THEME: LAW OF TAXATION-II

TITLE: POWER OF REVISION OF CENTRAL BOARD OF CUSTOMS AND EXCISE SUBMITTED BY: SHUBHA KEERTI CHATURVEDI ROLL NO. 362 IVTH YEAR B.A LL.B (HONS.) CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

SUBMITTED TO: MR. GANESH PANDEY FACULTY, TAXATION LAW-II

ACKNOWLEDGEMENT
As a child, you acknowledged everything you accomplished, as you grow older and more sophisticated, you acknowledge only major accomplishments but an endeavor of this magnitude would not have been possible without the invaluable help and support of Mr. Ganesh Pandey, I express a deep sense of gratitude to him. But I still fail to understand the scarcity of this page to put in the efforts of all those people who helped me and guided me through this small part of the paper that I have completed. Anything that I do in my life is incomplete without the blessings of my God who are my parents only.

SHUBHA KEERTI CHATURVEDI

METHODOLOGY OF RESEARCH
SUBJECT: TAXATION LAW-II TOPIC: POWER OF REVISION OF CENTRAL BOARD OF CUSTOMS AND EXCISE. OBJECTIVES: 1. To understand the concept Indirect tax. 2. To understand the concept of GST. 3. To know the importance of GST in the upcoming time. RESEARCH METHODOLOGY: Keeping the objectives in mind, material was collected with the help of different books and then it was compiled to make the theoretical part of the project. Recent and important case laws are analyzed. The methodology of my research is doctrinaire method. RESEARCH TOOLS: The research of this project was carried with the help of the Internet and Library of Chanakya National Law University. FOOTNOTING STYLE: In whole of my project uniform footnoting style is adopted in conformity Chanakya National Law University, Patna footnoting style along with blue book.

TABLE OF CONTENTS
INTRODUCTION . .................................................................................................. 5

AN OVER VIEW OF REVISION APPLICATION UNIT . 6

JURISDICTION OF REVISION APPLICATION UNIT ... 7

NORMS FOR FUNCTIONING OF REVISION APPLICATION UNIT .. 9

RELEVANT PROVISIONS UNDER CUSTOMS LAW...10

RELEVANT PROVISIONS UNDER EXCISE LAW ..13

CONCLUSION ............................................................ Error! Bookmark not defined.

BIBLIOGRAPHY ........................................................................................................ 16

INTRODUCTION

Central Board of Excise and Customs (CBEC) is a part of the Department of Revenue under the Ministry of Finance, Government of India. It deals with the tasks of formulation of policy concerning levy and collection of Customs & Central Excise duties and Service Tax, prevention of smuggling and administration of matters relating to Customs, Central Excise, Service Tax and Narcotics to the extent under CBEC's purview. The Board is the administrative authority for its subordinate organizations, including Custom Houses, Central Excise and Service Tax Commissionerates and the Central Revenues Control Laboratory.

AN OVER VIEW OF REVISION APPLICATION UNIT

Under the scheme operative till 10.10.1982, the appeal against the orders of the Commissioners (then called Collectors), of Customs & Central Excise lay with the Central Board of Excise & Customs. As far as the appeals against the orders passed by the authorities below the rank of the Collectors (now called Commissioner), were concerned, the same were to be filed before the appellate Collectors of Customs & Central Excise. Erstwhile Section 131 of the Customs Act, 1962 and Section 36 of the Central Excise & Salt Act, 1944, empowered the Central Government to revise the orders passed by the CBEC and appellate Collectors in exercise of their appellate jurisdiction. At the Government level, while Secretary (Revenue) or Special Secretary disposed of the Revision Application against orders passed by the CBEC, and the Addl. Secretary or Joint Secretary disposed of the applications against the orders passed by the appellate Collectors of Customs & Central Excise and executive collector of Customs and Central Excise. The Finance (No. 2) Act, 1980 sought to introduce a new system by establishing appellate Tribunal. The appellate jurisdiction of CBEC and Revisionary jurisdiction of the Central Government were abolished w.e.f. 11.10.1982, except a few residual transitional provisions and the Customs, Excise and Gold Appellate Tribunal (now CESTAT ) was set up w.e.f. 11.10.1982. The Finance Act, 1984, revived the Revisionary powers of the Central Government in specified type of cases. On the Customs side, Section 129 DD read with proviso to Section 129(A) of the Act, empowered Central Government to revise the appellate orders passed by the Commissioner of Customs (Appeals). On Central Excise side, Section 35EE read with first proviso to sub-section (ii) of Section 35B of the Central Excise Act, 1944 gave review and revisionary powers to Central Government to revise the orders passed by the Commissioner of Central Excise (Appeals). The Revision Application Unit of the Department of Revenue, Ministry of Finance, Government of India is dealing mainly with Revision Applications filed before Central Government in specified Customs and Central Excise matters under section 35 EE of Central Excise Act 1944 and section 129 DD of Customs Act 1962. The revision applications filed either by parties or department against the orders of Commissioners of Customs, Central Excise and Service Tax (Appeals) are considered and decided by Joint Secretary (RA) after following the due process of law.
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JURISDICTION OF REVISION APPLICATION UNIT

Customs jurisdiction - Section 129 DD read with proviso to Section 129 A (1) of Customs Act, 1962 empowered the Central Government to revise or review the appellate orders passed by Commissioner of Customs (Appeals) if such order related to:(a) Any goods imported or exported as baggage;

(b) 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 the destination; (c) Payment of drawback as provided in Chapter X and the rules made there under.

