Category Archive Indirect Tax Law

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The Sales-Tax Laws Validation Act, 1956

[21st March, 1956]

An Act to validate laws of States imposing, or authorising the imposition of, taxes on the sale or purchase of goods in the course of inter-State trade or commerce.

Be it enacted by Parliament in the Seventh Year of the Republic of India as follows: —

1. Short title.

This Act may be called the Sales-Tax Laws Validation Act, 1956.

2. Validation of State laws imposing, or authorising the imposing, or authorising the imposition of, taxes on sale or purchase of goods in the course of inter-State trade or commerce.

Notwithstanding any judgement, decree or order of any court, no law of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter-state trade of commerce during the period between the 1st day of April, 1951 and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter-State trade or commerce; and all such taxes levied or collected or purporting to have levied or collected during the aforesaid period shall be deemed always to have been validly levied or collected in accordance with law.

Explanation.—In this section, ‘law of a State’ in relation to a State specified in Part C of the First Schedule to the constitution, means any law made by the Legislative Assembly, if any, of that State or extended to that State by a notification issued under section 2 of the Part C States (Laws) Act, 1950 (30 of 1950.).

3. Repeal of Ordinance 3 of 1956.

The Sales-Tax Laws Validation Ordinance, 1956, is hereby repealed.

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The Tripura Land Revenue and Land Reforms Act, 1960

Section 1. Short title, extend and commencement

No.43 OF 1960

[21st September, 1960]

An Act to consolidate and amend the law relating to land revenue in the Union territory of Tripura and to provide for the acquisition of estates and for certain other measures of land reform.

BE it enacted by Parliament in the Eleventh Year of the Republic of India as follows:-

(1) This Act may be called the Tripura Land Revenue and Land Reforms Act, 1960.

(2) It extends to the whole of the Union territory of Tripura.

(3) It shall come into force on such date as the Administrator may, by notification in the Official Gazette, appoint; and different dates may be appointed for different areas and for different areas and for different provisions of this Act.

Section 2. Definitions

In this Act, unless the context otherwise require,-

(a) “Administrator” means the Administrator of the Union territory of Tripura;

(b) “Agriculture” includes horticulture, the raising of annual or periodical crops or garden produce, dairy farming, poultry farming, stock breeding, grazing and pisciculture;

(c) “Basic holding” means land used for agricultural purpose which is equal to two standard acres in area;

(d) “Collector” means the Collector of the district and includes any officer appointed by the Administrator to exercise and perform all or any of the powers and functions of a Collector under this Act;

(e) “Commencement of this Act”, in relation to any provision, means the date specified in respect of that provision in a notification under sub-section (3) of section 1;

(f) “Competent authority”, in relation to any provision, means any officer appointed by the Administrator to be the competent authority for the purpose of that provision;

(g) “Family” except in Chapter XIII means, in relation to be person, the wife or husband of such person, his children grandchildren, parents and brothers, and in the cases of a Joint Hindu family, any member of such family;

(h) “Family holding” means land used for agricultural purposes which is equal to 6.4 standard acres in area;

(i) “Government” means the Central Government;

(j) “Holding” means a parcel of land separately assessed to land revenue;

(k) “Improvement”, in relation to any land, means any work which materially adds to the value of the land and which is suitable to the land and consistent with the character thereof and includes-

(i) The construction of tanks, wells, water channels and other works for the storage, supply and distribution of water for agricultural purposes or for the use of man and cattle employed in agriculture;

(ii) The construction of works for the drainage of land or for the protection of land from floods or from erosion or from other damage by water;

(iii) The preparation of land for irrigation;

(iv) The conversion of one-crop into two-crop land;

(v) The reclaiming, clearing, enclosing, levelling or terracing of land used for agricultural purpose;

(vi) The erection on land or in the immediate vicinity thereof otherwise than on the village site, of a building or house for the occupation of the under-raiyat, his family and servants or of a cattle shed, a store-house or other construction for agricultural purposes or of any building required for the convenient or profitable use or occupation of the land; and

(vii) The renewal or reconstruction of any of the foregoing works or such alterations therein or additions thereto as are not of the nature of ordinary repairs;

(l) “Minor” means a person who is deemed not to have attained majority under the Indian Majority Act, 1875;

(m) “Official Gazette” means the Tripura Gazette;

(n) “Pay”, “payable” and “payment”, used with reference to rent, include “deliver”, “deliverable” and “delivery”;

(o) “Person under disability” means-

(i) A Windows;

(ii) A minor;

(iii) A woman who is unmarried or who, if married, is divorced or judicially separated from her husband or whose husband is a person falling under item (iv) or (v);

(iv) A member of the Armed Forces of the Union:

(v) A person incapable of cultivating land by, reason of some physical or mental disability;

(p) “Personal cultivation”, with its grammatical variations and cognate expressions, means cultivation by a person on his own account-

(i) By his own labour, or

(ii) By the labour of any members of his family, or

(iii) By servants or by hired labour on wages, payable in cash or in kind but not as a share of produce, under his personal supervision or the personal supervision of any member of his family;

Explanation I.

Land shall not be deemed to be cultivated under the personal supervision of a person or a member of his family unless such person or member resides in the village situated within a distance to be prescribed, during the major part of the agricultural season;

Explanation II.

In the case of a person under disability, supervision by a paid employee on behalf of such person shall be deemed to be personal supervision;

(q) “Prescribed ” means prescribed by rules made under this Act;

(r) “Public purpose” includes a purpose connected with allotment of land to cultivators, under-raiyats ejected as a result of resumption, land-less agricultural workers or co-operative farming societies;

(s) “Raiyat” means a person who owns land for purposes of agricultural paying land revenue to the Government and includes the successors-in-interest of such person;

(t) “Rent” means whatever is lawfully payable, in money or in kind, or partly in money and partly in kind, whether as a fixed or quantity of produce or as a share of the produce, on account of the use or occupation of land or on account of any right in land but shall not include land revenue;

(u) “Standard acre” means one acre of `lunga’ or `nal’ or three acres of `tilla’ land;

(v) “Under-raiyat” means a person who cultivates or holds the land of a raiyat under an agreement, express or implied, on condition of paying thereof rent in cash or in kind or delivering a share of the produce and includes a person who cultivates or holds land of a raiyat under the system generally known as `bhag’, `adhi’ or `barga’;

(w) “Village” means any tract of land which, before the commencement of this act, was recognised as or was declared to be a village under any law for the time being in force or which may after such commencement be recognised as a village at any settlement or which the Administrator may, by notification in the Official Gazette, declare to be a village;

(x) “Year” means the agricultural year commencing on such date as the administrator may, in the case of any specified area, by notification in the Official Gazette, appoint.

Section 3. Power to create, alter or abolish districts, sub-divisions, etc

(1) The Administrator may, with the previous concurrence of the Government, by notification in the Official Gazette, divide the Union territory of Tripura into one or more districts, and may similarly divide any district into sub-divisions, circles and tehsils, and may alter the limits of, or abolish, any district, sub-division, circle or tehsil.

(2) The districts, sub-divisions, circles and tehsils existing at the commencement of this Act shall continue respectively to be the districts, sub-divisions, circles and tehsils under this Act unless otherwise provided under sub-section (1).

Section 4. Appointment of revenue officers

The Government or such other office as may be authorised by the Government in this behalf may appoint the following classes of revenue officers, namely;-

(a) Collector,

(b) Director of settlement and land records,

(c) Sub -divisional officers,

(d) Survey and settlement officers,

(e) Assistant survey and settlement officers,

(f) Circle officers,

(g) Revenue inspectors.

(h) Tehsildars,

(i) Village accountants and such other village officers and servants as may be specified by rules made under this Act.

Section 5. Collector and certain other revenue officers

(1) Each district shall be placed under the charge of a Collector who shall be in charge of the revenue administration of the district and exercise the powers and discharge the duties of the Collector under this Act or any other law for the time being in fore and shall exercise so far as is consistent therewith such other powers of superintendence and control within the district and over the officers subordinate to him as may from time to time be prescribed.

(2) Each sub-division shall be placed under the charge of a sub-divisional officer.

(3) Each circle or tehsil shall be placed under the charge of a circle officers or a tehsildar, as the case may be.

(4) The duties and power of the sub-divisional officers, the circle officers and other revenue officers shall be such as may be imposed or conferred on them by or under this Act or any other law in force for the time being or any general or special order of the Administrator published in the Official Gazette.

Section 6. Settlement officers

The officers specified in items, (b), (d) and (e) of section 4 shall have power to take cognizance of all matters connected with the survey of land and the settlement of the revenue-rates and the preparation and maintenance of land records and other registers and shall exercise all such powers and perform all such duties as may be prescribed by or under this Act or by any general or special order of the Administrator published in the Official Gazette.

Section 7. Subordination of revenue officers

All revenue officers shall be subordinate to the Administrator and all revenue officers in the district or a sub-division shall be subordinate to the Collector or the sub-divisional officers, as the case may be.

Section 8. Combination of officers

It shall be lawful for the Administrator to appoint one and the same person to any two or more of the offices provided for in this Chapter, to make any appointment by virtue of officer and also to confer on any officers of the Government all or any of the powers and duties of any of the revenue officers including the Collector.

Section 9. Notification of appointments

All appointments made under this chapter except appointments of revenue inspectors, tehsildars and village accountants and other village officers and servants shall be notified in the Official Gazette.

Section 10. Sales

The Administrator shall, from time to time, by notification in the Official Gazette, specify the revenue officers who shall use a seal and also the size and description of the seal which each such officer shall use.

Section 11. Title of Government to lands, etc

(1) All-lands, public roads, lanes and paths and bridges, ditched, dikes, and fences on or beside the same, the beds of rivers, streams, nallas, lakes and tanks, and all canals and water courses, and all standing and flowing water, and all rights in or over the same or appertaining thereto, which are to the property of any person, are and are hereby declared to be the property of the Government.

(2) Unless it is otherwise expressly provided in the terms of a grant made by the Government, the right to mines, quarries, minerals and mineral products including mineral oil, natural gas and petroleum shall vest in the Government, and it shall have all the powers necessary for the proper enjoyment of such rights.

(3) Where any property or any right in or over any property is claimed by or on behalf of the Government, or by any person as against the Government and the claim is disputed, such dispute shall be decided by the Collector whose order shall, subject to the provisions of this Act, be final.

(4) Any person aggrieved by an order made under sub-section (3) or in appeal or revision therefrom may institute a civil suit to contest the order within a period of six months from the date of such order and the decision of the civil court shall be binding on the parties.

Section 12. Right to trees, forest, etc

(1) The right to all trees, jungles or other natural products growing on land set apart for forest reserves and to all trees, brush wood, jungle or other natural product, wherever growing, except in so far as the same may be the property of any person, vests in the Government, and such trees brush wood, jungle or other natural product shall be preserved or disposed of in such manner as may be prescribed, keeping in view the interests of the people in the area with regard to the user of the natural products.

(2) All road side trees which have been planted and reared by or under the orders or at the expense of the Government and all trees which have been planted and reared at the expense of local authorities by the side of any road belonging to the Government vest in the Government.

Section 13. Assignment of land for special purposes

Subject to rules made in this behalf under this Act, the Collector may set apart land belonging to the Government for pasturage for the village cattle, for forest reserves of for any other purpose.

Section 14. Allotment of land

(1) The Collector may allot land belonging to the Government for agricultural purposes or for construction of dwelling houses, in accordance with such rules as may be made in this behalf under this Act; and such rules may provide for allotment of land to persons evicted under section 15.

(2) The Administrator shall have power-

(a) Allot any such land for the purpose of an industry or for any purpose of public utility on such conditions as may be prescribed, or

(b) To entrust the management of any such land or any rights therein to the gram panchayat of the village established under any law for the time being in force.

Section 15. Unauthorised occupation of land

(1) Any person who occupies or continues to occupy and land belonging to Government without lawful authority shall be regarded as a trespasser and may be summarily evicted therefrom by the competent authority and any building or other construction erected or anything deposited on such land, if not removed within such reasonable time as such authority may from time to time fix for the purpose, shall believable to be forfeited to the Government and to be disposed of in such manner as the competent authority may direct;

Provided that the competent authority may, in lieu of ordering the forfeiture of any such building or other construction, order the demolition of the whole or any part thereof.

(2) Such trespasser shall also be liable by way of penalty to pay a sum which may extent to six times the annual assessment on such land as may be specified by the competent authority and such sum shall be recoverable in the same manner as an arrear of land revenue.

(3) Upon payment of the penalty referred to in sub-section (2) the trespasser shall have the right of tending, gathering and removing any ungathered crops.

Section 16. Liability of land to land revenue

(1) All lands, to whatever purpose applied, are liable to payment of land revenue to the Government.

(2) The Administrator may exempt any land from the liability to such payment by means of a special grant or contract or in accordance with any law for the time being in force or the rules made under this Act.

Section 17. Alluvial lands

All alluvial lands, newly formed islands, to abandoned river beds, which vest under any law for the time being in force in any holder of land shall be subject in respect of liability to land revenue to the same privileges, conditions and restrictions as are applicable to the original holding by virtue of which such lands, islands or river beds vest in the said holder, but no revenue shall be leviable in respect of any such land, islands, or river beds unless the area of the same exceeds on acre.

Section 18. Land revenue in case of diluvion

Every holder of land paying land revenue in respect thereof shall be entitled, subject to such rules as may be made in this behalf, to a decrease of assessment if any portion thereof, not being less than one acre in extent, is lost by diluvion.

Section 19. Assessment of land revenue

(1) The assessment of land revenue on any land shall be made, or shall be deemed to have been made, with respect to the use of the land-

(a) For purpose of agriculture;

(b) For industrial or commercial purposes;

(c) As sites for dwelling houses;

(d) For any other purpose.

(2) Where land assessed for use for any one purpose is diverted to any other purposes, the land revenue payable upon such land shall notwithstanding that the term for which the assessment may have been fixed has not expired, be liable to be altered and assessed at a different rate in accordance, with the rules made under this Act.

Section 20. Diversion of land

(1) If any person holding land for any purpose wishes to divert such land or any part thereof any other purpose except agriculture, he shall apply for permission to the competent authority who may, subject to the provisions of this section and to the rules made under this Act, refuse permission or grant it on such conditions as it may think fit.

(2) Permission to divert may be refused by the competent authority only on the ground that the diversion is likely to cause a public nuisance or that it is not in the interest of the general public or that the holder is unable or unwilling to comply with the conditions that may be imposed under sub-section (3).

(3) Conditions may be imposed on diversion for the following objects and no others, namely, in order to secure the public health, safety and convenience, and in the case of land which is to be used as building sites, in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of occupiers or are suitable to the locality.

(4) If any land has been diverted without permission by the holder or by any other person with or without the consent of the holder, the competent authority, on receiving information thereof, may impose on the person responsible for the diversion a penalty not exceeding one hundred rupees, and may proceed in accordance with the provisions of sub-section (1) as if an application for permission to divert has been made.

(5) If any land has been diverted in contravention of an order passed or of a condition imposed under any of the foregoing sub-section, the competent authority may serve a notice on the person responsible for such contravention, directing him, within a reasonable period to be stated in the notice, to use the land for its original purpose or to observe the condition; and such notice may require such person to remove any structure, to fill up any excavation, or to take such other steps as may be required in order that the land may be used for its original purpose, or that the condition may be satisfied, The competent authority may also impose on such person a penalty not exceeding one hundred rupees for such contravention, and a further penalty not exceeding four rupees for each day during which such contravention continues.

(6) If any person served with a notice under sub-section (5), fails within the period stated in the notice to take the steps ordered by the competent authority under that sub-section, the competent authority may itself take such steps or cause them to be taken; and any cost incurred in so doing shall be recoverable from such person in the same manner as an arrear of land revenue.

Explanation

“Diversion” in this section means using land assessed to one purpose for any other purpose, but using land for the purpose of agriculture where it is assessed with reference to any other purpose shall not be deemed to be diversion.

Section 21. Remission or suspension of revenue on failure of crops

The Administrator may, in accordance with the rules made in this behalf under this Act, grant a remission or suspension of land revenue in years in which crops have failed in any area.

Section 22. Responsibility for payment of land revenue

(1) The following persons shall be primarily liable for the payment of land revenue assessed on land, revenue assessed on land, namely:-

(a) The person to whom the land belongs;

(b) The under-raiyat or any other person in possession of the land, provided that such under-raiyat or other person shall be entitled to credit from the owner of the land for the amount paid by him.

(2) Where there are two or more persons liable to pay land revenue under sub-section (1), all of them shall be jointly and severally liable for its payment.

Section 23. Receipt for land revenue

Every revenue officer receiving payment of land revenue shall, at the time when such payment is received by him give a written receipt for the same.

Section 24. Definitions of revenue survey, settlement and term of settlement

The operations carried out in accordance with the provisions of this Chapter in order to determine or revise the land revenue payable on lands, in any local area are called a “revenue survey”, the results of the operations are called a “settlement” and the period during which such results are to be in force is called the “term of settlement”.

Section 25. Inquiry into profits of agriculture

(1) As soon as may be after the commencement of this Act, the Administrator shall take steps to institute and shall cause to be constantly maintained, in accordance with the rules made under this Act, an inquiry into the profits of agriculture and into the value of land used for agricultural and non-agricultural purposes.

(2) For the purpose of determining the profits of agriculture, the following matters shall be taken into account in estimating the cost of cultivation, namely;-

(a) The depreciation of stock and buildings;

(b) The money equivalent of the labour and supervisions by the cultivator and his family;

(c) All other expenses usually incurred in the cultivation of the land which is under inquiry; and

(d) Interest on the cost of buildings and stock, on all expenditure for seed and manure and on the cost of agricultural operations paid for in cash.

Section 26. Revenue Survey

Whenever the Administrator thinks it expedient so to do, he may, with the approval of the Government, by notification in the Official Gazette, direct the revenue survey of any local area with a view to the settlement of the land revenue and to the preparation of a record of rights connected therewith or the revision of any existing settlement or record of rights.

Section 27. Power to require assistance from landholders

A survey officer deputed to conduct or take part in any revenue survey may, by special order or by general notice to be published in the prescribed manner, require the attendance of holders of lands to assist in the measurement or classification of the lands to which the revenue survey extends and, when hired labour is employed for purposes incidental to the revenue survey, may assess and apportion the cost thereof on the lands surveyed, for collection as land revenue due on such lands.

Section 28. Survey members and villages

Subject to the rules made in this behalf under this Act, the survey officer may-

(a) Divide the lands to which the revenue survey extends into villages and the villages in to plots and survey numbers; and

(b) Recognise the existing village and survey numbers, reconstitute them or form new survey numbers

Section 29. Division of survey numbers into sub-divisions

The survey officer may sub-divide survey numbers into many sub-divisions as may be required in the manner prescribed.

Section 30. Determination of revenue-rates

The Administrator may at any time direct the determination or the revision of the revenue-rates for all lands in any area which a revenue survey has been made.

Section 31. Preparation of statistical and fiscal records

It shall be the duty of the survey officer or the settlement officer on the occasion of making or revising a settlement of land revenue to prepare a register to be called the “settlement register”, showing the area and assessment of each survey number, with any other particulars that may be prescribed, and other records in accordance with such orders as may from time to time be made in this behalf by the Administrator.

Section 32. Revenue rates how determined

For the purpose of determining the revenue-rates, the settlement officer may divide any area into units and in forming such units, he shall have regard to the physical features, agricultural and economic conditions and trade facilities and communications; and shall then determine the revenue-rates for different classes of lands in each such unit in the manner and according to the principles prescribed and in particular, in the case of agricultural land, to the profits of agriculture, to the consideration paid for leases, to the sale prices of land and to the principal monies on mortgages and in the case of non-agricultural land, to the value of the land for the purpose for which it is held.

Section 33. Publication of table of revenue-rates

(1) The settlement officer shall prepare a table of revenue-rates in the prescribed form and publish it in the prescribed manner for the prescribed period.

(2) Any person objecting to any entry in the table of revenue-rates may present a petition in writing to the settlement officer within the prescribed period and the settlement officer shall consider such objections after giving a hearing to the objector.

(3) The settlement officer shall submit the table of revenue-rates to the Administrator together with a summary of objection, if any, his decisions on such objections and a statement of the grounds in support of his proposals.

Section 34. Confirmation of the table of revenue-rates

(1) The administrator may confirm the table of revenue-rates submitted to him by the settlement officer with such modifications, if any, as he may consider necessary.

(2) The table of revenue-rates confirmed under sub-section (1) shall be finally published in the Official Gazette.

Section 35. Rates of revenue to form part of settlement register

The table of revenue-rates published under section 34 shall be incorporated n and form part of the settlement register of the village.

Section 36. Introduction of revenue-rates

When the revenue-rates are determined under this Chapter in respect of any area, such rates shall take effect from the beginning of the year next after the date of final publication of the table of revenue-rates under section 34.

Section 37. Duration of revenue-rates

(1) When the table of revenue-rates for any area has been finally published, the rates specified therein shall remain in force for a period of thirty years.

(2) Notwithstanding anything contained in sub-section (1)-

(a) Revenue-rates may be altered or revised in any year after the expiry of every ten years from the date of which the table of revenue-rates was introduced, in such manner and to such extent as may be prescribed;

(b) When the circumstances of a local area are such that a fresh determination of the revenue-rates is in the opinion of the Administrator inexpedient, he may extend the term of settlement by such further period as the may think necessary.

Section 38. Assessment on holdings

(1) The settlement officer shall calculate the assessment on each holding in accordance with the revenue-rates confirmed and finally published under section 34 and such assessment shall be the fair assessment.

(2) The settlement officer shall have the power to make fair assessment on all lands whatsoever to which the revenue survey extents, whether such lands are held with liability to pay full land revenue or land revenue at concessional rates or are held revenue free.

(3) The fair assessment of all lands, shall be calculated in accordance with rules made in this behalf and having regard to he following principles, namely:-

(a) No regard shall be had to any claim to hold land on privileged terms;

(b) Regard shall be had in the case of agricultural land to the profits of agriculture, to the consideration paid for leases, to the sale prices of land and to the principal monies on mortgages, and in the case on non-agricultural land, to the value of the land for the purpose for which it is held;

(c) Where any improvement has been effected at any time in any holding held for the purpose of agriculture by or at the expense of the holder thereof, the fair assessment of such holding shall be fixed as if the improvement had not been made.

Section 39. Additional assessment for water advantages

Notwithstanding anything contained in this Chapter, the Administrator may direct that any land in respect of which the rate of revenue has been determined shall be liable to be assessed to additional land revenue during the term of the settlement for additional advantages accruing to it from water received no account of irrigation works or improvements in existing irrigation works completed after the table of revenue-rates came into force and not effected by or at the expense of the holder of the land.

Section 40. Continuance of survey operations and rates in force at commencement of Act

Notwithstanding anything contained in this Chapter, all survey operations commenced under any law for the time being in force and continuing at the commencement of this Act shall be deemed to have been commenced and to be continuing under the provisions of this Chapter, and all revenue-rates in force at such commencement shall be deemed to have been determined and introduced in accordance with the provisions of this Chapter and shall remain in force until the introduction of revised revenue-rates; and such revised revenue-rates may be introduced at any time, notwithstanding anything contained in section 37.

Section 41. Power of Collector to correct errors, etc

(1) The powers and duties exercisable by the officers referred to in section 6 may also be exercised, during the term of settlement, by the Collector or such other revenue officers as may be specified by the Administrator for the purpose by notification in the Official Gazette.

(2) The Collector may at any time during the term of settlement correct to any error in the area or the assessment of any survey number or sub-division due to a mistake of survey or arithmetical miscalculation;

Provided that no arrears of land revenue shall become payable by reason of such correction

Section 42. Preparation of record of rights

It shall be the duty of the survey officer to prepare a record of rights for each village showing the area of each survey number and other particulars and any other record or register, in accordance with the rules made under this Act.

Section 43. Publication of the record of rights

(1) When a record of rights has been prepared, the survey officer shall publish a draft of the record in such manner and for such period as may be prescribed and shall receive and consider any objections which may be made during the period of such publications to any entry therein or to any omission therefrom.

(2) When all objections have been considered and disposed of in accordance with the rules made in this behalf, the survey officers shall cause the record to be finally published in the prescribed manner.

(3) Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be presumed to be correct.

Section 44. Jurisdiction of civil courts to decide disputes

The civil courts shall have jurisdiction to decide any dispute to which the Government is not a party relating to any right or entry which is recorded in the record of rights.

Section 45. Correction of bona fide mistake in register

The survey officer may, no application made to him in this behalf or on his own motion, within one year from the date of final publication of the record of rights, correct any entry in such record which he is satisfied has been made owing to a bona fide mistake.

Section 46. Register of mutations

(1) There shall be maintained for every village a register of mutations in such form as may be prescribed.

(2) Any person acquiring by succession, survivorship, inheritance, partition, purchase, gift, mortgage, lease or otherwise any right in land, or where such person acquiring the right is minor or otherwise disqualified, his guardian or other person having charge of his property, shall report his acquisition of such right to the village accountant within three months from the date of such acquisition and the village accountant shall give at once a written acknowledgement in the prescribed form for such report to the person making it.

(3) The village accountant shall enter the substance of every report made to him under sub-section (2) in the register of mutations and also made an entry therein respecting the acquisition of any right of the kind mentioned in sub-section (2) which he has reason to believe to have taken place and of which a report has not been made under the said sub-section and, at the same time, shall post up a complete copy of the entry in a conspicuous place in the village and shall give written intimation to all persons appearing from the record of rights or the register of mutations to be interest in the mutations and to any other person whom he has reason to believe to be interested therein.

(4) Should any objection to an entry made under sub-section (3) in the register of mutations be made either orally or in writing to the village accountant, he shall enter the particulars of the objection in the register of disputed cases and shall at once give a written acknowledgement in the prescribed form for the objection to the person making it.

(5) The objections made under sub-section (4) shall be decided on the basis of possession by the competent authority and orders disposing of objections entered in the register of disputed cases shall be recorded in the register of mutations by the competent authority.

(6) After the entries in the register of mutations have been tested and found correct, the entries shall be transferred to the record of rights and shall be certified by such officer as may be prescribed in this behalf.

Section 47. Penalty for neglect to afford in-formation

The collector may, if he is of opinion that any person has wilfully neglected to make the report required by section 46 within the prescribed period, impose on such person a penalty not exceeding twenty-five rupees.

Section 48. Assistance in preparation of maps

Subject to rules made under this Act,-

(a) Any revenue officer may, for the purpose of preparing or revising any map or plan required for or in connection with any record or register under this Chapter, exercise any of the powers of the survey officer under section 27 except the power of assessing the cost of hired labour; and

(b) Any revenue officer not below the rank of sub-divisional officer may assess the cost of the preparation or revision of such maps or plans and all expenses incidental thereto, and such costs and expenses shall be recoverable in the same manner as an arrear of and revenue.

Section 49. Certified copies

Certified copies of entries in the record of rights may be granted by such officers and on payment of such fees as may be prescribed.

Section 50. Maps and other records open to inspection

Subject to such rules and on payment of such fees, of any, as may be prescribed, all maps and land records shall be open to inspection by the public during office hours, and certified extracts there from or certified copies thereof may be given to all persons applying for the same.

Section 51. Power to transfer duty of maintaining maps and records to settlement officer

When a local area is under settlement, the duty of maintaining the maps and records may, under the orders of the Administrator, be transferred from the Collector to the settlement officer.

Section 52. Determination of village boundaries

The boundaries of villages, survey numbers, sub-divisions and fields shall be fixed, and all disputes relating thereto shall be determined, by survey officers or by such other officers as may be appointed by the Administrator for the purpose, in accordance with the rules made in this behalf.

Section 53. Effect of settlement of boundary

(1) The settlement of a boundary under this Chapter shall be determinative-

(a) Of the proper position of the boundary line or boundary marks; and

(b) Of the rights of the landholders on either side of the boundary fixed in respect of the land adjudged to appertain, or not to appertain, to their respective holdings.

(2) Where a boundary has been so fixed, the Collector may at nay time summarily evict and landholder who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims.

Section 54. Construction and repair of boundary marks

It shall be lawful for any survey officer authorised in this behalf to specify, or cause to be constructed, laid out, maintained or repaired, boundary marks of villages or survey numbers or sub-divisions and to assess all charges incurred thereby on the holders or others having an interest therein.

Section 55. Description of boundary marks

The boundary marks shall be of such description and shall be constructed, laid out, maintained to repaired in such manner and shall be of such dimensions and materials as may, subject to the rules made under this Act, be determined by the Collector or other officer appointed for the purpose.

Section 56. Responsibilities for maintaining boundary marks

Every landholder shall be responsible for the maintenance and good repair of the boundary marks of his holding and for any charge reasonably incurred on account of the same by the revenue officers in case of alteration, removal or disrepair.It shall be the duty of the village officers and servants to prevent the destruction or in-authorised alteration of the village boundary marks.

Section 57. Collector to have charge of boundary marks

After the introduction of survey and settlement in a district, the charge of the boundary marks shall devolve on the Collector and it shall be his duty to take measures for their construction, laying out, maintenance and repair.

Section 58. Penalty injuring boundary marks

Any person wilfully erasing, removing or injuring a boundary mark shall be liable to such penalty not exceeding fifty rupees as the competent authority may impose.

Section 59. Land revenue to be first charge

Land revenue assessed on any land shall be the first charge on that land and on the crops, rents and profits thereof.

Section 60. Payment of land revenue

Land revenue shall be payable at such times, in such instalments, to such persons, and at such places, as may be prescribed.

Section 61. Arrear of land revenue

(1) Any instalment of land revenue or part thereof which is not paid on the due date shall become an arrear of land revenue and the person responsible for the payment shall become a defaulter.

(2) A statement of account certified by the circle officer shall, for the purpose of this Chapter, be conclusive evidence of the existence of the arrear, of its amount and of the person who is the defaulter:

Provided that nothing in this sub-section shall prejudice the right of such person to make payment under protest and to question the correctness of the account in separate proceedings before the competent authority

Section 62. Recovery of arrears

An arrear of land revenue may be recovered by any one or more of the following processes, namely:-

(a) By serving a written notice of demand on the defaulter.

(b) By distraint and sale of the defaulter’s movable property, including the produce of the land;

(c) By the attachment and sale of the defaulter’s immovable property.

Section 63. Notice of demand

The form and contents of the notice of demand and the officers by whom such notices shall be issued shall be such as may be prescribed.

Section 64. Distraint and sale of movable property

(1) The distraint and sale of the movable property of a defaulter shall be made by such officers or class of officers, in such manner and in accordance with such procedure, as may be prescribed.

(2) Nothing in sub-section (1) shall be deemed to authorise the distraint or sale of any property which under the Code of Civil Procedure, 1908 (5 of 1908) , is exempt from attachment or sale in execution of a decree or of any article set aside exclusively for religious use.

Section 65. Sale of immovable property

(1) When the Collector is of opinion that the processes referred to in clauses (a) and (b) of section 62 are not sufficient for the recovery of an arrear, he may, addition to or instead of any of those processes, cause the land in respect of which such arrear is due to be attached and sold in the prescribed manner.

(2) The Collector may also cause the right, title and interest of the defaulter in any other immovable property to be similarly attached and sold.

Section 67. Sales to be by auction

All sales property, movable or immovable, under this Chapter shall be by public auction held in accordance with such rules as may be prescribed.

Section 68. Prohibition to bid at auction

No officer having any duty to perform in connections with any such also and no person employed by or subordinate to such officer shall, either directly or indirectly, bid for or acquire any property except on behalf of the Government.

Section 69. Sale of perishables

Perishable articles shall be sold by auction with the least possible delay and such sale shall be finally concluded by the officer conducting the sale.

Section 70. Sale not to be excessive

Every sale of property, movable or immovable, under the provisions of this chapter shall, as far as may be practicable, be proportionate to the amount of the arrear of land revenue to be recovered together with the interest thereon and the expenses of attachment and sale.

Section 71. Deposit by purchaser of immovable property

In all cases of sale of immovable property, the party who is declared to be the purchaser shall be required to deposit immediately 25 per cent.of the amount of his bid, and the balance within fifteen days of the date of sale.

Section 72. Failure to make deposit

(1) In default of the payment of deposit referred to in section 71, the property shall be put up for re-sale and the expenses incurred in connection with the first sale shall be borne by the defaulting bidder.

(2) In default of payment of the balance of the bid amount within the period prescribed in section 71, the deposit after defraying therefrom the expenses of the sale shall be forfeited to the Government and the property shall be re-sold.

(3) Where the proceeds of the re-sale are less than the price bid by such defaulting purchaser, the difference shall also be recoverable form him in the same manner as an arrear of land revenue.

Section 73. Setting aside sale

Where immovable property has been sold under this Chapter, the defaulter, or any person owning such property or holding an interest therein, may, at any time, within thirty days of the date of sale or within such further period not exceeding thirty days as the Collector may for sufficient cause allow, apply in the prescribed manner to the Collector to have the sale set aside-

(a) On the ground of some material irregularity or mistake or fraud resulting in substantial loss or injury to him or

(b) On his depositing in the Collector’s Office the amount of the arrear specified in the proclamation of sale, the cost of the sale and for payment to the purchaser, sum equal to 5 per cent.of the purchase money.

Section 74. Confirmation of sale

If, on the expiration of thirty days from the date of sale of any immovable property or of the further period, if any, allowed under section 73, no application has been made for setting aside the sale, or if any such application has been made and rejected, the /collector shall make an order confirming the sale unless, for reasons to be recorded, the Collector sets aside the sale notwithstanding that no application therefor has been made.

Section 75. Refunds

(1) The Collector shall order the refund and payment to the purchaser, of-

(a) The amounts deposited by him under section 71; and

(b) The sum equal to 5 per cent.of the purchase money deposited under clause (b) of section 73;

If the sale is not confirmed or is set aside

(2) The Collector shall order the refund and payment of all the moneys deposited under clause (b) of section 73 to the person who made the deposit, if the sale is confirmed:

Provided that the Collector may set off the whole or any part of any such moneys against any arrear of land revenue or any other arrear recoverable as an arrear of land revenue, which may be outstanding against the person who made the deposit.

Section 76. Certificate of purchase

When a sale held under this Chapter is confirmed, the Collector shall put the person declared to be the purchaser in possession of the property and shall grant him a certificate in the prescribed form to the effect that he has purchased the property specified therein, and such certificate shall be deemed to be a valid transfer of such property.

Section 77. Application of proceeds of sale

The proceeds of the sale of any property under this Chapter shall be applied in defraying the expenses of the sale which shall be determined in the prescribed manner and the balance shall be applied to the payment of the arrears on account of which the sale was held and the surplus, if any, shall be paid to the person whose property has been sold.

Section 78. Liability of certified purchaser

The person who has purchased any land and to whom a certificate of purchase has been granted shall not be liable for the land revenue in respect of the land for any period prior to the date of the sale.

Section 79. Precautionary measures in certain cases

When the crop of any land or any portion of the same is sold, mortgaged or otherwise disposed of, the Collector may, if he thinks it necessary, prevent its being removed from the land until the demand for the current year in respect of the said land is paid whether the date fixed for the payment of the same has arrived or not.

Section 80. Recovery of other public demands

The following moneys may be recovered under this Act in the same manner as an arrear of land revenue, namely:-

(a) Rent, fees and royalties due to the Government for use or occupation of land or water or any product of land;

(b) All moneys falling due to the Government under any grant, lease or contract which provides that they shall be recoverable as arrears of land revenue;

(c) All sums declared by this Act or any other law for the time being in force to be recoverable as an arrear of land revenue.

Section 81. Revenue officers to be courts

(1) A revenue officer, while exercising power under this Act or any other law for the time being in force to inquire into or to decide any question arising for determination between the Government and any person or between parties to any proceedings; shall be a revenue court.

(2) Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the revenue court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the revenue court.

Section 82. Place of hearing

Except for reasons to be recorded in writing, no revenue officer shall inquire into or hear any case at any place outside the local limits of his jurisdiction:

Provided that a sub-divisional officer may inquire into or hear any case at the headquarters of the district to which he is appointed.

Section 83. Power to enter upon and survey land

All revenue officers and persons acting under their orders may enter upon and survey and land and demarcate boundaries and do all other acts necessary for the purpose of discharging their duties under this Act or any other law for the time being in force and in so doing, shall cause no more damage than the circumstances of the case may require.

Section 84. Power to transfer cases

(1) The Administrator may transfer any case or class of cases arising under this Act or any other law for the time being in force from any revenue officer to any other revenue officer competent to deal with it.

(2) The Collector or a sub-divisional officer may transfer any case or class of cases arising under this Act or any other law for he time being in force for inquiry of decision from his own file or from the file of any revenue officers subordinate to him to the file of any other revenue officer subordinate to him competent to deal with such case or class of cases.

Section 85. Power to take evidence, summon witnesses, etc

(1) Every revenue officer not lower in rank than a circle officer acting as a revenue court shall have power to take evidence and to summon any person whose attendance he considers necessary, either as a party or as a witness or to produce any documents, for the purpose of any inquiry which such officer is legally empowered to make, and all persons so summoned shall be bound to powered to attend either in person or by an authorised agent as such officer may direct, and to produce such documents as may be required.

(2) Every summons shall be in writing, signed and sealed by the officer issuing it and shall be in such form and be served in such manner as may be prescribed.

Section 86. Compelling attendance witnesses

If any person on whom a summons to attend as witness or to produce any document has been served fails to comply with the summons, the officer by whom the summons has been issued under section 85 may-

(a) Issue a bailable warrant of arrest;

(b) Order him to furnish security for appearance; or

(c) Impose upon him a fine not exceeding rupees twenty.

Section 87. Hearing in absence of party

(1) If, on the date fixed for hearing a case or proceeding, a revenue officer finds that a summons or notice was not served on any party due to the failure of the opposite party to pay the requisite process fees for such service, the case or proceeding may be dismissed for default of payment of such process fees.

(2) If any party to a case or proceeding before a revenue officer does not appear on the date fixed for hearing, the case may be heard and determined in his absence or may be dismissed for default.

(3) The party against whom any order is passed under sub-section (1) or (2) may apply, within thirty days from the date of such order, to have it set aside on the ground that he was prevented by sufficient cause from paying the requisite process fees or from appearing at the hearing; and the revenue officer may, after notice to the opposite party and after making such inquiry as he considers necessary, set aside the order passed.

Section 88. Adjournment of hearing

(1) A revenue officer may, from time to time for reasons to be recorded, adjourn the hearing of a case or proceeding before him.

(2) The date and place of an adjourned hearing shall be intimated at the time of the adjournment to such of the parties and witnesses as are present.

Section 89. Power to order payment of costs

A revenue officer may direct the parties to pay the cost incurred in any case before him and also apportion the cost among the parties in such manner and to such extent as he may think fit.

Section 90. Use of force

Where any order is passed under this Act directing any person to deliver possession of land or directing the eviction of any person from land, such order shall be executed by the competent authority in such manner as may be prescribed and it shall be lawful for such authority, in accordance with rules to be prescribed, to take such steps and use or cause to be used such force as may be reasonably necessary for securing compliance with the order.

Section 91. Appearances before and applications to revenue officers. A

All appearances before, applications to, and acts to be done before, any revenue officer under this Act or any other law for the time being in force may be made or done by the parties themselves or by their authorised agents or by any legal practitioner;

Provided that any such appearance shall, if the revenue officer so directs, be made by the party in person

Section 92. Correction of error or omission

Any revenue officer by whom an order was passed in a case or proceeding may, either on his own motion or on the application of a party, correct any error or omission not affecting a material part of the case or proceeding, after such notice to the parties as he may consider necessary.

Section 93. Appeals

(1) Save as otherwise expressly provided, an appeal shall lie from every original order passed under this Act,-

(a) If such an order is passed by an officer subordinate to the sub-divisional officer, to the sub-divisional officer;

(b) If such an order is passed by the sub-divisional officer, to the Collector;

(c) If such an order is passed by the Collector, to the Administrator;

(d) If such an order is passed by an assistant survey and settlement officer, notified by the Administrator in the Official Gazette to be the appellate authority; and

(e) If such an order is passed by a survey and settlement officer, to the director of settlement and land records or to a revenue officer notified by the Administrator in the Official Gazette to be the appellate authority.

(2) A second appeal shall lie against any order passed in first appeal,-

(a) If such an order is passed under clause (a) of sub-section (1), to the Collector;

(b) If such an order is passed under clause (b) of sub-section (1), to the Administrator;

(c) If such an order is passed under clause (d) of sub-section (1), to the director of settlement and land records or to a revenue officer notified by the Administrator in the Official Gazette to be the second appellate authority; and

(d) If such an order is passed under clause (e) of sub-section (1), to the Administrator.

Section 94. Limitation of appeals

(1) No appeal shall lie,-

(a) In the case of a first appeal, after the expiry of thirty days from the date of the order appealed against; and

(b) In the case of a second appeal, after the expiry of sixty days from the date of the order appealed against.

(2) In computing the above periods, the time required to obtain copies of the order appealed against shall be excluded.

Section 95. Section

The Administrator or the Collector may, at time, either on his own motion or on the application of any party, call for the records of any proceedings before any revenue officer subordinate to him for the purpose of satisfying himself as to the legality or the propriety of any order passed by such revenue officer, and may pass such order in reference thereto as he thinks fit:

Provided that he shall not vary or reverse any order affecting any right between private persons without having given to the parties interested notice to appear and be heard.

Section 96. Review of orders

(1) A revenue officer may, either on his own motion or on the application of any party interested, review any order passed by himself or by any of his predecessors-in-office and pass such order in reference thereto as he thinks fit:

Provided that a revenue officer subordinate to the Collector shall, before reviewing any order under this section, obtain the permission of Collector and the Collector shall, before reviewing an order passed by any of his predecessors-in-office obtain the permission of the Administrator.

(2) No order affecting any question of right between private persons shall be reviewed except on the application of a party to the proceedings or except after notice to the other party as no application for the review of such order shall be entertained unless it is made within ninety days from the date of the order.

(3) No order shall be reviewed except on the following grounds, namely:-

(i) Discovery of new and important matter of evidence;

(ii) Some mistake or error apparent on the face of the record ; or

(iii) Any other sufficient reason.

(4) For the purposes of this section, the Collector shall be deemed to be the successor-in-office of any revenue officer who has left the district or who has ceased to exercise powers as a revenue officer and to whom there is no successor in the district.

(5) An order which has been dealt with in appeal or on revision shall not be reviewed by any officer subordinate to the appellate or revisional authority.

Section 97. Stay of execution of orders

(1) A revenue officer who has passed any order or his successor-in-office, may, at any time before the expiry of the period prescribed for appeal, direct the stay of execution of such order for such period as he thinks fit provided that no appeal has been filed.

(2) Any authority before whom a case is pending in appeal or revision may direct the stay of execution of the order appealed from or under revision for such period as it may think fit.

(3) The revenue officer or other authority directing such stay of execution of any order may impo9se such conditions, or order such security to be furnished, as he or it may think fit.

