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The Central Excise Act, 1944
[Act No. 1 of 1944]
[24th February, 1944]
An Act to consolidate and amend the law relating to
Central Duties of Excise
Chapter II Levy & Collection of Duty
Section 3. Duties specified in First Schedule
and the Second Schedule to the Central Excise Tariff Act, 1985 to
be levied. -
(1) There shall be levied and collected in such manner as may be
prescribed, - (a)a duty of excise
to be called the Central Value Added Tax (CENVAT)] on all
excisable goods (excluding goods produced or manufactured in
special economic zones) which are produced or manufactured
in India as, and at the rates, set forth in the First Schedule to
the Central Excise Tariff Act, 1985 (5 of 1986); (b)
a special duty of excise, in addition to the duty of excise
specified in clause (a) above, on excisable goods excluding goods
produced or manufactured in special economic zones specified in
the Second Schedule to the Central Excise Tariff Act, 1985 (5 of
1986) which are produced or manufactured in India, as, and at the
rates, set forth in the said Second Schedule.
Provided that the duties of excise which shall
be levied and collected on any excisable goods which are produced
or manufactured,- (i) Omitted. (ii)
by a hundred per cent export-oriented undertaking and brought to
any other place in India, shall be an amount equal to the
aggregate of the duties of customs which would be leviable
under the Customs Act, 1962 (52 of 1962) or any other law
for the time being in force, on like goods produced or
manufactured outside India if imported into India, and where the
said duties of customs are chargeable by reference to their
value; the value of such excisable goods shall, notwithstanding
anything contained in any other provision of this Act, be
determined in accordance with the provisions of the Customs Act,
1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975).
Explanation 1. - Where in respect of any
such like goods, any duty of customs leviable for the time being
in force is leviable at different rates, then, such duty shall,
for the purposes of this proviso, be deemed to be leviable at the
highest of those rates. Explanation
2. - In this proviso, - (i)
Omitted. (ii) "hundred per
cent export-oriented undertaking" means an undertaking which has
been approved as a hundred per cent export-oriented undertaking
by the Board appointed in this behalf by the Central Government
in exercise of the powers conferred by section 14 of the
Industries (Development and Regulation) Act, 1951 (65 of 1951),
and the rules made under that Act.;
(iii) "Special Economic Zone" has the meaning assigned to
it in clause (za) of section 2 of the Special Economic Zones Act,
2005 (28 of 2005). (1A) The
provisions of sub-section (1) shall apply
in respect of all excisable goods other than salt which are
produced or manufactured in India by, or on behalf of,
Government, as they apply in respect of goods which are not
produced or manufactured by Government. (2) The Central
Government may, by notification in the Official Gazette, fix, for
the purpose of levying the said duties, tariff values of any
articles enumerated, either specifically or under general
headings, in the First Schedule and the Second Schedule to the
Central Excise Tariff Act, 1985 (5 of 1986) as chargeable with
duty ad valorem and may alter any tariff values for the
time being in force. (3) Different tariff values may be
fixed - (a) for different
classes or descriptions of the same excisable goods; or
(b) for excisable goods of the same class
or description -
(i)
produced or manufactured by different classes of producers or
manufacturers; or
(ii) sold
to different classes of buyers :
Provided that in fixing different tariff values in respect of
excisable goods falling under sub-clause (i) or sub-clause (ii),
regard shall be had to the sale prices charged by the different
classes of producers or manufacturers or, as the case may be, the
normal practice of the wholesale trade in such goods.
Section 3A. Power of Central Government to
charge excise duty on the basis of capacity of production in
respect of notified goods:
(1) Notwithstanding anything contained in section 3, where the
Central government, having regard to the nature of the process of
manufacture or production of excisable goods of any specified
description, the extent of evasion of duty in regard to such
goods or such other factors as may be relevant, is of the opinion
that is necessary to safeguard the interest of revenue, specify,
by notification in the Official Gazette, such goods as notified
goods and there shall be levied and collected duty of excise on
such goods in accordance with the provisions of this section.
(2) Where a notification is issued under sub-section (1), the
Central Government may, by rules,__
(a) provide the manner for determination
of the annual capacity of production of the factory, in which
such goods are produced, by an officer not below the rank of
Assistant Commissioner of Central Excise and such annual capacity
of production shall be deemed to be the annual production of such
goods by such factory; or (b)
(i) specify the factor relevant to the production of such goods
and the quantity that is deemed to be produced by use of a unit
of such factor; and (ii) provide
for the determination of the annual capacity of production of the
factory in which such goods are produced on the basis of such
factor by an officer not below the rank of Assistant Commissioner
of Central Excise and such annual capacity of production shall be
deemed to be the annual production of such goods by such factory:
Provided that where a factory
producing notified goods is in operation only during a part of
the year only, the annual production thereof shall be calculated
on proportionate basis of the annual capacity of production:
Provided further that in a case where the
factor relevant to the production is altered or modified at any
time during the year, the annual production shall be redetermined
on a proportionate basis having regard to such alteration or
modification. (3) The duty of excise on notified goods
shall be levied, at such rate, on the unit of production or, as
the case may be, on such factor relevant to the production, as
the Central Government may, by notification in the Official
Gazette, specify, and collected in such manner as may be
prescribed: Provided that, where a
factory producing notified goods did not produce the notified
goods during any continuous period of fifteen days or more, duty
calculated on a proportionate basis shall be abated in respect of
such period if the manufacturer of such goods fulfils such
conditions as may be prescribed. (4) The provision of
this section shall not apply to goods produced or manufactured,
by a hundred per cent export - oriented undertaking and brought
to any other place in India. Explanation
1: For the removal of doubts, it is hereby clarified that for
the purposes of section 3 of the Customs Tariff Act, 1975 (51 of
1975), the duty of excise leviable on the notified goods shall be
deemed to be the duty of excise leviable on such goods under the
First Schedule and the Second Schedule to the Central Excise
Tariff Act, 1985 (5 0f 1986) read with any notification for the
time being in force. Explanation 2: For
the purposes of this section the expressions "hundred per cent
export - oriented undertaking" shall have the meanings
assigned to it in section 3. Explanation
3: For the purposes of sub-section (2) and (3), word "factor"
includes "factors".
Section 4. Valuation of excisable goods for
purposes of charging of duty of excise. -
(1) Where under this Act, the duty of excise is chargeable
on any excisable goods with reference to their value, then, on
each removal of the goods, such value shall -
- (a) in a case where the goods are sold by the assessee,
for delivery at the time and place of the removal, the assessee
and the buyer of the goods are not related and the price is the
sole consideration for the sale, be the transaction value;
- (b) in any other case, including the case where the
goods are not sold, be the value determined in such manner as
may be prescribed.
Explanation.
- For the removal of doubts, it is hereby declared that the
price-cum-duty of the excisable goods sold by the assessee shall
be the price actually paid to him for the goods sold and the
money value of the additional consideration, if any, flowing
directly or indirectly from the buyer to the assessee in
connection with the sale of such goods, and such price-cum-duty,
excluding sales tax and other taxes, if any, actually paid,
shall be deemed to include the duty payable on such goods.
(2) The provisions of this section shall not apply in respect of
any excisable goods for which a tariff value has been fixed under
sub-section (2) of section 3. (3) For the purpose of this
section,-
- (a) "assessee" means the person who is liable to pay the
duty of excise under this Act and includes his agent;
- (b) persons shall be deemed to be "related" if -
- (i) they are inter-connected undertakings;
- (ii) they are relatives;
- (iii) amongst them the buyer is a relative and a
distributor of the assessee, or a sub-distributor of such
distributor; or
- (iv) they are so associated that they have
interest, directly or indirectly, in the business of each
other.
