Central Excise Act, 1944

35B APPEALS TO THE APPELLATE TRIBUNAL 101

(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 [ 100 Commissioner of Central Excise 100 ] as an adjudicating authority;

(b) an order passed by the [ 100 Commissioner (Appeals) 100 ] under section 35A;

(c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), (hereafter in this Chapter referred to as the Board) or the Appellate [ 100 Commissioner of Central Excise 100 ] under section 35, as it stood immediately before the appointed day;

(d) an order passed by the Board or the [ 100 Commissioner of Central Excise 100 ], either before or after the appointed day, under section 35A, as it stood immediately before that day :

[ 102 Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, -

(a) a case of loss of goods, where the loss occurs in transit 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;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty;

[ 102a (d) credit of any duty allowed to be utilized towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998 : 102a ]

Provided further that 102 ] the Appellate Tribunal may, in its discretion, refuse 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 [ 103 fifty thousand rupees 103 ];

[ 102 (1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of Section 47 of the Finance Act, 1984, before the Appellate Tribunal and any matter arising out of, or connected with, such appeal and which is so pending shall stand transferred on such commencement to the Central Government, and the Central Government shall deal with such appeal or matter under section 35EE as if such appeal or matter were an application or a matter arising out of an application made to it tinder that section. 102 ]

(2) The [ 100 Commissioner of Central Excise 100 ] may, if he is of opinion that an order passed by the Appellate [ 100 Commissioner of Central Excise 100 ] under section 35, as it stood immediately before the appointed day, or the [ 100 Commissioner (Appeals) 100 ] under section 35A, is not legal or proper, direct any Central Excise Officer authorized by him in this behalf (hereafter in this Chapter referred to as the authorized officer) to appeal on his behalf to the Appellate Tribunal against such order.

(3) 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 [ 100 Commissioner of Central Excise 100 ], or, as the case may be, the other party preferring the appeal.

(4) 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).

(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 sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.

[ 103 }(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made on or after the 1st day of June, 1993, irrespective of the date of demand of duty or of levy of penalty in relation to which the appeal is made be accompanied by a fee of, -

(a) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is one lakh rupees or less, two hundred rupees;

(b) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than one lakh rupees, one thousand rupees :

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4). 103}]

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