June 8, 2005

Wednesday

Rabi-us-Sani 30, 1426

          

            

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POWERS, ADJUDICATION AND APPEALS

           
29.        Appointment of Federal excise officers and delegation of powers.—

(1) For the purposes of this Act and rules made thereunder, the Board may, by notification in the official Gazette, appoint, in relation to any area or jurisdiction specified in the notification, any person to be –

(a)        a Collector of Federal Excise;

(b)        a Collector of Federal Excise (Appeals);

(c)        an Additional Collector of Federal Excise;

(d)        a Deputy Collector of Federal Excise;

(e)        an Assistant Collector of Federal Excise; and

(f)         an Officer of Federal Excise with any other designation.

            (2)        Notwithstanding the other designations of the officers of Federal Excise used in this Act or the rules made thereunder:

(a)        the Directorate General (Intelligence & Investigation) Customs & Excise shall consist of a Director General and as many Directors, Additional Directors, Deputy Directors and Assistant Directors and other officers with any other designation as the Board may appoint by notification in the official Gazette;

(b)        the Directorate General of Inspection & Internal Audit shall consist of a Director General and as many Directors, Additional Directors, Deputy Directors and Assistant Directors and other officers with any other designation as the Board may appoint by notification in the official Gazette; and

(c)        the Directorate General of Training & Research shall consist of a Director General and as many Directors, Additional Directors, Deputy Directors and Assistant Directors and other officers with any other designation as the Board may appoint by notification in the official Gazette.

(3)        The Board may, by notification in the official Gazette and subject to such limitations or conditions as may be specified therein, empower by name or designation,—

(a)                 any Additional Collector of Federal Excise or Deputy Collector of Federal Excise to exercise any of the powers of a Collector of  Federal Excise;

(b)                 any Deputy Collector of Federal Excise or Assistant Collector of Federal Excise to exercise any of the powers of an Additional Collector of  Federal Excise;

(c)                 any Assistant Collector of Federal Excise to exercise any of the powers of a Deputy Collector of Federal Excise; and

(d)                 any other officer of Federal Excise to exercise any of the powers of a Collector, Additional Collector, Deputy Collector or Assistant Collector of Federal Excise;

under this Act and the rules made thereunder.

(2)                 Unless the Board in any case otherwise directs, the Collector may, with the prior approval of the Board, authorize any officer subordinate to him to exercise within any specified area, any of the powers of the Collector or of any other officer of Federal Excise under this Act.

(3)                 The officer to whom any powers of any senior officer are delegated under this section shall not further delegate such powers.

30.Use of powers of subordinate officer.—

(1)      An officer appointed under this Act shall exercise such powers and discharge such duties as are conferred or imposed on him under this Act and he shall also be competent to exercise all powers and discharge all duties or functions conferred or imposed upon any officer subordinate to him.

(2)                 Notwithstanding anything contained in this Act or the rules made thereunder, the Board may, by general or special order, impose such limitations or conditions on the exercise of such powers and discharge of such duties by any Federal Excise Officer as it deems fit.

31.Power of adjudication.—

 (1) The adjudication powers of different Federal Excise Officers shall be as follows:–

(2)                 The Board may, by notification in the official Gazette, vary the jurisdiction and powers of any Federal Excise Officer or a class of Federal Excise Officers.

(3)                 A Federal Excise Officer invested with the powers to adjudicate shall decide the case within ninety days of the issuance of show cause notice or within such extended period as he may for reasons to be recorded in writing fix provided that such extended period shall in no case exceed ninety days:

Provided that the Board shall have powers to regulate the system of adjudication including transfer of cases and extension of time limit in exceptional circumstances.

 32. Option to pay fine in lieu of confiscation of conveyance.–

Wherever confiscation is adjudged under this Act or the rules made thereunder, the officer adjudging it may give the owner of the conveyance an option to pay in lieu of confiscation such fine as the officer thinks fit.

 33. Appeals to Collector (Appeals).—

Any person other than Federal Excise officer aggrieved by any decision or order passed under this Act or the rules made thereunder by a Federal Excise Officer upto the rank of Additional Collector of Federal Excise, other than a decision or order or notice given or action taken for recovery of the arrears of duty under this Act or rules made thereunder may within thirty days of receipt of such decision or order prefer appeal therefrom to the Collector (Appeals).

 34. Appeals to the Appellate Tribunal and Reference to High Court.––   

 (1)        Any  person or Federal Excise officer aggrieved by any of the following  orders may within sixty days of the receipt of such orders file appeal to the Appellate Tribunal against such orders,–

(a) an order passed by the Collector (Appeals); and

(b) an order passed by the Board or the Collector of Federal Excise under section 35.

(2)                 The Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in sub‑section (1) where,–

(a)                 in any disputed case, other than a case where the determination of any question having a relation to rate of duty of excise or to the value of goods and services 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

(b)                 the amount of fine or penalty determined by such order;

does not exceed fifty thousand rupees.

            (3)        Within ninety days of the date on which an order of the Appellate Tribunal is communicated to him, the aggrieved person or any officer of Federal Excise not below the rank of Deputy Collector may prefer an application in the prescribed form alongwith a statement of the case, to the High Court, stating any question of law arising out of such order.

            (4)        The statement to the High Court referred to in sub-section (3), shall set out the facts, the determination of the Appellate Tribunal and the question of law, which arises out of its order.

            (5)        Where on an application made under sub-section (3), the High Court is satisfied that a question of law arises out of the  order referred to in sub-section (3), it may proceed to hear the case.

