1. RG-23A PART I to show input received/used/lying as stock.
2. RG-23A PART II to show details of credit availed/utilised/balance.

MONEY CREDIT SCHEME

This is a scheme which governs grant of Credit of Money in respect of specified raw materials used in manufacture of specified excisable goods. Here there is no credit of duties but credit of Money. The provisions are contained in Rules 57K to 57T of the Central Excise Rules.

DOCTRINE OF UNJUST ENRICHMENT

The law relating to refund of excise duty contained in section 11B of the Central Excise Act, 1944 was amended drastically by the Central Excise and Custom Law (Amendment) Act, 1991 coming into force w. e. f. 20-9-1991.

The amending Act made significant changes in sections 11B and 11C and introduced new sections 12A, 12B, 12C and 12D in chapter IIA and section 11D in chapter II, to curb the alleged unjust enrichment of the manufacturer on account of refund allowed under the then existing law. The preamended section 11B permitted refund claims under Central Excise only to the assessee; i. e., one who paid the duty and not to others; i. e., consumers etc. who might have borne the same. The law in fact was to the effect that, if a refund was claimed by the assessee and that was found to be in order, the Assistant Commissioner of Central Excise was bound to pay it. Such refunds though part of law, and had been going on since long, drew lot of criticism in the Parliament in the year 1990-91 on account of resultant unjust enrichment of the manufacturers. "Unjust" means what is "not just or right" that is "unfair." Hence, the words "unjust enrichment appear" to mean "making rich or richer in an unfair way."

"Unjust enrichment" is the theory pressed into services by Department whenever claims for refund is made by the assessee. It is argued that when the burden of impose is passed on to consumers, why should not relief of Indirect Tax like Central Excise or Customs duty be passed on to the consumer.

The underlying assumption is that the person who pays it to the Government, passes it on to his customers by including it in his sale price and so effectively he loses nothing. Later on, if a part of the tax is refunded to him, on the ground that it was not payable by him the refund would be an undeserving benefit to him. This has been termed as "unjust enrichment" of the manufacturer or the "Doctrine of Unjust Enrichment".

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APPEALS

"When an order is passed by an Adjudicating authority against the assessee, aggrieved by this decision the assessee is given an opportunity to file an appeal to the higher authority as per the provisions of the law".

APPEALS TO APPELLATE TRIBUNAL

Appeals to Appellate Tribunal can be filed in respect of the following,

1. A decision or order passed by the Commissioner of Central Excise as an adjudicating authority;
2. An order passed by the Commissioner (Appeals) under section 35A.

According to the section 35B(2) the Commissioner of Central Excise may direct a central excise officer to appeal on his behalf to the Appellate Tribunal. It is possible only if he is of the opinion that an order passed by the Appellate Commissioner of Central Excise under section 35 as it stood immediately before the appointed day, or the Commissioner (Appeals) under section 35A, is not legal or proper.

SECTION 35L : APPEALS TO THE SUPREME COURT

Appeal to the Supreme Court shall lie only in the following cases,

1. a judgement of the High Court delivered on a point of reference made under section 35G, in case the High Court, either on its own motion or on the basis of an application, certifies the matter as fit for appeal to the Supreme Court.
2. any order of the Tribunal pertaining to value of goods or the rate of duty of excise.

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CENTRAL EXCISE AND GOLD APPELLATE TRIBUNAL (CEGAT) RULES

The CEGAT Rules lay down procedure to be followed by both assessee and by the department for filing of appeals and stay applications in the Tribunal. The Rules were brought into force with effect from October, 1982.

The various Rules under it state the procedures to be followed. They are as follows :

1. It states that the Bench shall hear and decide all appeals and applications as may be directed by the President. (Rule 4).
2. It requires the Appeal Memorandum to be in the relevant form and permits filing of the appeal either in person or by an agent or through registered post. (Rule 6).
3. It states that Memorandum of Appeal must be filed in the form of the paper book and must contain the statement of facts and the grounds of appeal. (Rule 8).
4. It requires the Appeal Memorandum to be accompanied by five copies of the order appealed against, one of which shall be certified copy, and in case an appeal is against an order in appeal, five copies of the order in original are also required to be filed. (Rule 9).
5. It authorises the Tribunal either to reject or to require modifications of appeals which are defective in nature and which don't contain all the required documents. (Rule 11).
6. It governs the preparation of paper book and permits the applicants to file the paper book either with the appeal or within one month of the date of filing appeal. (Rule 16).
7. It authorises the Tribunal to dismiss the appeal for default, due to non appearance of the appellants on the date of hearing. (Rule 20 and Rule 21).

