Customs - Acts 1962, Chapter- XV, Appeals and Revision.
CHAPTER XV -APPEALS AND REVISION
128. Appeals to Commissioner (Appeals).
128A. Procedure in appeal.
129. Appellate Tribunal
129A. Appeals to the Appellate Tribunal
129B. Orders of Appellate Tribunal.
129C. Procedure of Appellate Tribunal.
129D. Powers of Board or Commissioner of Customs to pass certain orders
129DA. Powers of revision of Board or Commissioner of Customs in certain cases.
129DD. Revision by Central Government.
129E. Deposit, pending appeal, of duty and interest demanded or penalty levied.
130. Statement of case to High Court.
130A. Application to High Court.
130B. Power of High Court or Supreme Court to require statement to be amended.
130C. Case before High Court to be heard by not less than two judges.
130D. Decision of High Court or Supreme Court on the case stated
130E. Appeal to Supreme Court
130F. Hearing before Supreme Court.
131. Sums due to be paid notwithstanding reference, etc.
131A. Exclusion of time taken for copy.
131B. Transfer of certain pending proceedings and transitional provisions.
131C. Definitions.
CHAPTER XV -APPEALS AND REVISION
- Appeals to Commissioner (Appeals). -
- Any person aggrieved by any decision or order passed under this Act
by an officer of customs lower in rank than a Commissioner of Customs
may appeal to the Commissioner (Appeals) within sixty days from the date
of the communication to him of such decision or order :
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.
(1A) The Commissioner (Appeals) may, if sufficient cause is shown at any
stage of hearing of an appeal, grant time, from time to time, to the
parties or any of them and adjourn the hearing of the appeal for reasons
to be recorded in writing :
Provided that no such adjournment shall be granted more than three times
to a party during hearing of the appeal.
- Every appeal under this section, shall be in such form and shall be
verified in such manner as may be specified by rules made in this
behalf.
128A. Procedure in appeal. -
- The Commissioner (Appeals) shall give an opportunity to the appellant to
be heard if he so desires.
- The Commissioner (Appeals) may, at the hearing of an appeal, allow the
appellant to go into any ground of appeal not specified in the grounds of
appeal, if the Commissioner (Appeals) is satisfied that the omission of that
ground from the grounds of appeal was not wilful or unreasonable.
- 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 Commissioner (Appeals) is of opinion that
any duty has not been levied or has been short-levied or erroneously
refunded, no order requiring the appellant to pay any duty not levied,
short-levied or erroneously refunded shall be passed unless the appellant is
given notice within the time-limit specified in section 28 to show cause
against the proposed order.
- The order of the 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.
(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.
- On the disposal of the appeal, the Commissioner (Appeals) shall
communicate the order passed by him to the appellant, the adjudicating
authority and the Chief Commissioner of Customs and the Commissioner of
Customs.
- Appellate Tribunal. -
- The Central Government shall constitute
an Appellate Tribunal to be called the Customs, Excise and Service Tax
Appellate Tribunal consisting of as many judicial and technical members as
it thinks fit to exercise the powers and discharge the functions conferred
on the Appellate Tribunal by this Act.
- judicial member shall be a person who has for at least ten years held
a judicial office in the territory of India or who has been a member of the
Indian Legal Service and has held a post in Grade I of that service or any
equivalent or higher post for at least three years, or who has been an
advocate for at least ten years.
Explanation. - For the purposes of this sub-section, -
- in computing the period during which a person has held judicial office
in the territory of India, there shall be included any period, after he has
held any judicial office, during which the person has been an advocate or
has held the office of a member of a tribunal or any post, under the Union
or a State, requiring special knowledge of law;
- in computing the period during which a person has been an advocate,
there shall be included any period during which the person has held a
judicial office, or the office of a member of a tribunal or any post, under
the Union or a State, requiring special knowledge of law after he became an
advocate.
(2A) A technical member shall be a person who has been a member of the
Indian Customs and Central Excise Service, Group A, and has held the post of
Commissioner of Customs or Central Excise or any equivalent or higher post
for at least three years.
- The Central Government shall appoint —
- a person who is or has been a Judge of a High Court; or
- one of the members of the Appellate Tribunal,
to be the President thereof.
- The Central Government may appoint one or more members of the Appellate
Tribunal to be the Vice-President, or, as the case may be, Vice-Presidents,
thereof.
