Section 35EA. Powers of revision of Board or

4[ 35EA. Powers of revision of Board or 5[ Principal Commissioner of Central Excise or Commissioner of Central Excise ] 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[5] [Principal Commissioner of Central Excise or 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 1. Ins. by Act 62 of 1986, s. 34, w.e.f. the appointed day under that Act. 2. Ins. by Act 29 of 1988, s. 11 (w.e.f. a date to be notified). 3. Subs. by Act 27 of 1999, s. 119, for "the Schedule". 4. Ins. by Act 29 of 1988, s. 12 (w.e.f. a date to be notified). 5. Subs. by Act 25 of 2014, s. 95, for "Commissioner of Central Excise". referred to in sub-section (5) of Section 35-E for the purpose of satisfying itself as to correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit. (2) The[1] [Principal Commissioner of Central Excise or 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 35-E 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[1] [Principal Commissioner of Central Excise or 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 11-A 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. (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.] 2 [35EE. Revision by Central Government. — (1) The Central Government may, on the application of any person aggrieved by any order passed under Section 35-A, where the order is of the nature referred to in the first proviso to sub-section (1) of Section 35-B, annul or modify such order: 3[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.] 1. Subs. by Act 25 of 2014, s. 95, for "Commissioner of Central Excise". 2. Ins. by Act 21 of 1984, s. 50 (w.e.f. 11-5-1984). 3. Ins. by Act 27 of 1999, s. 126(a) (w.e.f. 11-5-1999). Explanation .—For the purposes of this sub-section, "order passed under Section 35-A" includes an order passed under that section before the commencement of Section 47 of the Finance Act, 1984 (21 of 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. 1[(1A) The 2[Principal Commissioner of Central Excise or Commissioner of Central Excise] may, if he is of the opinion that an order passed by the Commissioner (Appeals) under Section 35-A 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[(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. 1. Ins. by Act 27 of 1999, s. 126(b) (w.e.f. 11-5-1999). 2. Subs. by Act 25 of 2014, s. 95, for "Commissioner of Central Excise". 3. Subs. by Act 27 of 1999, s. 126(c), for sub-section (3) (w.e.f. 11-5-1999). (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 11A.] 1 [ 35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal .— The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal— (i) under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the[2] [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii) against the decision or order referred to in clause (a) of sub-section (1) of Section 35-B, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of Section 35-B, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed Rupees Ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. Explanation .—For the purposes of this section "duty demanded" shall include,— (i) amount determined under Section 11D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under Rule 6 of the CENVAT Credit Rules, 2001 or the CENVAT Credit Rules, 2002 or the CENVAT Credit Rules, 2004.]