Central Excise Act,1944

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Central Excise Act,1944
Total Sections 40
Enforcement Year 1944
State or Central Central
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ASSN: 24870


CENTRAL EXCISE ACT, 1944 1 of 1944 [24th February, 1944]


CONTENTS

CHAPTER 1 :- PRELIMINARY 1. Short title, extent and commencement 2. Definitions 2A. References of certain expressions CHAPTER 2 :- LEVY AND COLLECTION OF DUTY 3. duties Specified in First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levie 3A. Omitted by Finance Act, 2001 4. Valuation of excisable goods for purposes of charging of duty of excise 4A. Valuation of excisable goods with reference to retail sale price 5. Remission of duty on goods found deficient in quantity 5A. Power to grant exemption from duty of excise 6. Registration of certain persons 7. Omitted by S. 113 of The Finance Act, 1992 8. Restriction on possession of excisable goods 9. Offences and penalties 9A. Certain offences to be non-cognizable 9AA. Offences by companies 9 B . Power of Court to publish name, place of business, etc of persons convicted under the Act. 9C. Presumption of culpable mental state 9D. Relevancy of statements under certain circumstances 9E . Application of section 562 of the Code of Criminal Procedure, 1898, and of the Probation of Offenders Act, 1958 10. Power of Courts to order forfeiture 11. Recovery of sums due to Government 11A . Recovery of duties not levied or not paid or short levied or short-paid or erroneously refunded. 11AA. Interest on delayed payment of duty 11AB. Interest on delayed payment of duty. 11AC. Penalty for short-levy or non-levy of duty in certain cases 11B. Claim for refund of duty 11BB. Interest on delayed refunds 11C. Power not to recover duty of excise not levied or short-levied as a result of general practice. 11D. Duties of excise collected from the buyer to be deposited with the Central Government 11DD. Interest on the amounts collected in excess of the duty 11DDA. Provisional attachment to protect revenue in certain cases 12. Application of the provisions of Act No. 52 of 1962 to Central Excise Duties. CHAPTER 2A :- INDICATING AMOUNT OF DUTY IN THE PRICE OF GOODS, ETC., FOR PURPOSE OF REFUNDA ND CREDITING CERTAIN AMOUNTS TO THE FUND 12A. Price of goods to indicate the amount of duty paid thereon 12AA. Job work in article of jewellery 12B. Presumption that the incidence of duty has been passed on to the buyer 12C. Consumer Welfare Fund 12D. Utilisation of the Fund CHAPTER 3 :- P O W E R S AND DUTIES OF OFFICERS AND LANDHOLDERS 12E. Powers of Central Excise Officers 13. Power to arrest 1 4 . Power to summon persons to give evidence and produce documents in inquiries under this Act 14A. Special audit in certain cases 14AA. Special audit in cases where credit of duty availed or utilised is not within the normal limits, etc. 15. Officers required to assist Central Excise Officers 1 6 . O w n e r s or occupiers of land to report manufacture of contraband excisable goods 17. Punishment for connivance at offences 18. Searches and arrests how to be made 19. Disposal of persons arrested 20. Procedure to be followed by officer-in-charge of police station. 2 1 . I nquiry how to be made by Central Excise Officers against arrested persons forwarded to them under section 19. 22. Vexatious search, seizure, etc., by Central Excise Officer 23. Failure of Central Excise Officer in duty CHAPTER 3A :- ADVANCE RULINGS 23A. Definitions 23B. Vacancies, etc., not to invalidate proceedings 23C. Application for advance ruling 23D. Procedure on receipt of application 23E. Applicability of advance ruling. 23F. Advance ruling to be void in certain circumstances. 23G. Powers of Authority 23H. Procedure of Authority CHAPTER 4 :- TRANSPORT BY SEA 24. Penalties for carrying excisable goods in certain vessels 25. Exceptions. 26. Power of stoppage, search and arrest 27. Penalties for resisting officer 28. Confiscation of vessel and cargo 29. jurisdiction 30. Power to exempt from operation of this Chapter CHAPTER 5 :- SETTLEMENT OF CASES 31. Definitions. 32. Customs and Central Excise Settlement Commission 32A. jurisdiction and powers of Settlement Commission 32B. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances 3 2 C . Pow er of Chairman to transfer cases from one Bench to another 32D. Decision to be by majority 32E. Application for settlement of cases 32F. Procedure on receipt of an application under Section 32E 3 2 G . P o w e r of Settlement Commission to order provisional attachment to protect revenue. 3 2 H . P o w e r of Settlement Commission to reopen completed proceedings. 32I. Powers and procedure of Settlement Commissions. 32J. Inspection, etc., of reports 3 2 K . Pow er of Settlement Commission to grant immunity from prosecution and penalty 32L. Power of Settlement Commission to send a case back to the Central Excise Officer 32M. Order of settlement to be conclusive 32N. Recovery of sums due under order of settlement 32O. Bar on subsequent application for settlement in certain cases 3 2 P. Proceedings before Settlement Commission to be judicial proceedings 32 PA . Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission. CHAPTER 6 :- A D J U D I C AT I O N OF CONFISCATIONS AND PENALTIES 33. Power of adjudication 33A. Adjudication procedure 34. Option to pay fine in lieu of confiscation 3 4 A . C onfiscation or penalty not to interfere with other punishments. CHAPTER 6A :- APPEALS 35. Appeals to Commissioner (Appeals)]. 35A. Procedure in appeal 35B. Appeals to the Appellate Tribunal 35C. Orders of Appellate Tribunal 35D. Procedure of Appellate Tribunal 35E. Powers of Board or Commissioner of Central Excise] to pass certain orders. 3 5 E A . Powers of revision of Board or Commissioner of Central Excise] in certain cases 35EE. Revision by Central Government. 35F. Deposit, pending appeal, of duty demanded or penalty levied. 35G. Appeal to High Court 35H. Application to High Court 35I. Power of High Court or Supreme Court to require statement to be amended 3 5 j . Case before High Court to be heard by not less than two judges 35K. Decision of High Court or Supreme Court on the case stated 35L. Appeal to the Supreme Court 35M. Hearing before Supreme Court 35N. Sums due to be paid notwithstanding reference, etc. 35O. Exclusion of time taken for copy 3 5 P. Transfer of certain pending proceedings and transitional provisions 35Q. Appearance by authorised representative. 36. Definitions. CHAPTER 6B :- PRESUMPTION AS TO DOCUMENTS 36A. Presumption as to documents in certain cases 36B. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. CHAPTER 8 :- SUPPLEMENTAL PROVISIONS 37. Power of Central Government to make rules. 37A. Delegation of powers 37B. Instructions to Central Excise Officers. 37C. Service of decisions, orders, summons, etc. 37D. Rounding off of duty, etc. 37E. Publication of information respecting persons in certain cases 38. Publication of rules and notifications and laying of rules before Parliament. 38A. Effect of amendments, etc., of rules, notifications or orders. 39. Repeal of enactments. 40. Protection of action taken under the Act. SCHEDULE 1 :- THE SCHEDULE SCHEDULE 2 :- THE SCHEDULE SCHEDULE 3 :- THE SCHEDULE CENTRAL EXCISE ACT, 1944 1 of 1944 [24th February, 1944] An Act to consolidate and amend the law relating to Central Duties of Excise. Whereas it is expedient to consolidate and amend the law relating to central duties of excise' on goods manufactured or produced in certain parts of India. It is hereby enacted as follows:- CHAPTER 1 PRELIMINARY 1. Short title, extent and commencement :- 1(1) This Act may be called the Central Excise Act, 1944 ]. (2)It extends2to the whole of India3[***]. (3) It shall come into force on such date4 as the Central Government may, by notification in the Official Gazette, appoint in this behalf. Substituted (w.e.f. 28-9-1996) by s. 71 of the Finance (No. 2) Act, 1996 (33 of 1996). Vide Notification No. 166/87-C.E., dated 11-6-1987, the Central Excises and Salt Act, 1944 extends to the designated area in the Continental Shelf and Exclusive Economic Zone of India as declared by the Notification of the C.O.I., Ministry of External Affairs, No. S.O. 429 (E), dated 18-7-1986. The words "except the State of Jammu and Kashmir" were omitted by s. 2 and Sch. of the Taxation Laws (Extension to Jammu and Kashmir) Act, "1954 (41 of 1954). This Act came into force on 28th February, 1944 vide F.D. (C.R.) Notification No. III-D.C. Exc,, dated 26th February, 1944. This Act was extended to Goa, Daman and Diu by Regulation 12 of 1962, to Dadra and Nagar Haveli by Regulation 6 of 1963; to Laccadive, Minicoy and Amindivi Islands by Regulation 8 of 1965 and with effect from 1-2-1983 to the State of Sikkim vide Notification No. 9/83-C.E., dated 1-2-1983. 2. Definitions :- In this Act, unless there is anything repugnant in the subject or context, - 7[(a) "Adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), 6[Commissioner of Central Excise (Appeals)] or Appellate Tribunal; (aa) "Appellate Tribunal" means the Customs, Excise and 8[Service Tax] Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962)]; 8(aaa) "broker" or "commission agent" means a person who in the ordinary course of business makes contracts for the sale or purchase of excisable goods for others; 6[ ( b ) "Central Excise Officer" means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise 10[ J o i n t Commissioner of Central Excise] -15A s s i s t a n t Commissioner of Central Excise or Deputy Commissioner of Central Excise] or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act.] (c) "curing" includes wilting, drying, fermenting and any process for rendering an unmanufactured product fit for marketing or manufacture; (d) "excisable goods" means goods specified in the 12[13[the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)] as being subject to a duty of excise14and includes salt; (e) "factory" means any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on; 15[(ee) "Fund" means the Consumer Welfare Fund established under section 12C ;] 16[(f) "manufacture" includes any process, - (i) incidental17o r ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of 18the First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to 19["manufacture; or"] and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person w h o engages in their production or manufacture on his own account;] 20"(iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer,". 21"(ff) National Tax Tribunal means the National Tax Tribunal established under Sec.3 of the National Tax Tribunal Act, 2005. (g) "prescribed" means prescribed by rules made under this Act; (h) "sale" and "purchase", with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration; 22(i)* * * 23(J)* * * 24 (JJ)* * * (k) "wholesale dealer" means a person who buys or sells excisable goods wholesale for the purpose of trade or manufacture, and includes a broker or commission agent who, in addition to making contracts for the sale or purchase of excisable goods for others, stocks such goods belonging to others as an agent for the purpose of sale. Inserted by 5th schedule to Finance (No. 2) Act, 1980 (44 of 1980) with effect from 11-10-1982 vide Notification G.S.R. No. 597 (E), dated 11-10-1982. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 199.5 (22 of 1995). Substituted by the Finance Act, 2003, for the words "Gold (Control)" Re-lettered by 5th Schedule to Finance (No. 2) Act, 1980 (44 of 1980) with effect from 11-10-1982 vide Notification G.S.R. No. 597 (E), dated 11-10-1982. Substituted (w.e.f. 26-5-1995) by s. 71 of the Finance Act, 1995 (22 of 1995). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). the expressions "duty", "duties", "duty of excise" and "duties of excise" shall, save as otherwise expressly provided in Central Excise Act, 1944 and unless the context otherwise requires, be construed to include a reference to the special duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985. Inserted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991] by s. 2 of the Central Excise and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted [with effect from 28-2-1986 vide M.F. (D.R.) Notification No. 10/86-C.E., dated 5-2- 1986] by s. 4 of the Central Excise Tariff Act, 1985 (5 of 1986). Inserted by s. 120 of the Finance Act, 1999 (27 of 1999). Substituted by s. 120 of the Finance Act, 1999 (27 of 1999). In Section 2, clause (f) in sub-clause (ii) the word "manufacture" shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted by "The Finance Act, 2003" In Sec. 2 Sub. Sec.(f) words "National Tax Tribunal shall be inserted by the National Tax Tribunal Act,2005. Omitted (w.e.f. 28-9-1996) by s. 72 of the Finance (No. 2) Act, 1996 (33 of 1996). Clause (jj) was omitted by s. 11 and Sch. IV of the Finance Act, 1950 (25 of 1950). 2A. References of certain expressions :- . - 25 In this Act, save as otherwise expressly provided and unless t h e context otherwise requires, references to the expressions "duty", "duties", "duty of excise" and "duties of excise" shall be construed to include a reference to "Central Value Added Tax (CENVAT)] Inserted (w.e.f. 12-5-2000) by s. 91 of the Finance Act, 2000 (10 of 2000). CHAPTER 2 LEVY AND COLLECTION OF DUTY CHAPTER 2 LEVY AND COLLECTION OF DUTY 3. duties Specified in First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levie :- . 4(1) 10[There shall be levied and collected in such manner as may be prescribed, - (a) 29[ a duty of excise to be called the Central Value Added Tax (CENVAT)] on all "excisable goods" 30["(excluding goods produced or manufactured in special economic zones)"] which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);] ( b ) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods 31["(excluding goods produced or manufactured in special economic zones)"] specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule.] 32[Provided that the duties of excise which shall be levied and collected on any 33[excisable goods which are produced or manufactured, - (i) in a 34[free trade zone 35[* * * * ]] and brought to any other place in India; or (ii) by a hundred per cent export-oriented undertaking and 36[brought to any other place in India], shall be an amount equal to] the aggregate of the duties of customs which would be leviable 37[under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force], on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwitnstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). 38[Explanation 1. - Where in respect of any such like goods, any duty of customs leviable for the time being in force is leviable at different rates, then, 39[Explanation 2. - In this proviso,- 40(i) "free trade zone" means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf. (ii) "hundred per cent export-oriented undertaking" means an undertaking which has been approved as a hundred per cent export- oriented undertaking by the Board appointed in this behalf by the Central Government in exercise of the powers conferred by section 14 of the Industries (Development and Regulation) Act, 1951 (65 of 1951), and the rules made under that Act.]; 41[(iii) "special economic zone" means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf.]. 42[(1A) The provisions of sub-section (1) shall apply in respect of a l l excisable goods other than salt which are produced or manufactured in India by, or on behalf of. Government, as they apply in respect of goods which are not produced or manufactured by Government.] ( 2 ) The Central Government may, by notification in the Official Gazette, fix, for the purpose of levying the said duties, tariff values of any articles enumerated, either specifically or under general headings, in t h e 4344First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)] as chargeable with duty ad valorem and may alter any tariff values for the time being in force. 45 (3) Different tariff values may be fixed - (a) for different classes or descriptions of the same excisable goods; or (b) for excisable goods of the same class or description - (i) produced or manufactured by different classes of producers or manufacturers; or (ii) sold to different classes of buyers: Provided that in fixing different tariff values in respect of excisable goods falling under sub-clause (i) or sub-clause (ii), regard shall be had to the sale prices charged by the different classes of producers or manufacturers or, as the case may be, the normal practice of the wholesale trade in such goods.] The action taken under Section 3 of the Central Excise Act, 1944, have been declared to be valid by the following s. 109 of the Finance Act, 2000 (10 of 2000) : 109. Validation of action taken under section 3 of Act 1 of 1944. - Any action taken or anything done or purporting to have been taken or done under sub-section (1) of section 3 of the Central Excise Act, as amended by clause (ii) of section 88 at any time during the period commencing on and from the 11th day of May, 1982 and ending with the day, the Finance Act, 2000 receives the assent of the President shall be deemed to be and to always have been, lor all purposes, as validly and effectively taken or done as if the amendment made by clause ( i i ) of section 88 had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, (a) all duties of excise levied, assessed or collected during the said period on any excisable goods under the Central Excise Act, shall be deemed to be and shall be deemed to always have been, as validly levied, assessed or collected as if the amendment made by clause (ii) of section 88 had been in force at all material times; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for the refund of duties of excise, and no enforcement shall be made by any court of any decree or order directing the refund of, any such duties of excise which have been collected and which would have been validly collected if the amendment made by clause (ii) of section 88 had been in force at all material times; (c) recovery shall be made of all such duties of excise which have not been collected or, as the case may be, which have been refunded but which would have been collected or, case may be, would not have been refunded, if the amendment made by cl--ise (ii) of section 88 had been in force at all material times. Explanation.- For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. Substituted by s. 121 of the Finance Act, 1999 (27 of 1999). Substituted (w.e.f. 12-5-2000) by s. 92 of the Finance Act, 2000 (10 of 2000). In Section 3, sub-section (1), in clause (a)and (b) after the word ["excisable goods"] the brakets and words shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. This proviso and Explanations were inserted (w.e.f. 1.3.1982) by s. 46 of the Finance Act, 1982 (14 of 1982). Substituted by s. 45 of the Finance Act, 1984 (21 of 1984). Substituted (w.e.f. 11-5-2001)bys. 120 of the Finance Act, 2001 (14 of 2001). In Section 3, sub-section (1), in the proviso, clause (i) the word ["or special economic zone"] shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 11-5-2001) by s. 120 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 11-5-1982) by s. 92 of the Finance Act, 2000 (10 of 2000). Substituted by s. 45 of the Finance Act, 19S4 (21 of 1984). In Section 3, sub-section (1), in the proviso, Explanation 2 for clause (i) shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Inserted (w.e.f. 11-5-2001) by s. 120 of the Finance Act, 2001 (14 of 2001). This sub-section was substituted (with effect from 1st October, 1963) by s. 3 of the Sea Customs and the Central Excises and Salt (Amendment) Act, 1963 (30 of 1963). Substituted [with effect from 28-2-1986 vide M.F. (D.R.) Notification No. 10/86-C.E., dated 5-2- 1986; by s. 4 of the Central Excise Tariff Act, 1985 (5 of 1986). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). This sub-section was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/78-SRP-(CCX), dated 19-6-1978] by s. 19 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). 3A. Omitted by Finance Act, 2001 :- 46 * * * Omitted (w.e.f. 11-5-2001) by s. 121 of the Finance Act, 2001. 4. Valuation of excisable goods for purposes of charging of duty of excise :- . 2The section 4 prior to its substitution read as under: [4. Valuation of excisable goods for purposes of charging of duty of excise. - (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value, shall, subject to the other provisions of this section, be deemed to be - (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: Provided that - (i) where, in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers; [(ia) where the price at which such goods are ordinarily sold by the assessee is different for different places of removal, each such price shall, subject to the existence of other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such place of removal;] (ii) where such goods are sold by the assessee in the course of wholesale trade for delivery at the time and place of removal at a price fixed under any law for the time being in force or at a price, being the maximum, fixed under any such law, then, notwithstanding anything contained in clause (iii) of this proviso, the price or the maximum price, as the case may be, so fixed, shall, in relation to the goods so sold, be deemed to be the normal price thereof; (iii) where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons), who sell such goods in retail; (b) where the normal price of such goods is not ascertainable for the reason, that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2) Where, in relation to any excisable goods the price thereof for delivery at the place of removal is not known and the value thereof is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery shall be excluded from such price. (3) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under subsection (2) of section 3. (4) For the purposes of this section, - (a) "assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) "place of removal" means - (i) a factory or any other place or premises of production or manufacture of the excisable goods; [*****] (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; [(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory and,] from where such goods are removed; [(ba) "time of removal", in respect of goods removed from the place of remove. referred to in sub-clause (iii) of clause (b), shall be deemed to be the time at which such goods are cleared from the factory;] (i; "related person" means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee, and any sub-distributor of such distributor. Explanation. - In this clause "holding company", "subsidiary company" and "relative" have the same meanings as in the Companies Act, 1956 (1 of 1956); (d) "value", in relation to any excisable goods, - (i) where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. - In this sub-clause, "packing" means the wrapper, container, bobbin, pirn, spool, reel or warp beam or any other thing in which or on which the excisable goods are wrapped, contained or wound; (ii) docs not include the amount o f the duty of excise, sales tax and other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale. [Explanation. - For the purposes of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be the sum total of - (a) the effective duty of excise payable on such goods under this Act; and (b) the aggregate of the effective duties of excise payable under other Central Acts, if any, providing for the levy of duties of excise on such goods, and the effective duty of excise on such goods under each Act referred to in clause (a) or clause (b) shall be, - (i) in a case where a notification or order providing for any exemption (not being an exemption for giving credit with respect to, [or reduction of duty of excise under such Act on such goods equal to, any duty of excise und er such Act, or the additional duty under section 3 of the Customs Tariff Act, 1975 (51 of 1975), already paid] on the raw material or component parts used in the production or manufacture of such goods) from the duty of excise under such Act is for the time being in force, the duty of excise computed with reference to the rate specified in such Act, in respect of such goods as reduced so as to give full and complete effect to such exemption; and (ii) in any other case, the duty of excise computed with reference to the rate specified in such Act in respect of such goods.] (e) "wholesale trade" means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail.]. (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall - (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; (b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. 2[Explanation. For the removal of doubts, it is hereby declared that the price-cum-duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods.;] (2) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under subsection (2) of section 3 . (3) For the purpose of this section, - (a) "assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) persons shall be deemed to be "related" if - (i) they are inter-connected undertakings; (ii) they are relatives; (iii) amongst them the buyer is a relative and a distributor of the assessee, or a sub-distributor of such distributor; or (iv) they are so associated that they have interest, directly or indirectly, in the business of each other. Explanation. - In this clause - (i) "inter-connected undertakings" shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (64 of 1969); and (ii) "relative" shall have the meaning assigned to it in clause (41) of section 2 of the Companies Act, 1956 (1 of 1956); (c) "place of removal" means - (i) a factory or any other place or premises of production or manufacture of the excisable goods; ( i i ) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without 49[payment of duty;] 50(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory,; 51 [(cc) "time of removal", in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time at time at which such goods are cleared from the factory;.] (d) "transaction value" means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods.] The section 4 was Substituted (w.e.f. 1-7-2000) by s. 94 of the Finance Act, 2000 (10 of 2000). Substituted by the Finance Act, 2003, for "payment of duty,". Inserted by The Finance Act, 2003 4A. Valuation of excisable goods with reference to retail sale price :- 52(1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of subsection (2) shall apply. (2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4 , such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette. (3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. 53 (4) Where any goods specified under sub-section (1) are excisable goods and the manufacturer (a) removes such goods from the place of manufacture, without declaring the retail sale price of such goods on the packages or declares a retail sale price which is not the retail sale price as required to be declared under the provisions of the Act, rules or other law as referred to in subsection (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods shall be liable to confiscation and t h e retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1 For the purposes of this section, "retail sale price" means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale: Provided that in case the provisions of the Act, rules or other law as referred to in sub-section (1) require to declare on the package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly. Explanation 2. For the purposes of this section, (a) where on the package of any excisable goods more than one retail sale price is declared, the maximum of such retail sale prices shall be deemed to be the retail sale price; (b) where the retail sale price, declared on the package of any excisable goods at the time of its clearance from the place of manufacture, is altered to increase the retail sale price, such altered retail sale price shall be deemed to be the retail sale price; (c) where different retail sale prices are declared on different packages for the sale of any excisable goods in packaged form in different areas, each such retail sale price shall be the retail sale price for the purposes of valuation of the excisable goods intended to be sold in the area to which the retail sale price relates.. Inserted (w.e.f. 14-5-1497) by s. 82 of the Finance Act, 1997 (26 of 1997). Substituted by the Finance Act, 2003 5. Remission of duty on goods found deficient in quantity :- 54 (1) The Central Government may, by rules made under this section, provide for remission of duty of excise leviable on any excisable goods which due to any natural cause are found to be deficient in quantity. (2) Any rules made under sub-section (1) may, having regard to the nature of the excisable goods or of processing or of curing thereof, the period of their storage or transit and other relevant considerations, fix the limit or limits of percentage beyond which no such remission shall be allowed : Provided that different limit or limits of percentage may be fixed for different varieties of the same excisable goods or for different areas or for different seasons.] This section was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/6/78-SRP (CCX), dated 19- 6-1978] by s. 20 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). 5A. Power to grant exemption from duty of excise :- 2(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable-thereon : Provided that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured - (i) in a 3[free trade zone or a 57[* * * *] and brought to any other place in India; or (ii) by a hundred per cent export-oriented undertaking and 58[brought to any place in India]. Explanation. - In this proviso, 59[free trade zone", 60[* * * *] and "hundred per cent export-oriented undertaking" shall have the same meanings as in Explanation 2 to sub-section (1) of section 3. 61"(1A) For the removal of doubts, it is hereby declared that where a n exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods." 62(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable. 63(2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2). insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be. (3) An exemption under sub-section (1) or sub-section (2) in respect of any excisable goods from any part of the duty of excise leviable thereon (the duty of excise leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any excisable goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of excise chargeable on such goods shall in no case exceed the statutory duty. Explanation. - "Form or method", in relation to a rate of duty of excise means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable : (4) Every notification issued under sub-rule (1), and every order made under sub-rule (2), of rule 8 of the Central Excise Rules, 1944, and in force immediately before the commencement of the Customs and Central Excises Laws (Amendment) Act, 1988 (29 of 1988) shall be deemed to have been issued or made under the provisions of this section and shall continue to have the same force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this section.] 64[(5) Every notification issued under sub-section (1) 65 "[or subsection (2A)"] shall, - (a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette; (b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations, Customs and Central Excise, New Delhi, under the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963). (6) Notwithstanding anything contained in sub-section (5), where a notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said notification comes into force.] Inserted (w.e.f. 1-7-1988 vide Notification No. 18/88-C.E. (N.T.), dated 29-6-1988) by s. 9 of the Customs and Central Excises Laws (Amendment) Act, 1988 (29 of 1988). Substituted (w.e.f. 11-5-2001) by s. 122 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 11-5-2001) by s. 122 of the Finance Act 2001 (14 of 2001). In Section 5A, sub-section (1), in the proviso, clause (i) and Explanation 2 for the words ["or a special econpmic zone"] shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. In Section 5-A of the Central Excise Act, 1944 (1 of 1944) (hereinafter referred to as the Central Excise Act), after sub-section (1), the following sub-section shall be inserted, namely: "(1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall n ot pay the duty of excise on such goods.". by the Finance Act, 2005 Substituted by the Finance Act, 2003 In Section 5A, after sub-section (2), sub-section (2A) shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Inserted (w.e.f, 1-8-1998) by s. 106 of the Finance (No. 2) Act, 1998 (21 of 1998). In Section 5A, sub-section (5), after the words "sub-section (1) the words ["or sub-section (2A)"] shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 6. Registration of certain persons :- 66Any prescribed person who is engaged in - (a) the production or manufacture or any process of production or manufacture of any specified goods included in the 67[t h e First Schedule and the Second Schedule to the Central Excise Tariff Act, (b) the wholesale purchase or sale (whether on his own account or as a broker or commission agent) or the storage of any specified goods included in 68 [the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), shall get himself registered with the proper officer in such manner as may be prescribed.] Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). Substituted by S.119 of the Finance Act, 1999 (27 of 1999). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). 7. Omitted by S. 113 of The Finance Act, 1992 :- 69 * * * * Omitted (w.e.f. 14-5-1992) by s. 113 of the Finance Act 1992 (18 of 1992). 8. Restriction on possession of excisable goods :- . - From such date as may be specified in this behalf by the Central Government by notification in the Official Gazette, no person shall, except as provided by rules made under this Act, have in his possession 70[any goods specified in the Second Schedule ]71 in excess of such quantity as may be prescribed for the purposes of this section as the maximum amount of such goods or of any variety of such goods which may be possessed at any one time by such a person. These words were substituted by s. 33 of the Finance Act, 1956 (18 of 1956). Not modified by the Finance Bill, 1999 (22 of 1999). 9. Offences and penalties :- . - 72[1] Whoever commits any of the following offences, namely : - 73[(a) contravenes any of the provisions of section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section (2) of section 37 ;] (b) evades the payment of any duty payable under this Act; 74[(bb) removes any excisable goods in contravention of any of the provisions of this Act or any rules made thereunder or in any way concerns himself with such removal; (bbb) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder;] 75(bbbb) contravenes any of the provisions of this Act or the rules made thereunder in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products;] (c) fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; (d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section; 76[shall be punishable, - (i) in the case of an offence relating to any excisable goods, the duty (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both.] 77 [(2) If any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than six months, namely :- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; (iv) the age of the accused.] Section 9 was renumbered as sub-section (1) of that section by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). This clause was inserted by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Inserted (w.e.f. 1-8-1998) by s. 107 of the Finance (No. 2) Act, 1998 (21 of 1998). These words were substituted for certain words by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). This sub-section was inserted by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). 9A. Certain offences to be non-cognizable :- . 78 Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences under section 9 shall be deemed to be non-cognizable within the meaning of that Code. Sections 9A to 9E, were inserted by s. 19 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). 9AA. Offences by companies :- . - 79 (1) Where an offence under this Act has been committed by a comp an y, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is Explanation. - For the purposes of this section, - (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm.] Inserted by s. 2 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). 9B. Power of Court to publish name, place of business, etc of persons convicted under the Act. :- (1) Where any person is convicted under this Act for contravention of any of the provisions thereof, it shall be competent for the Court convicting the person to cause the name and place of business or residence of such person, nature of the contravention, the fact that the person has been so convicted and such other particulars as the Court may consider to be appropriate in the circumstances of the case, to be published at the expense of such person, in such newspapers or in such manner as the Court may direct. (2) No publication under sub-section (1) shall be made until the period for preferring an appeal against the orders of the Court has expired without any appeal having been preferred, or such an appeal, having been preferred, has been disposed of. (3) The expenses of any publication under sub-section (1) shall be recoverable from the convicted person as if it were a fine imposed by the Court. 9C. Presumption of culpable mental state :- . - (1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. - In this section, "culpable mental state" includes intention, motive, knowledge of a fact, and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 9D. Relevancy of statements under certain circumstances :- . (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice . (2) The provisions of sub-section (1) shall, so far as may be, apply i n relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 9E. Application of section 562 of the Code of Criminal Procedure, 1898, and of the Probation of Offenders Act, 1958 :- . - ( 1 ) Nothing contained in section 562 of the Code of Criminal Procedure, 189880 (5 of 1898), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age. (2) The provisions of sub-section (1) shall have effect notwithstanding anything contained in sub-section (3) of section 9 .] See now the relevant provisions of the Code of Criminal Procedure, 1973 (2 of 1974). 10. Power of Courts to order forfeiture :- .- Any Court trying an offence under this Chapter may order the forfeiture to 81 [Government] of any goods in respect of which the Court is satisfied that an offence under this Chapter has been committed, and may also order the forfeiture of any receptacles, packages or coverings in which such goods are contained and the animals, vehicles, vessels or other conveyances used in carrying the goods, and any implements or machinery used in the manufacture of the goods. This word was substituted by the A.O., 1950. 11. Recovery of sums due to Government :- . - In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder 82[including the amount required to be paid to the credit of the Central Government under Section 11D], the officer empowered by the 83 [Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. Substituted (w.e.f. 12-5-2000) by s. 95 of the Finance Act, 2000 (10 of 2000). These words were substituted (with effect from 1st January, 1964) by s. 5 of the Central Boards of Revenue Act, 1963 (54 of 1963). 