Explanation. -
In this clause -
(i) "inter-connected
undertakings" means two or more undertakings which are
inter-connected with each other in any of the following
manners, namely:-
(A) if one
owns or controls the other; (B)
where the undertakings are owned by firms, if such firms have
one or more common partners; (C)
where the undertakings are owned by bodies corporate,- (I)
if one body corporate manages the other body corporate; or (II)
if one body corporate is a subsidiary of the other body
corporate; Or (III)
if the bodies corporate are under the same management; or (IV)
if one body corporate exercises control over the other body
corporate in any other manner; (D)
where one undertaking is owned by a body corporate and the
other is owned by a 'firm, if one or more partners of the
firm,- (I)
hold, directly or indirectly, not less than fifty per cent. of
the shares, whether preference or equity, of the body
corporate; or (II)
exercise control, directly or indirectly, whether as director
or otherwise, over the body corporate; (E)
if one is owned by a body corporate and the other is owned by
a firm having bodies corporate as its partners, if such bodies
corporate are under the same management; (F)
if the undertakings are owned or controlled by the same person
or by the same group; (G)
if one is connected with the other either directly or through
any number of undertakings which are inter-connected
undertakings within the meaning of one or more of the
foregoing sub-clauses. Explanation
I:- For the purposes of this clause, two bodies corporate
shall be deemed to be under the same management- (i)
if one such body corporate exercises control over the other or
both are under the control of the same group or any of the
constituents of the same group; or (ii)
if the managing director or manager of one such body corporate
is the managing director or manager of the other; or (iii)
if one such body corporate holds not less than one-fourth of
the equity shares in the other or controls the composition of
not less than one-fourth of the total membership of the Board
of directors of the other; or (iv)
if one or more directors of one such body corporate
constitute, or at any time within a period of six months
immediately preceding the day when the question arises as to
whether such bodies corporate are under the same management,
constituted (whether independently or together with relatives
of such directors or employees of the first mentioned body
corporate) one-fourth of the directors of the other; or (v)
if the same individual or individuals belonging to a group,
while holding (whether by themselves or together with their
relatives) not less than one-fourth of the equity shares in
one such body corporate also hold (whether by themselves or
together with their relatives) not less than one-fourth of the
equity shares in the other; or (vi)
if the same body corporate or bodies corporate belonging to a
group, holding, whether independently or along with its or
their subsidiary or subsidiaries, not less than one-fourth of
the equity shares in one body corporate, also hold not less
than one-fourth of the equity shares in the other; or (vii)
if not less than one-fourth of the total voting power in
relation to each of the two bodies corporate is exercised or
controlled by the same individual (whether independently or
together with his relatives) or the same body corporate
(whether independently or together with its subsidiaries); or
(viii)
if not less than one-fourth of the total voting power in
relation to each of the two bodies corporate is exercised or
controlled by the same individuals belonging to a grow or by
the same bodies corporate belonging to a group, or jointly by
such individual or individuals and one or more of such bodies
corporate; or (ix)
if the directors of one such body corporate are accustomed to
act in accordance with the directions or instructions of one
or more of the directors of the other, or if the directors of
both the bodies corporate are accustomed to act in accordance
with the directions or instructions of an individual, whether
belonging to a group or not. Explanation
II:- If a group exercises control over a body corporate, that
body corporate and every other body corporate, which is a
constituent of, or controlled by, the group shall be deemed to
be under the same management. Explanation
III :- If two or more bodies corporate under the same
management hold, in the aggregate, not less than one-fourth
equity share capital in any other body corporate, such other
body corporate shall be deemed to be under the same management
as the first mentioned bodies corporate. Explanation
IV:- In determining whether or not two or more bodies
corporate are under the same management, the shares held by
financial institutions in such bodies corporate shall not be
taken into account.
Illustration
Undertaking B is inter-connected with undertaking A and
undertaking C is inter-connected with undertaking B.
Undertaking C is inter-connected with undertaking A; if
undertaking D is inter-connected with undertaking C,
undertaking D will be inter-connected with undertaking B and
consequently with undertaking A; and so on. Explanation
V:- For the purposes of this clause, "group" means a group
of- (i)
two or more individuals, associations of individuals, firms,
trusts, trustees or bodies corporate (excluding financial
institutions), or any combination thereof, which exercises, or
is established to be in a position to exercise, control,
directly or indirectly, over any body corporate, firm or
trust; or (ii)
associated persons. Explanation
VI:- For the purposes of this clause,- (I)
a group of persons who are able, directly or indirectly, to
control the policy of a body corporate, firm or trust, without
having a-controlling interest in that body corporate, firm or
trust, shall also be deemed to be in a position to exercise
control over it; (II)
"associated persons"- (a)
in relation to a director of a body corporate, means- (i)
a relative of such director, and includes a firm in which such
director or his relative is a partner; (ii)
any trust of which any such director or his relative is a
trustee; (iii)
any company of which such director, whether independently or
together with his relatives, constitutes one-fourth of its
Board of directors; (iv)
any other body corporate, at any general meeting of which not
less than one-fourth of the total number of directors of such
other body corporate are appointed or controlled by the
director of the first mentioned body corporate or his
relative, whether acting singly or jointly; (b)
in relation to the partner of a firm, means a relative of such
partner and includes any other partner of such firm; and (c)
in relation to the trustee of a trust, means any other trustee
of such trust; (III)
where any person is an associated person in relation to
another, the letter shall also be deemed to be unassociated
person in relation to the former;
(ii) "relative" shall
have the meaning assigned to it in clause (41) of section 2
of the Companies Act, 1956 (1 of 1956);
- (c) "place of removal" means -
(i) a factory or any
other place or premises of production or manufacture of the
excisable goods;
(ii) a warehouse or any
other place or premises wherein the excisable goods have been
permitted to be deposited without payment of duty;
(iii) a depot, premises of a
consignment agent or any other place or premises from where the
excisable goods are to be sold after their clearance from the
factory;
from where such goods are
removed;
- (cc) "time of removal", in respect of the excisable
goods removed from the place of removal referred to in
sub-clause (iii) of clause (c), shall be deemed to be the time
at which such goods are cleared from the factory;
- (d) "transaction value" means the price actually paid or
payable for the goods, when sold, and includes in addition to
the amount charged as price, any amount that the buyer is liable
to pay to, or on behalf of, the assessee, by reason of, or in
connection with the sale, whether payable at the time of the
sale or at any other time, including, but not limited to, any
amount charged for, or to make provision for, advertising or
publicity, marketing and selling organization expenses, storage,
outward handling, servicing, warranty, commission or any other
matter; but does not include the amount of duty of excise, sales
tax and other taxes, if any, actually paid or actually payable
on such goods.
Section 4A. Valuation of excisable goods
with reference to retail sale price. -
(1) The Central Government may, by notification in
the Official Gazette, specify any goods, in relation to which it
is required, under the provisions of the Legal Metrology Act,
2009 (1 of 2010) or the rules made thereunder or under any other
law for the time being in force, to declare on the package
thereof the retail sale price of such goods, to which the
provisions of sub-section (2) shall apply.