Central Excise jurisdiction - Section 35 EE read with proviso to Section 35 B (1) of Central Excise Act, 1944 empowered the Central Government to revise or review the appellate orders passed by Commissioner of Central Excise (Appeals) if such order related 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 manufactured of goods which are exported to any country or territory outside India; (c) Goods exported outside India (except to Nepal or Bhutan) without payment of duty. IATT jurisdiction - Rule 13 of Inland Air Travel Tax (IATT) Rules, 1989 empowered the Central Government to revise or review the appellate orders passed by Commissioner of Customs & Central Excise (Appeals) if such order related to payment of IATT. FTT jurisdiction - Rule 15 of Foreign Travel Tax (FTT) Rules, 1979 empowered the Central Government to revise or review the appellate orders passed by Commissioner of Customs & Central Excise (Appeals) if such order related to Payment of Foreign Travel Tax.
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The Joint Secretary(RA) passes the final GOI Revision Orders on behalf of Central Government after following due process of law1. Under the Custom and Central Excise Law, the Central Government is the highest authority in these revision and review matters and orders passed by Central Government are final. However, the petitioners, aggrieved with said orders, are taking recourse to writ petitions under Article 226 of Constitution of India. The Revisionary Authority becomes functus officio after passing the final GOI Revision Orders.

Rules of the erstwhile Central Excise Rules, 1944.

NORMS FOR FUNCTIONING OF RA UNIT

The Revision Application Unit receives the revision application in prescribed form EA-8/CA-8 filed by department as well as parties. The stipulated time for filing such applications is 90 days from the date of communication of order-in-appeal. The delay upto 90 days can be condoned by Central Government in deserving cases2. The revision application Unit on receipt of revision applications issues the acknowledgement to the applicant along with deficiency memo in documents if any. Simultaneously, a check-list in prescribed format is also prepared. Notice is issued to respondent party for filing counter reply. Thereafter, personal hearing is fixed / held in cases, in the order of seniority. Out of turn hearings are allowed only in deserving cases involving substantial revenue, recurring issue resulting into multiplicity of cases, interest liability, the issue is no longer res integra, passenger is going abroad and cases of financial hardship. After completion of hearing, final revision order is issued by JS(RA).

Maharashtra to abolish octroi duty: Deshmukh, Financial Express, http://www.financialexpress.com/news/maharashtra-to-abolish-octroi-duty-deshmukh/260436/

Jan

12,

2008,

See

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RELEVANT PROVISIONS UNDER CUSTOMS LAW 129DA. Powers of revision of Board or Commissioner of Customs in certain cases.
(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 Commissioner of Customs has passed any decision or order [not being a decision or order passed under subsection (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. (2) 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. (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 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. (4) 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.

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(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.

129DD. Revision by Central Government.

(1) 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 subsection (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. (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. (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,-

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(a) 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; (b) 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). (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 128A 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 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.

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RELEVANT PROVISIONS UNDER EXCISE LAW SECTION 35EE. Revision by Central Government.
(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 : 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 Tribunal3. (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. (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, -

Anthony Mitchell, Outsourcing Could Be Affected by Indian Tax, E-Commerce Times,March 08, 2004, available at http://www.ecommercetimes.com/story/35472.html?wlc=1287831351

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(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-levied4, 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 11A.

Anil Kumar Shah, Tax Guru, December 8, 2009, available at http://taxguru.in/. html

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CONCLUSION
The Central Board of Excise and Customs (CBEC) is the national agency responsible for administering Customs, Central Excise & Service Tax in India. The Customs & Central Excise department was established in the year 1855 by the then British Governor General of India, to administer customs laws in India and collection of import duties / land revenue5. It is one of the oldest government departments of India. Currently the Customs and Excise department comes under the Department of Revenue, Ministry of Finance. IRS officers start their careers as Assistant Commissioners in the field and within 20 25 years rise to the post of Chief Commissioners, with a few senior most officers who become Members of CBEC / CESTAT / Settlement Commission.

Notification No. 2\2010, dated 27.02.2010

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BIBLIOGRAPHY

Books Referred: 1. V. S. Datey, Indirect Tax 26th ed. Taxmann. 2. Sukumar Mukhopadhyay, Essays on Indirect Taxes, 1st Ed., Manupatra.

Website referred: 1. www.manupatra.com 2. www.google.com 3. www.businesslawyer.in 4. http://www.blonet/businessline/2001/07/31/stories/043120ju.html 5. http://research.lawyers.com/glossary/horizontal-agreement.html 6. http://www.businessdictionary.com/definition/shrinkwrapped-software.html 7. http://www.cbec.gov.in/customs/cst-0809/chap-85.pdf 8. http://www.indiainbusiness.nic.in/.htm 9. http://www.servicetax.gov.in/st-actmainpg.htm

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