal on appeal shall be final. 35D. Procedure of Appellate Tribunal. - (1) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962, shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. (2) Every appeal against a decision or order 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, shall be heard by a Special Bench constituted by the President for hearing such appeals and such Bench shall consist of not less than three members and shall include at least one judicial member and one technical member. (3) The Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B shall, so far as may be, apply to such application. 35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against. such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. 35G. Statement of case to High Court. - (1) The Collector of Central Excise or the other party may, within sixty days of the date upon which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receives notice of such refusal, withdraw his application and, if he does so, the fee, if any, paid by him shall be refunded. 35H. Statement of case to Supreme Court in certain cases. - If, on an application made under section 35G, the Appellate Tribunal is of opinion that, on account of conflict in the decisions of High Courts in respect of any particular question of law, it is expedient that a reference should be made direct to the Supreme Court, the Appellate Tribunal may draw up a statement of the case and refer it through the President direct to the Supreme Court. 35-I. Power of High Court or Supreme Court to require statement to be amended. - If the High Court or the Supreme Court is not satisfied that the statements in a case referred to it are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto or alterations therein as it may direct in that behalf. 35J. Case before High Court to be heard by not less than two judges. - (1) When any case has been referred to the High Court under section 35G, it shall be heard by a Bench of not less than two judges of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner provided in section 35K in the case of a judgment of the High Court. 35N. Sums due to be paid notwithstanding reference, etc. - Notwithstanding that a reference has been made to the High Court or the Supreme Court or an appeal has been preferred to the Supreme Court, sums due to the Government as a result of an order passed under sub-section (1) of section 35C shall be payable in accordance with the order so passed. 35-O. Exclusion of time taken for copy. - In computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded. 35P. Transfer of certain pending proceedings and transitional provisions. - (1) Every appeal which is pending immediately before the appointed day before the Board under section 35, as it stood immediately before that day, and any matter arising out of. or connected with such appeal and which is so pending shall stand transferred on that day to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative. (2) For the purposes of this section, authorised representative means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being- (a) his relative or regular employee; or (b) any legal practitioner who is entitled to practise in any civil court in India; or (c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose. (3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Service Group A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service, shall be entitled to appear as an authorised representative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation, as the case may be. (4) No person,- (a) who has been dismissed or removed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been extended by law, that High Court; (iii) in relation to the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu High Court at Bombay; (iv) in relation to any other Union territory, the highest court of civil appeal for that territory other than the Supreme Court of India; (c) President means the President of the Appellate Tribunal.'. 3. Before section 36A, insert- CHAPTER VIB PRESUMPTION AS TO DOCUMENTS . PART III AMENDMENTS IN THE GOLD (CONTROL) ACT, 1968 1. Section 2.- (i) For clause (a), substitute- (a) adjudicating authority means an authority competent to pass any order or decision under this Act, but does not include the Administrator, Collector (Appeals) or Appellate Tribunal; (aa) Administrator means the Administrator appointed under section 4; (aaa) Appellate Tribunal means the Customs, Excise and Gold (Control) Appellate Tribunal constituted under section 129 of the Customs Act, 1962;'; (ii) After clause (e), insert- '(ee) Collector (Appeals) means a Collector of Central Excise (Appeals) or a Collector of Customs (Appeals) appointed under section 4 to be a Collector (Appeals) for the purposes of this Act;'. 2. Section 4, in sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the Collector of Central Excise or of Customs as an adjudicating authority; (b) an order passed by the Collector (Appeals) under section 80A; (c) an order passed by the Administrator, Collector of Central Excise or of Customs or the Appellate Collector of Customs under section 80, as it stood immediately before the appointed day; (d) an order passed by the Administrator, either before or after the appointed day, under section 81, as it stood immediately before that day: Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where,- (i) the value of the thing confiscated without option having been given to the owner thereof to pay a fine in lieu of confiscation under section 73; or (ii) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees. (2) The Administrator may, if he is of opinion that an order passed by the Collector of Central Excise or of Customs or the Appellate Collector of Customs under cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Collector of Central Excise or of Customs or the other party to the appeal: Provided that an amendment which has the effect of enhancing any penalty or fine in lieu of confiscation or confiscating things of greater value shall not be made under this sub-section unless the Appellate Tribunal has given notice of its intention to do so, to the other party and has allowed him a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of every order passed. under this section to the Collector of Central Excise or of Customs and the other party to the appeal. (4) Save as otherwise provided in section 82B, orders passed by the Appellate Tribunal on appeal shall be final. 81B. Procedure of Appellate Tribunal. - (1) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Appellate Tribunal or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (5) of section 81, shall, so far as may be, apply to such application. 82A. Deposit, pending appeal, of penalty levied.- Where in any appeal under this Chapter, the decision or order appealed against relates to any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the penalty levied: Provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose. 82B. Statement to High Court. - (1) The Collector of Central Excise or of Customs or the other party may, within sixty days of the date upon which he is served with of case. notice of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application made under section 82B, the Appellate Tribunal is of opinion that, on account of conflict in the decisions of High Courts in respect of any particular question of law, it is expedient that a reference should be made direct to the Supreme Court, the Appellate Tribunal may draw up a statement of the case and refer it through the President direct to the Supreme Court. 82D. Power of High Court or Supreme Court to Require statement to be amended.- If the High Court or the Supreme Court is not satisfied that the statements in a case referred to it are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto, or alterations therein as it may direct in that behalf. 82E. Case before High Court to be heard by not less than two judges. - (1) When any case has been referred to the High Court under section 82B, it shall be heard by a Bench of not less than two judges of the High Court and shall be decided in accordance with the opinion of such judges or of the majority, if any, of such judges. (2) Where there is no such majority, the judges shall state the point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exclusion of time taken for copy. - In. computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded. 82K. Transfer of certain pending proceedings and transitional provisions. - (1) Every appeal which is pending immediately before the appointed day before the Administrator or the Collector of Central Excise or of Customs under section 80, as it stood immediately before that day and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal or the Collector (Appeals), as the case may be, and the Appellate Tribunal or the Collector (Appeals) may proceed with such appeal or matter from the stage at which it was on that day: Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard. (2) Every proceeding which is pending immediately be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative. (2) For the purposes of this section, authorised representative means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being- (a) his relative or regular employee; or (b) any legal practitioner who is entitled to practise in any civil court in India; or (c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose. (3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Service- Group A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service shall be entitled to appear as an authorised representative in any proceedings before a Gold Control Officer for a period of two years from the date of his retirement or resignation, as the case may be. (4) No person,― (a) who has been dismissed or removed from Government service; or (b) who is convicted of an offence connected with any proceeding under this Act, the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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