(2) Where the goods specified under sub-section (1)
are excisable goods and are chargeable to duty of excise with
reference to value, then, notwithstanding anything contained in
section 4, such value shall be deemed to be the retail sale price
declared on such goods less such amount of abatement, if any,
from such retail sale price as the Central Government may allow
by notification in the Official Gazette. (3)
The Central Government may, for the purpose of allowing any
abatement under sub-section (2), take into account the amount of
duty of excise, sales tax and other taxes, if any, payable on
such goods. (4) Where any goods specified
under sub-section (1) are excisable goods and the manufacturer -
- (a) removes such goods from the
place of manufacture, without declaring the retail sale price of
such goods on the packages or declares a retail sale price which
is not the retail sale price as required to be declared under
the provisions of the Act, rules or other law as referred to in
sub-section (1); or
- (b) tampers with, obliterates or
alters the retail sale price declared on the package of such
goods after their removal from the place of manufacture,
then, such goods shall be liable to confiscation and the
retail sale price of such goods shall be ascertained in the
prescribed manner and such price shall be deemed to be the
retail sale price for the purposes of this section.
Explanation 1. - For the
purposes of this section, "retail sale price" means the maximum
price at which the excisable goods in packaged form may be sold
to the ultimate consumer and includes all taxes, local or
otherwise, freight, transport charges, commission payable to
dealers, and all charges towards advertisement, delivery,
packing, forwarding and the like and the price is the sole
consideration for such sale:
Provided that in case the provisions of the
Act, rules or other law as referred to in sub-section (1)
require to declare on the package, the retail sale price
excluding any taxes, local or otherwise, the retail sale price
shall be construed accordingly.
Explanation 2.
- For the purposes of this section, -
(a) where
on the package of any excisable goods more than one retail sale
price is declared, the maximum of such retail sale prices shall
be deemed to be the retail sale price;
(b) where the
retail sale price, declared on the package of any excisable
goods at the time of its clearance from the place of
manufacture, is altered to increase the retail sale price, such
altered retail sale price shall be deemed to be the retail sale
price;
(c) where
different retail sale prices are declared on different packages
for the sale of any excisable goods in packaged form in
different areas, each such retail sale price shall be the
retail sale price for the purposes of valuation of the
excisable goods intended to be sold in the area to which the
retail sale price relates.
Section 5. Remission of duty on goods found
deficient in quantity. -
(1) The Central Government may, by rules made under this section,
provide for remission of duty of excise leviable on any excisable
goods which due to any natural cause are found to be deficient in
quantity. (2) Any rules made under sub-section (1) may,
having regard to the nature of the excisable goods or of d
processing or of curing thereof, the period of their storage or
transit and other relevant considerations, fix the limit or
limits of percentage beyond which no such remission shall be
allowed : Provided that different
limit or limits of percentage may be fixed for different
varieties of the same excisable goods or for different areas or
for different seasons.
Section 5A. Power to grant
exemption from duty of excise. -
(1) If the Central Government is satisfied that it is
necessary in the public interest so to do, it may, by
notification in the Official Gazette exempt generally either
absolutely or subject to such conditions (to be fulfilled before
or after removal) as may be specified in the notification,
excisable goods of any specified description from the whole or
any part of the duty of excise leviable thereon:
Provided that, unless specifically provided in such
notification, no exemption therein shall apply to excisable goods
which are produced or manufactured -
(i) in a free trade zone or a special economic zone and brought
to any other place in India; or
(ii) by a hundred per cent export-oriented undertaking and
brought to any place in India. Explanation.
- In this proviso, "free trade zone", "special economic zone" and
"hundred per cent export-oriented undertaking" shall have the
same meanings as in Explanation 2 to sub-section (1) of
section 3. (1A) For the removal of doubts,
it is hereby declared that where an exemption under sub-section
(1) in respect of any excisable goods from the whole of the duty
of excise leviable thereon has been granted absolutely, the
manufacturer of such excisable goods shall not pay the duty of
excise on such goods. (2) If the Central Government is
satisfied that it is necessary in the public interest so to do,
it may, by special order in each case, exempt from payment of
duty of excise, under circumstances of an exceptional nature to
be stated in such order, any excisable goods on which duty of
excise is leviable. (2A) The Central Government may, if
it considers it necessary or expedient so to do for the purpose
of clarifying the scope or applicability of any notification
issued under sub-section (1) or order issued under sub-section
(2), insert an explanation in such notification or order, as the
case may be, by notification in the Official Gazette at any time
within one year of issue of the notification under sub-section
(1) or order under sub-section (2), and every such explanation
shall have effect as if it had always been the part of the first
such notification or order, as the case may be.
(3) An exemption under sub-section (1) or sub-section (2)
in respect of any excisable goods from any part of the duty of
excise leviable thereon (the duty of excise leviable thereon
being hereinafter referred to as the statutory duty) may be
granted by providing for the levy of a duty on such goods at a
rate expressed in a form or method different from the form or
method in which the statutory duty is leviable and any exemption
granted in relation to any excisable goods in the manner provided
in this sub-section shall have effect subject to the condition
that the duty of excise chargeable on such goods shall in no case
exceed the statutory duty. Explanation.
- "Form or method", in relation to a rate of duty of excise means
the basis, namely, valuation, weight, number, length, area,
volume or other measure with reference to which the duty is
leviable :
(4) Every notification issued under sub-rule (1), and
every order made under sub-rule (2), of rule 8 of the Central
Excise Rules, 1944, and in force immediately before the
commencement of the Customs and Central Excises Laws (Amendment)
Act, 1988 (29 of 1988) shall be deemed to have been issued or
made under the provisions of this section and shall continue to
have the same force and effect after such commencement until it
is amended, varied, rescinded or superseded under the provisions
of this section.
(5) Every notification issued under sub-section (1)
or sub-section 2(A) shall, -
(a) unless otherwise provided, come into force on the
date of its issue by the Central Government for publication in
the Official Gazette;
(b) also be published and offered for sale on the
date of its issue by the Directorate of Publicity and Public
Relations, Customs and Central Excise, New Delhi, under the
Central Board of Excise and Customs constituted under the Central
Boards of Revenue Act, 1963 (54 of 1963).
(6) Notwithstanding anything contained in sub-section
(5), where a notification comes into force on a date later than
the date of its issue, the same shall be published and offered
for sale by the said Directorate of Publicity and Public
Relations on a date on or before the date on which the said
notification comes into force.
Section 5B. Non-reversal of CENVAT
credit. -
Where an assessee has paid duty of excise on a final
product and has been allowed credit of the duty or tax or cess
paid on inputs, capital goods and input services used in making
of the said product, but subsequently the process of making the
said product is held by the court as not chargeable to excise
duty, the Central Government may, by notification, order for
non-reversal of such credit allowed to the assessee subject to
such conditions as may be specified in the said notification :
Provided that the order for non-reversal of
credit shall not apply where an assessee has preferred a claim
for refund of excise duty paid by him :
Provided further that the Central Government may
also specify in the notification referred to above for
non-reversal of credit, if any, taken by the buyer of the said
product.
SECTION 6. Registration of certain
persons. -
Any prescribed person who is engaged in-
(a) the production or manufacture or any
process of production or manufacture of any specified goods
included in the First Schedule and the Second Schedule to the
Central Excise Tariff Act, 1985 (5 of 1986), or
(b) the wholesale purchase or sale
(whether on his own account or as a broker or commission agent)
or the storage of any specified goods included in the First
Schedule and the Second Schedule to the Central Excise Tariff
Act, 1985 (5 of 1986), shall get himself registered with the
proper officer in such manner as may be prescribed.
Section 7. Omitted.
Section 8. Restriction on
possession of excisable goods -
From such date as may be specified in this behalf by the
Central Government by notification in the Official Gazette, no
person shall, except as provided by rules made under this Act,
have in his possession any goods specified in the Second
Schedule in excess of such quantity as may be prescribed
for the purposes of this section as the maximum amount of such
goods or of any variety of such goods which may be possessed at
any one time by such a person.
Section 9. Offences and penalties.