Section 98. Power to make rules

(1) The Administrator may, by notification in the Official Gazette, make rules for carrying out the purposes of those Part.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) The manner of appointment of revenue officers, survey officers and settlement officers, and other village officers and servants, their powers and duties, the official seals, if any, to be used by them and the size and description of the seals;

(b) The Collector’s powers of superintendence and control over other officers;

(c) The officers who should hear and decide dispute regarding rights in or over any property claimed by or against the Government and the procedure to be followed by them;

(d) The disposal of Government lands by assignment or grant to individuals or to public purposes and the terms and conditions subject to which such assignments or grants may be made;

(e) The preservation and disposal of trees, brush wood, jungle and other natural products on Government land and the recovery of the value of trees or other natural product unauthorisedly appropriated by persons;

(f) The procedure for summary eviction of trespassers on Government land;

(g) The alteration and revision of the land revenue in cases of alluvion or diluvion or of diversion of land for purposes other than agricultural purposes;

(h) The grant of permission to use agricultural land for non-agricultural purposes;

(i) The determination of additional rates for use of water;

(j) The circumstances in which remission or suspension of revenue may be made and the rate of such remission or suspension;

(k) The form of receipt for payment of land revenue;

(l) The conduct of surveys and settlements of land revenue;

(m) The manner of estimating the cost of cultivation and other expenses in relation to the inquiry into profits of agriculture;

(n) The division of survey numbers into sub-divisions and the assessment of sub-divisions;

(o) The statistical, fiscal and other records and registers to be prepared and maintained under this Part;

(p) The manner in which the costs and expenses incidental to revenue survey or the construction, repair and maintenance of boundary marks shall be determined and apportioned between persons who are liable to bear the same;

(q) The fixing, construction, laying out, maintenance and repair of boundary marks, and the settlement of disputes relating thereto;

(r) The division of areas into units for determining the revenue-rates and the preparation of the table of revenue rates;

(s) The preparation and the preliminary and final publication of the record of rights and the table of revenue-rates;

(t) The hearing and disposal of objections to any entry or omission in the table of revenue-rates, the record of rights, and the register of mutations;

(u) The manner and extent of alteration or revision of revenue-rates during the term of settlement;

(v) The correction of bona fide errors and mistakes in the revenue records, registers and maps prepared under this Part;

(w) The manner in which the average yields of crops of land shall be ascertained;

(y) The application of the provisions of the Code of Civil Procedure, 1908 (5 of 1908), to cases and proceedings before a revenue court;

(z) The form of summons and other processes, notices, orders and proclamations to be issued or made by revenue officers and the manner of their service;

(aa) The procedure for the attachment and sale of property and the confirmation and the setting aside of sales of immovable property under Chapter VII;

(bb) The manner of publication of notices and proclamations of attachment and sale of property;

(cc) The manner in which the cost and expenses incidental to the attachment and sale of property shall be determined;

(dd) The manner of payment of deposit and of the purchases money of property sold for arrears of land revenue;

(ee) The circumstance in which precautionary measures for securing the land revenue under section 79 may be taken;

(ff) The procedure for the transfer of cases from one revenue officer to another;

(gg) The manner of preferring appeals or applications for revision or review, the documents to accompany the memorandum of appeal or such application and the fee, if, any, leviable therefor;

(hh) The grant of certified copies and the payment of fees for inspection and grant of certified copies of revenue records and registers;

(ii) The mode of execution of any orders directing any person to deliver possession of land or to be evicted from land including the use of force for securing compliance with such order;

(jj) Any other matter which is to be or may be prescribed

Section 99. Rights of raiyats

(1) For the removal of doubts, it is hereby declared that subject to the other provisions of this Act-

(a) The rights of a raiyat, in his land shall be permanent, heritable and transferable;

(b) The raiyat shall be entitled by himself his servants, under-raiyats, agents or other representatives to erect farm buildings, construct wells or tanks or make other improvements thereon for the better cultivation of the land or its convenient or profitable use;

(c) The raiyat is entitled to plant trees on his land, to enjoy the products thereof and to fell, utilise or dispose of the timber of any trees on his land.

(2) Nothing in sub-section (1) shall entitle a raiyat to use his land to the detriment of any adjoining land which is not his or in contravention of the provisions of any other law for the time being in force applicable to such lands.

Section 100. Reservation of land for personal cultivation

(1) Every raiyat who, at the commencement of this Act, owns land in excess of a basic holding shall be entitled to apply to the competent authority for the reservation for his personal cultivation of any parcel or parcels of his land leased to under-raiyats.

(2) Every application under sub-section (1) shall be in the prescribed form and shall be made in the prescribed manner within a period of one year from the commencement of this Act.

Explanation

In the case of a person under disability, the application shall be made by his guardian or his authorised agent, as the case may be.

Section 101. Procedure for reservation of lands

(1) The competent authority shall, on an application made under section 100, issue notice together with a copy of the application to each of the under-raiyats holding land from the applicant requiring the under-raiyat to submit his objection, if any, within a period of ninety days from the date of service of such notice or within such further period as the competent authority may allow.

(2) An under-raiyat on whom a notice has been served under sub-section (1) shall furnish to the competent authority within the period aforesaid details of lands owned by him or held as under-raiyat of any other raiyat and of lands which he selects for retention by him.

(3) The competent authority shall, after considering the objections and the details, if any furnished by the under-raiyats and after making such inquiry as it may consider necessary, determine the land or lands, not exceeding the permissible limit, which in its opinion having regard to all the circumstances of the case may be reserved for personal cultivation of the raiyat and the lands which each of his under-raiyats may be allowed to retain.

Section 102. Permissible limit defamed

(1) In section 101, “permissible limit” means an area of land which a raiyat may resume from under-raiyats for personal cultivation, that is to say,-

(a) In the case of a person under disability, 25 standard acres;

(b) In the case of any other person who-

(i) Owns a basic holding or less, the entire area owned by him;

(ii) Owns more than a basic holding but not exceeding a family holding, one-half of the area leased to under-raiyats or the area by which the land under his personal cultivations falls short of a basic holding, whichever is greater;

(iii) Owns more than a family-holding,-

(1) If he has no land, or any land which is less than a family holding, under his personal cultivation, one-half of the area leased to under-raiyats but not exceeding the area by which land under his personal cultivation falls short of a family holding, provided that the under-raiyat is left with not less than basic holding and provided further that a raiyat shall in any case be entitled to resume an area by which land under his personal cultivation falls short of a basic holding and

(2) If he has a family holding or more under his personal cultivation, the area leased to under-raiyats but not exceeding the area by which land in his personal cultivation falls short of 25 standard acres, provided that the under-raiyat is left with not less than a family holding.

Explanation

For the purpose of determining the permissible unit of a raiyat under this sub-section, any non-resumable land which he may hold as an under-raiyat shall also be taken into account.

(2) Notwithstanding anything contained in sub-section (1), an under-raiyat who under any law, custom or usage is not liable to eviction at the commencement of this Act on the ground that the land is required for personal cultivation, shall in all cases be left with a basic holding or the land actually held by him, whichever is less.

(3) Any transfer of land made on or after the 10th August, 1957 shall be disregarded in computing the permissible limit.

Section 103. Land deemed to be reserved for personal cultivation in certain cases

In the case of a raiyat who at the commencement of this Act does not own land in excess of a basic holding, all lands owned by him and held by under-raiyats at such commencement shall, subject to the provisions of sub-section (2) of section 102, be deemed to have been reserved for his personal cultivation.

Explanation

Any transfer of land made on or after the 10th August, 1957 shall be disregarded in determining the extent of land owned by a raiyat at the commencement of this Act.

Section 104. Non-resumable land

The competent authority shall declare every land which, under sub-section (3) of section 101, an under raiyat is allowed to retain to be the non-resumable land of the under-raiyat.

Section 105. Right to lease

(1) Subject to the provisions of this Act, a raiyat may lease out his land to another person on such rent not exceeding the maximum rent referred to tin section 111 as may be agreed upon between him and such person.

(2) Every lease of land made after the commencement of this Act, shall be for a period of five years and at the end of the said period and thereafter at the end of every such period of five years, the tenancy shall, subject to the provisions of sub-section (3), be deemed to be renewed for a further period of five years on the same terms and conditions except to the extent that a modification there of consistent with this Act is agreed to by booth parties.

(3) In respect of any lease made after the commencement of this Act, a raiyat who is a member of the Armed forces of the Union, on his discharge from service or posting to the reserve, may by giving the under-raiyat three months’ notice in writing before the expiry of any year, and any other raiyat may by giving the under-raiyat one year’s notice in writing before the expiry of any term of five years, terminate the tenancy if the raiyat requires the land bona fide for personal cultivation by him.

Section 106. Land left uncultivated

(1) Where the Collector is satisfied that any land has remained uncultivated for a period of not less than two consecutive years otherwise than in accordance with rules made in this behalf under this Act,, and that it is necessary for the purpose of ensuring the full and efficient use of the land for agriculture to do so, be may after making such inquiry as may be prescribed lease out the land in accordance with the rules made under this Act.

(2) Any lease made under sub-section (1) shall be deemed to be a lease made by the raiyat under sub-section (1) of section 105.

Section 107. Relinquishment

(1) Subject to any rules that may be made under this Act, a raiyat may relinquish his rights in respect of any land in his possession in favour of Government by giving a notice in writing to the competent authority in such from and manner as may be prescribed, not less than three months before the close of any year and thereupon he shall cease to be a raiyat in respect of that land from the year next following the date of notice:

Provided that relinquishment of only a part of a hiding or of a holding which, or part of which, is subject to an encumbrance to a charge, shall not be valid.

(2) If any person relinquishes his rights to a land under sub-section (1), the way to which lies through other land retained by him, any future holder of the land relinquished shall be entitled to a right of way through the land retained.

Section 108. Interest of under raiyats

(1) The interest of an under-raiyat in any land held by him as such shall be heritable but, save as otherwise provided in this Act, shall not be transferable.

(2) No under-raiyat shall be evicted from his land except as provided in this Act.

Section 109. Right to create a mortgage of charge

It shall be lawful for an under-raiyat to create a simple mortgage to a charge on his interest in the land leased to him, in favour of the Government or a co-operative society in consideration of any loan advanced to him by the Government or such society; and in the event of his making default in the repayment of such loan in accordance with its terms, it shall be lawful for the Government or the society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds applied in payment of such loan.

Section 110. Right to make improvements

An under-raiyat may, with the permission in writing of the raiyat, or if permission is refused without sufficient reason or is not given within two months, after obtaining the orders of the competent authority in the prescribed manner, make at his own expense any improvement to the land held by him, but shall not become liable to pay a higher rate of rent on account of any increase of production or of any change in the nature of the crop raised, as a consequence of such improvement.

Section 111. Maximum rent

The rent payable by an under-raiyat in respect of any land held by him shall not exceed,-

(a) Where the rent is payable in kind as a share of the produce, one-fourth of the produce of such land or its value estimated in the prescribed manner if plough cattle for the cultivation of such land supplied by the raiyat and one-fifth of such produce or its value as so estimated if plough cattle is not supplied by the raiyat;

(b) In any other case, four times the land revenue payable is respect of the land.

Section 112. Payment of rent

(1) The rent payable by an under-raiyat shall, subject to the provisions of section 111, be the rent agreed upon between him and the raiyat, or where there is no such agreement, the reasonable rent.

(2) The rent shall be paid at such times and in such manner as may have been agreed, upon, or the absence of such agreement, as may be prescribed.

Section 113. Reasonable rent

(1) The competent authority may, on application made to it in this behalf by the raiyat or the under-raiyat, determine the reasonable rent for any land..

(2) The form of application under sub-section (1) and the procedure to be followed by the competent authority shall be such as may be prescribed.

(3) In determining the reasonable rent, the competent authority shall have regard to-

(a) The rental value of lands used for similar purposes in the locality;

(b) The profits of agriculture of similar lands in the locality;

(c) The price of crops and commodities in the locality;

(d) The improvements, if any, made to the land by the raiyat or the under-raiyat;

(e) The land revenue payable in respect of the land; and

(f) Any other factor which may be prescribed.

(4) Where the reasonable rent for any land has been determined under this section, it shall not be altered for a period of five years except on any of the following grounds, namely;

(a) That the quality of the land has deteriorated by flood or other natural causes;

(b) That there has been an increase in the produce of the land on account of improvements made to it at the expenses of the raiyat;

(c) That the extent of land has been altered by more than one acre by alluvion or diluvion;

(d) That the land has been partially or wholly rendered unfit for cultivation.

(5) Nothing in sub-sections (1) to (4) shall affect the right of the Government to make an order directing the determination of the reasonable rent of lands in any specified area.

Section 114. Commutation of rent payable in kind

(1) In any case in which rent is payable in kind, the raiyat or the under-raiyat may apply in writing to the competent authority in the prescribed form and manner, for commuting the rent into money rent.

(2) On receipt of such application, the competent authority shall after giving notice to the other party, determine the money rent payable for the land in accordance with the following provisions but not exceeding the maximum rent specified in section 111.

(3) In determining the money rent, regard shall be had to-

(a) The average money rent payable by under-raiyats for land of similar description and with similar advantages in the vicinity;

(b) The average value of the rent for the land actually received by the raiyat during the three years preceding the date of application;

(c) The average prices of crops and commodities in the locality during the three years preceding the date of application;

(d) The improvements, if any, made to the land by the raiyat or the under-raiyat; and

(e) Any other factor which may be prescribed.

Section 115. Receipt for payment of rent

Every raiyat shall give or cause to be given a receipt for the rent received by him or on his behalf in such form as may be prescribed duly signed by him or his authorised agent.

Section 116. Refund of rent recovered in excess

If any raiyat recovers from an under-raiyat rent in excess of the amount due under this Act, he shall forthwith refund the excess amount so recovered and shall also be liable to punishment as provided I this Act.

Section 117. Suspension or remission of rent

(1) Where a raiyat has obtained from or been granted by the Government any relief by way of suspension or remission, whether in whole or in part, of the land revenue payable in respect of his land, he shall be bound to give, and the under-raiyat concerned shall be entitled to receive from the raiyat, a corresponding or proportionate relief by way of suspension or remission of rent payable in respect of such land.

(2) The nature and extent of the relief which a raiyat is bound to give and which the under-raiyat is entitled to receive under sub-section (1) shall be determined in accordance with the rules made under this Act.

(3) No suit shall lie and no decree of a civil court shall be executed for the recovery by a raiyat of any rent the payment of which has been remitted, or during the period for which the payment of such rent has been suspended, under this section.

(4) The period during which the payment of rent is suspended under this sections shall be excluded in computing the period of limitation for any suit or proceeding for the recovery of such rent.

(5) If any raiyat fails to suspend or remit the payment of rent as provided in sub-section (1), he shall be liable to refund to the under-raiyat the amount recovered by him in contravention of the provisions of this section and shall also be liable to punishment as provided in this Act.

Section 118. Eviction under-raiyat

(1) No person shall be evicted from any land held by him as under-raiyat except under the order of the competent authority made on any of the following grounds, namely;-

(a) That the land has been reserved for personal cultivation of the raiyat under section 101, or is deemed to have been reserved for personal cultivation of the raiyat under section 103;

(b) That a notice has been given to the under-raiyat under sub-section (3) of section 105;

(c) That the under-raiyat has intentionally and wilfully committed such acts of waste as are calculated to impair materially or permanently the value or utility of the land for agricultural purposes;

(d) That the under-raiyat has failed to pay rent within a period of three months after it falls due:

Provided that the competent authority may, if it think fit, grant further time not exceeding six months for payment of the rent;

(e) That the under-raiyat not being a person under disability, has after the commencement of this Act, sublet the land without the consent in writing of the raiyat.

(2) No order for eviction of an under-raiyat, not being a person executed till the standing crops, if any, on the land are harvested.

(3) Where any land has been reserved for the personal cultivation of a raiyat by an order made under sub-section (3) of section 101, no suit or application for the eviction of the under-raiyat in respect of such land under clause (a) of sub-section (1) shall lie after the expiry of five years from the commencement of this Act or one year from the date of the said order, whichever is later;

Provided that where any such raiyat is a person under disability, such suit or application may be instituted or made within a period of five years from the date when the disability ceases.

Explanation

For the purpose of this sub-section, the disability of a person shall cease,-

(a) In the case of a widow, if she re-marries, on the date of her remarriage or if any person succeeds to the widow on her death, on the date of her death;

(b) In the case of a minor, on the date of his attaining majority;

(c) In the case of a woman who is unmarried or who is divorced or judicially separated from her husband on the date of her marriage or remarriage, as the case maybe, or in the case of a woman whose husband is a person falling under clause (d) or (e), on the date on which the disability of the husband ceases;

(d) In the case of a person who is a member of the Armed Forces of the Union, on the date of his discharge from service or of his posting to the reserve;

(e) In the case of a person suffering from a physical or mental disability, on the date on which the disability ceases to exist.

Section 119. Restoration of possession of land to under-raiyat

Where a person who has taken possession of any land by evicting an under-raiyat therefrom on the ground that the land had been reserved for personal cultivation by him, fails to cultivate such land personally within one year from the date on which he took possession thereof or ceases to cultivate such land personally in any year during a period of four years next following, the under-raiyat shall be entitled to be restored to possession of the land from which he was evicted.

Explanation

For the purpose of this section, land shall not be deemed to be under the personal cultivation of a person (not being a person under disability) unless such person or a member of his family engages himself in the principal agricultural operations.

Section 120. Certain lands to be non-resumable land of under-raiyat

If a raiyat falls to-

(a) Apply for reservation of any land within the period prescribed, in section 100, and the land is not deemed to have been reserved under section 103, or

(b) File a suit or application for the eviction of the under-raiyat from any land reserved under section 101 within the period prescribed in sub-section (3) of section 118, or

(c) Cultivate or ceases to cultivate the land and the under-raiyat is restored to possession of the land under section 119,

The competent authority may suo motu and shall, on application, after making such inquiry as may be prescribed, declare that land to be the non-resumable land of the under-raiyat

Section 121. Compensation for improvements

(1) An under-raiyat who had made any improvement at his own expense on the land leased to him shall, if he is to be evicted under the provisions of this Chapter, be entitled to receive compensation, before he is so evicted, for such improvement as, in the opinion of the competent authority, is reasonable.

(2) The compensation payable to an under-raiyat under sub-section (1) shall be determined in accordance with the value of such improvements on the date of eviction, and in determining such compensation, regard shall be had to the following matters namely:-

(a) The amount by which the value of the land has increased by reason of the improvement;

(b) The condition of the improvement at the date of the determination of the value thereof and the probable duration of its effect;

(c) The labour and capital involved in the making of the improvement; and

(d) The advantages secured by the under-raiyat in consideration of the improvement made by him.

(3) In any case in which compensation is payable to an under-raiyat under this section, the competent authority may direct that,-

(a) The whole or any part of any loan which the under-raiyat has taken on the security of his interest in the land under section 109 and which is outstanding shall be deducted form such compensation and paid to the Government or the co-operative society, as the case may be;

(b) Any arrear of rent due by the under-raiyat to the raiyat and the costs, if any, awarded to the raiyat shall be adjusted against the compensation.

Section 122. Under-raiyat may remove building, works, etc., not deemed improvements

An under-raiyat against whom an order of eviction has been passed, shall be entitled to remove within such time as is deemed reasonable by the competent authority any work of improvement which can be served from the land and which the under-raiyat desires to remove, or any building or construction or work (which is not an improvement) in respect of which the raiyat is not willing to pay the compensation.

Section 123. Restoration of possession of land in certain other cases

(1) Where an under-raiyat of any land has, on or after the 10th August, 1957, surrendered, or been evicted from such land and the surrender or eviction could not have taken place If this Act had been in force on the date of such surrender or eviction, the competent authority may, suo motu or on application made by the under-raiyat, restore him to possession of the land which he surrendered or from which he w as evicted unless some other under-raiyat, not being a member of the raiyat’s family, had bona fide been admitted to possession of such land.

(2) The competent authority shall, before making an order under sub-section (1), make such inquiry as may be prescribed.

Section 124. Relief against termination of tenancy for act of waste

Where a tenancy is sought to be terminated on the ground that the under-raiyat has materially impaired the value or utility of the land for agricultural purposes, if the damage to the land admits of being repaired or if pecuniary compensation would afford adequate relief, no proceeding for eviction shall lie against the under-raiyat unless and until the raiyat has served on the under-raiyat a notice in writing specifying the damage complained of and the under-raiyat has failed within a period of one year from the service of such notice to repair the damage or to pay compensation therefor.

Section 125. Surrender of land by under-raiyat

(1) After the commencement of this Act, no under-raiyat shall surrender any land held by him as such, and no raiyat shall enter upon the land surrendered by the under-raiyat, without the previous permission in writing of the competent authority.

(2) Such permission shall be granted if, after making such inquiry as may be prescribed, the competent authority is satisfied that the proposed surrender is bona fide and in case the surrender is by a person who was holding the land as under-raiyat immediately before the commencement of this Act, the permissible limit of the raiyat concerned is not exceeded by such surrender; in other cases, the permission shall be refused.

(3) Where permission is refused in any case, and the under-raiyat gives a declaration writing relinquishing his rights in the land, the competent authority shall, in accordance with the rules made in this behalf, lease out the land to any other person who shall acquire all the rights of the under-raiyat who relinquished his rights.

Section 126. Transfer of ownership of land to under-raiyats

Subject to the other provisions of this Act, the ownership of any land which is declared to be the non-resumable land of an under-raiyat under section 104 or section 120 shall stand transferred from the raiyat thereof to the under-raiyat with effect from the date of such declaration, and the under-raiyat shall become the owner of such land and be liable to pay land revenue therefore.

Section 127. Compensation to raiyat

(1) In respect, of every land the ownership of which stands transferred to the under-raiyat under section 126, the raiyat shall be entitled to compensation which shall consist of the aggregate of the following amounts, that is to say,-

(a) An amount equal to thirty times the full land revenue payable for the land or, if the land is held revenue-free or at a concessional rate, thirty times the amount of land revenue payable for similar lands in the locality;

(b) The value of trees, if any, planted by the raiyat.

Explanation

Where any improvement has been made on the land at the expenses of the raiyat at any time subsequent to the last settlement, the land revenue for the purpose of this section shall be the land revenue payable for similar lands in the locality.

(2) The land revenue payable for similar lands in the locality and the value of trees referred to in sub-section (1) shall be determined in the prescribed manner.

(3) Every raiyat entitled to compensation under this section shall, within a period of six months from the date of the declaration referred to in section 126, apply to the competent authority in the prescribed manner for determining the compensation.

Section 128. Payment of compensation to raiyat

(1) The compensation to which a raiyat is entitled under section 127 shall be paid to him by the Government in the first instance, and it may be paid in cash, in lump sum or in annual instalments not exceeding twenty or in the form of bonds, which may be negotiable or non-negotiable but transferable.

(2) From the date of the declaration referred to in section 126, the raiyat shall be entitled to interest at the rate of 2 1/2 per cent annum of the compensation or such portion thereof as remains unpaid.

(3) Any mortgage, of, or encumbrance on, the land of which the ownership is transferred to the under-section 126 shall be a valid charge on the amount of compensation payable to the raiyat.

(4) Notwithstanding anything contained in sub-sections (1) to (3), where the person entitled to compensation under section 127 is a charitable or religious institution, the compensation shall instead of being assessed under that section, be assessed as a perpetual annuity equal to the reasonable rent for the land, less the land revenue payable on such land.The amount so assessed shall be paid to such institution in the prescribed manner.

Section 129. Under raiyat to pay compensation amount

(1) Every under-raiyat to whom ownership of any land has been transferred under section 126 shall be liable to pay to the Government in respect of that land compensation as determined under section 127.

(2) The compensation shall be payable in cash, in lump sum or in such number of annual instalments not exceeding twenty as may be prescribed.Interest at the rate of 2 1/2 percent.per annum shall be payable on the compensation or such portion thereof as remains unpaid.

(3) The compensation payable under this section shall be a charge on the land.

(4) The compensation or any instalment thereof shall be recoverable in the same manner as an arrear of land revenue.

Section 130. Issue of certificate to under-raiyats

When the compensation or the first instalment of the compensation, as the case may be, has been paid by the under-raiyat, the competent authority may suo motu and shall, on application made to it in this behalf, issue to the under-raiyat a certificate in the prescribed form declaring him to be the owner of the land specified therein.

Section 131. First option to purchase

(1) If a raiyat at any time intends to sell his land held by an under-raiyat, he shall give notice in writing of his intention to such under-raiyat and offer to sell the land o him.In case the latter intends to purchase the land, he shall intimate in writing his readiness to do so within two months from the date of receipt of such notice.

(2) If there is any dispute about the reasonable price payable for the land, either the raiyat or the under-raiyat may apply in writing to the competent authority for determining the reasonable price; and the competent authority, after giving notice to the other party and to all other persons interested in the land and after making such inquiry as it thinks fit, shall fix the reasonable price of the land which shall be the average of the prices obtaining for similar lands in the locality during the ten years immediately preceding the date on which the application is made.

(3) The under-raiyat shall deposit with the competent authority the amount of the price determined under sub-section (2) within such period as may be prescribed.

(4) On deposit of the entire amount of the reasonable price, the competent authority shall issue a certificate in the prescribed from to the under-raiyat declaring him to be the purchaser of the land; the competent authority shall also direct that the reasonable price deposited shall be paid to the raiyat.

(5) If an under-raiyat does not exercise the right under sub-section (1) or fails to deposit the amount of the price as required by sub-section (3), such under-raiyat shall forfeit his right of purchase, and the raiyat shall be entitled to sell such land to any other person.

(6) The forfeiture of the right to purchase any land under this section shall not affect the other right of the under-raiyat in such land.

Section 132. Power to make rules

(1) The Administrator may, by notification in the Official Gazette, make rules for carrying our the purposes of this Part.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) The form of notices to be issued under this Part and the manner of their service;

(b) The manner of holding inquiries under this Part;

(c) The circumstances in with and the period for which land used for agricultural purposes may be left uncultivated;

(d) The conditions subject to which lands may be leased by the Collector under section 106;

(e) The from of application to be made under this part, the authorities to whom they may be made and the procedure to be followed by such authorities in disposing of the applications;

(f) The determination of the value of the produce of land, the profits of agriculture, and the rental values of land, for the purposes of this Part;

(g) The time and manner of payment of rent by the under raiyat;

(h) The from of receipt for rent to be given by the raiyat;

(i) The factors to be taken into account in determining reasonable rent for land and in commuting rent in kind into money rent;

(j) The nature and the extent of relief to the under-raiyat in cases of suspension or remission of land revenue by the Government;

(k) The determination of compensation for improvements to under-raiyats who are evicted from land;

(l) The grant of permission to surrender land;

(m) The determination of the amount of compensation payable to the raiyat in respect of the non-resumable lands of under-raiyats who are evicted from land;

(n) The from of certificates to be granted to under-raiyats;

(o) The determination of the price to be paid by under-raiyat for land in respect of which the first option to purchase is exercised;

(p) Any other matter which is to be or may be prescribed.

Section 133. Definitions

In this part,-

(a) “Estate” means lands included under one entry in any of the general registers of revenue-paying and revenue-free lands and includes-

(i) Revenue-free lands not entered in any register, and

(ii) A part of, or a share in, an estate;

(b) “Homestead” means a swelling house together with any courtyard, compound, garden, or outhouse and includes any out-buildings used for purposes connected with agriculture and any family graveyard, library, office, guesthouse, grain store, latrines, boundary walls, tanks, wells or places of worship appertaining to such dwelling house;

(c) “Intermediary” means a person who holds in an estate the right, title or interest of a talukdar and includes-

(i) A person who holds land either revenue-free or at a concessional rate, and

(ii) A tenure holder;

(d) “Tenant” means a person who cultivates or holds the land of an intermediary under an agreement, express or implied, on condition of paying therefor rent in cash or in kind or delivering a share of the produce and includes a person who cultivates or holds land of an intermediary under the system generally known as “bhag”, “adhi” or “barga”; and the term “sub-tenant” shall be construed accordingly;

(e) “Tenure holder” means a person who has acquired from an intermediary the right to hold lands for the purpose of collecting rents or bringing them under cultivation by establishing tenants thereon.

Section 134. Notification vesting estates in the State

(1) As soon as may be after the commencement of this Act, the Administrator may, by notification in the Official Gazette, declare that, with effect from the date specified in the notification (hereinafter referred to as the vesting date), all estates situated in any area or areas and all rights, title and interest or every intermediary in such estates shall vest in the Government free from all encumbrances.

(2) Every notification under sub-section (1) shall also be published in such other manner as may be prescribed.

(3) The publication of notification in the manner provided in sub-sections (1) and (2) shall be conclusive evidence of the notice of declaration to the intermediaries whose interests are affected by such notification.

Section 135. Consequences of notification under section 134

Notwithstanding anything contained in any law for the time being in force or in any agreement or contract, express or implied, with effect from the vesting date,-

(a) Each estate to which the notification relates and all rights, title and interest of intermediaries in such estate shall vest in the Government free from all encumbrances, including-

(i) Rights in hats, bazars, ferries, forests, wastelands, abadi sites, fisheries, tolls and other interests;

(ii) Rights in any building other than a dwelling house or in any part of such building, used primarily as office or cutcherry for collection of rent;

(b) All grants and confirmation of title to the estate and rights therein made in favour of an intermediary shall cases and determine;

(c) Any building used for educational or charitable purpose and held by the intermediary shall vest in the Government for those education al or charitable purposes;

(d) Subject to the other provisions of this Act, every tenant holding any land under an intermediary shall hold the same directly under the Government as a raiyat thereof and shall be liable to pay to the Government land revenue equal to the rent payable by him to the intermediary on the vesting date, subject to a maximum of the value of one-eighth of the gross produce which value shall be determined in the manner prescribed;

Provided that the tenant shall become the owner of nay building or structure constructed on such land at the expense of the intermediary on payment of such compensation to the intermediary as is equivalent to its market value on the vesting date, which value shall be determined in accordance with the rules made in this behalf;

(e) All arrears of land revenue local rates, cesses and other dues lawfully payable to the Government by the intermediary on the vesting date in respect of the estate shall without prejudice to any other mode of recovery, be recoverable by deduction from the compensation payable to the intermediary;

(f) All rents and other dues in respect of the estate for any period after the vesting date which, but for this Act, would be payable to an intermediary shall be payable to the Government and nay payment made in contravention of this clause shall not be valid discharge of the person liable to pay the same.

(g) Where under any agreement or contract made between the vesting date, any rent, cess, local rate or other dues for nay period after the said date has been paid to or compounded of released by an intermediary, the same shall, notwithstanding such agreement or contract, be recoverable by the Government from the intermediary, and may, without prejudice to any other mode of recover, be realised by deduction for the compensation payable to the intermediary.

Section 136. Rights of intermediary to certain lands

(1) Notwithstanding anything contained in section 134 and 135 an intermediary shall, subject to the provisions of sub-section (2), be entitled to retain with effect from the vesting date,-

(a) Homesteads, buildings and structures together with the lands appurtenant thereto in the occupation of the intermediary other than buildings vested in the Government under section 135;

(b) Lands under the personal cultivation of the intermediary;

(c) Lands in which permanent rights have not already accrued to a tenant under any custom, agreement or law and which have been leased by an intermediary who, both at the commencement of the lease and on the vesting date, was a person under disability;

(d) Lands held by the intermediary as mortgagor which are subject to usufructuary mortgage and are under the personal cultivation of the mortgagee;

(e) Lands comprised in orchards or used for the purpose of live-stock breeding, poultry farming, or dairy farming, which are in the occupation of the intermediary;

(f) So much of the lands comprised in a tea garden, mill, factory or workshop as in the opinion of the Administrator is required for such tea garden, mill, factory or workshop.

(2) An intermediary who is entitled to retain possession of any land under sub-section (1) shall hold such land directly under the Government from the vesting date as a raiyat thereof and be liable to pay therefor land revenue at full rate applicable to similar lands in the locality.

Section 137. Collector to take charge of estates, etc., vested in the Government

(1) The Collector shall take charge of estates and interests of intermediaries, which vest in the Government under section 135.

(2) For the purpose aforesaid, the Collector may, by written order served in the prescribed manner, require any intermediary or other person in possession of any such estate or interest to give up such possession by a date to be specified in the order (which shall not be earlier than sixty days from the date of service of the order) or to deliver by that date any documents, registers, or records, connected with the management of such estate or interest which are in his custody or to furnish a statement in the prescribed from in respect of such estate or interest.

(3) The Collector or any other officer authorised by him in this behalf may take such steps or use such force as may be necessary to enforce compliance with the order and may also enter any building or place for the purpose of taking possession of the documents, registers or records referred to in sub-section (2).

(4) An intermediary shall be entitled to make inspection of any documents, registers or records which have been delivered to or taken possession of by the Collector, to make notes therefrom or to have certified copies thereof granted to him.No fees shall be charged for making inspection or for making notes, but fees may be charged, according to the prescribed scale, for the grant of certified copies.

(5) Nothing in this Section shall be deemed to authorise the collector to take possession of-

(a) Any land or of any right of an intermediary therein, which may be retained by the intermediary under section 136, or

(b) Any religious institution or any building connected therewith.

Section 138. Decision of disputes

If there is any dispute as to the possession of any homestead or land or building referred to in sub-section (1) of section 136, the Collector shall, on application made to him in this behalf make such inquiry as he deems fit and pass such orders thereon as may appear to him just and proper.

Section 139. Appeal

An appeal against an order of the Collector passed under section 138, if preferred within sixty days of such order, shall lie to the District Judge having jurisdiction.

Section 140. Intermediaries entitled to receive compensation

Every intermediary, whose right, title and interest in any estate vest in the Government under Chapter XI shall be entitled to receive and be paid therefor compensation as hereinafter provided.

Section 141. Date from which compensation shall be due

The compensation referred to in section 140 shall be due as from the vesting date and the portion remaining unpaid shall carry interest at the rate of 2 1/2 per cent.per annum.

Section 142. Every intermediary to be treated as a separate unit

(1) For the purpose of assessing compensation under this Chapter,-

(a) Every intermediary shall be treated as a separate unit;

(b) If two or more intermediaries hold an estate or any interest therein jointly, the share of each intermediary in such estate or interest shall be treated as a separate unit;

Provided that where any such estate or interest is held by a Hindu joint family consisting of a common ancestor in the male line and his descendants, the family shall if the common ancestor was alive on the vesting date, be treated as one unit;

(c) If an intermediary holds shares or interest in two or more estates, the aggregate of his shares or interest in all such estates shall be treated as a single unit.

(2) Notwithstanding anything to the contrary contained in any other law, no partition or transfer by way of sale or gift of an estate or part thereof made on or after the 10th August, 1957, shall be recognised for the purpose of assessing the compensation.

(3) Nothing in sub-section (2) shall apply to –

(a) Any sale made under an order of court in execution of any decree or order for payment, of money or

(b) Any sale or gift made in favour of a wakf, a trust, an endowment or a society registered under the Societies Registration Act, 1860 (21 of 1860.) and established wholly for charitable purposes unless the Government in any particular case directs otherwise.

Section 143. Appointment of compensation officers

The Administrator shall, as soon as possible after the publication of a notification under section 143, appoint one or more officers to be compensation officers to prepare compensation assessment rolls and to perform such other duties as may be prescribed.

Section 144. Compensation assessment roll

(1) The compensation officer shall prepare a compensation assessment roll in respect of every estate vested in the Government under Chapter XI.

(2) The compensation assessment roll shall contain particulars of the gross income and the net income from the estate, the share of the net income of the intermediary or each of the intermediaries, the amount of compensation payable to him or him or them and such other particulars as may be prescribed.

(3) Where an intermediary has shares or interest in two or more estates all of which have vested in the Government, the income from all such estates and the compensation payable to him in respect of his shares or interest in all such estates shall be shown in the compensation assessment rill relating to any one of such estates

(4) Where an intermediary has shares or interest in two or more estates either or any of which has not vested in the Government, the compensation payable to the intermediary shall be determined after all such estates have vested in the Government, on the basis of the aggregate of his shares or interest in the net income from all such estates.

(5) Nothing in sub-section (4) shall be construed as authorising the postponement of payment of ad interim compensation to any such intermediary as is referred to in that sub-section in respect of the estate or estates, which have vested in the Government.

(6) For the purpose of preparing the compensation assessment roll, the compensation officer may require an intermediary to submit such statements and furnish such particulars as may be prescribed.

Section 145. Determination of gross income and net income

(1) For the purpose of assessment of compensation payable in respect of an estate,-

(a) The gross income from the estate shall be taken to consist of-

(i) In respect of lands other than those referred to in section 136, the rents, cesses, local rates and other amounts payable or deemed to be payable to the intermediary or intermediaries by the tenants and tenure-holders for the previous year, including the commuted value of rents payable in kind which value shall be determined in the prescribed manner;

(ii) The gross income from abadi sites, fisheries, hats, bazars, ferries, forests, tolls, waste lands and other interests in the estate for the previous year;

(iii) The aggregate of the annual rents for the previous year from buildings used as offices or cutcherries and any other building which vest in the Government;

(iv) Any other income during the previous year appertaining to the estate vesting in the Government not expressly mentioned in the foregoing sub-clauses;

(b) The net income from the estate shall be computed by deducting from the gross income the following, namely:-

(i) Any sum which was payable by the intermediary or intermediaries during the previous year as land revenue, cesses, local rates or rent to the Government in respect of the interests to which the gross income relates;

(ii) Any sum payable under the Bengal Agricultural Income-tax Act, 1944, as extended to Tripura or the Indian Income-tax Act, 1922 (Ben VI of 1944.II of 1922), during the previous year as defined in these Acts, in respect of the interests to which the gross income relates;

(iii) Charges on account of management and collection at the following rates, namely:-

Amount of gross incomeRate
(a)Where the gross income exceeds Rs.30,000.15 per centum of such gross income.
(b)Where the gross income exceeds Rs.10,000 but does not exceed Rs 30,000.121/2 per centum of such gross income.
(c)Where the gross income exceeds Rs.5,000 but does not exceed Rs.10,000.10 per centum of such gross income.
(d)Where the gross income exceeds Rs.2,500 but does not exceed Rs.5,00071/2 per centum of such gross income
(e)Where the gross in come does not exceed Rs.2,5005 per centum of such gross income:

Provided that the net income (after deducting the charges on account of management and collection) from an estate which fails under item (a), (b), (c) or (d) shall in no case be less than the maximum net income from an estate which falls under the item immediately followed.

Illustration

The net income after deducting the charges on account of management and collection at 12 1/2 percent under item (b) from an estate the gross income of which is Rs.10,100 will be Rs.8,837.50 while the net income after deducting the charges on account of management at 10 percent under item (c) from an estate the gross income of which is Rs.10,000 will be Rs.9,000; under the proviso, the net income from the first mentioned estate shall be taken to be Rs.9,000 and not Rs.8,837.50.

(2) The net income from the estate as determined under sub-section (1) shall be apportioned among all the intermediaries having a share or interest in the estate in the proportion of their shares or interest, and if in doing so, any dispute involving a question of title arises, the compensation officer shall refer the parties to a civil court.

Explanation

For the purpose of this section except clause (b) (ii) of sub-section (1), “previous year” means the year immediately preceding the year in which the vesting date falls.

Section 146. Compensation payable to intermediary

(1) The compensation payable on an intermediary shall be a multiple of his net income from the estate or where the intermediary has shares or interests in two or more estates, of the aggregate of his net incomes from all such estates, in accordance with the following table, namely:-

Amount of net incomeTotal compensation payable
(a)Where the net income does not exceed Rs.1000.Fifteen times such net income.
(b)Where the net income exceeds RS.1000 but does not exceed RS.2,500.Twelve times such net income or the maximum amount under (a) above, whichever is greater.
(c)Where the net income exceeds RS.2,500 but does not exceed RS.5,000.Eleven times such net income or the maximum amount under (b) above, whichever is greater.
(d)Where the net income exceeds Rs.5,000 but does not exceed RS.7,500.Ten times such net income or the maximum amount under (c) above, whichever is greater.
(e)Where the net income exceeds Rs.7,5000 but does not exceed RS.10,000.Nine times such net income or the maximum amount under (d), above, whichever is greater.
(f)Where the net income exceeds Rs.10,000 but does not exceed RS.15,000.Eight times such net income or the maximum amount under (e) above, whichever is greater.
(g)Where the net income exceeds Rs.15,000 but does not exceed RS.30,000.Seven times such net income or the maximum amount under (fi0 above, whichever is greater.
(h)Where the net income exceeds RS.30,000 but does not exceed RS.50,000.Six times such net income or the maximum amount under (g) above, whichever is greater.
(i)Where the net income exceeds RS.50,000 but does not exceed Rs.1,00,000.Five times such net income or the maximum amount under (h) above, whichever is greater.
(j)Where the net income exceeds RS.1,00,000.Three times such net income or the maximum amount under (i) above, whichever is greater.
(k)Where the net income exceeds RS.3,00,000.Two times such net income or the maximum amount under (j) above, whichever is greater.

(2) Where the net income or any portion of the net income from an estate is dedicated exclusively to charitable or religious purposes, the compensation payable in respect of such net income or portion shall, instead of being assessed under sub-section (1), be assessed as a perpetual annuity equal to such net income or portion, as the case may be, payable in the prescribed manner for those purposes.

Explanation

For the purpose of this sub-section, if the salary, remuneration or any allowance payable to the Mutawalli of a wakf or the shebait of a Hindu temple or a trustee of any other charitable or religious trust does not exceed 15 percent of the net income, then such net income shall be deemed to be dedicated exclusively to charitable or religious purposes.

Section 147. Disposal of claims of creditors

(1) The Administrator shall appoint a claims officer not below the rank of sub-judge to dispose of the claims of creditors whose debts are secured by a mortgage of or charge on any estate or part thereof vested in the Government under section 134 and to discharge any other duties assigned to him by this Act or the rules made thereunder.

(2) Every creditor referred to in sub-section (1) shall prefer his claim in writing before the claims officer in the manner and within the time prescribed.

(3) The claims officer shall inquire into the claims in accordance with such rules as may be prescribed and determine the amount to which each of the creditors is entitled.

(4) Where there are two or more creditors, the claims officer shall determine, in accordance with the provisions of the Transfer of Property Act, 1882, the order in which each such creditor is entitled to receive the amount due to him.

Section 148. Appeal against the decision of claims officer

(1) Any person aggrieved by an order of the claims officer may, within sixty days of the date of the order, prefer an appeal to the District Judge having jurisdiction.

(2) The decision of the District Judge on appeal, or of the claims officer where no appeal is preferred, shall be final.

Section 149. Preliminary publication of compensation assessment roll and disposal of objections

(1) After the amount of compensation has been determined in accordance with the provisions of section 146 and entered in the compensation assessment roll, the compensation officer shall cause a draft of such roll to be published in the prescribed manner and for the prescribed period, The Compensation officer shall send copies of the relevant portions of the draft roll to the intermediaries concerned and shall receive and consider any objections which may be made within three months of the receipt of such copy to any entry therein or to any omission therefrom.The compensation officer shall dispose of such objections in the prescribed manner.

(2) Separate draft compensation assessment rolls may be prepared and published under sub-section (1) for different villages or groups of villages.

Section 150. Contents of the order of compensation officer

Every order of the compensation officer deciding an objection under sub-section (1) of section 149 shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.

Section 151. Appeals against order of compensation officer

(1) From every order passed by a compensation officer under section 150, an appeal shall lie to a Special Judge appointed for the purpose, within ninety days of the date of the order.

(2) An appeal shall lie to the court of the Judicial Commissioner from every order passed on appeal by a Special Judge under sub-section (1), within sixty days of the passing of such order, on any of the grounds specified in section 100 of the Code of Civil Procedure, 1908.

(3) The decision of the Judicial Commissioner, or of the Special Judge where no second appeal is preferred, shall be final.