11A. Recovery of duties not levied or not paid or short levied or short-paid or erroneously refunded. :- 84(1) When any duty of excise has not been levied or paid or has b e e n short-levied or short-paid or 85[erroneously refunded, whether or not such non-levy or non-payment, short- levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder], a Central Excise Officer may, within 86[one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this su b - section shall have effect, 87[as if, 88[***]] for the words 89[one year], the words "five years" were substituted90 91[****] Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of92[one year] or five years, as the case may be. 93(1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twentyfive per cent. of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice. (2) The 94[Central Excise Officer] shall, after considering the representation, if any, made by the person on whom notice is served under sub- section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. 95Provided that if such person has paid the duty in full together with, interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein: Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the Central Excise Officer, shall determine the amount of duty or interest not being in excess of the amount partly due from such person. 96[(2A) Where any notice has been served on a person under subsection (1), the Central Excise Officer, - (a) in case any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and (b) in any other case, where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded, within a period of six months, from the date of service of the notice on the person under sub-section (1). (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty 97[on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer ] before service of notice on him under sub- section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under subsection (1) in respect of the duty so paid : Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" referred to in Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was shortlevied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty. Explanation 2. - For the removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise Officer, but for this sub-section. (2C) The provisions of sub-section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]. (3) For the purposes of this section, - (i) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) "relevant date" means,- 98 [(a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid - (A) where under the rules made under this Act a periodical return, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder;] (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund.] This section was inserted [w.c.f. 17-11-1980 vide Notification No. 182/80-C.E., dated 15-11-1980] by section 21 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978) and the action taken under this section have been declared valid by the following section 110 of the Finance Act, 2000 (10 of 2000). 110. Validation of action taken under section 11A of Act 1 of 1944. - (1) Any notice issued or served on any person under the provisions of section 11A of the Central Excise Act during the period commencing on and from the 17th day of November, 1980 and ending on the date on which the Finance Act, 2000 receives the assent of the President (hereinafter referred to as the said period) demanding duty on account of nonpayment, short payment, non-levy, short-levy or erroneous refund within a period of six months or five years, as the case may be, from the relevant date as defined in clause (ii) of sub-section (3) of that section shall be deemed to be and to always have been, for all purposes, validly and effectively issued or served under that section, notwithstanding any approval, acceptance or assessment relating to the rate of duty on or value of, the excisable goods by any Central Excise Officer under any other provision of the Central Excise Act or the rules made thereunder, (2) Any action taken or anything done or purporting to have been taken or done under section 11A of the Central Excise Act at any time during the said period shall be deemed to be and to have always been, for all purposes, as validly and effectively taken or done as if sub- section (1) had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, - (a) all duties of excise levied, assessed or collected during the period specified in sub-section (1) on any excisable goods under the Central Excise Act, shall be deemed to be and shall be deemed to always have been, as validly levied, assessed or collected as if sub-section (1) had been in force at all material times; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for the refund of, and no enforcement shall be made by any court of any decree or order directing the refund of any such duties of excise which have been collected and which would have been validiy collected if sub-section (1) had been in force at all material times; (c) recovery shall be made of all such duties of excise which have not been collected or, as the case may be, which have been refunded but which would have been collected or, as the case may be, would not have been refunded, if subjection (1) had been in force at all material times. Explanation. - For the removal of doubts, it is hereby declared that no net or omission on the part of any person shall be punishable as an offence which would not have been so punishable it this section had not come into force. Substituted (w.e.f. 17-11-14811) by s. 47 of the Finance Act, 2000 (10 of 2000). Substituted (w.e f. 12-5-2000) lor the words "six months" by s. 97 of the Finance Act, 2000 (10 of 2000). Suubstituted (w.e.f. 27-12-1985) by s. 3 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985] the words for the words "the Central Excise Officer", the words "Collector of Central Excise", and omitted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). Substituted (w.e.f. 12-5-2000) for the words "six months" by s. 97 of the Finance Act, 2000 (10 of 2000). Consequent upon the amendment to the section 11A (w.e.f. 27-12- 1985) by Central Excises and Salt (Amendment) Act, 1985, all proceedings pending as on 27-12-1985, with the Assistant Collector of Central Excise under proviso to section 11A(1) of the Central Excises and Salt Act, 1944, stand transferred to the Collector of Central Excise by virtue of the following section 8 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). "8. Transfer o f certain pending proceedings. - Every proceeding under the proviso to sub- section (1) of Section 11A of the principal Act, which is pending immediately before the commencement of this Act before an Assistant Collector of Central Excise and any matter arising out ot, or connected with, such proceeding and which is so pending shall stand transferred on such commencement to the Collector of Central Excise who may proceed with such proceedings or matter from the stage at which it was on such commencement or from any earlier stage as he may deem fit: Provided that any party to the proceeding or matter may demand that before proceeding further with the proceeding or matter, he may be re-heard." Second and Third Proviso Omitted by "The Finance Act, 2003" Substituted (w.e.f. 12-5-2000) for the words "six months" by s. 97 of the Finance Act, 2(100 (10 of 2000). In section 11A after sub-section (1), the sub-section (1A) shall be inserted by Taxation Laws (Amendment) Act, 2006. Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). In section 11A sub-section (2), the following provisos shall be inserted by Taxation Laws (Amendment) Act, 2006. Inserted (w.e.f. 11-5-2001) by s. 123 of the Finance Act, 2001 (14 of 2001). Inserted by the Finance Act, 2003 Substituted (w.e.f. 26-5-1995) by s. 72 of the Finance Act, 1995 (22 of 1995). 11AA. Interest on delayed payment of duty :- 6100(1) 101[Subject to the provisions contained in section 11AB , where a person] chargeable with duty determined under subsection (2) of section 11A , fails to pay such duty within three months from the date of such determination, he shall pay, in addition to the duty, interest 102[at such rate not below eighteen per cent and not exceeding 103["ten per cent"] per annum, as is for the time being fixed by Provided that where a person chargeable with duty determined under sub-section (2) of section 11A before the date on which the Finance Bill, 1995 receives the assent of the President, fails to pay such duty within three months from such date, then, such person shall be liable to pay interest under this section from the date immediately after three months from such date, till the date of payment of such duty. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal 104"National Tax Tribunal " or, as the case may be, the court, the date of such determination shall be the date on which an amount of duty is first determined to be payable. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), Appellate Tribunal 105"National Tax Tribunal" or, as the case may be, the court, the date of such determination shall be, - (a) for the amount of duty first determined to be payable, the date on which the duty is so determined; (b) for the amount of increased duty, the date of order by which the increased amount of duty is first determined to be payable; (c) for the amount of further increase of duty, the date of order on which the duty is so further increased.] 106 [(2) The provisions of sub-section (1) shall not apply to cases where the duty becomes payable on and after the date on which the Finance Bill, 2001 receives the assent of the President.]. Inserted (w.e.f. 26-5-1995) by s. 73 (it the Finance Act, 1995 (22 of 1995). Section 11AA re-numbered as sub-section (1), by s. 124 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 28-9-1996) by s. 75 (if the Finance (No. 2) Act, 1996 (33 of 1996). Substituted (w.e.f. 12-5-2000) by s. 98 of the Finance Act, 2000 (10 of 2000). In Section 11AA and 11AB, sub-section (1), for the words "eighteen per cent" shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. In Sec. 11(AA) in Explanations (1) and (2) and Sec.11(AB) Explanations (1) and (2) and in Sec. 11(BB) Explanations (1) and (2) the words "National Tax Tribunal" shall be inserted by the National Tax Tribunal Act,2005. Inserted (w.e.f. 11-5-2001) by s. 124 of the Finance Act, 2001 (14 of 2001) 11AB. Interest on delayed payment of duty. :- - 24[(1) Where any duty of excise has not been levied or paid or has been short-levied or short- paid or erroneously refunded, the person who is liable to pay the duty as determined under subsection (2), or has paid the duty under sub-section (2B), of section 11A , shall, in addition to the duty, be liable to pay interest at such rate not below 109["ten per cent"]. and not exceeding thirty-six per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty : Provided that in such cases where the duty becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B , and such amount of duty payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction, as the case may be, no interest shall be payable and in other cases the interest shall be payable on the whole of the amount, including the amount already paid.]. 110[(2) The provisions of sub-section (1) shall not apply to cases where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal 111"National Tax Tribunal" or, as the case may be, the court, the interest shall be payable on such reduced amount of duty. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal 112 "National Tax Tribunal" or, as the case may be, the court, the interest shall be payable on such increased or further increased amount of duty.] Inserted (w.e.f. 28-9- 1996) by s. 76 of the Finance (No. 2) Act, 1946 (33 of 1996). In Section 11AA and 11AB, sub-section (1), for the words "eighteen per cent" shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 11-5-2001) by s. 125 of the Finance Act, 2001 (14 of 2001). In Sec. 11(AA) in Explanations (1) and (2) and Sec.11(AB) Explanations (1) and (2) and in Sec. 11(BB) Explanations (1) and (2) the words "National Tax Tribunal" shall be inserted by the National Tax Tribunal Act,2005. 11AC. Penalty for short-levy or non-levy of duty in certain cases :- . -113Where any duty of excise has not been levied or paid or has been short- levied or short-paid or erroneously refunded by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub- section (2) of section 11A , shall also be liable to pay a penalty equal to the duty so determined : 114 Provided that where such duty as determined under subsection (2) of section 11A , and the interest payable thereon under section 11AB , is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty as reduced or increased, as the case may be, shall be taken into account: Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect. Explanation. - For the removal of doubts, it is hereby declared that - (1) the provisions of this section shall also apply to cases in which t h e order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.] Inserted (w.e.f. 28-9-1996) by S.76 of the Finance (No. 2) Act, 1996 (33 of 1996). Substituted (w.e.f. 12-5-2000) by S.100 of the Finance Act, 2000 (10 of 2000). 11B. Claim for refund of duty :- .3(1) Any person claiming refund of any duty of excise may make a n application for refund of such duty to the 10Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of 117[(one year] 118[from the relevant date] 119[120[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A ) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act:] 121[Provided further that] the limitation of 122[one year] shall not apply where any duty has been paid under protest. 123[****] 124[(2) If, on receipt of any such application, the 125[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the 126A s s i s t a n t Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; ( b ) unspent advance deposits lying in balance in tile applicants 127[Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duly of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub- section (2). (4) Every notification under clause (f) of the first proviso to subsection (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. ( 5 ) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to subsection (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] 128[Explanation. - for the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; 129[(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] 130(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A , the date of issue of such order;] 131 (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;] (f) in any other case, the date of payment of duty.] This section was inserted [w.e.f. 17-1 1-1980 vide Notification No. 182/80-C.E., dated 15-11-1980 by s. 21 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). Substituted by s. 49 of the Finance (No. 2) Act, 1980 (44 of 1980). Inserted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9..1991 by. 3 of the Central Excises and Customs Laws (Amendment) Act, 199] (40 of 1991). Substituted (w.e.f. 26-5-1995) by s. 74 of the Finance Act, 1995 (22 of 1995). Substituted [w.e.f. 20-9-199] vide Notification No. 30/91-C.K. (N.T.), dated 19-9-19911 by s. 3 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted (w.e.f. 12-5-2000) for the words "six months" by s. 101 of the Finance Act, 2000 (10 of 2000). Omitted by s. 49 of Finance (No, 2) Act, 1980. Substituted [w.e.f. 20-9-199-1 vide Notification No. 30/91.C.F:. (N.T.), dated 19-9.1991) by s. 3 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 199]). Substituted s. 119 of the Finance Act, 1999 (27 of 1999). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). Substituted by s. 44 of the Finance (No. 2) Act, 1980 (44 of 1980). Substituted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991] by s. 3 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Inserted (w.e.f. 28-9-1996) by s. 77 of the Finance (No. 2) Act, 1996 (33 of 1996). Inserted (w.e.f. 1-8-1998) by s. 108 of the Finance (No. 2) Art, 1998 (21 of 1998). 11BB. Interest on delayed refunds :- . - 4I f any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub- section (1) of that section, there shall be paid to that applicant interest at such rate, 133not below five per cent] and not exceeding thirty per cent per annum as is for the time being fixed 134[by the Central Government, by Notification in the Official Gazette], on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty : Provided that where any duty ordered to be refunded under subsection (2) of section 11B in respect of an application under subsection (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid t o the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation. - Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal 135" N at ion al Tax Tribunal" or any court against an order of the 136[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], under sub-section (2) of section 11B , the order passed by the Commissioner (Appeals), Appellate Tribunal 137 "National Tax Tribunal" or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.] Inserted (w.e.f. 26-5-1995) by s. 75 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 11-5-2001) for the words "not below ten per cent" by s.126 of the Finance Act, 2001(14 of 2001). Substituted (w.e.f. 12-5-2000) by s. 102 of the Finance Act, 2000 (10 of 2000). Substituted by s.119 of the Finance Act, 1999 (27 of 1999). In Sec. 11(AA) in Explanations (1) and (2) and Sec.11(AB) Explanations (1) and (2) and in Sec. 11(BB) Explanations (1) and (2) the words "National Tax Tribunal" shall be inserted by the National Tax Tribunal Act,2005. 11C. Power not to recover duty of excise not levied or short-levied as a result of general practice. :- - 138139[(1)] Notwithstanding anything contained in this Act, if the Central Government is satisfied -- (a) that a practice was, or is, generally prevalent regarding levy of duty of excise (including non-levy thereof) on any excisable goods; and (b) that such goods were, or are, liable - (i) to duty of excise, in cases where according to the said practice the duty was not, or is not being, levied, or (ii) to a higher amount of duty of excise than what was, or is being, levied, according to the said practice, then, the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short- levied, in accordance with the said practice.] 140[(2) Where any notification under sub-section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such goods or, as the case may be, the duty of excise paid in excess of that payable on such goods, which would not have been paid it the said notification had been in force, shall be dealt with in accordance with. the provisions of sub-section (2) of section 11B : Provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the 141 [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], in the form referred to in subsection (1) of section 11B , before the expiry of six months from the date of issue of the said notification.] This section was inserted [w.e.f. 1-7-1978) vide Notification No. 227A/6/78-SRP (CCX) dated 19- 6-1978], by s. 21 of the Customs, Central excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Re-numbered [w.e.f. 1-7-1988 vide Notification No. 18/88-C.E. (N.T,), dated 29-6-1988] by s. 10 of the Customs and Central Excises Laws (Amendment) Act, 1988. Substituted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991] by s. 4 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999) 11D. Duties of excise collected from the buyer to be deposited with the Central Government :- . 142(1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, 143[every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and 144 [(2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (3) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (4) The amount paid to the credit of the Central Government under sub-section (1) or sub-section (3) shall be adjusted against the duty of excise payable by the person on finalisation of assessment or any other proceeding for determination of the duty of excise relating to the excisable goods referred to in sub-section (1). (5) Where any surplus is left after the adjustment under subsection (4), the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B and such person may make in application under that section in such cases within six months from the date of the public notice to be issued by the Assistant Commissioner of Central Excise for the refund of such surplus amount.] Inserted [w.e.f. 20-9-1991 vide Notification No, 30/91-C.E. (N.T.), dated 19-9-1991] by s. 5 of the Central Excises and Customs Laws (Amendment) Act, 199] (40 of 1991). Substituted (w.e.f. 20-9-1991) by s. 103 of the Finance Act, 2000 (10 of 2000). Substituted by s. 103 of the Finance Act, 2000 and shall deem to have substituted. 11DD. Interest on the amounts collected in excess of the duty :- 145 (1) Where an amount has been collected in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods, the person who is liable to pay such amount as determined under subsection (3) of section 1 ID, shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent., and not exceeding thirty-six per cent, per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first day of the month succeeding the month in which the amount ought to have been paid under this Act, butfor the provisions contained in sub-section (3) of section 11D, till the date of payment of such amount: Provided that in such cases where the amount becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B, and such amount payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction, as the case may be, no interest shall be payable and in other cases the interest shall b e payable on the whole amount, including the amount already paid. (2) The provisions of sub-section (1) shall not apply to cases where the amount had become payable or ought to have been paid before the day on which the Finance Bill, 2003 receives the assent of the President. Explanation 1. Where the amount determined under sub-section (3) of section 11D is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest payable thereon under subsection (1) shall be on such reduced amount. Explanation 2. Where the amount determined under sub-section (3) of section 11D is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest payable thereon under subsection (1) shall be on such increased amount.. Inserted by The Finance Act, 2003 11DDA. Provisional attachment to protect revenue in certain cases :- 146 (1) Where, during the pendency of any proceedings under section 11A or section 11D, the Central Excise Officer is of the opinion that for the purpose of protecting the interests of revenue, it is necessary so to do, he may, with the previous approval of the Commissioner of Central Excise, by order in writing, attach provisionally any property belonging to the person on whom notice is served under sub-section (1) of section 11A or sub-section (2) of section 11D, as the case may be, in accordance with the rules made in this behalf under section 142 of the Customs Act, 1962. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of six months from the date of the order made under sub-section (1): Provided that the Chief Commissioner of Central Excise may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as he thinks fit, so, however, that the total period of extension shall not in any case exceed two years: Provided further that where an application for settlement of case under section 32E is made to the Settlement Commission, the period commencing from the date on which such application is made and ending with the date on which an order under subsection (1) of section 32F is made shall be excluded from the period specified in the preceding proviso. After section 11DD section section 11DDA shall be inserted by Taxation Laws (Amendment) Act, 2006. 12. Application of the provisions of Act No. 52 of 1962 to Central Excise Duties. :- 147- The Central Government may, by notification in me Official Gazette, declare that any of the provisions of the 148 Customs Act, 1962 (52 of 1962)], relating to the levy of and exemption from customs duties drawback of duty, warehousing, offences and penalties, confiscation, and procedure relating to offences and appeals shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, b e applicable in regard to like matters in respect of the duties imposed by section 3 . Substituted (w.e.f. 28-9-1996) by s. 78 of the Finance (No.2) Act, 1996 (33 of 1996). Substituted (w.e.f. 28-9-1996) by s. 78 of the Finance (No. 2) Act, 1996 (33 of 1996). CHAPTER 2A INDICATING AMOUNT OF DUTY IN THE PRICE OF GOODS, ETC., FOR PURPOSE OF REFUND AND CREDITING CERTAIN AMOUNTS TO THE FUND 12A. Price of goods to indicate the amount of duty paid thereon :- Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12AA. Job work in article of jewellery :- 150 (1) Notwithstanding anything contained in these rules, every person (not being an export-oriented unit or a unit located in special economic zone) who gets article of jewellery falling under heading 7113 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Tariff Act), produced or manufactured on his behalf, on job work basis, (hereinafter referred to as "the said person") shall obtain registration, maintain accounts, pay duty leviable on such goods and comply with all the relevent provisions of these rules, as if he is an assessee: Provided that the job worker may, at his option, agree to obtain registration, maintain accounts, pay the duty leviable on such goods, prepare the invoice and comply with the other provisions of these rules and in such a case the provisions of these rules shall not apply to the said person. (2) If the said person desires clearance of excisable goods for home consumption or for exports from the premises of the job worker, he shall pay duty on such excisable goods and prepare an invoice, in the manner referred to in Rules 8 and 11 respectively except for mentioning the date and time of removal of goods on such invoice. (3) The original and the duplicate copy of the invoice so prepared shall be sent by him to the job worker from whose premises the excisable goods after completion of job work are intended to be cleared, before the goods are cleared from the premises of the job worker. (4) The job worker shall fill up the particulars of date and time of removal of goods before the clearance of goods and after such clearance the job worker shall intimate to the said person, the date and time of the clearance of goods for completion of the particulars by the said person in the triplicate copy of the invoice. (5) The said person may supply or cause to supply to a job worker, the following goods, namely : (a) inputs in respect of which he may or may not have availed CENVAT credit in terms of the CENVAT Credit Rules, 2004, without reversal of the credit thereon; or (b) goods manufactured in the factory of the said person without payment of duty; under a challan, consignment note or any other document (herein referred to as "document") with such information as specified in sub-rule (2) of Rule 11 of the Central Excise Rules, 2002, duly signed by him or his authorised agent. (6) The responsibility in respect of accountability of the goods, referred to in sub-rule (5) shall lie on the said person. (7) Notwithstanding any thing contained in these rules, the job worker shall not be required to get himself registered or shall not be required to maintain any record evidencing the processes undertaken for the sole purposes of undertaking job work under these rules unless he has exercised his option in terms of the proviso to sub-rule (1). (8) The job worker, with or without completing the job work may, (i) return the goods without payment of duty to the said person; or (ii) clear the goods for home consumption or for exports; subject to receipt of an invoice from the said person, as mentioned in sub-rule (4). (9) The job worker shall clear the goods after filling in invoice the time and date of removal and authentication of such details. The rate of duty on such goods shall be the rate in force on date of removal of such goods from the premises of the job worker and no excisable goods shall be removed except under the invoice. Explanation 1. For the purpose of this rule, "job worker" means a person engaged in manufacture or processing on behalf and under the instructions of the said person from any inputs or goods supplied by the said person or by any other person authorized by the said person, so as to complete a part or whole of the process resulting ultimately in manufacture of articles of jewellery falling under heading 7113 of the First Schedule to the Central Excise Tariff Act, 1985, and the term "job work" shall be construed accordingly. Explanation 2. For the purposes of this rule, article of jewellery shall mean articles of jewellery on which brand name or trade name is indelibly affixed or embossed on itself. Explanation 3. For the purposes of this notification, brand name or trade name means a brand name or trade name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to a product, for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person. Explanation 4. For the removal of doubts, it is hereby clarified that if any goods or part thereof is lost, destroyed, found short at any time before the clearance of articles of jewellery falling under heading 7113 of the First Schedule to the Tariff Act or waste, byproducts or like goods arising during the course of manufacture of such goods, the said person shall be liable to pay duty thereon as if such goods were cleared for home consumption.". After Rule 12-A, the rule 12AA shall be inserted, by the Central Excise (First Amendment) Rules, 2005 12B. Presumption that the incidence of duty has been passed on to the buyer :- . - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 12C. Consumer Welfare Fund :- (1) There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund. (2) There shall be credited to the Fund, in such manner as may be prescribed,- (a) the amount of duty of excise referred to in sub-section (2) of section 11B or sub-section (2) of section 11C or sub-section (2) of section 11D ; (b) the amount of duty of customs referred to in sub-section (2) of section 27 or sub-section (2) of section 28A, or sub-section (2) of section 28B of the Customs Act, 1962 (52 of 1962); (c) any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purposes of this Fund. 151 "(d) the surplus amount reffered to in sub-section (6) of section 73-A of the Finance Act, 1994(32 of 1994)." In the Central Excise Act,1944(1 of 1944) (herein after referred to as Central Excise Act), in section 12C ,sub-section (d), shall be inserted as follows :- "(d) the surplus amount reffered to in subsection (6) of section 73-A of the Finance Act, 1994(32 of 1994)." by the Finance Act , 2006. 12D. Utilisation of the Fund :- . - (1) Any money credited to the Fund shall be utilised by the Central Government for the welfare of the consumers in accordance with such rules as that Government may make in this behalf. (2) The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in consultation with the Comptroller and Auditor-General of India.) C H A P T E R 3 POWERS AND DUTIES OF OFFICERS AND LANDHOLDERS 12E. Powers of Central Excise Officers :- 152153( 1 ) A Central Excise Officer may exercise the powers and discharge the duties (2) Notwithstanding anything contained in sub-section (1), the 154 [Commissioner of Central Excise (Appeals)] shall not exercise the powers and discharge the duties conferred or imposed on a Central Excise Officer other than those specified in section 14 or Chapter VIA .] Inserted by s. 4 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). Renumbered [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991; by s. 7 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). 13. Power to arrest :- . . 155 Any Central Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Commissioner of Central Excise, arrest any person whom he has reason to believe to be liable to punishment under this Act or the rules made thereunder.. Substituted by The Finance Act, 2003, for section 13 14. Power to summon persons to give evidence and produce documents in inquiries under this Act :- . - (1) Any Central Excise Officer duly empowered156 by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required : Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions for attendance under this section. ( 3 ) Every such inquiry as aforesaid shall be deemed to be a "judicial proceeding" within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). The Central Government for the purpose of section 14 has empowered all Central Excise officers not below the rank of Superintendent of Central Excise by M.F. (D.R.) Notification No. 9/99-C.E. (N.T.), dated 10-2-200). Further, M.F. (D.R.) Notification Nos. 38/2001-C.E. (N.T), dated 26-6- 2001 and 39/2001 -C.E. (N.T), dated 26-6-2001 appoints officers of Central Excise and invests the specified Officers with powers for investigation, adjudication and other purposes. 14A. Special audit in certain cases :- . - 157( 1 ) If at any stag. of enquiry, investigation or any other proceedings before him, any Central Excise Officer not below the rank of an Assistant Commissioner of Central Excise, having regard to the nature and complexity of the case and the interest of revenue, is of the opinion that the value has not been correctly declared or (2) The cost accountant, so nominated shall, within the period specified by the Central Excise Officer, submit a report of such audit duly signed and certified by him to the said Central Excise Officer mentioning therein such other particulars as may be specified : Provided that the Central Excise Officer may, on an application made to him in this behalf by the manufacturer or the person and for any material and sufficient reason, extend the said period by such further period or periods as he thinks fit; so, however, that the aggregate of the period originally fixed and the period or periods so extended shall not, in any case, exceed one hundred and eighty days from the date on which the direction under sub-section (1) is received by the manufacturer or the person. (3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the manufacturer or person aforesaid have been audited under any other law for the time being in force or otherwise. 158 [(4) ***** ] (5) The manufacturer or the person shall be given an opportunity of being heard in respect of any material gathered on the basis of audit under sub- section (1) and proposed to be utilised in any proceedings under this Act or rules made thereunder. Explanation. - For the purpose of this section, "cost accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).] Inserted (w.e.f. 26-5-1995) by s. 76 of the Finance Act, 1995 (22 of 1995). Omitted (w.e.f. 12-5-2000) by s.104 of the Finance Act, 2000 (10 of 2000). 14AA. Special audit in cases where credit of duty availed or utilised is not within the normal limits, etc. :- 159(1) If the Commissioner of Central Excise has reason to believe that the credit of duty availed of or utilised under the rules made under this Act by a manufacturer of any excisable goods - (a) is not within the normal limits having regard to the nature of the excisable goods produced or manufactured, the type of inputs used and other relevant factors, as he may deem appropriate; (b) has been availed of or utilised by reason of fraud, collusion or any wilful mis-statement or suppression of facts, he may direct such manufacturer to get the accounts of his factory, office, depot, distributor or any other place, as may be specified by him, audited by a cost accountant nominated by him. (2) The cost accountant so nominated shall, within the period specified by the Commissioner of Central Excise, submit a report of such audit duly signed and certified by him to the said Commissioner mentioning therein such other particulars as may be specified. (3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the said manufacturer aforesaid have been audited under any other law for the time being in force or otherwise. 160 [(4) * * * * * * * ] (5) The manufacturer shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilised in any proceeding under this Act or rules made thereunder. Explanation. - For the purpose of this section, "cost accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).] Inserted (w.e.f. 14-5-1997) by s. 83 of the Finance Act, 1997 (26 of 1997). Omitted (w.e.f. 12-5-2000) by s. 105 of the Finance Act, 2000 (10 of 2000). 15. Officers required to assist Central Excise Officers :- 15. Officers required to assist Central Excise Officers :- . - All officers of Police and Customs and all officers of Government engaged in the collection of land revenue, and all village officers are hereby empowered and required to assist the Central Excise Officers in the execution of this Act. 16. Owners or occupiers of land to report manufacture of contraband excisable goods :- 161 [* * * * *] Section 16 and 17, shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 17. Punishment for connivance at offences :- 162 [* * * * *] Section 16 and 17, shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 18. Searches and arrests how to be made :- . - All searches made under this Act or any rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating respectively to searches and arrests made under that Code. 19. Disposal of persons arrested :- . - Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in-charge of the nearest police station. 20. Procedure to be followed by officer-in-charge of police station. :- - The officer-in-charge of a police station to whom any person is forwarded under section 19 shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail forward him in custody to such Magistrate. 21. Inquiry how to be made by Central Excise Officers against arrested persons forwarded to them under section 19. :- - (1 ) When any person is forwarded under section 19 to a Central E xcise Officer empowered163 to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to enquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same (a) if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; ( b ) if it appears to the Central Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the Central Excise Officer may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. The Central Government for the purposes of sections 19 and 21, has empowered all Central Excise officers not below the rank of Superintendent, Central Excise by M.F. (D.R.) Notification No. 9/99-C.E. (N.T.), dated 10-2-1999. 22. Vexatious search, seizure, etc., by Central Excise Officer