-
(1) Whoever commits any of the following offences, namely:
-
(a)
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contravenes any of the provisions of section 8 or of a
rule made under clause (iii) or clause (xxvii) of sub-section
(2) of section 37;
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(b)
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evades the payment of any duty payable under this Act;
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(bb)
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removes any excisable goods in contravention of any of
the provisions of this Act or any rules made thereunder
or in any way concerns himself with such removal;
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(bbb)
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acquires possession of, or in any way concerns himself
in transporting, depositing, keeping, concealing, selling or
purchasing, or in any other manner deals with any excisable
goods which he knows or has reason to believe are liable to
confiscation under this Act or any rule made thereunder;
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(bbbb)
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Contravenes any of the provisions of this Act or the
rules made thereunder in relation to credit of any duty
allowed to be utilised towards payment of excise duty on final
products;
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(c)
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fails to supply any information which he is required by
rules made under this Act to supply, or (unless with a
reasonable belief, the burden of proving which shall be upon
him, that the information supplied by him is true) supplies
false information;
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(d)
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attempts to commit, or abets the commission of, any of
the offences mentioned in clauses (a) and (b) of this section
shall be punishable, -
(i) in the case of an offence relating to any excisable
goods, the duty leviable thereon under this Act exceeds fifty
lakhs of rupees, with imprisonment for a term which may extend
to seven years and with fine :
Provided that in the absence of special and
adequate reasons to the contrary to be recorded in the
judgment of the Court such imprisonment shall not be for a
term of less than six months;
(ii) in any other case, with imprisonment for a term
which may extend to three years or with fine or with both.
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(2) If any person convicted of an offence under this
section is again convicted of an offence under this section,
then, he shall be punishable for the second and for every
subsequent offence with imprisonment for a term which may extend
to seven years and with fine :
Provided that in the absence of special and
adequate reasons to the contrary to be recorded in the judgment
of the Court such imprisonment shall not be for a term of less
than six months.
(3) For the purposes of sub-sections (1) and (2), the
following shall not be considered as special and adequate reasons
for awarding a sentence of imprisonment for a term of less than
six months, namely:-
(i) the fact that the accused has
been convicted for the first time for an offence under this Act;
(ii) the fact that in
any proceeding under this Act, other than a prosecution, the
accused has been ordered to pay a penalty or the goods in
relation to such proceedings have been ordered to be confiscated
or any other action has been taken against him for the same act
which constitutes the offence;
(iii) the fact that the
accused was not the principal offender and was acting merely as a
carrier of goods or otherwise was a secondary party in the
commission of the offence;
(iv) the age of the
accused.
Section 9A. Certain offences to be
non-cognizable.-
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973(2 of 1974), offences under section 9,
except the offences referred to in sub-section (1A), shall be
non-cognizable within the meaning of that Code.
(2) Any offence under this Chapter may, either before or
after the institution of prosecution, be compounded by the
Principal Chief Commissioner of Central Excise or Chief
Commissioner of Central Excise on payment, by the person accused
of the offence to the Central Government, of such compounding
amount and in such manner of compounding as may be prescribed:
Provided that nothing contained in this sub
-section shall apply to ---
(a) a person who has been allowed
to compound once in respect of any of the offences under the
provisions of clause (a),(b),(bb),(bbb),(bbbb) or (c) of sub
-section (1) of section 9;
(b) a person who has been accused
of committing an offence under this Act which is also an offence
under the Narcotic Drugs and Psychotropic Substance Act,1985 (61
of 1985);
(c) a person who has been allowed
to compound once in respect of any of the offence under this
Chapter for goods of value exceeding rupees one crore;
(d) a person who has been convicted
by the court under this Act on or after the 30th day of December,
2005.
Section 9AA. Offences by
companies. -
(1) Where an offence under this Act has been
committed by a company, every person who, at the time the offence
was committed was in charge of, and was responsible to, the
company for the conduct of the business of the company, as well
as the company, shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this
sub-section shall render any such person liable to any punishment
provided in this Act, if he proves that the offence was committed
without his knowledge or that he had exercised all due diligence
to prevent the commission of such offence.
(2) Notwithstanding anything contained in
sub-section (1), where an offence under this Act has been
committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable
to any neglect on the part of, any director, manager, secretary
or other officer of the company, such director, manager,
secretary or other officer shall also be deemed to be guilty of
that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation. - For the purposes of this
section, -
(a) "company" means anybody
corporate and includes a firm or other association of
individuals; and
(b) "director" in relation to
a firm means a partner in the firm.
Section 9B. Power of
Court to publish name, place of business, etc., of persons
convicted under the Act. -
(1) Where any person is convicted under this
Act for contravention of any of the provisions thereof, it shall
be competent for the Court convicting the person to cause the
name and place of business or residence of such person, nature of
the contravention, the fact that the person has been so convicted
and such other particulars as the Court may consider to be
appropriate in the circumstances of the case, to be published at
the expense of such person, in such newspapers or in such manner
as the Court may direct.
(2) No publication under sub-section (1) shall
be made until the period for preferring an appeal against
the orders of the Court has expired without any appeal having
been preferred, or such an appeal, having been preferred, has
been disposed of.
(3) The expenses of any publication under
sub-section (1) shall be recoverable from the convicted person as
if it were a fine imposed by the Court.
Section 9C. Presumption of
culpable mental state. -
(1) In any prosecution for an offence
under this Act which requires a culpable mental state on the part
of the accused, the Court shall presume the existence of such
mental state but it shall be a defence for the accused to prove
the fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.
Explanation. - In this section, "culpable
mental state" includes intention, motive, knowledge of a fact,
and belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact is
said to be proved only when the Court believes it to exist
beyond reasonable doubt and not merely when its existence is
established by a preponderance of probability.
Section 9D. Relevancy of
statements under certain circumstances. -
(1) A statement made and signed by a person before any
Central Excise Officer of a Gazette rank during the course of any
inquiry or proceeding under this Act shall be relevant, for the
purpose of proving, in any prosecution for an offence under this
Act, the truth of the facts which it contains, -
(a) when the person who made the
statement is dead or cannot be found, or is incapable of giving
evidence, or is kept out of the way by the adverse party, or
whose presence cannot be obtained without an amount of delay or
expense which, under the circumstances of the case, the Court
considers unreasonable; or
(b) when the person who made the
statement is examined as a witness in the case before the Court
and the Court is of opinion that, having regard to the
circumstances of the case, the statement should be admitted in
evidence in the interests of justice.
(2) The provisions of sub-section (1) shall, so far as may
be, apply in relation to any proceeding under this Act,
other than a proceeding before a Court, as they apply in relation
to a proceeding before a Court.
Section 9E. Application of section 562
of the Code of Criminal Procedure, 1898, and of the Probation of
Offenders Act, 1958.
(1) Nothing contained in section 562 of
the Code of Criminal Procedure, 1898 (5 of 1898), or in the
Probation of Offenders Act, 1958 (20 of 1958), shall apply to a
person convicted of an offence under this Act unless that person
is under eighteen years of age.
(2) The provisions of sub-section (1) shall
have effect notwithstanding anything contained in sub-section (3)
of section 9.
Section 10. Power of Courts
to order forfeiture.
- Any Court trying an offence under this Chapter may order
the forfeiture to Government of any goods in respect of which the
Court is satisfied that an offence under this Chapter has been
committed, and may also order the forfeiture of any receptacles,
packages or coverings in which such goods are contained and the
animals, vehicles, vessels or other conveyances used in carrying
the goods, and any implements or machinery used in the
manufacture of the goods.