Section 152. Final publication of the compensation assessment roll

(1) Where no objection or appeal has been filed or all the objections and appeals filed have been finally disposed of, the roll to be finally published, or make such alterations in the draft compensation assessment roll as may be necessary to give effect to any order passed on objection made under sub-section (1) of section 149 or on appeal under section 151 and cause the roll as so altered to be finally published, in the prescribed manner together with a certificate stating the fact of such final publication and the date thereof.

(2) The publication of the compensation assessment roll under sub-section (1) shall be conclusive evidence that the said roll had been duly made under this Chapter and every entry in such roll shall, save as otherwise provided in this Act, be conclusive evidence of the matters referred to in such entry.

Section 153. Correction of bona fide mistakes

(1) No correction of the compensation assessment roll after it has been finally published under section 152 shall be made except as provided in this section.

(2) Correction of bona fide mistakes or corrections necessitated by succession to or inheritance of any interest in the estate can be made by the compensation officer at any time before the payment of compensation either of his own motion or on the application of the person interested, but no such correction shall be made while any legal proceeding affecting such entry is pending.

(3) Every time a correction is made under sub-section (2), the compensation officer shall cause a draft of the correction to be published in the same manner as the draft compensation assessment roll and after considering and disposing of any objections that may be made, shall cause the correction to be finally published.

Section 154. Ad interim payment of compensation

After the vesting date and before the final publication of the compensation assessment roll, ad interim payment to the outgoing intermediary may be made as follows:-

(a) The compensation officer shall calculate the probable amount of compensation payable to him;

(b) Two and a half per cent.of such probable amount shall be paid ad interim to each intermediary in cash every year until such time as the compensation assessment roll is finally published;

(c) If there is any dispute as to the title of any person to receive the amount or as to the apportionment of it, the amount shall be kept in deposit in the manner prescribed until the dispute is finally determined; and on such determination, the compensation officer shall pay the amount or the portion thereof to the person or persons entitled to receive the same.

Section 155. Mode of payment of compensation

(1) After the compensation assessment roll has been finally published, the compensation officer shall deduct from the amount shown in such roll as payable to an intermediary or any other person having interest in the estate, the following amounts, namely:-

(a) Ad interim payments made under section 154;

(b) The amount, if any, the deduction of which has been ordered under section 135;

(c) The amounts payable to creditors as determined by the claims officer.

(2) The balance remaining after the deductions referred to in sub-section (1) are made shall be given in each, in one lump sum or in annual instalments not exceeding twenty, or in bonds, or partly in cash and party in bonds, in accordance with such rules as may be prescribed.

(3) The bonds referred to in sub-section (2) may be either negotiable or non-negotiable, and transferable in such circumstances and in such manner as maybe prescribed and shall carry interest at the rate of two and a half per cent per annum on the amount outstanding thereon, with effect form the date of issue.

(4) If any dispute arises as to the title of any person to receive the amount or as to the apportionment of it, the compensation officer may, if he thinks fit, keep the amount of compensation or the bonds referred to above in deposit in the manner prescribed until the dispute is finally determined; and on such determination, the compensation officer shall pay the amount or the portions thereof to the person or persons entitled to receive the same.

Section 156. Compensation due to maintenance holder

(1) If any person claiming as maintenance holder to be entitled to any portion of the compensation awarded to any intermediary under this Chapter applies to the compensation officer for payment of the same to him, the compensation officer may, with the consent of the intermediary, direct the payment to the applicant out of the compensation of such amount as the intermediary may have agreed to be paid to the applicant, and any such payment shall be valid discharge of the liability of the Government in respect of the amount so paid.

(2) If the intermediary does not give his consent, the compensation officer shall direct the applicant to file, within three months, a suit or other proceeding in the court having jurisdiction to establish his claim and order that the amount claimed shall not in the meantime be paid to the intermediary.

(3) The Government shall not be made party to any suit or proceeding instituted or commenced in pursuance of any direction given under sub-section.(2).

(4) If the suit or proceeding referred to in sub-section (2) is instituted or commenced within the period aforesaid, the compensation officer shall place the amount claimed at the disposal of the court before which such suit or proceeding is instituted.

Explanation

For the purpose of this section, a maintenance holder means a person entitled to receive maintenance under a registered deed, decree or order of court.

Section 157. Compensation due to person incompetent to alienate

If any intermediary entitled to receive compensation in respect of any interest is a person incompetent to alienate such interest, the compensation officer shall keep the amount of compensation payable in respect of such interest, whether in cash or in bonds, in deposit with the Collector who shall arrange to invest the cash or the income from the bonds in the purchase of such Government or other approved securities as the Collector thinks fit and shall direct the payment of the income from such investment to the intermediary who would for the time being have been entitled to hold and enjoy such interest if it had not vested in the Government; and such cash, bonds and securities shall remain so deposited until they are mode over to any person or persons becoming absolutely entitled thereto:

Provided that nothing herein contained shall affect the liability of any person who may receive the whole or any part of any compensation under this section to pay the same to the person lawfully entitled thereto.

Section 158. Inquiries to be judicial proceedings

The Collector, the compensation officer and the claims officer, for the purposes of any inquiries or proceedings under this Part, shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908, (5 of 1908) in respect of-

(a) Enforcing the attendance of any person and examining him on oath or affirmation;

(b) Compelling the production of documents; and

(c) Issuing commission of the examination of witnesses;

And such inquiries or proceedings shall be deemed to be judicial proceedings within the meaning of section 193 and 228 of the Indian Penal Code (45 of 1860.).

Section 159. Penalties

Whoever-

(a) Wilfully fails or neglects to comply with any requirements made of him under this Part, or,

(b) Contravenes any lawful order passed under this part, or

(c) Obstructs or resists the taking by the Collector or any other officer authorized by him writing of charge of any property which is vested in the Government under this Part, or

(d) Furnishes information which he knows or believes to be false or does not believe to be true,

Shall on conviction before a Magistrate, be punishable with fine which may extent to five hundred rupees.

Section 160. Application of Part III to persons becoming raiyats or under-raiyats under Part IV

Where, as a result of the operation of this Part, any person acquires the right to hold land either as a raiyat or an under-raiyat the provision of Part III shall as far as may be, apply to the determination of such right and in such application, any reference in the said Part to the commencement of this Act shall be construed as a reference to the vesting date.

Section 161. Power to make rules

(1) The Administrator may, by notification in the Official Gazette,, make rules for the purpose of carrying out the purposes of this Part.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) The manner of publication of a notification under section 134;

(b) The procedure to be followed and the forms to be adopted in inquiries and proceedings under this Part;

(c) The mode of service of any order, notice or other documents under this Part;

(d) The form of the statements to be furnished by intermediaries;

(e) The inspection of and making notes from documents, registers and records under section 137, the grant of certified copies thereof and the fee to be charged for such grant;

(f) The form and the manner in which compensation assessment rolls shall be prepared and the particulars to be mentioned therein;

(g) The manner of apportionment of net income among intermediaries;

(h) The procedure to be followed in the case of intermediaries having shares or interest in different estates;

(i) The manner in which the preliminary and the final publication of the compensation assessment roll shall be made;

(j) The manner of determining the amount of annuities payable to religious and charitable institutions and the procedure for making payments;

(k) The manner in which the income of the previous year shall be determined;

(l) The determination of the amount of and interim compensation;

(m) The manner in which and the period within which creditors may prefer their claims before the claims officer and the procedure to be followed in the disposal of such claims;

(n) The manner in which objections shall be submitted to the compensation officer and the procedure to be followed in the disposal of such objections;

(o) The manner of determining the commuted value of rents under section 145;

(p) The manner of preferring appeals under Chapters XI and XII;

(q) The manner of keeping in deposit the amount of compensation under sections 155 and 157;

(r) The form and contents of bonds;

(s) The manner in which, and the circumstances under which, bonds shall be transferable; and

(t) Any other matter which is to be, or may be, prescribed.

Section 162. Exemptions

The provisions of this Chapter shall not apply to land owned by the Government or a local authority.

Section 163. Definitions

For the purpose of this Chapter,-

(a) “Ceiling limit”, in relation to land, means the limit fixed under section 164;

(b) “Family”, in relation to a person, means the person the wife or husband, as the case may be, and dependent children and grand-children, of person;

(c) “Land” does not include land used for non-agricultural purposes.

Section 164. Ceilings on holdings

No person either by himself or, if he has a family, together with any other member of his family (hereinafter referred to as the person representing the family) shall, whether as a raiyat or an under-raiyat or as a mortgagee with possession or otherwise, or party in one capacity and partly in another, hold land in excess of twenty-five standard acres in the aggregate;

Provided that where the number of members of the family of such person exceeds five, he may hold five additional standard acres for each member in excess of five, so however as not to exceed fifty standard acres in the aggregate.

Explanation

In the case of a company, an association or any other body of individuals, the ceiling limit shall be twenty-five standard acres.

Section 165. Submission of returns

Every person representing a family who at the commencement of this Act holds, or has at any time during the period between the 10th day of August, 1957 and such commencement held, land in excess of the ceiling limit shall submit to the competent authority, in such form and within such times as may be prescribed, a return giving the particulars of all land held by him and indicating therein the parcels of land, not exceeding the ceiling limit, which he desires to retain;

Provided that in the case of a joint holding, all co-shares may submit the return jointly indicating the parcels of land, not exceeding the aggregate of their individual ceiling limits, which they desire to retain.

Explanation

In the case of a person under disability, the return shall be furnished by his guardian or authorised agent, as the case may be.

Section 166. Collection of information through other agency

If any person, who under section 165 is required to submit a return, fails to do so, the competent authority may collect the necessary information through such agency as may be prescribed.

Section 167. Procedure for determination of excess land

(1) On receipt of any return under section 165 or information under section 166 or otherwise, the competent authority shall, after giving the persons affected an opportunity of being heard, hold an inquiry in such manner as may be prescribed, and having regard to the provisions of section 168 and section 169 or of any rules that may be made in this behalf, it shall determine-

(a) The total area of land held by each person representing the family;

(b) The specific parcels of land which he may retain;

(c) The land held by him in excess of the ceiling limit;

(d) Whether such excess land is held by him as a raiyat or as an under-raiyat or as a mortgagee with possession;

(e) The excess land in respect of which the under-raiyat or the mortgagee with possession may acquire the rights of the raiyat or the mortgagor, as the case may be;

(f) The excess land, which may be restored to a raiyat or a mortgagor;

(g) The excess land which shall vest in the Government; and

(h) Such other matters as may be prescribed.

(2) For the purposes of determining the excess land under this section, any land transferred at any time during the period between the 10th day of August, 1957 and the commencement of this Act shall, notwithstanding such transfer, be deemed to be held by the transferor.

(3) The competent authority shall prepare a list in the prescribed form containing the particulars determined by him under sub-section (1) and shall cause every such list to be published in the Official Gazette and also in such other manner as may be prescribed.

Section 168. Selection of excess land in cases of certain transfer

(1) Where any person holding land in excess of the ceiling limit at any time during the period between the 10th day of August 1957 and the 2nd day of December, 1959, has transferred during such period any part his land to any other person under a registered deed for valuable consideration, the excess land to be determined under section 167 shall, to the extent possible, be selected out of the land held at the commencement of the Act by the transferor in excess of a family holding and no land shall be selected out of the land transferred.

(2) Where any person holding land in excess of the ceiling limit at any time-

(a) During the period between the 10th day of August, 1957 and the 2nd day of December, 1959, has transferred during such period any part of his land to any other person any manner other than under a registered deed for valuable consideration, or

(b) During the period between the 2nd day of December 1959 and the commencement of this Act has transferred during such period any part of his land to any other person in any manner whatsoever,

The excess land to be determined under section 167 shall be selected out of the lands held at the commencement of this Act by the transferor and the transferee in the same proportion as the land held by the transferor bears to the land transferred and where no land is held by the transferor, out of the land transferred.

(3) Where excess land is to be selected out of the lands of more than one transferee, such land shall be selected out of the lands held by each of the transferees in the same proportion as the area of the land transferred to him bears to the total area of the lands transferred to all the transferees.

(4) Where any excess land is selected out of the land transferred, the transfer of such land shall be void.

Include the homestead land of a person.

Explanation

For the purposes of this sub-section, “homestead land” means the land on which the homestead (whether used by the owner or let out on rent) stand together with any courtyard, compound and attached garden, not exceeding one acre in the aggregate.

Section 169. Excess land to vest in Government

(1) Where any excess land of a raiyat is in his actual possession, the excess land shall vest in the Government.

(2) Where any excess land of a raiyat is in the possession of a person holding the same as an under-raiyat or as a mortgage and the excess land together with any other land held by such person exceeds his ceiling limit, the land in excess of the ceiling limit shall vest in the Government.

(3) Where any excess land of a raiyat is in the possession of a person holding the same as an under-raiyat or as a mortgagee and such person Is allowed to retain the excess land or a part thereof as being within his ceiling limit, that person shall acquire the rights of the raiyat or of the mortgagor, as the case may be, in respect of such excess land or part thereof on payment of compensation, if any, as hereinafter provided, but if that person refuses pay such compensation, the excess land or part thereof shall vest in the Government.

(4) Where there is any excess land of an under-raiyat or of a mortgagee with possession, the excess land shall vest in the Government:

Provided that in any case whose the excess land or any part there of held by the raiyat or the mortgagor together with any other land held by such person does not exceed the ceiling limit, the excess land or such part thereof as does not exceed the ceiling limit shall be restored to the possession of that person on an application made as may be prescribed and in the case where the possession of such land is restored to the mortgagor, the mortgage in respect of such land shall be deemed to be a simple mortgage.

Section 170. Publication of the final list and consequences thereof

(1) Any person aggrieved by an entry in the list published under sub-section (3) of section 167 may, within thirty days from date of publication thereof in the Official Gazette, file objection thereto before the Collector.

(2) The Collector or any other officer authorised in this behalf by the Administrator may, after considering the objections and after giving the objector or his representatives an opportunity of being heard in the matter, approve or modify the list.

(3) The list as approved or modified under sub-section (2) shall then be published in the Official Gazette and also in such other manner as may be prescribed and subject to the provisions of this Act, the list shall be final.

(4) With effect from the date of the publication of the list in the Official Gazette under sub-section (3),-

(a) The excess land shall stand transferred to and vest in the Government free of all encumbrances; or

(b) The possession of the excess land shall stand restored to the raiyat or the mortgagor, as the case may be; or

(c) The rights of the raiyat or the mortgagor in respect of the excess land shall stand transferred to the under-raiyat or the mortgagee, as the case may be.

Section 171. Compensation

(1) Where any excess land of a raiyat vests in the Government there shall be paid by the Government to the raiyat compensation, subject to the provisions of sub-section (2), of an amount equal to twenty times the net annual income from such land.

Explanation

For the purposes of sub-section (1), the net annual income from any land shall be deemed to be one-fifth of the value of the average yearly gross produce of the land, calculated in such manner as may be prescribed.

(2) Where such excess land or any part thereof is in the possession of an under-raiyat the compensation payable under sub-section (1) in respect of the land shall be apportioned between the raiyat and the under-raiyat in such proportion as may be determined by the competent authority in the prescribed manner, having regard to their respective shares in the net income from such land.

(3) In addition to the compensation payable in respect of any excess land under sub-section (1), there shall also be paid compensation in respect of any structure or building constructed on such land and any trees planted thereon and such compensation shall be determined by the competent authority in the prescribed manner, having regard to the market value of such structure or building or the value of such trees, and such compensation shall be paid to the person who has constructed the structure or building or planted the trees.

(4) Where any excess land in respect of which compensation is payable is subject to any mortgage or other encumbrance, the amount due under the mortgage or other encumbrance in respect of such excess land, or where a transfer in respect of any excess land is void by virtue of sub-section (4) of section 168, the consideration money paid by the transferee in respect of such excess land, shall be a charge on the compensation payable in respect of the excess land to the person who has created the mortgage or encumbrance or, as the case may be, to the transferor.

(5) Where an under-raiyat acquires the rights of a raiyat in respect of any excess land, the compensation payable by him in respect of that land shall be equal to the amount which the raiyat would have been paid as compensation under sub-section (2) or sub-section (3) if the land had vested in the Government, and the amount shall, in the first instance, be paid to the raiyat by the Government and shall be recovered from the under-raiyat in such manner as may be prescribed.

(6) When a mortgagee in possession acquires the rights of the mortgagor in respect of any excess land under sub-section (3) of section 169, the compensation payable by the mortgagee in respect of that land shall be such sum of money, if any, as may be due to the mortgagor after setting off the mortgage debt against the market value of such excess land.

(7) Where any excess land of a religious or charitable institution vest in the Government, such institution shall, in lieu of compensation payable under sub-section (1) or sub-section (2), or subsection (3), be paid an annuity equal to the net annual income of the excess land and such net annual income shall be determined by the competent authority in the prescribed manner.

(8) The competent authority shall, after holding an inquiry in the prescribed manner, make an order determining the amount of compensation payable to any person under this section.

Section 172. Manner of payment of compensation

(1) The compensation payable under section 171 shall be due from the date of publication of the list under sub-section (3) of section 170 and may be paid in cash, in a lump sum or in instalments, or in bonds.

(2) Where the compensation is payable in bonds, the bonds may be made not transferable or transferable by endorsement or in any other manner but all such bonds shall be redeemed within such period, not exceeding twenty years from the date of issue, as may be prescribed.

(3) Where there is any delay in the payment of compensation or where the compensation is paid either in instalments or in bonds, it shall carry interest at the rate of two and a half per cent.per annum from the date of which it falls due.

Section 173. Limit of future acquisition of land

No person representing, a family shall acquire in any manner whatsoever, whether by transfer, exchange, lease agreement or succession, any land where such acquisition has the effect of making the total area of the land held by him exceed the ceiling limit; and any such land in excess of the ceiling limit shall be treated as excess land of the transferee and the provisions of section 167 to 172 shall, as far as may be, apply to such excess land.

Section 174. Excess land not to be surrendered in certain cases

Where a person representing a family holds land not exceeding the ceiling limit, but subsequently the land held exceeds the ceiling limit, then, notwithstanding anything contained in this Chapter such person shall not be required to surrender any part of the land on the ground that it is excess land, if such excess is due to any improvements effected in the land by the efforts of the family or to a decrease in the number of its members.

Section 175. Power of Collector to take possession of excess land

After the publication of the list of excess land under sub-section (3) of section 170, and after demarcation in the prescribed manner of such land where necessary, the Collector may take possession of any excess land any may use or cause to be used such force as may be necessary for the purpose.

Section 176. Offences and penalties

(1) Whoever being bound to submit a return under section 165 fails to do so, without reasonable cause, within the prescribed time, or submits a return which he knows or has reason to believe to be false, shall be punishable with fine which may extend to one thousand rupees.

(2) Whoever contravenes any lawful order made under this Chapter or otherwise obstructs any person from lawfully taking possession of any land shall be punished with fine which may extend to one thousand rupee.

Section 177. Finality of orders

Subject to the provision of this Act every order made under this Chapter shall be final.

Section 178. Power to exempt, etc

(1) The Administrator may on an application made to him in this behalf within three months from the commencement of this Act exempt from the operation of section 164.

(a) Any land which is being used for growing tea, coffee or rubber including lands used or required for use for purposes ancillary to, or for the extension of the cultivation of tea, coffee or rubber to be determined in the prescribed manner;

(b) Any sugarcane farm operated by a sugar factory;

(c) Any specialised farm, which is being used for cattle breeding dairy or wool raising;

(d) Any person who holds a compact block of land exceeding the ceiling limit which-

(i) Is being used as an orchard from before the 1st January, 1958; or

(ii) Is being used as a farm in which heavy investment or permanent structural improvement have been made and which, in the opinion of the Administrator, is being so efficiently, managed that its break up is likely to bring a fall in production:

Provided that where such person holds the compact block of land together with any other land, he shall be permitted to elect to retain either the compact block of land, notwithstanding that it exceeds the ceiling limit or the other land not exceeding the ceiling limit;

(e) Any land which is being held by a co-operative society, provided that where a member of any such society holds a share in such land, his share shall be taken into account in determining his ceiling limit;

Provided that the Administrator may entertain the application after the expire of the said period of the three months, if he is satisfied that the applicant was prevented by sufficient cause from making the application in time.

(2) Where any land in respect of which exemption has been granted to a person under clause (d) of sub-section (1) is transferred to another person, the Administrator may, on an application made to him within tree months from the date of the transfer, exempt the transferee from the operation of section 164 and section 173 and the provisions of the said clause shall, as far as may be, apply to the grant of such exemption.

(3) Where the Administrator is of opinion that the use of land for any specified purpose is expedient or necessary in the public interest, he may, by notification in the Official Gazette, make a declaration to that effect and on the issue of such notification, any person may, notwithstanding anything contained in section 173, acquire land in excess of the ceiling limit for being used for such specified purpose and such person shall, within one months from the date of such acquisition, send intimation thereof to the competent authority.

(4) Where any land, in respect of which exemption has been granted under sub-section (1) or sub-section (2) or sub-section (3), ceases to used, or is not within the prescribed time used, for the purpose for which exemption had been granted, the Administrator may, after giving the persons affected an opportunity of being heard, withdraw such exemption.

Section 179. Definitions

For the purpose of this Chapter,-

(a) “Holding” means the aggregate area of land held by a person as a raiyat;

(b) “Fragment” means a holding of less than two standard acres in area;

(c) “Land “ has the same meaning as in Chapter XIII.

Section 180. Restrictions on transfer, etc

(1) No portion of a holding shall be transferred by way of sale, exchange, gift, bequest or mortgage with possession, so as to create a fragment;

Provided that the provisions of this sub-section shall not apply to a gift made in favour of the Bhoodan movement initiated by Acharya Vinoba Bhave.

(2) No portion of a holding shall be transferred by way of lease, where as a result of such lease,-

(i) The lessor shall be left with less than two standard acres,

(ii) The total area held by the lessee exceeds the limit of a family holding.

(3) No fragment shall be transferred to a person who does not have some land under personal cultivation or to a person who holds, or by reason of such transfer shall hold, land in excess of the limit of a family holding.

Section 181. Partition of holding

(1) No holding shall be partitioned in such manner as to create a fragment.

(2) A fragment shall not be partitioned unless as a result of such partition its portions get merged in holdings of two standard acres or more or in fragments so as to create holdings of two standard acres or more.

(3) Whenever, in a suit for partition, the court finds that the partition of a holding will result in the creation of a fragment, the court shall, instead of proceeding to divide the holding, direct the sale of the same and distribute the proceeds thereof among the co-sharers.

(4) Wherever a holding is put up for sale under sub-section (3), a co-sharer shall have the first option to purchase the holding at the highest bid; if there are two or more co-sharers claiming the first option, that co-sharer who offers the highest consideration shall be preferred.

Section 182. Transfers in contravention of this Chapter

(1) Any transfer, partition or lease of land made in contravention of the provisions of this Chapter shall be void.

(2) No document of transfer, partition or lease of land shall be registered unless declarations in writing are made, in such form and manner as may be prescribed, by the parties thereto before the competent registering authority under the Indian Registration Act, 1908, regarding lands held by each prior to the transaction and the land which each shall come to hold thereafter (16 of 1908.)

(3) No registering authority shall register under the Indian Registration Act, 1908, any document of transfer, partition or lease of land if, from the declarations made under sub-section (2), it appears that the transaction has been effected in contravention of the provisions of this Chapter (16 of 1908)

Section 183. Penalty

The parties to any transfer, partition or lease made or entered into in contravention of any of the provision of this Chapter shall be punishable with fine which may extend to one hundred rupees.

Section 184. Power to make rules

(1) The Administrator may, by notification in the Official Gazette, make rules to carry out the purposes of this Part.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) The form in which, and the period within which, a return under section 165 may be submitted;

(b) The agency through which information may be collected under section 166;

(c) The manner of holding enquiries under this Part;

(d) The matters which may be determined under sub-section (1) of section 167 and the manner of determination of excess lands under this Part;

(e) The form in which a list under sub-section (3) of section 167 of sub-section (3) of section 170 may be prepared and the manner of publication of such list;

(f) The period within which an application for restoration of excess land may be made under the provision to sub-section (4) of section 169;

(g) The manner of apportionment of compensation between the raiyat and the under-raiyat under sub-section (2) of section 171;

(h) The manner of assessment of the market value or any structure or building or trees under sub-section (3) of section 171;

(i) The manner of recovery of the compensation payable by the under-raiyat under sub-section (5) of section 171;

(j) The manner of determining under sub-section (6) of section 171 the market value of any excess land in respect of which a mortgagee in possession acquires the rights of the mortgagor;

(k) The manner of determination of the net annual income of any excess land for the purpose of payment of compensation under section 171;

(l) The manner of payment of compensation, including the number of instalments in which the compensation may be paid or recovered and the period within which bonds may be redeemed;

(m) The manner of demarcation of any excess land under section 175;

(n) The matters which may be determined by the Administrator in granting an exemption under section 178 including the form in which applications and intimations may be made or given, under section 178;

(o) The form of declarations under section 182;

(p) Any other matter which has to be, or may be, prescribed.

Section 185. Recovery of amount due as arrear of land revenue

Without prejudice to any other provision of this Act, any amount due to the Government, whether by way of costs, penalty or otherwise, and any other amount which is ordered to be paid to or recovered by the Government, under this Act shall be recoverable in the same manner as an arrear of land revenue.

Section 186. Protection against eviction or surrender in certain cases

(1) After the commencement of this Act and before the vesting date referred to in sub-section (1) of section 134,-

(a) The provisions of section 111 to 117 shall, so far as may be, apply to tenants and sub-tenants as defined in clause (d) of section 133;

(b) No such tenant or sub-tenant shall surrender any land held by him as such and no person shall enter upon any such land unless such surrender is bona fide and is made with the previous permission in writing of the competent authority, and the provisions of sub-section (3) of section 125 shall apply to any case where such permission is refused;

(c) No such tenant or sub-tenant shall, whether in execution of a decree or order of court or otherwise, be evicted from any such land on any ground other than those specified in clauses (c) and (d) of sub-section 118, and any proceeding for eviction of such tenant or sub-tenant on any ground other than those specified in the said clauses (c) and (d) pending at such commencement shall abate without prejudice to any action that may be taken under the previsions of this Act.

(2) Where, on or after the 10th day of August, 1957 and before the commencement of this Act, any such tenant or sub-tenant has surrendered any land held by him as such or been evicted from such land and the surrender or eviction could not have taken place if this Act had been in force on the date of such surrender or eviction, the competent authority may, either on his own motion or on application made by the tenant or sub-tenant in this behalf, restore him to possession of the land which has been surrendered or from which he had been evicted.

Section 187. Special Provision regarding Scheduled Tribes

No transfer of land by a person who is a member of the Scheduled Tribes shall be valid unless,-

(a) The transfer is to another member of the Scheduled Tribes; or

(b) Where the transfer is to a person who is not a member of any such tribe, it is made with the previous permission in writing of the Collector; or

(c) The transfer is by way of mortgage to a co-operative society.

Section 188. Jurisdiction of civil courts excluded

No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act.

Provided that if in a dispute between parties a question of title is involved, a civil suit may be brought for the adjudication of such question.

Section 189. Act to over-ride contracts and other laws

Save as otherwise provided, the provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law, custom or usage or agreement or decree or order court.

Section 190. Court-fees

Notwithstanding anything contained in the Court-fees Act, 1870, (7 of 1870) every application, appeal or other proceeding under this Act shall bear a court-fee stamp of such value as may be prescribed.

Section 191. Village officers to be public servants

Every village accountant and every other village officer appointed under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860)

Section 192. Power to exempt

With the previous approval of the Government, the Administrator may, by notification in the Official Gazette, exempt any class of lands from all or any of the provisions of this Act.

Section 193. General provision as to penalties

Whoever contravenes any provisions of this Act for which no penalty has been otherwise provided for therein shall be punishable with fine, which may extend to five hundred rupees?

Section 194. Protection of action taken in good faith

No suit, prosecution or other proceedings shall lie-

(a) Against any officer of the Government for anything in good faith done or intended to be done or intended to be done under this Act;

(b) Against the Government for any damage caused or likely to be caused or any injury suffered or likely to be suffered by anything in good faith done or intended to be done under this Act.

Section 195. Delegation of powers

The Administrator may, by notification in the Official Gazette delegate to any officer or authority subordinate to him any of the powers conferred on him or on any officer subordinate to him by this Act, other than the power to make rules, to be exercised subject to such restrictions and conditions as may be specified in the said notification.

Section 196. Power to remove difficulties

If any difficulty arises in giving effect to any provision of this Act, the Government may, as occasion requires, take any action not inconsistent with the provisions of this Act which may appear to it necessary for the purpose of removing the difficulty.

Section 197. General power to make rules

Without prejudice to any power to make rules contained elsewhere in this Act, the Administrator may, by notification in the Official Gazette, make rules generally to carry out the purposes of this Act.

Section 198. Laying of rules before Parliament

Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Section 199. Repeal and savings

(1) On and from the date on which any of the provisions of this Act are brought into force in any area in the Union territory of Tripura, the enactments specified in the Schedule or so much thereof as relate to the matters covered by the provisions so brought into force shall stand repealed in such area.

(2) The repeal of any enactment or part thereof by sub-section (1) shall not affect,-

(a) The previous operation of such enactment or anything duly done not affect,-

(b) Any right, privilege, obligation or liability acquired accrued or incurred under such enactment;

(c) Any penalty, forfeiture or punishment incurred in respect of any offence committed against such enactment;

(d) Any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

And any such investigation, legal proceeding or remedy may be instituted or enforced and any such penalty, forfeiture or punishment may be imposed as if such enactment or part thereof had not been repealed.

(3) Subject to the provisions contained in sub-section (2), any appointment, rule, order, notification or proclamation made or issued, any lease, rent, right or liability granted, fixed, acquired or incurred and any other thing done or action taken under any of the enactments or parts thereof repealed under sub-section (1) shall, in so far as it s not inconsistent with the provision of this Act brought so far as it is not inconsistent with the provision of this Act brought into force, be deemed to have been made, issued, granted, fixed, acquired, incurred, done or taken under this Act and shall continue to be in force until superseded by anything done or any action taken under this Act.

(4) Any custom or usage prevailing at the time any of the provisions of this Act are brought into force in any area in the Union territory of Tripura and having the force of law therein shall, if such custom or usage is repugnant to or inconsistent with such provision, cease to be operative to the extent of such repugnancy or inconsistency.

Schedule

THE SCHEDULE

[See section 199 (1)]

(1) Praja Bhumyadhikari Sambandha Bishyak Ain (EK Ain, 1296 Tripurabda).

(2) 1296 Tripurabda Praja Bhumyadhikari Ain Sansudhan Bishyak 1337 Tripurabder EK Ain, and 1296 Tripurabder Praja Bhumyadhikari Ain Sansudhan Bishyak 1335 Tripurabder EK Ain.

(3) Rajdhani Gartala Sahar Bondobasta Sambandhiya Bidhan, 1346.T.E.

(4) Jarip-o-Bondobasta Sambandhiya Niyamabali, 1309 Tripurabda.

(5) Tripura Rajyer Jarip Bondobasta Sambandhyia Niyamabali Sansudhan Bishyak, 1336 Tripurabder Tin Ain.

(6) Jarip-o-Bondobasta Sambandhiya Niyamabali (Prathem Khanda).

(7) Jarip-o-Bondobasta Sambandhiya Niyamabali (Dwitiya Khanda), 1323 T.E.

(8) 1290 Saner EK Ain Orthat Rajaswa Sambandhiya Niyamabali, and 1323 Tripurabder Dui Ain Orthat Faraswa Sambandhiy 1290 Saner EK Ain Sensudhan Bishyak Bidhi.

(9) Sarkari Prapya Aday Sambandhiya 1326 Tripura Char Act and Sarkari Prapya Aday Sambandhiya, 1326 Tripurara Char Ain Sansudhan Bishyak Ain Athaba 1358 Tring Saner 18 Nang Ain

Bydeb

Treasure Trove Act, 1878

Section 1. Short title

[ACT NO. 6 of 1878]1

[13th February, 1878]

STATEMENT OF OBJECTS AND REASONS

“The law of treasure trove is in a very unsatisfactory state. At present, there is one law in Madras and another in Bengal, while it is doubtful what the law is in Bombay, and in the three Presidency-towns probably the English law prevails. Moreover, the law everywhere is bad and ineffective, and gives every inducement to finders to conceal or make away with their discoveries; and yet there is a good deal of treasure buried in India and much of it of very high antiquarian and historical interest.

Under these circumstances, the present Bill has been prepared. It provides, among other things, that-

(a) the finder shall give notice to the Collector of the District of the discovery of treasure, and either deposit the treasure in the Government Treasury, or give security for producing it when required;

(b) notice shall be given by the Collector to the owner or owners of the land where the treasure was found;

(c) the discovery of the treasure shall be advertised, and all claimants desired to come forward within six months;

(d) if there is reason to believe that the treasure was hidden or deposited more than a hundred years previously, no claim of any outside person shall be admitted;

(e) in the case of treasure found in a public place, such as in digging a road, a railway, or a canal, such treasure shall vest, if more than a hundred years old, or if unclaimed, in the proportion of three-fourths in the finder and one- fourth in Government; and

(f) if the land or other property on which the treasure is found belongs to a private party, then the latter shall receive the Government share, unless the finder has made any previous agreement with such owner or owners in which case the division shall be regulated according to that agreement.

The Bill adopts the principle of certain recent legislation in the north of Europe, which has practically worked well.” -Gazette of India. 1876. Part V, p. 1463.An Act to amend the law relating to Treasure-trove.

COGNATE ACTS AND PROVISIONS

1. Antiquities and Art Treasures Act, 52 of 1972.

2. Ancient Monuments and Archaeological Sites and Remains Act, 24 of 1958.

3. Kerala Treasure-Trove Act, 30 of 1968 (Kerala).

4. Mysore Treasure Trove Act, 23 of 1963 (Mysore).

ACT HOW AFFECTED BY SUBSEQUENT LEGISLATION

—Adapted by A.O., 1937; 2 A.L.O., 1956.

—Adapted in Madras by Mad. (Add. Ter.) A.L.O., 1961.

—Amended in its application to—

Andhra Pradesh by Andh. Pra. Acts 7 of 1959; 10 of 1963; 15 of 1972;

Bihar by Bihar Act 22 of 1917;

Bombay by Bom. Act 33 of 1958;

Himachal Pradesh by H. P. Act 16 of 1972;

Laccadive Minicoy and Amindivi Island by Regn. 8 of 1965;

Punjab by Punj. Act 24 of 1960;

Tamil Nadu by T. N. Act 36 of 1949.

—Extended by Acts 59 of 1949; 30 of 1950; Regns. 6 of 1963; 7 of 1963; 11 of 1963;-8 of 1965.

—Extended in Andhra Pradesh by A. P. Act 7 of 1959.

—Extended in Bombay by Bom. Acts 4 of 1950; 33 of 1958.

—Extended in Madhya Pradesh by M. P. Acts 12 of 1950; 40 of 1961.

—Extended in Punjab by Punj. Acts 5 of 1950; 24 of 1960.

—Extended in Tamil Nadu by T. N. Acts 35 of 1949; 23 of 1960.

—Repealed in part by Acts 12 of 1891; 10 of 1914; Kerala Act 30 of 1963; M. P. Act 40 of 1961; Mys. Act 23 of 1963.

An Act to amend the law relating to Treasure-trove.

Preamble

WHEREAS it is expedient to amend the law relating to treasure-trove; It is hereby enacted as follows:-

——————–

1. For the Statement of Objects and Reasons, see Gazette of India, 1876, Part V, page 1463.

This Act has been declared to be in force in Sonthal Parganas (now in Bihar) by the Sonthal Parganas Settlement Regulation (3 of 1872), section 3; Kondmala District by the Khondmals Laws Regulation, 1936 (4 of 1936), section 3 and Schedule; and Annual District by the Angul Laws Regulation, 1936 (5 of 1936), section 3 and Schedule. This Regulation has now been repealed by Orissa Act (19 of 1967); Angul is now a sub-division of Dhenkanai District in Orissa, Khondmals is now a district in Orissa—See Orissa Act 22 of 1963, section 3.

It has also been declared by notification under section 3(a) of the Scheduled Districts Act, 1874 (14 of 1874), to be in force in the Scheduled Districts of Hazaribagh, Lohardaga and Manbhum and Pargana Dhalbhum and the Kolhan in the District of Singhbhum (All these in Bihar now)—See Gazette of India, 1881, Part I, page 504. (The District of Lohardaga included at that time the present District of Palamau, which was separated in 1894; Lohardaga is now called the Ranchi District; see Calcutta Gazette, 1899, Part 1, page 44.)

This Act has been extended to and shall be in force in—

(a) the new provinces and merged States—See Act 49 of 1949, S. 3 (1-1-1950);

(b) the Union territories of Manipur, Tripura and Vindhya Pradesh—See Act 30 of 1950, section 3 (16-4-1950); Manipur and Tripura are full States now (see Act 81 of 1971), V.P. is a part of Madhya Pradesh State (see Act 37 of 1956), S. 9.

(c) the States merged in the State of Bombay (Bombay is now split up into 2 States—Gujarat and Maharashtra)—See Bom. Act 4 of 1950;

(d) the Hyderabad and Saurashtra area of the State of Bombay—See Bom. Act 33 of 1958, S. 2 (10-4-1958); Hyderabad State has been disintegrated—parts of it going to Andhra Pradesh, Maharashtra and Mysore States—See Act 37 of 1956;

(e) the transferred territories of the State of Andhra Pradesh—See Andh. Pra. Act 7 of 1959, S. 3;

(f) the States merged in the former State of Madhya Pradesh—See M. P. Act 12 of 1950;

(g) the States of Pudukottal, Banganappalle and Sandur merged in the State of Madras (Tamil Nadu)—See Mad. Act 35 of 1949, S. 3 and Sch. I (1-1-1950); Sandur is now a part of Mysore State;

(h) Kanyakumari district and the Chencottah taluk in the Tirunelveli district transferred to the State of Madras—See Mad. Act 23 of 1960, S. 3 and Sch. I;

(i) States merged in the State of Punjab—See Punj. Act 5 of 1950;

(j) Union territory of Dadra and Nagar.Haveli—See Regn. 6 of 1963 (1-7-1965);

(k) Union territory of Pondicherry—See Regn. 7 of 1963 (1-10-1963);

(1) Union territory of Goa, Daman and Diu—See Regn. 11 of 1963 (1-2-1965);

(m) Union territory of Laccadive, Minicoy and Amindivi Islands—See Regn. 8 of 1965 (1-10-1967). The Islands are now known as Lakshadweep—See Act 34 of 1973.

The Act has been repealed in Kerala and Mysore—See Ker. Act 30 of 1968 and Mys. Act 23 of 1963

This Act may be called THE INDIAN TREASURE-TROVE ACT, 1878.

Extent

It extends to the whole of India except 1[the territories which, immediately before the 1st November 1956, were comprised in Part B States].

2[* * * ** ].

STATE AMENDMENTS

Andhra Pradesh

In its application to the State of Andhra Pradesh, in section 1, after the expression “comprised in Part B States”, insert the expression “other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1958”.— Andh. Pra. Act 7 of 1959, S. 4.

Gujarat

In its application to the Saurashtra area of the State of Gujarat, see under Maharashtra—Act 11 of 1960, S. 87 (1-5-1960).

Madhya Pradesh

In its application to the State of Madhya Pradesh, in section 1, after the words “Part B States” insert the words “other than Madhya Bharat and Sironja regions of the State of Madhya Pradesh.—M.P. Act 40 of 1961, S. 3 and Sch. I, Part A (1-2-1962).

Maharashtra

In its application to the State of Bombay, in section 1,—

(i) to the second paragraph add the following proviso, namely :—

“Provided that on the commencement of the Indian Treasure-trove (Extension to Hyderabad and Saurashtra areas of Bombay State) Act, 1957, this Act shall also extend to, and be in force in the Hyderabad and Saurashtra areas of the State of Bombay”;

(ii) against the proviso so inserted the marginal note “commencement in certain areas” shall be inserted.—Bom. Act 33 of 1958, 8.2(10-4-1958).

Punjab, Haryana, Chandigarh

In its application to the State of Punjab, add to section I, the following proviso, namely :—

“Provided that it shall extend to the territories which, immediately before that date, were comprised in the State of Patiala and East Punjab States Union.”—Punj. Act 24 of 1960, S. 2 (30-5-1960).

Tamil Nadu

In its application to the added territories in the State of Tamil Nadu, in section 1, as amended by Andhra Pradesh Act 7 of 1959, omit the words “other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956”.—T. N. (Added Territories) A.L.O., 1961 (w.r.e.f. 1-4-1960).

——————–

1. Substituted for the words “Part B States” by 2 A. L. 0., 1956 (w.e.f. 1-11- 1956).

2. The words “And it shall come into force at once” were omitted by the Re- pealing and Amending Act, 1914 (10 of 1914).

Section 2. Repeal of enactments

[Repealed by the Repealing and AmendingAct, 1891 (12 of 1891), S. 2 and Sch. I.]

Section 3. Interpretation-clause

In this Act-

“Treasure”

“treasure” means anything of any value hidden in the soil, or in anything affixed thereto; “Collector”. “Collector” means (1) any Revenue-officer in independent charge of a district, and (2) any officer appointed by the 1[State Government] to perform the functions of a Collector under this Act. “Owner.” When any person is entitled, under any reservation in an instrument of transfer of any land or thing affixed thereto, to treasure in such land or thing, he shall, for the purposes of this Act, be deemed to be the owner of such land or thing.

——————–

1. Substituted for the words “Provincial Government” by A.L.O., 1950.

STATE AMENDMENT

Andhra Pradesh

In its application to Andhra Pradesh for section 3 substitute the following :—

“(a) “Collector” means the Chief Local Officer in charge of the revenue administration of a district, and includes any officer appointed by the State Government to perform the functions of a Collector under this Act;

(b) “Treasure” means anything of value exceeding rupees ten, or of any value if it is of historical or archaeological interest having been in existence for not less than one hundred years, hidden or embedded, in the soil, or in anything affixed thereto, and includes in cut dimonds, or other valuable minerals found on the surface of the soil;

(c) when any person is entitled, under any reservation in an instrument of transfer of any land or thing affixed thereto, to treasure in such land or thing, he shall, for the purposes of this Act be deemed to be the owner of such land or thing.”— A.P. Acts 20 of 1963, S. 2 (6-4-1963); 15 of 1972, S. 2 (26-8-1972).

STATE AMENDMENTS

Section 3-A

Himachal Pradesh

Same as in Punjab, etc.—H. P. Act 16 of 1972, S. 2 (16.11-1972).

Punjab, Haryana, Chandigarh

In its application to the State of Punjab, after section 3 insert the following section, namely :—

“3-A. Permission to discover.—

The Government may on application allow any person to discover a treasure on such terms and conditions as it may deem fit.”—Punj. Act 24 of 1960, S. 3 (30-5-1960).

Section 4. Notice by finder of treasure

PROCEDURE ON FINDING TREASURE

Whenever any treasure exceeding in amount or value ten rupees is found, the finder shall, as soon as practicable, give to the Collector notice in writing-

(a) of the nature and amount or approximate value of such treasure,’

(b) of the place in which it was found;

(c) of the date of the finding; and either deposit the treasure in the nearest Government treasury, or give the Collector such security as the Collector thinks fit, to produce the treasure at such time and place as he may from time to time require.

STATE AMENDMENTS

Andhra Pradesh

In its application to the State of Andhra Pradesh, in clause (b) of sub-s (1) of section 4, for the words “the place in which it was found” substitute the words “the place in which and the circumstances under which it was found”.—A. P. Act 7 of 1959, S. 5.