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SMALL SCALE AND COTTAGE INDUSTRIES SECTOR

Rationale of small scale and cottage industries

1. Labour intensive.
2. Broad-based and dispersed.
3. Facilitate the creation of wider entrepreneurial base.
4. Effective mobilisation of the available resources.
5. Development of small towns and cities.
6. Modest capital resources.
7. Substantial overall contribution.

Small Scale industries are actually the backbone of a developing country.

NEW EXEMPTION SCHEME FOR S. S. I. UNITS

1. Notification 8/99
   Effective from : 1-4-1999

   Eligibility
   To Manufacturer whose valued clearance has not exceeded Rs. 3 crores in the previous financial year. No need to have Registration Certificate of Directorate of Industries.

   Applicability

   Only on goods mentioned in the Annexure to the Notification.
   
   

   Turnover limit	Rate of Duty	Remarks
   10-50 Lacs	NIL	(Subject to not availing -MODVAT which can be availed after Rs. 100 Lacs)
   50-100 Lacs	5% ADV
   100-300 Lacs	Normal Duty

   Conditions

   While availing exemption upto Rs. 50 lacs and concessional rate of duty between 50-100 lacs, the manufacturer cannot avail Modvat facility on inputs upto Rs. 100 lacs.

   1. Exemption shall not apply to goods bearing BRAND NAMES or TRADE NAMES of another person.
   2. Exemption shall not apply to goods exported but will apply to export of goods to Nepal and Bhutan.
   3. Exemption shall not apply to clearance under Chapter X procedure.
   4. Exemption shall not apply to the exempted goods or goods attracting nil rate of duty.

   Restrictions

   1. Exemption shall be after taking into account clearances from all factories together and not separately for each factory.
   2. Exemption shall be after taking into account total clearances by all manufacturers in the same units.

   The Brand name condition is not applicable in the following situations.

   1. Where the goods are parts or component of any machinery cleared for use as original equipment under Chapter X procedure.
   2. If the goods bear brand name of the followings:
   3. Khadi and Village Industries Commission,
   4. State Khadi and Village Industries Board,
   5. National Small Scale Industries Corporation Ltd.,
   6. State Small Industries Development Corporation Ltd.,
   7. State Small Industries Corporations.
   
   
   
2. Notification 9/99
   Effective from : 1-4-1999
   

   Background

   Notification 9/99 dated 1-4-1999 imposes condition on availment of Modvat by SSI units in the sense that if a SSI unit wants to avail Modvat they have to necessarily pay the full rate of duty right from the beginning and that the option once exercised cannot be changed during the FINANCIAL YEAR.

   This new notification 9/99 dated 1-4-1999 contains procedural relaxations/concessions for the unit wishing to avail Modvat facility. However notification 8/99 remains untouched.

   Salient features

   1. Clearances upto 50 lacs : For those SSI units under the above category, they can avail Modvat facility subject to payment of 60% of the normal duty applicable to the final products.
   2. Clearances between Rs. 50 lacs and 100 lacs. In the above situation, the SSI units will be required to pay 80% of the normal rate of duty applicable to the final product.

   Conditions to avail benefit under Notification 9/99

   1. The Manufacturer must exercise his option in writing at the beginning of the financial year, and once exercised it shall be effective throughout the year.
   2. While exercising his option the manufacturer has to file a declaration in writing to the Asst. Commissioner with a copy to the Superintendent having the following details,
      Name & Address,
      1. Location of factories,
      2. Description of the product,
      3. Aggregate value of clearances of the specified goods.
   3. Value of clearances is already effected from the commencement of the financial year till the date exercising the option if opted for 8/99 only shall be taken into account for computing the value of eligible clearances specified in the notification for the purpose of payment of 60% or 80% of the effective rate.
   4. Also Exemption shall not apply to goods bearing BRAND NAMES or TRADE NAMES of another person.