            (6)        A reference to the High Court under this section shall be heard by a Bench of not less than two judges of the High Court and, in respect of the reference, the provisions of section 98 of the Civil Procedure, 1908 (V of 1908) shall apply, so far as may be, notwithstanding anything contained in any other law for the time being in force.

            (7)        The High Court upon hearing a reference under this section shall decide the question of law raised by the reference and pass judgment thereon specifying the grounds on which such judgment is based and the Tribunal’s order shall stand modified accordingly. The Court shall send a copy of the judgment under the seal of the Court to the Appellate Tribunal.

            (8)        The cost of any reference to the High Court shall be in the discretion of the Court.

            (9)        Notwithstanding that a reference has been made to the High Court, the duty shall be payable in accordance with the order of the Appellate Tribunal:

            Provided that, if the amount of duty is reduced as a result of the judgment in the reference by the High Court, and any amount of duty is found refundable, the High Court may, that he wants to prefer petition for leave to appeal to the Supreme Court, make an order authorizing the Collector to postpone the refund until the disposal of the appeal by the Supreme

Court.

            (10)       Where recovery of any sum has been stayed by the High Court by an order, such order shall cease to have effect on the expiration of a period of six months following the day on which it is made unless the appeal is decided, or such order is withdrawn, by the High Court earlier.

            (11)       Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application made to the High Court under sub-section (3).

            (12)       An application under sub-section (3) by a person other than the Collector shall be accompanied by a fee of one hundred rupees.

35. Powers of  Board or Collector to pass certain orders.–

(1)       The Board or the Collector within his jurisdiction, may suo moto call for and examine the records of any proceedings under this Act for the purpose of satisfying itself or, as the case may be, himself as to the legality or propriety of any decision or order passed by a subordinate officer and may pass such order as it or he may think fit.

(2)                 No order confiscating goods of greater value or enhancing any fine, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed under sub-section (1) unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorized by him.

(3)                 No record of any proceedings relating to any decision or order passed by any Federal Excise Officer shall be called for or examined under sub-section (1) after the expiry of two years from the date of such decision or order.

36. Power to rectify mistakes in orders.–

The Federal Government, the Board or any Federal Excise Officer may rectify any mistake which is apparent from the record in any order passed by it or him under any of the provisions of this Act or the rules made thereunder, on its or his own motion or on an application made by a person affected by the order within three years of the passing of such order provided that no such rectification which has the effect of enhancing any penalty or fine or requiring the payment of a greater amount of duty shall be made unless the person affected by the proposed rectification has been given an opportunity of being heard.

37.Deposit, pending appeal, of duty demanded or penalty levied.– 

 (1) Where in any appeal, the decision or order appealed against relates to any duty demanded or penalty imposed under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit the duty demanded or the penalty imposed provided that the Appellate Tribunal or Collector (Appeals) may in any particular case dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of revenue.

(2)                 The order for such dispensation under sub-section (1) shall cease to have effect on the expiration of a period of six months following the date on which order for dispensation was passed or until the order of dispensation is withdrawn earlier or the case is finally decided earlier by the Appellate Tribunal or Collector (Appeals).

(3)                 Notwithstanding sub-sections (1) and (2), the Appellate Tribunal or Collector (Appeals) may direct that, pending decision on the appeal, the duty demanded or penalty imposed, alongwith the default surcharge payable under this Act, be paid by the appellant in suitable installments spread over a period not exceeding six months from the date of such direction:

            Provided that where a person has, at the time of filing appeal, deposited fifteen per cent of the liability covered under the decision or order appealed against, he shall not be required to separately seek stay against recovery and stay in such a case shall commence from the date of payment of such fifteen per cent amount and shall remain valid till the expiry of a period of six months or till the decision of the appeal, whichever is earlier unless the case is decided in his favour and the amount so paid is claimed to have become due for refund.

38.Alternate Dispute Resolution.—

(1)       Notwithstanding any other provision of this Act, or the rules made thereunder, any aggrieved person in connection with any matter of excise pertaining to liability of excise duty, default surcharge, admissibility of refund or rebate, waiver or fixation of penalty or fine, confiscation of goods, relaxation of any time period or any procedural and technical condition may apply to the Board for the appointment of a committee for the resolution of any hardship or dispute mentioned in detail in the application.

(2)                 The Board may, after examination of the application of an aggrieved person, appoint a committee consisting of an officer of excise and one or two persons from a notified panel of Chartered or Cost Accountants, Advocates or reputable taxpayers for the resolution of hardship or the dispute.

(3)                 The committee constituted under sub-section (2) shall examine the issue and may, if it deems necessary, conduct inquiry, seek expert opinion, direct any officer of excise or any other person to conduct an audit and make recommendations in respect of the resolution of dispute as it may deem fit.

(4)                 The Board may, on the recommendation of the committee, give or pass such order, as it may deem appropriate.

(5)                 The aggrieved person may make the payment of excise duty and other taxes as determined by the Board in its order under sub-section (4) and all decisions, orders and judgements made or passed shall stand modified to that extent and all proceedings under this Act or the rules made thereunder by any authority or forum shall abate:

            Provided that, in case the matter is already sub-judice before any forum or tribunal or the court, the position agreed between the aggrieved person and the Board in the light of recommendations of the committee shall be submitted before that forum, tribunal or the court for consideration and order as deemed appropriate.

(6)                 The Board may, by notification in the official Gazette, make rules for carrying out the purposes of this section.

39.Exclusion of time taken for copy.–

In computing the period of limitation specified for an appeal or application under this Chapter, the day on which the order complained was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded.