By V Unnikrishnan

An attempt is being made to examine the feasibility of changes to the existing system of Revision Application before the Govt.of India in certain type of cases:-

Both under the Central Excises Act, 1944 and Customs Act, 1962, there are certain type of cases for which the person aggrieved against the orders passed by the Commissioner(Appeals), are debarred from seeking further remedy before the CESTAT . Ever since the insertion of Chapter VI A in CESA,1944 w.e.f 11-10-1982 vide section 50 read with Fifth Schedule of Finance (No.2) Act, 1980 and setting up of CEGAT, the procedural remedies through Appeals have been revised and streamlined.

The appeals against any decision or orders passed by any officer below the rank of Commissioner could be filed before the Commissioner (Appeals) as per section 35. Further, the second appeal against the orders passed by the Commissioner (Appeals) could be filed in terms of section 35-B.As per the first proviso to the said section 35-B(substituted vide s.47 of Finance Act,1984), --'no appeal shall lie to the Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order passed by the Commissioner (Appeals) under s.35-A, 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 goods in a warehouse or in storage, whether in a factory or 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 manufacture of goods which are exported to any or any territory outside India.

(c) - goods exported outside India (except to Nepal or Bhutan) without payment of duty.'

Thus in all the cases relating to loss in transit or storage or process, rebate claims, or proof of export under bond; the CESTAT has no jurisdiction to accept or decide in any appeal.

But all the same, even now we find appeals being filed before the CESTAT by established assessees like PSUs (even Commissioners as well) and the Tribunal disposes of the same in due course stating that they have no jurisdiction to decide such matters.

The section 35-EE inserted vide s.50 of Finance Act,1984,reads :-' 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 sub-section (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.'

Thus on a revision application filed by any person in all the above type of cases the Central Government, may annul or modify such order'. In other words, the Joint Secretary to the GOI after affording a personal hearing can pass orders to annul or modify the impugned orders. However, we can also see many orders in which even de novo have been ordered. Hence, at present even if any person is aggrieved against any orders on the above issues passed by the large no. of Commissioner(Appeals ) stationed all over the country, the only next remedy against the same is filing an application to the GOI   at Delhi in terms of s.35-EE. The rationale in not allowing the appellate remedy from the CESTAT is not clear ; especially when there are now six   Benches at various places in   the country. The only positive aspect in filing the revision application is wrt the monetary limit of Rs.5000 (as against Rs.50,000 before CESTAT) .So also is the rates of fee to be paid--. Under s.35-EE the fee is Rs.200 up to Rs.One lakh and Rs.1000 for above one lakh; as against the minimum of Rs. 1000 before CESTAT.

It is also to be noted that the CESTAT is empowered under s.35-C 'to pass orders as it thinks fit,confirming,modifying or annulling the decision or order, or may refer back for de novo after taking additional evidence, if necessary.' Thus the scope of an appeal before CESTAT is much wider than   an application under s.35-EE.cited .But fact remains that before all the Benches of CESTAT, there are Appeals pending even more than five years even after the insertion of sub-section 2A in s.35-C.from 11-5-2002.

Even if the CESTAT is not to be overburdened with the specific issues referred to in s.35-B as quoted above; there is no justification in restricting the revision application to be filed at Delhi only. After all, it is well admitted that "Dilli to Door Hai" for all concerned, except the locals of that area.

It is also pertinent to note that the revision application against an order passed by the Commissioner (Appeals) of the rank of Joint Secretary is being again heard and decided by an officer of the same rank and that too from the very same IC&CE services.

It would appear that no serious attempt has ever been made to review the arrangement in tune with the changes brought out in the field set up.

Unlike 1980s, now there are the Chief Commissioners posted in almost every state -and in many places even separate CCs for both Central Excise and Customs .All these very senior level officers are not properly vested with statutory powers in the Act or rules for their effective functioning. Many functions now vested with Govt. of India or CBEC can very well be delegated to these senior officers. The issue on hand is a typical example .

In terms of s.35-E, from 13-5-2005 onwards, already there is the set up of Committee of Chief Commissioners all over the country    for the review of   the orders passed by the Commissioners of Cex and Customs. However, as per s.35-B(2) there is also the Committee of Commissioners authorized to review the orders of Commissioner (Appeals),not withstanding the newly inserted provision in s.35-A(5) that the orders passed are to be given to the CCs w.e.f   13-5-2005. The arrangement for departmental review of orders passed by Commissioner (Appeals) could also be entrusted to the Committee of CC's   under s. 35-E instead of the   committee of Commissioners now envisaged.(which was the original proposal in the Finance Bill,2005).

All these periodical changes in law and the catena of Tribunal decisions and Court judgments on the related matters establish that there is no more justification in the continuance of the present provisions of law on the issue of revision powers under s.35-EE.

Strangely, there are no amendments to s.35-EE after F.Act,1999 and there was no corresponding changes carried out regarding the maximum no. of adjournments restricted to three(by Finance Act,2004 from 10-9-2004- both under s.35 and 35-C) , the time limit for disposal of appeals (both under s.35-A(4A) and 35-C(2A)) etc. As per sub-section (2A) of s.35-C inserted from 11-5-2002,the Tribunal shall, where it is possible to do so, hear and decide every appeal within three years from the date on which appeal is filed.

It would, therefore, emerge that an urgent review is called for    in the present day arrangement. Instead of the present provisions,   action may be initiated to streamline the system either by (i)- empowering the Committee of CC's to hear and dispose the revision applications on issues of the type referred to in s.35-B;OR (ii)-. allowing the CESTAT to hear the appeals in such matters as well-no matter the alarming pendency figures before each Bench of CESTAT. This would go a long way in affording the assessees the second appellate remedy easily accessible; rather than all being   compelled to go to Delhi as at present .

Similar provisions are provided in the Customs Act, 1962 in relation to the Revision Authority in respect of cases relating to Baggage, drawback etc. in terms of Section 129-B and 129-DD of the Customs Act,1962.

  The relevant proviso to section 129-B reads as under:-

'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) any goods imported 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 that destination;

(c) payment of drawback as provided in Chapter X, and the rules made there under '

Again the section 129-DD reads as under :-

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 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.'

From the above provisions it may be noted that the same lines of reasoning in central excise cases, would hold good in the present arrangement in Customs cases as well. All the more the International passengers cannot be made to go to Delhi in cases where their baggage gets involved in cases due to the ambiguity in the Baggage Rules, 1978.

The suggestions on the changes in relevant section 35-B and 35-EE of CEA,1944 as discussed above could be mutatis   mutandis made applicable to the sections 129-B and 129-DD of the Customs Act as well.

(The author is working with the Dept and the views expressed are personal)