Section 11. Recovery
of sums due to Government. -
In respect of duty and any other sums of any kind payable
to the Central Government under any of the provisions of this Act
or of the rules made thereunder including the amount required to
be paid to the credit of the Central Government under Section
11D, the officer empowered by the Central Board of Excise and
Customs constituted under the Central Boards of Revenue Act, 1963
(54 of 1963) to levy such duty or require the payment of such
sums [may deduct or require any other Central Excise officer or a
proper officer referred to in section 142 of the customs act,
1962 (52 of 1962) to deduct the amount so payable from any money
owing to the person from whom such sums may be recoverable or due
which may be in his hands or under his disposal or control or may
be in the hands or under disposal or control of such other
officer, or may recover the amount] by attachment and sale of
excisable goods belonging to such person; and if the amount
payable is not so recovered, he may prepare a certificate signed
by him specifying the amount due from the person liable to
pay the same and send it to the Collector of the district in
which such person resides or conducts his business and the said
Collector, on receipt of such certificate, shall proceed to
recover from the said person the amount specified therein as if
it were an arrear of land revenue.
Provided that where the person (hereinafter
referred to as predecessor) from whom the duty or any other sums
of any kind, as specified in this section, is recoverable or due,
transfers or otherwise disposes of his business or trade in whole
or in part, or effects any change in the ownership thereof, in
consequence of which he is succeeded in such business or trade by
any other person, all excisable goods, materials, preparations,
plants, machineries, vessels, utensils, implements and articles
in the custody or possession of the person so succeeding may also
be attached and sold by such officer empowered by the Central
Board of Excise and Customs, after obtaining written approval
from the Principal Commissioner of Central Excise or Commissioner
of Central Excise, for the purposes of recovering such duty or
other sums recoverable or due from such predecessor at the time
of such transfer or otherwise disposal or change.
(2) (i) The Central Excise Officer may, by a notice in writing,
require any other person from whom money is due to such person,
or may become due to such person, or who holds or may
subsequently hold money for or on account of such person, to pay
to the credit of the Central Government either forthwith upon the
money becoming due or being held, or at or within the time
specified in the notice, not being before the money becomes due
or is held, so much of the money as is sufficient to pay the
amount due from such person or the whole of the money when it is
equal to or less than that amount; (ii) every
person to whom a notice is issued under this sub-section shall be
bound to comply with such notice, and in particular, where any
such notice is issued to a post office, banking company or an
insurer, it shall not be necessary to produce any pass book,
deposit receipt, policy or any other document for the purpose of
any entry, endorsement or the like being made before payment is
made, notwithstanding any rule, practice or requirement to the
contrary; (iii) in a case where the person to
whom a notice under this sub-section has been issued, fails to
make the payment in pursuance thereof to the Central Government,
he shall be deemed to be a person from whom duty and any other
sums of any kind payable to the Central Government under any of
the provisions of this Act or the rules made thereunder have
become due, in respect of the amount specified in the notice and
all the consequences under this Act shall follow.
Section 11A. Recovery of duties not levied or
not paid or short-levied or short-paid or erroneously refunded.-
(1) Where any duty of excise has not been levied or paid or
has been short-levied or short-paid or erroneously refunded, for
any reason, other than the reason of fraud or collusion or any
wilful misstatement or suppression of facts or contravention of
any of the provisions of this Act or of the rules made thereunder
with intent to evade payment of duty,-
(a) the Central Excise Officer shall, within one year from
the relevant date, serve notice on the person chargeable with the
duty which has not been so levied or paid or which has been so
short-levied or short-paid or to whom the refund has erroneously
been made, requiring him to show cause why he should not pay the
amount specified in the notice;
(b) the person chargeable with duty may, before service of
notice under clause (a), pay on the basis of,-
(i) his own ascertainment of such duty; or
(ii)the duty ascertained by the Central Excise Officer,
the amount of duty along with interest payable thereon under
section 11AA.
(2) The person who has paid the duty under clause (b) of
sub-section (1), shall inform the Central Excise Officer of such
payment in writing, who, on receipt of such information, shall
not serve any notice under clause (a) of that sub-section
in respect of the duty so paid or any penalty leviable under
the provisions of this Act or the rules made thereunder.
(3) Where the Central Excise Officer is of the opinion that the
amount paid under clause (b) of sub-section (1) falls
short of the amount actually payable, then, he shall proceed to
issue the notice as provided for in clause (a) of that
sub-section in respect of such amount which falls short of the
amount actually payable in the manner specified under that
sub-section and the period of one year shall be computed from the
date of receipt of information under sub-section (2).
(4) Where any duty of excise has not been levied or paid or
has been shortlevied or short-paid or erroneously refunded, by
the reason of-
(a) fraud; or
(b) collusion; or
(c) any wilful mis-statement; or
(d) suppression of facts; or
(e) contravention of any of the provisions of this Act or
of the rules made thereunder with intent to evade payment of
duty,
by any person chargeable with the duty, the Central Excise
Officer shall, within five years from the relevant date, serve
notice on such person requiring him to show cause why he should
not pay the amount specified in the notice along with interest
payable thereon under section 11AA and a penalty equivalent to
the duty specified in the notice.
(5 ) to (7) Omitted
(7A) Notwithstanding anything contained in sub-section (1)
or sub-section (3) or sub-section (4), the Central Excise Officer
may, serve, subsequent to any notice or notices served under any
of those sub-sections, as the case may be, a statement,
containing the details of duty of central excise not levied or
paid or short-levied or short-paid or erroneously refunded for
the subsequent period, on the person chargeable to duty of
central excise, then, service of such statement shall be deemed
to be service of notice on such person under the aforesaid
sub-section (1) or subsection (3) or sub-section (4) or
sub-section (5), subject to the condition that the grounds relied
upon for the subsequent period are the same as are mentioned in
the earlier notice or notices.
(8) Where the service of notice is stayed by an order of a
court or tribunal, the period of such stay shall be excluded in
computing the period of one year referred to in clause (a) of
sub-section (1) or five years referred to in sub-section (4), as
the case my be.
(9) Where any appellate authority or Tribunal or court
concludes that the notice issued under sub-section (4) is not
sustainable for the reason that the charges of fraud or collusion
or any wilful mis-statement or suppression of facts or
contravention of any of the provisions of this Act or of the
rules
made thereunder with intent to evade payment of duty has not been
established against the person to whom the notice was issued, the
Central Excise Officer shall determine the duty of excise payable
by such person for the period of one year, deeming as if the
notice were issued under clause (a) of sub-section (1).
(10) The Central Excise Officer shall, after allowing the
concerned person an opportunity of being heard, and after
considering the representation, if any, made by such person,
determine the amount of duty of excise due from such person not
being in excess of the amount specified in the notice.
(11) The Central Excise Officer shall determine the amount
of duty of excise under sub-section (10)-
(a) within six months from the date of notice in respect
of cases falling under subsection (1);
(b) within one year from the date of notice, where it is
possible to do so, in respect of cases falling under sub-section
(4)
(12) Where the appellate authority or tribunal or court
modifies the amount of duty of excise determined by the Central
Excise Officer under sub-section (10), then the amount of
penalties and interest under this section shall stand modified
accordingly, taking into account the amount of duty of excise so
modified.
(13) Where the amount as modified by the appellate
authority or tribunal or court is more than the amount determined
under sub-section (10) by the Central Excise Officer, the time
within which the interest or penalty is payable under this Act
shall be counted from the date of the order of the appellate
authority or tribunal or court in respect of such increased
amount.
(14) Where an order determining the duty of excise is
passed by the Central Excise Officer under this section, the
person liable to pay the said duty of excise shall pay the amount
so determined along with the interest due on such amount whether
or not the amount of interest is specified separately.
(15) The provisions of sub-section (1) to 14 shall apply,
mutatis mutandis, to the recovery of interest where interest
payable has not been paid or part paid or erroneously refunded.