Omit the words “exceeding in amount or value ten rupees”.

After sub-section (1) insert the following sub-sections :—

“(1A) A person who purchases any treasure from its finder shall give notice in writing to the Collector of the district in which it was found, specifying the particulars refereed to in clauses (a), (b) and (c) of sub-section (1), before the expiry of two months from the date on which he makes such purchase; and shall also deposit the treasure or give security in the same manner as the finder is required under sub-section (1).

(1B) The purchaser of the treasure shall be entitled to the same rights or be subject to same liabilities as the finder of such treasure.”

For the marginal note of the section, substitute the following, namely :—

“Finder or purchaser of the treasure and the owner or occupier of the place in which the treasure is found, to give notice and to deposit or give security there for”—A. P. Act 10 of 1963, S. 3 (6-4-1963).

Lakshadweep (U.T.)

In its application to L.M. A. territory in section 4, for the words beginning with “and either deposit” and ending with “from time to time require”, substitute the words “and deposit the treasure with Tahsildar of the Union territory of the Laccadive, Minicoy and Amindivi Islands or any part thereof for being deposited in the Government treasury.”—Regn. 8 of 1965, S. 3 and Schedule (1-7-1965).

Madhya Pradesh

In its application to the State of Madhya Pradesh. in section 4, omit the words “exceeding in amount or value ten rupees”.—M. P. Act 40 of 1964, 8.3(1-2-1962).

Tamil Nadu

(1) In its application to the State of Tamil Nadu, section 4 of the Act shall be renumbered as sub-section (1) thereof and after that sub-section, the following sub-section shall be added, namely :—

“(2) The owner of the place in which the treasure is found, if he is not the finder, and the occupier of such place, if he is neither the finder nor the owner, shall also give notice in writing to the Collector specifying the particulars referred to in clauses (a), (b) and (c) of sub-section (1), before the expiry of two months from the date on which the owner or the occupier, as the case may be, becomes aware of the finding of the treasure.”—T.N. Act 36 of 1949, S. 2 (3-1-1950).

(2) In section 4( l)(b), for the words “the place in which and the circumstances under which it was found”, substitute the words “the place in which it was found”.—T.N. Act 8 of 1964, S. 4 and Sch. II (10-4-1964).

Section 5. Notification requiring claimants to appear

On receiving a notice under, the Collector shall, after making such enquiry (if any) as he thinks fit, take the following steps (namely):-

a) he shall publish a notification in such manner as the1[State Government] from time to time prescribes in this behalf, to the effect that, on a certain date (mentioning it) certain treasure (mentioning its nature, amount and approximate value) was found in a certain place (mentioning it); and requiring all persons claiming the treasure, or any part there of, to appear personally or by agent before the Collector on a day and at a place therein mentioned, such day not being earlier than four months, or later than six months, after the date of the publication of such notification;

(b) when the place in which the treasure appears to the Collector to have been found was at the date of the finding in the possession of some person other than the finder, the Collector shall also serve on such per-son a special notice in writing to the same effect.

——————–

1. Substituted for the words “Provincial Government” by A.L.O., 1950.

STATE AMENDMENTS

Bihar

After the word and figure ‘section 4’, insert the words “or information from any other source”.—Bihar Act 22 of 1947,8.3(29-11-1947).

Tamil Nadu

In its application to the State of Tamil Nadu in section 5, for the words, figure and brackets “On receiving a notice under section 4, the Collector shall, after making such enquiry (if any) as he thinks fit, take the following stage (namely)” :—

substitute the following, namely :—

“The Collector shall, on receipt of a notice under section 4, and may, on receipt of information in any other manner that treasure has been found in any place, take the following steps, after making such enquiry (if any) as he thinks fit to make.”-T.N. Act 36 of 1949, S. 3 (3-1-1950).

Section 6. Forfeiture of right on failure to appear

Any person having any right to such treasure or any part thereof, as owner of the place in which it was found or otherwise, and not appearing as required by the notification issued under, shall forfeit such right.

Section 7. Matters to be enquired into and determined by the Collector

On the day notified under, the Collector shall cause the treasure to be produced before him, and shall enquire as to and determine-

(a) the person by whom, the place in which, and the circumstances under which, such treasure was found; and

(b) as far as is possible, the person by whom, and the circumstances under which, such treasure was hidden.

Section 8. Time to be allowed for suit by person claiming the treasure

If, upon an enquiry made under, the Collector sees reason to believe that the treasure was hidden within one hundred years before the date of the finding, by a person appearing as required by the said notification and claiming such treasure, or by some other person under whom such person claims, the Collector shall make an order adjourning the hearing of the case for such period as he deems sufficient, to allow of a suit being instituted in the Civil Court by the claimant, to establish his right.

Section 9. When treasure may be declared ownerless

If upon such enquiry the Collector sees no reason to believe that the treasure was so hidden; or

if, where a period is fixed under, no suit is instituted as afore-said within such period to the knowledge of the Collector; or

if such suit is instituted within such period, and the plaintiff’s claim is finally rejected;

the Collector may declare the treasure to be owner less.

Appeal against such declaration.

Any person aggrieved by a declaration made under this section may appeal against the same within two months from the date thereof to the Chief Controlling Revenue-authority.

Subject to such appeal, every such declaration shall be final and conclusive.

STATE AMENDMENT

Himachal Pradesh

In its application to the State of Himachal Pradesh, in section 9, for the words “Chief Controlling Revenue-authority”, substitute the words “Financial Commissioner”.—H. P. Act 16 of 1979, S. 3 (16-11-1972).

Section 10. Proceedings subsequent to declaration

Where a declaration has been made in respect of any treasure under, such treasure shall, in accordance with the provisions hereinafter contained, either be delivered to the finder thereof, or be divided between him and the owner of the place in which it has been found in manner hereinafter provided.

STATE AMENDMENTS

Himachal Pradesh

Amendment is the same as in Punjab etc., see H. P. Act 16 of 1972, S. 4 (16-11-1972).

Punjab, Harayana, Chandigarh

In its application to the State of Punjab, in section 10, for the words “either be delivered to the finder thereof, or be divided between him”, substitute the words “be divided amongst the finder thereof the Government.”—Punj. Act 24 of 1960, S. 5 (30-5-1960).

Section 11. When no other person claims as owner of place, treasure to be given to finder

When a declaration has been made in respect of any treasure as a fore said, and no person other than the finder of such treasure has appeared as required by the notification published under and claimed a share of the treasure as owner of the place in which it has been found, the Collector shall deliver such treasure to the finder there of.

Section 12. When only one such person claims and his claim is not disputed, treasure to be adivided

When a declaration has been made as aforesaid in respect of any treasure, and only one person other than the finder of such treasure has so appeared and claimed, and the claim of such person is not disputed by the finder, the Collector shall proceed to divide the treasure between the finder and the person so claiming according to the following rule (namely):-

If the finder and the person so claiming have not entered into any agreement then in force as to the disposal of the treasure, three-fourths of the treasure shall be allotted to such finder and the residue to such person. If such finder and such person have entered into any such agreement, the treasure shall be disposed of in accordance therewith:

Provided that the Collector may in any case, if he thinks fit, instead of dividing any treasure as directed by this section,-

(a) allot to either party the whole or more than his share of such treasure, on such party paying to the Collector for the other party such sum of money as the Collector may fix as the equivalent of the share of such other party, or of the excess so allotted, as the case may be; or

(b) sell such treasure or any portion thereof by public auction and divide the sale-proceeds between the parties according to the rule herein before prescribed:

Provided also, that when the Collector has by his declaration under rejected any claim made under this Act by any person other than the said finder or person claiming as owner of the place in which the treasure was found, such division, shall not be made until after the expiration of two months without an appeal having been presented under by the per-son whose claim has been so rejected, or, when an appeal has been so presented, after such appeal has been dismissed.

And shares to be delivered to parties.

When the Collector has made a division under this section, he shall deliver to the parties the portions of such treasure, or the money in lieu there of, to which they are respectively entitled under such division.

STATE AMENDMENTS

Himachal Pradesh

Amendment same as in Punjab, etc.—H. P. Act 16 of 1972, S. 6 (16-11-1972).

Punjab, Haryana, Chandigarh

In its application to the State of Punjab, for section 12 substitute the following, namely :—

“12. When only one such person claims, and his claim is not disputed, treasure to be divided and shares to be delivered to parties.—

(1) When a declaration has been made as aforesaid in respect of any treasure and only one person other than the finder of such treasure has so appeared and claimed and the claim of such person is not disputed by the finder or the Government, the Collector shall proceed to divide the treasure between the finder, the Government and the person so claiming according to the provisions of sub-section (2).

(2) If the Government, the finder and the person so claiming or any two of them have not entered into any agreement then in force as to the disposal of that treasure, one-half of the treasure shall be allotted to such finder and the owner in equal shares and the residue shall vest in the Government. If the Government, such finder and such person have entered into any such agreement the treasure shall be disposed of in accordance therewith. In case the Government and such finder only have entered into any such agreement three-fourths of the treasure shall be disposed of in accordance with the terms thereof and the residue will be allotted to such claimant. If such finder and such claimant only have entered into any such agreement, one-half of the treausre shall be disposed of in accordance therewith and the remaining half shall vest in the Government :

Provided that the Collector may, in any case if he thinks fit, instead of dividing any treasure as directed by this subsection—

(a) allot to either party the whole or more than his share of such treasure, on such party paying to the Collector for the other party such sum of money as the Collector may fix as the equiv alent of the share of such other party, or of the excess so allotted, as the case may be; or

(b) sell such treasure or any portion thereof by public auction and divide the sale-proceeds between the parties according to this sub-section :

Provided further that, when the Collector has by his declaration under section 9 rejected any claim made under this Act by any person other than the said finder or person claiming as owner of the place in which the treasure was found, such division shall not be made until after the expiration of two months without an appeal having been presented under section 9 by the person whose claim has been so rejected, or when an appeal has been so presented, after such appeal has been dismissed.

(3) When the Collector has made a division under this section he shall deliver to the parties portions of such treasure, or the money in lieu thereof, to which they are respectively entitled under division.”—Punj. Act 24 of 1960, S. 6 (30-5-1960).

Section 13. In case of dispute as to ownership of place, proceedings to be stay- ted

When a declaration has been made as aforesaid in respect of any treasure, and two or more persons have appeared as aforesaid and each of them claim-ed as owner of the place where such treasure was found, or the right of any person who has so appeared and claimed is disputed by the finder of such treasure, the Collector shall retain such treasure and shall make an order staying his proceedings with a view to the matter being enquired into and determined by a Civil Court.

STATE AMENDMENTS

Himachal Pradesh

If Same as Punjab etc., except that in sub-section (3), in H.P. for the words “Chief Controlling Revenue-authority”, words “Financial Commissioner” are to be read.—H. P. Act 16 of 1972, S. 7 (16-11-1972).

Punjab, Haryana, Chandigarh

In its application to the State of Punjab, section 13 shall be numbered as sub-section (1) of that section and after subsection (1) as so renumbered add the following sub-sections, namely,—

“(2) If the right of any such person who has so appeared and claimed is disputed by the Government, the matter shall be determined by the Collector.

(3) Any person aggrieved by the decision of the Collector under sub-section (2) may appeal within two months of the date of such decision to the Chief Controlling Revenue Authority.

(4) Subject to the decision of the appellate authority, the decision of the Collector under sub-section (2) shall be final and conclusive.”—Punj. Act 24 of 1960, S. 7.

Section 14. Settlement of such dispute

Any person who has so appeared and claimed may, within one month from the date of such order, institute a suit in the Civil Court to obtain a decree declaring his right; and in every such suit the finder of the treasure and all persons disputing such claim before the Collector shall be made defendants.

Section 15. And division thereupon

If any such suit is instituted and the plain-tiff’s claim is finally established therein, the Collector shall, subject to the pro-visions of, divide the treasure between him and the finder. If no such suit is instituted as aforesaid, or if the claims of the plain tiffs in all such suits are finally rejected, the Collector shall deliver the treasure to the finder.

STATE AMENDMENTS

Himachal Pradesh

Except that in sub-section (1), for the words ‘Chief Controlling Revenue-authority’, words “Financial Commissioner” are to be found in H. P. amendment is the same as in Punjab, etc.—H. P. Act 16 of 1972, S. 8 (16-11-1972).

Punjab, Haryana, Chandigarh

In its application to the State of Punjab, for section 15 substitute the following section, namely :—

“15. Division of treasure on decision of the civil suit.—

(1) If any such suit is instituted and the plaintiffs claim is finally established therein or the right of the claimant has been accepted by the Collector or on appeal by the Chief Controlling Revenue Authority, the Collector shall subject to the provisions of section 12, divide the treasure between him, the finder and the Government.

(2) If no such suit is instituted as aforesaid, or if the claims of the plaintiff in all such suits are finally rejected or the right of the claimant has been rejected by the Collector and also by the Chief Controlling Revenue Authority in case of appeal, the Collector shall, subject to the provisions of section 11, divide the treasure between the finder and the Government.”— Punj. Act 24 of 1960, S. 8 (30-5-1969).

Section 16. Power to acquire the treasure on behalf of Government

The Col-lector may, at any time after making a declaration under, and be-fore delivering or dividing the treasure as herein before provided, declare by writing under his hand his intention to acquire on behalf of the Government the treasure, or any specified portion thereof, by payment to the per-sons entitled thereto of a sum equal to the value of the materials of such treasure or portion, together with one-fifth of such value, and may place such sum in deposit in his treasury to the credit of such persons; and there upon such treasure or portion shall be deemed to be the property of Government, and the money so deposited shall be dealt with, as far as may be, as if it were such treasure or portion.

STATE AMENDMENTS

Himachal Pradesh

Same as in Punjab etc.—H.P. Act 16 of 1972, S. 8 (16-11-1972).

Punjab Haryana Chandigarh

In its application to the State of Punjab, for section 16 substituted the following section, namely,—

“16. Power to acquire shares of owner and finder.—

The Collector may, at any time after making a declaration under section 9 and before delivering to the finder or owner his share of the treasure as divided by him in accordance with the provisions of this Act declare by writing under His hand his intention to acquire on behalf of the Government the share of the finder or owner or both, by payment to the persons entitled thereto of a sum equal to the value of the materials of their share or shares of the treasure, together with-one-fifth of such value and may place such sum in deposit in the treasury to the credit of such person; and thereupon such share or shares of the treasure shall be deemed to be the property of Government and the money so deposited shall be dealt with, as far as may be, as if it were the share or shares of the treasure of such persons.”—Punj. Act 24 of 1960, S. 8 (30-5-1960) Act 31 of 1966, S. 88.

STATE AMENDMENTS

S. 16-A

Andhra Pradesh

In its application to the State of Andhra Pradesh, after S16, insert the following:—

“16-A. Power to allot share of the treasure to informant.—

(1) Where the finder of any treasure or the owner of the place in which the treasure was found, fails to give notice thereof to the Collector as required by section 4, but some other person informs the Collector about the finding of such treasure, the Collector shall order the allotment of a share, not exceeding one-half in the treasure to such person.

(2) The allocation of the residue of the treasure after the allotment of the share in the treasure to such other person, shall be governed by the other relevant provisions of this Act.”—A. P. Act 10 of 1963, S. 4 (6-4-1963).

Section 17. Decision of Collector final, and no suit to lie against him for acts done bona fide

No decision passed or act done by the Collector under this Act shall be called in question by any Civil Court, and no suit or other proceeding shall lie against him for anything done in good faith in exercise of the powers hereby conferred.

Section 18. Collector to exercise powers of Civil Court

A Collector making any enquiry under this Act may exercise any power conferred by the Code of Civil Procedure on a Civil Court for the trial of suit.

Section 19. Power to make rules

The 1[State Government] may, from time to time, make rules3 consistent with this Act, to regulate proceedings hereunder.

Such rules shall, on being published in the 2[Official Gazette], have the force of law.

——————–

1. Substituted for the words “Provincial Government” by A.L.O., 1950.

2. Substituted for the words “Local Official Gazette” by A.O., 1937.

3. Some of the Rules made under this Act are :—

(a) A. P. Treasure Trove Rules, 1959—A. P. Gaz., 2-7-1959, Pt. II (R.S.), p. 182.

(b) Assam Treasure Trove Rules, 1958—Assam Gaz. 26-11-1958, Pt. II-A, p. 2631.

(c) Bombay Treasure Trove Rules, 1959—Bom. Gaz., 23-7-1959, Pt. IV-A, p. 1704.

(d) Goa, Daman and Diu Treasure Trove Rules, 1976—Goa Gaz., 30-9-1976, Sr. I, p. 283.

(e) M. P. Treasure Trove Rules, 1964—M. P. Gaz., 31 -7-1964, Pt. IV (Ga), p. 299.

(f) Manipur Treasure Trove Rules, 1968—Mani. Gaz., 4-7-1968, Ext.

(g) Indian Treasure Trove (Pondicherry) Rules, 1965—Pondi. Gaz., 22-11 -1965, Ext., (No. 44) and Ibid, 5-5-1971, Ext. (No. 55).

(h) Rajasthan Treasure Trove Rules, 1961—Raj. Gaz., 15-6-1961, Pt. IV (Ga), p. 111.

(i) W.B. Treasure Trove Rules, 1960—Cal. Gaz., 19-2-1960, Ext., p. 683.

Section 20. Penalty on finder failing to give notice, etc

PENALTIES

If the finder of any treasure fails to give the notice, or does not either make the deposit or give the security, required by, or alters or attempts to alter such treasure so as to conceal its identity, the share of such treasure, or the money in lieu there of to which he would otherwise be entitled, shall vest in Government.

and he shall on conviction before a Magistrate, be punished with imprisonment for a term which may extend to one year, or with fine. or with both.

STATE AMENDMENT

Andhra Pradesh :

In its application to the State of Andhra Pradesh, for S. 20, substitute the following, namely :—

“20. Penalty on finder or purchaser for failure to give notice or for alteration of the treasure.—

(1) If the finder or the purchaser of any treasure fails to give the notice or fails to make the deposit or give the security, as required by section 4, or alters or attempts to alter such treasure so as to conceal its identity, the share or interest in such treasure or any right to which the finder or the purchaser, as the case may be, would otherwise, be entitled shall vest in the State Government.

(2) For the offence of such failure or alteration, the finder or purchaser shall also be punishable with imprisonment which may extend to one year, or with fine, or with both.”—A. P. Act 10 of 1963, S. 5 (6-4-1963).

Section 21. Penalty on owner abetting offence under section 20

If the owner of the place in which any treasure is found abets, within the meaning of the Indian Penal Code, any offence under, the share of such treasure, or the money in lieu thereof to which he would otherwise be entitled, shall vest in Government, and he shall, on conviction before a Magistrate, be punished with imprisonment which may extend to six months, or with fine, or with both.

STATE AMENDMENT

Bihar :

To section 21, the following shall be added, namely :—

“Any person who knowingly fails to report to the Collector the finding of any treasure in the land of which he is the owner within two months of such finding shall be deemed to have abetted an offence under section 20.”—Bihar Act 22 of 1947,8.4(29-11-1947).

STATE AMENDMENTS

Section 22

Andhra Pradesh :

Same as in Tamil Nadu.

Gujarat:

See under Maharashtra—Act 11 of 1960, S. 87.

Maharashtra :

In its application to the State of Bombay, after section 21 insert the following new section namely :—

“22. Repeals and savings.— The Hyderabad Treasure-Trove Act, 1322F, and the Indian Treasure-Trove Act, 1878, as modified and applied by the State of Saurashtra (Application of Central and Bombay Acts) Ordinances, 1948, are hereby repealed :

Provided that notwithstanding such repeal, anything done or action taken (including any notice or security given, any forfeiture, determination, declaration, delivery, division, acquisition or order made, all rights, obligations and liabilities acquired, accrued or incurred penalties imposed, and all proceedings and appeals pending before the Collector, Chief Controlling Revenue Authority, Talukdar, Subedar, Board of Revenue or other Authority, and all powers conferred there for) by or under the provisions of any law so repealed shall be deemed to be done, taken, given, made, acquired, accrued, incurred, imposed, pending or preferred, under the provisions of this Act, as if this Act had then been in force; and accordingly all such proceedings and appeals pending before any such authority as aforesaid shall stand transferred where necessary, to the corresponding authority under this Act, and if no such authority exists or if there be a doubt as to the corresponding authority, to such authority as the State Government may designate, and shall be continued and disposed of before such authority in accordance with the provisions of this Act.”—Bom. Act 33 of 1958, S. 3 (10-4-1958).

Tamil Nadu :

In its application to the State of Madras (now Tamil Nadu and Andhra Pradesh), after section 21, add the following, namely,—

“22. Penalty on owner or occupier who fails to give notice under section 4.— If the owner or occupier of the place in which any treasure is found, being aware of the finding thereof, fails to give notice as required by section 4, subsection (2), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.”—T.N. Act 36 of 1949, S. 4.

STATE AMENDMENT

Section 23

Andhra Pradesh:

After section 22 (as inserted by T.N. Act 36 of 1949) add the following, namely :—

“23. Notwithstanding anything in the Code of Criminal Procedure, 1898, any offence punishable under this Act shall be a cognizable offence within the meaning of that Code.”—A. P. Act 10 of 1963, S. 6 (6-4-1963).

Schedule

[Repealed by the Repealing and Amending Act, 1891 (12 of 1891), S. 2 and Sch. 1.]

Bydeb

The Seamen’s Provident Fund Act, 1966

Section 1. Short title and application

[ACT No.4 OF 1966]

[26th March 1966]

An Act to provide for the institution of a provident fund for seamen.

BE it enacted by Parliament in the Seventeenth Year of the Republic of India as follows:-

(1) This Act may be called the Seamen’s Provident Fund Act, 1966.

(2) Unless otherwise expressly provided, the provisions of this Act shall apply to every seamen and to the employer of such seaman.

Section 2. Definitions. In this Act, unless the context otherwise requires

(a) “Agreement with the crew” means the agreement referred to in section 100 or, as the case may be, section 114 of the Merchant Shipping Act;

(b) “Board means the Board of Trustees of the Seamen’s Provident Fund constituted under section 5;

(c) “Continuous discharge certificate” means the certificate referred to in section 99 of the Merchant Shipping Act;

(d) “Contribution” means a contribution payable in respect of a member under the Scheme;

(e) “Employer”, in relation to a seaman, means the owner of the ship on which the seaman is employed or engaged, or the agent of such owner or the master of the ship;

(f) “Fund” means the Seamen’s Provident Fund established under the Scheme;

(g) “Government” means the Central Government;

(h) “Master” and “ship” have the meanings respectively assigned to them in the Merchant Shipping Act;

(i) “Member” means a seaman who is in possession of a continuous discharge certificate and who is admitted as a member of the Fund;

(j) “Merchant Shipping Act” means the Merchant Shipping Act, 1958(44 of 1958);

(k) “Scheme” means the Seamen’s Provident Fund Scheme framed under sub-section (1) of section 3;

(l) “Seaman” means a person employed or engaged as a member of the crew of a ship under the Merchant Shipping Act but does not include a master, navigating or engineering officer, radio officer, medical officer, welfare officer, purser, electrician, nurse, musician, pilot, apprentice or deck barber;

(m) “Service” means the period of employment of a seaman under the agreement with the crew and includes any period in respect of which wages are paid or are payable to him;

(n) “Wages” means the basic wages for the time being payable to a seaman under the agreement with the crew and includes —

(i) Any remuneration to which he is entitled in respect of holidays or any leave period;

(ii) Any increase of such wages in accordance with such agreement or any other agreement between the parties; but does not include the overtime allowance.

Section 3. Seamens Provident Fund Scheme

(1) The Government may, by notification in the Official Gazette, frame a scheme to be called the Seamen’s Provident Fund Scheme for the established, as soon as may be after the framing of the Scheme, a Fund in accordance with the provisions of this Act and the Scheme.

(2) Subject to the provisions of this Act, the Scheme may provide for all or any of the matters specified in the Schedule to this Act.

(3) The Scheme may provide that any of its provisions shall take effect either prospectively or retrospectively on such date as may be specified in this behalf in the Scheme.

(4) The Scheme shall have effect notwithstanding anything contained in any law for the time being in force other than this Act or in any instrument having effect by virtue of any law other than this Act.

(5) The Government may, by notification in the Official Gazette, add to, amend, very or rescind the Scheme.

Section 4. Vesting of Fund, etc

(1) The Fund referred to in sub-section (1) of section 3 shall vest in, and be administered by, the Board constituted under section 5.

(2) The moneys in the Fund shall be applied for —

(a) Meeting the pay and allowances of the employees of the Board and the administrative expenses of the Board;

(b) Carrying out the purposes of this Act.

(3) All moneys in the Fund shall be deposited in the State Bank of India or be invested in such securities as may be approved by the Government.

Section 5. Constitution of Board of Trustees

(1) The Government shall, by notification in the Official Gazette, constitute, with effect from such date as may be specified therein, a Board to be known as the Board of Trustees of the Seamen’s Provident Fund which shall be a body corporate having perpetual succession and a common seal and may, by that name, sue and be sued.

(2) The head office of the Board shall be in Bombay or at such other place as the Government may, by notification in the Official Gazette, specify.

(3) The Board shall consist of —

(a) A Chairman to be appointed by the Government;

(b) Not more than three persons appointed by the Government from amongst its officials;

(c) Three persons representing employers, to be appointed by the Government after consultation with such organisation or organisations of employers as may be recognised by the Government in this behalf;

(d) Three persons representing seamen, to be appointed by the Government after consultation with such organisation or organisations of seamen as may be recognised by the Government in this behalf.

(4) The terms and conditions subject to which a member of the Board may be appointed and the time, place and procedure of the meetings of the Board, including the quorum, shall be such as may be provided for in the Scheme.

(5) The Board shall administer the Fund vested in it in such manner as may be specified in the Scheme.

(6) The Board shall perform such other functions as it may be required to perform by or under any provision of the Scheme.

Section 6. Committees

(1) The Board may, from time to time, constitute one or more committee or committees for exercising any power or discharging any duty of the Board or for inquiring into, or reporting and advising on, any matter which the Board may refer to such committee or committees.

(2) A committee may include persons who are not members of the Board but their number shall not exceed one-half of its strength.

Section 7. Appointment of employees of Board

(1) The Government shall appoint a Seamen’s Provident Fund Commissioner who shall be the chief executive officer of the Board and shall be subject to the general control and superintendence of the Board.

(2) The Government may also appoint as many Deputy Seamen’s Provident Fund Commissioners and other officers whose maximum monthly salary is not less than six hundred rupees, as it may consider necessary, to assist the Seamen’s Provident Fund Commissioner in the discharge of his duties.

(3) The Board may appoint such other officers and employees as it may consider necessary for the efficient administration of the Scheme.

(4) No appointment to the post of the Seamen’s Provident Fund Commissioner or Deputy Seamen’s Provident Fund Commissioner or to any other post carrying a maximum monthly salary of not less than six hundred rupees shall be made except after consultation with the Union Public Service Commission:

Provided that no such consultation shall be necessary in regard to any such appointment —

(a) For a period not exceeding one year; or

(b) If the person to be appointed is at the time of his appointment —

(i) A member of the Indian Administrative Service; or

(ii) In the service of the Government in a Class I or Class II post or in the service of the Board.

(5) The method of recruitment, salary and allowances, discipline and other conditions of service of the Seamen’s Provident Fund Commissioner and of the officers referred to in sub-section (2) shall be such as may be specified by the Government.

(6) The method of recruitment, salary and allowances, discipline and other conditions of service of other officers and employees of the Board shall be such as may be specified by the Board with the approval of the Government.

(7) All persons appointed under this section shall be the employees of the Board.

Section 8. Contributions

(1) Every employer to whom this Act applies shall, in respect of each seaman (being a member) employed by him, contribute to the Fund for the period beginning with the 1st day of July, 1964 and ending with the 31st day of March, 1968, at the rate of six per cent, and thereafter at the rate of eight per cent., of the wages paid or payable to each such seaman and every such seaman shall also contribute to the Fund an amount equal to the contribution payable by the employer in respect of him:

Provided that the amount of contribution aforesaid shall, in so far as it relates to the period prior to the commencement of the Scheme, be payable by the employer or, as the case may be, by the seaman only on such date (being a date not earlier than sixty days after the commencement of the Scheme) as the Government may, by notification in the Official Gazette, specify in this behalf.

(2) The employer shall pay, in respect of each seaman (being a member) employed by him, both the employer’s contribution and the employee’s contribution and shall be entitled to recover from the seaman the employee’s contribution by deduction from his wages and not otherwise.

(3) Every employer shall also pay such sums of money as may be specified in the Scheme towards the cost of administering the Fund.

(4) Where the amount of any contribution under sub-section (1) or any sum payable under sub-section (3) contains a part of a rupee then, if such part if fifty paise or more, it shall be increased to one complete rupee and if such part is less than fifty paise it shall be ignored.

Section 9. Determination of moneys due from employers

(1) The Seamen’s Provident Fund Commissioner or any Deputy Seamen’s Provident Fund Commissioner may, by order, determine the amount due from any employer under any provision of this Act or of the Scheme and for this purpose may conduct such inquiry as he may deem necessary.

(2) The officer conducting the inquiry under sub-section (1) shall, for the purposes of such inquiry, have the same powers as are vested in a court under the Code of Civil Procedure, 1908(5 of 1908), for trying a suit in respect of the following matters, namely: —

(a) Enforcing the attendance of any person or examining him on oath;

(b) Requiring the discovery and production of documents;

(c) Receiving evidence on affidavit;

(d) Issuing commission for the examination of witnesses;

And any such inquiry shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code.(45 of 1860)

(3) No order shall be made under this section unless the employer has been given a reasonable opportunity of representing his case.

(4) An order made under this section shall be final and shall not be questioned in any court of law.

Section 10. Mode of recovery of moneys due from employers

Any amount due from an employer in respect of any contribution payable to the Fund, or damages recoverable under section 18 or any charges payable by him under any other provision of this Act or under any provision of the Scheme, may, if the amount is in arrears, be recovered by the Government in the same manner as an arrears of land revenue.

Section 11. Fund deemed to be recognised Provident Fund under Act 43 of 1961

For the purposes of the Income-tax Act, 1961 the Fund shall be deemed to be a recognised provident fund within the meaning of that Act.

Section 12. Protection against attachment

(1) The amount standing to the credit of any member in the Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any court of any debt or liability incurred by the member and neither the official assignee appointed under the Presidency Towns Insolvency Act, 1909(3 of 1909), nor any receiver appointed under the Provincial Insolvency Act, 1920(5 of 1920), shall be entitled to, or have any claim on, any such amount.

(2) Any amount standing to the credit of any member in the Fund at the time of his death and payable under the Scheme to his nominee shall, subject to any deduction authorised by the Scheme, vest in the nominee and shall be free from any debt or other liability incurred by the deceased or he nominee before the death of the member.

Section 13. Priority of payment of contributions over other debts

Where any employer is adjudicated insolvent, or, being a company, an order for winding up is made, the amount due from the employer in respect of any contribution payable to the Fund, damages recoverable under section 18 or any charges payable by him under any other provision of this Act or under any provision of the Scheme shall, where the liability therefor has accrued before the order of adjudication or winding up is made, be deemed to be included among the debts which under section 49 of the Presidency Towns Insolvency Act, 1909(3 of 1909), or under section 61 of the Provincial Insolvency Act, 1920(5 of 1920), or under section 530 of the Companies Act, 1956(1 of 1956), are to be paid in priority to all other debts in the distribution of the property of the insolvent or the assets of the company being wound up, as the case may be.

Section 14. Employer not to reduce wages

No employer shall, by reason only of his liability for the payment of any contribution to the Fund or any charges under this Act or the Scheme, reduce, whether directly or indirectly, the wages of any seaman to whom the Scheme applies or the total quantum of benefits in the nature of old age pension, gratuity or provident fund to which the seaman is entitled under the agreement with the crew or any other agreement between the parties.

Section 15. Inspectors

(1) The Government may, by notification in the Official Gazette, appoint such employees of the Board, as the Government thinks fit, to the Inspectors for the purposes of this Act and the Scheme, and may define their jurisdiction.

(2) Every Inspector appointed under sub-section (1) may, for the purpose of inquiring into the correctness of any information furnished in connection with this Act or the Scheme or for the purpose of ascertaining whether any of the provisions of this Act or of the Scheme have been complied with —

(a) Require an employer to furnish such information as he may consider necessary in relation to the Scheme;

(b) At any reasonable time and with such assistance, if any, as he may think fit, enter any office or board any ship, search the same and require any one found in charge thereof to produce before him for examination any accounts, books, registers and other documents in relation to the employment of seamen or the payment of wages to seamen:

(c) Examine, with respect to any matter relevant to any of the purposes aforesaid, the employer, his agent or servant or any other person found in charge of the office or the ship or whom the Inspector has reasonable cause to believe to be or to have been, an employee in the office or on the ship;

(d) Copies of, or take extracts from, any book, register or other document maintained in connection with the Fund and, where he has reason to believe that any offence under this Act has been committed by an employer, seize with such assistance as he may think fit such book, register or other document or portions thereof as he may consider relevant in respect of that offence;

(e) Exercise such other powers as the Scheme may provide.

(3) The provisions of the code of Criminal Procedure, 1898(5 of 1898) shall, as far as may be, apply to any search of seizure under sub-section (2) as they apply to any search or seizure made under the authority of a warrant issued under section 98 of the said Code.

(4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.(45 of 1860)

Section 16. Penalties

(1) Whoever, for the purpose of avoiding any payment to be made by himself under this Act or under the Scheme or enabling any other person to avoid such payment, knowingly makes or causes to be made any false statement or false representation shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

(2) The Scheme may provide that any person who contravenes, or makes default in complying with any of the provisions thereof shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

(3) Whoever contravenes or makes default in complying with any provisions of this Act shall, if no other penalty is elsewhere provided by or under this Act for such contravention or non-compliance, be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

(4) No court shall take cognizance of any offence punishable under this Act or under the Scheme except on a report in writing of the facts constituting such offence made by the Seamen’s Provident Fund Commissioner or by an Inspector appointed under sub-section (1) of section 15, with the previous sanction of such authority as may be specified in this behalf by the Government.

Section 17. Offences by companies

(1) If the person committing an offence under this Act or the Scheme is 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, if he proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act or the Scheme has been committed by a company, and it is proved that the offence was 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 be deemed to be guilty of that offence and shall be liable to the proceeded against and punished accordingly.

(3) Where any offence under this Act or the Scheme is committed by a company not registered in India and such a company has an agent in India which agent is also a company, then the provisions of this section shall apply to such agent as if the offence was committed by that agent.

Explanation.- For the purposes of this section —

(a) “Company” means any body corporate and includes a firm and other association of individuals; and

(b) “Director”, in relation to a firm, means a partner in the firm.

Section 18. Power to recover damages

Where any employer makes default in the payment of any contribution to the Fund or in the payment of any charges payable under any other provision of this Act or under the Scheme, the Government may recover from the employer such damages, not exceeding twenty-five per cent. of the amount of arrears, as it may think fit.

Section 19. Transfer of account

Where a seaman leaves the seafaring profession with no present intention of resuming that profession and obtains employment in any establishment to which the Employees’ Provident Funds Act, 1952(19 of 1952), applies, the amount standing to the credit of such seaman in the Fund shall be transferred, within such time as may be specified by the Board in this behalf, to the credit of his account in the provident fund of that establishment, if the seaman so desires and the rules in relation to that provident fund permit such transfer.

Section 20. Power to exempt

(1) The Board may, by order in writing, exempt any seaman to whom this Act applies and his employer from the operation of all or any of the provisions of this Act if, in the opinion of the Board, the seaman is in enjoyment of benefits in the nature of provident fund or pension and such benefits, separately or jointly are on the whole not less favourable to the seaman than the benefits provided by or under this Act.

(2) Where an exemption has been granted under sub-section (1), the employer shall not at any time after the grant of the exemption, without the leave of the Board, reduce the total quantum of benefits in the nature of provident fund, pension or gratuity to which the seaman was entitled at the time of grant of such exemption.

(3) Any exemption granted under this section, may be cancelled by the Board, by order in writing, if the employer fails to comply with the requirements of sub-sections (2):

Provided that no such order shall be made unless the employer has been given a reasonable opportunity of showing cause against the proposed cancellation.

Section 21. Protection for acts done in good faith

No suit or other legal proceeding shall lie against the Government or the Board or any officer or employee thereof in respect of anything which is in good faith done or intended to be done under this Act or under the Scheme.

Section 22. Delegation

(1) The Government may, by order, direct that any power or duty which by this or by the Scheme is conferred or imposed upon the Government (other than the power to frame a scheme under section 3) shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged also by such officer or authority as may be so specified.

(2) The Board may, with the prior approval of the Government, delegate to its Chairman or to any of its employees, subject to such conditions and limitations, if any, as it may specify, such of its functions under this Act as it may deem necessary for the efficient administration of the Scheme.

Section 23. Power to remove difficulties

If any difficulty arises in giving effect to the provisions of this Act, the Government may make such order or give such direction, not inconsistent with the provisions of this Act, as appears to it to be necessary or expedient for the removal of the difficulty, and any such order shall be final.

Section 24. Scheme to be laid before Houses of Parliament

Any Scheme framed under this Act shall be laid, as soon as may be after it is framed, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and, if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in any provision of the Scheme or both Houses agree that any provision in the Scheme should not be made, that provision of the Scheme shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that provision.

Schedule

[See section 3(2)]

Matters for which provision may be made in the Scheme

1. Seamen who shall join the Fund.

2. The time and manner in which contributions shall be made to the Fund by employers and by, or on behalf of, seamen.

3. The payment by the employer of such sums of money as may be necessary to meet the cost of administering the Fund and the rate at which and the manner in which the payment shall be made.

4. Other functions of the Board.

5. The constitution of any committee for assisting the Board.

6. The opening of regional and other offices of the Board.

7. The manner in which accounts shall be kept, the investments of moneys belonging to the Fund in accordance with the directions issued or conditions specified by the Government, the preparation of the budget, the audit of accounts and the submission of reports to the Government.

8. The conditions under which withdrawals from the Fund may be permitted and any deductions or forfeiture may be made and the maximum amount of such deduction or forfeiture.

9. The fixation by the Government in consultation with the Board of the rate of interest payable to members.

10. The form in which a seaman shall furnish particulars about himself and his family whenever required.

11. The nomination of a person by a member to receive the amount standing to his credit after his death and the cancellation or variation of such nomination.

12. The registers and records to be maintained with respect to seamen and the returns to be furnished by employers.

13. The fees to be levied for any of the purposes specified in this Schedule.

14. The contraventions or defaults which shall be punishable under section 16.

15. Further powers, if any, which may be exercised by Inspectors.

16. The conditions under which a member may be permitted to pay premia on life insurance from the Fund.

17. Any other matter which is to be provided for in the Scheme or which may be necessary or proper for the purpose of implementing the Scheme.

Bydeb

The Additional Duties Of Excise (Textiles And Textile Articles) Act, 1978

NO.40 OF 1978

[ 6th December, 1978.]

An Act to provide for the levy and collection of additional duties of excise on certain textiles and textile articles.

BE it enacted by Parliament in the Twenty-ninth Year of the Republic of India as follows:-

2. Definitions.

In this Act, “cotton fabrics”, “silk fabrics”, “woollen fabrics”, “man-made fabrics” and “wool tops” shall have the meanings respectively assigned to them in Items Nos.19, 20, 21, 22 and 43 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944).

3. Levy and collection of additional duties of excise on certain textiles and textile articles.

(1) When goods of the description mentioned in the Schedule chargeable with a duty of excise under the Central Excises and Salt Act, 1944 (1 of 1944), read with any notification for the time being in force issued by the Central Government in relation to the duty so chargeable, are assessed to duty, there shall be levied and collected a duty of excise equal to ten per cent.of the total amount so chargeable on such goods.

2) The duties of excise referred to in sub-section (1) in respect of the goods specified in the Schedule shall be in addition to the duties of excise chargeable on such goods under the Central Excises and Salt Act, 1944 (1 of 1944), or any other law for the time being in force and shall be levied for the purposes of the Union and the proceeds thereof shall not be distributed among the States.

(3) The provisions of the Central Excises and Salt Act, 1944 (1 of 1944), and the rules made thereunder, including those relating to refunds and exemptions from duties, shall, so far as may be, apply in relation to the levy and collection of the duties of excise leviable under this section in respect of any goods as they apply in relation to the levy and collection of the duties of excise on such goods under that Act or those rules.

4. Repeal and saving.

(1) The Additional Duties of Excise (Textiles and Textile Articles) Ordinance, 1978 (4 of 1978), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the Ordinance so repealed shall be deemed to have been done or taken under the corresponding provisions of this Act.

SCHEDULE. …

THE SCHEDULE

S.No.Description of goods
12
1Man-made fibres, other than mineral fibres, man-made filament yarns, cellulosic spun yarn and non-cellulosic wastes, all sorts as described in Item No.18 I, 18 II, 18 III and 18 IV respectively of the First Schedule to the Central Excises and Salt Act,1944.
2Cotton yarn, all sorts as described in Item No.18A of the First Schedule to the Central Excises and Salt Act, 1944.
3Woollen and acrylic spun yarn as described in Item No.18B of the First Schedule to the Central Excises and Salt Act, 1944.
4Non-cellulosic spun yarn as described in Item No.18E of the First Schedule to the Central Excises and Salt Act, 1944.
5Cotton fabrics.
6Silk fabrics.
7Wollen fabrics.
8Man-made fabrics.
9Wool tops.
Bydeb

The Medicinal and Toilet Preparation (Excise Duties) Act, 1955

PREAMBLE

(16 OF 1955)

[27th April, 1955]

An Act to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol, opium, Indian hemp or other narcotic drug or narcotic

Be it enacted by Parliament in the Sixth Year of the Republic of India as follows:

1. SHORT TITLE, EXTENT AND COMMENCEMENT.

(16 OF 1955)

[27th April, 1955]

An Act to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol, opium, Indian hemp or other narcotic drug or narcotic

Be it enacted by Parliament in the Sixth Year of the Republic of India as follows :

(1) This Act may be called the Medicinal and Toilet Preparations (Excise Duties) Act, 1955.

(2) It extends to the whole of India.

(3) It shall come into force on such date 2, as the Central Government may, by notification in the official Gazette, appoint.