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.- Any Central Excise or other officer exercising powers under this Act or under the rules made thereunder who - (a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place; (b) vexatiously and unnecessarily detains, searches or arrests any person; (c) vexatiously and unnecessarily seizes the movable property of any person, on pretence of seizing or searching for any article liable to confiscation under this Act; (d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty; shall, for every such offence, be punishable with fine which may extend to two thousand rupees. Any person wilfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall be punishable with fine which may extend to two thousand rupees or with imprisonment for a term which may extend to two years or with both. 23. Failure of Central Excise Officer in duty :- . - Any Central Excise Officer who ceases or refuses to perform or withdraws himself from the duties of his office, unless he has obtained the express written permission of the 164 [Commissioner of Central Excise], or has given to his superior officer two months notice in writing of his intention or has other lawful excuse, shall on conviction before a Magistrate be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to three months pay, or with both. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). CHAPTER 3A ADVANCE RULINGS 23A. Definitions :- . - In this Chapter, unless the context otherwise requires, - (a) "activity" means production or manufacture of goods; (b) "advance ruling" means the determination, by the authority of a question of law or fact specified in the application regarding the liability to pay duty in relation to an activity proposed to be undertaken, by the applicant; 1 (c) "applicant" means (a) a non-resident setting up a joint venture in India in collaboration with a non-resident or a resident; or (b) a resident setting up a joint venture in India in collaboration with a non-resident; or (c) a wholly owned subsidiary Indian company, of which the holding company is a foreign company, who or which, as the case may be, proposes to undertake any business activity in India; (ii) a joint venture in India; or (iii) a resident falling within any such class or category of persons, as the Central Government may, by notification in the Official Gazette, specify in this behalf. and which or who, as the case may be, makes application for advance ruling under sub-section (1) of Section 23-C;; (d) "application" means an application made to the Authority under sub-section (1) of section 23C ; (e) "Authority" means the 166"A uthority for Advance Rulings (Central Excise, Customs and Service Tax)" constituted under section 28F of the Customs Act, 1962 (52 of 1962); 167 (f) "non-resident", "Indian company" and "foreign company" shall have the meanings respectively assigned to them in clauses (3), (26) and (23A) of section 2 of the Income-tax Act, 1961 (43 of 1961).. In Section 23-A of the Central Excise Act, in clause (e), in clause (e), for the words "Authority for Advance Rulings", the words and brackets "Authority for Advance Rulings (Central Excise, Customs and Service Tax)" shall be substituted by the "Finance Act, 2005 Caluse c and Clause f, Substituted by The Finance Act, 2003 23B. Vacancies, etc., not to invalidate proceedings :- . - No proceeding before, or pronouncement of advance ruling by, t h e Authority under this Chapter shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the constitution of the Authority. 23C. Application for advance ruling :- . - (1) An applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and in such manner as may be prescribed, stating the question on which the advance ruling is sought. (2) The question on which the advance ruling is sought shall be in respect of, - (a) classification of any goods under the Central Excise Tariff Act, 1985 (5 of 1986); (b) applicability of a notification issued under sub-section (1) of section 5A having a bearing on the rate of duty; (c) the principles to be adopted for the purposes of determination of value of the goods under the provisions of this Act. 1(d) notifications issued, in respect of duties of excise under this Act, the Central Excise Tariff Act, 1985 (5 of 1986) and any duty chargeable under any other law for the time being in force in the same manner as duty of excise leviable under this Act; 169(e) admissibility of credit of excise duty paid or deemed to have been paid on the goods used in or in relation to the manufacture of the excisable goods.. 170 "(f) determination of the liability to pay duties of excies on any goods under this Act." (3) The application shall be made in quadruplicate and be accompanied by a fee of two thousand five hundred rupees. (4) An applicant may withdraw an application within thirty days from the date of the application. Inserted by The Finance Act, 2003 In the Central Excise Act,1944(1 of 1944) (herein after referred to as Central Excise Act), in section 23C ,sub-section (f), shall be inserted as follows :- "(f) determination of the liability to pay duties of excies on any goods under this Act." by the Finance Act , 2006. 23D. Procedure on receipt of application :- . (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the Commissioner of Central Excise and, if necessary, call upon him to furnish the relevant records; Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the Commissioner of Central Excise. (2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application : Provided that the Authority shall not allow the application 171 [* *

  • * *] where the question raised in the application is, -

(a) already pending in the applicants case before any Central Excise Officer, the Appellate Tribunal or any Court; (b) me same as in a matter already decided by the Appellate Tribunal or any Court: Provided further that no application shall be rejected under this sub- section unless an opportunity has been given to the applicant of being heard: Provided also that where the application is rejected, reasons for such rejection shall be given in the order. (3) A copy of every order made under sub-section (2) shall be sent to the applicant and to the Commissioner of Central Excise. (4) Where an application is allowed under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority, pronounce its advance ruling on the question specified in the application. (5) On a request received from the applicant, the Authority shall, before pronouncing its advance ruling, provide an opportunity to the applicant of being heard, either in person or through a duly authorised representative. Expanation. - For the purposes of this sub-section, "authorised representative" shall have the meaning assigned to it in sub-section (2) of section 35Q. (6) The Authority shall pronounce its advance ruling in writing within ninety days of the receipt of application. (7) A copy of the advance ruling pronounced by the Authority, duly signed by the Members and certified in the prescribed manner shall be sent to the applicant and to the Commissioner of Central Excise, as soon as may be, after such pronouncement. In Section 23D, sub-section (2) in the first proviso the words "except in the case of resident application" shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 23E. Applicability of advance ruling. :- - (1) The advance ruling pronounced by the Authority under section 23D shall be binding only - (a) on the applicant who had sought it; (b) in respect of any matter referred to in sub-section (2) of section 23C ; (c) on the Commissioner of Central Excise, and the Central Excise authorities subordinate to him, in respect of the applicant. (2) The advance ruling referred to in sub-section (1) shall be binding as aforesaid unless there is a change in law or facts on the basis of which the advance ruling has been pronounced. 23F. Advance ruling to be void in certain circumstances. :- - (1) Where the Authority finds, on a representation made to it by the Commissioner of Central Excise or otherwise, that an advance ruling pronounced by it under sub-section (6) of section 28I has been obtained by the applicant by fraud or misrepresentation of facts, it may, by order, declare such ruling to be void ab initio and thereupon all the provisions of this Act shall apply (after excluding the period beginning with the date of such advance ruling and ending with the date of order under this sub-section) to the applicant as if such advance ruling had never been made. (2) A copy of the order made under sub-section (1) shall be sent to the applicant and the Commissioner of Central Excise. 23G. Powers of Authority :- . - (1) The Authority shall, for the purpose of exercising its powers regarding discovery and inspection, enforcing the attendance of any person and examining him on oath, issuing commissions and compelling production of books of account and other records, have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908). (2) The Authority shall be deemed to be a civil court for the purposes of section 195 , but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and Section 228 of the Indian Penal Code, 1860 , and for the purpose of section 196 of the Indian Penal Code (45 of 1860). 23H. Procedure of Authority :- . - The Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure in all matters arising out of the exercise of its powers under this Act.] CHAPTER 4 TRANSPORT BY SEA 24. Penalties for carrying excisable goods in certain vessels

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[* * * * *] 25. Exceptions. :- [* * * * *] 26. Power of stoppage, search and arrest :- [* * * * *] 27. Penalties for resisting officer :- [* * * * *] 28. Confiscation of vessel and cargo :- [* * * * *] 29. jurisdiction :- [* * * * *] 30. Power to exempt from operation of this Chapter :- [* * * * *] CHAPTER 5 SETTLEMENT OF CASES 31. Definitions. :- - In this Chapter, unless the context otherwise requires, - (a) "assessee" means any person who is liable for payment of excise duty assessed under this Act or any other Act and includes any producer or manufacturer of excisable goods or a registered person under the rules made under this Act, of a private warehouse in which excisable goods are stored; (b)"Bench" means a Bench of the Settlement Commission; (c) "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a Central Excise Officer or Central Government on the date on which an application under sub-section (I) of section 32E is made : Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding pending within the meaning of this clause; ( d ) "Chairman" means the Chairman of the Settlement Commission; (e) "Commissioner (Investigation)" means an officer of the Customs or a Central Excise Officer appointed as such Commissioner to conduct inquiry or investigation for the purposes of this Chapter; (f ) "Member" means a Member of the Settlement Commission and includes the Chairman and the Vice-Chairman; (g) "Settlement Commission" means the Customs and Central Excise Settlement Commission constituted under section 32 ; and (h) "Vice-chairman" means a Vice-chairman of the Settlement Commission. 32. Customs and Central Excise Settlement Commission :- . - ( 1 ) The Central Government shall, by notification in the Official Gazette, constitute a Commission to be called the Customs and Central Excise Settlement Commission for the settlement of cases under this Chapter and Chapter XIVA of the Customs Act, 1962 (52 of 1962). (2) The Settlement Commission shall consist of a Chairman and as m a n y Vice-Chairmen and other Members as the Central Government thinks fit and shall function within the Department of the Central Government dealing with Customs and Central Excise matters. (3) The Chairman, Vice-chairman and other Members of the Settlement Commission shall be appointed by the Central Government from amongst persons of integrity and outstanding ability, having special knowledge of, and experience in, administration of customs and central excise laws : Provided that, where a member of the Board is appointed as the Chairman, Vice-chairman or as a Member of the Settlement Commission, he shall cease to be a member of the said Board. 32A. jurisdiction and powers of Settlement Commission :- . (1) Subject to the other provisions of this Chapter, the jurisdiction, powers and authority of the Settlement Commission may be exercised by Benches thereof. (2) Subject to the other provisions of this section, a Bench shall be presided over by the Chairman or a Vice-chairman and shall consist of two other Members. (3) The Bench for which the Chairman is the presiding officer shall be the principal Bench and other Benches shall be known as additional Benches. (4) Notwithstanding anything contained in sub-section (1) and subsection (2), the Chairman may authorise the Vice-chairman or other Member appointed to one Bench to discharge also the functions of the Vice-chairman or, as the case may be, other Member of another Bench. ( 5 ) The principal Bench shall sit at Delhi and the Central Government shall, by notification in the Official Gazette, establish additional Benches at such places as it considers necessary. (6) Notwithstanding anything contained in the foregoing provisions of this section, and subject to any rules that may be made in this behalf, when one of the persons constituting a Bench (whether such person be the presiding officer or other Member of the Bench) is unable to discharge his functions owing to absence, illness or any other cause or in the event of the occurrence of any vacancy either in the office of the presiding officer or in the office of one or the other Members of the Bench, the remaining Members may function as the Bench and if the presiding officer of the Bench is not one of the remaining Members, the senior among the remaining Members shall act as the presiding officer of the Bench: Provided that if at any stage of the hearing of any such case or matter, it appears to the presiding officer that the case or matter is of such a nature that it ought to be heard of by a Bench consisting of three Members, the case or matter may be referred by the presiding officer of such Bench to the Chairman for transfer to such Bench as the Chairman may deem fit. (7) Notwithstanding anything contained in the foregoing provisions of this section, the Chairman may, for the disposal of any particular case, constitute a special Bench consisting of more than three Members. ( 8 ) Subject to the other provisions of this Chapter, the special Bench shall sit at a place to be fixed by the Chairman. 32B. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances :- . - (1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the Vice-Chairman or, as the case may be, such one of the Vice- Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Chapter to fill such vacancy, enters upon his office. (2) When the Chairman is unable to discharge his functions owing to absence, illness or any other cause, the Vice-chairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties. 32C. Power of Chairman to transfer cases from one Bench to another :- . - On the application of the assessee or the Chief Commissioner or Commissioner of Central Excise and after giving notice to them, and after hearing such of them as he may desire to be heard, or on his ow n motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to another Bench. 32D. Decision to be by majority :- . - If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Settlement Commission and such point or points shall be decided according to the opinion of the majority of the Members of the Settlement Commission who have heard the case, including those who first heard it. 32E. Application for settlement of cases :- . (1) An assessee may, at any stage of a case relating to him make a n application in such form and in such manner as may be prescribed, and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification or otherwise of such excisable goods, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided : Provided that no such application shall be made unless, - (a) the applicant has 173 filed returns] showing production, clearance and central excise duty paid in the prescribed manner; (b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant; and (c) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees : Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any Court: Provided also that no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986). (2) Where any excisable goods, books of accounts, other documents have been seized under the provisions of this Act or rules made thereunder, the assessee shall not be entitled to make a n application under sub-section (1), before the expiry of one hundred and eighty days from the date of the seizure. (3) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed. (4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant. Substituted (w.e.f. 12-5-2000) for the words "filed monthly returns" by s.106 of the Finance Act, 2000 (10 of 2000). 32F. Procedure on receipt of an application under Section 32E :- . - (1) On receipt of an application under sub-section (1) of section 32E , the Settlement Commission shall call for a report from the Commissioner of Central Excise having jurisdiction and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application: Provided that an application shall not be rejected under this subsection, unless an opportunity has been given to the applicant of being heard: Provided further that the Commissioner of Central Excise shall furnish such report within a period of one month of the receipt of the communication from the Settlement Commission, failing which it shall be presumed that the Commissioner of Central Excise has no objection to such application; but he may raise objections at the time of hearing fixed by the Settlement Commission for admission of the application and the date of such hearing shall be communicated by the Settlement Commission to the applicant and the Commissioner of Central Excise within a period not exceeding two months from the date of receipt of such application, unless the presiding officer of the Bench extends the time, recording the reasons in writing. (2) A copy of every order under sub-section (1) shall be sent to the (3) Subject to the provisions of sub-section (4), the applicant shall within thirty days of the receipt of a copy of the order under subsection (1) allowing the application to be proceeded with, pay the amount of additional duty admitted by him as payable and shall furnish proof of such payment to the Settlement Commission. (4) If the Settlement Commission is satisfied, on an application made in this behalf by the assessee that he is unable for good and sufficient reasons to pay the amount referred to in sub-section (3), within the time specified in that sub- section, it may extend the time for payment of the amount which remains unpaid or allow payment thereof by installments, if the assessee furnishes adequate security for the payment thereof. (5) Where the additional amount of duty referred to in sub-section (3) is not paid by the assessee within the time specified or extended period, as the case may be, the Settlement Commission may direct that the amount which remains unpaid, together with simple interest at the rate of eighteen per cent. per annum or at the rate notified by the Central Board of Excise and Customs from time to time on the amount remaining unpaid, be recovered, as the sum due to Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of section 11 . (6) Where an application is allowed to be proceeded with under sub- section (1), the Settlement Commission may call for the relevant records from the Commissioner of Central Excise having jurisdiction and after examination of such records, if the Settlement Commission is of the opinion that any further enquiry or investigation in the matter is necessary, it may direct the Commissioner (Investigation) to make or cause to be made such further enquiry or investigation and furnish a report on the matters covered by the application and any other matter relating to the case. (7) After examination of the records and the report of the Commissioner of Central Excise received under sub-section (1), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (6), and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (1) or sub-section (6). (8) Subject to the provisions of section 32A , the materials brought on record before the Settlement Commission shall be considered by the Members of the concerned Bench before passing any order under sub-section (7) and, in relation to the passing of such order, the provisions of section 32D shall apply. (9) Every order passed under sub-section (7) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other metters to make the settlement effective and shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or misrepresentation of facts. (10) Where any duty payable in pursuance of an order under subsection (7) is not paid by the assessee within thirty days of the receipt of a copy of the order by him, then, whether or not the Settlement Commission has extended the time for payment of such duty or has allowed payment thereof by installments, the assessee shall be liable to pay simple interest at the rate of eighteen per cent. per annum or at such other rate as notified by the Central Board of Excise and Customs on the amount remaining unpaid from the date of expiry of the period of thirty days aforesaid. (11) Where a settlement becomes void as provided under subsection (9) the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the date of the receipt of communication that the settlement became void. 32G. Power of Settlement Commission to order provisional attachment to protect revenue. :- - (1) Where, during the pendency or any proceeding before it, the Settlement Commission is of the opinion that for the purpose of protecting the interests of revenue it is necessary so to do, it may, by order, attach provisionally any property belonging to the applicant in the manner as may be prescribed. ( 2 ) Every provisional attachment made by the Settlement Commission under sub-section (1) shall cease to have effect from the date, the sums due to the Central Government for which such attachment is made are discharged by the applicant and evidence to that effect is submitted to the Settlement Commission. 32H. Power of Settlement Commission to reopen completed proceedings. :- - If the Settlement Commission is of the opinion (the reasons for such opinion to be recorded by it in writing) that, for the proper disposal of the case pending before it, it is necessary or expedient to reopen any proceeding connected with the case but which has been completed under this Act before application for settlement under section 32E was made, it may, with the concurrence of the applicant, reopen such proceeding and pass such order thereon as i t thinks fit, as if the case in relation to which the application for settlement had been made by the applicant under that section covered such proceeding also: Provided that no proceeding shall be reopened by the Settlement Commission under this section after the expiry of five years from the date of application. 32I. Powers and procedure of Settlement Commissions. :- - ( 1 ) In addition to the powers conferred on the Settlement Commission under this Chapter, it shall have all the powers which are vested in a Central Excise Officer under this Act or the rules made thereunder. (2) Where an application made under section 32E has been allowed to be proceeded with under section 32F , the Settlement Commission shall, until an order is passed under sub-section (7) of section 32F , have, subject to the provisions of sub-section (6) of that section, exclusive jurisdiction to exercise the powers and perform the functions of any Central Excise Officer, under this Act in relation to the case. (3) In the absence of any express direction by the Settlement Commission to the contrary, nothing in this Chapter shall affect the operation of the provisions of this Act in so far as they relate to any matters other than those before the Settlement Commission. (4) The Settlement Commission shall, subject to the provisions of this Chapter, have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers, or of the discharge of its functions, including the places at which the Benches shall hold their sittings. 32J. Inspection, etc., of reports :- . - No person shall be entitled to inspect, or obtain copies of, any reports made by any Central Excise Officer to the Settlement Commission; but the Settlement Commission may, in its discretion furnish copies thereof to any such person on an application made to it in this behalf and on payment of the prescribed fee: Provided that, for the purpose of enabling any person whose case is under consideration to rebut any evidence brought on record against him in any such report, the Settlement Commission shall, on an application made in this behalf, and on payment of the prescribed fee by such person, furnish him with a certified copy of any such report or part thereof relevant for the purpose 32K. Power of Settlement Commission to grant immunity from prosecution and penalty :- . - (1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also either wholly or in part from the imposition of any penalty, fine and interest under this Act, with respect to the case covered by the settlement: Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32E . (2) An immunity granted to a person under sub-section (1) shall stand withdrawn if such person fails to pay any sum specified in the order of the settlement passed under sub-section (7) of section 32F within the time specified in such order or within such further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted. (3) An immunity granted to a person under sub-section (1) may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particular material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such person would have been liable, had no such immunity been granted. 32L. Power of Settlement Commission to send a case back to the Central Excise Officer :- . - (1) The Settlement Commission may, if it is of opinion that any person who made an application for settlement under section 32E has not co-operated with the Settlement Commission in the proceedings before it, send the case back to the Central Excise Officer having jurisdiction who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made. (2) For the purpose of sub-section (1), the Central Excise Officer shall be entitled to use all the materials and other information produced by the assessee before the Settlement Commission or the results of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it as if such materials, information, inquiry and evidence had been produced before such Central Excise Officer or held or recorded by him in the course of the proceedings before him. (3) For the purposes of the time limit under section 11 A and for the purposes of interest under section 11BB , in a case referred to in sub-section (1), the period commencing on and from the date of t h e application to the Settlement Commission under section 32E and ending with the date of receipt by the Central Excise Officer of the order of the Settlement Commission sending the case back to the Central Excise Officer shall be excluded. 32M. Order of settlement to be conclusive :- . - Every order of settlement passed under sub-section (7) of section 32F shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force. 32N. Recovery of sums due under order of settlement :- .- Any sum specified in an order of settlement passed under subsection (7) of section 32F may, subject to such conditions if any, as may be specified therein, be recovered, and any penalty for default in making payment of such sum may be imposed and recovered as sums due to the Central Government in accordance with the provisions under section 11 by the Central Excise Officer having jurisdiction over the person who made the application for settlement under section 32E . 32O. Bar on subsequent application for settlement in certain cases :- . Where - (i) an order of settlement passed under sub-section (7) of section 32F provides for the imposition of a penalty on the person who made the application under section 32E for settlement, on the ground of concealment of particulars of his duty liability; or (ii) after the passing of an order of settlement under the said subsection (7) in relation to a case, such person is convicted of any offence under this Act in relation to that case; or (iii) the case of such person is sent back to the Central Excise Officer having jurisdiction by the Settlement Commission under section 32L , then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter. 32P. Proceedings before Settlement Commission to be judicial proceedings :- . - Any proceedings under this Chapter before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and Section 228 of the Indian Penal Code, 1860 , and for the purposes of section 196 of the Indian Penal Code (45 of 1860).] 32PA. Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission. :- 174( 1 ) Notwithstanding anything contained in this Chapter, any person who has filed an appeal to the Appellate Tribunal under this Act, on or before the 29th day of February, 2000 and which is pending, shall, on withdrawal of such appeal from the Appellate Tribunal, be entitled to make an application to the Settlement Commission to have his case settled under this Chapter: Provided that no such person shall be entitled to make an application under this section in a case where the Commissioner of Central Excise or any officer on his behalf has, on or before the date on which the Finance Act, 2000 section 35E or filed an appeal under sub-section (2) of section 35B , as the case may be. ( 2 ) Any person referred to in sub-section (1) may make an application to the Appellate Tribunal for permission to withdraw the appeal. ( 3 ) On receipt of an application under sub-section (2), the Appellate Tribunal shall grant permission to withdraw the appeal. (4) Upon withdrawal of the appeal, the proceedings in appeal immediately before such withdrawal shall, for the purposes of this Chapter, be deemed to be a proceeding pending before a Central Excise officer. (5) An application to the Settlement Commission under this section shall be made within a period of thirty days from the date on which the order of the Appellate Tribunal permitting the withdrawal of the appeal is communicated to the person. (6) An application made to the Settlement Commission under this section shall be deemed to be an application made under subsection (1) of section 32E and the provisions of this Chapter, except sub-section (11) of 175 "Section 32-F and sub-section (1) of Section 32-L", shall apply accordingly. (7) Where an application made to the Settlement Commission under this section is not entertained by the Settlement Commission, then, the appeal shall be deemed to have been revived before the Appellate Tribunal and the provisions contained in section 35B , section 35C and section 35D shall, so far as may be, apply accordingly.] PR245 Inserted (w.e.f. 12-5-2000) by s. 107 of the Finance Act, 2000(10 of 2000). In Section 32-PA of the Central Excise Act, in sub-section (6), for the word, figures and letter "Section 32-F the words, figures, letters and brackets "Section 32-F and sub-section (1) of Section 32-L" shall be substituted by the Finance Act. CHAPTER 6 ADJUDICATION OF CONFISCATIONS AND PENALTIES 33. Power of adjudication :- . - 3[W here under this Act or by the rules made thereunder] anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged - (a) without limit, by a 177[Commissioner of Central Excise]; (b) up to confiscation of goods not exceeding five hundred rupees in value and imposition of penalty not exceeding two hundred and fifty rupees, by an 178[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]: Provided that the 179[ C entral Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)], may, in the case of any officer performing the duties of an 180[ A ssi st a n t Commissioner of Central Excise or Deputy Commissioner of Central Excise], reduce the limits indicated in clause (b) of this section and may confer on any officer the powers indicated in clause (a) or (b) of this section181 . Substituted by s.125 of the Finance Art, 1999 (27 of 1999). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Art, 1995 (22 of 1995). These words were substituted (w.e.f. 1st January, 1964) by s. 5 of the Central Boards of Revenue Act, 1963(54 of 1963). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). See detailed instructions issued by the C.B.E. and C. in this behalf in Vol. 1 of the CENTRAL EXCISE LAW GUIDEu nder the Chapter DEPARTMENTAL ADJUDICATION. 33A. Adjudication procedure :- (1) The Adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the proceeding 34. Option to pay fine in lieu of confiscation :- . - Whenever confiscation is adjudged under this Act or the rules made thereunder, the officer adjudging it, shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. 34A. Confiscation or penalty not to interfere with other punishments. :- -182 No confiscation made or penalty imposed under the provisions of the Act or of any rule made thereunder shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law.] The section was inserted by s. 20 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). CHAPTER 6A APPEALS 35. Appeals to Commissioner (Appeals)]. :- 2(1} Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a 2[ C ommission er of Central Excise], may appeal to the 186[Commissioner of Central Excise (Appeals)] [hereafter in this Chapter referred to as t h e 187[Commissioner (Appeals)]] 188[within sixty days] from the date of the communication to him of such decision or order : 189 [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] . (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. Substituted (w.e.f. 26-5-1995) by s. 71) of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 11-5-2001) for the words "within three months" by s. 35 of the Finance Act, 2001(14 of 2001). Substituted (w.e.f. 11-5-2001)by s.127 of the Finance Act, 2001 (14 of 2001]). 35A. Procedure in appeal :- . - (1) The 1[Commissioner (Appeals)] shall give an opportunity to the appellant to be heard, if he so desires. (2) The 1[Commissioner (Appeals)] may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if t h e 1[Commissioner (Appeals)] is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. (3) 1[The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against:] Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the 1Commissioner (Appeals)] is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, shortlevied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 11A to show cause against the proposed order. (4) The order of the 195[Commissioner (Appeals)] disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision. 196[(4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed.] (5) On the disposal of the appeal, the 197[Commissioner (Appeals)] shall communicate the order passed by him to the appellant, the adjudicating authority and the 198199 "the Chief Commissioner of Central Excise and the Commissioner of Central Excise". Substituted(w.e.f. 26-5-1995)by s.70 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 11-5-2001 )by s.128 of the Finance Act, 2001 (14 of 2001). Inserted (w.e.f. 11-5-2001) by s. 128 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). n Section 35A of the Central Excise Act, in sub-section (5),for the words "and the Commissioner of Central Excise", the words ", the Chief Commissioner of Central Excise and the Commissioner of Central Excise" shall be substituted by the Finance Act. 35B. Appeals to the Appellate Tribunal :- . 2(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 2[Commissioner of Central Excise] as an adjudicating authority; (b) an order passed by the 2[Commissioner (Appeals)] 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 2[Commissioner of Central Excise] under section 35 , as it stood immediately before the appointed day; (d) an order passed by the Board or the 2[Commissioner of Central Excise], either before or after the appointed day, under section 35A , as it stood immediately before that day: 8[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 ( c ) goods exported outside India (except to Nepal or Bhutan) without payment of duty; 2[(d) credit of any duty allowed to be utilised 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:] Provided further that] the Appellate Tribunal may, in its discretion, refuse to 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 2[fifty thousand rupees]; 208[(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 under that section.] 209"(1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be."; (2) The 210211T he Committee of Commissioners of Central Excise may, if it is" may, if he is of opinion that an order passed by the Appellate 212213The Committee of Commissioners of Central Excise may, if it is" under section 35 , as it stood immediately before the appointed day, or the 214[Commissioner (Appeals)] under section 35A , is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised 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 215[Commissioner of Central Excise], 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, not-withstanding 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 (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. 216 [(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).] On and from the appointed day, the amendments shall be made in sections 35B and 35E of the Central Excises and Salt Act, 1944 by s. 34 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986). Substituted by s. 47 of the Finance Act, 1984 (21 of 1984). To be inserted from a date to be notified by s. 109 of the Finance (No. 2) Act, 1998 (21 of 1998). Substituted (w.e.f. 13-5-1993) for the words "ten thousand rupees" by s. 45 of the Finance Act, 1993 (38 of 1993). Inserted by s. 47 of the Finance Act, 1984 (21 of 1984). In Section 35B of the Central Excise Act, in sub-section (6), after sub-section (1A), the following sub-section shall be inserted, namely: "(1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be."; by the Finance Act" In Section 35B of the Central Excise Act, in sub-section (2), for the words The Commissioner of Central Excise may, if he is", the words The Committee of Commissioners of Central Excise may, if it is" shall be substituted, by the Finance Act, 2005. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 13-5-1993) by s.45 of the Finance Act, 1993 (38 of 1993). 35C. Orders of Appellate Tribunal :- . - (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2) The Appellate Tribunal may, at any time within 217["six months"] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it und er sub-section (1) and shall make such amendments if the mistake is brought to its notice by the 218[Commissioner of Central Excise] or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 219(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of Section 35-B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the 220[Commissioner of Central Excise] and the other party to the appeal. (4) 221 "Save as provided in the National Tax Tribunal Act, 2005", orders passed by the National Tax TribunalAppellate Tribunal on appeal shall be final. In section 35C, sub-section (2) the words ["four years"] shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 26-5-1995) by s.70 of the Finance Act, 1995 (22 of 1995). In section 35C, after sub-section (2), sub-section (2A) shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). In Sec. 35(c) the words "Save as provided in the National Tax Tribunal Act, 2005" shall be substituted by the National Tax Tribunal Act, 2005. 35D. Procedure of Appellate Tribunal :- . - (1) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its Customs Act, 1962 . 222[(2) ****] (3) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where - (a) 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 (b) the amount of fine or penalty involved, does not exceed 223 [ten lakh rupees]. Omitted (w.e.f. 26-5-1995) by s. 77 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 28-9-1996) for the words "one lakh rupees" by s. 80 of the Finance (No. 2) Act, 1996 (33 of 1996). 35E. Powers of Board or Commissioner of Central Excise] to pass certain orders. :- 13(1) The 1"Committee of Chief Commissioners of Central Excise" may, of its own motion, call for and examine the record of any proceeding in which a 1(Commissioner of Central Excise) as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such 1[Commissioner] 1[ o r any other Commissioner] to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the 230"Committee of Chief Commissioners of Central Excise"in itsorder. (2) The 231[Commissioner of Central Excise] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct 232"such authority or any Central Excise Officer subordinate to him" to apply to the 233[Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the 234[Commissioner of Central Excise] in his order. 235( 3 ) T h e 236"Committee of Chief Commissioners of Central Excise" or Commissioner of Central Excise, as the case may be, shall, where it is possible to do so, make order under sub-section (1) or sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under sub-section (1) or subsection (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the 237[Commissioner (Appeals)] within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard 238[Commissioner (Appeals)], as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B shall, so far as may be, apply to such application. 