(16) The provisions of this section shall not apply to a
case where the liability of duty not paid or short-paid is
self-assessed and declared as duty payable by the assessee in the
periodic returns filed by him, and in such case, recovery of
non-payment or short-payment of duty shall be made in such manner
as may be prescribed.
Explanation 1.-For the purposes of
this section and section 11AC,-
(a) "refund" includes rebate of duty of excise on
excisable goods exported out of India or on excisable materials
used in the manufacture of goods which are exported out of India;
(b) "relevant date" means,-
(i) in the case of excisable goods on which duty of excise
has not been levied or paid or has been short-levied or
short-paid, and no periodical return as required by the
provisions of this Act has been filed, the last date on which
such return is required to be filed under this Act and the rules
made thereunder;
(ii) in the case of excisable goods on which duty of
excise has not been levied or paid or has been short-levied or
short-paid and the return has been filed, the date on which such
return has been filed;
(iii) in any other case, the date on which duty of excise
is required to be paid under this Act or the rules made
thereunder;
(iv) in a case where duty of excise is provisionally
assessed under this Act or the rules made thereunder, the date of
adjustment of duty after the final assessment thereof;
(v) in the case of excisable goods on which duty of excise
has been erroneously refunded, the date of such refund;
(vi) in the case where only interest is to be recovered,
the date of payment of duty to which such interest relates.
(c) Omitted.
Explanation 2:- For the removal of doubts, it is
hereby declared that any non-levy, short levy, non-payment,
short-payment or erroneous refund where no show cause notice has
been issued before the date on which the Finance Bill, 2015
receives the assent of the President, shall be governed by the
provisions of section 11A as amended by the Finance Act, 2015.
Section 11AA. Interest on
delayed payment of duty. -
(1) Notwithstanding anything contained in any judgment,
decree, order or direction of the Appellate Tribunal or any court
or in any other provision of this Act or the rules made
thereunder, the person, who is liable to pay duty, shall, in
addition to the duty, be liable to pay interest at the rate
specified in sub-section (2), whether such payment is made
voluntarily or after determination of the amount of duty under
section 11A.
(2) Interest, at such rate not below ten per cent and not
exceeding thirty-six per cent per annum, as the Central
Government may, by notification in the Official Gazette, fix,
shall be paid in terms of section 11A after the due date by the
person liable to pay duty and such interest shall be calculated
from the date on which such duty becomes due up to the date of
actual payment of the amount due.
(3) Notwithstanding anything contained in sub-section (1),
no interest shall be payable where,-
(a) the duty becomes payable consequent to the issue of an
order, instruction or direction by the Board under section 37B;
and
(b) such amount of duty is voluntarily paid in full,
within forty-five days from the date of issue of such order,
instruction or direction, without reserving any right to appeal
against the said payment at any subsequent stage of such payment.
Section 11AC. Penalty for
short-levy or non-levy of duty in certain cases -
(1) The amount of penalty for non-levy or short-levy or
non-payment or short-payment or erroneous refund shall be as
follows:-
(a) where any duty of excise has
not been levied or paid or has been short-levied or shortpaid or
erroneously refunded, for any reason other than the reason of
fraud or collusion or any wilful mis-statement or suppression of
facts or contravention of any of the provisions of this Act or of
the rules made thereunder with intent to evade payment of duty,
the person who is liable to pay duty as determined under
sub-section (10) of section 11A shall also be liable to pay a
penalty not exceeding ten per cent. of the duty so determined or
rupees five thousand, whichever is higher: Provided that where
such duty and interest payable under section 11AA is paid either
before the issue of show cause notice or within thirty days of
issue of show cause notice, no penalty shall be payable by the
person liable to pay duty or the person who has paid the duty and
all proceedings in respect of said duty and interest shall be
deemed to be concluded;
(b) where any duty as determined
under sub-section (10) of section 11A and the interest payable
thereon under section 11AA in respect of transactions referred to
in clause (a) is paid within thirty days of the date of
communication of the order of the Central Excise Officer who has
determined such duty, the amount of penalty liable to be paid by
such person shall be twenty-five per cent. of the penalty imposed,
subject to the condition that such reduced penalty is also paid
within the period so specified;
(c) where any duty of excise has
not been levied or paid or has been short-levied or shortpaid or
erroneously refunded, by reason of fraud or collusion or any
wilful mis-statement or suppression of facts, or contravention of
any of the provisions of this Act or of the rules made thereunder
with intent to evade payment of duty, the person who is liable to
pay duty as determined under sub-section (10) of section 11A shall
also be liable to pay a penalty equal to the duty so determined:
Provided that in respect of the cases where the details relating
to such transactions are recorded in the specified record for the
period beginning with 8th April, 2011 up to the date on which the
Finance Bill, 2015 receives the assent of the President (both days
inclusive), the penalty shall be fifty per cent. of the duty so
determined;
(d) where any duty demanded in a
show cause notice and the interest payable thereon under section
11AA, issued in respect of transactions referred to in clause (c),
is paid within thirty days of the communication of show cause
notice, the amount of penalty liable to be paid by such person
shall be fifteen per cent. of the duty demanded, subject to the
condition that such reduced penalty is also paid within the period
so specified and all proceedings in respect of the said duty,
interest and penalty shall be deemed to be concluded;
(e) where any duty as determined
under sub-section (10) of section 11A and the interest payable
thereon under section 11AA in respect of transactions referred to
in clause (c) is paid within thirty days of the date of
communication of the order of the Central Excise Officer who has
determined such duty, the amount of penalty liable to be paid by
such person shall be twenty-five per cent. of the duty so
determined, subject to the condition that such reduced penalty is
also paid within the period so specified.
(2) Where the appellate authority or tribunal or court
modifies the amount of duty of excise determined by the Central
Excise Officer under sub-section (10) of section 11A, then, the
amount of penalty payable under clause (c) of sub-section (1) and
the interest payable under section 11AA shall stand modified
accordingly and after taking into account the amount of duty of
excise so modified, the person who is liable to pay duty as
determined under sub-section (10) of section 11A shall also be
liable to pay such amount of penalty and interest so modified.
(3) Where the amount of duty or penalty is increased by
the appellate authority or tribunal or court over the amount
determined under sub-section (10) of section 11A by the Central
Excise Officer, the time within which the interest and the reduced
penalty is payable under clause (b) or clause (e) of sub-section
(1) in relation to such increased amount of duty shall be counted
from the date of the order of the appellate authority or tribunal
or court. Explanation
1:- For the removal of doubts, it is hereby declared that- (i)
any case of non-levy, short-levy, non-payment, short-payment or
erroneous refund where no show cause notice has been issued before
the date on which the Finance Bill , 2015 receives the assent of
the President shall be governed by the provisions of section 11AC
as amended by the Finance Act, 2015; (ii)
any case of non-levy, short-levy, non-payment, short-payment or
erroneous refund where show cause notice has been issued but an
order determining duty under sub-section (10) of section 11A has
not been passed before the date on which the Finance Bill, 2015
receives the assent of the President, shall be eligible to closure
of proceedings on payment of duty and interest under the proviso
to clause (a) of sub-section (1) or on payment of duty, interest
and penalty under clause (d) of sub-section (1), subject to the
condition that the payment of duty, interest and penalty, as the
case may be, is made within thirty days from the date on which the
Finance Bill, 2015 receives the assent of the President; (iii)
any case of non-levy, short-levy, non-payment, short-payment or
erroneous refund where an order determining duty under sub-section
(10) of section 11A is passed after the date on which the Finance
Bill, 2015 receives the assent of the President shall be eligible
to payment of reduced penalty under clause (b) or clause (e) of
sub-section (1), subject to the condition that the payment of
duty, interest and penalty is made within thirty days of the
communication of the order. Explanation
2:- For the purposes of this section, the expression "specified
records" means records maintained by the person chargeable with
the duty in accordance with any law for the time being in force
and includes computerised records.