2. DEFINITIONS.

In this Act unless the context otherwise requires, –

(a) “alcohol” means ethyl alcohol of any strength and purity having chemical compositions C2H5 OH;

(aa) “Coca derivative” means –

(i) crude cocaine that is any extract of coca leaf which can be used directly or indirectly, for the manufacture of cocaine;

(ii) ecgonine, that is laevo-ecgonine having the chemical formula, C9H15NO3H2O, and all the derivatives of laevo-ecgonine from which it can be recovered, and

(iii) cocaine, that is, methyl-benzoyl-laevo-ecgonine having the chemical formula, C1H2NO4 and its salts;

(ab) “coca-leaf” means –

(i) the leaf and young twigs of any coca plant, that is, of the Erythroxylo coca (Lamk.) and the Erythroxylon novo-granatense (Hiern.) and their varieties, and of any other species of this genus which the Central Government may, by notification in the official Gazette, declare to be coca plants for the purposes of this Act, and

(ii) any mixture thereof, with or without neutral materials;

(bb) derivative of opium, means –

(i) medicinal opium, that is, opium which has undergone the processes necessary to adopt it for medicinal use;

(ii) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked ;

(iii) morphine, that is, the principal alkaloid of opium having the chemical formula C17H19NO8, and its salts, and its derivatives;

(b) “collecting Government” means the Central Government or, as the case may be, the State Government which is entitled to collect the duties levied under this Act;

(c) “dutiable goods” means the medicinal and toilet preparations specified in the schedule as being subject to the duties of excise levied under this Act;

(d) “excise officer” means an officer of the Excise Department of any State and includes any person empowered by the collecting Government to exercise all or any of the powers of an excise officer under this Act;

(e) “Indian hemp” means –

(i) the leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (Cannbis-sativa L), including all forms known as bhang, sidhi or ganja;

(ii) charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transport;

(iii) any mixture, with or without neutral materials, of any of the above forms of Indian hemp or any drink prepared there from; and

(iv) any extract or tincture of the above forms of Indian hemp;

(f) “manufacture” includes any process incidental or ancillary to the completion of the manufacture of any dutiable goods;

(g) “medicinal preparation” includes all drugs which are a remedy or “prescription” prepared for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals;

(h) “narcotic drug” or “narcotic” means a substance which is coca leaf, or coca derivative, or opium or derivative of opium, or Indian hemp and shall include any other substance, capable of causing or producing in human beings dependence, tolerance and withdrawal syndromes and which the Central Government may, by notification in the official Gazette, declare to be a narcotic drug or narcotic;

(i) “opium” means –

(1) the capsules of the poppy (Palaver somniferous L), whether in their original form or cut, crushed or powdered and whether or not juice has been extracted there from,

(2) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and

(3) any mixture, with or without neutral materials of any of the above forms of opium, and includes and derivative of opium;

(j) “prescribed” means prescribed by rules made under this Act;

(k) “toilet preparation” means any preparation which is intended for use in the toilet of the human body or in perfuming apparel of any description, or any substance intended to cleanse, improve or alter the complexion, skin, hair or teeth, and includes deodorants and perfumes.

3. DUTIES OF EXCISE TO BE LEVIED AND COLLECTED ON CERTAIN GOODS.

(1) There shall be levied duties of excise, at the rates specified in the schedule, on all dutiable goods manufactured in India.

(2) The duties aforesaid shall be leviable –

(a) where the dutiable goods are manufactured in bond, in the State in which such goods are released from a bonded warehouse for home consumption, whether such State is the State of manufacture or not;

(b) where dutiable goods are not manufactured in bond, in the State in which such goods are manufactured.

(3) Subject to the other provisions contained in this Act, the duties aforesaid shall be collected in such manner as may be prescribed.

Explanation:

Dutiable goods said to be manufactured in bond within the meaning of this section if they are allowed to be manufactured without payment of any duty of excise leviable under any law for the time being in force in respect of alcohol, opium, Indian hemp or other narcotic drug or narcotic which is to be used as an ingredient in the manufacture of such goods.

4. REBATE OF DUTY ON ALCOHOL, ETC. SUPPLIED FOR MANUFACTURE OF DUTIABLE GOODS.

Where alcohol opium, Indian hemp or other narcotic drug or norcotic had been supplied to a manufacturer or any dutiable goods for use as an ingredient of such goods by, or under the authority of, the collecting Government and a duty or excise on the goods so supplied had already been recovered by such Government under any law for the time being in force, the collecting Government shall, on an application being made to it in this behalf, grant in respect of the duty of excise leviable under this Act, a rebate to such manufacturer of the excess, if any, of the duty so recovered over the duty leviable under this Act.

5. RECOVERY OF SUMS DUE TO GOVERNMENT.

In respect of the duty of excise and any other sums of any kind payable to the collecting Government under any of the provisions of this Act or of the rules made there under, the Excise Officer empowered by the said rules to levy such duty or require the payment of such sums, may 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 recover the amount by attachment and sale of dutiable 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 sum and sent to it 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 in the same manner as an arrear of land revenue.

6. CERTAIN OPERATIONS TO BE SUBJECT TO LICENCES.

(1) The Central Government may, by notification in the official Gazette, provide that from such date as may be specified in the notification, no person shall engage in the production or manufacture of any dutiable goods or of any specified component parts or ingredients of such goods or of specified container of such goods or of labels of such containers except under the authority and in accordance with the terms and conditions of a licence granted under this Act.

(2) Every licence under sub-section (1) shall be granted for such area, if any, for such period, subject to such restrictions and conditions, and in such form and containing such particulars as may be prescribed.

7. OFFENCES AND PENALTIES.

If any person –

(a) contravenes any of the provisions of a notification issued under Sec. 6; or

(b) evades the payment of any duty of excise payable under this Act; or

(c) 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; or

(d) attempts to commit or abets the commission of any offence mentioned in Cl. (a) or Cl. (b).

He shall for every such offence be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

8. POWER OF COURTS TO ORDER FORFEITURE.

Any Court trying any offence under Sec. 7 may order the forfeiture to the collecting Government of any dutiable goods in respect of which the Court is satisfied that an offence under this Act has been committed, and may also order the forfeiture of any alcohol, drugs or materials by means of which the offence has been committed and of any receptacles, packages or coverings in which any such goods or articles are contained and the animals, vehicles, vessels or other conveyances used in carrying such goods or articles, and any implements or machinery used in the manufacture of such goods.

9. POWER TO ARREST.

(1) Any excise officer duly empowered by rules made in this behalf may arrest any person whom he has reason to believe to be liable to punishment under this Act.

(2) Any person accused or reasonably suspected of committing an offence under this Act or any rules made there under, who, on demand of any excise officer duly empowered by rules made under this Act, refuses to give his name and residence, or who gives a name or residence which such officer has reason to believe to be false may be arrested by such officer in order that his name and residence may be ascertained.

10. POWER TO SUMMON PERSONS TO GIVE EVIDENCE AND PRODUCE DOCUMENTS IN INQUIRIES UNDER THIS ACT.

(1) Any excise officer duly empowered by rules made in this behalf shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purpose of this Act.

(2) A summons to produce documents or other things under sub-section (1) may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person concerned.

(3) All persons so summoned shall be bound to attend either in person or by an authorized agent as such officer may direct and all persons so summoned shall be bound to state the truth on any subject respecting which he is examined or make statements and produce such documents and other things as may be required:

Provided that the exemption under Sec. 132 and Sec. 133 of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to requisitions for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Sec. 193 and Sec. 228 of the Indian Penal Code (45 of 1860).

11. OFFICERS REQUIRED TO ASSIST EXCISE OFFICERS.

All officers of Customs and Central Excise, and such other officers of the Central Government as may be specified in this behalf, and all police officers and all officers engaged in the collection of land revenue are hereby empowered and required to assist excise officers in the execution of this Act.

12. OWNERS OR OCCUPIERS OF LAND TO REPORT MANUFACTURE OF CONTRABAND DUTIABLE GOODS.

Every owner or occupier of land and the agent of any such owner or occupier in charge of the management of that land, if dutiable goods are manufactured thereon in contravention of the provisions of this Act or the rules made thereunder, shall, in the absence of reasonable excuse, be bound to give notice of such manufacture to a Magistrate or to an officer of the Excise, Customs, Police or Land Revenue Department immediately the fact comes to his notice.

13. PUNISHMENT FOR CONNIVANCE AT OFFENCES.

Any owner or occupier of land or any agent of such owner or occupier in charge of the management of the land, who willfully connives at any offence against the provisions of this Act or any rules made there under shall, for every such offence, be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

14. SEARCHES AND ARRESTS HOW TO BE MADE.

All arrests and searches made under this Act or under any rules made there under shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898) 6 , relating respectively to searches and arrests under the Code.

15. DISPOSAL OF PERSONS ARRESTED.

(1) Every person arrested under this Act shall be forwarded without delay to the nearest Excise Officer empowered to send persons so arrested to a Magistrate or if there is no such excise officer within a reasonable distance to the officer-in-charge of the nearest police station.

(2) The officer-in-charge of a police station to whom any person is forwarded under sub-section (1) shall either admit him to bail to appear before a Magistrate having jurisdiction or in default of bail forward him without delay in custody to such Magistrate.

16. INQUIRY HOW TO BE MADE BY EXCISE OFFICERS AGAINST ARRESTED PERSONS FORWARDED TO THEM.

(1) When any person is forwarded under Sec. 15 to an excise officer empowered to send persons so arrested to a Magistrate, the Excise Officer shall proceed to inquire into the charge against him.

(2) For the purpose of sub-section (1), the Excise Officer may exercise the same powers, and shall be subject to the same provisions, as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case :

Provided that –

(a) if the Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person he shall either admit him to bail to appear before Magistrate having jurisdiction in the case, or forward him in custody without delay to such Magistrate;

(b) if it appears to the Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond with or without sureties as the Excise Officer may direct, to appear, if and when so required, before the Magistrate having jurisdiction and shall make a full report of all the particulars of the case to him official superior.

(3) All officers exercising any powers under Sec. 15 or this section shall so exercise their powers as to ensure that every person who is arrested and detained in custody is produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate.

17. VEXATIOUS SEARCH, SEIZURE, ETC. BY EXCISE OFFICER.

(1) Any officer exercising powers under this Act or under the rules made there under who –

(a) without reasonable ground of suspicion searches or causes to be searched any place, conveyance or vessel;

(b) vexatiously and unnecessarily detains, searches or arrests any person;

(c) vexatiously and unnecessarily seizes the moveable property of any person on pretence of seizing or searching for any article liable to confiscation under this Act;

(d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty;

Shall, for every such offence, be punishable with fine which may extend to two thousand rupees.

(2) Any person willfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.

18. FAILURE OF EXCISE OFFICERS ON DUTY.

Any Excise Officer who ceases or refuses to perform, or withdraws himself from the duties of his office, unless he had obtained the express written permission of his superior officer or has given such superior officer two month’s notice in writing of his intention or has other lawful excuse, shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to three months’ pay, or with both.

19. POWER TO MAKE RULES.

(1) The Central Government may, by notification in the official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may –

(i) provide for the assessment and collection of duties levied under this Act, the authorities by whom functions under this Act are to be discharged, the issue of notices requiring payment, the manner in which the duties shall be payable and the recovery of the duty not paid;

(ii) prohibit absolutely, or with such exceptions, or subject to such conditions as the Central Government may think fit, the manufacture, or any process of the manufacture, or dutiable goods or of any component parts or ingredients or containers thereof, except of land or premises approved for the purpose;

(iii) regulate the removal of dutiable goods from the place where they are stored or manufactured or subjected to any process of production or manufacture and their transport to or from the premises of a licensed person, or a bonded warehouse, or to a market;

(iv) regulate the production or manufacture or any process of production or manufacture, the possession and storage of dutiable goods or of any component parts or ingredients or containers thereof so far as such regulation is essential for the proper levy and collection of duties levied under this Act;

(v) provide for the employment of excise officers to supervise the carrying out of any rules made under this Act;

(vi) require a manufacturer or the licensee of a warehouse to provide accommodation within the precincts of his factory or warehouse for Excise Officers employed to supervise the carrying out of rules made under this Act and prescribe the scale of such accommodation;

(vii) provide for the appointment, licensing, management and supervision of bonded warehouses and the procedure to be followed in entering dutiable goods into a clearing goods from such warehouses or in the movement of dutiable goods from one bonded warehouse to another;

(viii) provide for the distinguishing of excisable goods which have been manufactured under licence, or materials which have been imported under licence and of goods on which duty has been paid or which are exempt from duty under this Act;

(ix) impose on persons engaged in the manufacture, storage or sale (whether on their own account or as brokers or commission agents) so far as such imposition is essential for the proper levy and collection of the duties levied under this Act, the duty of furnishing information, keeping records and making returns and prescribe the nature of such information and form of such records and returns the particulars to be contained therein and the manner in which they shall be verified.

(x) require that dutiable goods shall not be sold or offered or kept for sale except in prescribed containers, bearing a banderol, stamp or label of such nature and affixed in such manner as may be prescribed;

(xi) provide for the issue of licences and transport permits and the fees, if any, to be charged therefor;

(xii) provide for the detention of dutiable goods, plant, machinery or material for the purpose of exacting the duty;

(xiii) provide for the confiscation of dutiable goods in respect of which a breach of any rule made under this Act has been committed, and also for the confiscation of any alcohol, drugs or materials by means of which the breach has been committed and of any receptacle, packages or coverings in which goods or article are contained, and the animals, vehicles, vessels, or other conveyances used in carrying such goods or articles and any implements or machinery used in the manufacture of such goods;

(xiv) provide for the levy of a penalty not exceeding two thousand rupees for a breach of any rule made under this Act;

(xv) provide for the procedure in connection with such confiscation and the imposition of such penalty, the maximum limits up to which particular classes of excise officers may adjudge such confiscation or penalty, appeals from orders of such officers and revision of such orders by some higher authority, the time-limit for such appeals and revisions and the disposal of goods and articles confiscated;

(xvi) authorize and regulate the compounding of offences against, or liabilities incurred under, this Act or the rules made thereunder;

(xvii) authorize and regulate the inspection of factories and provide for the taking of samples or for the making of tests of any substance produced therein and for the inspection or search of any place, conveyance or vessel used for the production, storage, sale or transport of dutiable goods in so far as such inspection or search is essential for the proper levy and collection of the duties levied under this Act;

(xviii) provide for the grant of a rebate of the duty paid on dutiable goods which are exported out of India or shipped for consumption on a voyage to any port outside India;

(xix) exempt any dutiable goods from the whole or any part of the duty levied under this Act where in the opinion of the Central Government, it is necessary to grant such exemption in the interest of the trade or in the public interest;

(xx) notify in the official Gazette lists of the names and descriptions of preparations which would fall for assessment under any particular item or the schedule or for regulating their manufacture, transport and distribution;

(xxi) authorize particular classes of excise officers to provide by written instructions for supplemental matters arising out of any rule made by the Central Government under this section.

(3) Where any confiscation or penalty has been adjudged in respect of a breach of any rule under this Act, which is also an offence under Sec. 7 the person concerned shall not be prosecuted under that section.

(4) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised is one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule.

20. BAR OF SUITS AND LIMITATION OF SUITS AND OTHER LEGAL PROCEEDINGS.

(1) No suit or other legal proceeding shall lie against the collecting Government or against any officer in respect of any order passed in good faith or any act in good faith done or ordered to be done under this Act.

(2) No suit, prosecution or other legal proceeding shall be instituted against the collecting Government or against any officer for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of.

21. REPEALS AND SAVINGS.

If, immediately before the commencement of this Act, there is in force in any State any law corresponding to this Act, that law is hereby repealed :

Provided that all rules made, notifications issued, licences or permits granted, powers conferred under any law hereby repealed shall, so far as they are not inconsistent with this Act, have the same force and effect as if they had been respectively made, issued, granted or conferred under this Act and by the authority empowered hereby in that behalf.

THE SCHEDULE.

(See Sec. 3)

Medicinal Preparations

1. Allopathic Medicinal Preparations

(i) Medicinal preparations containing alcohol which are not capable of being consumed as ordinary alcoholic beverages –

(a) Patent or proprietary Twenty per cent. admedicines. valorem or rupees ten per litre of pure alcohol content, whichever is higher.

(b) Others. Rupees ten per litre of pure alcohol content.

(ii) Medicinal preparations containing alcohol which are capable of being consumed as ordinary alcoholic beverages –

(a) Medicinal preparations which contain Twenty per cent. ad known active ingredients in therapeutic valorem or rupees quantities. twenty per litre of pure alcohol content, whichever is higher.

(b) Others. Twenty per cent. ad valorem or rupees eighty per litre of pure alcohol content, whichever is higher.

(iii) Medicinal preparations not con- Twenty per cent. taining alcohol but containing narcotic ad valorem. drug or narcotic.

2. Medicinal preparations in Ayurvedic, Unani or other indigenous systems of medicine –

(i) Medicinal preparations containing Nil self-generated alcohol which are not capable of being consumed as ordinary alcoholic beverages.

(ii) Medicinal preparations containing Rupees two and self-generated alcohol which are capable fifty paise per of being consumed as ordinary alcoholic litre of pure beverages. alcohol content.

(iii) All other containing alcohol Rupees eighty per which are prepared by distillation litre of pure or to which alcohol has been added. alcohol content.

(iv) Medicinal preparations not Twenty per cent. ad containing alcohol but containing valorem. narcotic drug or narcotic.

3. Homoeopathic preparations Rupees twenty per containing alcohol. litre of pure alcohol content.

TOILET PREPARATIONS

4. Toilet preparations containing One hundred per alcohol or narcotic drug or narcotic. cent. ad valorem or rupees twenty per litre of pure alcohol content whichever is higher.

Explanation I :

“Patent or proprietary medicines” means any medicinal preparation which bears either on itself or on its container or both, a name which is not specified in a monograph in a pharmacopoeia, formulary or other publications notified in this behalf by the Central Government in the official Gazetee, or which is a brand name, that is, a name or a registered trade-mark under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or any other mark such to a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicinal preparation for the purpose of indicating or so as to indicate a connection in the course of trade between the preparation and some person having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identity of that person.

Explanation II :

Where any article is chargeable with duty at a rate dependent on the value of the article such value shall be deemed to be the value as determined in accordance with the provisions of Sec. 4 of the Central Excises and Salt Act, 1944 (1 of 1944).

Explanation III :

For the purposes of this schedule, “pure alcohol content”, in relation to a preparation, means the ethyl alcohol content in the preparation expressed as ethyl alcohol of 100 per cent. by volume at 150 Degree C.

Bydeb

The Central Excise Act, 1944

Notification 58/2008-CE, dated 07-12-2008

Amendment Certain Notifications

GOVERNMENT OF INDIA MINISTRY OF FINANCE

(DEPARTMENT OF REVENUE)

(New Delhi, the 7th December, 2008)

Notification No.58/2008 – Central Excise

G.S.R.       (E).- In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby directs that each of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), specified in column (2) of the Table hereto annexed shall be amended or further amended, as the case may be, in the manner specified in the corresponding entry in column (3) of the said Table, namely :-

S. No.Notification number and dateAmendments
(1)(2)(3)
1.23/2003-Central Excise, dated the 31st March, 2003In the said notification, in the Table, -(i)      against Sr. No. 5, for the entry in column (4), the entry “In excess of “Nil”Explanation.- The value of the goods shall be determined in terms of section 4 of the Central Excise Act.” shall be substituted; (ii)    against Sr. No. 5A, for the entry in column (4), the entry “In excess of amount equal to 4% of duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985( 5 of 1986). Explanation.- The value of the goods shall be determined in terms of section 4 of the Central Excise Act.” shall be substituted; (iii)   against Sr. No. 6, for the entry in column (4), the entry “In excess of amount equal to 4% of duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985( 5 of 1986). Explanation.- The value of the goods shall be determined in terms of section 4 of the Central Excise Act.” shall be substituted; (iv)  against Sr. No. 7, for the entry in column (4), the entry “In excess of “Nil” Explanation.- The value of the goods shall be determined in terms of section 4 of the Central Excise Act.” shall be substituted; (v)    against Sr. No. 7A, for the entry in column (4), the entry “In excess of amount equal to 4% of duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985( 5 of 1986). Explanation.- The value of the goods shall be determined in terms of section 4 of the Central Excise Act.” shall be substituted.
2.29/2004-Central Excise, dated the 9th July, 2004In the said notification, in the Table, in column (4),-(i)      for the entry “8%”, wherever it occurs, the entry “4%” shall be substituted;(ii)    for the entry “4%”, wherever it occurs, the entry “Nil” shall be substituted.
3.3/2005-Central Excise, dated the 24th February, 2005In the said notification, in the Table, against S. No.73, for the entry “8%” in column (4), the entry “4%” shall be substituted.
4.3/2006-Central Excise, dated the 1st March, 2006In the said notification, in the Table, in column (4), -(i)      for the entry “14%”, wherever it occurs, the entry “10%” shall be substituted;(ii)    for the entry “8%”, wherever it occurs, the entry “4%” shall be substituted.
5.4/2006-Central Excise, dated the 1st March, 2006In the said notification, in the Table, in column (4), -(i)      for the entry “12%”, wherever it occurs, the entry “8%” shall be substituted;(ii)    for the entry “8%”, wherever it occurs except for the entry occurring against S. No. 22 and 27, the entry “4%” shall be substituted; (iii)   for the entry “Rs.220 per tonne”, wherever it occurs, the entry “Rs.145 per tonne” shall be substituted; (iv)  for the entry “Rs.370 per tonne”, wherever it occurs, the entry “Rs.250 per tonne” shall be substituted; (v)    for the entry “Rs.350 per tonne”, wherever it occurs, the entry “Rs.230 per tonne” shall be substituted; (vi)  for the entry “12% of retail sale price”, wherever it occurs, the entry “8% of retail sale price” shall be substituted; (vii) for the entry “Rs.250 per tonne”, wherever it occurs, the entry “Rs.170 per tonne” shall be substituted; (viii)           for the entry “14% or Rs.400 per tonne, whichever is higher”, wherever it occurs, the entry “10% or Rs.290 per tonne, whichever is higher” shall be substituted (ix)  for the entry “14% of the value of such gold potassium cyanide excluding the value of gold used in the manufacture of such goods”, wherever it occurs, the entry “10% of the value of such gold potassium cyanide excluding the value of gold used in the manufacture of such goods” shall be substituted; (x)    for the entry “14% of the value of material , if any, added and the amount charged for such manufacture”, wherever it occurs, the entry “10% of the value of material , if any, added and the amount charged for such manufacture” shall be substituted.
6.5/2006-Central Excise, dated the 1st March, 2006In the said notification, in the Table, in column (4), -(i)      for the entry “14%”, wherever it occurs, the entry “10%” shall be substituted;(ii)    for the entry “12%”, wherever it occurs, the entry “8%” shall be substituted; (iii)   for the entry “8%”, wherever it occurs, the entry “4%” shall be substituted.
7.6/2006-Central Excise, dated the 1st March, 2006In the said notification, in the Table, in column (4), -(i)      for the entry “24%”, wherever it occurs, the entry “20%” shall be substituted;(ii)    for the entry “24% + Rs.15,000 per unit”, wherever it occurs, the entry “20% + Rs.15,000 per unit” shall be substituted; (iii)   for the entry “14%”, wherever it occurs, the entry “10%” shall be substituted; (iv)  for the entry “14% + Rs.10,000 per chassis”, wherever it occurs, the entry “10% + Rs.10,000 per chassis” shall be substituted; (v)    for the entry “12%”, wherever it occurs, the entry “8%” shall be substituted; (vi)  for the entry “12% + Rs.10,000 per chassis”, wherever it occurs, the entry “8% + Rs.10,000 per chassis” shall be substituted; (vii) for the entry “8%”, wherever it occurs, the entry “4%” shall be substituted.
8.10/2006-Central Excise, dated the 1st March, 2006In the said notification, in the Table, in column (4), for the entry “8%”, wherever it occurs, the entry “4%” shall be substituted.
9.49/2006-Central Excise, dated the 30th December, 2006In the said notification, in the Table, in column (4), for the entry “12%”, wherever it occurs, the entry “8%” shall be substituted.
10.2/2008-Central Excise, dated the 1st March, 2008In the said notification, in the Table, in column (3), -(i)      for the entry “14%”, wherever it occurs except for the entry occurring against S. No. 14, 16 and 18, the entry “10%” shall be substituted;(ii)    for the entry “14% + Rs.10,000 per chassis”, wherever it occurs, the entry “10% + Rs.10,000 per chassis” shall be substituted.

[F. No.354/210/2008-TRU]

[Unmesh Wagh]
Under Secretary to the Government of India

Notification 59/2008-CE, dated 07-12-2008 Exempts certain goods from excise duty

GOVERNMENT OF INDIA MINISTRY OF FINANCE

(DEPARTMENT OF REVENUE)

(New Delhi, the 7th December, 2008)

Notification No.59/2008 – Central Excise

G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling under the Chapter, heading, sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 ( 5 of 1986), as are specified in column (2) of the Table below, from so much of the duty of excise leviable thereon under the said First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (3) of the Table aforesaid.

Explanation. – For the purposes of this notification, the rates specified in column (3) of the said Table are ad valorem rates, unless otherwise specified.

S.No.Chapter or heading or sub-heading or tariff item of the First ScheduleRate
(1)(2)(3)
1.1507, 1508, 1509, 1510, 1511, 1512, 1513, 1514, 1515, 1516 (excluding 1516 10 00), 1517 (excluding 1517 10 22) and 15184%
2.1905 31 00, 1905 32 19, 1905 90 10 and 1905 90 204%
3.5004, 5005, 5006 and 50074%
4.5105, 5106, 5107, 5108, 5109, 5110, 5111, 5112 and 51134%
5.5204, 5205, 5206, 5207, 5208, 5209, 5210, 5211 and 52124%
6.5302, 5305, 5306, 5308 (excluding 5308 10 10 and 5308 10 90), 5309, 5310 and 53114%
7.5401, 5404 90, 5405 00 00, 5407 (excluding 5407 10 15, 5407 10 25, 5407 10 35, 5407 10 45, 5407 10 95, 5407 20 10, 5407 20 20, 5407 20 30, 5407 20 40, 5407 20 90, 5407 30 10, 5407 30 20, 5407 30 30, 5407 30 40, 5407 30 90, 5407 41 19, 5407 41 29, 5407 42 90, 5407 43 00, 5407 44 90, 5407 71 10, 5407 71 20, 5407 72 00, 5407 73 00, 5407 74 00, 5407 81 19, 5407 81 29, 5407 82 90, 5407 83 00, 5407 84 90, 5407 91 10, 5407 91 20, 5407 92 00, 5407 93 00 and 5407 94 00) and 54084%
8.5407 10 15, 5407 10 25, 5407 10 35, 540710 45, 5407 10 95, 5407 20 10, 5407 20 20, 5407 20 30, 5407 20 40, 5407 20 90, 5407 30 10, 5407 30 20, 5407 30 30, 5407 30 40, 5407 30 90, 5407 41 19, 5407 41 29, 5407 42 90, 5407 43 00, 5407 44 90, 5407 71 10, 5407 71 20, 5407 72 00, 5407 73 00, 5407 74 00, 5407 81 19, 5407 81 29, 5407 82 90, 5407 83 00, 5407 84 90, 5407 91 10, 5407 91 20, 5407 92 00, 5407 93 00 and 5407 94 008%
9.5508, 5509, 5510, 5511, 5512, 5513, 5514, 5515 and 55164%
10.5601 (excluding 5601 10 00 and 5601 22 00), 5602, 5603, 5604, 5605, 5606, 5607 (excluding 5607 50 10), 5608 (excluding 5608 11 10 and 5608 11 90) and 56094%
11.5607 50 10, 5608 11 10 and 5608 11 908%
12.574%
13.5801 (excluding 5801 22 10 and 5801 35 00), 5802, 5803, 5804 (excluding 5804 30 00), 5806, 5808, 5809, 5810 and 5811.4%
14.5901, 5902 (excluding 5902 10 10 and 5902 10 90), 5903, 5904, 5905, 5906, 5907, 5908, 5909, 5910 and 5911.4%
15.604%
16.614%
17.624%
18.63 (excluding 6309 00 00 and 6310)4%
19.8523 80 208%
20.8702 10 11, 8702 10 12, 8702 10 19, 8702 90 11, 8702 90 12, 8702 90 19, 8703 23 10, 8703 23 91, 8703 23 92, 8703 23 99, 8703 24 10, 8703 24 91, 8703 24 92, 8703 24 99, 8703 32 10, 8703 32 91, 8703 32 92, 8703 32 99, 8703 33 10, 8703 33 91, 8703 33 92, 8703 33 99, 8703 90 90.20% + Rs 20,000  per unit
21.8702 90 13, 8703 (excluding 8703 23 10, 8703 23 91, 8703 23 92, 8703 23 99, 8703 24 10, 8703 24 91, 8703 24 92, 8703 24 99, 8703 32 10, 8703 32 91, 8703 32 92, 8703 32 99, 8703 33 10, 8703 33 91, 8703 33 92, 8703 33 99, 8703 90 90), 8704 10 90, 8704 31 10, 8704 31 90, 8704 32, 8704 90, 8706 00 21, 8706 00 3920%
22.8706 00 43, 8706 00 4920% + Rs 10,000  per chassis
23.9001 30 00, 9001 40 10,  9001 40 90, 9001 50 004%
24.9504 40 004%

[F. No. 354/210/2008-TRU]

(Unmesh Wagh)
Under Secretary to the Government of India

SECTION 1 SHORT TITLE, EXTENT AND COMMENCEMENT

1(1) This Act may be called the Central Excise Act, 1944.
(2) It extends 6 to the whole of India. 2[***]
(3) It shall come into force on such date 3 as the Central Government may, by notification in the Official Gazette, appoint in this behalf.

—————

1. Subs. by Act 33 of 1996, sec. 71, for sub-section (1) (w.e.f. 28-9-1996).

2. The words “except the State of Jammu and Kashmir” omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

3. Came into force on 28th February, 1944, see Notification No. III-D, dated 26th February, 1944, Gazette of India, Extra., 1944, p. 293.

2. DEFINITIONS.

In this Act, unless there is anything repugnant in the subject or context, –

1[(a) “adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), 2[Commissioner of Central Excise (Appeals)] or Appellate Tribunal;]

3[(aa) “Appellate Tribunal” means the Customs, Excise and 4[Service Tax] Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962);]

5[(aaa)] “broker” or “commission agent” means a person who in the ordinary course of business makes contracts for the sale or purchase of excisable goods for others;

6[(b)] “Central Excise Officer” means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, 7[Joint Commissioner of Central Excise,] Deputy Commissioner of Central Excise, Assistant Commis­sioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act;

(c) “curing” includes wilting, drying, fermenting and any process for rendering an unmanufactured product fit for marketing or manufacture;

(d) “excisable goods” means goods specified in 8[the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986)] as being subject to a duty of excise and includes salt;

(e) “factory” means any premises, including the precincts there­of, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on;

9[(ee) “fund” means the Consumer Welfare Fund established under section 12C];

10[(f) “manufacture” includes any process —

(i) incidental or ancillary to the completion of a manufactured product;

(ii) which is specified in relation to any goods in the section or Chapter notes of 11[The First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to 12[manufacture; or]

13[(iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer;]

And the word “manufacture” shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;

14(ff) “National Tax Tribunal” means the National Tax Tribunal established under section 3 of the National Tax Tribunal Act, 2005 (49 of 2005);]

(g) “prescribed” means prescribed by rules made under this Act;

(h) “sale” and “purchase”, with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consider­ation;

15[***]

16[***]

(k) “wholesale dealer” means a person who buys or sells excisable goods wholesale for the purpose of trade or manufacture, and includes a broker or commission agent who, in addition to making contracts for the sale or purchase of excisable goods for others, stocks such goods belonging to others as an agent for the purpose of sale.

COMMENTS

‘Goods’ meaning of

The mudguns and the hydraulic drilling machines which are created and installed at the site and could not be shifted from one place to another without dismantling and re-creating it cannot be described as “goods” within the meaning of Excise Act and exigible to excise duty; T.T.G. Industries Ltd., Madras v. Collector of Central Excise, Raipur, (2004) 4 SCC 751.

For the purposes of the Act, “Goods” would refer to an article which would ordinarily come to the market to be bought and sold; South Bihar Sugar Mills Limited v. Union of India, 1977 ELT J 199 (SC): 1977 (2) SCJ 433.

Imposition of excise duty

The mere coverage that an item falls in a tarrif entry is not sufficient to impose excise duty on it. There must be manufacture and marketability of the product and the burden to prove that there was manufacture and what was manufactured, was on the Revenue. Otherwise duty levied on it again, would amount to levying double duty on the same product; Commissioner of Central Excise, Chandigarh-I v. Markfed Vanaspati & Allied Industries, (2003) 4 SCC 184.

Manufacture: burden of proof

It cannot be said that merely because an item falls in a tariff it must be deemed that there is manufacture. The law still remains that the burden to prove that there is manufacture and that what is manufactured is on the revenue, Lal Woollen & Silk Mills Ltd. v. Collector, AIR 1999 SCW 1436.

Manufacture: meaning of

After processing, lead and aluminium sheets are converted into electrodes which is new product known in the market with a distinct name, character and use amounts to manufacture; Commissioner of Central Excise, Jaipur v. Hindustan Zinc Ltd., (2004) 4 SCC 455.

Printing on bottles does not amount to ‘manufacture’ within the meaning of section 2(f); Union of India v. J.G. Glass Industries Ltd., (1998) 2 scc 32.

Section 2(f) of the Act does not define the expression “manufacturer” but only lays down an inclusive definition. Therefore, the word “manufacture” for the purposes of Central Excise has to be construed in its natural and plain meaning but it shall also include any process incidental or ancillary to the completion of a manufactured product; Metal Forgings Pvt. Ltd. v. Union of India, 1987 (32) ELT 15 (Del).

The word “manufacture” means to bring into existence a new substance and does not mean merely to produce some change in a substance. It is true that etymological word “manufacture” prop­erly construed would doubtless cover the transformation but the question is whether that transformation brings about funda­mental change, a new substance is brought into existence or a new different article having distinctive name, character or use results from a particular process or a particular activity; Collector of Central Excise v. Kiran Spinning Mills, (1988) 2 SCJ 140.

Where manufacture involves series of processes and if any one of such processes is carried on with the aid of power, the case is taken out of the purview of the notification; Collector of Central Excise, Jaipur v. Rajasthan State Chemical Works, Deedwana, Rajasthan, (1992) 1 SCJ 325.

Making a paper-making machine by assembling various components has been held that what has been produced is something quite different from the components that had been purchased for making a paper-making machine. A new marketable commodity has emerged as a result of the manufacturing activity. It amounts to manufacture; Sirpur Paper Mills Ltd. v. Collector of Central Excise, Hyderabad, (1998) 1 scc 400.

—————

1. Ins. by Act 44 of 1980, sec. 50 and Sch. V (w.e.f. 11-10-1982).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise (Appeals)” (w.e.f. 26-5-1995).

3. Ins. by Act 44 of 1980, sec. 50 and Sch. V (w.e.f. 11-10-1982).

4. Subs. by Act 32 of 2003, sec. 135, for “Gold (Control)” (w.e.f 14-5-2003).

5. Clause (a) relettered as clause (aaa) by Act 44 of 1980, sec. 50 and Sch. V (w.e.f. 11-10-1982).

6. Subs. by Act 22 of 1995, sec. 71, for clause (b) (w.e.f. 26-5-1995).

7. Ins. by Act 27 of 1999, sec. 120 (w.e.f. 11-5-1999).

8. Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999). Earlier they were substituted by Act 5 of 1986, sec. 4, for “the First Schedule” (w.e.f. 28-2-1986).

9. Clause (ee) ins. by Act 40 of 1991, sec. 2 (w.e.f. 20-9-1991). Earlier clause (ee) was inserted by Act 25 of 1950, sec. 11 ans Sch. IV and was omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

10. Subs. by Act 5 of 1986, sec. 4, for clause (f) (w.e.f. 28-2-1986).

11. Subs. by Act 27 of 1999, sec. 120, for “the Schedule” (w.e.f. 11-5-1999).

12. Subs. by Act 20 of 2002, sec. 132, for “manufacture” (w.e.f. 11-5-2002).

13. Subs. by Act 32 of 2003, sec. 135, for sub-clause (iii) (w.e.f. 14-5-2003). Earlier sub-clause (iii) was inserted by Act 20 of 2002, sec. 132 (w.e.f. 11-5-2002).

14. Ins. by the Act 49 of 2005, sec. 30 and Sch., Pt. VII-1 (w.e.f. 28-12-2005).

15. Clauses (i) and (j) omitted by Act 33 of 1996, sec. 72 (w.e.f. 28-9-1996).

16. Clause (jj) omitted by Act 25 of 1950, sec. 11 and Sch. IV. Earlier clause (jj) was inserted by the A.O. 1950.

2A. References of certain expressions.

12A. References of certain expressions.—In this Act, save as otherwise expressly provided and unless the context otherwise requires, references to the expressions “duty”, “duties”, “duty of excise” and “duties of excise” shall be construed to include a reference to “Central Value Added Tax (CENVAT)”.]

—————

1.  Ins. by  Act 10 of  2000,  sec. 91 (w.e.f. 12-5-2000).

3. Duties specified in the Schedule to the Central Excise Tariff Act, 1985 to be levied.—

(1) 1[There shall be levied and collected in such manner as may be prescribed,—

(a) 2[a duty of excise, to be called the Central Value Added Tax (CENVAT)] on all excisable goods 3[(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);

a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods 3[(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:]

4[Provided that the duties of excise which shall be levied and collected on any 5[excisable goods which are produced or manufac­tured,—

6[***]

(ii) by a hundred per cent export oriented undertaking and 7[brought to any other place in India],

shall be an amount equal to] the aggregate of the duties of customs which would be leviable 8[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 and the Customs Tariff Act, 1975 (51 of 1975).

9[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.]

10[Explanation 2.—In this proviso,—

11[***]

11[***]

(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.]]

12[(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).]

13[(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 14[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.

15[(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.]

COMMENTS

Excisable goods

Carbide (Lime) sludge arising in manufacture of acetylene gas – Is not an excisable item particularly when it was not established to be a marketable commodity; Collector of Central Excise, Bolpur v. Ellenbarrie Industrial Gases Ltd., 2003 (151) ELT 25 (SC).

To attract excise duty under section 3 of the Central Excise Act the article must satisfy the twin attributes of excisable goods – Mobility and Marketability – Or it should find a place by that name in the Schedule to the Act; Commissioner of Central Excise, Mumbai v. Josts Engineering Co. Ltd., 2002 (146) ELT 29 (SC).

It is now well settled that the burden to establish that certain products are liable to excise duty is on the department and in the absence of any finding by the authorities that the process adopted by the petitioners amounts to manufacture, the order to levying excise duty deserves to be quashed; Sohanlal & Brothers v. Union of India, (1990) 46 ELT 211 (Bom).

The ownership of goods is not a relevant consideration for the levy of the excise duty. Assessable value of manufactured products includes the cost of free supplies; Texmaco Ltd. v. Collector of Central Excise, Calcutta, AIR 1992 SC 1801.

The expression “duty of excise” is limited in its connota­tion only to basic duty of excise levied under the Act or it also covers special duty of excise levied under various Finance Bills and Acts, additional duty of excise levied under the Additional Duty of Excise (Goods of Special Importance) Act, 1957 and any other kind of duty of excise levied under a Central enactment; Union of India v. Modi Rubber Limited, (1986) 3 SCJ 447.

16[***]

———-

1. Subs. by Act 27 of 1999, sec. 121, for certain words (w.e.f. 11-5-1999).

2. Subs. by Act 10 of 2000, sec. 92, for “a duty of excise” (w.e.f. 12-5-2000).

3. Ins. by Act 20 of 2002, sec. 133 (w.e.f. 11-5-2002).

* This shall be effective from such date appointed by the Central Government by Notification in the Official Gazette.

4. Ins. by Act 14 of 1982, sec. 46 (w.e.f. 11-5-1982).

4. Subs. by Act 21 of 1984, sec. 45, for certain words (w.e.f. 11-5-1984).

6. Clause (i) omitted by Act 22 of 2007, sec. 115(i) (w.e.f. 11-5-2007). Earlier clause (i) was amended by Act 14 of 2001, sec. 120 (w.e.f. 11-5-2001) and by Act 20 of 2002, sec. 133(ii)(a) (w.e.f. 11-5-2002). Clause (i), before omission by Act 22 of 2007, stood as under:

“(i) in a free trade zone or a special economic zone and brought to any other place in India; or”.

7. Subs. by Act 14 of 2001, sec. 120, for “allowed to be sold in India” (w.e.f. 11-5-2001).

8. Subs. by Act 10 of 2000, sec. 92, for “under section 12 of the Customs Act, (52 of 1962)” (w.r.e.f. 11-5-1982).

9. Subs. by Act 10 of 2000, sec. 92, for Explanation 1 (w.r.e.f. 11-5-1982).

10. Subs. by Act 21 of 1984, sec. 45, for Explanation 2 (w.e.f. 11-5-1984).

11. Clause (i) omitted by Act 22 of 2007, sec. 115(ii)(a) (w.e.f. 11-5-2007). Earlier clause (i) was substituted by Act 20 of 2002, sec. 133(ii)(b) (w.e.f. 11-5-2002). Clause (i), before omission by Act 22 of 2007, stood as under:

“(i) “free trade zone” means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf;”.

12. Subs. by Act 22 of 2007, sec. 115(ii)(b), for clause (iii) (w.e.f. 11-5-2007). Earlier clause (iii) was inserted by Act 14 of 2001, sec. 120 (w.e.f. 11-5-2001). Clause (iii), before substitution by Act 22 of 2007, stood as under:

“(iii) “special economic zone” means a zone which the Central Government may, by notification in the Official Gazette, specify in this behalf.”.

13. Subs. by Act 30 of 1963, sec. 3, for sub-section (1A) (w.e.f. 1-10-1963). Earlier sub-section (1A) was inserted by Act 45 of 1951, sec. 6 (w.e.f. 27-8-1951).

14. Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999). Earlier they were substituted by Act 5 of 1986, sec. 4, for “the First Schedule” (w.e.f. 28-2-1986).

15. Subs. by Act 25 of 1978, sec. 19, for sub-section (3) (w.e.f. 1-7-1978).

16. Section 3A omitted by Act 14 of 2001, sec. 121 (w.e.f. 11-5-2001). Earlier section 3A was inserted by Act 81 of 1956, sec. 2 (w.e.f. 22-12-1956) and was repealed by Act 58 of 1960,

sec. 2 and Sch. I (w.e.f. 26-12-1960) and again inserted by Act 26 of 1997, sec. 81 (w.e.f. 14-5-1997).

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 it 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, provide for determination of the annual capacity of production, or such factor or factors relevant to the annual capacity of production of the factory in which such goods are produced, by the 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, the production thereof shall be calculated on proportionate basis of the annual capacity of production.

(3) The duty of excise on notified goods shall be levied, at such rate 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 not less than seven days, 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) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under sub-section (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in sub-section (3).

(5) Where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, if any, shall be adjusted against the duty so redetermined and if the duty already paid falls short of, or is in excess of, the duty so redetermined, the assessee shall pay the deficiency or be entitled to a refund, as the case may be.

(6) The provisions of this section shall not apply to goods produced or manufactured, –

(i) in a free trade zone and brought to any other place in India; or

(ii) by a hundred per cent export-oriented undertaking and allowed to be sold 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 13a the First Schedule and Second Schedule 13a to the Central Excise Tariff Act, 1985 (5 of 1986), read with any notification for the time being in force.

Explanation 2 : For the purposes of this section the expressions “free trade zone” and “hundred per cent export-oriented undertaking” shall have the meanings assigned to them in section 3. 24

4. VALUATION OF EXCISABLE GOODS FOR PURPOSES OF CHARGING OF DUTY OF EXCISE.

1[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 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.

2[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 purposes 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 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” shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (64 of 1969); and

(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 on premises wherein the excisable goods have been permitted to be deposited without 3[payment of duty;]

4[(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;

4[(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.]

Comments

Assessment of value of goods

If a higher discount on goods sold to stockists and a lower discount on goods sold to sub-stockists is allowed and the differential discount is passed on to the stockists then differential discount is not deductible in assessing the value of goods to sub-stockists; Escorts Ltd. v. Collector of Central Excise, Chandigarh, (2003) 4 SCC 285.