239[(5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. E xplanation. - For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question - (a) relating to the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 (5 of 1986), or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty of excise in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or (d) whether any goods fall under a particular heading or subheading of the 240 [the First Schedule and the Second Schedule] of the Central Excise Tariff Act, 1985 (5 of 1986), or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or (e) whether the value of any goods for the purposes of assessment of duty of excise shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act.] On and from the appointed day the amendments shall be made in section 35E of the Central Excises and Salt Act, 1944, by s. 34 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986) and by s 11 of the Customs and Central Excises Laws (Amendment) Act, 1988. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act. 1995 (22 of 1995). Inserted (w.e.f. 11-5-2001 )by s. 129 of the Finance Act, 2001 (14 of 2001). In Section 35E of the Central Excise Act, for the word "Board", occurring in sub-sections (1) words "Committee of Chief Commissioners of Central Excise" shall be substituted by the Finance Act, 2005 In section 35E sub-section (2), for the words "such authority", the words "such authority or any Central Excise Officer subordinate to him" shall be substituted by Taxation Laws (Amendment) Act, 2006. Substituted (w.e.f. 26 5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). In section 35E, sub-section (3), shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. In Section 35E of the Central Excise Act, for the word "Board", occurring in sub-sections (3) the words "Committee of Chief Commissioners of Central Excise" shallbe substituted by the Finance Act, 2005. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Inserted (To be brought into force from the date to be notified) by s. 11 of the Customs and Central Excise Laws (Amendment) Act, 1988 (29 of 1988). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). 35EA. Powers of revision of Board or Commissioner of Central Excise] in certain cases :- 22(1) The Board may, of its own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which a 2[Commissioner of Central Excise] has passed any decision or order [not being a decision or order passed under sub- section (2) of this section] of the nature referred to in sub-section (5) of section 35E for the purpose of satisfying itself as to correctness, legality or propriety of ( 2 ) T h e 244[Commissioner of Central Excise] may, of his own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order of the nature referred to in sub-section (5) of section 35E for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as he thinks fit. (3) (a) No decision or order under this section shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity of making representation and if, he so desires, of being heard in his defence. (b) Where the Board or, as the case may be, the 245 [Commissioner of Central Excise] is of the opinion that any duty of excise has not been levied or has been short-levied or short-paid or erroneously refunded, no order requiring the affected person to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed under this section unless such person is given notice within the time-limit specified in section 11A to show cause against the proposed order. (4) No proceedings shall be initiated under sub-section (1) or subsection (2) in respect of any decision or order after the expiry of a period of six months from the date of communication of such decision or order : Provided that in respect of any decision or order passed before the commencement of the Customs and Central Excise Laws (Amendment) Act, 1988, the provisions of this subsection shall have effect as if for the words "six months", the words "one year" were substituted. (5 ) Any person aggrieved by any decision or order passed under sub- section (1) or sub-section (2) may appeal to the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986), against such decision or order.] Inserted (To be brought into force from the date to be notified) by s. 12 of the Customs and Central Excise Laws (Amendment) Act, 1988 (29 of 1988). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). 35EE. Revision by Central Government. :- -2( 1 ) The Central Government may, on the application of any person aggrieved by any order passed under section 35A , where the order is of the nature referred to in the first proviso to subsection (1) of section 35B , annul or modify such order: 247[Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.] Explanation. - For the purposes of this sub-section, "order passed under section 35A " includes an order passed under that section before the commencement of section 47 of the Finance Act, 1984 against which an appeal has not been preferred before such commencement and could have been, if the said section had not c o m e into force, preferred after such commencement, to the Appellate Tribunal. 248[(1A) The Commissioner of Central Excise may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 35A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order.] (2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months. 249 [(3) An application under sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of, - (a) two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise officer in the case to which the application relates is one lakh rupees or less; (b) one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise officer in the case to which the application relates is more than one lakh rupees : Provided that no such fee shall be payable in the case of an application referred to in sub-section (1A).] ( 4 ) The Central Government may, of its own motion, annul or modify any order referred to in sub-section (1). (5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section, - (a) in any case in which an order passed under section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value; and (b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified. (6) Where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in section 11 A .] Inserted by s. 50 of the Finance Act, 1984 (21 of 1984). Inserted by s. 126 of the Finance Act, 1999 (27 of 1999). Substituted by S.126 of the Finance Act, 1444 (27 of 1999). 35F. Deposit, pending appeal, of duty demanded or penalty levied. :- - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the 1Commissioner (Appeals)) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the 251Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. 252 Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.] Substituted (W.e.f.26-51995) by S.70 of the Finance Act, 1945 (22 of 1945). Inserted (w.e.f. 11-5-2001) by S.130 of the Finance Act, 2001 (14 of 200l). 35G. Appeal to High Court :- . 253 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35H. Application to High Court :- 254 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35I. Power of High Court or Supreme Court to require statement to be amended :- 255 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35j. Case before High Court to be heard by not less than two judges :- 256 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35K. Decision of High Court or Supreme Court on the case stated :- (1)4T h e Supreme Court hearing any such case shall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded 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 arc necessary to dispose of the case in conformity with such judgment. 258(1A ) Where the High Court delivers a judgment in an appeal filed before it under section 35G, 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 259[reference t o 260an appeal to 261 the Supreme Court], which shall not include the fee for making the reference, shall be in the discretion of the Court. In Sec, 35K Sub-Sec.(1) the words "High Court or" shall be Omitted by the National Tax Tribunal Act, 2005. Inserted by "The Finance Act, 2003, w.e.f.1-7-2003 Substituted by "The Finance act, 2003" for "reference to the High Court or the Supreme Court" In Sec, 35K Sub-Sec.(2) words the "High Court or the" shall be Omitted by the National Tax Tribunal Act, 2005. 35L. Appeal to the Supreme Court :- 262A n appeal shall lie to the Supreme Court from - 263( a ) any judgment of the Court delivered (i) in an appeal made under section 35G; or . (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 35H, (b) any order passed 264 "before the establishment of the National Tax Tribunal" before 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. The petition of appeal under Section 35L of the Central Excises and Salt Act, 1944, shall, subject to the provisions of Sections 4, 5 and 12 of the Limitation Act, 1963 (36 of 1963) be presented within sixty days from the date of the order sought to be appealed against or within sixty days from the date on which the order sought to be appealed against is communicated to the appellant, whichever is later provided that in computing the said period, the time requisite for obtaining a copy of such order shall be excluded. Rules 1 to 7 of Order XX-A of the Supreme Court Rules, 1966 relating to appeals under Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969), shall, with necessary modifications and adaptations apply to appeals under this order. [Authority. - Order XX-B of the Supreme Court Rules, 1966] Substituted by "The Finance Act, 2003 In Sec. 35(L) Clause (B) words "before the establishment of the National Tax Tribunal" shall be inserted by the National Tax Tribunal Act, 2005. 35M. Hearing before Supreme Court :- . - (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under section 35L as they apply in the case of appeals from decrees of a High Court: Provided that nothing in this sub-section shall be deemed to affect the provisions of subsection (1) of section 35K or section 35N . (2) The costs of the appeal shall be in the discretion of the Supreme Court. (3) Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of the Supreme Court in the manner provided in section 35K in the case of a judgment of the High Court. 35N. Sums due to be paid notwithstanding reference, etc. :- - 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,265 "under this Act before the commencement of the National Tax Tribunal" sums due to the Government as a result of an order passed under sub-section (1) of section 35C shall be payable in accordance with the order so passed. In Sec. 35(N) the words "under this Act before the commencement of the National Tax Tribunal Act, 2005" shall be inserted by the National Tax Tribunal Act, 2005. 35O. Exclusion of time taken for copy :- . - In computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of 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. 35P. Transfer of certain pending proceedings and transitional provisions :- . - (1) Every appeal which is pending immediately before the appointed day before the Board under section 35 , as it stood immediately before that day, and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day: Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard. (2) Every proceeding which is pending immediately before the appointed day before the Central Government under section 36 , as it stood immediately before that day, and any matter arising out of o r connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it: Provided that if any such proceeding or matter relates to an order where - (a) 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; (b) the amount of fine or penalty determined by such order, does not exceed ton thousand rupees, such proceeding or matter shall continue to be dealt with by the Central Government as if the said section 36 had not been substituted : Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with that proceeding or matter, he may be re-heard. ( 3 ) Every proceeding which is pending immediately before the appointed day before the Board or the 266Commissioner of Central Excise] under section 35A , as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall continue to be dealt with by the Board or the 267 Commissioner of Central Excise], as the case may be, as if the said section had not been substituted. (4) Any person who immediately before the appointed day was authorised to appear in any appeal or proceeding transferred under sub-section (1) or sub-section (2) shall, notwithstanding anything contained in section 35Q, have the right to appear before the Appellate Tribunal in relation to such appeal or proceeding. This Act has boon repealed by section 2 of the Gold (Control) Repeal Act, 1990 (18 of 1990). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). 35Q. Appearance by authorised representative. :- (1) Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative. (2) For the purposes of this section, "authorised representative" means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being - (a) his relative or regular employee; or (b) any legal practitioner who is entitled to practise in any civil court in India; or (c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose. (3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Service - Croup A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service, shall be entitled to appear as an authorised representative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation, as the case may be. (4) No person, - (a) who has been dismissed or removed from Government service; or (b) who is convicted of an offence connected with any proceeding under this Act, the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act, 1968 (45 of 1968); or (c) who has become an insolvent, shall be qualified to represent a n y person under sub-section (1), for all times in the case of a p e rson referred to in clause (a), and for such time as the 268Commissioner of Central Excise] or the competent authority under the Customs Act, 1962 or the Gold (Control) Act, 1968269 , as the case may be, may, by order, determine in the case of a person referred to in clause (b), and for the period during which t h e insolvency continues in the case of a person referred to in clause (c). (5) If any person, - (a) who is a legal practitioner, is found guilty of mis-conduct in his professional capacity by any authority entitled to institute proceedings against him, an order passed by that authority shall have effect in relation to his right to appear before a Central Excise Officer or the Appellate Tribunal as it has in relation to his right to practise as a legal practitioner; (b) who is not a legal practitioner, is found guilty of mis-conduct in connection with any proceedings under this Act by the prescribed authority, the prescribed authority may direct that lie shall thenceforth be disqualified to represent any person under subsection (1). (6) Any order or direction under clause (b) of sub-section (4) or clause (b) of sub-section (5) shall be subject to the following conditions, namely :- (a) no such order or direction shall be made in respect of any person unless he has been given a reasonable opportunity of being heard; (b) any person against whom any such order or direction is made may, within one month of the making of the order or direction, appeal to the Board to have the order or direction cancelled; and (c) no such order or direction shall take effect until the expiration of one month from the making thereof, or, where an appeal has been preferred, until the disposal of the appeal. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). This Act has been repealed by section 2 of the Gold (Control) Repeal Act, 1990 (18 of 1990). 36. Definitions. :- - In this Chapter - (a) "appointed day" means the date of coming into force of the amendments to this Act specified in Part II of the Fifth Schedule to the Finance (No. 2) Act, 1980 ; (b) "High Court" means, - (i) in relation to any State, the High Court for that State; (ii) in relation to a Union Territory to which the jurisdiction of the High Court of a State has been extended by law, that High Court; (iii) in relation to the Union Territories of Dadra and Nagar Haveli and 270 Daman and Diu,] the High Court at Bombay; (iv) in relation to any other Union Territory, the highest court of civil appeal for that territory other than the Supreme Court of India; (c) "President" means the President of the Appellate Tribunal]. Substituted (w.e.f. 30-5-1987) by the Goa, Daman and Diu Reorganisation Act, 1987 (10 of 1987). CHAPTER 6B PRESUMPTION AS TO DOCUMENTS 36A. Presumption as to documents in certain cases :- . 271272 Where any document is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall, - (a) unless the contrary is proved by such person, presume - (i) the truth of the contents of such document; (ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that persons handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.] This Chapter heading was inserted [with effect from 11-10-1982 vide Notification No. GSR 597(E), dated 11-10-1982] by s. 5 read with Fifth Schedule to the Finance (No. 2) Act, 1980. This section was inserted by the Customs, Gold (Control ) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). 36B. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. :- - (1 ) Notwithstanding anything contained in any other law for the time being in force,- (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer print out"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules (2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely :- (a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of t h a t period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - ( a ) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, - (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.- For the purposes of this section, - (a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.] CHAPTER 8 SUPPLEMENTAL PROVISIONS 37. Power of Central Government to make rules. :- (1) The Central Government may make rules to carry into effect the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may - 1( i ) provide for determining under section 4 the nearest ascertainable equivalent of the normal price; (ia) having regard to the normal practice of the wholesale trade, define or specify the kinds of trade discount to be excluded from the value under section 4 including the circumstances in which and the conditions subject to which such discount is to be so excluded;] 6(ib)] provide for the assessment and collection of duties of excise, t h e authorities by whom functions under this Act are to be discharged, the issue of notices requiring payment, the manner in which the duties shall be payable, and the recovery of duty not paid; 6( i b b ) provide for charging or payment of interest on the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments;] 9(ic) provide for the remission of duty of excise leviable on any excisable goods, which due to any natural cause are found to be deficient in quantity, the limit or limits of percentage beyond which no such remission shall be allowed and the different limit or limits of percentage for different varieties of the same excisable goods or for different areas or for different seasons;] (ii) prohibit absolutely, or with such exceptions, or subject to such conditions as the Central Government thinks fit, the production or manufacture, or any process of the production or manufacture, of excisable goods, or of any component parts or ingredients or containers thereof, except on land or premises approved for the purpose; (iii) prohibit absolutely, or with such exceptions, or subject to such conditions, as the Central Government thinks fit, 9***] the transit of excisable goods from any part of 6I ndia] to any other part thereof; (iv) regulate the removal of excisable goods from the place where produced, stored or manufactured or subjected to any process of production or manufacture and their transport to or from the premises of a 280registered] person, or a bonded warehouse, or to a market; (v) regulate the production or manufacture, or any process of the production or manufacture, the possession, storage and sale of salt, and so far as such regulation is essential for the proper levy and collection of the duties imposed by this Act, or of any other excisable goods, or of any component parts or ingredients or containers thereof; (vi) provide for the employment of officers of the 281Government] to supervise the carrying out of any rules made under this Act; (vii) require a manufacturer or the licensee of a warehouse to p rovid e accommodation within the precincts of his factory or warehouse for officers employed to supervise the carrying out of regulations made under this Act and prescribe the scale of such accommodation; (viii) provide for the appointment, licensing, management and supervision of bonded warehouses and the procedure to be followed in entering goods into and clearing goods from such warehouses; (ix) provide for the distinguishing of goods which have been 282manufactured after registration], of materials which have been imported under licence, and of goods on which duty has been paid, or which are exempt from duty under this Act; (x) impose on persons engaged in the production or manufacture, storage or sale (whether on their own account or as brokers or commission agents) of salt, and, so far as such imposition is essential for the proper levy and collection of the duties imposed by this Act, (xi) require that excisable goods shall not be sold or offered or kept for sale in 283I ndia] except in prescribed containers, bearing a banderol, stamp or label of such nature and affixed in such manner as may be prescribed; ( x i i ) provide for the issue of 284registration certificate] and transport permits and the fees, if any, to be charged therefor : Provided that the fees for the licensing of the manufacture and refining of salt and saltpetre shall not exceed, in the case of each such licence, the following amounts, namely :- Licence to manufacture and refine saltpetre and to Rs. separate and purify salt in the process of such manufacture and refining ... ... ... 50 Licence to manufacture saltpetre ... ... 2 Licence to manufacture sulphate of soda (Kharinun) by solar heat in evaporating pans ... ... 10 Licence to manufacture sulphate of soda (Kharinun) by artificial heat... 2 Licence to manufacture other saline substances ... 2 (xiii) provide for the detention of goods, plant, machinery or material, for the purpose of exacting the duty, the procedure in connection with the confiscation, otherwise than under section 10 or section 28 , of goods in respect of which breaches of the Act or rules have been committed and the disposal of goods so detained or confiscated; (xiv) authorise and regulate the inspection of factories and provide for the taking of samples, and for the making of tests, of any substance produced therein, and for the inspection or search of any place or conveyance used for the production, storage, sale or transport of salt, and so far as such inspection or search is essential for the proper levy and collection of the duties imposed by this Act, of any other excisable goods; (xv) authorise and regulate the composition of offences against, or liabilities incurred under this Act or the rules made thereunder; (xvi) provide for the grant of a rebate of the duty paid on goods which are exported out of India or shipped for consumption on a voyage to any port outside India 285[including interest thereon]; 286* * * * *] 287(xvia) provide for the credit of duty paid or deemed to have been 288(xvib) provide for the giving of credit of sums of money with respect to raw materials used in the manufacture of excisable goods]; 289(xvic) provide for charging and payment of interest as the case may be, on credit of duty paid or deemed to have been paid on the goods used in, or in relation to, the manufacture of excisable goods where such credit is varied subsequently;] (xvii) exempt any goods from the whole or any part of the duty imposed by this Act; 290(xviia) provide incentives for increased production or manufacture of any goods by way of remission of, or any concession with respect to, duty payable under this Act;] (xviii) define an area no point in which shall be more than one hundred yards from the nearest point of any place in which salt is stored or sold by or on behalf of the Central Government, or of any factory in which saltpetre is manufactured or refined, and regulate the possession, storage and sale of salt within such area; (xix) define an area round any other place in which salt is manufactured, and regulate the possession, storage and sale of salt within such area; (xx) authorise the 291[Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] or 292Commissioners of Central Excise] appointed for the purposes of this Act to provide, by written instructions, for supplemental matters arising out of any rule made by the Central Government under this section; 293(xxi) provide for the publication, subject to such conditions as may be specified therein, of names and other particulars of persons who have been found guilty of contravention of any of the provisions of this Act or of any rule made thereunder;] 294(xxii) provide for the charging of fees for the examination of excisable goods intended for export out of India and for rendering any other service by a Central Excise Officer under this Act or the rules made thereunder;] 295(xxiii) specify the 296form and manner] in which application for refund shall be made under section 11B ; (xxiv) provide for the manner in which money is to be credited to the Fund; (xxv) provide for the manner in which the Fund shall be utilised for the welfare of the consumers; (xxvi) specify the form in which the account and records relating to the Fund shall be maintained;] 297(xxvii) specify the persons who shall get themselves registered under section 6 and the manner of their registration.] 298(xxviii) provide for the lapsing of credit of duty lying unutilised with the manufacturer of specified excisable goods on an appointed date and also for not allowing such credit to be utilised for payment of any kind of duty on any excisable goods on and from such date.] 299(2A) The power to make rules conferred by clause (xvi) of sub-section (2) shall include the power to give retrospective effect to rebate of duties on inputs used in the export goods from a date not earlier than the changes in the rates of duty on such inputs.] (3) In making rules under this section, the Central Government may provide that any person committing a breach of any rule shall, where no other penalty is provided by this Act, be liable to a penalty not exceeding 300fi v e thousand rupees]. 301( 4 ) Notwithstanding anything contained in sub-section (3), and without prejudice to the provisions of section 9 , in making rules under this section, the Central Government may provide that if any manufacturer, producer or licensee of a warehouse - (a) removes any excisable goods in contravention of the provisions of any such rule, or (b) does not account for all such goods manufactured, produced or stored by him, or ( c ) engages in the manufacture, production or storage of such goods without having applied for the 302[registration] required under section 6 , or 303(d) contravenes the provisions of any such rule with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the manufacturer, producer or licensee shall be liable to a penalty not exceeding the duty leviable on such goods or ten thousand rupees, whichever is greater;] 304( 5 ) Notwithstanding anything contained in sub-section (3), the Central Government may make rules to provide for the imposition upon any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or the rules made thereunder, a penalty 305 not exceeding the duty leviable on such goods or ten thousand rupees, whichever is greater]. Clause (i) was re-lettered as clause (ib) and that clause as so relettered and the clauses (i) and (ia) were inserted by s. 3 of the Central Excises and Salt (Amendment) Act, 1973 (22 of 1973). Inserted by s. 131 of the Finance Act, 1999 (27 of 1999). This clause was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/6/78-SRP (CCX), dated 19-6-1978] by s. 25 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Certain words were omitted by s. 2 and Sch. of the Taxation Laws (Extension to jammu and Kashmir) Act, 1954 (41 of 1954). This word was substituted for the words "the States" by s. 11 and Sch. IV of the Finance Act, 1950 (25 of 1950). this word was substituted by the A.O.1950. This word was substituted for the words "the States" by s. 11 and Sch. IV of the Finance Act, 1950 (25 of 1950). The proviso was omitted by s. 2 of the Central Excises and Salt (Amendment) Act, 1957 (49 of 1957). This clause was inserted by s. 51 of the Finance Act, 1986 (23 of 1986). paid on the goods used in, or in relation to the manufacture of excisable goods]; This clause was inserted by s. 96 of the Finance Act, 1987 (11 of 1987). This clause was inserted (w.e.f. 28-2-1982) by s. 48 of the Finance Act, 1982. These words were substituted (w.e.f. 1-1-1964) by s. 5 of the Central Boards of Revenue Act, 1963 (54 of 1963). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). This clause was inserted by s. 22 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Inserted by s. 6 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). Inserted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T), dated 19-9-1991] by s. 8 of the Central Excises and Customs Laws (Amendment) Act, 1991 (No. 40 of 1991). Substituted (w.e.f. 26-5-1995) by s. 78 of the Finance Act, 1995 (22 of 1995). Inserted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). This clause inserted and shall be deemed to have been inserted with effect from 16-3-1995 by s. 131 of the Finance Act, 1999 (27 of 1999). Inserted (w.e.f. 26-5-1995) by s. 78 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 12-5-2000) for the words "two thousand rupees and that any article in respect of which any such breach is committed shall be confiscated" by s. 108 of the Finance Act, 2000 (10 of 2000) This sub-section was inserted by s. 38 of the Finance Act, 1968 (19 of 1968). Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). Substituted (w.e.f. 12-5-2000) by s. 108 of the Finance Act, 2000 (10 of 2000). This sub-section was inserted by s. 22 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Substituted (w.e.f. 12-5-2000) by s. 108 of the Finance Act, 2000 (10 of 2000). 37A. Delegation of powers :- 3T h e Central Government may, by notification in the Official Gazette 2 direct that subject to such conditions, if any, as may be specified in the notification - (a) any power exercisable by the Board under this Act may be exercisable also by 3a 4Chief Commissioner of Central Excise] or a 4Commissioner of Central Excise]] empowered in this behalf by the Central Government; (b ) any power exercisable by a 4Commissioner of Central Excise] under this Act may be exercisable also by a 4Joint Commissioner of Central Excise] or an 312Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] empowered in this behalf by the Central Government; (c) any power exercisable by a 313Joint Commissioner of Central Excise] under this Act may be exercisable also by an 314Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] empowered in this behalf by the Central Government; and (d) any power exercisable by an 315 Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under this Act may be exercisable also by a gazetted officer of Central Excise empowered in this behalf by the Board.] This section was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/6/78-SRP-(CCX), dated 19- 6-1978] by s. 26 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Substituted [w.e.f. 1-7-1988 vide Notification No. 18/88-C.E. (N.T.), dated 29-6-1988] for the words "a Collector of Central Excise" by s.l4 of the Customs and Central Excises Laws (Amendment) Act, 1988 (29 of 1988). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). 37B. Instructions to Central Excise Officers. :- - 316T h e Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board: Provided that no such orders, instructions or directions shall be issued- (a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the 317 Commissioner of Central Excise (Appeals)] in the exercise of his appellate functions.] Inserted by s. 7 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). 37C. Service of decisions, orders, summons, etc. :- 318 (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due, to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1).] Inserted by s. 7 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). 37D. Rounding off of duty, etc. :- 319 The amount of duty, interest, penalty, fine or any other sum payable, and the amount of refund or any other sum due, under the provisions of this Act shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rupee consisting of paise then, if such part is fifty paise or more, it shall be increased to one rupee and if such part is less than fifty paise it shall be ignored.] Inserted by Section 65 of the Finance Act, 1990 (12 of 1990). 37E. Publication of information respecting persons in certain cases :- 320 (1) If the Central Government is of opinion that it is necessary or expedient in the public interest to publish the names of any person and any other particulars relating to any proceedings or prosecutions under this Act in respect of such person, it may cause to be published such names and particulars in such manner as it thinks fit. (2) No publication under this section shall be made in relation to any penalty imposed under this Act until the time for presenting an appeal to the Commissioner (Appeals) under section 35 or the Appellate Tribunal under section 35B, as the case may be, has expired without an appeal having been presented or the appeal, if presented, has been disposed of. Explanation -In the case of a firm, company or other association of persons, the names of the partners of the firm, directors, managing agents, secretaries and treasurers or managers of the company, or the members of the association, as the case may be, may also be published if, in the opinion of the Central Government, circumstances of the case justify it. After section 37D section 37E shall be inserted by Taxation Laws (Amendment) Act, 2006. 38. Publication of rules and notifications and laying of rules before Parliament. :- 321(1) All rules made and notifications issued under this Act shall be published in the Official Gazette. 322(2) Every rule made under this Act, every notification issued under 323 section 3A , section 4A ,] sub-section (1) of section 5A and section 11C and every order made under sub-section (2) of section 5A , other than an order relating to goods of strategic, secret, individual or personal nature, shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or order, or both Houses agree that the rule should not be made or notification or order should not be issued or made, the rule or notification or order shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification or order.] This section was substituted by s. 4 of the Central Excises and Salt (Amendment) Act, 1973 (22 of 1973). Substituted (w.e.f. 26-5-1995) by s. 79 of the Finance Act, 1995 (22 of 1995). Inserted (w.e.f. 14-5-1997) by s. 84 of the Finance Act, 1997 (26 of 1997). 38A. Effect of amendments, etc., of rules, notifications or orders. :- 324325 Where any rule, notification or order made or issued under this Act or any notification or order issued under such rule, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not - (a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation of any rule, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, notification or order so amended, repealed, superseded or rescinded; or (d) affect any penalty, forfeiture or punishment incurred in respect o f any offence committed under or in violation of any rule, notification or order so amended, repealed, superseded or rescinded; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the rule, notification or order, as the case may be, had not been amended, repealed, superseded or rescinded. Inserted (w.e.f. 11-5-2001) by s. 131 of the Finance Act, 2001 (14 of 2001). Any action taken or anything done or omitted to be done under any rule, notification or order made under Central Excise Act, are declared to be valid by the following s. 132 of the Finance Act, 2001 (14 of 2001). 132. Validation of certain action taken. - Any action taken or anything done or omitted to be done or purporting to have been taken or done or omitted to be done under any rule, notification or order made or issued under the Central Excise Act, or any notification or order issued under such rule at any time during the period commencing on and from the 28th day of February, 1944 and ending with the day, the Finance Bill, 2001 receives the assent of the President, shall be deemed to be and to always have been, for all purposes, as validly and effectively taken or done or omitted to be done as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, (a) any action taken or anything done or omitted to be done, during the said period in respect of any excisable goods under any of such rule, notification or order, shall be deemed to be and shall be deemed to always have been, as validly taken or done or omitted to be done as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material limes; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for any action taken or anything done or omitted to be done, in respect of any excisable goods under any of such rule, notification or order, and no enforcement shall be made by any court, of any decree or order relating to such action taken or anything done or omitted to be done as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material times; (c) recovery shall be made of all such amounts of duty or interest or penalty or fine or credit of duty in respect of inputs or capital goods or other charges which have n o t been collected or, as the case may be, which have been refunded, as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material times. Explanation. - For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. 39. Repeal of enactments. :- [Repealed by the Repealing and Amending Act, 1947 (2 of 1948) s. 2 and Sch.] 40. Protection of action taken under the Act. :- 326 (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in pursuance of this Act or any rule made thereunder. (2) No proceeding, other than a suit, shall be commenced against the Central Government or any officer of the Central Government or a State Government for anything done or purported to have been done in pursuance of this Act or any rule made thereunder, without giving the Central Government or such officer a months previous notice in writing of the intended proceeding and of the cause thereof or after the expiration of three months from the accrual of such cause.] Substituted by section 5 of the Central Excises and Salt (Amendment) Act, 1973 (22 of 1973). SCHEDULE 1 THE SCHEDULE 327 Omitted [w.e.f. 28-2-1986 vide M.F. (D.R.) Notification No. 10/86-C.E., dated 5-2-1986] by s. 4 of the Central Excise Tariff Act, 1985 (5 of 1986). **** SCHEDULE 2 THE SCHEDULE [See section 8 ] CENTRAL EXCISE ACT, 1944 1 of 1944 [24th February, 1944] CONTENTS CHAPTER 1 :- PRELIMINARY 1. Short title, extent and commencement 2. Definitions 2A. References of certain expressions CHAPTER 2 :- LEVY AND COLLECTION OF DUTY 3. duties Specified in First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levie 3A. Omitted by Finance Act, 2001 4. Valuation of excisable goods for purposes of charging of duty of excise 4A. Valuation of excisable goods with reference to retail sale price 5. Remission of duty on goods found deficient in quantity 5A. Power to grant exemption from duty of excise 6. Registration of certain persons 7. Omitted by S. 113 of The Finance Act, 1992 8. Restriction on possession of excisable goods 9. Offences and penalties 9A. Certain offences to be non-cognizable 9AA. Offences by companies 9B. Power of Court to publish name, place of business, etc of persons convicted under the Act. 9C. Presumption of culpable mental state 9D. Relevancy of statements under certain circumstances 9E. Application of section 562 of the Code of Criminal Procedure, 1898, and of the Probation of Offenders Act, 1958 10. Power of Courts to order forfeiture 11. Recovery of sums due to Government 11A. Recovery of duties not levied or not paid or short levied or short-paid or erroneously refunded. 