   Restrictions

   1. Exemption shall be after taking into account clearances from all factories together and not separately for each factory.
   2. Exemption shall be after taking into account total clearances by all Manufacturers in the same factory.

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PROCEDURAL RELAXATIONS RELATING TO FILING DECLARATION

1. The SSI unit need not file a declaration till their value of clearance crosses Rs. 40 lacs.
2. No officer to visit any small scale factory without a written authorisation of the Assistant Commissioner.
3. Special cell created in each commissionerate to assist and advise SSI units
4. No need for separate Excise records. Private records showing date-wise production, sales and bills or invoices.
5. Option to pay normal excise duty in place of concessional duty.
6. Job worker of the SSI unit not required to pay any Excise duty on the job work though he is a manufacturer.
7. Modvat credit of duty paid on the capital goods can be availed but cannot be utilised till the unit crosses 1 crore value of clearance even if presently the clearances of the SSI unit is exempted.

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MOVEMENT OF GOODS BY SSI UNITS AVAILING EXEMPTION/CONCESSIONAL DUTY UNDER NOTIFICATION NOS. 8/99

In order to facilitate the SSI units availing exemption/concession under notification no. 8\99 and also in order to ensure that the job workers receiving goods from such SSI units are not made liable to pay excise duty on processed goods, two NOTIFICATIONS are being issued; viz., 83/94 dated 11-4-1994 and 84/94 dated 11-4-1994.

Particulars	Notification 83/94 11-4-1994 as amended	Notification 84/94 11-4-1994 as amended
Applicability	To units working under 8/99 & 9/99.	To units working under 8/99 & 9/99.
Coverage	To exempt Excisable goods manufactured in a factory as a job work.	To exempt excisable goods cleared by a manufacturer to a place outside for job work.
Type of goods	Excisable goods manufactured and cleared by SSI unit.	Raw material or semi-finished goods.
Purpose	To manufacture excisable goods on job work.	For getting job work done outside with SSI.
Condition	Excisable goods to be received back by supplier for use in or in relation to the manufacture of goods wholly exempt.	To use goods returned after job work in or in relation to the manufacture of goods which are wholly or partly exempt.

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SMALL SCALE INDUSTRIES ALLOWED TO PAY DUTY ON MONTHLY BASIS

The finance minister in his Budget speech for the fiscal year 1999-2000 has announced a scheme of allowing SSI units to pay duty on a monthly basis with a view to give incentive to them in the form of ease of Liquidity and simplification of procedure.

Notification No. 36/99-C. E. (N. T.) dated 26-5-1999 has been issued for this purpose, whereby new Rule 173GG has been inserted. Interest rate of thirty per cent per annum will be payable if the manufacturer fails to pay the amount of duty payable for a calendar month by fifteenth of the next month. Apart from the interest, a mandatory penalty of Rs. 500 per day is also payable for the period of delay, starting from 16th day of the succeeding month till the date of actual payment alongwith the outstanding amount. However the total amount of the duty payable for the calendar month together with the interest and penalty shall not exceed the value of clearances during that calendar month. Sub-rule (4) says that if the manufacturer fails to discharge the duty liability in the specified time period for the second time in a financial year, he shall not be allowed to pay the excise duty on monthly basis under this scheme for the remaining part of the financial year.

Manufacturer falling in the small scale category by virtue of his 'turnover in the preceding financial year' criterion, if does not avail exemption under Notification No. 8/99-C. E. or 9/99-C. E., and avails paying duty at normal rate, is not eligible for this scheme.

STATEMENT SHOWING MONTH WISE DUTY PAYMENT FOR THE QUARTER ENDING

Sr. No.	Invoice No. and Date	Name of the Consignee	ECC No. of Consignee	Assessable Value	Duty paid	Details of duty debited
(1)	(2)	(3)	(4)	(5)	(6)	(7)

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EXCISE SCHEMES ON SMALL SCALE INDUSTRIES SECTOR

The objective of Directive Policy is to create a "WELFARE STATE"; i.e., to ensure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of the wealth and means of the production to the common detriment.