- A Vice-President shall exercise such of the powers and perform such of
the functions of the President as may be delegated to him by the President
by a general or special order in writing.
129A. Appeals to the Appellate Tribunal. -
- Any person aggrieved by any
of the following orders may appeal to the Appellate Tribunal against such
order -
- a decision or order passed by the Commissioner of Customs as an
adjudicating authority;
- an order passed by the Commissioner (Appeals) under section 128A;
- an order passed by the Board or the Appellate Commissioner of Customs
under Section 128, as it stood immediately before the appointed day;
- an order passed by the Board or the Commissioner of Customs, either
before or after the appointed day, under section 130, as it stood
immediately before that day :
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, -
- any goods imported or exported as baggage;
- any goods loaded in a conveyance for importation into India, but which
are not unloaded at their place of destination in India, or so much of the
quantity of such goods as has not been unloaded at any such destination if
goods unloaded at such destination are short of the quantity required to be
unloaded at that destination;
- payment of drawback as provided in Chapter X, and the rules made thereunder :
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 -
- the value of the goods confiscated without option having been given to
the owner of the goods to pay a fine in lieu of confiscation under section
125; or
- in any disputed case, other than a case where the determination of any
question having a relation to the rate of duty of customs 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
- the amount of fine or penalty determined by such order, does not
exceed fifty thousand rupees.
(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 40 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 129DD as if such appeal or matter were an application
or a matter arising out of an application made to it under that section.
(1B)
- The board, may by notification in the Official Gazette, constitute
such Committees as may be necessary for purposes of the Act.
- Every Committee constituted under clause (i) shall consist of two Chief
Commissioners of Customs or two Commissioners of Customs, as the case may
be.
- The Committee of Commissioners of Customs may, if it is of opinion that
an order passed by the Appellate Commissioner of Customs under section 128,
as it stood immediately before the appointed day, or by the Commissioner
(Appeals) under section 128A, is not legal or proper, direct the proper
officer to appeal on its behalf to the Appellate Tribunal against such
order.
- 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 Commissioner of Customs, or as the case may be, the other party
preferring the appeal.
- On receipt of notice that an appeal has been preferred under this
section, the party against whom the appeal has been preferred may,
notwithstanding that he may not have appealed against such order or any part
thereof, file, within forty-five days of the receipt of the notice, a
memorandum of cross-objections verified in such manner as may be specified
by rules made in this behalf against any part of the order appealed against
and such memorandum shall be disposed of by the Appellate Tribunal as if it
were an appeal presented within the time specified in sub-section (3).
- 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.
- An appeal to the Appellate Tribunal shall be in such form and shall be
verified in such manner as may be specified by rules made in this behalf and
shall, irrespective of the date of demand of duty and interest or of levy of
penalty in relation to which the appeal is made, be accompanied by a fee of,
—
- where the amount of duty and interest demanded and penalty levied by any
officer of customs in the case to which the appeal relates is five lakh
rupees or less, one thousand rupees;
- where the amount of duty and interest demanded and penalty levied by any
officer of customs in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;
- where the amount of duty and interest demanded and penalty levied by any
officer of customs in the case to which the appeal relates is more than
fifty lakh rupees, ten 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).
- Every application made before the Appellate Tribunal, —
- in an appeal for grant of stay or for rectification of mistake or for
any other purpose; or
- for restoration of an appeal or an application,
shall be accompanied by a fee of five hundred rupees :
Provided that no such fee shall be payable in the case of an application
filed by or on behalf of the Commissioner of Customs under this sub-section.
129B. Orders of Appellate Tribunal. -
- 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.
(1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage
of hearing of an appeal, grant time to the parties or any of them and
adjourn the hearing of the appeal for reasons to be recorded in writing :
Provided that no such adjournment shall be granted more than three times to
a party during hearing of the appeal.
- The Appellate Tribunal may, at any time within six month 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 Commissioner
of Customs or the other party to the appeal:
Provided that an amendment which has the effect of enhancing the 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.
(2A) The Appellate Tribunal shall, where it is possible to do so, here and
decide every appeal within a period of three year from the date on which
such appeal is filed:
provided that where an order of stay is made in any proceedings relating to
an appeal filed under sub section (1) of section 129A, 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 expiry of that
period, stand vacated..
- The Appellate Tribunal shall send a copy of every order passed under
this section to the Commissioner of Customs and the other party to the
appeal.
- Save as otherwise provided in section 130 or section 130E, orders passed
by the Appellate Tribunal on appeal shall be final.