Basis of excise duty

Under the Central Excise Act, excise duty is chargeable on the value of the goods. The Value is the normal price, i.e., the price at which such goods are ordinarily sold by the assessee to a buyer, where the buyer is not related person and the price is the sole consideration for sale; Tata Iron & Steel Co. Ltd. v. Collector of Central Excise, AIR 2003 SC 144.

The mere fact of making an interest free advance by a buyer to the manufacturer, by itself will not be a sufficient ground to reload the assessable value with notional interest. It would be necessary for the revenue to show that such advance has influenced in the lowering of the price and that it is not depicting the normal price of the goods; Commr. of Central Excise v. I.S.P. Industries Ltd., 2003 AIR SCW 2264

Freight and insurance charges upto depot would be includible in assessable value for purposes of excise; Prabhat Zarda Factory Limited v. Commissioner of Central Excise, 2002 (146) ELT 497 (SC).

Show-cause notice

If all the requirements of clause (a) are fulfilled but the allegations in show-cause notice proceeded on the basis as if clause (b) was applicable, the authorities lacks jurisdiction to issue show-cause notice; Union of India v. Hindalco Industries, (2003) 5 SCC 194.

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1. Subs. by Act 10 of 2000, sec. 94 , for section 4 (w.e.f. 1-4-2000). Earlier section 4 was substituted by Act 22 of 1973, sec. 2 (w.e.f. 1-10-1975).

2. Ins. by Act 32 of 2003, sec. 136 (w.e.f. 14-5-2003).

3. Subs. by Act 32 of 2003, sec. 136, for “payment of duty,” (w.e.f. 14-5-2003).

4. Ins. by Act 32 of 2003, sec. 136 (w.e.f. 14-5-2003).

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 Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made there under 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.

2[(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.]

—————

1. Ins. by Act 26 of 1997, sec. 82 (w.e.f. 14-5-1997).

2. Subs. by Act 32 of 2003, sec. 137, for sub-section (4) (w.e.f. 14-5-2003). Earlier sub-section (4) was inserted by Act 27 of 1999, sec. 122 (w.e.f. 11-5-1999).

5. REMISSION OF DUTY ON GOODS FOUND DEFICIENT IN QUANTITY.

1[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 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.]

Comments

Benefit of exemption

The benefit of exemption will accrue to a unit found to be a small scale industrial unit from the date on which the application was made for grant of registration certificate; Commissioner of Central Excise v. M.P.V. & Engg. Industries, AIR 2003 SCW 2108.

When goods become exempted goods

It cannot be said that merely because goods were included in the table, they became exempted goods. The goods became exempted goods only provided all conditions of the Notification are fulfilled. If any condition of the Notification is not fulfilled, goods are not exempted goods; Union of India v. Ganesh Metal Processors Industries, 2003 (151) ELT 21 (SC).

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1. Ins. by Act 25 of 1978, sec. 20 (w.e.f. 1-7-1978). Earlier section 5 was omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

5A. POWER TO GRANT EXEMPTION FROM DUTY OF EXCISE.

1[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 2[free trade zone 3[or a special economic zone]] and brought to any other place in India; or

(ii) by a hundred per cent. export-oriented undertaking and 4[brought to any other place in India].

Explanation.—In this proviso,2[“free trade zone” 3[,“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.

5[(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.]

6[(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.]

7[(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 Excise Laws (Amendment) Act, 1987 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.]

8[(5) Every notification issued under sub-section (1) 9[or sub-section (2A)] 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.]

———-

1. Ins. by Act 29 of 1988, sec. 9 (w.e.f. 19-5-1988).

2. Subs. by Act 14 of 2001, sec. 122, for “free trade zone” (w.e.f. 11-5-2001).

3. The words “or a special economic zone” shall stand omitted with effect from such date as may be appointed by the Central Government, vide Act 20 of 2002, sec. 134.

4. Subs. by Act 14 of 2001, sec. 122, for “allowed to be sold in India” (w.e.f. 11-5-2001).

5. Ins. by Act 18 of 2005, sec. 75 (w.e.f. 13-5-2005).

6. Subs. by Act 32 of 2003, sec. 138, for sub-section (2) (w.e.f. 14-5-2003). Earlier sub-section (2) was substituted by Act 27 of 1999, sec. 123 (w.e.f. 11-5-1999).

7. Ins. by Act 20 of 2002, sec. 134.

8. Ins. by Act 21 of 1998, sec. 106 (w.e.f. 1-8-1998).

9.Ins. by Act 20 of 2002, sec. 134 (w.e.f. 11-5-2002).

5B. Non-reversal of CENVAT credit.

1[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.]

—————

1. Ins. by the Finance Act, 2007.

6. REGISTRATION OF CERTAIN PERSONS.

1 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 2the 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 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.

Comments

Stock registers when not maintained The appellants had not maintained required stock registers thereby they contravened section 6 of the Act; Shalimar Rubber Industries v. Collector of Central Excise, Cochin, AIR 2003 SC 237.

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1. Subs. by Act 18 of 1992, sec. 113 (w.e.f. 14-5-1992).

2. Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999).

7. Form and Conditions of licence.—

[Rep. by the Finance Act, 1992 (18 of 1992), sec. 113 (w.e.f. 14-5-1992).]

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 1[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.

—————

1. Subs. by Act 18 of 1956, sec. 34, for certain words (w.e.f. 27-4-1956).

9. OFFENCES AND PENALTIES

1(1) Whoever commits any of the following offences, namely : –

2(a) 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;

(b) Evades the payment of any duty payable under this Act;

3(bb) Removes any excisable goods in contravention of any of the provisions of this Act or any rules made there under or in any way concerns himself with such removal;

(bbb) 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;

4(bbbb) Contravenes any of the provisions of this Act or the rules made there under in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products;

(c) 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;

(d) Attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section;

5Shall be punishable, –

(i) In the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds one lakh 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.

6(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.

—————

1. Section 9 re-numbered as sub-section (1) of that section by Act 36 of 1973, sec. 20 (w.e.f. 1-9-1973).

2. Subs. by Act 18 of 1992, sec. 113, for clause (a) (w.e.f. 14-5-1992).

3. Ins. by Act 36 of 1973, sec. 20 (w.e.f. 1-9-1973).

4. Ins. by Act 21 of 1998, sec. 107 (w.e.f. 1-8-1998).

5. Subs. by Act 36 of 1973, sec. 20, for certain words (w.e.f. 1-9-1973).

6. Ins. by Act 36 of 1973, sec. 20 (w.e.f. 1-9-1973).

9A. CERTAIN OFFENCES TO BE NON-COGNIZABLE.

1 CERTAIN OFFENCES TO BE NON-COGNIZABLE.

2(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898) 3, offences under section 9 shall be deemed to be non-cognizable within the meaning of that Code.

4[(2) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Chief Commissioner of Central Excise on payment, by the person accused of the offence to the Central Government, of such compounding amount as may be prescribed.]

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

2. Section 9A renumbered as sub-section (1) thereof by Act 23 of 2004, sec. 79 (w.e.f. 10-9-2004).

3. See now section 9 of the Code of Criminal Procedure, 1973 (2 of 1974).

4. Ins. by Act 23 of 2004, sec. 79 (w.e.f. 10-9-2004).

9AA. OFFENCES BY COMPANIES.

1OFFENCES 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 any body corporate and includes a firm or other association of individuals; and

(b) “Director” in relation to a firm means a partner in the firm.

—————

1. Ins. by Act 79 of 1985, sec. 2 (w.e.f. 27-12-1985).

9B. POWER OF COURT TO PUBLISH NAME, PLACE OF BUSINESS, ETC., OF PERSONS CONVICTED UNDER THE ACT. –

1POWER 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.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

9C. PRESUMPTION OF CULPABLE MENTAL STATE.

1PRESUMPTION 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.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

9D. RELEVANCY OF STATEMENTS UNDER CERTAIN CIRCUMSTANCES .

1 RELEVANCY OF STATEMENTS UNDER CERTAIN CIRCUMSTANCES .

(1) A statement made and signed by a person before any Central Excise Officer of a gazetted 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.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

9E. APPLICATION OF SECTION 562 OF THE CODE OF CRIMINAL PROCEDURE, 1898, AND OF THE PROBATION OF OFFENDERS ACT, 1958.

1APPLICATION 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 47 (5 of 1898)2, 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.

—————

1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).

2. See now the relevant provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

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.

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, 1[including the amount required to be paid to the credit of the Central Government under section 11D] the officer empowered by the 2[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 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 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]:

3[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 busniess 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 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.]

—————

1. Ins. by Act 10 of 2000, sec. 96 (w.e.f. 12-5-2000).

2. Subs. by Act 54 of 1963, sec. 5, for “Central Board of Reve­nue” (w.e.f. 1-1-1964).

3. Ins. by Act 23 of 2004, sec. 80 (w.e.f. 10-9-2004).

11A. RECOVERY OF DUTIES NOT LEVIED OR NOT PAID OR SHORT-LEVIED OR SHORT-PAID OR ERRONEOUSLY REFUNDED.

1[11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.—(1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or 2[erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder], a Central Excise Officer may, within 3[one year] from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been 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:

Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, 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, by such person or his agent, the provisions of this sub-section shall have effect, 4[as if 5[***]] for the words 6[“one year”], the words “five years” were substituted:

7[***]

Explanation.—Where the service of the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing the aforesaid period of 7[one year] or five years, as the case may be.

8[(1A) When any duty of excise has not been levied or paid or has been short-levied or short paid or erroneously refunded, by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, by such person or his agent, to whom a notice is served under the proviso to sub-section (1) by the Central Excise Officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 11AB and penalty equal to twenty-five per cent. of the duty specified in the notice or the duty so accepted by such person within thirty days of the receipt of the notice.]

(2) 9[10[Central Excise Officer]] shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise 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:

8[Provided that if such person has paid the duty in full together with, interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notice is served under sub-section (1) shall, without prejudice to the provisions of sections 9, 9A and 9AA, be deemed to be conclusive as to the matters stated therein:

Provided further that, if such person has paid duty in part, interest and penalty under sub-section (1A), the Central Excise Officer, shall determine the amount of duty or interest not being in excess of the amount partly due from such person.]

11[(2A) Where any notice has been served on a person under sub-section (1), the Central Excise Officer,—

(a) in case any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, by reason of fraud, 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, where it is possible to do so, shall determine the amount of such duty, within a period of one year; and

(b) in any other case, where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded, within a period of six months,

from the date of service of the notice on the person under sub-section (1).

(2B) Where any duty or excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty 12[on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a Central Excise Officer] before service of notice on him under sub-section (1) in respect of the duty, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the duty so paid:

Provided that the Central Excise Officer may determine the amount of short payment of duty, if any, which in his opinion has not been paid by such person and then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of “one year” referred to in sub-section (1) shall be counted from the date of receipt of such information of payment.

Explanation 1.—Nothing contained in this sub-section shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, 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.

Explanation 2.—For the removal of doubts, it is hereby declared that the interest under section 11AB shall be payable on the amount paid by the person under this sub-section and also on the amount of short-payment of duty, if any, as may be determined by the Central Excise Officer, but for this sub-section.

(2C) The provisions of sub-section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]

(3) For the purposes of this section—

(i) “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;

(ii) “relevant date” means,—

13[(a) 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—

(A) where under the rules made under this Act a periodical re­turn, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed;

(B) where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules;

(C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder;]

(b) 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;

(c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund.]

COMMENTS

Determination of amount

The officer on consideration of the representation, must determine the amount of duty due and thereupon the assessee is to pay the amount so determined; Lajya Dyeing & Bleaching Works. v. Union of India, (2003) 5 SCC 485.

Jurisdiction of Dy. Collector

Notice issued by Deputy Collector by invoking sec.11A for extended period, would be wholly without jurisdiction. Even for shorter period notice based on grounds contained in proviso could be issued only by Collector, Collector of Central Excise v. Oil and Natural Gas Commissions, AIR 1999 SC 2625.

Limitation

Mere failure or negligence on the part of the manufacturer in not taking out a licence and in not paying duty does not attract the extended period of limitation; Jaiprakash Industries Ltd. v. Commissioner of Central Excise, Chandigarh, AIR 2003 SC 349.

Show-cause notice

Where the show-cause notice under section 11A has been issued regarding the levy of duty within the extended period of limitation, no preliminary enquiry or preliminary decision is required unless there is serious dispute of facts in reply to show-cause notice; Union of India v. M/s. Maheshwari Woollen Mills, AIR 1993 SC 1251.

Where the purpose of show-cause notice is recovery of duties or charges short levied, etc., it must be issued within the prescribed period; Ballarpur Industries Ltd. v. Assistant Col­lector of Customs and Central Excises, AIR 1995 SC 1439.

Treatment of notice

Notice issued under proviso to sec. 11A for larger period. It cannot be treated as Notice under main sec.11A for shorter period of six months, Collector of Central Excise, Jaipur v. Alcobex Metals, AIR 2003 SCW 1925.

—————

1. Ins. by Act 25 of 1978, sec. 21 (w.e.f. 1-8-1978).

2. Subs. by Act 10 of 2000, sec. 97, for “erroneously refunded” (w.r.e.f. 17-11-1980).

3. Subs. by Act 10 of 2000, sec. 97, for “six-months” (w.e.f. 12-5-2000).

4. Subs. by Act 79 of 1985, sec. 3, for “as if” (w.e.f. 27-12-1985).

5. The words ‘for the words “Central Excise Officer”, the words “Collector of Central Excise”, and’ omitted by Act 18 of 1992, sec. 113 (w.e.f. 14-5-1992).

6. Ins. by Act 10 of 2000, sec. 97 (w.e.f. 12-5-2000).

7. Second and third provisos omitted by Act 32 of 2003, sec. 139 (w.e.f. 14-5-2003).

8. Ins. by Act 29 of 2006, sec. 35 (w.e.f. 13-7-2006).

9. Subs. by Act 79 of 1985, sec. 3, for “The Assistant Collector of Central Excise” (w.e.f. 27-12-1985).

10. Subs. by Act 18 of 1992, sec. 113, for “Assistant Collector of Central Excise or, as the case may be, the Collector of Central Excise” (w.e.f. 14-5-1992).

11. Ins. by Act 14 of 2001, sec. 123 (w.e.f. 11-5-2001).

12. Ins. by Act 32 of 2003, sec. 139 (w.e.f. 14-5-2003).

13. Subs. by Act 22 of 1995, sec. 72, for sub-clause (a) (w.e.f. 26-5-1995).

11AA. INTEREST ON DELAYED PAYMENT OF DUTY.

1[11AA. Interest on delayed payment of duty.—2[(1)] 3[Subject to the provisions contained in section 11AB, where a person] chargeable with duty determined under sub-section (2) of section 11A, fails to pay such duty within three months from the date of determination, he shall pay, in addition to the duty, interest 4[at such rate not below 5[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] on such duty from the date immediately after the expiry of the said period of three months till the date of payment of such duty:

Provided that where a person chargeable with duty determined under sub-section (2) of section 11A before the date on which the Finance Bill, 1995 receives the assent of the President, fails to pay such duty within three months from such date, then, such person shall be liable to pay interest under this section from the date immediately after three months from such date, till the date of payment of such duty.

Explanation 1.—Where the duty determined to be payable is reduced by the Commissioner (Appeals), Appellate Tribunal 6[, National Tax Tribunal] or, as the case may be, the Court, the date of such determination shall be the date on which an amount of duty is first determined to be pay­able.

Explanation 2.—Where the duty determined to be payable is in­creased or further increased by the Commissioner (Appeals), Appellate Tribunal 6[, National Tax Tribunal] or, as the case may be, the Court, the date of such determination shall be,—

(a) for the amount of duty first determined to be payable, the date on which the duty is so determined;

(b) for the amount of increased duty, the date of order by which the increased amount of duty is first determined to be payable;

(c) for the amount of further increase of duty, the date of order on which the duty is so further increased].

7[(2) The provisions of sub-section (1) shall not apply to cases where the duty becomes payable on and after the date on which the Finance Bill, 2001 receives the assent of the President.]

—————

1. Ins. by Act 22 of 1995, sec. 73 (w.e.f. 26-5-1995).

2. Section 11AA renumbered as sub-section (1) thereof by Act 14 of 2001, sec. 124 (w.e.f. 11-5-2001).

3. Subs. by Act 33 of 1996, sec. 75, for “Where a person” (w.e.f. 28-9-1996).

4. Subs. by Act 10 of 2000, sec. 98, for certain words (w.e.f. 12-5-2000).

5. Subs. by Act 20 of 2002, sec. 135, for “eighteen per cent.” (w.e.f. 11-5-2002).

6. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-2 (w.e.f. 28-12-2005).

7. Ins. by Act 14 of 2001, sec. 124 (w.e.f. 11-5-2001).

11AB. INTEREST ON DELAYED PAYMENT OF DUTY.

1[11AB. Interest on delayed payment of duty.—2[(1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person who is liable to pay duty as determined under sub-section (2), or has paid the duty under sub-section 2(B), of section 11A, shall, in addition to the duty, be liable to pay interest at such rate not below 3[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 date of the month succeeding the month in which the duty ought to have been paid under this Act, or from the date of such erroneous refund, as the case may be, but for the provisions contained in sub-section (2), or sub-section (2B), of section 11A till the date of payment of such duty:

Provided that in such cases where the duty becomes payable consequent to issue of an order, instruction or direction by the Board under section 37B, and such amount of duty 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 of the amount, including the amount already paid.]

4[(2) The provisions of sub-section (1) shall not apply to cases where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President.]

Explanation 1.— Where the duty determined to be payable is reduced by the Commissioner (Appeals), the Appellate Tribunal 5[, National Tax Tribunal] or, as the case may be, the Court, the interest shall be payable on such reduced amount of duty.

Explanation 2.—Where the duty determined to be payable is increased or further increased by the Commissioner (Appeals), the Appellate Tribunal 5[, National Tax Tribunal] or, as the case may be, the Court, the interest shall be payable on such increased or further increased amount of duty.]

—————

1. Ins. by Act 33 of 1996, sec. 76 (w.e.f. 28-9-1996).

2. Subs. by Act 14 of 2001, sec. 125, for sub-section (1) (w.e.f. 11-5-2001).

3. Subs. by Act 20 of 2002, sec. 136, for “eighteen per cent.” (w.e.f. 11-5-2002).

4. Subs. by Act 14 of 2001, sec. 125, for sub-section (2) (w.e.f. 11-5-2001).

5. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-3 (w.e.f. 28-12-2005).

11AC. PENALTY FOR SHORT-LEVY OR NON-LEVY OF DUTY IN CERTAIN CASES.

1[11AC. Penalty for short-levy or non-levy of duty in certain cases.—Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, 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 (2) of section 11A, shall also be liable to pay a penalty equal to the duty so determined:

2[Provided that where such duty as determined under sub-section (2) of section 11A, and the interest payable thereon under section 11AB, is paid within thirty days from the date of communication of the order of the Central Excise Officer determining such duty, the amount of penalty liable to be paid by such person under this section be twenty-five per cent. of the duty so determined:

Provided further that the benefit of reduced penalty under the first proviso shall be available if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso:

Provided also that where the duty determined to be payable is reduced or increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, for the purposes of this section, the duty, as reduced or increased, as the case may be, shall be taken into account:

Provided also that in case where the duty determined to be payable is increased by the Commissioner (Appeals), the Appellate Tribunal or, as the case may be, the Court, then, the benefit of reduced penalty under the first proviso shall be available, if the amount of duty so increased, the interest payable thereon and twenty-five per cent. of the consequential increase of penalty have also been paid within thirty days of the communication of the order by which such increase in the duty takes effect.

Explanation.—For the removal of doubts, it is hereby declared that—

(1) the provisions of this section shall also apply to cases in which the order determining the duty under sub-section (2) of section 11A relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President;

(2) any amount paid to the credit of the Central Government prior to the date of communication of the order referred to in the first proviso or the fourth proviso shall be adjusted against the total amount due from such person.]

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1. Ins. by Act 33 of 1996, sec. 76 (w.e.f. 28-9-1996).

2. Subs. by Act 10 of 2000, sec. 100, for the proviso (w.e.f. 12-5-2000).

11B. CLAIM FOR REFUND OF DUTY.

1[11B. Claim for refund of duty.—(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the 2[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of 3[one year] 4[from the relevant date] 5[6[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 in rela­tion to which such refund is claimed was collected from or paid by him and the incidence of 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 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of sub-section (2) as substituted by that Act:]

7[Provided further that] the limitation of 8[one year] shall not apply where any duty has been paid under protest.

9[***]

10[(2) If, on receipt of any such application, the 11[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise 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 as determined by the 11[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 current account maintained with the 12[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 paid by the manufacturer, if he had not passed on the incidence of such duty to any other person;

(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;

(f) the duty of excise 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 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 of any Court 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.]

13[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;

14[(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;]

15[(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;]

16[(eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;]

17[(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.]

Comment

The claim for refund of excess duty paid under protest falls under section 11B, but application should be made after finalisation of assessment; Commissioner of Central Excise, Mumbai-II v. Allied Photographics India Ltd., (2004) 4 SCC 34.

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1. Ins. by Act 25 of 1978, sec. 21 (w.e.f. 17-11-1980).

2. Subs. by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995) and again subs. by Act 27 of 1999, sec. 119, for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999).

3. Subs. by Act 10 of 2000, sec. 101, for “six months” (w.e.f. 12-5-2000).

4. Ins. by Act 44 of 1980, sec. 49, for “from the date of pay­ment of duty” (w.e.f. 21-8-1980).

5. Ins. by Act 40 of 1991, sec. 3 (w.e.f. 20-9-1991).

6.Subs. by Act 22 of 1995, sec. 74, for “in such form” (w.e.f. 26-5-1995).

7. Subs. by Act 40 of 1991, sec. 3, for “Provided that” (w.e.f. 20-9-1991).

8. Subs. by Act 10 of 2000, sec. 101, for “six months” (w.e.f. 12-5-2000).

9. Explanation omitted by Act 44 of 1980, sec 49 (w.e.f. 21-8-1980).

10. Subs. by Act 40 of 1991, sec. 3, for sub-sections (2) to (5) (w.e.f. 20-9-1991).

11. Subs. by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995) and again subs. by Act 27 of 1999, sec. 119, for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999).

12. Subs. by Act 22 of 1995, 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

13. Subs. by Act 44 of 1980, sec. 49, for Explanation (w.e.f. 21-8-1980).

14. Subs. by Act 40 of 1991, sec. 3, for sub-clause (e) (w.e.f. 20-9-1991).

15. Ins by Act 33 of 1996, sec. 77 (w.e.f. 28-9-1996).

16. Ins. by Act 21 of 1998, sec. 108 (w.e.f. 1-8-1998).

17. Ins. by Act 22 of 2007, sec. 117 (w.e.f. 11-5-2007).

11BB. INTEREST ON DELAYED REFUNDS. –

1INTEREST 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, 2not below ten per cent and not exceeding thirty per cent per annum as is for the time being fixed 3by the Board, 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 4[,National Tax Tribunal] or any court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate 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.

Comments

Adjustment entry

Where an assessee maintains a personal ledger account, duty is paid by way of debit therein and goes to reduce the amount of deposit paid by the assessee. It is not a mere adjustment entry; it is effective payment; Samrat International (P) Ltd. v. Collector of Central Excise, AIR 1991 SC 369.

Scope

Section 11B is an independent section under which appellant would be entitled to work out his claim for refund notwithstanding the fact that the appellant has not chosen to file the appeal against the RT 12 assessment of the Superintend­ent of Central Excise; Bharat Earth Movers Ltd. v. Collector of Central Excise, 1991 (52) ELT 600 (Tribunal).

Section 11B does not only apply prospectively but also retrospectively to the pending cases in which refund has been claimed; Union of India v. I.T.C. Limited, AIR 1993 SC 2135.

—————

1. Ins. by Act 22 of 1995, sec. 75 (w.e.f. 26-5-1995).

2. Subs. by Act 14 of 2001, sec. 126, for “not below ten per cent.” (w.e.f. 11-5-2001).

3. Subs. by Act 10 of 2000, sec. 102, for “by the Board” (w.e.f. 12-5-2000)

4. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-4 (w.e.f. 28-12-2005).

11C. POWER NOT TO RECOVER DUTY OF EXCISE NOT LEVIED OR SHORT-LEVIED AS A RESULT OF GENERAL PRACTICE.

1POWER NOT TO RECOVER DUTY OF EXCISE NOT LEVIED OR SHORT-LEVIED AS A RESULT OF GENERAL PRACTICE.

2(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 74 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.

3(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 4Assistant 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.

—————

1. Ins. by Act 25 of 1978, sec. 21 (w.e.f. 1-7-1978).

2. Section 11C renumbered as sub-section (1) thereof by Act 29 of 1988, sec. 10 (w.e.f. 1-7-1988).

3. Subs. by Act 40 of 1991, sec. 4, for sub-section (2) (w.e.f. 20-9-1991). Earlier sub-section (2) was inserted by Act 29 of 1988, sec. 10 (w.e.f. 1-7-1988).

4. Subs. by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995).

11D. DUTIES OF EXCISE COLLECTED FROM THE BUYER TO BE DEPOSITED WITH THE CENTRAL GOVERNMENT.

1[ 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, 2[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.

3[(2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) 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) of sub-section (3) 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).

(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.]

—————

1. Ins. by Act 40 of 1991, sec. 5 (w.e.f. 20-9-1991).

2. Subs. by Act 10 of 2000, sec. 103, for certain words (w.r.e.f. 20-9-1991).

3. Subs. by Act 10 of 2000, sec. 103, for sub-section (2) (w.r.e.f. 20-9-1991).

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, 79 declare thatany of the provisions of the 1Customs 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.

—————

1. Subs. by Act 33 of 1996, sec. 78, for “Sea Customs Act, 1878 (8 of 1878)” (w.e.f. 28-9-1996).

12A. PRICE OF GOODS TO INDICATE THE AMOUNT OF DUTY PAID THEREON.

* PRICE OF GOODS TO INDICATE THE AMOUNT OF DUTY PAID THEREON.

Notwithstanding anything contained in this Act or any other law for the time being in force, every person who is liable to pay duty of excise on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents relating to assessment, sales invoice, and other like documents, the amount of such duty which will form part of the price at which such goods are to be sold.

—————

* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

12B. PRESUMPTION THAT THE INCIDENCE OF DUTY HAS BEEN PASSED ON TO THE BUYER.

Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.

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* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

12C. CONSUMER WELFARE FUND.

*12C. Consumer Welfare Fund.—(1) There shall be established by the Central Government a fund, to be called the Consumer Welfare Fund.

(2) There shall be credited to the Fund, in such manner as may be prescribed,—

(a) the amount of duty of excise referred to in sub-section (2) of section 11B or sub-section (2) of section 11C or sub-section (2) of section 11D;

(b) the amount of duty of customs referred to in sub-section (2) of
section 27 or sub-section (2) of section 28A, or sub-section (2) of section 28B of the Customs Act, 1962 (52 of 1962);

(c) any income from investment of the amount credited to the Fund and any other monies received by the Central Government for the purposes of this Fund.

1[(d) the surplus amount referred to in sub-section (6) of section 73A of the Finance Act, 1994.]

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* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

1. Ins. by Act 21 of 2006, sec. 64 (w.e.f. 18-4-2006).

12D. UTILISATION OF THE FUND.

*UTILISATION OF THE FUND.

(1) Any money credited to the Fund shall be utilised by the Central Government for the welfare of the consumers in accordance with such rules as that Government may make in this behalf.

(2) The Central Government shall maintain or, if it thinks fit, specify the authority which shall maintain, proper and separate account and other relevant records in relation to the Fund in such form as may be prescribed in consultation with the Comptroller and Auditor-General of India.

* Chapter IIA (containing sections 12A to 12D) ins. by Act 40 of 1991, sec. 6 (w.e.f. 20-9-1991).

12E. POWERS OF CENTRAL EXCISE OFFICERS.

1[2[12E]POWERS OF CENTRAL EXCISE OFFICERS.

(1) A Central Excise Officer may exercise the powers and discharge the duties conferred or imposed under this Act on any other Central Excise Officer who is subordinate to him.

(2) Notwithstanding anything contained in sub-section (1), the Commissioner of Central Excise (Appeals) shall not exercise the powers and discharge the duties conferred or imposed on a Central Excise Officer other than those specified in section 14 or Chapter VIA.

—————

1. Section 12A ins. by Act 79 of 1985, sec. 4 (w.e.f. 27-12-1985).

2. Section 12A renumbered as section 12E by Act 40 of 1991, sec. 7 (w.e.f. 20-9-1991).

13. POWER TO ARREST.

1[13. Power to arrest.—Any Central Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Commissioner of Central Excise, arrest any person whom he has reason to believe to be liable to punishment under this Act or the rules made thereunder.]

—————

1. Subs. by Act 32 of 2003, sec. 141, for section 13 (w.e.f. 14-5-2003).

14. POWER TO SUMMON PERSONS TO GIVE EVIDENCE AND PRODUCE DOCUMENTS IN INQUIRIES UNDER THIS ACT.

(1) Any Central Excise Officer duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.

(2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required :

Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions for attendance under this section.

(3) Every such inquiry as aforesaid shall be deemed to be a “judicial proceeding” within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).

14A. SPECIAL AUDIT IN CERTAIN CASES.

1SPECIAL AUDIT IN CERTAIN CASES.

(1) If at any stage of enquiry, investigation or any other proceedings before him, any Central Excise Officer not below the rank of an Assistant Commissioner of Central Excise, having regard to the nature and complexity of the case and the interest of revenue, is of the opinion that the value has not been correctly declared or determined by a manufacturer or any person, he may, with the previous approval of the Chief Commissioner of Central Excise, direct such manufacturer or such person to get the accounts of his factory, office, depots, distributors or any other place, as may be specified by the said Central Excise Officer, audited by a cost accountant, nominated by the Chief Commissioner of Central Excise in this behalf.

(2) The cost accountant, so nominated shall, within the period specified by the Central Excise Officer, submit a report of such audit duly signed and certified by him to the said Central Excise Officer mentioning therein such other particulars as may be specified :

Provided that the Central Excise Officer may, on an application made to him in this behalf by the manufacturer or the person and for any material and sufficient reason, extend the said period by such further period or periods as he thinks fit; so, however, that the aggregate of the period originally fixed and the period or periods so extended shall not, in any case, exceed one hundred and eighty days from the date on which the direction under sub-section (1) is received by the manufacturer or the person.

(3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the manufacturer or person aforesaid have been audited under any other law for the time being in force or otherwise.

(4) The expenses of, and incidental to, such audit (including the remuneration of the cost accountant) shall be determined by the Chief Commissioner of Central Excise (which determination shall be final) and paid by the manufacturer or person and in default of such payment, shall be recoverable from the manufacturer or the person in the manner provided in section 11 for the recovery of sums due to the Government.

2[***]

(5) The manufacturer or the person shall be given an opportunity of being heard in respect of any material gathered on the basis of audit under sub-section (1) and proposed to be utilised in any proceedings under this Act or rules made there under.

Explanation : For the purpose of this section, “cost accountant” shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).

—————

1. Ins. by Act 22 of 1995, sec. 76 (w.e.f. 26-5-1995).

2. Sub-section (4) omitted by Act 10 of 2000, sec. 104 (w.e.f. 12-5-2000).

14AA. SPECIAL AUDIT IN CASES WHERE CREDIT OF DUTY AVAILED OR UTILISED IS NOT WITHIN THE NORMAL LIMITS, ETC.

1SPECIAL AUDIT IN CASES WHERE CREDIT OF DUTY AVAILED OR UTILISED IS NOT WITHIN THE NORMAL LIMITS, ETC.

(1) If the Commissioner of Central Excise has reason to believe that the credit of duty availed of or utilised under the rules made under this Act by a manufacturer of any excisable goods –

(a) Is not within the normal limits having regard to the nature of the excisable goods produced or manufactured, the type of inputs used and other relevant factors, as he may deem appropriate;

(b) Has been availed of or utilised by reason of fraud, collusion or any willful mis-statement or suppression of facts,

He may direct such manufacturer to get the accounts of his factory, office, depot, distributor or any other place, as may be specified by him, audited by a cost accountant nominated by him.

(2) The cost accountant so nominated shall, within the period specified by the Commissioner of Central Excise, submit a report of such audit duly signed and certified by him to the said Commissioner mentioning therein such other particulars as may be specified.

(3) The provisions of sub-section (1) shall have effect notwithstanding that the accounts of the said manufacturer aforesaid have been audited under any other law for the time being in force or otherwise.

(4) The expenses of, and incidental to, such audit (including the remuneration of the cost accountant) shall be determined by the Commissioner of Central Excise (which determination shall be final) and paid by the manufacturer and in default of such payment shall be recoverable from the manufacturer in the manner provided in section 11 for the recovery of sums due to the Government.

2[***]

(5) The manufacturer shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilised in any proceeding under this Act or rules made there under.

Explanation : For the purpose of this section, “cost accountant” shall have the meaning assigned to it in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).

—————

1. Ins. by Act 26 of 1997, sec. 83 (w.e.f. 14-5-1997).

2. Sub-section (4) omitted by Act 10 of 2000, sec. 105 (w.e.f. 12-5-2000).

15. OFFICERS REQUIRED TO ASSIST CENTRAL EXCISE OFFICERS.

All officers of Police and Customs and all officers of Government engaged in the collection of land revenue, and all village officers are hereby empowered and required to assist the Central Excise Officers in the execution of this Act.

16. OWNERS OR OCCUPIERS OF LAND TO REPORT MANUFACTURE OF CONTRABAND EXCISABLE GOODS.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 137 (w.e.f. 11-5-2002).]

17. PUNISHMENT FOR CONNIVANCE AT OFFENCES.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 137 (w.e.f. 11-5-2002).]

18. SEARCHES AND ARRESTS HOW TO BE MADE.

All searches made under this Act or any rules made there under and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898) 1, 85 relating respectively to searches and arrests made under that Code.

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1. See now the Code of Criminal Procedure, 1973 ( 2 of 1974).

19. DISPOSAL OF PERSONS ARRESTED.

Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer 86 empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officer-in-charge of the nearest police station.

20. PROCEDURE TO BE FOLLOWED BY OFFICER-IN-CHARGE OF POLICE STATION.

The officer-in-charge of a police station to whom any person is forwarded under section 19 shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail forward him in custody to such Magistrate.

21. INQUIRY HOW TO BE MADE BY CENTRAL EXCISE OFFICERS AGAINST ARRESTED PERSONS FORWARDED TO THEM UNDER SECTION 19.

(1) When any person is forwarded under section 19 to a Central Excise Officer empowered 82a to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to enquire into the charge against him.

(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898)1, when investigating a cognizable case :

Provided that –

(a) If the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate;

(b) If it appears to the Central Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the Central Excise Officer may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior.

—————

1. See now the Code of Criminal Procedure, 1973 ( 2 of 1974).

22. VEXATIOUS SEARCH, SEIZURE, ETC., BY CENTRAL EXCISE OFFICER.

Any Central Excise or other officer exercising powers under this Act or under the rules made there under who –

(a) without reasonable ground of suspicion searches or causes to be searched any house, boat or place;

(b) vexatiously and unnecessarily detains, searches or arrests any person;

(c) vexatiously and unnecessarily seizes the movable property of any

person, on pretence of seizing or searching for any article liable to confiscation under this Act;

(d) commits, as such officer, any other act to the injury of any person, without having reason to believe that such act is required for the execution of his duty;

shall, for every such offence, be punishable with fine which may extend to two thousand rupees.

Any person willfully and maliciously giving false information and so causing an arrest or a search to be made under this Act shall be punishable with fine which may extend to two thousand rupees or with imprisonment for a term which may extend to two years or with both.

23. FAILURE OF CENTRAL EXCISE OFFICER IN DUTY.

Any Central Excise Officer who ceases or refuses to perform or withdraws himself from the duties of his office, unless he has obtained the express written permission of the 1Commissioner of Central Excise, or has given to his superior officer two months’ notice in writing of his intention or has other lawful excuse, shall on conviction before a Magistrate be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to three months’ pay, or with both.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

24. PENALTIES FOR CARRYING EXCISABLE GOODS IN CERTAIN VESSELS.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

25. EXCEPTIONS.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

26. POWER OF STOPPAGE, SEARCH AND ARREST.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

27. PENALTIES FOR RESISTING OFFICER. –

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

28. CONFISCATION OF VESSEL AND CARGO. –

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

29. JURISDICTION. –

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f.11-5-2002.]

30. POWER TO EXEMPT FROM OPERATION OF THIS CHAPTER.

[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]

31. DEFINITIONS. – IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE REQUIRES, –

1[31. Definitions.—In this Chapter, unless the context otherwise requires,—

(a) “assessee” means any person who is liable for payment of excise duty assessed under this Act or any other Act and includes any producer or manufacturer of excisable goods or a registered person under the rules made under this Act, of a private warehouse in which excisable goods are stored;

(b) “Bench” means a Bench of the Settlement Commission;

2[(c) “case” means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, pending before an adjudicating authority on the date on which an application under sub-section (1) of section 32E is made:

Provided that when any proceeding is referred back in any appeal or revision, as the case may be, by any court, Appellate Tribunal or any other authority, to the adjudicating authority for a fresh adjudication or decision, as the case may be, then such proceeding shall not be deemed to be a proceeding pending within the meaning of this clause;]

(d) “Chairman” means the Chairman of the Settlement Commission;

(e) “Commissioner (Investigation)” means an officer of the customs or a Central Excise Officer appointed as such Commissioner to conduct inquiry or investigation for the purposes of this Chapter;

(f) “Member” means a Member of the Settlement Commission and includes the Chairman and the Vice-Chairman;

(g) “Settlement Commission” means the Customs and Central Excise Settlement Commission constituted under section 32; and

(h) “Vice-Chairman” means a Vice-Chairman of the Settlement Commission. ]

——– —-

1. Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f.1-8-1998). Earlier Chapter V (containing sections 31 to 32) was omitted by Act 33 of 1996, sec. 79 (w.e.f. 28-9-1996).

2.Subs. by Act 22 of 2007, sec. 119, for clause (c) (w.e.f. 1-6-2007). Clause (c), before substitution, stood as under:

‘(c) “case” means any proceeding under this Act or any other Act for the levy, assessment and collection of excise duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a Central Excise Officer or Central Government on the date on which an application under sub-section (1) of section 32E is made:

Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding pending within the meaning of this clause;’.

32. CUSTOMS AND CENTRAL EXCISE SETTLEMENT COMMISSION. –

(1) The Central Government shall, by notification in the Official Gazette, constitute a Commission to be called the Customs and Central Excise Settlement Commission for the settlement of cases under this Chapter and Chapter XIVA of the Customs Act, 1962 (52 of 1962).

(2) The Settlement Commission shall consist of a Chairman and as many Vice-Chairmen and other Members as the Central Government thinks fit and shall function within the Department of the Central Government dealing with Customs and Central Excise matters.

(3) The Chairman, Vice-Chairman and other Members of the Settlement

Commission shall be appointed by the Central Government from amongst persons of integrity and outstanding ability, having special knowledge of, and experience in, administration of customs and central excise laws :

Provided that, where a member of the Board is appointed as the Chairman, Vice-Chairman or as a Member of the Settlement Commission, he shall cease to be a member of the said Board.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

32A. JURISDICTION AND POWERS OF SETTLEMENT COMMISSION. –

1JURISDICTION AND POWERS OF SETTLEMENT COMMISSION.

(1) Subject to the other provisions of this Chapter, the jurisdiction, powers and authority of the Settlement Commission may be exercised by Benches thereof.

(2) Subject to the other provisions of this section, a Bench shall be presided over by the Chairman or a Vice-Chairman and shall consist of two other Members.

(3) The Bench for which the Chairman is the presiding officer shall be the principal Bench and other Benches shall be known as additional Benches.

(4) Notwithstanding anything contained in sub-section (1) and sub-section

(2), the Chairman may authorise the Vice-Chairman or other Member appointed to one Bench to discharge also the functions of the Vice-Chairman or, as the case may be, other Member of another Bench.

(5) The principal Bench shall sit at Delhi and the Central Government shall, by notification in the Official Gazette, establish additional Benches at such places as it considers necessary.

(6) Notwithstanding anything contained in the foregoing provisions of this section, and subject to any rules that may be made in this behalf, when one of the persons constituting a Bench (whether such person be the presiding officer. or other Member of the Bench) is unable to discharge his functions owing to absence, illness or any other cause or in the event of the occurrence of any vacancy either in the office of the presiding officer or in the office of one or the other Members of the Bench, the remaining Members may function as the Bench and if the presiding officer of the Bench is not one of the remaining Members, the senior among the remaining Members shall act as the presiding officer of the Bench :

2Provided that if at any stage of the hearing of any such case or matter, it appears to the presiding officer that the case or matter is of such a nature that it ought to be heard of by a Bench consisting of three Members, the case or matter may be referred by the presiding officer of such Bench to the Chairman for transfer to such Bench as the Chairman may deem fit.

(7) Notwithstanding anything contained in the foregoing provisions of this section, the Chairman may, for the disposal of any particular case, constitute a special Bench consisting of more than three Members.

(8) Subject to the other provisions of this Chapter, the special Bench shall sit at a place to be fixed by the Chairman.

——– —-

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998). Earlier Chapter V (containing sections 31 to 32) was omitted by Act 33 of 1996, sec. 79 (w.e.f. 28-9-1996).

2.Ins. by Act 22 of 2007, sec. 120 (w.e.f. 11-5-2007).

32B. VICE-CHAIRMAN TO ACT AS CHAIRMAN OR TO DISCHARGE HIS FUNCTIONS IN CERTAIN CIRCUMSTANCES. –

(1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the Vice-Chairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Chapter to fill such vacancy, enters upon his office.

(2) When the Chairman is unable to discharge his functions’ owing to absence, illness or any other cause, the Vice-Chairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

32C. POWER OF CHAIRMAN TO TRANSFER CASES FROM ONE BENCH TO ANOTHER. –

On the application of the assessee or the Chief Commissioner or Commissioner of Central Excise and after giving notice to them, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to another Bench.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

32D. DECISION TO BE BY MAJORITY. –

*32D. Decision to be by majority.—If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Settlement Commission and such point or points shall be decided according to the opinion of the majority of the Members of the Settlement Commission who have heard the case, including those who first heard it.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

32E. APPLICATION FOR SETTLEMENT OF CASES. –

1[32E. Application for settlement of cases.—2[(1) An assessee may, in respect of a case relating to him, make an application, before adjudication, to the Settlement Commission to have the case settled, in such form and in such manner as may be prescribed and containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification, under-valuation, inapplicability of exemption notification or CENVAT credit but excluding the goods in respect of which no proper record has been maintained by the assessee in his daily stock register and any such application shall be disposed of in the manner hereinafter provided:

Provided that no such application shall be made unless,— (a) the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner;

(b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant;

(c) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and

(d) the applicant has paid the additional amount of excise duty accepted by him along with interest due under section 11AB:

Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any Court:

Provided also that no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986).

(1A) Notwithstanding anything contained in sub-section (1), where an application was made under sub-section (1), before the 1st day of June, 2007 but an order under sub-section (1) of section 32F has not been made before the said date or payment of amount so ordered by the Settlement Commission under sub-section (1) of section 32F has not been made, the applicant shall within a period of thirty days from the 1st day of June, 2007, pay the accepted duty liability failing which his application shall be liable to be rejected.]