The small scale sector helps the government to achieve the above constitutional mandates and in the development of the welfare state. This sector is developed, nurtured and encouraged by the government with a view of ensure that the material resources of the country are as widely distributed as possible and that the wealth and means of production are not concentrated in the few hands creating monopolies. One of the major fiscal incentives provided by the government to the small scale sector is the exemption from the payment of excise duty on the specified goods manufactured by the small scale units by issuing necessary notifications from time to time.

PRESENT SCHEMES OF EXEMPTION RELATING TO SSI SECTOR

At present there are two exemption notifications bearing Nos. 8/99-CE & 9/99-CE both dated 1-4-1999 in operation providing the slabwise exemption to the SSI sector in respect of Excisable goods specified therein. Both the above notifications provide different choices to a small scale manufacturer with regard to the availment of the exemption as under :

1. To avail total/partial exemption upto the turnover of Rs. 100 lakhs and to avail the benefit of Modvat credit thereafter. (Vide Notification No. 8/99-CE.)
2. To avail the benefit of Modvat credit from the beginning simultaneously with the payment of duty at the concessional rate on the first clearances aggregating to Rs. 100 lakhs. (Vide Notification No. 9/99-CE.)
3. To pay duty at the full applicable rate from the beginning by forgoing the benefit of the exemption. (Vide Notification No. 8/99-CE.)

Different types of Excise Forms & Procedures
Application for Registration in Form R1.
Registration Certificates in Form R2.
Declaration of Goods under Rule 173B.
Price Declaration under Rule 173C.

Annexure I - Proforma for Declaring Assessable value of Excisable goods sold to or through related persons as defined in section 4 of the Act.

Annexure II - Proforma for Declaring the Assessable value of Excisable goods manufactured by an assessee who :

1. Uses such goods for manufacture or production of other goods in his factory.
2. Removes such goods for free distribution.
3. Removes such goods in any other manner which does not involve sale.

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MAINTENANCE OF EXCISE RECORDS

Personal Ledger Account (PLA)

Rule 173G governs the maintenance of a Personal Ledger Account. Rule 173G requires the assessee to periodically deposit cash payments into the Treasury under TR-6 challan in order to ensure that the balance in the PLA is sufficient to discharge duty which is due on the goods which are intended to be removed at any time. In terms of the provisions of Rule 173G, assessees are required to apply to the excise authorities for allotment of a specific number of the PLA that they intend to maintain.

RT-12 RETURNS

The monthly RT-12 returns is to be filed in terms of Rule 173C(3) of the Central Excise Rules. It is to be filed in quintuplicate, showing the following before 5th of next month.

1. quantity of excisable goods manufactured or received under bond during the month;
2. quantity (if any) used within the factory for the manufacture of another commodity;
3. the quantity removed on payment of duty from the place specified under Rule 9 or from the store room or other place of storage approved by the Commissioner under Rule 47;
4. duty paid on such quantity;
5. particulars of invoices or like documents under which such quantity was removed;
6. quantity removed without payment of duty for export or otherwise; and
7. such other particulars as may be prescribed or as the Commissioner may require.

The RT-12 return is the basic document to be filed with the excise authorities by the assessees on an on-going basis and is intended to enable the excise authorities to obtain complete details of all manufacturing activities carried on by the assessee at the factory of manufacture.

The monthly RT-12 return is to be accompanied by the following documents :

1. receipted TR-6 challans under cover of which PLA deposits are made by the assessees;
2. original and duplicate copies of the PLA folios;
3. one copy of each of PART-I & II of RG 23(A) & RG 23(C) MODVAT Accounts;
4. Suppliers' invoices on the basis of which MODVAT credit has been availed, in original.

TR-6 CHALLAN

The prescribed challan form "TR-6" should be filed in quadruplicate and should contain the following particulars :

1. Name, address, and Code No. of manufacturer.
2. Code No. of Excise Commissionerate / Division / Range.
3. PLA No.
4. Account head of duty.
5. Commodity name & Code No. (6 digit code; i.e., tariff item No.).
6. Amount deposited in cash / cheque / D.D.
7. Assessee or his duly authorised agent can sign TR-6 challan for taking credit in PLA, counter signature of authorised officer of bank is essential to prove that amount has been credited to Government Account.

RG 23A REGISTER

The manufacturer has to maintain record of each input separately in prescribed register in Form RG 23A Part I. This register is essentially a stock register, which gives quantitative details of each input received (with details of duty paying documents), quantity issued for production, issued for a clearance as such and quantity lying in stock on any day.