129C. Procedure of Appellate Tribunal. -
- The powers and functions of the
Appellate Tribunal may be exercised and discharged by Benches constituted by
the President from amongst the members thereof.
- Subject to the provisions contained in sub-section (4), a Bench shall
consist of one judicial member and one technical member.
- Omitted
- The President or any other member of the Appellate Tribunal authorized
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 -
- the value of the goods confiscated without option having been given to
the owner of the goods to pay a fine in lieu of confiscation under section
125; or
- in any disputed case, other than a case where the determination of any
question having a relation to the rate of duty of customs 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
- the amount of fine or penalty involved, does not exceed ten lakhs
rupees.
- 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 President 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 Appellate
Tribunal and such point or points shall be decided according to the opinion
of the majority of these members of the Appellate Tribunal who have heard
the case, including those who first heard it.
- Subject to the provisions of this Act, the Appellate Tribunal shall have
power to regulate its own procedure and the procedure of the 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.
- The Appellate Tribunal shall, for the purposes of discharging its
functions, have the same powers as are vested in a court under the Code of
Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the
following matters, namely :-
- discovery and inspection;
- enforcing the attendance of any person and examining him on oath;
- compelling the production of books of account and other documents; and
- issuing commissions.
- Any proceeding before the Appellate Tribunal shall be deemed to be a
judicial proceeding within the meaning of sections 193 and 228 and for the
purpose of section 196 of the Indian Penal Code (45 of 1860), and the
Appellate Tribunal shall be deemed to be a Civil Court for all the purposes
of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2
of 1974).
129D. Powers of Board or Commissioner of Customs to pass certain orders. -
- The Committee of Chief Commissioners of Customs, may, of its own motion,
call for and examine the record of any proceeding in which a Commissioner of
Customs 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
Commissioner 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 Committee of Chief Commissioners of Customs in its
order.
- The Commissioner of Customs 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 such authority to apply to the Commissioner
(Appeals) for the determination of such points arising out of the decision
or order as may be specified by the Commissioner of Customs in his order.
- the Committee of Chief Commissioners of Customs or the Commissioner of
Customs, 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 month,
but not beyond a period of one year, from the date of the decision or order
of the adjudicating authority.
- Where in pursuance of an order under sub-section (1) or sub-section (2),
the adjudicating authority or any officer of customs authorised in this
behalf by the Commissioner of Customs, makes an application to the Appellate
Tribunal or the 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 by the
Appellate Tribunal or the 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 129A shall, so far as
may be, apply to such application.
- 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 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 -
- relating to the rate of duty for the time being in force, whether under
the Customs Tariff Act, 1975 (51 of 1975), or under any other Central Act
providing for the levy and collection of any duty of customs, in relation to
any goods on or after the 28th day of February, 1986; or
- relating to the value of goods for the purposes of assessment of any
duty in cases where the assessment is made on or after the 28th day of
February, 1986; or
- whether any goods fall under a particular heading or sub-heading of the
First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of
1975), or that any goods are or not covered by a particular notification or
order issued by the Central Government granting total or partial exemption
from duty; or
- whether the value of any goods for the purposes of assessment of duty
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.
129DA. Powers of revision of Board or Commissioner of Customs in certain
cases. -
- 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 Commissioner of Customs 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 129D for
the purpose of satisfying itself as to the correctness, legality or
propriety of such decision or order and may pass such order thereon as it
thinks fit.
- The Commissioner of Customs 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 129D 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.
-
- 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.
- Where the Board or, as the case may be, the Commissioner of Customs is
of the opinion that any duty 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 28 to show cause
against the proposed order.
- No proceedings shall be initiated under sub-section (1) or sub-section
(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 Excises Laws (Amendment) Act, 1988,
the provisions of this sub-section shall have effect as if for the words
"six months", the words "one year" were substituted.
- 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.
129DD. Revision by Central Government. -
- The Central Government may, on
the application of any person aggrieved by any order passed under section
128A, where the order is of the nature referred to in the first proviso to
sub-section (1) of section 129A, annul or modify such order.
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 128A" includes an order passed under that section before the
commencement of section 40 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.
(1A) The Commissioner of Customs may, if he is of the opinion that an order
passed by the Commissioner (Appeals) under section 128A 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.
- 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.