Section 11B. Claim for refund of duty and
interest, if any, paid on such duty -
(1) Any person claiming refund of any duty of excise and
interest, if any, paid on such duty may make an application for
refund of such duty and interest, if any, paid on such duty to
the Assistant Commissioner of Central Excise or
Deputy Commissioner of Central Excise before the expiry of
one year from the relevant date in such form and manner as may be
prescribed and the application shall be accompanied by such
documentary or other evidence (including the documents referred
to in section 12A) as the applicant may furnish to establish that
the amount of duty of excise and interest, if any, paid on such
duty in relation to which such refund is claimed was collected
from, or paid by, him and the incidence of such duty and
interest, if any, paid on such duty had not been passed on by him
to any other person :
Provided that where an application for refund
has been made before the commencement of the Central Excises and
Customs Laws (Amendment) Act, 1991, such application shall be
deemed to have been made under this sub-section as amended by the
said Act and the same shall be dealt with in accordance with the
provisions of sub-section (2) substituted by that Act :
Provided further that the limitation of one
year shall not apply where any duty and interest, if any, paid on
such duty has been paid under protest.
(2) If, on receipt of any such application, the
Assistant Commissioner of Central Excise or Deputy Commissioner
of Central Excise is satisfied that the whole or any part of the
duty of excise and interest, if any, paid on such duty
paid by the applicant is refundable, he may make an order
accordingly and the amount so determined shall be credited to the
Fund :
Provided that the amount of duty of excise and
interest, if any, paid on such duty as determined by the
Assistant Commissioner of Central Excise or Deputy Commissioner
of Central Excise under the foregoing provisions
of this sub-section shall, instead of
being credited to the Fund, be paid to
the applicant, if such amount is relatable to -
(a) rebate of duty of excise
on excisable goods exported out of India or on excisable
materials used in the manufacture of goods which are exported out
of India;
(b) unspent advance deposits
lying in balance in the applicant's account current maintained
with the Principal Commissioner of Central Excise or Commissioner of Central Excise;
(c) refund of credit of duty
paid on excisable goods used as inputs in accordance with the
rules made, or any notification issued, under this Act;
(d) the duty of excise and
interest, if any, paid on such duty paid by the manufacturer, if
he had not passed on the incidence of such duty and interest, if
any, paid on such duty to any other person;
(e) the duty of excise and
interest, if any, paid on such duty borne by the buyer, if he had
not passed on the incidence of such duty and interest, if any,
paid on such duty to any other person;
(f) the duty of
excise and interest, if any, paid on such duty borne by any other
such class of applicants as the Central Government may, by
notification in the Official Gazette, specify :
Provided further that no notification under
clause (f) of the first proviso shall be issued unless in the
opinion of the Central Government the incidence of duty and
interest, if any, paid on such duty has not been passed on by the
persons concerned to any other person.
(3) Notwithstanding anything to the contrary
contained in any judgment, decree, order or direction of
the Appellate Tribunal or any Court or in any other
provision of this Act or the rules made thereunder or any other
law for the time being in force, no refund shall be made except
as provided in sub-section (2).
(4) Every notification under clause (f) of the
first proviso to sub-section (2) shall be laid before each House
of Parliament, if it is sitting, as soon as may be after the
issue of the notification, and, if it is not sitting, within
seven days of its re-assembly, and the Central Government shall
seek the approval of Parliament to the notification by a
resolution moved within a period of fifteen days beginning with
the day on which the notification is so laid before the House of
the People and if Parliament makes any modification in the
notification or directs that the notification should cease to
have effect, the notification shall thereafter have effect only
in such modified form or be of no effect, as the case may be, but
without prejudice to the validity of anything previously done
thereunder.
(5) For the removal of doubts, it is hereby
declared that any notification issued under clause (f) of
the first proviso to sub-section (2), including any such
notification approved or modified under sub-section (4), may be
rescinded by the Central Government at any time by notification
in the Official Gazette.
Explanation. - For the purposes of this
section, -
(A) "refund" includes rebate of duty
of excise on excisable goods exported out of India or on
excisable materials used in the manufacture of goods which are
exported out of India;
(B) "relevant date" means, -
(a) in the case of
goods exported out of India where a refund of excise duty paid is
available in respect of the goods themselves or, as the case may
be, the excisable materials used in the manufacture of such
goods, -
(i)
if the goods are exported by
sea or air, the date on which
the ship or the aircraft in which such goods are loaded, leaves
India, or
(ii)
if the goods are exported by land, the date on which such goods
pass the frontier, or
(iii) if
the goods are exported by post, the date of despatch of
goods by the Post Office
concerned to a place outside India;
(b) in the case of
goods returned for being remade, refined, reconditioned, or
subjected to any other similar process, in any factory, the date
of entry into the factory for the purposes aforesaid;
(c) in the
case of goods to which banderols are required to be affixed if
removed for home consumption but not so required when exported
outside India, if returned to
a factory after having been removed
from such factory for export out of India, the date of entry into
the factory;
(d) in a case
where a manufacturer is required to pay a sum, for a certain
period, on the basis of the rate fixed by the Central Government
by notification in the Official Gazette in full discharge of his
liability for the duty leviable on his production of certain
goods, if after the manufacturer has made the payment on the
basis of such rate for any period but before the expiry of that
period such rate is reduced, the date of such reduction;
(e) in the case of a
person, other than the manufacturer, the date of purchase of the
goods by such person;
(ea) in the case of goods which are
exempt from payment of duty by a special order issued under
sub-section (2) of section 5A, the date of issue of such order;
(eb) in case where duty of
excise is paid provisionally under this Act or the rules made
there under, the date of adjustment of duty after the final
assessment thereof;
(ec) in case where the duty becomes
refundable as a consequence of judgment, decree, order or
direction of appellate authority, Appellate Tribunal or any
court, the date of such judgment, decree, order or direction;
(f) in any other case, the
date of payment of duty.
Section 11BB. Interest on delayed refunds.
---
If any duty ordered to be refunded under sub-section (2) of
section 11B to any applicant is not refunded within three months
from the date of receipt of application under sub-section (1) of
that section, there shall be paid to that applicant interest at
such rate, not below five per cent and not
exceeding thirty per cent per annum
as is for the time being fixed by the Central Government, by
Notification in the Official Gazette, on such duty from the date
immediately after the expiry of three months from the date of
receipt of such application till the date of refund of such duty
:
Provided that where any duty ordered to be
refunded under sub-section (2) of section 11B in respect of an
application under sub-section (1) of that section made before the
date on which the Finance Bill, 1995 receives the assent of the
President, is not refunded within three months from such date,
there shall be paid to the applicant interest under this section
from the date immediately after three months from such date, till
the date of refund of such duty.
Explanation. - Where any order of
refund is made by the Commissioner (Appeals), Appellate Tribunal,
National Tax Tribunal or any court against an order of the
Assistant Commissioner of Central Excise or Deputy Commissioner
of Central Excise, under sub-section (2) of section 11B, the
order passed by the Commissioner (Appeals), Appellate Tribunal,
National Tax Tribunal or, as the case may be, by the court shall
be deemed to be an order passed under the said sub-section (2)
for the purposes of this section.