11AA. Interest on delayed payment of duty 11AB. Interest on delayed payment of duty. 11AC. Penalty for short-levy or non-levy of duty in certain cases 11B. Claim for refund of duty 11BB. Interest on delayed refunds 11C. Power not to recover duty of excise not levied or short-levied as a result of general practice. 11D. Duties of excise collected from the buyer to be deposited with the Central Government 11DD. Interest on the amounts collected in excess of the duty 11DDA. Provisional attachment to protect revenue in certain cases 12. Application of the provisions of Act No. 52 of 1962 to Central Excise Duties. CHAPTER 2A :- INDICATING AMOUNT OF DUTY IN THE PRICE OF GOODS, ETC., FOR PURPOSE OF REFUND AND CREDITING CERTAIN AMOUNTS TO THE FUND 12A. Price of goods to indicate the amount of duty paid thereon 12AA. Job work in article of jewellery 12B. Presumption that the incidence of duty has been passed on to the buyer 12C. Consumer Welfare Fund 12D. Utilisation of the Fund CHAPTER 3 :- POWERS AND DUTIES OF OFFICERS AND LANDHOLDERS 12E. Powers of Central Excise Officers 13. Power to arrest 14. Power to summon persons to give evidence and produce documents in inquiries under this Act 14A. Special audit in certain cases 14AA. Special audit in cases where credit of duty availed or utilised is not within the normal limits, etc. 15. Officers required to assist Central Excise Officers 1 6 . Owners or occupiers of land to report manufacture of contraband excisable goods 17. Punishment for connivance at offences 18. Searches and arrests how to be made 19. Disposal of persons arrested 20. Procedure to be followed by officer-in-charge of police station. 21. Inquiry how to be made by Central Excise Officers against arrested persons forwarded to them under section 19. 22. Vexatious search, seizure, etc., by Central Excise Officer 23. Failure of Central Excise Officer in duty CHAPTER 3A :- ADVANCE RULINGS 23A. Definitions 23B. Vacancies, etc., not to invalidate proceedings 23C. Application for advance ruling 23D. Procedure on receipt of application 23E. Applicability of advance ruling. 23F. Advance ruling to be void in certain circumstances. 23G. Powers of Authority 23H. Procedure of Authority CHAPTER 4 :- TRANSPORT BY SEA 24. Penalties for carrying excisable goods in certain vessels 25. Exceptions. 26. Power of stoppage, search and arrest 27. Penalties for resisting officer 28. Confiscation of vessel and cargo 29. jurisdiction 30. Power to exempt from operation of this Chapter CHAPTER 5 :- SETTLEMENT OF CASES 31. Definitions. 32. Customs and Central Excise Settlement Commission 32A. jurisdiction and powers of Settlement Commission 32B. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances 32C. Power of Chairman to transfer cases from one Bench to another 32D. Decision to be by majority 32E. Application for settlement of cases 32F. Procedure on receipt of an application under Section 32E 32 G . Power of Settlement Commission to order provisional attachment to protect revenue. 32H . Power of Settlement Commission to reopen completed proceedings. 32I. Powers and procedure of Settlement Commissions. 32J. Inspection, etc., of reports 32K. Power of Settlement Commission to grant immunity from prosecution and penalty 32L. Power of Settlement Commission to send a case back to the Central Excise Officer 32M. Order of settlement to be conclusive 32N. Recovery of sums due under order of settlement 32O. Bar on subsequent application for settlement in certain cases 32P. Proceedings before Settlement Commission to be judicial proceedings 32PA. Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission. CHAPTER 6 :- ADJUDICATION OF CONFISCATIONS AND PENALTIES 33. Power of adjudication 33A. Adjudication procedure 34. Option to pay fine in lieu of confiscation 3 4 A . Confiscation or penalty not to interfere with other punishments. CHAPTER 6A :- APPEALS 35. Appeals to Commissioner (Appeals)]. 35A. Procedure in appeal 35B. Appeals to the Appellate Tribunal 35C. Orders of Appellate Tribunal 35D. Procedure of Appellate Tribunal 35E. Powers of Board or Commissioner of Central Excise] to pass certain orders. 35EA. Powers of revision of Board or Commissioner of Central Excise] in certain cases 35EE. Revision by Central Government. 35F. Deposit, pending appeal, of duty demanded or penalty levied. 35G. Appeal to High Court 35H. Application to High Court 35I. Power of High Court or Supreme Court to require statement to be amended 35j. Case before High Court to be heard by not less than two judges 35K. Decision of High Court or Supreme Court on the case stated 35L. Appeal to the Supreme Court 35M. Hearing before Supreme Court 35N. Sums due to be paid notwithstanding reference, etc. 35O. Exclusion of time taken for copy 35P. Transfer of certain pending proceedings and transitional provisions 35Q. Appearance by authorised representative. 36. Definitions. CHAPTER 6B :- PRESUMPTION AS TO DOCUMENTS 36A. Presumption as to documents in certain cases 36B. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. CHAPTER 8 :- SUPPLEMENTAL PROVISIONS 37. Power of Central Government to make rules. 37A. Delegation of powers 37B. Instructions to Central Excise Officers. 37C. Service of decisions, orders, summons, etc. 37D. Rounding off of duty, etc. 37E. Publication of information respecting persons in certain cases 38. Publication of rules and notifications and laying of rules before Parliament. 38A. Effect of amendments, etc., of rules, notifications or orders. 39. Repeal of enactments. 40. Protection of action taken under the Act. SCHEDULE 1 :- THE SCHEDULE SCHEDULE 2 :- THE SCHEDULE SCHEDULE 3 :- THE SCHEDULE CENTRAL EXCISE ACT, 1944 1 of 1944 [24th February, 1944] An Act to consolidate and amend the law relating to Central Duties of Excise. Whereas it is expedient to consolidate and amend the law relating to central duties of excise' on goods manufactured or produced in certain parts of India. It is hereby enacted as follows:CHAPTER 1 PRELIMINARY 1. Short title, extent and commencement : 1(1) This Act may be called the Central Excise Act, 1944 ]. (2)It extends2to the whole of India3[***]. (3) It shall come into force on such date4 as the Central Government may, by notification in the Official Gazette, appoint in this behalf. Substituted (w.e.f. 28-9-1996) by s. 71 of the Finance (No. 2) Act, 1996 (33 of 1996). Vide Notification No. 166/87-C.E., dated 11-6-1987, the Central Excises and Salt Act, 1944 extends to the designated area in the Continental Shelf and Exclusive Economic Zone of India as declared by the Notification of the C.O.I., Ministry of External Affairs, No. S.O. 429 (E), dated 18-7-1986. The words "except the State of Jammu and Kashmir" were omitted by s. 2 and Sch. of the Taxation Laws (Extension to Jammu and Kashmir) Act, "1954 (41 of 1954). This Act came into force on 28th February, 1944 vide F.D. (C.R.) Notification No. III-D.C. Exc,, dated 26th February, 1944. This Act was extended to Goa, Daman and Diu by Regulation 12 of 1962, to Dadra and Nagar Haveli by Regulation 6 of 1963; to Laccadive, Minicoy and Amindivi Islands by Regulation 8 of 1965 and with effect from 1-2-1983 to the State of Sikkim vide Notification No. 9/83-C.E., dated 1-2-1983. 2. Definitions : In this Act, unless there is anything repugnant in the subject or context, 7[(a) "Adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), 6[Commissioner of Central Excise (Appeals)] or Appellate Tribunal; (aa) "Appellate Tribunal" means the Customs, Excise and 8[Service Tax] Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962)]; 8(aaa) "broker" or "commission agent" means a person who in the ordinary course of business makes contracts for the sale or purchase of excisable goods for others; 6[(b) "Central Excise Officer" means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise 10[Joint Commissioner of Central Excise] -15Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act.] (c) "curing" includes wilting, drying, fermenting and any process for rendering an unmanufactured product fit for marketing or manufacture; (d) "excisable goods" means goods specified in the 12[13[the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)] as being subject to a duty of excise14and includes salt; (e) "factory" means any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on; 15[(ee) "Fund" means the Consumer Welfare Fund established under section 12C ;] 16[(f) "manufacture" includes any process, (i) incidental17o r ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of 18the First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to 19["manufacture; or"] and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;] 20"(iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer,". 21"(ff) National Tax Tribunal means the National Tax Tribunal established under Sec.3 of the National Tax Tribunal Act, 2005. (g) "prescribed" means prescribed by rules made under this Act; (h) "sale" and "purchase", with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration; 22(i)* * * 23(J)* * * 24 (JJ)* * * (k) "wholesale dealer" means a person who buys or sells excisable goods wholesale for the purpose of trade or manufacture, and includes a broker or commission agent who, in addition to making contracts for the sale or purchase of excisable goods for others, stocks such goods belonging to others as an agent for the purpose of sale. Inserted by 5th schedule to Finance (No. 2) Act, 1980 (44 of 1980) with effect from 11-10-1982 vide Notification G.S.R. No. 597 (E), dated 11-10-1982. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 199.5 (22 of 1995). Substituted by the Finance Act, 2003, for the words "Gold (Control)" Re-lettered by 5th Schedule to Finance (No. 2) Act, 1980 (44 of 1980) with effect from 11-10-1982 vide Notification G.S.R. No. 597 (E), dated 11-10-1982. Substituted (w.e.f. 26-5-1995) by s. 71 of the Finance Act, 1995 (22 of 1995). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). the expressions "duty", "duties", "duty of excise" and "duties of excise" shall, save as otherwise expressly provided in Central Excise Act, 1944 and unless the context otherwise requires, be construed to include a reference to the special duty of excise specified in the Second Schedule to the Central Excise Tariff Act, 1985. Inserted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991] by s. 2 of the Central Excise and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted [with effect from 28-2-1986 vide M.F. (D.R.) Notification No. 10/86-C.E., dated 5-2- 1986] by s. 4 of the Central Excise Tariff Act, 1985 (5 of 1986). Inserted by s. 120 of the Finance Act, 1999 (27 of 1999). Substituted by s. 120 of the Finance Act, 1999 (27 of 1999). In Section 2, clause (f) in sub-clause (ii) the word "manufacture" shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted by "The Finance Act, 2003" In Sec. 2 Sub. Sec.(f) words "National Tax Tribunal shall be inserted by the National Tax Tribunal Act,2005. Omitted (w.e.f. 28-9-1996) by s. 72 of the Finance (No. 2) Act, 1996 (33 of 1996). Clause (jj) was omitted by s. 11 and Sch. IV of the Finance Act, 1950 (25 of 1950). 2A. References of certain expressions : . - 25 In this Act, save as otherwise expressly provided and unless t h e context otherwise requires, references to the expressions "duty", "duties", "duty of excise" and "duties of excise" shall be construed to include a reference to "Central Value Added Tax (CENVAT)] Inserted (w.e.f. 12-5-2000) by s. 91 of the Finance Act, 2000 (10 of 2000). CHAPTER 2 LEVY AND COLLECTION OF DUTY CHAPTER 2 LEVY AND COLLECTION OF DUTY 3. duties Specified in First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levie : . 4(1) 10[There shall be levied and collected in such manner as may be prescribed, (a) 29[a duty of excise to be called the Central Value Added Tax (CENVAT)] on all "excisable goods" 30["(excluding goods produced or manufactured in special economic zones)"] which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986);] (b) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods 31["(excluding goods produced or manufactured in special economic zones)"] specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule.] 32[Provided that the duties of excise which shall be levied and collected on any 33[excisable goods which are produced or manufactured, (i) in a 34[free trade zone 35[* * * * ]] and brought to any other place in India; or (ii) by a hundred per cent export-oriented undertaking and 36[brought to any other place in India], shall be an amount equal to] the aggregate of the duties of customs which would be leviable 37[under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force], on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwitnstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). 38[Explanation 1. - Where in respect of any such like goods, any duty of customs leviable for the time being in force is leviable at different rates, then, 39[Explanation 2. - In this proviso,- 40(i) "free trade zone" means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf. (ii) "hundred per cent export-oriented undertaking" means an undertaking which has been approved as a hundred per cent export- oriented undertaking by the Board appointed in this behalf by the Central Government in exercise of the powers conferred by section 14 of the Industries (Development and Regulation) Act, 1951 (65 of 1951), and the rules made under that Act.]; 41[(iii) "special economic zone" means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf.]. 42[(1A) The provisions of sub-section (1) shall apply in respect of a l l excisable goods other than salt which are produced or manufactured in India by, or on behalf of. Government, as they apply in respect of goods which are not produced or manufactured by Government.] (2) The Central Government may, by notification in the Official Gazette, fix, for the purpose of levying the said duties, tariff values of any articles enumerated, either specifically or under general headings, in the 4344First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)] as chargeable with duty ad valorem and may alter any tariff values for the time being in force. 45 (3) Different tariff values may be fixed (a) for different classes or descriptions of the same excisable goods; or (b) for excisable goods of the same class or description (i) produced or manufactured by different classes of producers or manufacturers; or (ii) sold to different classes of buyers: Provided that in fixing different tariff values in respect of excisable goods falling under sub-clause (i) or sub-clause (ii), regard shall be had to the sale prices charged by the different classes of producers or manufacturers or, as the case may be, the normal practice of the wholesale trade in such goods.] The action taken under Section 3 of the Central Excise Act, 1944, have been declared to be valid by the following s. 109 of the Finance Act, 2000 (10 of 2000) : 109. Validation of action taken under section 3 of Act 1 of 1944. - Any action taken or anything done or purporting to have been taken or done under sub-section (1) of section 3 of the Central Excise Act, as amended by clause (ii) of section 88 at any time during the period commencing on and from the 11th day of May, 1982 and ending with the day, the Finance Act, 2000 receives the assent of the President shall be deemed to be and to always have been, lor all purposes, as validly and effectively taken or done as if the amendment made by clause (ii) of section 88 had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, (a) all duties of excise levied, assessed or collected during the said period on any excisable goods under the Central Excise Act, shall be deemed to be and shall be deemed to always have been, as validly levied, assessed or collected as if the amendment made by clause (ii) of section 88 had been in force at all material times; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for the refund of duties of excise, and no enforcement shall be made by any court of any decree or order directing the refund of, any such duties of excise which have been collected and which would have been validly collected if the amendment made by clause (ii) of section 88 had been in force at all material times; (c) recovery shall be made of all such duties of excise which have not been collected or, as the case may be, which have been refunded but which would have been collected or, case may be, would not have been refunded, if the amendment made by cl--ise (ii) of section 88 had been in force at all material times. Explanation.- For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. Substituted by s. 121 of the Finance Act, 1999 (27 of 1999). Substituted (w.e.f. 12-5-2000) by s. 92 of the Finance Act, 2000 (10 of 2000). In Section 3, sub-section (1), in clause (a)and (b) after the word ["excisable goods"] the brakets and words shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. This proviso and Explanations were inserted (w.e.f. 1.3.1982) by s. 46 of the Finance Act, 1982 (14 of 1982). Substituted by s. 45 of the Finance Act, 1984 (21 of 1984). Substituted (w.e.f. 11-5-2001)bys. 120 of the Finance Act, 2001 (14 of 2001). In Section 3, sub-section (1), in the proviso, clause (i) the word ["or special economic zone"] shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 11-5-2001) by s. 120 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 11-5-1982) by s. 92 of the Finance Act, 2000 (10 of 2000). Substituted by s. 45 of the Finance Act, 19S4 (21 of 1984). In Section 3, sub-section (1), in the proviso, Explanation 2 for clause (i) shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Inserted (w.e.f. 11-5-2001) by s. 120 of the Finance Act, 2001 (14 of 2001). This sub-section was substituted (with effect from 1st October, 1963) by s. 3 of the Sea Customs and the Central Excises and Salt (Amendment) Act, 1963 (30 of 1963). Substituted [with effect from 28-2-1986 vide M.F. (D.R.) Notification No. 10/86-C.E., dated 5-2- 1986; by s. 4 of the Central Excise Tariff Act, 1985 (5 of 1986). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). This sub-section was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/78-SRP-(CCX), dated 19-6-1978] by s. 19 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). 3A. Omitted by Finance Act, 2001 : 46 * * * Omitted (w.e.f. 11-5-2001) by s. 121 of the Finance Act, 2001. 4. Valuation of excisable goods for purposes of charging of duty of excise : . 2The section 4 prior to its substitution read as under: [4. Valuation of excisable goods for purposes of charging of duty of excise. - (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value, shall, subject to the other provisions of this section, be deemed to be (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: Provided that - (i) where, in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers; [(ia) where the price at which such goods are ordinarily sold by the assessee is different for different places of removal, each such price shall, subject to the existence of other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such place of removal;] (ii) where such goods are sold by the assessee in the course of wholesale trade for delivery at the time and place of removal at a price fixed under any law for the time being in force or at a price, being the maximum, fixed under any such law, then, notwithstanding anything contained in clause (iii) of this proviso, the price or the maximum price, as the case may be, so fixed, shall, in relation to the goods so sold, be deemed to be the normal price thereof; (iii) where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers (being related persons), who sell such goods in retail; (b) where the normal price of such goods is not ascertainable for the reason, that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2) Where, in relation to any excisable goods the price thereof for delivery at the place of removal is not known and the value thereof is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery shall be excluded from such price. (3) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under subsection (2) of section 3. (4) For the purposes of this section, - (a) "assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) "place of removal" means - (i) a factory or any other place or premises of production or manufacture of the excisable goods; [*****] (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; [(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory and,] from where such goods are removed; [(ba) "time of removal", in respect of goods removed from the place of remove. referred to in sub-clause (iii) of clause (b), shall be deemed to be the time at which such goods are cleared from the factory;] (i; "related person" means a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee, and any sub-distributor of such distributor. Explanation. - In this clause "holding company", "subsidiary company" and "relative" have the same meanings as in the Companies Act, 1956 (1 of 1956); (d) "value", in relation to any excisable goods, - (i) where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. - In this sub-clause, "packing" means the wrapper, container, bobbin, pirn, spool, reel or warp beam or any other thing in which or on which the excisable goods are wrapped, contained or wound; (ii) docs not include the amount o f the duty of excise, sales tax and other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale. [Explanation. - For the purposes of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be the sum total of - (a) the effective duty of excise payable on such goods under this Act; and (b) the aggregate of the effective duties of excise payable under other Central Acts, if any, providing for the levy of duties of excise on such goods, and the effective duty of excise on such goods under each Act referred to in clause (a) or clause (b) shall be, - (i) in a case where a notification or order providing for any exemption (not being an exemption for giving credit with respect to, [or reduction of duty of excise under such Act on such goods equal to, any duty of excise under such Act, or the additional duty under section 3 of the Customs Tariff Act, 1975 (51 of 1975), already paid] on the raw material or component parts used in the production or manufacture of such goods) from the duty of excise under such Act is for the time being in force, the duty of excise computed with reference to the rate specified in such Act, in respect of such goods as reduced so as to give full and complete effect to such exemption; and (ii) in any other case, the duty of excise computed with reference to the rate specified in such Act in respect of such goods.] (e) "wholesale trade" means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail.]. (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; (b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. 2[Explanation. For the removal of doubts, it is hereby declared that the price-cum-duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods.;] (2) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under subsection (2) of section 3 . (3) For the purpose of this section, (a) "assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) persons shall be deemed to be "related" if (i) they are inter-connected undertakings; (ii) they are relatives; (iii) amongst them the buyer is a relative and a distributor of the assessee, or a sub-distributor of such distributor; or (iv) they are so associated that they have interest, directly or indirectly, in the business of each other. Explanation. - In this clause - (i) "inter-connected undertakings" shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (64 of 1969); and (ii) "relative" shall have the meaning assigned to it in clause (41) of section 2 of the Companies Act, 1956 (1 of 1956); (c) "place of removal" means (i) a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without 49[payment of duty;] 50(iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory,; 51 [(cc) "time of removal", in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time at time at which such goods are cleared from the factory;.] (d) "transaction value" means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods.] The section 4 was Substituted (w.e.f. 1-7-2000) by s. 94 of the Finance Act, 2000 (10 of 2000). Substituted by the Finance Act, 2003, for "payment of duty,". Inserted by The Finance Act, 2003 4A. Valuation of excisable goods with reference to retail sale price : 52(1) The Central Government may, by notification in the Official Gazette, specify any goods, in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made thereunder or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods, to which the provisions of subsection (2) shall apply. (2) Where the goods specified under sub-section (1) are excisable goods and are chargeable to duty of excise with reference to value, then, notwithstanding anything contained in section 4 , such value shall be deemed to be the retail sale price declared on such goods less such amount of abatement, if any, from such retail sale price as the Central Government may allow by notification in the Official Gazette. (3) The Central Government may, for the purpose of allowing any abatement under sub-section (2), take into account the amount of duty of excise, sales tax and other taxes, if any, payable on such goods. 53 (4) Where any goods specified under sub-section (1) are excisable goods and the manufacturer (a) removes such goods from the place of manufacture, without declaring the retail sale price of such goods on the packages or declares a retail sale price which is not the retail sale price as required to be declared under the provisions of the Act, rules or other law as referred to in subsection (1); or (b) tampers with, obliterates or alters the retail sale price declared on the package of such goods after their removal from the place of manufacture, then, such goods shall be liable to confiscation and the retail sale price of such goods shall be ascertained in the prescribed manner and such price shall be deemed to be the retail sale price for the purposes of this section. Explanation 1 For the purposes of this section, "retail sale price" means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like and the price is the sole consideration for such sale: Provided that in case the provisions of the Act, rules or other law as referred to in sub-section (1) require to declare on the package, the retail sale price excluding any taxes, local or otherwise, the retail sale price shall be construed accordingly. Explanation 2. For the purposes of this section, (a) where on the package of any excisable goods more than one retail sale price is declared, the maximum of such retail sale prices shall be deemed to be the retail sale price; (b) where the retail sale price, declared on the package of any excisable goods at the time of its clearance from the place of manufacture, is altered to increase the retail sale price, such altered retail sale price shall be deemed to be the retail sale price; (c) where different retail sale prices are declared on different packages for the sale of any excisable goods in packaged form in different areas, each such retail sale price shall be the retail sale price for the purposes of valuation of the excisable goods intended to be sold in the area to which the retail sale price relates.. Inserted (w.e.f. 14-5-1497) by s. 82 of the Finance Act, 1997 (26 of 1997). Substituted by the Finance Act, 2003 5. Remission of duty on goods found deficient in quantity : 54 (1) The Central Government may, by rules made under this section, provide for remission of duty of excise leviable on any excisable goods which due to any natural cause are found to be deficient in quantity. (2) Any rules made under sub-section (1) may, having regard to the nature of the excisable goods or of processing or of curing thereof, the period of their storage or transit and other relevant considerations, fix the limit or limits of percentage beyond which no such remission shall be allowed : Provided that different limit or limits of percentage may be fixed for different varieties of the same excisable goods or for different areas or for different seasons.] This section was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/6/78-SRP (CCX), dated 19- 6-1978] by s. 20 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). 5A. Power to grant exemption from duty of excise : 2(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable-thereon : Provided that, unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured (i) in a 3[free trade zone or a 57[* * * *] and brought to any other place in India; or (ii) by a hundred per cent export-oriented undertaking and 58[brought to any place in India]. Explanation. - In this proviso, 59[free trade zone", 60[* * * *] and "hundred per cent export-oriented undertaking" shall have the same meanings as in Explanation 2 to sub-section (1) of section 3. 61"(1A) For the removal of doubts, it is hereby declared that where a n exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods." 62(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from payment of duty of excise, under circumstances of an exceptional nature to be stated in such order, any excisable goods on which duty of excise is leviable. 63(2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2). insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be. (3) An exemption under sub-section (1) or sub-section (2) in respect of any excisable goods from any part of the duty of excise leviable thereon (the duty of excise leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any excisable goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of excise chargeable on such goods shall in no case exceed the statutory duty. Explanation. - "Form or method", in relation to a rate of duty of excise means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable : (4) Every notification issued under sub-rule (1), and every order made under sub-rule (2), of rule 8 of the Central Excise Rules, 1944, and in force immediately before the commencement of the Customs and Central Excises Laws (Amendment) Act, 1988 (29 of 1988) shall be deemed to have been issued or made under the provisions of this section and shall continue to have the same force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this section.] 64[(5) Every notification issued under sub-section (1) 65 "[or subsection (2A)"] shall, - (a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette; (b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations, Customs and Central Excise, New Delhi, under the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963). (6) Notwithstanding anything contained in sub-section (5), where a notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said notification comes into force.] Inserted (w.e.f. 1-7-1988 vide Notification No. 18/88-C.E. (N.T.), dated 29-6-1988) by s. 9 of the Customs and Central Excises Laws (Amendment) Act, 1988 (29 of 1988). Substituted (w.e.f. 11-5-2001) by s. 122 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 11-5-2001) by s. 122 of the Finance Act 2001 (14 of 2001). In Section 5A, sub-section (1), in the proviso, clause (i) and Explanation 2 for the words ["or a special econpmic zone"] shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. In Section 5-A of the Central Excise Act, 1944 (1 of 1944) (hereinafter referred to as the Central Excise Act), after sub-section (1), the following sub-section shall be inserted, namely: "(1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods.". by the Finance Act, 2005 Substituted by the Finance Act, 2003 In Section 5A, after sub-section (2), sub-section (2A) shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Inserted (w.e.f, 1-8-1998) by s. 106 of the Finance (No. 2) Act, 1998 (21 of 1998). In Section 5A, sub-section (5), after the words "sub-section (1) the words ["or sub-section (2A)"] shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 6. Registration of certain persons : 66Any prescribed person who is engaged in (a) the production or manufacture or any process of production or manufacture of any specified goods included in the 67[the First Schedule and the Second Schedule to the Central Excise Tariff Act, (b) the wholesale purchase or sale (whether on his own account or as a broker or commission agent) or the storage of any specified goods included in 68 [the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), shall get himself registered with the proper officer in such manner as may be prescribed.] Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). Substituted by S.119 of the Finance Act, 1999 (27 of 1999). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). 7. Omitted by S. 113 of The Finance Act, 1992 : 69 * * * * Omitted (w.e.f. 14-5-1992) by s. 113 of the Finance Act 1992 (18 of 1992). 8. Restriction on possession of excisable goods : . - From such date as may be specified in this behalf by the Central Government by notification in the Official Gazette, no person shall, except as provided by rules made under this Act, have in his possession 70[any goods specified in the Second Schedule ]71 in excess of such quantity as may be prescribed for the purposes of this section as the maximum amount of such goods or of any variety of such goods which may be possessed at any one time by such a person. These words were substituted by s. 33 of the Finance Act, 1956 (18 of 1956). Not modified by the Finance Bill, 1999 (22 of 1999). 9. Offences and penalties : . 72[1] Whoever commits any of the following offences, namely : 73[(a) contravenes any of the provisions of section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section (2) of section 37 ;] (b) evades the payment of any duty payable under this Act; 74[(bb) removes any excisable goods in contravention of any of the provisions of this Act or any rules made thereunder or in any way concerns himself with such removal; (bbb) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder;] 75(bbbb) contravenes any of the provisions of this Act or the rules made thereunder in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products;] (c) fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; (d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section; 76[shall be punishable, (i) in the case of an offence relating to any excisable goods, the duty (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both.] 77 [(2) If any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than six months, namely :- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; (iv) the age of the accused.] Section 9 was renumbered as sub-section (1) of that section by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). This clause was inserted by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Inserted (w.e.f. 1-8-1998) by s. 107 of the Finance (No. 2) Act, 1998 (21 of 1998). These words were substituted for certain words by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). This sub-section was inserted by s. 18 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). 9A. Certain offences to be non-cognizable : . 78 Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences under section 9 shall be deemed to be non-cognizable within the meaning of that Code. Sections 9A to 9E, were inserted by s. 19 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). 9AA. Offences by companies : . 79 (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is Explanation. - For the purposes of this section, - (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm.] Inserted by s. 2 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). 9B. Power of Court to publish name, place of business, etc of persons convicted under the Act. : (1) Where any person is convicted under this Act for contravention of any of the provisions thereof, it shall be competent for the Court convicting the person to cause the name and place of business or residence of such person, nature of the contravention, the fact that the person has been so convicted and such other particulars as the Court may consider to be appropriate in the circumstances of the case, to be published at the expense of such person, in such newspapers or in such manner as the Court may direct. (2) No publication under sub-section (1) shall be made until the period for preferring an appeal against the orders of the Court has expired without any appeal having been preferred, or such an appeal, having been preferred, has been disposed of. (3) The expenses of any publication under sub-section (1) shall be recoverable from the convicted person as if it were a fine imposed by the Court. 9C. Presumption of culpable mental state : . (1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. - In this section, "culpable mental state" includes intention, motive, knowledge of a fact, and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 9D. Relevancy of statements under certain circumstances : . (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice . (2) The provisions of sub-section (1) shall, so far as may be, apply i n relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 9E. Application of section 562 of the Code of Criminal Procedure, 1898, and of the Probation of Offenders Act, 1958 : . (1) Nothing contained in section 562 of the Code of Criminal Procedure, 189880 (5 of 1898), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age. (2) The provisions of sub-section (1) shall have effect notwithstanding anything contained in sub-section (3) of section 9 .] See now the relevant provisions of the Code of Criminal Procedure, 1973 (2 of 1974). 10. Power of Courts to order forfeiture : .- Any Court trying an offence under this Chapter may order the forfeiture to 81 [Government] of any goods in respect of which the Court is satisfied that an offence under this Chapter has been committed, and may also order the forfeiture of any receptacles, packages or coverings in which such goods are contained and the animals, vehicles, vessels or other conveyances used in carrying the goods, and any implements or machinery used in the manufacture of the goods. This word was substituted by the A.O., 1950. 11. Recovery of sums due to Government : . - In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder 82[including the amount required to be paid to the credit of the Central Government under Section 11D], the officer empowered by the 83 [Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to levy such duty or require the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. Substituted (w.e.f. 12-5-2000) by s. 95 of the Finance Act, 2000 (10 of 2000). These words were substituted (with effect from 1st January, 1964) by s. 5 of the Central Boards of Revenue Act, 1963 (54 of 1963). 11A. Recovery of duties not levied or not paid or short levied or short-paid or erroneously refunded. : 84(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or 85[erroneously refunded, whether or not such non-levy or non-payment, short- levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder], a Central Excise Officer may, within 86[one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub- section shall have effect, 87[as if, 88[***]] for the words 89[one year], the words "five years" were substituted90 91[****] Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of92[one year] or five years, as the case may be. 93(1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twentyfive per cent. of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice. (2) The 94[Central Excise Officer] shall, after considering the representation, if any, made by the person on whom notice is served under sub- section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. 