(2) Where any excisable goods, books of account, other documents have
been seized under the provisions of this Act or rules made thereunder,
the assessee shall not be entitled to make an application under sub-section (1), before the expiry of one hundred and eighty days from the date of the seizure.

(3) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed.

(4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant.]

——– —-

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998). Earlier Chapter V (containing ections 31 to 32) was omitted by Act 33 of 1996, sec. 79 (w.e.f. 28-9-1996).

2. Subs. by Act 22 of 2007, sec. 121, for sub-section (1) (w.e.f. 1-6-2007). Earlier sub-section (1) was amended by Act 10 of 2000, sec. 106 (w.e.f. 12-5-2000). Sub-section (1), before substitution by Act 22 of 2007, stood as under:

“(1) An assessee may, at any stage of a case relating to him make an application in such form and in such manner as may be prescribed, and containing a full and true disclosure of his duty or liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification or otherwise of such excisable goods, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided:

Provided that no such application shall be made unless,—

(a) the applicant has filed returns showing production, clearance and central excise duty paid in the prescribed manner;

(b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant; and

(c) the additional amount of duty accepted by the applicant in this application exceeds two lakh rupees:

Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending with the Appellate Tribunal or any court:

Provided also that no application under this sub-section shall be made for the interpretation of the classification of excisable goods under the Central Excise Tariff Act, 1985 (5 of 1986).”

32F. PROCEDURE ON RECEIPT OF AN APPLICATION UNDER SECTION 32E. –

1[2[32F. Procedure on receipt of an application under section 32E.—(1) On receipt of an application under sub-section (1) of section 32E, the Settlement Commission shall, within seven days from the date of receipt of the application, issue a notice to the applicant to explain in writing as to why the application made by him should be allowed to be proceeded with, and after taking into consideration the explanation provided by the applicant, the Settlement Commission, shall, within a period of fourteen days from the date of the notice, by an order, allow the application to be proceeded with, or reject the application as the case may be, and the proceedings before the Settlement Commission shall abate on the date of rejection:

Provided that where no notice has been issued or no order has been passed within the aforesaid period by the Settlement Commission, the application shall be deemed to have been allowed to be proceeded with.

(2) A copy of every order under sub-section (1), shall be sent to the applicant and to the Commissioner of Central Excise having jurisdiction.

(3) Where an application is allowed or deemed to have been allowed to be proceeded with under sub-section (1), the Settlement Commission shall, within seven days from the date of order under sub-section (1), call for a report along with the relevant records from the Commissioner of Central Excise having jurisdiction and the Commissioner shall furnish the report within a period of thirty days of the receipt of communication from the Settlement Commission:

Provided that where the Commissioner does not furnish the report within the aforesaid period of thirty days, the Settlement Commission shall proceed further in the matter without the report of the Commissioner.

(4) Where a report of the Commissioner called for under sub-section (3) has been furnished within the period specified in that sub-section, the Settlement Commission may, after examination of such report, if it is of the opinion that any further enquiry or investigation in the matter is necessary direct, for reasons to be recorded in writing, the Commissioner (Investigation) within fifteen days of the receipt of the report, to make or cause to be made such further enquiry or investigation and furnish a report within a period of ninety days of the receipt of the communication from the Settlement Commission, on the matters covered by the application and any other matter relating to the case:

Provided that where the Commissioner (Investigation) does not furnish the report within the aforesaid period, the Settlement Commission shall proceed to pass an order under sub-section (5) without such report.

(5) After examination of the records and the report of the Commissioner of Central Excise received under sub-section (3), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (4), and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (3) or sub-section (4).

(6) An order under sub-section (5) shall not be passed in respect of an application filed on or before the 31st day of May, 2007, later than the 29th day of February, 2008 and in respect of an application made on or after the 1st day of June, 2007, after nine months from the last day of the month in which the application was made, failing which the settlement proceedings shall abate, and the adjudicating authority before whom the proceeding at the time of making the application was pending, shall dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made.

(7) Subject to the provisions of section 32A, the materials brought on record before the Settlement Commission shall be considered by the Members of the concerned Bench before passing any order under sub-section (5) and, in relation to the passing of such order, the provisions of section 32D shall apply.

(8) The order passed under sub-section (5) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective and in case of rejection contain the reasons therefor and it shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or misrepresentation of facts:

Provided that the amount of settlement ordered by the Settlement Commission shall not be less than the duty liability admitted by the applicant under section 32E.

(9) Where any duty, interest, fine and penalty payable in pursuance of an order under sub-section (5), is not paid by the assessee within thirty days of receipt of a copy of the order by him, the amount which remains unpaid, shall be recovered along with interest due thereon, as the sums due to the Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of section 11.

(10) Where a settlement becomes void as provided under sub-section (8), the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the date of the receipt of communication that the settlement became void.]]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Subs. by Act 22 of 2007, sec. 122, for section 32F (w.e.f. 1-6-2007). Section 32F, before substitution, stood as under:

“32F. Procedure on receipt of an application under section 32E.—(1) On receipt of an application under sub-section (1) of section 32E, the Settlement Commission shall call for a report from the Commissioner of Central Excise having jurisdiction and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application:

Provided that an application shall not be rejected under this sub-section, unless an opportunity has been given to the applicant of being heard:

Provided further that the Commissioner of Central Excise shall furnish such report within a period of one month of the receipt of the communication from the Settlement Commission, failing which it shall be presumed that the Commissioner of Central Excise has no objection to such application; but he may raise objections at the time of hearing fixed by the Settlement Commission for admission of the application and the date of such hearing shall be communicated by the Settlement Commission to the applicant and the Commissioner of Central Excise within a period not exceeding two months from the date of receipt of such application, unless the presiding officer of the Bench extends the time, recording the reasons in writing.

(2) A copy of every order under sub-section (1) shall be sent to the applicant and to the Commissioner of Central Excise having jurisdiction.

(3) Subject to the provisions of sub-section (4), the applicant shall within thirty days of the receipt of a copy of the order under sub-section (1) allowing the application to be proceeded with, pay the amount of additional duty admitted by him as payable and shall furnish proof of such payment to the Settlement Commission.

(4) If the Settlement Commission is satisfied, on an application made in this behalf by the assessee that he is unable for good and sufficient reasons to pay the amount referred to in sub-section (3), within the time specified in that sub-section, it may extend the time for payment of the amount which remains unpaid or allow payment thereof by instalments, if the assessee furnishes adequate security for the payment thereof.

(5) Where the additional amount of duty referred to in sub-section (3) is not paid by the assessee within the time specified or extended period, as the case may be, the Settlement Commission may direct that the amount which remains unpaid, together with simple interest at the rate of eighteen per cent. per annum or at the rate notified by the Central Board of Excise and Customs from time to time on the amount remaining unpaid, be recovered, as the sum due to Central Government by the Central Excise Officer having jurisdiction over the assessee in accordance with the provisions of section 11.

(6) Where an application is allowed to be proceeded with under sub-section (1), the Settlement Commission may call for the relevant records from the Commissioner of Central Excise having jurisdiction and after examination of such records, if the Settlement Commission is of the opinion that any further enquiry or investigation in the matter is necessary, it may direct the Commissioner (Investigation) to make or cause to be made such further enquiry or investigation and furnish a report on the matters covered by the application and any other matter relating to the case.

(7) After examination of the records and the report of the Commissioner of Central Excise received under sub-section (1), and the report, if any, of the Commissioner (Investigation) of the Settlement Commission under sub-section (6), and after giving an opportunity to the applicant and to the Commissioner of Central Excise having jurisdiction to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner of Central Excise and Commissioner (Investigation) under sub-section (1) or sub-section (6).

(8) Subject to the provisions of section 32A, the materials brought on record before the Settlement Commission shall be considered by the Members of the Bench concerned before passing any order under sub-section (7) and, in relation to the passing of such order, the provisions of section 32D shall apply.

(9) Every order passed under sub-section (7) shall provide for the terms of settlement including any demand by way of duty, penalty or interest, the manner in which any sums due under the settlement shall be paid and all other matters to make the settlement effective and shall also provide that the settlement shall be void if it is subsequently found by the Settlement Commission that it has been obtained by fraud, or misrepresentation of facts.

(10) Where any duty payable in pursuance of an order under sub-section (7) is not paid by the assessee within thirty days of the receipt of a copy of the order by him, then, whether or not the Settlement Commission has extended the time for payment of such duty or has allowed payment thereof by instalments, the assessee shall be liable to pay simple interest at the rate of eighteen per cent. per annum or at such other rate as notified by the Central Board of Excise and Customs on the amount remaining unpaid from the date of expiry of the period of thirty days aforesaid.

(11) Where a settlement becomes void as provided under sub-section (9) the proceedings with respect to the matters covered by the settlement shall be deemed to have been revived from the stage at which the application was allowed to be proceeded with by the Settlement Commission and the Central Excise Officer having jurisdiction may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the date of the receipt of communication that the settlement became void.”

32G. POWER OF SETTLEMENT COMMISSION TO ORDER PROVISIONAL ATTACHMENT TO PROTECT REVENUE. –

(1) Where, during the pendency of any proceeding before it, the Settlement Commission is of the opinion that for the purpose of protecting the interests of revenue it is necessary so to do, it may, by order, attach provisionally any property belonging to the applicant in the manner as may be prescribed.

(2) Every provisional attachment made by the Settlement Commission under sub-section (1) shall cease to have effect from the date, the sums due to the Central Government for which such attachment is made are discharged by the applicant and evidence to that effect is submitted to the Settlement Commission.

————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

32H. POWER OF SETTLEMENT COMMISSION TO REOPEN COMPLETED PROCEEDINGS. –

1[32H. Power of Settlement Commission to reopen completed proceedings.—If Settlement Commission is of the opinion (the reasons for such opinion to be recorded by it in writing) that, for the proper disposal of the case pending before it, it is necessary or expedient to reopen any proceeding connected with the case but which has been completed under this Act before application for settlement under section 32E was made, it may, with the concurrence of the applicant, reopen such proceeding and pass such order thereon as it thinks fit, as if the case in relation to which the application for settlement had been made by the applicant under that section covered such proceeding also:

Provided that no proceeding shall be reopened by the Settlement Commission under this section after the expiry of five years from the date of application:

2[Provided further that no proceeding shall be reopened by the Settlement Commission under this section in a case where an application under section 32E is made on or after the 1st day of June, 2007.]]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2.Ins. by Act 22 of 2007, sec. 123 (w.e.f. 1-6-2007).

32-I. POWERS AND PROCEDURE OF SETTLEMENT COMMISSIONS. –

1[32-I. Powers and procedure of Settlement Commissions.—(1) In addition to the powers conferred on the Settlement Commission under this Chapter, it shall have all the powers which are vested in a Central Excise Officer under this Act or the rules made thereunder.

(2) Where an application made under section 32E has been allowed to be proceeded with under section 32F, the Settlement Commission shall, until an order is passed under sub-section 2[(5)] of section 32F, have, subject to the provisions of sub-section 3[(4)] of that section, exclusive jurisdiction to exercise the powers and perform the functions of any Central Excise Officer, under this Act in relation to the case.

(3) In the absence of any express direction by the Settlement Commission to the contrary, nothing in this Chapter shall affect the operation of the provisions of this Act in so far as they relate to any matters other than those before the Settlement Commission.

(4) The Settlement Commission shall, subject to the provisions of this Chapter, have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers, or of the discharge of its functions, including the places at which the Benches shall hold their sittings.]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Subs. by Act 22 of 2007, sec. 124, for “(7)” (w.e.f. 1-6-2007).

3. Subs. by Act 22 of 2007, sec. 124, for “(6)” (w.e.f. 1-6-2007).

32J. INSPECTION, ETC., OF REPORTS. –

No person shall be entitled to inspect, or obtain copies of, any reports made by any Central Excise Officer to the Settlement Commission; but the Settlement Commission may, in its discretion furnish copies thereof to any such person on an application made to it in this behalf and on payment of the prescribed fee :

Provided that, for the purpose of enabling any person whose case is under consideration to rebut any evidence brought on record against him in any such report, the Settlement Commission shall, on an application made in this behalf, and on payment of the prescribed fee by such person, furnish him with a certified copy of any such report or part thereof relevant for the purpose.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

32K. POWER OF SETTLEMENT COMMISSION TO GRANT IMMUNITY FROM PROSECUTION AND PENALTY.

1[32K. Power of Settlement Commission to grant immunity from prosecution and penalty.—(1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act 2[and also either wholly or in part from the imposition of any penalty and fine] under this Act, with respect to the case covered by the settlement:

Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32E.

3[Explanation.—For the removal of doubts, it is hereby declared that applications filed before the Settlement Commission on or before the 31st day of May, 2007 shall be disposed of as if the amendment in this section had not come into force.]

(2) An immunity granted to a person under sub-section (1) shall stand withdrawn if such person fails to pay any sum specified in the order of the settlement passed under 4[sub-section (5) of section 32F within the time specified in such order] or fails to comply with any other condition subject to which the immunity has granted and thereupon the provisions of this Act shall apply as if such immunity has not been granted.

(3) An immunity granted to a person under sub-section (1) may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person had, in the course of the settlement proceedings, concealed any particular material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such person would have been liable, had no such immunity been granted.]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Subs. by Act 22 of 2007, sec. 125(i)(a), for “or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also either wholly or in part from the imposition of any penalty, fine and interest” (w.e.f. 1-6-2007).

3. Ins. by Act 22 of 2007, sec. 125(i)(b) (w.e.f. 1-6-2007).

4.Subs. by Act 22 of 2007, sec. 125(ii), for “sub-section (7) of section 32F within the time specified in such order or within such further time as may be allowed by the Settlement Commission” (w.e.f. 1-6-2007).

32L. POWER OF SETTLEMENT COMMISSION TO SEND A CASE BACK TO THE CENTRAL EXCISE OFFICER. –

*32L. Power of Settlement Commission to send a case back to the Central Excise Officer.—(1) The Settlement Commission may, if it is of opinion that any person who made an application for settlement under section 32E has not co-operated with the Settlement Commission in the proceedings before it, send the case back to the Central Excise Officer having jurisdiction who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 32E had been made.

(2) For purpose of sub-section (1), the Central Excise Officer shall be entitled to use all the materials and other information produced by the assessee before the Settlement Commission or the result of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it as if such materials, information, inquiry and evidence had been produced before such Central Excise Officer or held or recorded by him in the course of the proceedings before him.

(3) For the purposes of the time limit under section 11A and for the purposes of interest under section 11BB, in a case referred to in sub-section (1), the period commencing on and from the date of the application to the Settlement Commission under section 32E and ending with the date of receipt by the Central Excise Officer of the order of the Settlement Commission sending the case back to the Central Excise Officer shall be excluded.

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

32M. ORDER OF SETTLEMENT TO BE CONCLUSIVE. –

1[32M. Order of settlement to be conclusive.—Every order of settlement passed under sub-section 2[(5)] of section 32F shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force.]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

1.Subs. by Act 22 of 2007, sec. 126, for “(7)” (w.e.f. 1-6-2007).

32N. RECOVERY OF SUMS DUE UNDER ORDER OF SETTLEMENT. -.

1RECOVERY OF SUMS DUE UNDER ORDER OF SETTLEMENT. -.Any sum specified in an order of settlement passed under sub-section 2(5) of section 32F may, subject to such conditions if any, as may be specified therein, be recovered, and any penalty for default in making payment of such sum may be imposed and recovered as sums due to the Central Government in accordance with the provisions under section 11 by the Central Excise Officer having jurisdiction over the person who made the application for settlement under section 32E.

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2.Subs. by Act 22 of 2007, sec. 127, for “(7)” (w.e.f. 1-6-2007).

32-O. BAR ON SUBSEQUENT APPLICATION FOR SETTLEMENT IN CERTAIN CASES. –

2(i)3Where An order of settlement passed under sub-section (7) of section 32F provides for the imposition of a penalty on the person who made the application under section 32E for settlement, on the ground of concealment of particulars of his duty liability; or

(ii) After the passing of an order of settlement under the said sub-section (7) in relation to a case, such person is convicted of any offence under this Act in relation to that case; or

(iii) The case of such person is sent back to the Central Excise Officer having jurisdiction by the Settlement Commission under section 32L, then, he shall not be entitled to apply for settlement under section 32E in relation to any other matter.

4[(2) Where an assessee has made an application under sub-section (1) of section 32E, on or after the 1st day of June, 2007 and if such application has been allowed to be proceeded with under sub-section (1) of section 32F, such assessee shall not be entitled to apply for settlement under section 32E in relation to any other matter:

Provided that such assessee shall not be prevented from filing an application for settlement if the issue in the subsequent application is, but for the period of dispute and amount, identical to the issue in respect of which the earlier application is pending before the Settlement Commission.]]

———–

1.Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110

2. Section 32-O renumbered as sub-section (1) thereof by Act 22 of 2007, sec. 128 (w.e.f. 11-5-2007).

3. Subs. by Act 22 of 2007, sec. 128(i), for “Where” (w.e.f. 11-5-2007).

4.Ins. by Act 22 of 2007, sec. 128(ii) (w.e.f. 1-6-2007).

32P. PROCEEDINGS BEFORE SETTLEMENT COMMISSION TO BE JUDICIAL PROCEEDINGS. –

Any proceedings under this Chapter before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860).

—————

* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).

33. POWER OF ADJUDICATION.

1[Where under this Act or by rules made thereunder] anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged—

(a) without limit, by a 2[Commissioner of Central Excise];

(b) up to confiscation of goods not exceeding five hundred rupees in value and imposition of penalty not exceeding two hundred and fifty rupees, by an 3[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise]:

Provided that the 4[Central Board of Excise and Customs consti­tuted under the Central Boards of Revenue Act, 1963 (54 of 1963)] may, in the case of any officer performing the duties of an 3[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], reduce the limits indicated in clause (b) of this section and may confer on any officer the powers indicated in clause (a) or (b) of this sec­tion.

—————

1. Subs. by Act 27 of 1999, sec. 125, for “Where by the rules made under this Act” (w.e.f. 11-5-1999).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

3. Subs. by Act 27 of 1999, sec. 119, for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Central Excise” were substituted for “Assistant Collector of Central Excise” by Act 22 of 1995, sec. 70 (w.e.f. 26-5-1995).

4. Subs. by Act 54 of 1963, sec. 5, for “Central Board of Revenue” (w.e.f. 1-1-1964).

34. OPTION TO PAY FINE IN LIEU OF CONFISCATION.

Whenever confiscation is adjudged under this Act or the rules made there under, the officer adjudging it, shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit.

34A. CONFISCATION OR PENALTY NOT TO INTERFERE WITH OTHER PUNISHMENTS.

134A. CONFISCATION OR PENALTY NOT TO INTERFERE WITH OTHER PUNISHMENTS. No confiscation made or penalty imposed under the provisions of the Act or of any rule made there under shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law.

—————

1. Ins. by Act 36 of 1973, sec. 22 (w.e.f. 1-9-1973).

35. APPEALS TO COMMISSIONER (APPEALS).

35. Appeals to 1[Commissioner (Appeals)].—(1) Any person ag­grieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a 2[Commissioner of Central Excise] may appeal to the 3[Commissioner of Central Excise (Appeals)] [hereafter in this Chapter referred to as the 1[Commissioner (Appeals)]] 4[within sixty days] from the date of the communica­tion to him of such decision or order:

5[Provided that the Commissioner (Appeals) may, if he is satis­fied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.]

6[(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.]

(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.

COMMENTS

When prima facie there was no mala fide on the part of applicants, impugned order for making pre-deposit had to be stayed till the disposal of the appeals; Gujarat State Fertilizers Ltd. v. Collector of Central Excise, 1991 (52) ELT 548 (Tri).

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

2. Subs. by Act 22 of 1995, sec. 70 “Collector of Central Excise” (w.e.f. 26-5-1995)..

3. Subs by Act 22 of 1995, sec. 70, for “Collector of Central Excise (Appeal)” (w.e.f. 26-5-1995).

4. Subs. by Act 14 of 2001, sec. 127, for “within three months” (w.e.f. 11-5-2001).

5. Subs. by Act 14 of 2001, sec. 127, for the proviso (w.e.f. 11-5-2001).

6. Ins. by Act 23 of 2004, sec. 82 (w.e.f. 10-9-2004).

35A. PROCEDURE IN APPEAL.

(1) The 1[Commissioner (Appeals)] shall give an opportunity to the appellant to be heard, if he so desires.

(2) The 1[Commissioner (Appeals)] may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if the 1[Commissioner (Ap­peals)] is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

(3) 2[The Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order as he thinks just and proper confirming, modifying or annulling the decision or order appealed against:]

Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:

Provided further that where the 1[Commissioner (Appeals)] is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in section 11A to show cause against the proposed order.

(4) The order of the 1[Commissioner (Appeals)] disposing of the appeal shall be in writing and shall state the points for deter­mination, the decision thereon and the reasons for the decision.

3[(4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed.]

(5) On the disposal of the appeal, the 1[Commissioner (Appeals)] shall communicate the order passed by him to the appellant, the adjudicating authority 4[, the Chief Commissioner of Central Excise and the Commissioner of Central Excise].

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

2. Subs. by Act 14 of 2001, sec. 128, for certain words (w.e.f. 11-5-2001).

3. Ins. by Act 14 of 2001, sec. 128 (w.e.f. 11-5-2001).

4. Subs. by Act 18 of 2005, sec. 78, for “and of the Commissioner of Central Excise” (w.e.f. 13-5-2005).

35B. APPEALS TO THE APPELLATE TRIBUNAL

35B. Appeals to the Appellate Tribunal.—(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribu­nal against such order—

(a) a decision or order passed by the 1[Commissioner of Central Excise] as an adjudicating authority;

(b) an order passed by the 2[Commissioner (Appeals)] under sec­tion 35A;

(c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the 3[Appellate Commissioner of Central Excise] under section 35, as it stood immediately before the appointed day;

(d) an order passed by the Board or the 4[Commissioner of Central Excise], either before or after the appointed day, under section 35A, as it stood immediately before that day:

5[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) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods, exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or terri­tory outside India;

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

6[(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998:]

Provided further that] the appellate Tribunal may, in its discre­tion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where—

(i) in any disputed case, other than a case where the determina­tion of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(ii) the amount of fine or penalty determined by such order,does not exceed 7[fifty thousand rupees].

8[(1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immedi­ately before the commencement of section 47 of the Finance Act, 1984 (21 of 1984), before the Appellate Tribunal and any matter arising out of, or connected with, such appeal and which is so pending shall stand transferred on such commencement to the Central Government, and the Central Government shall deal with such appeal or matter under section 35EE as if such appeal or matter were an application or a matter arising out of an applica­tion made to it under that section.]

9[((1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act.

(ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be.]

10[(2) 11[The Committee of Commissioners of Central Excise may, if it is] of opinion that an order passed by the 12[Appellate Commissioner of Central Excise] under section 35, as it stood immediately before the appointed day, or the 13[Commissioner (Appeals)] under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal 14[on its behalf] to the Appellate Tribunal against such order.

(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the 15[Commissioner of Central Excise], or, as the case may be, the other party preferring the appeal.

(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been pre­ferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).

(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.

16[(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of,—

(a) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;

(b) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;

(c) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees:

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).

(7) Every application made before the Appellate Tribunal,—

(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or

(b) for restoration of an appeal or an application,

shall be accompanied by a fee of five hundred rupees:

Provided that no such fee shall be payable in the case of an application filed by or on behalf of the Commissioner of Central Excise under this sub-section.]

Comments

(i) The date of initial presentation of appeal, which though defective, but is not returnable in toto for rectification, has to be taken as the date of filing of appeal for purpose of com­puting the period of limitations; VXL India Ltd. (OCM Woollen Mills) v. Collector of Customs, 1991 (52) ELT (Tri).

(ii) While to remand the case the Tribunal should analyse the evidence and give a factual conclusion; M.G. Shahani & Co. (Delhi) Ltd. v. Collector, Central Excise, AIR 1994 SC 2413.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

3. Subs. by Act 22 of 1995, sec. 70, for “Appellate Collector of Central Excise” (w.e.f. 26-5-1995).

4. Subs. by Act 18 of 2005, sec. 78, for “and of the Commissioner of Central Excise” (w.e.f. 13-5-2005).

5. Subs. by Act 21 of 1984, sec. 47, for “Provided that” (w.e.f. 11-5-1984).

6. Ins. by Act 21 of 1998, sec. 109 (w.e.f. 1-8-1998).

7. Subs. by Act 38 of 1993, sec. 45, for “ten thousand rupees” (w.e.f. 13-5-1993).

8. Ins. by Act 21 of 1984, sec. 47 (w.e.f. 11-5-1984).

9. Ins. by Act 18 of 2005, sec. 79 (w.e.f. 13-5-2005).

10. Sub-section (2) shall stand subs. by Act 62 of 1986, sec. 34 as follows:—

“(2) The Collector of Central Excise may, if he is of opinion that an order passed by—

(a) the Appellate Collector of Central Excise under section 35, as it stood immediately before the appointed day, or

(b) the Collector (Appeals) under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the autho­rised officer) to appeal on his behalf to the Appellate Tribunal or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of 62 of 1986 the Customs and Excise Revenues Appellate Tribunal Act, 1986, against such order”.

11. Subs. by Act 18 of 2005, sec. 79, for “The Commissioner of Central Excise may, if he is” (w.e.f. 13-5-2005).

12. Subs. by Act 22 of 1995, sec. 70, for “Appellate Collector of Central Excise” (w.e.f. 26-5-1995).

13. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

14. Subs. by Act 18 of 2005, sec. 79, for “on his behalf” (w.e.f. 13-5-2005).

15. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

16. Subs. by Act 23 of 2004, sec. 83, for sub-section (6) (w.e.f. 10-9-2004). Sub-section (6), before substitution, stood as under:

“(6) An appeal to the Appellate Tribunal shall be in the pre­scribed form and shall be verified in the prescribed manner and shall, in the case of an appeal made on or after the Ist day of June, 1993, irrespective of the date of demand of duty or of levy of penalty in relation to which the appeal is made, be accompa­nied by a fee of,—

(a) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is one lakh rupees or less, two hundred rupees;

(b) where the amount of duty demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than one lakh rupees, one thousand rupees:

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4).”.

35C. ORDERS OF APPELLATE TRIBUNAL. –

35C. Orders of Appellate Tribunal.—(1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirm­ing, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.

1(1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.]

(2) The Appellate Tribunal may, at any time within 2six months] from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the 3[Commissioner of Central Excise] or the other party to the appeal:

Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportu­nity of being heard.

4[(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed:

Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:

Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.]

(3) The Appellate Tribunal shall send a copy of every order passed under this section to the 3[Commissioner of Central Ex­cise] and the other party to the appeal.

(4)5[Save as provided in the National Tax Tribunal Act, 2005], orders passed by the Appellate Tribunal on appeal shall be final.

Comments

The firm is a separate legal entity from its partners for the purpose of Central Excise Act, irrespective of the treatment of the firm and partners under general law. In view of this finding charging firm for under valuation and for short levy is unjus­tified in the absence of issue of show-cause notice to the firm; Hindustan Foam Industry v. Collector of Central Excise, 1990 (48) ELT 33 (Tri).

—————

1. Ins. by Act 23 of 2004, sec. 84 (w.e.f. 10-9-2004).

2. Subs. by Act 20 of 2002, sec. 140, for “four years” (w.e.f. 11-5-2002).

3. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

4. Ins. by Act 20 of 2002, sec. 140 (w.e.f. 11-5-2002).

5. Subs. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-5, for “Save as provided in section 35G or section 35L” (w.e.f. 28-12-2005).

35D. PROCEDURE OF APPELLATE TRIBUNAL. 104 –

35D. Procedure of Appellate Tribunal.—(1) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the dis­charge of its functions under the Customs Act, 1962 (52 of 1962).

1[***]

(3) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where—

(a) in any disputed case, other than a case where the determina­tion of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or(b) the amount of fine or penalty involved,does not exceed 2[3[4[ten lakh rupees]]].

—————

1. Sub-section (2) omitted by Act 22 of 1995, sec. 77 (w.e.f. 26-5-1995).

2. Subs. by Act 21 of 1984, sec. 48, for “ten thousand rupees” (w.e.f. 11-5-1984).

3. Subs. by Act 38 of 1993, sec. 45, for “fifty thousand rupees” (w.e.f. 13-5-1993).

4. Subs. by Act 33 of 1996, sec. 80, for “one lakh rupees” (w.e.f. 28-9-1996).

35E. POWERS OF BOARD OR COMMISSIONER OF CENTRAL EXCISE TO PASS CERTAIN ORDERS. – 108

35E. Powers of Board or 1[Commissioner of Central Excise] to pass certain orders.—(1) The Board may, of its own motion, call for and examine the record of any proceeding in which a 1[Commission­er of Central Excise] as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such 2[Commissioner] 3[or any other commissioner] to apply to the Appellate Tribunal 4[or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986)] for the determination of such points arising out of the decision or order as may be specified by the 5[Committee of Chief Commissioners of Central Excise] in its order.

(2) The 1[Commissioner of Central Excise] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct 6[such authority or any Central Excise Officer subordinate to him] to apply to the 7[Commis­sioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the 1[Commis­sioner of Central Excise] in his order.

8[(3) The Committee of Chief Commissioners of Central Excise or the Commissioner of Central Excise, as the case may be, shall make order under sub-section (1) or sub-section (2) within a period of three months from the date of communication of the decision or order of the adjudicating authority.]

(4) Where in pursuance of an order under sub-section (1) or sub-section (2), the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal 4[or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986)] or the 7[Commissioner (Appeals)] within a period of 9[one month] from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicat­ing authority, such application shall be heard by the Appellate Tribunal 4[or, as the case may be, the Customs and Excise Revenues Appellate Tribunal established under section 3 of the Cus­toms and Excise Revenues Appellate Tribunal Act, 1986] or the 7[Commissioner (Appeals)], as the case may be, as if such appli­cation were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B 4[or, as the case may be, the provisions of the Customs and Excise Revenues Appellate Tribunal Act, 1986] shall, so far as may be, apply to such application.

10[(5) The provisions of this section shall not apply to any deci­sion or order in which the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue.

Explanation.—For the purposes of this sub-section, the determi­nation of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question—

(a) relating to the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 (5 of 1986), or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or

(b) relating to the value of goods for the purposes of assessment of any duty of excise in cases where the assessment is made on or after the 28th day of February, 1986; or

(c) whether any goods are excisable goods or whether the rate of duty of excise on any goods is nil; or

(d) whether any goods fall under a particular heading or sub-heading of 11the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986), or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or

(e) whether the value of any goods for the purposes of assess­ment of duty of excise shall be enhanced or reduced by the addi­tion or reduction of the amounts in respect of such matters as are specifically provided in this Act.]

———-

1. Subs. by Act 22 of 1995, sec. 70, for “Collector” (w.e.f. 26-5-1995)

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

3. Ins. by Act 14 of 2001, sec. 129 (w.e.f. 11-5-2001).

4. Ins. by Act 62 of 1986, sec. 34.

5. Subs. by Act 18 of 2005, sec. 80, for “Board” (w.e.f. 13-5-2005).

6. Ins. by Act 29 of 2006, sec. 37, for such authority” (w.e.f. 13-7-2006).

7. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

8. Subs. by Act 22 of 2007, sec. 130(i), for sub-section (3) (w.e.f. 11-5-2007). Earlier sub-section (3) was substituted by Act 20 of 2002, sec. 141 (w.e.f. 11-5-2002) and was amended by Act 18 of 2005, sec. 80 (w.e.f. 13-5-2005). Sub-section (3), before substitution by Act 22 of 2007, stood as under:

“(3) The Committee of Chief Commissioners of Central Excise or Commissioner of Central Excise, as the case may be, shall, where it is possible to do so, make order under sub-section (1) or sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority.”.

9. Subs. by Act 22 of 2007, sec. 130(ii), for “three months” (w.e.f. 11-5-2007).

10.Ins. by Act 29 of 1988, sec. 11 (w.e.f. 16-8-1988).

11.Subs. by Act 27 of 1999, sec. 119, for “the Schedule” (w.e.f. 11-5-1999).

35EA. POWERS OF REVISION OF BOARD OR COMMISSIONER OF CENTRAL EXCISE IN CERTAIN CASES.

1[35EA. Powers of revision of Board or 2[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 2[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 referred to in sub-section (5) of section 35E 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 2[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 35E, 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 2[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 11A 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 Excise Laws (Amend­ment) Act, 1987 (29 of 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.]

Comments

Limitation

Where the Collector of Excise has been directed by the Central Board of Excise and Customs to file an appeal before the tribunal after the expiry of limitation period from the date of order of Collector, the appeal will be barred by limitation. When the appeal is being filed at the instance of the Board, the limitation starts from the date of Collector’s order and not from the date of its knowledge to the Board; Collector of Central Excise, Madras v. M.M. Rubber & Co., AIR 1991 SC 2141.

—————

1. Ins. by Act 29 of 1988, sec. 12 (w.e.f. 16-8-1988).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

35EE. REVISION BY CENTRAL GOVERNMENT. –

1[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:

2[Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.]

Explanation.—For the purposes of this sub-section,“order passed under section 35A” includes an order passed under that section before the commencement of section 47 of the Finance Act, 1984 (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.

2[(1A) The Commissioner of Central Excise may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 35A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order.]

(2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made:

Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months.

3[(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 application relates is one lakh rupees or less;

(b) one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by an Central Excise Officer in the case to which the application relates is more than one lakh rupees:

Provided that no such fee shall be payable in the case of an application referred to in sub-section (1A).]

(4) The Central Government may, of its own motion, annul or modify any order referred to in sub-section (1).

(5) No order enhancing any penalty or fine in lieu of confisca­tion or confiscating goods of greater value shall be passed under this section,—

(a) in any case in which an order passed under section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and

(b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modi­fied.

(6) Where the Central Government is of opinion that any duty of excise has not been levied or has been short-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. Ins. by Act 21 of 1984, sec. 50 (w.e.f. 11-5-1984).

2. Ins. by Act 27 of 1999, sec. 126 (w.e.f. 11-5-1999).

3. Subs. by Act 27 of 1999, sec. 126, for sub-section (3) (w.e.f. 11-5-1999).

35F. DEPOSIT, PENDING APPEAL, OF DUTY DEMANDED OR PENALTY LEVIED.

Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authori­ties or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied:

Provided that where in any particular case, the 1[Commissioner (Appeals)] or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the 1[Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue:

2[Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filling.]

3[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 57CC of Central Excise Rules, 1944;

(iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004;

(v) interest payable under the provisions of this Act or the rules made thereunder.]

COMMENTS

Pre-deposit

Where the Collector passed an order rejecting the stay application as to pre-deposit without giving an opportunity to hear the parties and consequently dismissed the appeal also, the order being in violation of the rule of natural justice, cannot be sustained and the matter was remanded; Mahindra and Mahindra Ltd. v. Union of India, 1991 (51) ELT 219 (Bom).

———-

1. Subs. by Act 22 of 1995, sec. 70, for “Collector (Appeals)” (w.e.f. 26-5-1995).

2.Ins. by Act 14 of 2001, sec. 130 (w.e.f. 11-5-2001).

3. Ins. by Act 22 of 2007, sec. 131 (w.e.f. 11-5-2007)

35G. STATEMENT OF CASE TO HIGH COURT.

1[35G. Appeal to High Court.—[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35G, before repeal, stood as under:

“35G. Appeal to High Court.—(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.

(2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be—

(a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party;

(b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party;

(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.

(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.

(6) The High Court may determine any issue which—

(a) has not been determined by the Appellate Tribunal; or

(b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1).

(7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges.

(8) Where there is no such majority, the Judges shall state the point of law upon

which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the

opinion of the majority of the Judges who have heard the case including those who first heard it.

(9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.”.

35H. STATEMENT OF CASE TO SUPREME COURT IN CERTAIN CASES. – 111 .

1[35H. Application to High Court.—[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35H, before repeal, stood as under:

“35H. Application to High Court.—(1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal.

(2) The Commissioner of Central Excise or the other party applying to the High Court under sub-section (1) shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred.

(3) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has been made, may, notwithstanding that he may not have filed such application, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the High Court as if it were an application presented within the time specified in sub-section (1).

(4) If, on an application made under sub-section (1), the High Court directs the Appellate Tribunal to refer the question of law raised in the application, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such direction, draw up a statement of the case and refer it to the High Court.”.

35-I. POWER OF HIGH COURT OR SUPREME COURT TO REQUIRE STATEMENT TO BE AMENDED. –

1[35-I. Power of High Court or Supreme Court to require statement to be amended.—

[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35-I, before repeal, stood as under:

“35-I. Power of High Court or Supreme Court to require statement to be amended.—If the High Court or the Supreme Court is not satis­fied that the statements in a case referred to it are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Appellate Tribunal for the purpose of making such additions thereto or alterations therein as it may direct in that behalf.”.

35J. CASE BEFORE HIGH COURT TO BE HEARD BY NOT LESS THAN TWO JUDGES. –

1[35J. Case before High Court to be heard by not less than two Judges.—[Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VII-6 (w.e.f. 28-12-2005).]]

—————

1. Section 35J, before repeal, stood as under:

“35J. Case before High Court to be heard by not less than two Judges.—(1) When any case has been referred to the High Court under section 35G or section 35H, it shall be heard by a Bench of not less than two Judges of the High Court and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges.

(2) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall then be heard upon that point only by one or more of the other Judges of the High Court, and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.”.

35K. DECISION OF HIGH COURT OR SUPREME COURT ON THE CASE STATED. –

35K. Decision of High Court or Supreme Court on the case stated.—(1) The 1[***] Supreme Court hearing any such case shall decide the questions of law raised therein and shall deliv­er its judgment thereon containing the grounds on which such decision is founded and a copy of the judgment shall be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are neces­sary to dispose of the case in conformity with such judgment.

2[(1A) Where the High Court delivers a judgment in an appeal filed before it under section 35G, effect shall be given to the order passed on the appeal by the concerned Central Excise Officer on the basis of a certified copy of the judgment.]

(2) The costs of any 3[reference to the 4[***] an appeal to 5[***] the Supreme Court, 5[***]] which shall not include the fee for making the reference shall be in the discretion of the Court.

COMMENTS

Scope

Section 35K provides for the passing of a judgment by the High Court and the Supreme Court on the case stated before them. Section 35L makes provisions for an appeal to the Su­preme Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any ques­tion having a relation to the rate of duty of excise or to the value of the goods for purpose of assessment or from any judgment of the High Court delivered on a reference; Basti Sugar Mills Co. Ltd. v. Collector of Central Excise, 1990 (47) ELT 408 (Tri).

—————

1. The words “High Court or the” omitted by Act 49 of 2005, sec. 30 and Sch., Pt. VII-7 (w.e.f. 28-12-2005).

2. Ins. by Act 32 of 2003, sec. 146 (w.e.f. 1-7-2003).

3. Subs. by Act 32 of 2003, sec. 146, for “reference to the High Court or the Supreme Court.” (w.e.f. 14-5-2003).

4. The words “the High Court or” omitted by Act 49 of 2005, sec. 30 and Sch., Pt. VII-7 (w.e.f. 28-12-2005).

5. The words “as the case may be,” omitted by Act 49 of 2005, sec. 30 and Sch., Pt. VII-7 (w.e.f. 28-12-2005).

35L. APPEAL TO THE SUPREME COURT 113

35L. Appeal to Supreme Court.—An appeal shall lie to the Supreme Court from—

1[(a) any judgment of the High Court delivered—

(i) in an appeal made under section 35G; or

(ii) on a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003;

(iii) on a reference made under section 35H,

in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or]

(b) any order passed 2[before the establishment of the National Tax Tribunal] by the Appellate Tribunal relating, among other things, to the determination of any question having a rela­tion to the rate of duty of excise or to the value of goods for purposes of assessment.

—————

1. Subs. by Act 32 of 2003, sec. 147, for clause (a) (w.e.f. 14-5-2003).

2. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-8 (w.e.f. 28-12-2005).

35M. HEARING BEFORE SUPREME COURT.

(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under section 35L as they apply in the case of appeals from decrees of a High Court :

Provided that nothing in this sub-section shall be deemed to affect the provisions of sub-section (1) of section 35K or section 35N.

(2) The costs of the appeal shall be in the discretion of the Supreme Court.

(3) Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of the Supreme Court in the manner provided in section 35K in the case of a judgment of the High Court.

35N. SUMS DUE TO BE PAID NOTWITHSTANDING REFERENCE, ETC.

Notwithstanding that a reference has been made to the High Court or the Supreme Court or an appeal has been preferred to the Supreme Court, sums due to the Government as a result of an order passed 1under sub-section (1) of section 35C shall be payable in accordance with the order so passed.

—————

1. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-9 (w.e.f. 28-12-2005).

35-O. EXCLUSION OF TIME TAKEN FOR COPY.

In computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded.

35P. TRANSFER OF CERTAIN PENDING PROCEEDINGS AND TRANSITIONAL PROVISIONS.

(1) Every appeal which is pending immediately before the appointed day before the Board under section 35, as it stood immediately before that day, and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such appeal or matter from the stage at which it was on that day :

Provided that the appellant may demand that before proceeding further with that appeal or matter, he may be re-heard.

(2) Every proceeding which is pending immediately before the appointed day before the Central Government under section 36, as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it :

Provided that if any such proceeding or matter relates to an order where –

(a) In any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or

(b) The amount of fine or penalty determined by such order, does not exceed ten thousand rupees, such proceeding or matter shall continue to be dealt with by the Central Government as if the said section 36 had not been substituted :

Provided further that the applicant or the other party may make a demand to the Appellate Tribunal that before proceeding further with that proceeding or matter, he may be re-heard.

(3) Every proceeding which is pending immediately before the appointed day before the Board or the 1 Commissioner of Central Excise under section 35A, as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall continue to be dealt with by the Board or the Commissioner of Central Excise as the case may be, as if the said section had not been substituted.

(4) Any person who immediately before the appointed day was authorised to appear in any appeal or proceeding transferred under sub-section (1) or sub-section (2) shall, notwithstanding anything contained in section 35Q, have the right to appear before the Appellate Tribunal in relation to such appeal or proceeding.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f 26-5-1995).

35Q. APPEARANCE BY AUTHORISED REPRESENTATIVE.

(1) Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an autho­rised representative.

(2) For the purposes of this section, “authorised representative” means a person authorised by the person referred to in sub-sec­tion (1) to appear on his behalf, being—

(a) his relative or regular employee; or

(b) any legal practitioner who is entitled to practise in any civil Court in India; or

(c) any person who has acquired such qualifications as the Cen­tral Government may prescribe for this purpose.

(3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Serv­ice—Group A and has retired or resigned from such service after having served for not less than three years in any capacity in that service, shall be entitled to appear as an authorised repre­sentative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resigna­tion, as the case may be.

(4) No person,—

(a) who has been dismissed or removed from Government service; or

(b) who is convicted of an offence connected with any proceeding under this Act, the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act, 1968 (45 of 1968); or

(c) who has become an insolvent,

shall be qualified to represent any person under sub-section (1), for all times in the case of a person referred to in clause (a), and for such time as the 1[Commissioner of Central Excise] or the competent authority under the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act, 1968 (45 of 1968), as the case may be, may, by order, determine in the case of a person referred to in clause (b), and for the period during which the insolvency contin­ues in the case of a person referred to in clause (c).