- 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,-
- two hundred rupees, where the amount of duty and interest demanded, fine
or penalty levied by an officer of customs in the case to which the
application relates is one lakh rupees or less;
- one thousand rupees, where the amount of duty and interest demanded,
fine or penalty levied by an officer of customs 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).
- The Central Government may, of its own motion, annul or modify any order
referred to in sub-section (1).
- No order enhancing any penalty or fine in lieu of confiscation or
confiscating goods of greater value shall be passed under this section, -
- in any case in which an order passed under section 128A has enhanced any
penalty or fine in lieu of confiscation or has confiscated goods of greater
value, and
- 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.
- Where the Central Government is of opinion that any duty of customs 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 28.
129E. Deposit, pending appeal, of duty and interest demanded or penalty
levied. - Where in any appeal under this Chapter, the decision or order
appealed against relates to any duty and interest demanded in respect of
goods which are not under the control of the customs 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 proper officer
the duty and interest demanded or the penalty levied:
Provided that where in any particular case, the Commissioner (Appeals) or
the Appellate Tribunal is of opinion that the deposit of duty and interest
demanded or penalty levied would cause undue hardship to such person, the
Commissioner (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.
Provided further that where an application is filed before the Commissioner
(Appeals) for dispensing with the deposit of duty and interest demanded or
penalty levied under the first proviso, the Commissioner (Appeals) shall,
where it is possible to do so, decides such application within thirty days
from the date of its filing.
- Statement of case to High Court.
-
- An appeal shall lie to the High
Court from every order passed in appeal by the Appellate Tribunal or after
the first day of July 2003 (not being an order relating, among other things,
to the determination of any question having a relation to the rate of duty
of Customs or to the value of goods for purposes of assessment), if the High
Court is satisfied that the case involves substantial question of law.
The Commissioner of Customs or the other party aggrieved by any order passed
by the Appellate Tribunal may file an appeal to the High Court and such
appeal under this sub-section shall be -
- filed within one hundred and eighty days from the date on which the
order appealed against is received by the Commissioner of Customs or the
party;
- accompanied by a fee of two hundred rupees where such appeal is filed by
the other party;
- in the form of a memorandum of appeal precisely stating therein the
substantial question of law involved.
- Where the High Court is satisfied that a substantial question of law is
involved in any case, itself formulate the question.
- The appeal shall be heard only on the question so formulated, and the
respondents shall, at the hearing of the appeal, be allowed to argue that
the case does not involve such question.
Provided that nothing in this sub-section shall be deemed to take away or
abridge the power of the Court to hear, for the reasons to be recorded, the
appeal on any other substantial question of law nor formulated by it, if it
is satisfied that the case involves such question.
- The High Court shall decide the question of law so formulated and
deliver such judgment thereon containing the grounds on which such decision
is founded and may award such cost as it deems fit.
- The High Court may determine any issue which -
- has not been determined by the Appellate Tribunal, or
- has been wrongly determined by the Appellate Tribunal, by reason of a
decision on such question of law as is referred to in sub-section (1).
- When an appeal has been filed before the High Court, it shall be heard
by a bench of not less than two judges of the High Court and shall be
decided in accordance with the opinion of such judges or of majority, if
any, of such judges.
- Where there is not such majority the judges shall state the point of law
upon which they differ and the case shall, then, be heard upon that point
only by one or more of the other judges of the High Court and such points
shall be decided according to the opinion of the majority of the judges who
have heard the case including those who first heard it.
- Save as otherwise provided in this Act, the provisions of the Code of
Civil Procedure, 1908, relating to appeals to the High Court shall, as far
may be, apply in the case of appeals under this section.
130A. Application to High Court. -
- The Commissioner of Customs or the
other party may, within one hundred and eighty days of the date upon which
he is served with notice of an order under section 129B passed before the
first day of July, 2003 (not being an order relating, among other things, to
the determination of any question having a relation to the rate of duty of
customs or to the value of goods for purposes of assessment), by application
in the prescribed form, accompanied, where the application is made by the
other party, by a fee of two hundred rupees, apply to the High Court to
direct the Appellate Tribunal to refer to the High Court any question of law
arising from such order of the Tribunal.
- The Commissioner of Customs or the other party applying to the High
Court under sub-section (1) shall clearly state the question of law which he
seeks to be referred to the High Court and shall also specify the paragraph
in the order of the Appellate Tribunal relevant to the question sought to be
referred.
