Appeal to Appellate Tribunal [Section 35B]

Appeal to Appellate Tribunal [Section 35B]:

The provisions in respect of appeals to the Appellate Tribunal are summarized as under:

(1) Orders appellable to Appellate Tribunal: 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 Principal Commissioner/ Commissioner of Central Excise as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 35A;

Orders not appealable: No appeal shall lie to the Appellate Tribunal in respect of any order passed by Commissioner (Appeals) if such order relates to –

(a) a case of loss of goods, where the loss occurs in t ransit 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 warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;

Minimum amount of disputed duty/fine/penalty for filing an appeal to CESTAT: The Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order passed by the Commissioner (Appeals) under section 35A where –

(i) in any disputed case, (other than a case relating to the determination of rate of duty or valuation of goods) the difference in duty involved or the duty involved; or

(ii) the amount of fine or penalty determined by such order,

does not exceed ` 2,00,000.

(1B) Committee of Chief Commissioners or Commissioners of Central Excise: The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 may by order, constitute such Committees as may be necessary for the purposes of the Act. Every Committee so constituted shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be.

(2) Appeal by Committee of Commissioners of Central Excise: A Committee of Commissioners may, if it 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 its behalf to the Appellate Tribunal against such order.

Difference in opinion in the Committee of Commissioners of Central Excise: Where the Committee of Commissioners of Central Excise differs in its opinion regarding the appeal against the order of the Commissioner (Appeals) , it shall state the point or points on which it differs and make a reference to the jurisdictional Principal Chief Commissioner/ Chief Commissioner of Central Excise. The Principal Chief Commissioner/ Chief Commissioner shall direct any Central Excise Officer to appeal to the Appellate Tribunal against such order if it is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper.

It has also been clarified that “jurisdictional Chief Commissioner” means the Principal Chief Commissioner/ Chief Commissioner of Central Excise having jurisdiction over the adjudicating authority in the matter.

(3) Time limit for filing appeal: Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Principal Commissioner/ Commissioner of Central Excise, or, as the case may be, the other party preferring the appeal.

(4) Memorandum of Cross objections: On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).

Extension of time period for filing of Memorandum of Cross objections: Sub-section (5) provides that the Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.

(6) Fee for filling an appeal: An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a specified amount of fee.

The fee payable in different cases has been tabulated as under:

Amount of duty, interest demanded and penalty levied	Fee for filing an appeal
Less than or equal to ` 5,00,000	` 1,000.00
More than ` 5,00,000 but not exceeding ` 50,00,000	` 5,000.00
More than ` 50,00,000	` 10,000.00

However, no such fee shall be payable in the case of an appeal preferred by a Central Excise Officer on the directions of Committee of Commissioners. Also, no fee shall be payable in the case of filing of a memorandum of cross-objections.

(7) Fee for filling an application: Every application made before the Appellate Tribunal, —

(a) in an appeal for rectification of mistake or for any other purpose; or

(b) for restoration of an appeal or an application,

has to be accompanied by a fee of ` 500. However, no such fee shall be payable in the case of an application filed by or on behalf of the Principal Commissioner/ Commissioner of Central Excise.

Form and manner of filing appeal: As per Rule 6 of Appeal Rules, an appeal under section 35B(1) to the Appellate Tribunal shall be made in Form No.E.A.3 and a memorandum of cross objections to the Appellate Tribunal under section 35B(4) shall be made in Form No. E.A. 4. The following shall be observed in this regard:

1. Where an appeal under section 35B(1) or a memorandum of cross-objections (under subsection (4) of that section) is made by any person other than the Commissioner of Central Excise, the grounds of appeal, the grounds of cross-objections and the forms of verification as contained in Form Nos.E.A.3 and E.A.-4, as the case may be respectively shall be signed by the persons listed above in case of appeal to Commissioner (Appeals).

2. The form of appeal in Form No.E.A.-3 and the form of memorandum of cross-objections in Form No.E.A.-4 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).

Form and manner of filing departmental appeal: As per Rule 7 of the Appeal Rules, an appeal under section 35B(2) shall be made in Form No.E.A.5. The form of appeal in Form No.E.A.-5 shall be filed in quadruplicate accompanied by an equal number of copies of the decision or order (one of which at least shall be a certified copy) passed by the Commissioner (Appeals) under section 35A of the Act and a copy of the order passed by the Committee of Commissioners of Central Excise under section 35B(2) of the Act.

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