95Provided that if such person has paid the duty in full together with, interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein: Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the Central Excise Officer, shall determine the amount of duty or interest not being in excess of the amount partly due from such person. 96[(2A) Where any notice has been served on a person under subsection (1), the Central Excise Officer, (a) in case any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and (b) in any other case, where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded, within a period of six months, from the date of service of the notice on the person under sub-section (1). (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty 97[on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer ] before service of notice on him under sub- section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under subsection (1) in respect of the duty so paid : Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of "one year" referred to in Explanation 1. - Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was shortlevied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty. Explanation 2. - For the removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise Officer, but for this sub-section. (2C) The provisions of sub-section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]. (3) For the purposes of this section, (i) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) "relevant date" means,- 98 [(a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid (A) where under the rules made under this Act a periodical return, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder;] (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund.] This section was inserted [w.c.f. 17-11-1980 vide Notification No. 182/80-C.E., dated 15-11-1980] by section 21 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978) and the action taken under this section have been declared valid by the following section 110 of the Finance Act, 2000 (10 of 2000). 110. Validation of action taken under section 11A of Act 1 of 1944. - (1) Any notice issued or served on any person under the provisions of section 11A of the Central Excise Act during the period commencing on and from the 17th day of November, 1980 and ending on the date on which the Finance Act, 2000 receives the assent of the President (hereinafter referred to as the said period) demanding duty on account of nonpayment, short payment, non-levy, short-levy or erroneous refund within a period of six months or five years, as the case may be, from the relevant date as defined in clause (ii) of sub-section (3) of that section shall be deemed to be and to always have been, for all purposes, validly and effectively issued or served under that section, notwithstanding any approval, acceptance or assessment relating to the rate of duty on or value of, the excisable goods by any Central Excise Officer under any other provision of the Central Excise Act or the rules made thereunder, (2) Any action taken or anything done or purporting to have been taken or done under section 11A of the Central Excise Act at any time during the said period shall be deemed to be and to have always been, for all purposes, as validly and effectively taken or done as if sub- section (1) had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, - (a) all duties of excise levied, assessed or collected during the period specified in sub-section (1) on any excisable goods under the Central Excise Act, shall be deemed to be and shall be deemed to always have been, as validly levied, assessed or collected as if sub-section (1) had been in force at all material times; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for the refund of, and no enforcement shall be made by any court of any decree or order directing the refund of any such duties of excise which have been collected and which would have been validiy collected if sub-section (1) had been in force at all material times; (c) recovery shall be made of all such duties of excise which have not been collected or, as the case may be, which have been refunded but which would have been collected or, as the case may be, would not have been refunded, if subjection (1) had been in force at all material times. Explanation. - For the removal of doubts, it is hereby declared that no net or omission on the part of any person shall be punishable as an offence which would not have been so punishable it this section had not come into force. Substituted (w.e.f. 17-11-14811) by s. 47 of the Finance Act, 2000 (10 of 2000). Substituted (w.e f. 12-5-2000) lor the words "six months" by s. 97 of the Finance Act, 2000 (10 of 2000). Suubstituted (w.e.f. 27-12-1985) by s. 3 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985] the words for the words "the Central Excise Officer", the words "Collector of Central Excise", and omitted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). Substituted (w.e.f. 12-5-2000) for the words "six months" by s. 97 of the Finance Act, 2000 (10 of 2000). Consequent upon the amendment to the section 11A (w.e.f. 27-121985) by Central Excises and Salt (Amendment) Act, 1985, all proceedings pending as on 27-12-1985, with the Assistant Collector of Central Excise under proviso to section 11A(1) of the Central Excises and Salt Act, 1944, stand transferred to the Collector of Central Excise by virtue of the following section 8 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). "8. Transfer o f certain pending proceedings. - Every proceeding under the proviso to sub- section (1) of Section 11A of the principal Act, which is pending immediately before the commencement of this Act before an Assistant Collector of Central Excise and any matter arising out ot, or connected with, such proceeding and which is so pending shall stand transferred on such commencement to the Collector of Central Excise who may proceed with such proceedings or matter from the stage at which it was on such commencement or from any earlier stage as he may deem fit: Provided that any party to the proceeding or matter may demand that before proceeding further with the proceeding or matter, he may be re-heard." Second and Third Proviso Omitted by "The Finance Act, 2003" Substituted (w.e.f. 12-5-2000) for the words "six months" by s. 97 of the Finance Act, 2(100 (10 of 2000). In section 11A after sub-section (1), the sub-section (1A) shall be inserted by Taxation Laws (Amendment) Act, 2006. Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). In section 11A sub-section (2), the following provisos shall be inserted by Taxation Laws (Amendment) Act, 2006. Inserted (w.e.f. 11-5-2001) by s. 123 of the Finance Act, 2001 (14 of 2001). Inserted by the Finance Act, 2003 Substituted (w.e.f. 26-5-1995) by s. 72 of the Finance Act, 1995 (22 of 1995). 11AA. Interest on delayed payment of duty : 6100(1) 101[Subject to the provisions contained in section 11AB , where a person] chargeable with duty determined under subsection (2) of section 11A , fails to pay such duty within three months from the date of such determination, he shall pay, in addition to the duty, interest 102[at such rate not below eighteen per cent and not exceeding 103["ten per cent"] per annum, as is for the time being fixed by Provided that where a person chargeable with duty determined under sub-section (2) of section 11A before the date on which the Finance Bill, 1995 receives the assent of the President, fails to pay such duty within three months from such date, then, such person shall be liable to pay interest under this section from the date immediately after three months from such date, till the date of payment of such duty. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal 104"National Tax Tribunal " or, as the case may be, the court, the date of such determination shall be the date on which an amount of duty is first determined to be payable. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), Appellate Tribunal 105"National Tax Tribunal" or, as the case may be, the court, the date of such determination shall be, (a) for the amount of duty first determined to be payable, the date on which the duty is so determined; (b) for the amount of increased duty, the date of order by which the increased amount of duty is first determined to be payable; (c) for the amount of further increase of duty, the date of order on which the duty is so further increased.] 106 [(2) The provisions of sub-section (1) shall not apply to cases where the duty becomes payable on and after the date on which the Finance Bill, 2001 receives the assent of the President.]. Inserted (w.e.f. 26-5-1995) by s. 73 (it the Finance Act, 1995 (22 of 1995). Section 11AA re-numbered as sub-section (1), by s. 124 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 28-9-1996) by s. 75 (if the Finance (No. 2) Act, 1996 (33 of 1996). Substituted (w.e.f. 12-5-2000) by s. 98 of the Finance Act, 2000 (10 of 2000). In Section 11AA and 11AB, sub-section (1), for the words "eighteen per cent" shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. In Sec. 11(AA) in Explanations (1) and (2) and Sec.11(AB) Explanations (1) and (2) and in Sec. 11(BB) Explanations (1) and (2) the words "National Tax Tribunal" shall be inserted by the National Tax Tribunal Act,2005. Inserted (w.e.f. 11-5-2001) by s. 124 of the Finance Act, 2001 (14 of 2001) 11AB. Interest on delayed payment of duty. : - 24[(1) Where any duty of excise has not been levied or paid or has been short-levied or short- paid or erroneously refunded, the person who is liable to pay the duty as determined under subsection (2), or has paid the duty under sub-section (2B), of section 11A , shall, in addition to the duty, be liable to pay interest at such rate not below 109["ten per cent"]. and not exceeding thirty-six per cent. per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty : Provided that in such cases where the duty becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B , and such amount of duty payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction, as the case may be, no interest shall be payable and in other cases the interest shall be payable on the whole of the amount, including the amount already paid.]. 110[(2) The provisions of sub-section (1) shall not apply to cases where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]. Explanation 1. - Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal 111"National Tax Tribunal" or, as the case may be, the court, the interest shall be payable on such reduced amount of duty. Explanation 2. - Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal 112 "National Tax Tribunal" or, as the case may be, the court, the interest shall be payable on such increased or further increased amount of duty.] Inserted (w.e.f. 28-9- 1996) by s. 76 of the Finance (No. 2) Act, 1946 (33 of 1996). In Section 11AA and 11AB, sub-section (1), for the words "eighteen per cent" shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 11-5-2001) by s. 125 of the Finance Act, 2001 (14 of 2001). In Sec. 11(AA) in Explanations (1) and (2) and Sec.11(AB) Explanations (1) and (2) and in Sec. 11(BB) Explanations (1) and (2) the words "National Tax Tribunal" shall be inserted by the National Tax Tribunal Act,2005. 11AC. Penalty for short-levy or non-levy of duty in certain cases : . -113Where any duty of excise has not been levied or paid or has been short- levied or short-paid or erroneously refunded by reasons of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub- section (2) of section 11A , shall also be liable to pay a penalty equal to the duty so determined : 114 Provided that where such duty as determined under subsection (2) of section 11A , and the interest payable thereon under section 11AB , is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the duty so determined: Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso : Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, for the purposes of this section, the duty as reduced or increased, as the case may be, shall be taken into account: Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect. Explanation. - For the removal of doubts, it is hereby declared that (1) the provisions of this section shall also apply to cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President; (2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.] Inserted (w.e.f. 28-9-1996) by S.76 of the Finance (No. 2) Act, 1996 (33 of 1996). Substituted (w.e.f. 12-5-2000) by S.100 of the Finance Act, 2000 (10 of 2000). 11B. Claim for refund of duty : .3(1) Any person claiming refund of any duty of excise may make a n application for refund of such duty to the 10Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of 117[(one year] 118[from the relevant date] 119[120[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A ) as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act:] 121[Provided further that] the limitation of 122[one year] shall not apply where any duty has been paid under protest. 123[****] 124[(2) If, on receipt of any such application, the 125[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the 126Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to (a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) unspent advance deposits lying in balance in tile applicants 127[Commissioner of Central Excise]; (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; (d) the duly of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify: Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub- section (2). (4) Every notification under clause (f) of the first proviso to subsection (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to subsection (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] 128[Explanation. - for the purposes of this section, (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means,(a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; 129[(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] 130(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A , the date of issue of such order;] 131 (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;] (f) in any other case, the date of payment of duty.] This section was inserted [w.e.f. 17-1 1-1980 vide Notification No. 182/80-C.E., dated 15-11-1980 by s. 21 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). Substituted by s. 49 of the Finance (No. 2) Act, 1980 (44 of 1980). Inserted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9..1991 by. 3 of the Central Excises and Customs Laws (Amendment) Act, 199] (40 of 1991). Substituted (w.e.f. 26-5-1995) by s. 74 of the Finance Act, 1995 (22 of 1995). Substituted [w.e.f. 20-9-199] vide Notification No. 30/91-C.K. (N.T.), dated 19-9-19911 by s. 3 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted (w.e.f. 12-5-2000) for the words "six months" by s. 101 of the Finance Act, 2000 (10 of 2000). Omitted by s. 49 of Finance (No, 2) Act, 1980. Substituted [w.e.f. 20-9-199-1 vide Notification No. 30/91.C.F:. (N.T.), dated 19-9.1991) by s. 3 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 199]). Substituted s. 119 of the Finance Act, 1999 (27 of 1999). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). Substituted by s. 44 of the Finance (No. 2) Act, 1980 (44 of 1980). Substituted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991] by s. 3 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Inserted (w.e.f. 28-9-1996) by s. 77 of the Finance (No. 2) Act, 1996 (33 of 1996). Inserted (w.e.f. 1-8-1998) by s. 108 of the Finance (No. 2) Art, 1998 (21 of 1998). 11BB. Interest on delayed refunds : . - 4If any duty ordered to be refunded under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub- section (1) of that section, there shall be paid to that applicant interest at such rate, 133not below five per cent] and not exceeding thirty per cent per annum as is for the time being fixed 134[by the Central Government, by Notification in the Official Gazette], on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty : Provided that where any duty ordered to be refunded under subsection (2) of section 11B in respect of an application under subsection (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid t o the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation. - Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal 135"National Tax Tribunal" or any court against an order of the 136[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], under sub-section (2) of section 11B , the order passed by the Commissioner (Appeals), Appellate Tribunal 137 "National Tax Tribunal" or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section.] Inserted (w.e.f. 26-5-1995) by s. 75 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 11-5-2001) for the words "not below ten per cent" by s.126 of the Finance Act, 2001(14 of 2001). Substituted (w.e.f. 12-5-2000) by s. 102 of the Finance Act, 2000 (10 of 2000). Substituted by s.119 of the Finance Act, 1999 (27 of 1999). In Sec. 11(AA) in Explanations (1) and (2) and Sec.11(AB) Explanations (1) and (2) and in Sec. 11(BB) Explanations (1) and (2) the words "National Tax Tribunal" shall be inserted by the National Tax Tribunal Act,2005. 11C. Power not to recover duty of excise not levied or short-levied as a result of general practice. : 138139[(1)] Notwithstanding anything contained in this Act, if the Central Government is satisfied -(a) that a practice was, or is, generally prevalent regarding levy of duty of excise (including non-levy thereof) on any excisable goods; and (b) that such goods were, or are, liable (i) to duty of excise, in cases where according to the said practice the duty was not, or is not being, levied, or (ii) to a higher amount of duty of excise than what was, or is being, levied, according to the said practice, then, the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short- levied, in accordance with the said practice.] 140[(2) Where any notification under sub-section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such goods or, as the case may be, the duty of excise paid in excess of that payable on such goods, which would not have been paid it the said notification had been in force, shall be dealt with in accordance with. the provisions of sub-section (2) of section 11B : Provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the 141 [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], in the form referred to in subsection (1) of section 11B , before the expiry of six months from the date of issue of the said notification.] This section was inserted [w.e.f. 1-7-1978) vide Notification No. 227A/6/78-SRP (CCX) dated 19- 6-1978], by s. 21 of the Customs, Central excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Re-numbered [w.e.f. 1-7-1988 vide Notification No. 18/88-C.E. (N.T,), dated 29-6-1988] by s. 10 of the Customs and Central Excises Laws (Amendment) Act, 1988. Substituted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991] by s. 4 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999) 11D. Duties of excise collected from the buyer to be deposited with the Central Government : . 142(1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, 143[every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and 144 [(2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (3) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (4) The amount paid to the credit of the Central Government under sub-section (1) or sub-section (3) shall be adjusted against the duty of excise payable by the person on finalisation of assessment or any other proceeding for determination of the duty of excise relating to the excisable goods referred to in sub-section (1). (5) Where any surplus is left after the adjustment under subsection (4), the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B and such person may make in application under that section in such cases within six months from the date of the public notice to be issued by the Assistant Commissioner of Central Excise for the refund of such surplus amount.] Inserted [w.e.f. 20-9-1991 vide Notification No, 30/91-C.E. (N.T.), dated 19-9-1991] by s. 5 of the Central Excises and Customs Laws (Amendment) Act, 199] (40 of 1991). Substituted (w.e.f. 20-9-1991) by s. 103 of the Finance Act, 2000 (10 of 2000). Substituted by s. 103 of the Finance Act, 2000 and shall deem to have substituted. 11DD. Interest on the amounts collected in excess of the duty : 145 (1) Where an amount has been collected in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods, the person who is liable to pay such amount as determined under subsection (3) of section 1 ID, shall, in addition to the amount, be liable to pay interest at such rate not below ten per cent., and not exceeding thirty-six per cent, per annum, as is for the time being fixed by the Central Government, by notification in the Official Gazette, from the first day of the month succeeding the month in which the amount ought to have been paid under this Act, butfor the provisions contained in sub-section (3) of section 11D, till the date of payment of such amount: Provided that in such cases where the amount becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B, and such amount payable is voluntarily paid in full, without reserving any right to appeal against such payment at any subsequent stage, within forty-five days from the date of issue of such order, instruction or direction, as the case may be, no interest shall be payable and in other cases the interest shall be payable on the whole amount, including the amount already paid. (2) The provisions of sub-section (1) shall not apply to cases where the amount had become payable or ought to have been paid before the day on which the Finance Bill, 2003 receives the assent of the President. Explanation 1. Where the amount determined under sub-section (3) of section 11D is reduced by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest payable thereon under subsection (1) shall be on such reduced amount. Explanation 2. Where the amount determined under sub-section (3) of section 11D is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the court, the interest payable thereon under subsection (1) shall be on such increased amount.. Inserted by The Finance Act, 2003 11DDA. Provisional attachment to protect revenue in certain cases : 146 (1) Where, during the pendency of any proceedings under section 11A or section 11D, the Central Excise Officer is of the opinion that for the purpose of protecting the interests of revenue, it is necessary so to do, he may, with the previous approval of the Commissioner of Central Excise, by order in writing, attach provisionally any property belonging to the person on whom notice is served under sub-section (1) of section 11A or sub-section (2) of section 11D, as the case may be, in accordance with the rules made in this behalf under section 142 of the Customs Act, 1962. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of six months from the date of the order made under sub-section (1): Provided that the Chief Commissioner of Central Excise may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as he thinks fit, so, however, that the total period of extension shall not in any case exceed two years: Provided further that where an application for settlement of case under section 32E is made to the Settlement Commission, the period commencing from the date on which such application is made and ending with the date on which an order under subsection (1) of section 32F is made shall be excluded from the period specified in the preceding proviso. After section 11DD section section 11DDA shall be inserted by Taxation Laws (Amendment) Act, 2006. 12. Application of the provisions of Act No. 52 of 1962 to Central Excise Duties. : 147- The Central Government may, by notification in me Official Gazette, declare that any of the provisions of the 148 Customs Act, 1962 (52 of 1962)], relating to the levy of and exemption from customs duties drawback of duty, warehousing, offences and penalties, confiscation, and procedure relating to offences and appeals shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, b e applicable in regard to like matters in respect of the duties imposed by section 3 . Substituted (w.e.f. 28-9-1996) by s. 78 of the Finance (No.2) Act, 1996 (33 of 1996). Substituted (w.e.f. 28-9-1996) by s. 78 of the Finance (No. 2) Act, 1996 (33 of 1996). CHAPTER 2A INDICATING AMOUNT OF DUTY IN THE PRICE OF GOODS, ETC., FOR PURPOSE OF REFUND AND CREDITING CERTAIN AMOUNTS TO THE FUND 12A. Price of goods to indicate the amount of duty paid thereon : Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold. 12AA. Job work in article of jewellery : 150 (1) Notwithstanding anything contained in these rules, every person (not being an export-oriented unit or a unit located in special economic zone) who gets article of jewellery falling under heading 7113 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Tariff Act), produced or manufactured on his behalf, on job work basis, (hereinafter referred to as "the said person") shall obtain registration, maintain accounts, pay duty leviable on such goods and comply with all the relevent provisions of these rules, as if he is an assessee: Provided that the job worker may, at his option, agree to obtain registration, maintain accounts, pay the duty leviable on such goods, prepare the invoice and comply with the other provisions of these rules and in such a case the provisions of these rules shall not apply to the said person. (2) If the said person desires clearance of excisable goods for home consumption or for exports from the premises of the job worker, he shall pay duty on such excisable goods and prepare an invoice, in the manner referred to in Rules 8 and 11 respectively except for mentioning the date and time of removal of goods on such invoice. (3) The original and the duplicate copy of the invoice so prepared shall be sent by him to the job worker from whose premises the excisable goods after completion of job work are intended to be cleared, before the goods are cleared from the premises of the job worker. (4) The job worker shall fill up the particulars of date and time of removal of goods before the clearance of goods and after such clearance the job worker shall intimate to the said person, the date and time of the clearance of goods for completion of the particulars by the said person in the triplicate copy of the invoice. (5) The said person may supply or cause to supply to a job worker, the following goods, namely : (a) inputs in respect of which he may or may not have availed CENVAT credit in terms of the CENVAT Credit Rules, 2004, without reversal of the credit thereon; or (b) goods manufactured in the factory of the said person without payment of duty; under a challan, consignment note or any other document (herein referred to as "document") with such information as specified in sub-rule (2) of Rule 11 of the Central Excise Rules, 2002, duly signed by him or his authorised agent. (6) The responsibility in respect of accountability of the goods, referred to in sub-rule (5) shall lie on the said person. (7) Notwithstanding any thing contained in these rules, the job worker shall not be required to get himself registered or shall not be required to maintain any record evidencing the processes undertaken for the sole purposes of undertaking job work under these rules unless he has exercised his option in terms of the proviso to sub-rule (1). (8) The job worker, with or without completing the job work may, (i) return the goods without payment of duty to the said person; or (ii) clear the goods for home consumption or for exports; subject to receipt of an invoice from the said person, as mentioned in sub-rule (4). (9) The job worker shall clear the goods after filling in invoice the time and date of removal and authentication of such details. The rate of duty on such goods shall be the rate in force on date of removal of such goods from the premises of the job worker and no excisable goods shall be removed except under the invoice. Explanation 1. For the purpose of this rule, "job worker" means a person engaged in manufacture or processing on behalf and under the instructions of the said person from any inputs or goods supplied by the said person or by any other person authorized by the said person, so as to complete a part or whole of the process resulting ultimately in manufacture of articles of jewellery falling under heading 7113 of the First Schedule to the Central Excise Tariff Act, 1985, and the term "job work" shall be construed accordingly. Explanation 2. For the purposes of this rule, article of jewellery shall mean articles of jewellery on which brand name or trade name is indelibly affixed or embossed on itself. Explanation 3. For the purposes of this notification, brand name or trade name means a brand name or trade name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to a product, for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person. Explanation 4. For the removal of doubts, it is hereby clarified that if any goods or part thereof is lost, destroyed, found short at any time before the clearance of articles of jewellery falling under heading 7113 of the First Schedule to the Tariff Act or waste, byproducts or like goods arising during the course of manufacture of such goods, the said person shall be liable to pay duty thereon as if such goods were cleared for home consumption.". After Rule 12-A, the rule 12AA shall be inserted, by the Central Excise (First Amendment) Rules, 2005 12B. Presumption that the incidence of duty has been passed on to the buyer : . - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 12C. Consumer Welfare Fund : (1) There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund. (2) There shall be credited to the Fund, in such manner as may be prescribed,(a) the amount of duty of excise referred to in sub-section (2) of section 11B or sub-section (2) of section 11C or sub-section (2) of section 11D ; (b) the amount of duty of customs referred to in sub-section (2) of section 27 or sub-section (2) of section 28A, or sub-section (2) of section 28B of the Customs Act, 1962 (52 of 1962); (c) any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purposes of this Fund. 151 "(d) the surplus amount reffered to in sub-section (6) of section 73-A of the Finance Act, 1994(32 of 1994)." In the Central Excise Act,1944(1 of 1944) (herein after referred to as Central Excise Act), in section 12C ,sub-section (d), shall be inserted as follows :- "(d) the surplus amount reffered to in subsection (6) of section 73-A of the Finance Act, 1994(32 of 1994)." by the Finance Act , 2006. 12D. Utilisation of the Fund : . (1) Any money credited to the Fund shall be utilised by the Central Government for the welfare of the consumers in accordance with such rules as that Government may make in this behalf. (2) The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in consultation with the Comptroller and Auditor-General of India.) CHAPTER 3 POWERS AND DUTIES OF OFFICERS AND LANDHOLDERS 12E. Powers of Central Excise Officers : 152153(1) A Central Excise Officer may exercise the powers and discharge the duties (2) Notwithstanding anything contained in sub-section (1), the 154 [Commissioner of Central Excise (Appeals)] shall not exercise the powers and discharge the duties conferred or imposed on a Central Excise Officer other than those specified in section 14 or Chapter VIA .] Inserted by s. 4 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). Renumbered [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T.), dated 19-9-1991; by s. 7 of the Central Excises and Customs Laws (Amendment) Act, 1991 (40 of 1991). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). 13. Power to arrest : . . 155 Any Central Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Commissioner of Central Excise, arrest any person whom he has reason to believe to be liable to punishment under this Act or the rules made thereunder.. Substituted by The Finance Act, 2003, for section 13 14. Power to summon persons to give evidence and produce documents in inquiries under this Act : . (1) Any Central Excise Officer duly empowered156 by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required : Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions for attendance under this section. (3) Every such inquiry as aforesaid shall be deemed to be a "judicial proceeding" within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). The Central Government for the purpose of section 14 has empowered all Central Excise officers not below the rank of Superintendent of Central Excise by M.F. (D.R.) Notification No. 9/99-C.E. (N.T.), dated 10-2-200). Further, M.F. (D.R.) Notification Nos. 38/2001-C.E. (N.T), dated 26-6- 2001 and 39/2001 -C.E. (N.T), dated 26-6-2001 appoints officers of Central Excise and invests the specified Officers with powers for investigation, adjudication and other purposes. 14A. Special audit in certain cases : . 157(1) If at any stag. of enquiry, investigation or any other proceedings before him, any Central Excise Officer not below the rank of an Assistant Commissioner of Central Excise, having regard to the nature and complexity of the case and the interest of revenue, is of the opinion that the value has not been correctly declared or (2) The cost accountant, so nominated shall, within the period specified by the Central Excise Officer, submit a report of such audit duly signed and certified by him to the said Central Excise Officer mentioning therein such other particulars as may be specified : Provided that the Central Excise Officer may, on an application made to him in this behalf by the manufacturer or the person and for any material and sufficient reason, extend the said period by such further period or periods as he thinks fit; so, however, that the aggregate of the period originally fixed and the period or periods so extended shall not, in any case, exceed one hundred and eighty days from the date on which the direction under sub-section (1) is received by the manufacturer or the person. (3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the manufacturer or person aforesaid have been audited under any other law for the time being in force or otherwise. 158 [(4) ***** ] (5) The manufacturer or the person shall be given an opportunity of being heard in respect of any material gathered on the basis of audit under sub- section (1) and proposed to be utilised in any proceedings under this Act or rules made thereunder. Explanation. - For the purpose of this section, "cost accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).] Inserted (w.e.f. 26-5-1995) by s. 76 of the Finance Act, 1995 (22 of 1995). Omitted (w.e.f. 12-5-2000) by s.104 of the Finance Act, 2000 (10 of 2000). 14AA. Special audit in cases where credit of duty availed or utilised is not within the normal limits, etc. : 159(1) If the Commissioner of Central Excise has reason to believe that the credit of duty availed of or utilised under the rules made under this Act by a manufacturer of any excisable goods (a) is not within the normal limits having regard to the nature of the excisable goods produced or manufactured, the type of inputs used and other relevant factors, as he may deem appropriate; (b) has been availed of or utilised by reason of fraud, collusion or any wilful mis-statement or suppression of facts, he may direct such manufacturer to get the accounts of his factory, office, depot, distributor or any other place, as may be specified by him, audited by a cost accountant nominated by him. (2) The cost accountant so nominated shall, within the period specified by the Commissioner of Central Excise, submit a report of such audit duly signed and certified by him to the said Commissioner mentioning therein such other particulars as may be specified. (3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the said manufacturer aforesaid have been audited under any other law for the time being in force or otherwise. 160 [(4) * * * * * * * ] (5) The manufacturer shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilised in any proceeding under this Act or rules made thereunder. Explanation. - For the purpose of this section, "cost accountant" shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).] Inserted (w.e.f. 14-5-1997) by s. 83 of the Finance Act, 1997 (26 of 1997). Omitted (w.e.f. 12-5-2000) by s. 105 of the Finance Act, 2000 (10 of 2000). 15. Officers required to assist Central Excise Officers : 15. Officers required to assist Central Excise Officers : . - All officers of Police and Customs and all officers of Government engaged in the collection of land revenue, and all village officers are hereby empowered and required to assist the Central Excise Officers in the execution of this Act. 16. Owners or occupiers of land to report manufacture of contraband excisable goods : 161 [* * * * *] Section 16 and 17, shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 17. Punishment for connivance at offences : 162 [* * * * *] Section 16 and 17, shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 18. Searches and arrests how to be made : . - All searches made under this Act or any rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating respectively to searches and arrests made under that Code. 19. Disposal of persons arrested : . - Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in-charge of the nearest police station. 20. Procedure to be followed by officer-in-charge of police station. : - The officer-in-charge of a police station to whom any person is forwarded under section 19 shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail forward him in custody to such Magistrate. 21. Inquiry how to be made by Central Excise Officers against arrested persons forwarded to them under section 19. : (1) When any person is forwarded under section 19 to a Central Excise Officer empowered163 to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to enquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same (a) if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the Central Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the Central Excise Officer may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. The Central Government for the purposes of sections 19 and 21, has empowered all Central Excise officers not below the rank of Superintendent, Central Excise by M.F. (D.R.) Notification No. 9/99-C.E. (N.T.), dated 10-2-1999. 22. Vexatious search, seizure, etc., by Central Excise Officer : .- Any Central Excise or other officer exercising powers under this Act or under the rules made thereunder who (a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place; (b) vexatiously and unnecessarily detains, searches or arrests any person; (c) vexatiously and unnecessarily seizes the movable property of any person, on pretence of seizing or searching for any article liable to confiscation under this Act; (d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty; shall, for every such offence, be punishable with fine which may extend to two thousand rupees. Any person wilfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall be punishable with fine which may extend to two thousand rupees or with imprisonment for a term which may extend to two years or with both. 23. Failure of Central Excise Officer in duty : . - Any Central Excise Officer who ceases or refuses to perform or withdraws himself from the duties of his office, unless he has obtained the express written permission of the 164 [Commissioner of Central Excise], or has given to his superior officer two months notice in writing of his intention or has other lawful excuse, shall on conviction before a Magistrate be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to three months pay, or with both. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). CHAPTER 3A ADVANCE RULINGS 23A. Definitions : . - In this Chapter, unless the context otherwise requires, (a) "activity" means production or manufacture of goods; (b) "advance ruling" means the determination, by the authority of a question of law or fact specified in the application regarding the liability to pay duty in relation to an activity proposed to be undertaken, by the applicant; 1 (c) "applicant" means (a) a non-resident setting up a joint venture in India in collaboration with a non-resident or a resident; or (b) a resident setting up a joint venture in India in collaboration with a non-resident; or (c) a wholly owned subsidiary Indian company, of which the holding company is a foreign company, who or which, as the case may be, proposes to undertake any business activity in India; (ii) a joint venture in India; or (iii) a resident falling within any such class or category of persons, as the Central Government may, by notification in the Official Gazette, specify in this behalf. and which or who, as the case may be, makes application for advance ruling under sub-section (1) of Section 23-C;; (d) "application" means an application made to the Authority under sub-section (1) of section 23C ; (e) "Authority" means the 166"Authority for Advance Rulings (Central Excise, Customs and Service Tax)" constituted under section 28F of the Customs Act, 1962 (52 of 1962); 167 (f) "non-resident", "Indian company" and "foreign company" shall have the meanings respectively assigned to them in clauses (3), (26) and (23A) of section 2 of the Income-tax Act, 1961 (43 of 1961).. In Section 23-A of the Central Excise Act, in clause (e), in clause (e), for the words "Authority for Advance Rulings", the words and brackets "Authority for Advance Rulings (Central Excise, Customs and Service Tax)" shall be substituted by the "Finance Act, 2005 Caluse c and Clause f, Substituted by The Finance Act, 2003 23B. Vacancies, etc., not to invalidate proceedings : . - No proceeding before, or pronouncement of advance ruling by, the Authority under this Chapter shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the constitution of the Authority. 23C. Application for advance ruling : . (1) An applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and in such manner as may be prescribed, stating the question on which the advance ruling is sought. (2) The question on which the advance ruling is sought shall be in respect of, (a) classification of any goods under the Central Excise Tariff Act, 1985 (5 of 1986); (b) applicability of a notification issued under sub-section (1) of section 5A having a bearing on the rate of duty; (c) the principles to be adopted for the purposes of determination of value of the goods under the provisions of this Act. 1(d) notifications issued, in respect of duties of excise under this Act, the Central Excise Tariff Act, 1985 (5 of 1986) and any duty chargeable under any other law for the time being in force in the same manner as duty of excise leviable under this Act; 169(e) admissibility of credit of excise duty paid or deemed to have been paid on the goods used in or in relation to the manufacture of the excisable goods.. 170 "(f) determination of the liability to pay duties of excies on any goods under this Act." (3) The application shall be made in quadruplicate and be accompanied by a fee of two thousand five hundred rupees. (4) An applicant may withdraw an application within thirty days from the date of the application. Inserted by The Finance Act, 2003 In the Central Excise Act,1944(1 of 1944) (herein after referred to as Central Excise Act), in section 23C ,sub-section (f), shall be inserted as follows :- "(f) determination of the liability to pay duties of excies on any goods under this Act." by the Finance Act , 2006. 23D. Procedure on receipt of application : . (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the Commissioner of Central Excise and, if necessary, call upon him to furnish the relevant records; Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the Commissioner of Central Excise. (2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application : Provided that the Authority shall not allow the application 171 [* * * * *] where the question raised in the application is, (a) already pending in the applicants case before any Central Excise Officer, the Appellate Tribunal or any Court; (b) me same as in a matter already decided by the Appellate Tribunal or any Court: Provided further that no application shall be rejected under this sub- section unless an opportunity has been given to the applicant of being heard: Provided also that where the application is rejected, reasons for such rejection shall be given in the order. (3) A copy of every order made under sub-section (2) shall be sent to the applicant and to the Commissioner of Central Excise. (4) Where an application is allowed under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority, pronounce its advance ruling on the question specified in the application. (5) On a request received from the applicant, the Authority shall, before pronouncing its advance ruling, provide an opportunity to the applicant of being heard, either in person or through a duly authorised representative. Expanation. - For the purposes of this sub-section, "authorised representative" shall have the meaning assigned to it in sub-section (2) of section 35Q. (6) The Authority shall pronounce its advance ruling in writing within ninety days of the receipt of application. (7) A copy of the advance ruling pronounced by the Authority, duly signed by the Members and certified in the prescribed manner shall be sent to the applicant and to the Commissioner of Central Excise, as soon as may be, after such pronouncement. In Section 23D, sub-section (2) in the first proviso the words "except in the case of resident application" shall be omitted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. 23E. Applicability of advance ruling. : (1) The advance ruling pronounced by the Authority under section 23D shall be binding only (a) on the applicant who had sought it; (b) in respect of any matter referred to in sub-section (2) of section 23C ; (c) on the Commissioner of Central Excise, and the Central Excise authorities subordinate to him, in respect of the applicant. (2) The advance ruling referred to in sub-section (1) shall be binding as aforesaid unless there is a change in law or facts on the basis of which the advance ruling has been pronounced. 23F. Advance ruling to be void in certain circumstances. : (1) Where the Authority finds, on a representation made to it by the Commissioner of Central Excise or otherwise, that an advance ruling pronounced by it under sub-section (6) of section 28I has been obtained by the applicant by fraud or misrepresentation of facts, it may, by order, declare such ruling to be void ab initio and thereupon all the provisions of this Act shall apply (after excluding the period beginning with the date of such advance ruling and ending with the date of order under this sub-section) to the applicant as if such advance ruling had never been made. (2) A copy of the order made under sub-section (1) shall be sent to the applicant and the Commissioner of Central Excise. 23G. Powers of Authority : . (1) The Authority shall, for the purpose of exercising its powers regarding discovery and inspection, enforcing the attendance of any person and examining him on oath, issuing commissions and compelling production of books of account and other records, have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908). (2) The Authority shall be deemed to be a civil court for the purposes of section 195 , but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Authority shall be deemed to be a judicial proceeding within the meaning of sections 193 and Section 228 of the Indian Penal Code, 1860 , and for the purpose of section 196 of the Indian Penal Code (45 of 1860). 23H. Procedure of Authority : . - The Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure in all matters arising out of the exercise of its powers under this Act.] CHAPTER 4 TRANSPORT BY SEA 24. Penalties for carrying excisable goods in certain vessels : [* * * * *] 25. Exceptions. : [* * * * *] 26. Power of stoppage, search and arrest : [* * * * *] 27. Penalties for resisting officer : [* * * * *] 28. Confiscation of vessel and cargo : [* * * * *] 29. jurisdiction : [* * * * *] 30. Power to exempt from operation of this Chapter : [* * * * *] CHAPTER 5 SETTLEMENT OF CASES 31. Definitions. : - In this Chapter, unless the context otherwise requires, (a) "assessee" means any person who is liable for payment of excise duty assessed under this Act or any other Act and includes any producer or manufacturer of excisable goods or a registered person under the rules made under this Act, of a private warehouse in which excisable goods are stored; (b)"Bench" means a Bench of the Settlement Commission; (c) "case" means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a Central Excise Officer or Central Government on the date on which an application under sub-section (I) of section 32E is made : Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding pending within the meaning of this clause; ( d ) "Chairman" means the Chairman of the Settlement Commission; (e) "Commissioner (Investigation)" means an officer of the Customs or a Central Excise Officer appointed as such Commissioner to conduct inquiry or investigation for the purposes of this Chapter; (f) "Member" means a Member of the Settlement Commission and includes the Chairman and the Vice-Chairman; (g) "Settlement Commission" means the Customs and Central Excise Settlement Commission constituted under section 32 ; and (h) "Vice-chairman" means a Vice-chairman of the Settlement Commission. 32. Customs and Central Excise Settlement Commission : . (1) The Central Government shall, by notification in the Official Gazette, constitute a Commission to be called the Customs and Central Excise Settlement Commission for the settlement of cases under this Chapter and Chapter XIVA of the Customs Act, 1962 (52 of 1962). (2) The Settlement Commission shall consist of a Chairman and as m a n y Vice-Chairmen and other Members as the Central Government thinks fit and shall function within the Department of the Central Government dealing with Customs and Central Excise matters. (3) The Chairman, Vice-chairman and other Members of the Settlement Commission shall be appointed by the Central Government from amongst persons of integrity and outstanding ability, having special knowledge of, and experience in, administration of customs and central excise laws : Provided that, where a member of the Board is appointed as the Chairman, Vice-chairman or as a Member of the Settlement Commission, he shall cease to be a member of the said Board. 32A. jurisdiction and powers of Settlement Commission : . (1) Subject to the other provisions of this Chapter, the jurisdiction, powers and authority of the Settlement Commission may be exercised by Benches thereof. (2) Subject to the other provisions of this section, a Bench shall be presided over by the Chairman or a Vice-chairman and shall consist of two other Members. (3) The Bench for which the Chairman is the presiding officer shall be the principal Bench and other Benches shall be known as additional Benches. (4) Notwithstanding anything contained in sub-section (1) and subsection (2), the Chairman may authorise the Vice-chairman or other Member appointed to one Bench to discharge also the functions of the Vice-chairman or, as the case may be, other Member of another Bench. ( 5 ) The principal Bench shall sit at Delhi and the Central Government shall, by notification in the Official Gazette, establish additional Benches at such places as it considers necessary. (6) Notwithstanding anything contained in the foregoing provisions of this section, and subject to any rules that may be made in this behalf, when one of the persons constituting a Bench (whether such person be the presiding officer or other Member of the Bench) is unable to discharge his functions owing to absence, illness or any other cause or in the event of the occurrence of any vacancy either in the office of the presiding officer or in the office of one or the other Members of the Bench, the remaining Members may function as the Bench and if the presiding officer of the Bench is not one of the remaining Members, the senior among the remaining Members shall act as the presiding officer of the Bench: Provided that if at any stage of the hearing of any such case or matter, it appears to the presiding officer that the case or matter is of such a nature that it ought to be heard of by a Bench consisting of three Members, the case or matter may be referred by the presiding officer of such Bench to the Chairman for transfer to such Bench as the Chairman may deem fit. (7) Notwithstanding anything contained in the foregoing provisions of this section, the Chairman may, for the disposal of any particular case, constitute a special Bench consisting of more than three Members. (8) Subject to the other provisions of this Chapter, the special Bench shall sit at a place to be fixed by the Chairman. 32B. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances : . (1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the Vice-Chairman or, as the case may be, such one of the ViceChairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Chapter to fill such vacancy, enters upon his office. (2) When the Chairman is unable to discharge his functions owing to absence, illness or any other cause, the Vice-chairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties. 32C. Power of Chairman to transfer cases from one Bench to another : . - On the application of the assessee or the Chief Commissioner or Commissioner of Central Excise and after giving notice to them, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to another Bench. 32D. Decision to be by majority : . - If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Settlement Commission and such point or points shall be decided according to the opinion of the majority of the Members of the Settlement Commission who have heard the case, including those who first heard it. 32E. Application for settlement of cases : . (1) An assessee may, at any stage of a case relating to him make a n application in such form and in such manner as may be prescribed, and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification or otherwise of such excisable goods, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided : Provided that no such application shall be made unless, - (a) the applicant has 173 filed returns] showing production, clearance and central excise duty paid in the prescribed manner; (b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant; and (c) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees : Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any Court: Provided also that no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986). (2) Where any excisable goods, books of accounts, other documents have been seized under the provisions of this Act or rules made thereunder, the assessee shall not be entitled to make a n application under sub-section (1), before the expiry of one hundred and eighty days from the date of the seizure. (3) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed. (4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant. Substituted (w.e.f. 12-5-2000) for the words "filed monthly returns" by s.106 of the Finance Act, 2000 (10 of 2000). 32F. Procedure on receipt of an application under Section 32E : . (1) On receipt of an application under sub-section (1) of section 32E , the Settlement Commission shall call for a report from the Commissioner of Central Excise having jurisdiction and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application: Provided that an application shall not be rejected under this subsection, unless an opportunity has been given to the applicant of being heard: Provided further that the Commissioner of Central Excise shall furnish such report within a period of one month of the receipt of the communication from the Settlement Commission, failing which it shall be presumed that the Commissioner of Central Excise has no objection to such application; but he may raise objections at the time of hearing fixed by the Settlement Commission for admission of the application and the date of such hearing shall be communicated by the Settlement Commission to the applicant and the Commissioner of Central Excise within a period not exceeding two months from the date of receipt of such application, unless the presiding officer of the Bench extends the time, recording the reasons in writing. (2) A copy of every order under sub-section (1) shall be sent to the (3) Subject to the provisions of sub-section (4), the applicant shall within thirty days of the receipt of a copy of the order under subsection (1) allowing the application to be proceeded with, pay the amount of additional duty admitted by him as payable and shall furnish proof of such payment to the Settlement Commission. (4) If the Settlement Commission is satisfied, on an application made in this behalf by the assessee that he is unable for good and sufficient reasons to pay the amount referred to in sub-section (3), within the time specified in that sub- section, it may extend the time for payment of the amount which remains unpaid or allow payment thereof by installments, if the assessee furnishes adequate security for the payment thereof. (5) Where the additional amount of duty referred to in sub-section (3) is not paid by the assessee within the time specified or extended period, as the case may be, the Settlement Commission may direct that the amount which remains unpaid, together with simple interest at the rate of eighteen per cent. per annum or at the rate notified by the Central Board of Excise and Customs from time to time on the amount remaining unpaid, be recovered, as the sum due to Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of section 11 . (6) Where an application is allowed to be proceeded with under sub- section (1), the Settlement Commission may call for the relevant records from the Commissioner of Central Excise having jurisdiction and after examination of such records, if the Settlement Commission is of the opinion that any further enquiry or investigation in the matter is necessary, it may direct the Commissioner (Investigation) to make or cause to be made such further enquiry or investigation and furnish a report on the matters covered by the application and any other matter relating to the case. (7) After examination of the records and the report of the Commissioner of Central Excise received under sub-section (1), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (6), and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (1) or sub-section (6). (8) Subject to the provisions of section 32A , the materials brought on record before the Settlement Commission shall be considered by the Members of the concerned Bench before passing any order under sub-section (7) and, in relation to the passing of such order, the provisions of section 32D shall apply. (9) Every order passed under sub-section (7) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other metters to make the settlement effective and shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or misrepresentation of facts. (10) Where any duty payable in pursuance of an order under subsection (7) is not paid by the assessee within thirty days of the receipt of a copy of the order by him, then, whether or not the Settlement Commission has extended the time for payment of such duty or has allowed payment thereof by installments, the assessee shall be liable to pay simple interest at the rate of eighteen per cent. per annum or at such other rate as notified by the Central Board of Excise and Customs on the amount remaining unpaid from the date of expiry of the period of thirty days aforesaid. (11) Where a settlement becomes void as provided under subsection (9) the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the date of the receipt of communication that the settlement became void. 32G. Power of Settlement Commission to order provisional attachment to protect revenue. : (1) Where, during the pendency or any proceeding before it, the Settlement Commission is of the opinion that for the purpose of protecting the interests of revenue it is necessary so to do, it may, by order, attach provisionally any property belonging to the applicant in the manner as may be prescribed. ( 2 ) Every provisional attachment made by the Settlement Commission under sub-section (1) shall cease to have effect from the date, the sums due to the Central Government for which such attachment is made are discharged by the applicant and evidence to that effect is submitted to the Settlement Commission. 32H. Power of Settlement Commission to reopen completed proceedings. : - If the Settlement Commission is of the opinion (the reasons for such opinion to be recorded by it in writing) that, for the proper disposal of the case pending before it, it is necessary or expedient to reopen any proceeding connected with the case but which has been completed under this Act before application for settlement under section 32E was made, it may, with the concurrence of the applicant, reopen such proceeding and pass such order thereon as it thinks fit, as if the case in relation to which the application for settlement had been made by the applicant under that section covered such proceeding also: Provided that no proceeding shall be reopened by the Settlement Commission under this section after the expiry of five years from the date of application. 32I. Powers and procedure of Settlement Commissions. : ( 1 ) In addition to the powers conferred on the Settlement Commission under this Chapter, it shall have all the powers which are vested in a Central Excise Officer under this Act or the rules made thereunder. (2) Where an application made under section 32E has been allowed to be proceeded with under section 32F , the Settlement Commission shall, until an order is passed under sub-section (7) of section 32F , have, subject to the provisions of sub-section (6) of that section, exclusive jurisdiction to exercise the powers and perform the functions of any Central Excise Officer, under this Act in relation to the case. (3) In the absence of any express direction by the Settlement Commission to the contrary, nothing in this Chapter shall affect the operation of the provisions of this Act in so far as they relate to any matters other than those before the Settlement Commission. (4) The Settlement Commission shall, subject to the provisions of this Chapter, have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers, or of the discharge of its functions, including the places at which the Benches shall hold their sittings. 32J. Inspection, etc., of reports : . - No person shall be entitled to inspect, or obtain copies of, any reports made by any Central Excise Officer to the Settlement Commission; but the Settlement Commission may, in its discretion furnish copies thereof to any such person on an application made to it in this behalf and on payment of the prescribed fee: Provided that, for the purpose of enabling any person whose case is under consideration to rebut any evidence brought on record against him in any such report, the Settlement Commission shall, on an application made in this behalf, and on payment of the prescribed fee by such person, furnish him with a certified copy of any such report or part thereof relevant for the purpose 32K. Power of Settlement Commission to grant immunity from prosecution and penalty : . (1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also either wholly or in part from the imposition of any penalty, fine and interest under this Act, with respect to the case covered by the settlement: Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32E . (2) An immunity granted to a person under sub-section (1) shall stand withdrawn if such person fails to pay any sum specified in the order of the settlement passed under sub-section (7) of section 32F within the time specified in such order or within such further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted. (3) An immunity granted to a person under sub-section (1) may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particular material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such person would have been liable, had no such immunity been granted. 32L. Power of Settlement Commission to send a case back to the Central Excise Officer : . (1) The Settlement Commission may, if it is of opinion that any person who made an application for settlement under section 32E has not co-operated with the Settlement Commission in the proceedings before it, send the case back to the Central Excise Officer having jurisdiction who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made. (2) For the purpose of sub-section (1), the Central Excise Officer shall be entitled to use all the materials and other information produced by the assessee before the Settlement Commission or the results of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it as if such materials, information, inquiry and evidence had been produced before such Central Excise Officer or held or recorded by him in the course of the proceedings before him. (3) For the purposes of the time limit under section 11 A and for the purposes of interest under section 11BB , in a case referred to in sub-section (1), the period commencing on and from the date of the application to the Settlement Commission under section 32E and ending with the date of receipt by the Central Excise Officer of the order of the Settlement Commission sending the case back to the Central Excise Officer shall be excluded. 32M. Order of settlement to be conclusive : . - Every order of settlement passed under sub-section (7) of section 32F shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force. 32N. Recovery of sums due under order of settlement : .- Any sum specified in an order of settlement passed under subsection (7) of section 32F may, subject to such conditions if any, as may be specified therein, be recovered, and any penalty for default in making payment of such sum may be imposed and recovered as sums due to the Central Government in accordance with the provisions under section 11 by the Central Excise Officer having jurisdiction over the person who made the application for settlement under section 32E . 32O. Bar on subsequent application for settlement in certain cases : . Where (i) an order of settlement passed under sub-section (7) of section 32F provides for the imposition of a penalty on the person who made the application under section 32E for settlement, on the ground of concealment of particulars of his duty liability; or (ii) after the passing of an order of settlement under the said subsection (7) in relation to a case, such person is convicted of any offence under this Act in relation to that case; or (iii) the case of such person is sent back to the Central Excise Officer having jurisdiction by the Settlement Commission under section 32L , then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter. 32P. Proceedings before Settlement Commission to be judicial proceedings : . - Any proceedings under this Chapter before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and Section 228 of the Indian Penal Code, 1860 , and for the purposes of section 196 of the Indian Penal Code (45 of 1860).] 32PA. Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission. : 174(1) Notwithstanding anything contained in this Chapter, any person who has filed an appeal to the Appellate Tribunal under this Act, on or before the 29th day of February, 2000 and which is pending, shall, on withdrawal of such appeal from the Appellate Tribunal, be entitled to make an application to the Settlement Commission to have his case settled under this Chapter: Provided that no such person shall be entitled to make an application under this section in a case where the Commissioner of Central Excise or any officer on his behalf has, on or before the date on which the Finance Act, 2000 section 35E or filed an appeal under sub-section (2) of section 35B , as the case may be. (2) Any person referred to in sub-section (1) may make an application to the Appellate Tribunal for permission to withdraw the appeal. ( 3 ) On receipt of an application under sub-section (2), the Appellate Tribunal shall grant permission to withdraw the appeal. (4) Upon withdrawal of the appeal, the proceedings in appeal immediately before such withdrawal shall, for the purposes of this Chapter, be deemed to be a proceeding pending before a Central Excise officer. (5) An application to the Settlement Commission under this section shall be made within a period of thirty days from the date on which the order of the Appellate Tribunal permitting the withdrawal of the appeal is communicated to the person. (6) An application made to the Settlement Commission under this section shall be deemed to be an application made under subsection (1) of section 32E and the provisions of this Chapter, except sub-section (11) of 175 "Section 32-F and sub-section (1) of Section 32-L", shall apply accordingly. (7) Where an application made to the Settlement Commission under this section is not entertained by the Settlement Commission, then, the appeal shall be deemed to have been revived before the Appellate Tribunal and the provisions contained in section 35B , section 35C and section 35D shall, so far as may be, apply accordingly.] PR245 Inserted (w.e.f. 12-5-2000) by s. 107 of the Finance Act, 2000(10 of 2000). In Section 32-PA of the Central Excise Act, in sub-section (6), for the word, figures and letter "Section 32-F the words, figures, letters and brackets "Section 32-F and sub-section (1) of Section 32-L" shall be substituted by the Finance Act. CHAPTER 6 ADJUDICATION OF CONFISCATIONS AND PENALTIES 33. Power of adjudication : . - 3[Where under this Act or by the rules made thereunder] anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged (a) without limit, by a 177[Commissioner of Central Excise]; (b) up to confiscation of goods not exceeding five hundred rupees in value and imposition of penalty not exceeding two hundred and fifty rupees, by an 178[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]: Provided that the 179[Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)], may, in the case of any officer performing the duties of an 180[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], reduce the limits indicated in clause (b) of this section and may confer on any officer the powers indicated in clause (a) or (b) of this section181 . Substituted by s.125 of the Finance Art, 1999 (27 of 1999). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Art, 1995 (22 of 1995). These words were substituted (w.e.f. 1st January, 1964) by s. 5 of the Central Boards of Revenue Act, 1963(54 of 1963). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). See detailed instructions issued by the C.B.E. and C. in this behalf in Vol. 1 of the CENTRAL EXCISE LAW GUIDE under the Chapter DEPARTMENTAL ADJUDICATION. 33A. Adjudication procedure : (1) The Adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during the proceeding 34. Option to pay fine in lieu of confiscation : . - Whenever confiscation is adjudged under this Act or the rules made thereunder, the officer adjudging it, shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. 34A. Confiscation or penalty not to interfere with other punishments. : -182 No confiscation made or penalty imposed under the provisions of the Act or of any rule made thereunder shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law.] The section was inserted by s. 20 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). CHAPTER 6A APPEALS 35. Appeals to Commissioner (Appeals)]. : 2(1} Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a 2[Commissioner of Central Excise], may appeal to the 186[Commissioner of Central Excise (Appeals)] [hereafter in this Chapter referred to as t h e 187[Commissioner (Appeals)]] 188[within sixty days] from the date of the communication to him of such decision or order : 189 [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] . (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. Substituted (w.e.f. 26-5-1995) by s. 71) of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 11-5-2001) for the words "within three months" by s. 35 of the Finance Act, 2001(14 of 2001). Substituted (w.e.f. 11-5-2001)by s.127 of the Finance Act, 2001 (14 of 2001]). 35A. Procedure in appeal : . (1) The 1[Commissioner (Appeals)] shall give an opportunity to the appellant to be heard, if he so desires. (2) The 1[Commissioner (Appeals)] may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if t h e 1[Commissioner (Appeals)] is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. (3) 1[The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against:] Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the 1Commissioner (Appeals)] is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, shortlevied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 11A to show cause against the proposed order. (4) The order of the 195[Commissioner (Appeals)] disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision. 196[(4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed.] (5) On the disposal of the appeal, the 197[Commissioner (Appeals)] shall communicate the order passed by him to the appellant, the adjudicating authority and the 198199 "the Chief Commissioner of Central Excise and the Commissioner of Central Excise". Substituted(w.e.f. 26-5-1995)by s.70 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 11-5-2001 )by s.128 of the Finance Act, 2001 (14 of 2001). Inserted (w.e.f. 11-5-2001) by s. 128 of the Finance Act, 2001 (14 of 2001). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). n Section 35A of the Central Excise Act, in sub-section (5),for the words "and the Commissioner of Central Excise", the words ", the Chief Commissioner of Central Excise and the Commissioner of Central Excise" shall be substituted by the Finance Act. 35B. Appeals to the Appellate Tribunal : . 2(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 2[Commissioner of Central Excise] as an adjudicating authority; (b) an order passed by the 2[Commissioner (Appeals)] 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 2[Commissioner of Central Excise] under section 35 , as it stood immediately before the appointed day; (d) an order passed by the Board or the 2[Commissioner of Central Excise], either before or after the appointed day, under section 35A , as it stood immediately before that day: 8[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 (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty; 2[(d) credit of any duty allowed to be utilised 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:] Provided further that] the Appellate Tribunal may, in its discretion, refuse to 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 2[fifty thousand rupees]; 208[(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 under that section.] 209"(1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be."; (2) The 210211The Committee of Commissioners of Central Excise may, if it is" may, if he is of opinion that an order passed by the Appellate 212213The Committee of Commissioners of Central Excise may, if it is" under section 35 , as it stood immediately before the appointed day, or the 214[Commissioner (Appeals)] under section 35A , is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised 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 215[Commissioner of Central Excise], 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, not-withstanding 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 (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. 216 [(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).] On and from the appointed day, the amendments shall be made in sections 35B and 35E of the Central Excises and Salt Act, 1944 by s. 34 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986). Substituted by s. 47 of the Finance Act, 1984 (21 of 1984). To be inserted from a date to be notified by s. 109 of the Finance (No. 2) Act, 1998 (21 of 1998). Substituted (w.e.f. 13-5-1993) for the words "ten thousand rupees" by s. 45 of the Finance Act, 1993 (38 of 1993). Inserted by s. 47 of the Finance Act, 1984 (21 of 1984). In Section 35B of the Central Excise Act, in sub-section (6), after sub-section (1A), the following sub-section shall be inserted, namely: "(1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be."; by the Finance Act" In Section 35B of the Central Excise Act, in sub-section (2), for the words The Commissioner of Central Excise may, if he is", the words The Committee of Commissioners of Central Excise may, if it is" shall be substituted, by the Finance Act, 2005. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 13-5-1993) by s.45 of the Finance Act, 1993 (38 of 1993). 35C. Orders of Appellate Tribunal : . (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2) The Appellate Tribunal may, at any time within 217["six months"] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the 218[Commissioner of Central Excise] or the other party to the appeal: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. 219(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceeding relating to an appeal filed under sub-section (1) of Section 35-B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the 220[Commissioner of Central Excise] and the other party to the appeal. (4) 221 "Save as provided in the National Tax Tribunal Act, 2005", orders passed by the National Tax TribunalAppellate Tribunal on appeal shall be final. In section 35C, sub-section (2) the words ["four years"] shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 26-5-1995) by s.70 of the Finance Act, 1995 (22 of 1995). In section 35C, after sub-section (2), sub-section (2A) shall be inserted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). In Sec. 35(c) the words "Save as provided in the National Tax Tribunal Act, 2005" shall be substituted by the National Tax Tribunal Act, 2005. 35D. Procedure of Appellate Tribunal : . (1) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its Customs Act, 1962 . 222[(2) ****] (3) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where (a) 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 (b) the amount of fine or penalty involved, does not exceed 223 [ten lakh rupees]. Omitted (w.e.f. 26-5-1995) by s. 77 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 28-9-1996) for the words "one lakh rupees" by s. 80 of the Finance (No. 2) Act, 1996 (33 of 1996). 35E. Powers of Board or Commissioner of Central Excise] to pass certain orders. : 13(1) The 1"Committee of Chief Commissioners of Central Excise" may, of its own motion, call for and examine the record of any proceeding in which a 1(Commissioner of Central Excise) as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such 1[Commissioner] 1[or any other Commissioner] to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the 230"Committee of Chief Commissioners of Central Excise"in itsorder. (2) The 231[Commissioner of Central Excise] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct 232"such authority or any Central Excise Officer subordinate to him" to apply to the 233[Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the 234[Commissioner of Central Excise] in his order. 