- On receipt of notice that an application has been made under sub-section
(1), the person against whom such application has been made, may,
notwithstanding that he may not have filed such application, 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 in relation to which an application for reference has been made and
such memorandum shall be disposed of by the High Court as if it were an
application presented within the time specified in sub-section (1).
- If, on an application made under sub-section (1), the High Court directs
the Appellate Tribunal to refer the question of law raised in the
application, the Appellate Tribunal shall, within one hundred and twenty
days of the receipt of such direction, draw up a statement of the case and
refer it to the High Court.
130B. Power of High Court or Supreme Court to require statement to be
amended. - If the High Court or the Supreme Court is not satisfied that the
statements in a case referred to it are sufficient to enable it to determine
the questions raised thereby, the Court may refer the case back to the
Appellate Tribunal for the purpose of making such additions thereto or
alterations therein as it may direct in that behalf.
130C. Case before High Court to be heard by not less than two judges.-
- When any case has been referred to the High Court under section 130 or
section 130A it shall be heard by a Bench of not less than two judges of the
High Court and shall be decided in accordance with the opinion of such
judges or of the majority, if any, of such judges.
- Where there is no such majority, the judges shall state the point of law
upon which they differ and the case shall then be heard upon that point only
by one or more of the other judges of the High Court, and such point shall
be decided according to the opinion of the majority of the judges who have
heard the case including those who first heard it.
130D. Decision of High Court or Supreme Court on the case stated.
-
- The
High Court or the Supreme Court hearing any such case shall decide the
questions 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 are
necessary to dispose of the case in conformity with such judgment.
(1A) Where the High Court delivers a judgment in an appeal filed before it
under section 130, effect shall be given to the order passed on the appeal
by the proper officer on the basis of a certified copy of the judgment.
- The costs of any reference to the High Court or an appeal to the High
Court or the Supreme Court, as the case may be, which shall not include the
fee for making the reference shall be in the discretion of the Court.
130E. Appeal to Supreme Court. - An appeal shall lie to the Supreme Court
from -
- any judgment of the High Court delivered-
- in an appeal made under section 130 or
- on a reference made under section 130 by the Appellate Tribunal before
the first day of July 2003;
- On a reference made under section 130A,
in any case, which, on its own motion or on an oral application made by or
on behalf of the party aggrieved, immediately after the passing of the
judgment, the High Court certifies to be a fit one for appeal to the Supreme
Court; or
- any order passed by the Appellate Tribunal relating, among other things,
to the determination of any question having a relation to the rate of duty
of customs or to the value of goods for purposes of assessment.
130F. Hearing before Supreme Court.
-
- 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 130E 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 sub-section (1) of section 130D or section 131.
- The costs of the appeal shall be in the discretion of the Supreme Court.
- 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 130D in the case of a judgment of the High Court.
- 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, sums due
to the Government as a result of an order passed under sub-section (1) of
section 129B shall be payable in accordance with the order so passed.
131A. Exclusion of time taken for copy. - In computing the period of
limitation specified for an appeal or application under this Chapter, the
day on which the order complained 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.
131B. Transfer of certain pending proceedings and transitional provisions. -
- Every appeal which is pending immediately before the appointed day
before the Board under section 128, 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.
- Every proceeding which is pending immediately before the appointed day
before the Central Government under section 131, 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 -
- the value of the goods confiscated without option having been given to
the owner of the goods to pay a fine in lieu of confiscation under section
125;or
- in any disputed case, other than a case where the determination of any
question having a relation to the rate of duty of customs 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
- the amount of fine or penalty determined by such order, does not exceed
ten thousand rupees, such proceeding or matter shall continue to be dealt
with by the Central Government as if the said section 131 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.
- Every proceeding which is pending immediately before the appointed day
before the Board or the Commissioner of Customs under section 130, 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 Commissioner of Customs, as the case may be,
as if the said section had not been substituted.
- 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 146A,
have the right to appear before the Appellate Tribunal in relation to such
appeal or proceeding.
131C Definitions. - In this Chapter -
- "appointed day" means the date of coming into force of the amendments to
this Act specified in Part I of the Fifth Schedule to the Finance (No. 2)
Act, 1980 (44 of 1980) ;
- "High Court" means,-
- in relation to any State, the High Court for that State;
- 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;
- in relation to the Union territories of Dadra and Nagar Haveli and
Daman and Diu, the High Court at Bombay;
- in relation to any other Union territory, the highest court of civil
appeal for that territory other than the Supreme Court of India;
- "President" means the President of the Appellate Tribunal.