Section 11C. Power not to recover
duty of excise not levied or short-levied as a result of general
practice. -
(1) Notwithstanding anything contained in this Act,
if the Central Government is satisfied -
(a) that a practice
was, or is, generally prevalent regarding levy of duty of excise
(including non-levy thereof) on any excisable goods; and
(b) that such goods
were, or are, liable -
(i)
to duty of excise, in cases where according to the said practice
the duty was not, or is not being, levied, or
(ii)
to a higher amount of duty of excise than what was, or is being,
levied, according to the said practice,
then, the
Central Government may, by notification in the Official Gazette,
direct that the whole of the duty of excise payable on such
goods, or as the case may be, the duty of excise in excess of
that payable on such goods, but for the said practice, shall not
be required to be paid in respect of the goods on which the duty
of excise was not, or is not being, levied, or was, or is being,
short-levied, in accordance with the said practice.
(2) Where any notification under sub-section
(1) in respect of any goods has been issued, the whole of the
duty of excise paid on such goods or, as the case may be, the
duty of excise paid in excess of that payable on such goods,
which would not have been paid if the said notification had been
in force, shall be dealt with in accordance with the provisions
of sub-section (2) of section 11B:
Provided that the person claiming the refund of
such duty or, as the case may be, excess duty, makes an
application in this behalf to the Assistant Commissioner of
Central Excise or Deputy Commissioner of Central Excise, in the
form referred to in sub-section (1) of section 11B, before the
expiry of six months from the date of issue of the said
notification.
Section 11D. Duties
of excise collected from the buyer to be deposited with the
Central Government. -
(1) Notwithstanding anything to the
contrary contained in any order or direction of the Appellate
Tribunal or any Court or in any other provision of this Act or
the rules made thereunder, every person who is liable to pay duty
under this Act or the rules made thereunder, and has collected
any amount in excess of the duty assessed or determined and paid
on any excisable goods under this Act or the rules made
thereunder from the buyer of such goods in any manner as
representing duty of excise, shall forthwith pay the amount so
collected to the credit of the Central Government.
(1A) Every person, who has collected any amount in excess
of duty assessed or determined and paid on any excisable goods or
has collected any amount as representing duty of excise on any
excisable goods which are wholly exempt or chargeable to nil rate
of duty from any person in any manner, shall forthwith pay the
amount so collected to the credit of the Central Government.
(2) Where any amount is required to be paid to
the credit of the Central Government under sub-section (1) or
sub-section (1A), as the case may be, and which has not been so
paid, the Central Excise Officer may serve, on the person liable
to pay such amount, a notice requiring him to show cause why the
said amount, as specified in the notice, should not be paid by
him to the credit of the Central Government.
(3) The Central Excise Officer shall,
after considering the representation, if any, made by the
person on whom the notice is served under sub-section (2),
determine the amount due from such person (not being in excess of
the amount specified in the notice) and thereupon such person
shall pay the amount so determined.
(4) The amount paid to the credit of the
Central Government under sub-section (1) or sub-section (1A) or
sub-section (3), as the case may be, shall be adjusted against
the duty of excise payable by the person on finalisation of
assessment or any other proceeding for determination of the duty
of excise relating to the excisable goods referred to in
sub-section (1) and sub-section (1A).
(5) Where any surplus is left after the
adjustment under sub-section (4), the amount of such surplus
shall either be credited to the Fund or, as the case may
be, refunded to the person who has borne the incidence of such
amount, in accordance with the provisions of section 11B and such
person may make an application under that section in such cases
within six months from the date of the public notice to be issued
by the Assistant Commissioner of Central Excise for the refund of
such surplus amount.
Section 11DD. Interest on
the amounts collected in excess of the duty. -
(1) Where an amount has been collected in excess of the
duty assessed or determined and paid on any excisable goods under
this Act or the rules made thereunder from the buyer of such
goods, or from any person or where a person has collected any
amount as representing duty of excise on any excisable which are
wholly exempt or are chargeable to Nil rate of duty, the person
who is liable to pay such amount as determined under sub-section
(3) of section 11D, shall, in addition to the amount, be liable
to pay interest at such rate not below ten per cent, and not
exceeding thirty-six per cent. per annum, as is for the time
being fixed by the Central Government, by notification in the
Official Gazette, from the first day of the month succeeding the
month in which the amount ought to have been paid under this Act,
but for the provisions contained in sub-section (3) of section
11D, till the date of payment of such amount :
Provided that in such cases where the amount
becomes payable consequent to issue of an order, instruction or
direction by the Board under section 37B, and such amount payable
is voluntarily paid in full, without reserving any right to
appeal against such payment at any subsequent stage, within
forty-five days from the date of issue of such order, instruction
or direction, as the case may be, no interest shall be payable
and in other cases the interest shall be payable on the whole
amount, including the amount already paid.
(2) The provisions of sub-section (1) shall not apply to
cases where the amount had become payable or ought to have been
paid before the day on which the Finance Bill, 2003 receives the
assent of the President.
Explanation 1. - Where the amount
determined under sub-section (3) of section 11D is reduced by the
Commissioner (Appeals), the Appellate Tribunal or, as the case
may be, the court, the interest payable thereon under sub-section
(1) shall be on such reduced amount.
Explanation 2. - Where the amount
determined under sub-section (3) of section 11D is increased by
the Commissioner (Appeals), the Appellate Tribunal or, as the
case may be, the court, the interest payable thereon under
sub-section (1) shall be on such increased amount.
Section 11DDA.
Provisional attachment to protect revenue in certain cases -
(1) Where, during the pendency of any proceedings under
section 11A or section 11D, the Central Excise Officer is of the
opinion that for the purpose of protecting the interest of
revenue, it is necessary so to do, he may, with the previous
approval of the Principal Commissioner of Central Excise or Commissioner of Central Excise, by order in
writing, attach provisionally any property belonging to the
person on whom notice is served under section
11A or sub-section (2) of section 11D, as the case may be, in
accordance with the rules made in this behalf under section 142
of the Customs Act, 1962 (52 of 1962).
(2) Every such provisional attachment shall cease to have
effect after the expiry of a period of six months from the date
of the order made under sub-section (1):
Provided that the Principal Chief Commissioner of Central Excise or Chief Commissioner of Central
Excise may, for reasons to be recorded in writing, extend the
aforesaid period by such further period or periods as he thinks
fit, so, however, that the total period of extension shall not in
any case exceed two years :
Provided further that where an application for
settlement of case under section 32E is made to the Settlement
Commission, the period commencing from the date on which such
application is made and ending with the date on which an order
under sub-section (1) of section 32F is made shall be excluded
from the period specified in the preceding proviso.
Section 11E. Liability under Act to be first
charge. -
Notwithstanding anything to the contrary contained in any
Central Act or State Act, any amount of duty, penalty, interest,
or any other sum payable by an assessee or any other person under
this Act or the rules made thereunder shall, save as otherwise
provided in section 529A of the Companies Act, 1956, (1 of 1956)
the Recovery of Debts Due to Banks and the Financial Institutions
Act, 1993 (51 of 1993) and the Securitisation and Reconstruction
of Financial Assets and the Enforcement of Security Interest Act,
2002, (54 of 2002) be the first charge on the property of the
assessee or the person, as the case may be.
Section 12. Application of the provisions of
[Act No. 52 of 1962] to Central Excise Duties. -
The Central Government may, by notification in the Official
Gazette, declare that any of the provisions of the Customs Act,
1962 (52 of 1962), relating to the levy of and exemption from
customs duties, drawback of duty, warehousing, offences and
penalties, confiscation, and procedure relating to offences and
appeals shall, with such modifications and alterations as it may
consider necessary or desirable to adapt them to the
circumstances, be applicable in regard to like matters in respect
of the duties imposed by section 3 and section 3A.
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