235(3) T he 236"Committee of Chief Commissioners of Central Excise" or Commissioner of Central Excise, as the case may be, shall, where it is possible to do so, make order under sub-section (1) or sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under sub-section (1) or subsection (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the 237[Commissioner (Appeals)] within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard 238[Commissioner (Appeals)], as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B shall, so far as may be, apply to such application. 239[(5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue. Explanation. - For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question (a) relating to the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 (5 of 1986), or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty of excise in cases where the assessment is made on or after the 28th day of February, 1986; or (c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or (d) whether any goods fall under a particular heading or subheading of the 240 [the First Schedule and the Second Schedule] of the Central Excise Tariff Act, 1985 (5 of 1986), or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or (e) whether the value of any goods for the purposes of assessment of duty of excise shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act.] On and from the appointed day the amendments shall be made in section 35E of the Central Excises and Salt Act, 1944, by s. 34 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986) and by s 11 of the Customs and Central Excises Laws (Amendment) Act, 1988. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act. 1995 (22 of 1995). Inserted (w.e.f. 11-5-2001 )by s. 129 of the Finance Act, 2001 (14 of 2001). In Section 35E of the Central Excise Act, for the word "Board", occurring in sub-sections (1) words "Committee of Chief Commissioners of Central Excise" shall be substituted by the Finance Act, 2005 In section 35E sub-section (2), for the words "such authority", the words "such authority or any Central Excise Officer subordinate to him" shall be substituted by Taxation Laws (Amendment) Act, 2006. Substituted (w.e.f. 26 5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). In section 35E, sub-section (3), shall be substituted by Finance Act, 2002, (20 of 2002) Published in Gazette of India, Extra, Part II, Section 1, dated May 13, 2002, No.23. In Section 35E of the Central Excise Act, for the word "Board", occurring in sub-sections (3) the words "Committee of Chief Commissioners of Central Excise" shallbe substituted by the Finance Act, 2005. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Inserted (To be brought into force from the date to be notified) by s. 11 of the Customs and Central Excise Laws (Amendment) Act, 1988 (29 of 1988). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). 35EA. Powers of revision of Board or Commissioner of Central Excise] in certain cases : 22(1) The Board may, of its own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which a 2[Commissioner of Central Excise] has passed any decision or order [not being a decision or order passed under sub- section (2) of this section] of the nature referred to in sub-section (5) of section 35E for the purpose of satisfying itself as to correctness, legality or propriety of (2) The 244[Commissioner of Central Excise] may, of his own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order of the nature referred to in sub-section (5) of section 35E for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as he thinks fit. (3) (a) No decision or order under this section shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity of making representation and if, he so desires, of being heard in his defence. (b) Where the Board or, as the case may be, the 245 [Commissioner of Central Excise] is of the opinion that any duty of excise has not been levied or has been short-levied or short-paid or erroneously refunded, no order requiring the affected person to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed under this section unless such person is given notice within the time-limit specified in section 11A to show cause against the proposed order. (4) No proceedings shall be initiated under sub-section (1) or subsection (2) in respect of any decision or order after the expiry of a period of six months from the date of communication of such decision or order : Provided that in respect of any decision or order passed before the commencement of the Customs and Central Excise Laws (Amendment) Act, 1988, the provisions of this subsection shall have effect as if for the words "six months", the words "one year" were substituted. (5) Any person aggrieved by any decision or order passed under sub- section (1) or sub-section (2) may appeal to the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986), against such decision or order.] Inserted (To be brought into force from the date to be notified) by s. 12 of the Customs and Central Excise Laws (Amendment) Act, 1988 (29 of 1988). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). 35EE. Revision by Central Government. : -2(1) The Central Government may, on the application of any person aggrieved by any order passed under section 35A , where the order is of the nature referred to in the first proviso to sub section (1) of section 35B , annul or modify such order: 247[Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.] Explanation. - For the purposes of this sub-section, "order passed under section 35A " includes an order passed under that section before the commencement of section 47 of the Finance Act, 1984 against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal. 248[(1A) The Commissioner of Central Excise may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 35A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order.] (2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months. 249 [(3) An application under sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of, (a) two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise officer in the case to which the application relates is one lakh rupees or less; (b) one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise officer in the case to which the application relates is more than one lakh rupees : Provided that no such fee shall be payable in the case of an application referred to in sub-section (1A).] (4) The Central Government may, of its own motion, annul or modify any order referred to in sub-section (1). (5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section, (a) in any case in which an order passed under section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value; and (b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified. (6) Where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in section 11 A .] Inserted by s. 50 of the Finance Act, 1984 (21 of 1984). Inserted by s. 126 of the Finance Act, 1999 (27 of 1999). Substituted by S.126 of the Finance Act, 1444 (27 of 1999). 35F. Deposit, pending appeal, of duty demanded or penalty levied. : - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the 1Commissioner (Appeals)) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the 251Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. 252 Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.] Substituted (W.e.f.26-51995) by S.70 of the Finance Act, 1945 (22 of 1945). Inserted (w.e.f. 11-5-2001) by S.130 of the Finance Act, 2001 (14 of 200l). 35G. Appeal to High Court : . 253 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35H. Application to High Court : 254 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35I. Power of High Court or Supreme Court to require statement to be amended : 255 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35j. Case before High Court to be heard by not less than two judges : 256 Omitted. Sec. 35(G), Sec. 35(H), Sec. 35(I) and Sec. 35(J) shall be Omitted by the National Tax Tribunal Act, 2005. 35K. Decision of High Court or Supreme Court on the case stated : (1)4The Supreme Court hearing any such case shall decide the question of law raised therein and shall deliver its judgment thereon containing the grounds on which such decision is founded 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 arc necessary to dispose of the case in conformity with such judgment. 258(1A) Where the High Court delivers a judgment in an appeal filed before it under section 35G, 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 259[reference t o 260an appeal to 261 the Supreme Court], which shall not include the fee for making the reference, shall be in the discretion of the Court. In Sec, 35K Sub-Sec.(1) the words "High Court or" shall be Omitted by the National Tax Tribunal Act, 2005. Inserted by "The Finance Act, 2003, w.e.f.1-7-2003 Substituted by "The Finance act, 2003" for "reference to the High Court or the Supreme Court" In Sec, 35K Sub-Sec.(2) words the "High Court or the" shall be Omitted by the National Tax Tribunal Act, 2005. 35L. Appeal to the Supreme Court : 262A n appeal shall lie to the Supreme Court from - 263(a) any judgment of the Court delivered (i) in an appeal made under section 35G; or . (ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) on a reference made under section 35H, (b) any order passed 264 "before the establishment of the National Tax Tribunal" before 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. The petition of appeal under Section 35L of the Central Excises and Salt Act, 1944, shall, subject to the provisions of Sections 4, 5 and 12 of the Limitation Act, 1963 (36 of 1963) be presented within sixty days from the date of the order sought to be appealed against or within sixty days from the date on which the order sought to be appealed against is communicated to the appellant, whichever is later provided that in computing the said period, the time requisite for obtaining a copy of such order shall be excluded. Rules 1 to 7 of Order XX-A of the Supreme Court Rules, 1966 relating to appeals under Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969), shall, with necessary modifications and adaptations apply to appeals under this order. [Authority. - Order XX-B of the Supreme Court Rules, 1966] Substituted by "The Finance Act, 2003 In Sec. 35(L) Clause (B) words "before the establishment of the National Tax Tribunal" shall be inserted by the National Tax Tribunal Act, 2005. 35M. Hearing before Supreme Court : . (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under section 35L as they apply in the case of appeals from decrees of a High Court: Provided that nothing in this sub-section shall be deemed to affect the provisions of subsection (1) of section 35K or section 35N . (2) The costs of the appeal shall be in the discretion of the Supreme Court. (3) Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of the Supreme Court in the manner provided in section 35K in the case of a judgment of the High Court. 35N. Sums due to be paid notwithstanding reference, etc. : - 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,265 "under this Act before the commencement of the National Tax Tribunal" sums due to the Government as a result of an order passed under sub-section (1) of section 35C shall be payable in accordance with the order so passed. In Sec. 35(N) the words "under this Act before the commencement of the National Tax Tribunal Act, 2005" shall be inserted by the National Tax Tribunal Act, 2005. 35O. Exclusion of time taken for copy : . - In computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of 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. 35P. Transfer of certain pending proceedings and transitional provisions : . (1) Every appeal which is pending immediately before the appointed day before the Board under section 35 , as it stood immediately before that day, and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day: Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard. (2) Every proceeding which is pending immediately before the appointed day before the Central Government under section 36 , as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it: Provided that if any such proceeding or matter relates to an order where (a) 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; (b) the amount of fine or penalty determined by such order, does not exceed ton thousand rupees, such proceeding or matter shall continue to be dealt with by the Central Government as if the said section 36 had not been substituted : Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with that proceeding or matter, he may be re-heard. (3) Every proceeding which is pending immediately before the appointed day before the Board or the 266Commissioner of Central Excise] under section 35A , as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall continue to be dealt with by the Board or the 267 Commissioner of Central Excise], as the case may be, as if the said section had not been substituted. (4) Any person who immediately before the appointed day was authorised to appear in any appeal or proceeding transferred under sub-section (1) or sub-section (2) shall, notwithstanding anything contained in section 35Q, have the right to appear before the Appellate Tribunal in relation to such appeal or proceeding. This Act has boon repealed by section 2 of the Gold (Control) Repeal Act, 1990 (18 of 1990). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). 35Q. Appearance by authorised representative. : (1) Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative. (2) For the purposes of this section, "authorised representative" means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being (a) his relative or regular employee; or (b) any legal practitioner who is entitled to practise in any civil court in India; or (c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose. (3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Service - Croup A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service, shall be entitled to appear as an authorised representative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation, as the case may be. (4) No person, (a) who has been dismissed or removed from Government service; or (b) who is convicted of an offence connected with any proceeding under this Act, the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act, 1968 (45 of 1968); or (c) who has become an insolvent, shall be qualified to represent any person under sub-section (1), for all times in the case of a person referred to in clause (a), and for such time as the 268Commissioner of Central Excise] or the competent authority under the Customs Act, 1962 or the Gold (Control) Act, 1968269 , as the case may be, may, by order, determine in the case of a person referred to in clause (b), and for the period during which the insolvency continues in the case of a person referred to in clause (c). (5) If any person, (a) who is a legal practitioner, is found guilty of mis-conduct in his professional capacity by any authority entitled to institute proceedings against him, an order passed by that authority shall have effect in relation to his right to appear before a Central Excise Officer or the Appellate Tribunal as it has in relation to his right to practise as a legal practitioner; (b) who is not a legal practitioner, is found guilty of mis-conduct in connection with any proceedings under this Act by the prescribed authority, the prescribed authority may direct that lie shall thenceforth be disqualified to represent any person under subsection (1). (6) Any order or direction under clause (b) of sub-section (4) or clause (b) of sub-section (5) shall be subject to the following conditions, namely :(a) no such order or direction shall be made in respect of any person unless he has been given a reasonable opportunity of being heard; (b) any person against whom any such order or direction is made may, within one month of the making of the order or direction, appeal to the Board to have the order or direction cancelled; and (c) no such order or direction shall take effect until the expiration of one month from the making thereof, or, where an appeal has been preferred, until the disposal of the appeal. Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995(22 of 1995). This Act has been repealed by section 2 of the Gold (Control) Repeal Act, 1990 (18 of 1990). 36. Definitions. : - In this Chapter (a) "appointed day" means the date of coming into force of the amendments to this Act specified in Part II of the Fifth Schedule to the Finance (No. 2) Act, 1980 ; (b) "High Court" means, (i) in relation to any State, the High Court for that State; (ii) in relation to a Union Territory to which the jurisdiction of the High Court of a State has been extended by law, that High Court; (iii) in relation to the Union Territories of Dadra and Nagar Haveli and 270 Daman and Diu,] the High Court at Bombay; (iv) in relation to any other Union Territory, the highest court of civil appeal for that territory other than the Supreme Court of India; (c) "President" means the President of the Appellate Tribunal]. Substituted (w.e.f. 30-5-1987) by the Goa, Daman and Diu Reorganisation Act, 1987 (10 of 1987). CHAPTER 6B PRESUMPTION AS TO DOCUMENTS 36A. Presumption as to documents in certain cases : . 271272 Where any document is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall, (a) unless the contrary is proved by such person, presume (i) the truth of the contents of such document; (ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that persons handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.] This Chapter heading was inserted [with effect from 11-10-1982 vide Notification No. GSR 597(E), dated 11-10-1982] by s. 5 read with Fifth Schedule to the Finance (No. 2) Act, 1980. This section was inserted by the Customs, Gold (Control ) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). 36B. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. : (1) Notwithstanding anything contained in any other law for the time being in force,(a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer print out"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules (2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely :(a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, ( a ) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.- For the purposes of this section, (a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.] CHAPTER 8 SUPPLEMENTAL PROVISIONS 37. Power of Central Government to make rules. : (1) The Central Government may make rules to carry into effect the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may 1( i ) provide for determining under section 4 the nearest ascertainable equivalent of the normal price; (ia) having regard to the normal practice of the wholesale trade, define or specify the kinds of trade discount to be excluded from the value under section 4 including the circumstances in which and the conditions subject to which such discount is to be so excluded;] 6(ib)] provide for the assessment and collection of duties of excise, the authorities by whom functions under this Act are to be discharged, the issue of notices requiring payment, the manner in which the duties shall be payable, and the recovery of duty not paid; 6(ibb) provide for charging or payment of interest on the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments;] 9(ic) provide for the remission of duty of excise leviable on any excisable goods, which due to any natural cause are found to be deficient in quantity, the limit or limits of percentage beyond which no such remission shall be allowed and the different limit or limits of percentage for different varieties of the same excisable goods or for different areas or for different seasons;] (ii) prohibit absolutely, or with such exceptions, or subject to such conditions as the Central Government thinks fit, the production or manufacture, or any process of the production or manufacture, of excisable goods, or of any component parts or ingredients or containers thereof, except on land or premises approved for the purpose; (iii) prohibit absolutely, or with such exceptions, or subject to such conditions, as the Central Government thinks fit, 9***] the transit of excisable goods from any part of 6India] to any other part thereof; (iv) regulate the removal of excisable goods from the place where produced, stored or manufactured or subjected to any process of production or manufacture and their transport to or from the premises of a 280registered] person, or a bonded warehouse, or to a market; (v) regulate the production or manufacture, or any process of the production or manufacture, the possession, storage and sale of salt, and so far as such regulation is essential for the proper levy and collection of the duties imposed by this Act, or of any other excisable goods, or of any component parts or ingredients or containers thereof; (vi) provide for the employment of officers of the 281Government] to supervise the carrying out of any rules made under this Act; (vii) require a manufacturer or the licensee of a warehouse to provide accommodation within the precincts of his factory or warehouse for officers employed to supervise the carrying out of regulations made under this Act and prescribe the scale of such accommodation; (viii) provide for the appointment, licensing, management and supervision of bonded warehouses and the procedure to be followed in entering goods into and clearing goods from such warehouses; (ix) provide for the distinguishing of goods which have been 282manufactured after registration], of materials which have been imported under licence, and of goods on which duty has been paid, or which are exempt from duty under this Act; (x) impose on persons engaged in the production or manufacture, storage or sale (whether on their own account or as brokers or commission agents) of salt, and, so far as such imposition is essential for the proper levy and collection of the duties imposed by this Act, (xi) require that excisable goods shall not be sold or offered or kept for sale in 283India] except in prescribed containers, bearing a banderol, stamp or label of such nature and affixed in such manner as may be prescribed; (xii) provide for the issue of 284registration certificate] and transport permits and the fees, if any, to be charged therefor : Provided that the fees for the licensing of the manufacture and refining of salt and saltpetre shall not exceed, in the case of each such licence, the following amounts, namely : Licence to manufacture and refine saltpetre and to Rs. separate and purify salt in the process of such manufacture and refining ... ... ... 50 Licence to manufacture saltpetre ... ... 2 Licence to manufacture sulphate of soda (Kharinun) by solar heat in evaporating pans ... ... 10 Licence to manufacture sulphate of soda (Kharinun) by artificial heat... 2 Licence to manufacture other saline substances ... 2 (xiii) provide for the detention of goods, plant, machinery or material, for the purpose of exacting the duty, the procedure in connection with the confiscation, otherwise than under section 10 or section 28 , of goods in respect of which breaches of the Act or rules have been committed and the disposal of goods so detained or confiscated; (xiv) authorise and regulate the inspection of factories and provide for the taking of samples, and for the making of tests, of any substance produced therein, and for the inspection or search of any place or conveyance used for the production, storage, sale or transport of salt, and so far as such inspection or search is essential for the proper levy and collection of the duties imposed by this Act, of any other excisable goods; (xv) authorise and regulate the composition of offences against, or liabilities incurred under this Act or the rules made thereunder; (xvi) provide for the grant of a rebate of the duty paid on goods which are exported out of India or shipped for consumption on a voyage to any port outside India 285[including interest thereon]; 286* * * * *] 287(xvia) provide for the credit of duty paid or deemed to have been 288(xvib) provide for the giving of credit of sums of money with respect to raw materials used in the manufacture of excisable goods]; 289(xvic) provide for charging and payment of interest as the case may be, on credit of duty paid or deemed to have been paid on the goods used in, or in relation to, the manufacture of excisable goods where such credit is varied subsequently;] (xvii) exempt any goods from the whole or any part of the duty imposed by this Act; 290(xviia) provide incentives for increased production or manufacture of any goods by way of remission of, or any concession with respect to, duty payable under this Act;] (xviii) define an area no point in which shall be more than one hundred yards from the nearest point of any place in which salt is stored or sold by or on behalf of the Central Government, or of any factory in which saltpetre is manufactured or refined, and regulate the possession, storage and sale of salt within such area; (xix) define an area round any other place in which salt is manufactured, and regulate the possession, storage and sale of salt within such area; (xx) authorise the 291[Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] or 292Commissioners of Central Excise] appointed for the purposes of this Act to provide, by written instructions, for supplemental matters arising out of any rule made by the Central Government under this section; 293(xxi) provide for the publication, subject to such conditions as may be specified therein, of names and other particulars of persons who have been found guilty of contravention of any of the provisions of this Act or of any rule made thereunder;] 294(xxii) provide for the charging of fees for the examination of excisable goods intended for export out of India and for rendering any other service by a Central Excise Officer under this Act or the rules made thereunder;] 295(xxiii) specify the 296form and manner] in which application for refund shall be made under section 11B ; (xxiv) provide for the manner in which money is to be credited to the Fund; (xxv) provide for the manner in which the Fund shall be utilised for the welfare of the consumers; (xxvi) specify the form in which the account and records relating to the Fund shall be maintained;] 297(xxvii) specify the persons who shall get themselves registered under section 6 and the manner of their registration.] 298(xxviii) provide for the lapsing of credit of duty lying unutilised with the manufacturer of specified excisable goods on an appointed date and also for not allowing such credit to be utilised for payment of any kind of duty on any excisable goods on and from such date.] 299(2A) The power to make rules conferred by clause (xvi) of sub-section (2) shall include the power to give retrospective effect to rebate of duties on inputs used in the export goods from a date not earlier than the changes in the rates of duty on such inputs.] (3) In making rules under this section, the Central Government may provide that any person committing a breach of any rule shall, where no other penalty is provided by this Act, be liable to a penalty not exceeding 300five thousand rupees]. 301(4) Notwithstanding anything contained in sub-section (3), and without prejudice to the provisions of section 9 , in making rules under this section, the Central Government may provide that if any manufacturer, producer or licensee of a warehouse (a) removes any excisable goods in contravention of the provisions of any such rule, or (b) does not account for all such goods manufactured, produced or stored by him, or (c) engages in the manufacture, production or storage of such goods without having applied for the 302[registration] required under section 6 , or 303(d) contravenes the provisions of any such rule with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the manufacturer, producer or licensee shall be liable to a penalty not exceeding the duty leviable on such goods or ten thousand rupees, whichever is greater;] 304( 5 ) Notwithstanding anything contained in sub-section (3), the Central Government may make rules to provide for the imposition upon any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or the rules made thereunder, a penalty 305 not exceeding the duty leviable on such goods or ten thousand rupees, whichever is greater]. Clause (i) was re-lettered as clause (ib) and that clause as so relettered and the clauses (i) and (ia) were inserted by s. 3 of the Central Excises and Salt (Amendment) Act, 1973 (22 of 1973). Inserted by s. 131 of the Finance Act, 1999 (27 of 1999). This clause was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/6/78-SRP (CCX), dated 19-6-1978] by s. 25 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Certain words were omitted by s. 2 and Sch. of the Taxation Laws (Extension to jammu and Kashmir) Act, 1954 (41 of 1954). This word was substituted for the words "the States" by s. 11 and Sch. IV of the Finance Act, 1950 (25 of 1950). this word was substituted by the A.O.1950. This word was substituted for the words "the States" by s. 11 and Sch. IV of the Finance Act, 1950 (25 of 1950). The proviso was omitted by s. 2 of the Central Excises and Salt (Amendment) Act, 1957 (49 of 1957). This clause was inserted by s. 51 of the Finance Act, 1986 (23 of 1986). paid on the goods used in, or in relation to the manufacture of excisable goods]; This clause was inserted by s. 96 of the Finance Act, 1987 (11 of 1987). This clause was inserted (w.e.f. 28-2-1982) by s. 48 of the Finance Act, 1982. These words were substituted (w.e.f. 1-1-1964) by s. 5 of the Central Boards of Revenue Act, 1963 (54 of 1963). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). This clause was inserted by s. 22 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Inserted by s. 6 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). Inserted [w.e.f. 20-9-1991 vide Notification No. 30/91-C.E. (N.T), dated 19-9-1991] by s. 8 of the Central Excises and Customs Laws (Amendment) Act, 1991 (No. 40 of 1991). Substituted (w.e.f. 26-5-1995) by s. 78 of the Finance Act, 1995 (22 of 1995). Inserted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). This clause inserted and shall be deemed to have been inserted with effect from 16-3-1995 by s. 131 of the Finance Act, 1999 (27 of 1999). Inserted (w.e.f. 26-5-1995) by s. 78 of the Finance Act, 1995 (22 of 1995). Substituted (w.e.f. 12-5-2000) for the words "two thousand rupees and that any article in respect of which any such breach is committed shall be confiscated" by s. 108 of the Finance Act, 2000 (10 of 2000) This sub-section was inserted by s. 38 of the Finance Act, 1968 (19 of 1968). Substituted (w.e.f. 14-5-1992) by s. 113 of the Finance Act, 1992 (18 of 1992). Substituted (w.e.f. 12-5-2000) by s. 108 of the Finance Act, 2000 (10 of 2000). This sub-section was inserted by s. 22 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973). Substituted (w.e.f. 12-5-2000) by s. 108 of the Finance Act, 2000 (10 of 2000). 37A. Delegation of powers : 3T he Central Government may, by notification in the Official Gazette 2 direct that subject to such conditions, if any, as may be specified in the notification (a) any power exercisable by the Board under this Act may be exercisable also by 3a 4Chief Commissioner of Central Excise] or a 4Commissioner of Central Excise]] empowered in this behalf by the Central Government; (b) any power exercisable by a 4Commissioner of Central Excise] under this Act may be exercisable also by a 4Joint Commissioner of Central Excise] or an 312Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] empowered in this behalf by the Central Government; (c) any power exercisable by a 313Joint Commissioner of Central Excise] under this Act may be exercisable also by an 314Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] empowered in this behalf by the Central Government; and (d) any power exercisable by an 315 Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under this Act may be exercisable also by a gazetted officer of Central Excise empowered in this behalf by the Board.] This section was inserted [w.e.f. 1-7-1978 vide Notification No. 227A/6/78-SRP-(CCX), dated 19- 6-1978] by s. 26 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (25 of 1978). Substituted [w.e.f. 1-7-1988 vide Notification No. 18/88-C.E. (N.T.), dated 29-6-1988] for the words "a Collector of Central Excise" by s.l4 of the Customs and Central Excises Laws (Amendment) Act, 1988 (29 of 1988). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). Substituted by s. 119 of the Finance Act, 1999 (27 of 1999). 37B. Instructions to Central Excise Officers. : - 316The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board: Provided that no such orders, instructions or directions shall be issued(a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the 317 Commissioner of Central Excise (Appeals)] in the exercise of his appellate functions.] Inserted by s. 7 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). Substituted (w.e.f. 26-5-1995) by s. 70 of the Finance Act, 1995 (22 of 1995). 37C. Service of decisions, orders, summons, etc. : 318 (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due, to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1).] Inserted by s. 7 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985). 37D. Rounding off of duty, etc. : 319 The amount of duty, interest, penalty, fine or any other sum payable, and the amount of refund or any other sum due, under the provisions of this Act shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rupee consisting of paise then, if such part is fifty paise or more, it shall be increased to one rupee and if such part is less than fifty paise it shall be ignored.] Inserted by Section 65 of the Finance Act, 1990 (12 of 1990). 37E. Publication of information respecting persons in certain cases : 320 (1) If the Central Government is of opinion that it is necessary or expedient in the public interest to publish the names of any person and any other particulars relating to any proceedings or prosecutions under this Act in respect of such person, it may cause to be published such names and particulars in such manner as it thinks fit. (2) No publication under this section shall be made in relation to any penalty imposed under this Act until the time for presenting an appeal to the Commissioner (Appeals) under section 35 or the Appellate Tribunal under section 35B, as the case may be, has expired without an appeal having been presented or the appeal, if presented, has been disposed of. Explanation -In the case of a firm, company or other association of persons, the names of the partners of the firm, directors, managing agents, secretaries and treasurers or managers of the company, or the members of the association, as the case may be, may also be published if, in the opinion of the Central Government, circumstances of the case justify it. After section 37D section 37E shall be inserted by Taxation Laws (Amendment) Act, 2006. 38. Publication of rules and notifications and laying of rules before Parliament. : 321(1) All rules made and notifications issued under this Act shall be published in the Official Gazette. 322(2) Every rule made under this Act, every notification issued under 323 section 3A , section 4A ,] sub-section (1) of section 5A and section 11C and every order made under sub-section (2) of section 5A , other than an order relating to goods of strategic, secret, individual or personal nature, shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or order, or both Houses agree that the rule should not be made or notification or order should not be issued or made, the rule or notification or order shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification or order.] This section was substituted by s. 4 of the Central Excises and Salt (Amendment) Act, 1973 (22 of 1973). Substituted (w.e.f. 26-5-1995) by s. 79 of the Finance Act, 1995 (22 of 1995). Inserted (w.e.f. 14-5-1997) by s. 84 of the Finance Act, 1997 (26 of 1997). 38A. Effect of amendments, etc., of rules, notifications or orders. : 324325 Where any rule, notification or order made or issued under this Act or any notification or order issued under such rule, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not (a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation of any rule, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, notification or order so amended, repealed, superseded or rescinded; or (d) affect any penalty, forfeiture or punishment incurred in respect o f any offence committed under or in violation of any rule, notification or order so amended, repealed, superseded or rescinded; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the rule, notification or order, as the case may be, had not been amended, repealed, superseded or rescinded. Inserted (w.e.f. 11-5-2001) by s. 131 of the Finance Act, 2001 (14 of 2001). Any action taken or anything done or omitted to be done under any rule, notification or order made under Central Excise Act, are declared to be valid by the following s. 132 of the Finance Act, 2001 (14 of 2001). 132. Validation of certain action taken. - Any action taken or anything done or omitted to be done or purporting to have been taken or done or omitted to be done under any rule, notification or order made or issued under the Central Excise Act, or any notification or order issued under such rule at any time during the period commencing on and from the 28th day of February, 1944 and ending with the day, the Finance Bill, 2001 receives the assent of the President, shall be deemed to be and to always have been, for all purposes, as validly and effectively taken or done or omitted to be done as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, (a) any action taken or anything done or omitted to be done, during the said period in respect of any excisable goods under any of such rule, notification or order, shall be deemed to be and shall be deemed to always have been, as validly taken or done or omitted to be done as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material limes; (b) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for any action taken or anything done or omitted to be done, in respect of any excisable goods under any of such rule, notification or order, and no enforcement shall be made by any court, of any decree or order relating to such action taken or anything done or omitted to be done as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material times; (c) recovery shall be made of all such amounts of duty or interest or penalty or fine or credit of duty in respect of inputs or capital goods or other charges which have not been collected or, as the case may be, which have been refunded, as if the amendment made by section 131 of the Finance Act, 2001 had been in force at all material times. Explanation. - For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. 39. Repeal of enactments. : [Repealed by the Repealing and Amending Act, 1947 (2 of 1948) s. 2 and Sch.] 40. Protection of action taken under the Act. : 326 (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in pursuance of this Act or any rule made thereunder. (2) No proceeding, other than a suit, shall be commenced against the Central Government or any officer of the Central Government or a State Government for anything done or purported to have been done in pursuance of this Act or any rule made thereunder, without giving the Central Government or such officer a months previous notice in writing of the intended proceeding and of the cause thereof or after the expiration of three months from the accrual of such cause.] Substituted by section 5 of the Central Excises and Salt (Amendment) Act, 1973 (22 of 1973). SCHEDULE 1 THE SCHEDULE 327 Omitted [w.e.f. 28-2-1986 vide M.F. (D.R.) Notification No. 10/86-C.E., dated 5-2-1986] by s. 4 of the Central Excise Tariff Act, 1985 (5 of 1986). **** SCHEDULE 2 THE SCHEDULE [See section 8 ]