RG 23A Part II, which is similar to PLA. It is a current account of MODVAT credit received, credit utilised and credit balance. This gives details of (a) credit availed against each input (b) credit utilised against clearance of final products/waste/inputs as such (c) Balance credit available. The RG 23A Part II register has to be maintained in triplicate using double sided carbon paper and indelible pencil (Practically, use of ball pen is accepted). An extract of RG 23A Part I, II has to be submitted to Range Superintendent every month, within five days of close of the month, along with original duty paying documents. The original duty paying documents will be returned by Excise Superintendent to the year after defacing these with rubber stamp "credit taken under Rule 57A" on the duty paying document, to ensure that these are not misused. These should be returned by Superintendent to user of inputs. Since credit on any input can be availed for payment of duty on any final output, it is not necessary to maintain product wise RG 23A Part II. However, if a manufacturer is also manufacturing some goods which are exempt from duty, he will have to maintain separate register in respect of inputs used in exempt final goods or pay 8% duty reversal on clearance of such exempt final goods and maintain common account availing credit on all the inputs.

METHODOLOGY FOR MAINTENANCE OF EXCISE RECORDS

Rule 226 of the Central Excise Rules lays down the methodology to be observed for maintenance of excise records. The Rule states that the assessee shall, at the time of making any entry in the excise records, insert the date of making entry. Further, the excise records shall be properly maintained and no cancellation/corrections of any entries are permissible, except for correction of errors duly initiated by authorised person. The assessee who fail to enter the required particulars or make false entries or fraudulently alter any entry shall be liable to penalty extending upon Rs. 2,000 and the goods with regard to which entries have not been made in the excise records shall be liable to confiscation.

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ORGANISATION STRUCTURE OF THE EXCISE DEPARTMENT

The structure of the Excise Department is largely similar to the structure of the Income Tax Department. Recruitment to the Customs and Excise Department is through the Indian Revenue Service. The successful candidates in the civil service examination are required to choose between the direct or indirect tax streams. The apex body in-charge of administration of the collection of both customs duties and central excise duties is the Central Board of Excise and Customs (CBEC). This is a statutory board, set up under the Central Boards of Revenue Act, 1963. The Board currently consists of a Chairman and five members. The responsibilities are equally divided between the Chairman and the members. The Chairman is the first among equals. The Chairman and the members are currently of the rank of ex-officio Additional Secretaries to the Government of India.

Immediately below the CBEC are the Chief Commissioners. These Chief Commissioners are administratively in-charge of several Commissionerates, ranging from two to four, each of which is headed by a Commissioner. Chief Commissioners are responsible for all matters under their jurisdiction and report to the CBEC as a whole. The Commissionerate, as its name implies, is the main organisational mechanism for the collection of excise duties. The organisation structure of a Commissionerate is as follows :

Commissioner
Additional Commissioner/Joint Commissioner
Deputy Commissioner
Assistant Commissioner (Divisions)
Superintendent (Ranges)
Field Officers (Inspectors)

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ASSESSMENT AND APPELLATE PROCEDURE

Demands (Section 11A)

Section 11A(1) states that in cases where excise duty has not been paid or short paid erroneously refunded, the central excise authorities may within 6 months of the relevant date issue a notice on the assessees requiring him to show cause as to why he should not pay the amount specified in the notice.

The S.C., in UOI vs. Madhumilan Syntex Pvt. Ltd. (1988) (35) ELT-349, held that the issuance of show cause notice is a condition precedent for demand of duty under the section and in the absence of such a notice, any demand of duty would be contravention of section 11A(1).

Refunds (Section 11B)

Sub-section (1) states that any person claiming a refund may make an application to the Assistant Commissioner in the prescribed format within 6 months from the relevant date and the application should be accompanied by documentary or other evidence.

Sections 11AA, 11AB, 11AC and 11BB

Sections 11AA and 11BB provide for charge of interest on delayed payments/refunds of excise duties at the rate of 20%/15% respectively, which will apply to demand/refunds on and from the expiry of 3 months from the date of the order of demand/receipt of refund application.

