Appeals
35. [(1) Any person aggrieved by any decision or order, other than an order of attachment and sale under section 11, passed by an Excise Officer under this Act or the rules made thereunder may, within three months from the date of such decision or order, appeal therefrom:-
(a) where the decision or order has been passed by an Excise Officer not superior in rank to an Additional Commissioner of Excise, to the Commissioner (Appeal); and
(b) where the decision or order has been passed by a Commissioner of Excise, Commissioner (Appeal) or an Excise Officer of equivalent rank, to the Appellate Tribunal constituted under section 196 of the Customs Act, hereinafter referred to as the Appellate Tribunal.
(1A) Upon receipt of an appeal under sub-section (1),-
(a) if the appeal has been preferred to the Commissioner (Appeal), the Commissioner (Appeal) may make such further enquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against:
Provided that no order imposing or enhancing any penalty or fine or requiring payment of a greater amount of duty than has been adjudged in the decision or order appealed against shall be passed by the appellate authority unless the person affected has been given an opportunity of showing cause against it and of being heard:
Provided further that the appellate authority may admit an appeal after the expiration of the aforesaid period, not exceeding two months from the date of such expiration, if he is satisfied that the appellant has sufficient cause for not preferring it within that period;
(b) if the appeal has been preferred to the Appellate Tribunal, the Appellate Tribunal shall, notwithstanding anything contained in this Act, dispose of the appeal, as far as practicable, in accordance with the provisions relating to the said Tribunal.]
[(1B)] Any person desirous of appealing under sub-section (1) against any decision or order relating to any duty demanded in respect of [services or of] goods which have ceased to be under [Excise] control, or to any penalty levied under the Act or the rules made thereunder, shall, pending the appeal, deposit the duty demanded or the penalty levied or both such duty and such penalty:
Provided the where, in any particular case, the appellate authority is of the opinion that deposit of duty demanded or penalty levied will cause undue hardship to the appellant, it may dispense with such deposit, either unconditionally or on such conditions as it may deem fit to impose.
(2) No appeal under sub-section (1) shall lie in any case after the [Board] has initiated any proceedings under section 35A in respect of such case.
[(3) Every appeal which is pending immediately before the appointed day before the Board under section 35 of this Act, 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 will dispose of such appeal or matter, as par as practicable, in accordance with the provisions laid down in section 196J of the Customs Act.
(4) Notwithstanding anything contained in this Act, an appeal under sub-section (1) shall be deemed to have been allowed if the appellate authority fails to make a decision or order thereon within a period of six months from the date the appeal was preferred.
Explanation.- For the purposes of this section, “appointed day” means the 1st day of October, 1995.]
