Chapter V of Finance Act, 1994

 

 Appeals to Appellate Tribunal.

86. (1) 21[Save as otherwise provided herein, an assessee] aggrieved by an order passed by a20[Principal Commissioner of Central Excise or] Commissioner of Central Excise under 1[section 73 or section 83A or] 14[****], or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order 15[within three months of the date of receipt of the order].

22[Provided that where an order, relating to a service which is exported, has been passed under section 85 and the matter relates to grant of rebate of service tax on input services, or rebate of duty paid on inputs, used in providing such service, such order shall be dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944 (1 of 1944):

Provided further that all appeals filed before the Appellate Tribunal in respect of matters covered under the first proviso, after the coming into force of the Finance Act, 2012 (23 of 2012), and pending before it up to the date on which the Finance Bill, 2015 receives the assent of the President, shall be transferred and dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944.]

2[(1A) (i) The Board may, 18[by order], constitute such Committees as may be necessary for the purposes of this Chapter.

(ii) Every Committee constituted under clause (i) shall consist of two 20[Principal Chief Commissioner of Central Excise or] Chief Commissioners of Central Excise or two 20[Principal Commissioners of Central Excise or] Commissioners of Central Excise, as the case may be.]

3[(2) The 4[Committee of 20[Principal Chief Commissioners of Central Excise or] Chief Commissioners of Central Excise] may, if it objects to any order passed by the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise under 5[section 73 or section 83A or] 14[****], direct the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.

12[Provided that where the Committee of 20[Principal Chief Commissioners of Central Excise or] Chief Commissioners of Central Excise differs in its opinion against the order of the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise, it shall state the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if is of the opinion that the order passed by the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise is not legal or proper, direct the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.]

6[(2A) The Committee of 20[Principal Commissioners or] Commissioners may, if it objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct any Central Excise Officer to appeal on its behalf to the Appellate Tribunal against the order.]]

    13[Provided that where the Committee of 20[Principal Commissioners or] Commissioners differs in its opinion against the order of the Commissioner of Central Excise (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional 20[Principal Chief Commissioner or] Chief Commissioner who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against the order.

     Explanation.- For the purposes of this sub-section, “jurisdictional 20[Principal Chief Commissioner or] Chief Commissioner” means the 20[Principal Chief Commissioner or] Chief Commissioner having jurisdiction over the concerned adjudicating authority in the matter.]

16[(3) Every appeal under sub-section (2) or sub-section (2A) shall be filed within four months from the date on which the order sought to be appealed against is received by the Committee of 20[Principal Chief Commissioners or] Chief Commissioners or, as the case may be, the Committee of 20[Principal Commissioners or] Commissioners.]

9[(4) The 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise or 10[any Central Excise Officer subordinate to him] or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) or sub-section (2A)] by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, within forty-five days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise or the Commissioner of Central Excise (Appeals), 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).

(5) 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 17[sub-section (1) or sub-section (3)] or sub-section (4) if it is satisfied that there was sufficient cause for not presenting it within that period.

11[(6) 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 service tax and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of,-

(a)  where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;

(b)  where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;

(c)  where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees :

     Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of cross-objections referred to in sub-section (4).

(6A) Every application made before the Appellate Tribunal,-

(a)  in an appeal 19[***] for rectification of mistake or for any other purpose; or

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

shall be accompanied by a fee of five hundred rupees:

     Provided that no such fee shall be payable in the case of an application filed by the 20[Principal Commissioner of Central Excise or] Commissioner of Central Excise or Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be under this sub-section.]

(7) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944).

 

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Notes :

1. Inserted by the Finance Act, 2005, w.e.f. 13-5-2005.

2. Inserted by the Finance Act, 2007, w.e.f. 11-5-2007.

3. Sub-sections (2) and (2A) substituted for sub-section (2) by the Finance Act, 2001, w.e.f. 16-7-2001.Prior to its substitution, sub-section (2) read as under :

“(2) The Board may, if it objects to any order passed by the Commissioner of Central Excise under section 84, or the Commissioner of Central Excise may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct the Central Excise Officer to appeal to the Appellate Tribunal against the order.”

4. Substituted for “Board” by the Finance Act, 2007, w.e.f. 11-5-2007.

5. Inserted by the Finance Act, 2005, w.e.f. 13-5-2005.

6. Substituted by the Finance Act, 2007, w.e.f. 11-5-2007. Prior to its substitution, sub-section (2A), as amended by the Finance Act, 2005, w.e.f. 13-5-2005, read as under :

“(2A) The Commissioner of Central Excise may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct any Central Excise Officer to appeal on his behalf to the Appellate Tribunal against the order.”

7. Substituted for “or sub-section (2)” by the Finance Act, 2001, w.e.f. 16-7-2001.

8. Substituted for “Board or by the Commissioner of Central Excise” by the Finance Act, 2007, w.e.f. 11-5-2007.

9. Substituted for the portion beginning with the words “The Central Excise Officer” and ending with the words “or sub-section (2)” by the Finance Act, 2001, w.e.f. 16-7-2001. Prior to its substitution, the quoted portion read as under :

“The Central Excise Officer or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2).”

10. Substituted for “Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise” by the Finance Act, 2005, w.e.f. 13-5-2005.

11. Sub-sections (6) and (6A) substituted for sub-section (6) by the Finance (No. 2) Act, 2004, w.e.f. 1-11-2004. Prior to its substitution, sub-section (6), as amended by the Finance Act, 2001, w.e.f. 16-7-2001, read as under:

“(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, except in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of cross-objections referred to in sub-section (4), be accompanied by a fee of two hundred rupees.”

12.  Inserted by the Finance Act, 2008, w.e.f. 10-5-2008.

13.  Inserted by the Finance Act, 2008, w.e.f. 10-5-2008.

14. Omitted vide Finance (No. 2) Act, 2009, before it was read as, “or section 84”

15. Inserted vide Finance Act, 2012, w.e.f. 28-5-2012

16. Substituted vide Finance Act, 2012, w.e.f. 28-5-2012, before it was read as, “(3) Every appeal under sub-section (1) 7[or sub-section (2) or sub-section (2A)] shall be filed within three months of the date on which the order sought to be appealed against is received by the assessee, the 8[Committee of Chief Commissioners or the Committee of Commissioners], as the case may be.”

17. Substituted vide Finance Act, 2013, w.e.f. 10th May, 2013, before it was read as, “sub-section (3)”

18. Substituted vide THE FINANCE (No. 2) ACT, 2014, before it was read as, “by notification in the Official Gazette”

19. Omitted vide THE FINANCE (No. 2) ACT, 2014, before it was read as, “for grant of stay or”

20. Inserted vide THE FINANCE (No. 2) ACT, 2014

21. Substituted vide THE FINANCE ACT, 2015 w.e.f. 14th May 2015, before it was read as, “Any assessee”

22. Inserted vide THE FINANCE ACT, 2015 w.e.f. 14th May 2015