With the insertion of section 11AB, slight changes have been made in the basis for computation of interest, applied to cases where duties have not been paid or refunds granted due to fraud, collusion or any wilful misstatement or suppression of facts etc.

The provision regarding charging of interest on confirmed duty demands require the computation of the said interest from the first day of the month succeeding the month in which the duty ought to have been paid. Therefore, the date of adjudication order would not be relevant for the purpose. However, in cases where such charges are not invoked, the date of adjudication order will continue to the basis for computation of interest, as per Rule 11AA.

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PENALTY

Section 11AC, regarding imposition of mandatory penalty in cases where excise duties were not levied or excise refunds were granted due to fraud, collusion or wilful misstatement or suppression of facts etc. This penalty will be equivalent to quantum of duty determined to be payable under section 11A.

SPECIAL AUDIT

New Section 14A has been inserted in the Act governing the provisions pertaining to special audit of assessees. Such audits may be authorised by the Principal Commissioner of Central Excise and may extend to factories, depots and distributors. The special audit would be carried out by a cost accountant to be appointed by the Principal Commissioner and the assessees who are so audited would be required to pay the costs of such an audit.

APPEALABLE ORDERS

Not all orders or decisions are appealable. The principle is that all judicial or quasi-judicial orders are appealable. In the landmark case in Jaswant Sugar Mills (AIR 1963 SC-677), the S.C. held that a decision or order is judicial if certain criteria are met. The criteria are :

1. that the decision is a determination arising out of investigation of a question by the application of objective standards to facts in the light of existing legal rules.
2. the decision or order declares right or imposes obligations upon parties.
3. the decision or order is subject to procedural attributes such as granting the party an opportunity of presenting its case, ascertainment of facts by evidence and the decision results in the disposal of the matter and the findings are based on questions of law and facts.

APPEALS TO COMMISSIONER (APPEALS)

Section 35(1) states that any person aggrieved by the decision or order of a Central Excise Officer, lower in rank than the Commissioner of Central Excise, may appeal to the Commissioner (Appeals) within 3 months from the date of communication of such decision or order. The proviso to section 35(1) states that the Commissioner (Appeals) may condone the delay in filing the appeal and extend the period for further 3 months, if he is satisfied that there was sufficient cause which prevented the appellants from filing the appeal in time.

PROCEDURE FOR FILING APPEALS

Appeals are only admissible if they are in the prescribed format and comply with the procedural requirements. Appeals to the Tribunal requires the filing of paper book together with the appeals. The paper book is to contain all copies of documents, statements, correspondence, etc. which are sought to be relied upon. The reason for filing the paper book is that in the normal course, the original records of the Department are not called for and examined by the Department. Appeals to the Tribunal are to be accompanied by filing fees of Rs. 200 or Rs. 1,000 as the case may be, again depending on the quantum of duty and penalty involved.

REMAND ORDERS

Both the Commissioner (Appeals) as well as the Tribunal have the power of remand. Remand orders are passed when the appellate authorities are not in a position to finally dispose of a matter due to the fact that not all points either in law or in fact have been argued or have been considered by the lower authorities. Further, the appellate authority may itself be of the view that a remand is required for a proper consideration of all relevant issues which may require an investigation into facts.

Remand orders must set out the parameters or the criteria which have to be taken into account by the adjudicating authority in the de novo proceedings. In other words, the de novo proceedings are to be confined to the points expressly mentioned in the remand order of the appellate authority. The adjudicating authority is bound by the directions of the remand order and can't go beyond or ignore the directions. In other words, the lower authorities have no jurisdiction to consider any points which are outside the limits of the remand order.

RECTIFICATION OF MISTAKE

Section 35C(2) authorises the appellate tribunal to rectify a mistake apparent from the record within a period of four years from the date of the order passed.

A mistake on record is something which may be established on a prima facie reading of the order. It is not an error or mistake which may only be established by a long drawn process of reasoning on a point on which there may be two different views. Therefore, an apparent mistake on record must be an obvious and immediate error which would come to light on a bare reading of the order. If the orders are passed on a complete omission of a submission made or by overlooking the relevant provisions of law, such orders are vitiated and suffer from a mistake on record.

The Tribunal is required to consider all applications for rectification of mistake apparent from the record and to pass appropriate orders on such applications.

