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APPEALS

APPEALS. APPEAL TO HIGH COURT[SECTION 35G].

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APPEALS

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  1. APPEALS

  2. APPEAL TO HIGH COURT[SECTION 35G] • An appeal shall lie to high court from every order passed in appeal by the appellate tribunal on or after the 1st day of July, 2003 (not being an 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), if the high court is satisfied that the case involves a substantial question of law. • The commissioner of central excise or the other party aggrieved by any order passed by the appellate tribunal may file an appeal to the high court and such appeal shall be-

  3. (a) Filed within one hundred and eighty days from the date on which the order appealed against is received by the commissioner of central excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party (no. fee if appeal by CCE); (c) In the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the high court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it sis satisfied that the case involves such question. (5) The high court shall decide the question of law so formulated and deliver such judgment thereon containing the ground on which such decision is founded and may award such cost as it deems fit.

  4. (6) The high court may determine any issue which- (a) has not been determined by the appellate tribunal; or (b) has been wrongly determined by the appellate tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the high court, it shall be heard by a bench of not les than two judges of the high court, and shall be decided in accordance with the opinion of such judges or the majority, if any, of such judges. (8) Where there is no such majority, the judges shall state the point of law upon which they differ and the case shall, then, b 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 head it.

  5. (9) Save as otherwise provided in this act, the provisions of the code of civil procedure, 1908 relating to appeals to the high court shall, apply. Power of high court or supreme court to require statement to be amended-[section 35-I]. 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 raise thereby, the court may refer the case back for the purpose of making such statements sufficient. Case before high court to be heard by not less than two judges-[section 35J]. • When any case has been referred to the high court it shall be heard by a bench of not less than two judges and shall be decided in accordance with the opinion of such judges or of the majority, if any , of such judges. • Where there is no such majority, 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 decided according to the opinion of the majority of the judges who have heard the case including those who first heard it. decision of high court or supreme court on the case stated-[section 35K]. (1) The high court or the supreme court hearing any such case hall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is grounded 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.

  6. (1 A ) where the high court delivers a judgement in an appeal filed before it under section 35F, Effect shall be given to the order passed on the appeal by the concerned Central Excise Officer on the basis of a certified copy of the judgment. (2) The costs of any reference to the High Court an appeal to the high court or the supreme court, which shall not include the fee for making the reference, shall be in the discretion of the court.

  7. APPEAL TO THE SUPREME COURT [SECTION 35L] An appeal shall lie to the supreme court from- • Any judgement of the high court delivered (i) in an appeal made under section 35G; or (ii) on a reference made U/S 35G by the Appellate Tribunal before 1.7.2003. • any order passed by the Appellate Tribunal 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. Hearing before supreme court-[section35M]. • The provisions of the code of civil procedure, 1908 apply to appeals to the supreme court under section 35 L. • the costs of the appeal shall be in the discretion of the supreme court. • effect shall be given to the order of the supreme court in the maner provided in section 35K in the case of a judgement of the high court.

  8. Sums due to be paid not withstanding reference, etc.-[section 35N]. 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 section 35c(1) shall be payable (no escape). Excluding time taken for copy of order (section 35O). For computing the time limit for making appeals in this chapter, following shall be excluded : • They day when order was served and • time taken to obtain copy of the orders. Procedure of filling appeals etc.-[rule 11.] • An appeal in form no. E.A.-3 or a memorandum of cross-objections in form no. E.A.-4 or form no. E.A.-7 or an application in form no. E.A,-5 or form no. E.A.-6 shall be presented in person to the registrar or an officer authorised in this behalf by the registrar , or sent by registered post addressed to the registrar or such officer. • an appeal or a memorandum of cross-objections or an application sent by post shall be deemed to have presented to the registrar or the officer by the registrar on the date on which it is received in the office of the registrar, or, as the case may be, in the office of such officer.

  9. APPEAL NOT TO BE FILED IN CERTAIN CASES [SECTION 35R] The provisions of sec. 35R are as follows: • The CBEC may, from time to time, issue orders or instructions or directions fixing such monetary limits, as it may deem fit, for the purposes of regulating the filing of appeal, application, revision or reference by the central excise officer under the provisions of this chapter. • where, in pursuance of the orders or instructions or directions, issued under (1) the central excise officer has not filed an appeal, application, revision or reference against any decision or order passed under the provisions of this act, it shall not preclude such officer from filing appeal, revision or reference in any other case involving the same issue or similar issues or questions of law; • Notwithstanding the fact that no appeal, application, revision or reference has been filed by the central excise officer pursuant to the orders or instruction or directions issued under (1), no person, being a party in appeal, application, revision or reference shall contend that the central excise officer has acquiesced in the decision on the disputed issue by not filing appeal , application, revision or reference;

  10. (4) The appellate tribunal or court hearing such appeal, application, revision or reference shall have regard to the circumstances under which appeal, application, revision or reference was not filed by the central excise officer in pursuance of the orders or instructions or directions issued under (1); (5) Every order or instruction or direction issued by the CBEC on or after 20.10.2010, but before the date on which the finance bill, 2011 receives the assent of the president, fixing monetary limits of filing of appeal, application, revision or reference shall be deemed to have been issued under (1) and (2), (3) and (4) shall apply accordingly.

  11. Thankyou

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