SECTION 35D : PROCEDURE OF THE APPELLATE TRIBUNAL

This section lays down the jurisdiction of several Benches of the Tribunal. Section 35D(2) states that matters pertaining to valuation and/or classifications can only be heard and disposed of by the Regional Benches with authorisation of President.

SECTION 35E : POWERS OF CBEC/COMMISSIONER

Section 35E(1) states that the CBEC may, on own motion, call for and examined any order passed by the Commissioner as an adjudicating authority and if it is of the view that such an order is erroneous, it may direct the Commissioner to apply to the Tribunal for a determination of the points arising out of the order. Section 35E(2) authorises the Commissioner on his own motion to examine any orders passed by an adjudicating authority subordinate to him and if he is satisfied that such an order is erroneous in law, he may direct such authority to apply to the Commissioner (Appeals) for a consideration of all such points as the Commissioner may deem fit.

SECTION 35EE : REVISION

1. Suo motu exercise of the powers of the Central Government: Section 35EE(4) authorises the Central Government to suo motu pass orders for modifying or annulling orders of the commissioner (Appeals). However, section 35EE(5) lays down restrictions on the suo motu powers. However, suo motu orders of revision can only be passed upon due notice to the assessees issued within the time limit specified under section 11A.
2. Revision applications to the Central Government by the aggrieved persons :
   The revision applications filed by the aggrieved party must pertain to :
   1. loss of goods in transit.
   2. rebate of duty of excise on finished goods or on excisable materials used in the manufacture of finished goods which are exported outside the country.
   3. goods exported outside India (Except Nepal or Bhutan) without payment duty. The limitation period for filing of the revision applications is three months from the date of receipt of the impugned order.

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SECTION 35F : PRE DEPOSIT OF DUTY DEMANDED OR PENALTY LEVIED

It states that where the impugned order appeals against pertains to any duty demanded or penalty levied, the person desirous of appealing against such an order shall deposit with the adjudicating authority the duty demanded or penalty levied.

The Supreme Court in, Navinchandra Chhotelal vs. CBEC (1981) (8) ELT-679, held that the consequence of a failure to deposit the said amount would be the rejection of the appeal, unless the Tribunal has specifically dispensed with the pre-deposit.

Section 35F authorises the Tribunal to dispense with the pre deposit of duty and/penalty imposed if it is satisfied that such a deposit would result in undue hardship. The Tribunal's order under section 35F is final and there is no right of appeal against such an order. However, such an order may be impugned under article 226 of the Constitution of India by filing writ petitions in the High Court.

SECTION 35G : STATEMENT OF CASE TO THE HIGH COURT

Section 35G(1) states that either the assessee or the Commissioner may, within sixty days of the receipt of the order of the Tribunal under section 35C, apply to the Tribunal in the prescribed format together with filing fees for reference of any question of law arising out of the Tribunal's order to the High Court. The tribunal shall, within 120 days of the receipt of the application, draw up a statement of the case and refer the matter to the High Court.

SECTION 35H : STATEMENT OF CASE TO THE SUPREME COURT

This section states that if on application made under section 35G(1), the Tribunal is of the view that on account of conflicting decisions of the High Court in respect of the questions of law, it is expedient to make a direct reference to the Supreme Court, it may draw up a statement of the case and refer the matter through the President direct to the Supreme Court.

SECTION 35-I : POWER OF HIGH COURT/SUPREME COURT

If the High Court or the Supreme Court is not satisfied with the statement of case drawn up by the Tribunal, the court may refer the case back to the Tribunal, the court may refer the case back to the Tribunal for the purpose of making suitable additions or alterations as the court may direct in that behalf.

SECTION 35J

It states that where a case has been referred to the High Court under section 35G. it shall be heard by a Bench of not less than two judges and shall be decided by majority. In case there is no majority the judges shall state the point of law upon which they differ and this may be heard by one or more other judges and the point shall be decided by majority.

SECTION 35K : DECISION OF THE HIGH COURT/SUPREME COURT

The High Court or the Supreme Court which hears a case stated to it under section 35G shall decide the question of law raised therein and shall deliver a judgment containing the grounds of the decision. A copy of the judgement shall be sent to the Tribunal, which shall thereafter pass such orders as are necessary to dispose of the case in terms of the Court's judgment.