(5) If any person,—

(a) who is a legal practitioner, is found guilty of misconduct in his professional capacity by any authority entitled to institute proceedings against him, an order passed by that authority shall have effect in relation to his right to appear before a Central Excise Officer or the Appellate Tribunal as it has in relation to his right to practise as a legal practitioner;

(b) who is not a legal practitioner, is found guilty of miscon­duct in connection with any proceedings under this Act by the prescribed authority, the prescribed authority may direct that he shall thenceforth be disqualified to represent any person under sub-section (1).

(6) Any order or direction under clause (b) of sub-section (4) or clause (b) of sub-section (5) shall be subject to the following conditions, namely:—

(a) no such order or direction shall be made in respect of any person unless he has been given a reasonable opportunity of being heard;

(b) any person against whom any such order or direction is made may, within one month of the making of the order or direction, appeal to the Board to have the order or direction cancelled; and

(c) no such order or direction shall take effect until the expi­ration of one month from the making thereof, or, where an appeal has been preferred, until the disposal of the appeal.

—————

1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

36. DEFINITIONS.

In this Chapter –

(a) “Appointed day” means the date1 of coming into force of the amendments to this Act specified in Part II of the Fifth Schedule to the Finance (No. 2) Act, 1980;

(b) “High Court” means, –

(i) In relation to any State, the High Court for that State;

(ii) In relation to a Union Territory to which the jurisdiction of the High Court of a State has been extended by law, that High Court;

(iii) In relation to the Union Territories of Dadra and Nagar Haveli and Daman and Diu, the High Court at Bombay;

(iv) In relation to any other Union Territory, the highest court of civil appeal for that territory other than the Supreme Court of India;

(c) “President” means the President of the Appellate Tribunal.

Comments

Limitation

The review show-cause notice levying duty, the time limit for review as contained in third proviso to section 36 (2) is six months. Hence notice issued beyond six months period is hit by bar of limitation; Collector of Central Excise v. Voltas Ltd., 1991 (53) ELT 82 (Tri).

Scope

Suo motu power of revision of the Central Government is provided in sub-section (2) wherein the correctness, legality or propriety of any decision or order passed under section 35 or section 35A is subjected to the revisional power; M/s. Kirloscar Cummins Ltd. v. Union of India, 1990 (47) ELT 242 (Bom).

—————

1. Came into force on 11-10-1982, vide G.S.R. 592 (E), dated 11th October, 1982.

36A. PRESUMPTION AS TO DOCUMENTS IN CERTAIN CASES.

Where any document is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall, –

(a) Unless the contrary is proved by such person, presume –

(i) The truth of the contents of such document;

(ii) That the signature and every other part of such document which

purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person’s handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b) Admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.

—————

1. Ins. by Act 36 of 1973, sec. 23 (w.e.f. 1-9-1973).

36B. ADMISSIBILITY OF MICRO FILMS, FACSIMILE COPIES OF DOCUMENTS AND COMPUTER PRINT OUTS AS DOCUMENTS AND AS EVIDENCE.

1[36B. Admissibility of micro films, facsimile copies of docu­ments and computer print outs as documents and as evidence.—(1) Notwithstanding anything contained in any other law for the time being in force,—

(a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or

(b) a facsimile copy of a document; or

(c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a “computer print out”), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satis­fied in relation to the statement and the computer in question,

shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely:—

(a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, there was regular supply to the computer in the ordinary course of the said activities, informa­tion of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of period was not such as to affect the production of the document or the accuracy of the contents; and

(d) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succes­sion over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings under this Act and the rules made thereun­der where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the document containing the statement and de­scribing the manner in which it was produced;

(b) giving such particulars of any device involved in the produc­tion of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the cer­tificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any offi­cial, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activ­ities;

(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section,—

(a) “computer” means any device that receives, stores and proc­esses data, applying stipulated processes to the information and supplying results of these processes; and

(b) any reference to information being derived from other infor­mation shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

—————

1. Ins. by Act 27 of 1988, sec. 13 (w.e.f. 16-8-1988).

37. POWER OF CENTRAL GOVERNMENT TO MAKE RULES.

37. Power of Central Government to make rules.—*(1) The Central Government may make rules to carry into effect the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may—

1[(i) provide for determining under section 4 the nearest ascer­tainable equivalent of the normal price;

(ia) having regard to the normal practice of the wholesale trade, define or specify the kinds of trade discount to be excluded from the value under section 4 including the circumstances in which and the conditions subject to which such discount is to be so excluded;]

2[(ib)] provide for the assessment and collection of duties of excise, the authorities by whom functions under this Act are to be discharged, the issue of notices requiring payment, the manner in which the duties shall be payable, and the recovery of duty not paid;

3[(ibb) provide for charging or payment of interest on the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments.]

4[(ic) provide for the remission of duty of excise leviable on any excisable goods, which due to any natural cause are found to be deficient in quantity, the limit or limits of percentage beyond which no such remission shall be allowed and the different limit or limits of percentage for different varieties of the same excisable goods or for different areas or for different seasons;]

5[(id) provide for the amount to be paid for compounding under sub-section (2) of section 9A;]

(ii) prohibit absolutely, or with such exceptions, or subject to such conditions as the Central Government thinks fit, the produc­tion or manufacture, or any process of the production or manufac­ture, of excisa­ble goods, or of any component parts or ingredients or containers thereof, except on land or premises approved for the purpose;

(iii) prohibit absolutely, or with such exceptions, or subject to such conditions as the Central Government thinks fit, 6[***] the transit of excisable goods from any part of 7[India] to any other part thereof;

(iv) regulate the removal of excisable goods from the place where produced, stored or manufactured or subjected to any process of production or manufacture and their transport to or from the premises of a 8[registered] person, or a bonded warehouse, or to a market;

(v) regulate the production or manufacture, or any process of the production or manufacture, the possession, storage and sale of salt, and so far as such regulation is essential for the proper levy and collection of the duties imposed by this Act, of any other excisable goods, or of any component parts or ingredients or containers thereof;

(vi) provide for the employment of officers of the Government to supervise the carrying out of any rules made under this Act;

(vii) require a manufacturer or the licensee of a warehouse to provide accommodation within the precincts of his factory or warehouse for officers employed to supervise the carrying out of regulations made under this Act and prescribe the scale of such accommodation;

(viii) provide for the appointment, licensing, management and supervision of bonded warehouses and the procedure to be followed in entering goods into and clearing goods from such warehouses;

(ix) provide for the distinguishing of goods which have been 9[manufactured after registration], of materials which have been imported under licence, and of goods on which duty has been paid, or which are exempt from duty under this Act;

(x) impose on persons engaged in the production or manufacture, storage or sale (whether on their own account or as brokers or commission agents) of salt, and, so far as such imposition is essential for the proper levy and collection of the duties im­posed by this Act, of any other excisable goods, the duty of furnishing information, keeping records and making returns, and prescribe the nature of such information and the form of such records and returns, the particulars to be contained therein, and the manner in which they shall be verified;

(xi) require that excisable goods shall not be sold or offered or kept for sale in 10[India] except in prescribed containers, bear­ing a banderol, stamp or label of such nature and affixed in such manner as may be prescribed;

(xii) provide for the issue of 11[registration certificates] and transport permits and the fees, if any, to be charged therefore:

Provided that the fees for the licensing of the manufacture and refining of salt and saltpetre shall not exceed, in the case of each such licence, the following amounts, namely:—

Licence to manufacture and refine saltpetre and to separate and purifyRs.
  salt in the process of such manufacture and refining50
Licence to manufacture saltpetre02
Licence to manufacture sulphate of soda (kharinun) byRs
solar heat in evaporating pans10
Licence to manufacture sulphate of soda (kharinun) by artificial heat02
Licence to manufacture other saline substances02

(xiii) provide for the detention of goods, plant, machinery or material, for the purpose of exacting the duty, the procedure in connection with the confiscation, otherwise than under section 10 or section 28, of goods in respect of which breaches of the Act or rules have been committed, and the disposal of goods so de­tained or confiscated;

(xiv) authorise and regulate the inspection of factories and provide for the taking of samples, and for the making of tests, of any substance produced therein, and for the inspection or search of any place or conveyance used for the production, stor­age, sale or transport of salt, and so far as such inspection or search is essential for the proper levy and collection of the duties imposed by this Act, of any other excisable goods;

(xv) authorise and regulate the composition of offences against, or liabilities incurred under this Act or the rules made there­under;

(xvi) provide for the grant of a rebate of the duty paid on goods which are exported out of India or shipped for consumption on a voyage to any port outside India 12[including interest thereon];

13[***]

14[(xvia) provide for the credit of duty paid or deemed to have been paid on the goods used in, or in relation to, the manufac­ture of excisable goods;]

15[(xviaa) provide for credit of service tax leviable under Chapter V of the Finance Act, 1994 (32 of 1994), paid or payable on taxable services used in, or in relation to, the manufacture of excisable goods;]

16[(xvib) provide for the giving of credit of sums of money with respect to raw materials used in the manufacture of excisable goods;]

17[(xvic) provide for charging and payment of interest as the case may be, on credit of duty paid or deemed to have been paid on the goods used in, or in relation to, the manufacture of excisable goods where such credit is varied subsequently;]

(xvii) exempt any goods from the whole or any part of the duty imposed by this Act;

18[(xviia) provide incentives for increased production or manufac­ture of any goods by way of remission of, or any concession with respect to, duty payable under this Act;]

(xviii) define an area no point in which shall be more than one hundred yards from the nearest point of any place in which salt is stored or sold by or on behalf of the Central Government, or of any factory in which saltpetre is manufactured or refined, and regulate the possession, storage and sale of salt within such area;

(xix) define an area round any other place in which salt is manufactured, and regulate the possession, storage and sale of salt within such area;

(xx) authorise the 19[Central Board of Excise and Customs consti­tuted under the Central Boards of Revenue Act, 1963 (54 of 1963)] or 20[Commissioners of Central Excise] appointed for the purposes of this Act to provide, by written instructions, for supplemental matters arising out of any rule made by the Central Government under this section;

21[(xxi) provide for the publication, subject to such conditions as may be specified therein, of names and other particulars of persons who have been found guilty of contravention of any of the provisions of this Act or of any rule made thereunder;]

22[(xxii) provide for the charging of fees for the examination of excisable goods intended for export out of India and for render­ing any other service by a Central Excise Officer under this Act or the rules made thereunder.]

23[(xxiii) specify the 24[form and manner] in which application for refund shall be made under section 11B;

(xxiv) provide for the manner in which money is to be credited to the Fund;

(xxv) provide for the manner in which the Fund shall be utilised for the welfare of the consumers;

(xxvi) specify the form in which the account and records relating to the Fund shall be maintained;]

25[(xxvii) specify the persons who shall get themselves registered under section 6 and the manner of their registration.]

26[(xxviii) provide for the lapsing of credit of duty lying unutilised with the manufacturer of specified excisable goods on an appointed date and also for not allowing such credit to be utilised for payment of any kind of duty on any excisable goods on and from such date.]

27[(2A) The power to make rules conferred by clause (xvi) of sub-section (2) shall include the power to give retrospective effect to rebate of duties on inputs used in the export goods from a date not earlier than the changes in the rates of duty on such inputs.]

(3) In making rules under this section, the Central Government may
provide that any person committing a breach of any rule shall, where no other penalty is provided by this Act, be liable to a penalty not exceeding 28[five thousand rupees].

29[(4) Notwithstanding anything contained in sub-section (3), and without prejudice to the provisions of section 9, in making rules under this section, the Central Government may provide that if any manufacturer, producer or licensee of a warehouse—

(a) removes any excisable goods in contravention of the provi­sions of any such rule, or

(b) does not account for all such goods manufactured, produced or stored by him, or

(c) engages in the manufacture, production or storage of such goods without having applied for the 30[registration as] required under section 6, or

31[(d) contravenes the provisions of any such rule with intent to evade payment of duty, then all such goods shall be liable to confiscation and the manufacturer, producer or licensee shall be liable to a penalty not exceeding the duty leviable on such goods or 32[two thousand rupees], whichever is greater.]

33[(5) Notwithstanding anything contained in sub-section (3), the Central Government may make rules to provide for the imposition upon any person who acquires possession of, or is in any way concerned in transporting, removing, 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 the rules made thereunder, a penalty 34[not exceeding the duty leviable on such goods or 35[two thousand rupees], whichever is greater].]

———-

* For the period commencing on and from the 1st day of March, 1983 and ending with the 28th day of February, 1987, sub-section (1) of section 37 shall stand substituted and shall be deemed to have effect as if for the said sub-section, the following sub-section had been so substituted, namely:—

“(1) The Central Government may make rules, including rules conferring the power to issue notifications with retrospective effect under those rules, to carry into effect the purposes of this Act.”.

Note.—Amendment made to sub-section (1) shall be in addition to, and not in derogation of, the provisions of section 4.

Vide The Central Excise Laws (Amendment and Validation) Ordinance, 2005 (1 of 2005), sec. 2 (w.e.f. 25-1-2005).

1. Ins. by Act 22 of 1973, sec. 3 (w.e.f. 1-9-1973).

2. Clause (i) re-numbered as clause (ib) by Act 22 of 1973, sec. 3 (w.e.f. 1-9-1973).

3. Ins. by Act 27 of 1999, sec. 131 (w.e.f. 11-5-1999).

4. Ins. by Act 25 of 1978, sec. 25 (w.e.f. 1-7-1978).

5.Ins. by Act 23 of 2004, sec. 85 (w.e.f. 10-9-2004).

6. Certain words omitted by Act 41 of 1954, sec. 2 and Sch. (w.e.f. 8-10-1954).

7. Subs. by Act 25 of 1950, sec. 11 and Sch. IV, for “the States”.

8. Subs. by Act 18 of 1992, sec. 113, for “licensed” (w.e.f. 4-5-1992).

9. Subs. by Act 18 of 1992, sec. 113, for “manufactured under licence” (w.e.f. 4-5-1992).

10. Subs. by Act 25 of 1950, sec. 11 and Sch. IV, for “the States”.

11. Subs. by Act 18 of 1992, sec. 113, for “licences” (w.e.f. 4-5-1992).

12. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1995).

13. Proviso omitted by Act 49 of 1957, sec. 2 (w.e.f. 20-12-1957).

14. Ins. by Act 23 of 1986, sec. 51 (w.e.f. 13-5-1987).

15. Ins. by Act 23 of 2004, sec. 85 (w.e.f. 10-9-2004).

16. Ins. by Act 11 of 1987, sec. 94 (w.e.f. 12-5-1987).

17. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1995).

18. Ins. by Act 14 of 1982, sec. 48 (w.e.f. 11-5-1982).

19. Subs. by Act 54 of 1963, sec. 5, for “Central Board of Reve­nue” (w.e.f. 1-1-1964).

20. Subs. by Act 22 of 1995, sec. 70, for “Collectors of Central Excise” (w.e.f. 26-5-1995).

21. Ins. by Act 36 of 1973, sec. 24 (w.e.f. 1-9-1973).

22. Ins. by Act 79 of 1985, sec. 6 (w.e.f. 27-12-1985).

23. Ins. by Act 40 of 1991, sec. 8 (w.e.f. 20-9-1991).

24. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1999).

25. Ins. by Act 18 of 1992, sec. 113 (w.e.f. 4-5-1992).

26. Ins. by Act 27 of 1999, sec. 131 (w.r.e.f. 16-3-1995).

27. Ins. by Act 22 of 1995, sec. 78 (w.e.f. 26-5-1999).

28. Subs. by Act 10 of 2000, sec. 108, for certain words (w.e.f. 12-5-2000).

29. Ins. by Act 19 of 1968, sec. 38(1) (w.e.f. 11-5-1968).

30. Subs. by Act 18 of 1992, sec. 113, for “licence” (w.e.f. 4-5-1992).

31. Subs. by Act 10 of 2000, sec. 108, for certain words, (w.e.f. 12-5-2000).

32. Subs. by Act 22 of 2007, sec. 132(i), for “ten thousand rupees” (w.e.f. 11-5-2007

33. Ins. by Act 36 of 1973, sec. 24 (w.e.f. 1-9-1973).

34. Subs. by Act 10 of 2000, sec. 108, for certain words, (w.e.f. 12-5-2000).

35.Subs. by Act 22 of 2007, sec. 132(ii), for “ten thousand rupees” (w.e.f. 11-5-2007).

37A. DELEGATION OF POWERS.

1[37A. Delegation of powers.—The Central Government may, by notification in the Official Gazette, direct that subject to such conditions, if any, as may be specified in the notification—

(a) any power exercisable by the Board under this Act may be exercisable also by 2[a 3[Chief Commissioner of Central Ex­cise] or a 4[Commissioner of Central Excise]] empowered in this behalf by the Central Government;

(b) any power exercisable by a 4[Commissioner of Central Excise] under this Act may be exercisable also by a 5[Joint Commissioner of Central Excise] or an 6[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] empowered in this behalf by the Central Government; and

(c) any power exercisable by a 7[Joint Commissioner of Central Excise] under this Act may be exercisable also by an 6[Assistant Commissioner of Central Excise] empowered in this behalf by the Central Govern­ment; and

(d) any power exercisable by an 6[Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under this Act may be exercisable also by a gazetted officer of Central Excise empowered in this behalf by the Board.]

—————

1. Ins. by Act 25 of 1978, sec. 26 (w.e.f. 1-7-1978).

2. Subs. by Act 29 of 1988, sec. 14, for “a Collector of Central Excise” (w.e.f. 16-8-1988).

3. Subs. by Act 22 of 1995, sec. 70, for “Principal Collector of Central Excise” (w.e.f. 26-5-1995).

4. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).

5. Subs. by Act 27 of 1999, sec. 119(a), for “Deputy Commissioner of Central Excise” (w.e.f. 11-5-1999).

6. Subs. by Act 27 of 1999, sec. 119(a), for “Assistant Commissioner of Central Excise” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Central Excise” were substituted by Act 22 of 1995, sec. 70, for “Assistant Collector of Central Excise” (w.e.f. 26-5-1995).

7. Subs. by Act 27 of 1999, sec. 119(a), for “Deputy Commissioner of Central Excise” (w.e.f. 11-5-1999). Earlier the words “Deputy Commissioner of Central Excise” were substituted by Act 22 of 1995, sec. 70, for “Deputy Collector of Central Excise (w.e.f. 26-5-1995).

37B. INSTRUCTIONS TO CENTRAL EXCISE OFFICERS.

137B. INSTRUCTIONS TO CENTRAL EXCISE OFFICERS.

The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board :

Provided that no such orders, instructions or directions shall be issued –

(a) So as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or

(b) So as to interfere with the discretion of the 2Commissioner of Central Excise (Appeals) in the exercise of his appellate functions.

—————

1. Ins. by Act 79 of 1985, sec.7 (w.e.f. 27-12-1985).

2. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise (Appeals)” (w.e.f. 26-5-1995).

37C. SERVICE OF DECISIONS, ORDERS, SUMMONS, ETC.

(1) Any decision or order passed or any summons or notices issued under this Act or the rules made there under, shall be served, –

(a) By tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any;

(b) If the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;

(c) If the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.

(2) Every decision or order passed or any summons or notice issued under this Act or the rules made there under, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1).

37D. ROUNDING OFF OF DUTY, ETC.

137D. ROUNDING OFF OF DUTY, ETC.

The amount of duty, interest, penalty, fine or any other sum payable, and the amount of refund or any other sum due, under the provisions of this Act shall be rounded off to the nearest rupee and, for this purpose, where such amount contains a part of a rupee consisting of paise then, if such part is fifty paise or more, it shall be increased to one rupee and if such part is less than fifty paise it shall be ignored.

—————

1. Ins. by Act 12 of 1990, sec. 65 (w.e.f. 31-5-1990).

38. PUBLICATION OF RULES AND NOTIFICATIONS AND LAYING OF RULES BEFORE PARLIAMENT.

1[38. Publication of rules and notifications and laying of rules before Parliament.—(1) All rules made and notifications issued under this Act shall be published in the Official Gazette.

2[(2) Every rule made under the Act, every notification issued under 3[section 3A, section 4A,] sub-section (1) of section 5A, and section 11C and every order made under sub-section (2) of section 5A, other than an order relating to goods of strategic, secret, individual or personal nature, shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session, or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or order, or both Houses agree that the rule should not be made or notification or order should not be issued or made, the rule or notification or order shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notifi­cation or order.]]

—————

1. Subs. by Act 22 of 1973, sec. 4, for section 38 (w.e.f. 1-9-1973).

2. Subs. by Act 22 of 1995, sec. 79, for sub-section (2) (w.e.f. 26-5-1995). Earlier sub-section (2) was substituted by Act 29 of 1988, sec. 15, (w.e.f. 16-8-1988).

3. Ins. by Act 26 of 1997, sec. 84 (w.e.f. 14-5-1997).

39 . REPEAL OF ENACTMENTS.

[Repealed by the Repealing and Amending Act, 1947 (2 of 1948) s. 2 and Sch.]

40. PROTECTION OF ACTION TAKEN UNDER THE ACT.

140. PROTECTION OF ACTION TAKEN UNDER THE ACT.

(1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in pursuance of this Act or any rule made there under.

(2) No proceeding, other than a suit, shall be commenced against the Central Government or any officer of the Central Government or a State Government for anything done or purported to have been done in pursuance of this Act or any rule made there under, without giving the Central Government or such officer a month’s previous notice in writing of the intended proceeding and of the cause thereof or after the expiration of three months from the accrual of such cause.

—————

1. Subs. by Act 22 of 1973, sec. 5, for section 40 (w.e.f. 1-9-1973).

SCHEDULES

THE FIRST SCHEDULE –

The First Schedule.—[Rep. by the Central Excise Tariff Act, 1985 (5 of 1986),sec. 4 (w.e.f. 28-2-1986)].

THE SECOND SCHEDULE

(See sections 6 and 8)

PART A

Excisable goods specified for the purposes of section 6—

1. Tobacco

2. Betel-nuts When supplied by a curor to a wholesale dealer,

3. Coffee Whether directly or through a broker or commission agent.

PART B

Excisable goods specified for the purposes of section 8—

1. Tobacco.

THE THIRD SCHEDULE –

1[THE THIRD SCHEDULE
[See section 2(f)(iii)]
NOTES

1. In this Schedule, “heading”, “sub-heading” and “tariff item” mean respectively a heading, sub-heading and, tariff item in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986).

2. The rules for the interpretation of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), the section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, apply to the interpretation of this Schedule.

S.NoHeading, sub-heading or tariff itemDescription of goods
123
10402 91 10 or 0402 99 20Concentrated (condensed) milk, whether sweetened or not put up in unit containers and ordinarily intended for sale
21702Preparations of other sugar
31702Sugar syrups not containing added flavouring or colouring matter, artificial honey whether or not mixed with natural honey; caramel
41704Gums, whether or not sugar coated (including chewing gum, bubble gum and the like)
51704 90All goods
61805 00 00 or 1806 10 00Cocoa powder, whether or not containing added sugar or other sweetening matter
71806Other food preparations containing cocoa
81806 90 10Chocolates in any form, whether or not containing nuts, fruit, kernels or fruits including drinking chocolates
91901 20 00 or 1901 90All goods
101902All goods other than seviyan (Vermicelli)
111904All goods
121905 31 00 or 1905 90 20Biscuits, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power
131905 32 11 or 1905 32 90Waffles and wafers, coated with chocolate or containing chocolate
141905 32 19 or 1905 32 90All goods
152101 11 00 or 2101 12 00Extracts, essences and concentrates, of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee
162102All goods
172105 00 00Ice cream and other edible ice, whether or not containing cocoa
182106 90 20Pan masala, only in retail packs containing ten grams or more per pack, other than the goods containing not more than 15% betel nut by weight and not containing tobacco in any proportion
192106 90 30Betel nuts powder known as “Supari”
202106 90 11Sharbat
212106 10 00, 2106 90 19, 2106 90 40, 2106 90 50, 2106 90 60, 2106 90 70, 2106 90 80, 2106 90 91, 2106 90 99Edible preparations (excluding “Prasad or prasadam”), not elsewhere specified or included, bearing a brand name
222201Waters, including natural or artificial mineral waters (excluding Aerated waters), bearing a brand name
232201 10 20Aerated waters
242201 10 10Aerated waters
252201 10 90Waters, including mineral waters, bearing a brand name
262209Vinegar and substitutes for vinegar obtained from acetic acid
272403 99 10, 2403 99 20,2403 99 30Chewing tobacco and preparations containing chewing tobacco
282403 99 90Pan masala containing tobacco
292523 21 00White cement, whether or not artificially coloured and whether or not with rapid hardening properties
1[29A.252329All Goods]
302710Lubricating oils and lubricating preparations
313004(i) Patent or proprietary medicaments, other than those medicaments which are exclusively ayurvedic, Unani, Siddha, Homoeopathic or Biochemic; (ii) Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic systems.Explanation.—For the purposes of this heading, “Patent or proprietary medicaments” means any drug or medicinal preparation, in whatever form, for use in the internal or external treatment of, or for the prevention of ailments in human beings or animals, which bears either on itself or on its container or both, a name which is not specified in a monograph, in a Pharmacopoeia, Formulary or other publications, namely:—(a) the Indian Pharmacopoeia;
(b) the International Pharmacopoeia;
(c) the National Formulary of India;
(d) the British Pharmacopoeia;
(e) the British Pharmaceutical Codex;
(f) the British Veterinary Codex;
(g) the United States Pharmacopoeia;
(h) the National Formulary of the U.S.A;
(i) the Dental Formulary of the U.S.A.; and
(j) the State Pharmacopoeia of the U.S.S.R.,
or which is a brand name, that is, a name or a
registered trade mark under the Trade Marks Act, 1999 (47 of 1999), or any other mark such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to that medicine for the purpose of indicating or so as to indicate a connection in the course of trade between the medicine and some person, having the right either as proprietor or otherwise to use the name or mark with or without any indication of the identify of that person.
323204 20 or 3204 90 00Synthetic organic products of a kind used as florescent brightening agents or as a uminophores
333206All goods other than pigments and inorganic products of a kind used as luminophores
342201 10 10All goods
352201 10 10Dyes and other colouring matter put up in forms or small packing of kind used for domestic or laboratory purposes
36(i) 3213(ii) 3214All goodsAll goods excluding primers (heading 3208),
varnishes (heading 3209)
37(i) 3303 or 3304(ii) or 3305Perfumes and toilet waters, not containing the substances specified in Note 1(d) to this Chapter.All goods
383306Toothpaste
393307All goods, not containing the substances specified in Note 1(d) to this Chapter
403401Soaps in any form other than the following: (i) soap, other than for toilet use, whether or not containing medicament or disinfectant; (ii) soap, in or in relation to the manufacture of which no process has been carried on with the aid of power or of steam; and (iii) laundry soaps produced by a factory owned by the Khadi and Village Industries Commission or any organisation approved by the said Commission for the purpose of manufacture of such soaps.
41(i) 3401(ii) 3402Organic surface-active products and preparations for use as soap in the form of bars, cakes, moulded pieces of shapes(ii) All goods other than sulphonated castor oil, fish oil or sperm oil
423403Lubricating preparations (including cutting-oil preparations, bolt or nut release preparations, antirust or anti-corrosion preparations and mould release preparations based on lubricants)
433405Polishes and creams, for footwear, furniture, floors, coachwork, glass or metal, scouring pastes and powders and similar preparations (whether or not in the form of paper, wadding, felt, non-wovens, cellular plastics or cellular rubber, impregnated, coated or covered with such preparations), excluding waxes of heading No. 3404
443506Prepared glues and other prepared adhesives, not elsewhere specified or included
453702All goods other than for X-ray and cinematograph films, unexposed
463808Insecticides, fungicides, herbicides, weedicides and pesticides
473808Disinfectants and similar products
47A3808 9340Plant growth regulators
483814 00 10Thinners
493819Hydraulic brake fluids and other prepared liquids for hydraulic transmission, not containing or containing less than 70% by weight of petroleum oils obtained from bituminous minerals
503820 20 00Anti-freezing preparations and prepared de-icing fluids
513824 or 3825Stencil correctors and other correcting fluids, ink removers put up in packings for retail sale
523919Self-adhesive tapes of plastics
533923 or 3924Insulated ware
544816Carbon paper, self-copy paper, duplicator stencils of paper
554818Cleansing or facial tissues, handkerchiefs and towels of paper pulp, paper cellulose wadding or webs of cellulose fibres
566401 to 6405Footwear
576506 10Safety headgear
586907Vitrified tiles, whether polished or not
596908Glazed tiles
607321Cooking appliances and plate warmers
617323Pressure cookers
627324Sanitary ware of iron or steel

1. Ins. by the Finance Act, 2007

123
637418Sanitary ware of copper
647615 19 10Pressure cookers
658212Razor and razor blades (including razor blade blanks in strips)
668305Staples in strips, paper clips of base metal
678414Electric fans
688415Window room air-conditioners and split airconditioners of capacity up to 3 tonnes
698418Refrigerators
708421Water filters and water purifiers, of a kind used for domestic purposes
718422Dish washing machines
71A8443 3100 or 844332Printer, whether or not combined with the functions of copying or facsimile transmission
71B84433260 or 84433970Facsimile machines
71C84439951Ink cartridges, with print head assembly]
728450Household or laundry type washing machines, including machines which both wash and dry
738469Typewriters, other than braille typewriters
748470Calculating machines and pocket-size data recording, reproducing and displaying machines with calculating functions
74A847130All goods]
74B847160All goods]
758472Stapling machines (Staplers)
768506Primary cells and primary batteries
76A8508Vacuum Cleaners with self contained electric motor]
7785094[Electro-mechanical domestic appliances with self contained electric motor, other than vacuum cleaners of heading 8508]
788510Shavers, hair clippers and hair-removing appliances, with self-contained electric motor
798513Portable electric lamps designed to function by their own source of energy (for example, dry batteries, accumulators, magnetos), other than lighting equipment of heading 8512
808516Electric instantaneous or storage water heaters and immersion heaters, electric space heating apparatus and soil heating apparatus, electro-thermic hair-dressing apparatus (for example, hair dryers, hair
curlers, curling tong heaters) and hand dryers;
electric smoothing iron; other electro-thermic
appliances of a kind used for domestic purposes

1. Subs. by the Finance Act, 2007, sec. 133 and Sch. IV, for S. No. 71A. Earlier S. No. 71A was inserted by Act 21 of 2006, sec. 66 and Sch. V w.e.f. 1-1-2007). S. No. 71A, before substitution by the Finance Act, 2007, stood as under: “71A. 8443 Fascimile machines”.

2. Ins. by the Finance Act, 2007.

3. Ins. by Act 21 of 2006, sec. 66 and Sch. V. (w.e.f. 1-1-2007).

4. Subs. by Act 21 of 2006, for “Electro-mechanical domestic appliances with self-contained electric motor” (w.e.f. 1-1-2007).

123
818517Telephone sets including telephones with cordless handsets; video phones; 1[***]
81A85176230Modems (modulators-demodulators)
81B85176960Set top boxes for gaining access to internet]
823[8519]All goods
838521All goods
8485234[Unrecorded audio cassettes; recorded or unrecorded video cassettes; recorded or unrecorded magnetic discs]
855[***]5[***]
866[***]6[***]
877[***]7[***]
888[***]8[***]
898525 or 8517Cellular or mobile phones
89A8527Pagers]
908527Radio sets including transistor sets, having the facility of receiving radio signals and converting the same into audio output with no other additional facility like sound recording or reproducing or clock in the same housing or attached to it
918527Reception apparatus for radio-broadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock
92A8528Monitors of a kind solely or principally used in an automatic data processing machine
92B85287100Set top boxes for television sets]
9310[8536All goods

1. Words “Facsimile machines” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

2. Ins. by the Finance Act, 2007.

3. Subs by the Finance Act, 2007, for “8519 or 8520”.

4. Subs. by Act 21 of 2006, sec. 66 for “Unrecorded audio cassette” (w.e.f. 1-1-2007).

5. Figures and words “8523 Video cassettes” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

6. Figures and words “8523 magnetic discs” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

7. Figures and words “8524 Video cassettes” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

8. Figures and words “8524 Magnetic discs” omitted by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007).

9. Subs. by Act 21 of 2006, sec. 66 (w.e.f. 1-1-2007). Before substitution, Sr. No. 89 stood as: “89. 8525 Pagers. Cellular or mobile phones”.

10. Subs by the Finance Act, 2007, for “8536”.

948539Electric filament or discharge lamps, including sealed beam lamp units and ultra-violet or infra-red lamps; arc lamps
959006All goods]
969101 or 9102Stapling machines (Staplers)
979103 or 9105Clocks
97A96032100Toothbrush]
989612All goods]
999617Vacuum flasks
100Any headingParts, components and assemblies of automobiles

1. Ins. by the Finance Act, 2007.

2. Ins. by Act 21 of 2006, sec. 66 (w.e.f. 1-6-2006).

3. S. No. 101 omitted by the Finance Act, 2007. S. No. 101, before omission, stood as under: “101. 3808 30 40 Plant-growth regulator”.

4. S. No. 102 omitted by the Finance Act, 2007. S. No. 102, before omission, stood as under: “102. 9603 21 00 Toothbrush”.

Bydeb

The Service Tax Statutory Provisions, 1994

1. EXTENT, COMMENCEMENT AND APPLICATION.

(1) This Chapter extends to the whole of India except the State of Jammu and Kashmir.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint [ 1st July,1994 ]

(3) It shall apply to taxable services provided on or after the commencement of this Chapter.

2. DEFINITIONS.

(1) “advertisement” includes any notice, circular, label, wrapper, document, hoarding or any other audio or visual representation made by means of light, sound, smoke or gas;

(2) “advertising agency” means any commercial concern engaged in providing any service connected with the making, preparation, display or exhibition of advertisement and includes an advertising consultant;

(3) “air travel agent” means any person engaged in providing any service connected with the booking of passage for travel by air;

(4) “Appellate Tribunal” means the Customs, Excise and Gold (Control) Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962);

(5) “architect” means any person whose name is ,for time being, entered in register of architects maintained under Section 23 of Architect’s Act, 1972,and also includes any commercial concern engaged in any manner ,whether directly or indirectly, in rendering services in the field of architecture;

(6) “assessee” means a person liable to any the service tax and includes his agent;

(7) “Board” means the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963(54 of 1963);

(8) “body corporate” shall have the meaning assigned to it in or under clause (7) of section (2) of the Companies Act,1956;

(9) “cab” means a motor cab or maxi cab;

(10) “caterer” means any person who supplies, either directly or indirectly, any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose or occasion;

(11) “Central Excise Officer” has the meaning assigned to it in clause (b) of section 2 of the Central Excise Act, 1944(1 of 1994);

(12) “clearing and forwarding agent” means any person who is engaged in providing any service, either directly or indirectly, connected with clearing and forwarding operations in any manner to any other person and includes a consignment agent;

(13) “consulting engineer” means any professionally qualified engineer or an engineering firm who, either directly or indirectly, renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering;

(14) “courier agency” means a commercial concern engaged in the door-to-door transportation of time-sensitive documents, goods or articles utilising the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles;

(15) “credit rating agency” means any commercial concern engaged in the business of credit rating of any debt obligation or of any project or programme requiring finance, whether in form of debt or otherwise , and includes credit rating of any financial obligation, instrument or security which has the purpose of providing a potential investor or any other person any information pertaining to the relative safety of timely payment of interest or principal;

(16) “custom house agent” means a person licensed, temporarily or otherwise, under the regulations made under sub-section (2) of section 146 of the Customs Act,1962);

(17) “general insurance business” has the meaning assigned to it in clause (g) of section 3 of the General Insurance Business (Nationalization) Act, 1972;

(18) “goods” has the meaning assigned to it in clause (7) of section 2 of the Sale of Goods Act, 1930; 1a ]

(19)”insurer” means any person carrying on the general insurance business in India;

(20) “interior decorator” means any person engaged , whether directly or indirectly ,in the business providing by way of advice ,consultancy ,technical assistance or in any other manner services related to planning ,designing or beautification of spaces ,whether man-made or otherwise or includes a landscape designer;

(21) “management consultant” means any person who is engaged in providing any service ,either directly or indirectly in connection with the management of any organisation in any manner and includes any person who renders advice, consultancy, or technical assistance relating to conceptualizing ,devising, development, modification, rectification or upgrade ion of any working system of any organization;

(22) “man dap” means any immovable property as defined in section 3 of the Transfer of Property Act, 1882 (4 of 1882), and includes any furniture, fixtures, light fittings and floor coverings therein let out for consideration for organising any official, social or business function;

(23) “man dap keeper” means a person who allows temporary occupation of a mandap for consideration for organising any official, social or business function;

(24) “manpower recruitment agency” means any commercial concern engaged in providing any service, directly or indirectly, in any manner for recruitment of manpower, to a client;

(25)” market research agency” means any commercial concern engaged in providing any services ;

(26) ” maxi cab” has a meaning assigned to it in clause (22) in section (2) of the Motor Vehicles Act ,1988;

(27) ” mechanised slaughter house” means a commercial concern engaged in the bussiness of slaughtering of animals with the aid of machine;

(28) “motor cab” has the meaning assigned to it in clause (2) of section 2 of the Motor Vehicles Act,1988;

(29) “pager” means an instrument, apparatus or appliance which is a non-speech, one way personal calling system with alert and has to capability of receiving, storing and displaying numeric or alpha-numeric messages;

(30) “policy holder” has the meaning assigned to it in clause (2) of section 2 of the Insurance Act, 1938;

(31) “practising chartered accountant” means a person who is a member of the Institute of Chartered Accountants of India and is holding a certificate of practice granted under the provisions of the Chartered Accountants Act. 1949, and includes any concern engaged in rendering services in the filed of chartered accountancy;

(32) “practising cost accountant” means a person who is a member of the Institute of Cost and Works Accountants of India and is holding a certificate of practice granted under the provisions of the Cost and Works Accountants Act ,1959 and includes any concern engaged in rendering services in the field of cost accountancy;

(33) “practising company secretary” means a person who is a member of the Institute of Company Secretaries of India and is holding a certificate of practice granted under the provisions of the Company Secretaries Act, 1980 and includes any concern engaged in rendering services in the field of company secretary ship;

(34) “prescribed” means prescribed by rules made under this Chapter;

(35) “real estate agent” means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting, of real estate, and includes a real estate consultant;

(36) “real estate consultant” means a person who renders in any manner, either directly or indirectly, advice, consultancy or technical assistance in relation to evaluation, conception. design, development, construction, implementation, supervision, maintenance, marketing. acquisition or management, of real estate;

(37) “recognised stock exchange” has the meaning assigned to it in clause (f) of section 2 of the Securities Contracts (Regulation) Act, 1956;

(38) “rent-a-cab scheme operator” means any person engaged in the business of renting of cabs;

(39) “securities” has the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 ;

(40) “security agency” means any commercial concern engaged in the business of rendering services relating to the security of any property, whether movable or immovable or of any person, in any manner and includes the services of investigations, detection or verification of any fact or activity, whether of a personal nature or otherwise, including the services of providing security personnel;

(41) “service tale” means tax livable under the provisions of this Chapter;

(42) “ship” means a sea-going vessel and includes a sailing vessel;

(43) “shipping line” means any person who owns or charters a ship and includes an enterprise which operates or manages the business of shipping;

(44) “steamer agent” means any person who undertakes, either directly or indirectly,-

(a) to perform any service in connection with the ship’s husbandry or dispatch including the rendering of administrative work related thereto; or

(b) to book, advertise or canvass for cargo for or on behalf of a shipping line, or

(c) to provide container feeder services for or on behalf of a shipping line;

(45) “stock-broker” means a stock-broker who has either made an application for registration or is registered as a stock-broker in accordance with the rules and regulations made under the Securities and Exchange Board of India Act, 1992;

(46) “sub-broker” means a sub-broker who has either made an application for registration or is registered as a sub-broker in accordance with the rules and regulations made under the Securities and Exchange Board of India Act, 1992;

(47) “subscriber” means a person to whom a telephone connection or a pager has been provided by the telegraph authority;

(48) “taxable service” means any service provided-

(a) to an investor, by a stock-broker in connection with the sale or purchase, of securities listed on a recognised stock exchanges;

(b) to a subscriber, by the telegraph authority in relation to a telephone connection;

(c) to a subscriber by the telegraph authority in relation to a pager;

(d) to a policy holder, by an insurer carrying on general insurance business in relation to general insurance business;

(e) to a client, by an advertising agency in relation to advertisements in any manner:

(f) to a customer, by a courier agency in relation to door-to-door transportation of time-sensitive documents, goods or articles;

(g) to a client, by a consulting engineer in relation to advice, consultancy or technical assistance in any manner in one or more disciplines of engineering,

(h) to a client, by a custom house agent in relation to the entry or departure of conveyances or the import or export of goods;

(i) to a shipping line, by a steamer agent in relation to a ship’s husbandry or dispatch or any administrative work related thereto as well as the booking, advertising or canvassing of cargo including container feeder services;

(j) to a client by a clearing and forwarding agent an relation to clearing and forwarding operations in any manner;

(k) to a client, by a manpower recruitment agency in relation to the recruitment of manpower in any manner;

(1) to a customer, by an air travel agent in relation to the booking of passage for travel by air;

(m) to a client, by a mandap keeper in relation to the use of a mandap in any manner including the facilities provided to the client in relation to such use and also in services, if any, rendered as a caterer:

(n) to any person by a tour operator in relation to a tour;

(o) to any person by a rent-a-cab scheme operator in relation to the renting of a cab;

(p) to a client, by an architect in his professional capacity in any manner;

(q) to a client, by an interior decorator in relation to planning design or beautification of spaces, whether man-made or otherwise, in any manner,

(r) to a client, by a management consultant in connection with the management of any organisation in any manner;

(s) to a client by a practising chartered accountant in his professional capacity in any manner;

(t) to a client, by a practising cost accountant in his professional capacity, in any manner,

(u) to a client, by a practising company secretary in his professional capacity, in any manner;

(v) to a client, by real estate agent in relation to real estate,

(w) to a client, by a security agency in relation to the security of any property or person, by providing security personnel or otherwise and includes the provision of services of investigation, detection or verification of any fact or activity,

(x) to a client, by a credit rating agency in relation to credit rating of any financial obligation, instrument or
security;

(y) to a client by a market research agency in relation to market research of any product service or utility, in any manner;

(z) to a client, by an underwriter in relation to underwriting in any manner;

(za) to any person, by a mechanised slaughter house in relation to the slaughtering of bovine animals;

(49) “telegraph authority” has the meaning assigned to it in clause (6) of section 3 of the Indian, Telegraph Act, 1885 and includes a person who has been granted a licence under the first proviso to sub-section (1) of section 4 of that Act;

(50) “tour” means a journey from one place to another irrespective of the distance between such places;

(51) “tourist” vehicle has the meaning assigned to it in clause (43) of section 2 of the Motor Vehicles Act, 1988;

(52) “tour operator” means any person engaged in the business of operating tours in a tourist vehicle covered by a tourist permit granted under the Motor Vehicle Act, 1988 or Rules made there under;

(53) “underwriter” has the meaning assigned to it in clause (f) of rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993;

(54) “underwriting” has the meaning assigned to it in clause (g) of rule 2 of the Securities and Exchange Board of India (Underwriters) Rules, 1993;

(55) words and expressions used but not defined in this Chapter and defined in the Central Excise Act, 1944 or the rules made there under, shall apply, so far as may be, in relation to service tax as they apply in relation to duty of excise

3. CHARGE OF SERVICE TAX.

(1) On and from the date of commencement of this Chapter 1ba , there shall be levied a tax (hereinafter referred to as the service tax), at the rate of five per cent. of the value of the taxable services referred to in sub-clauses0(a), (b) and (d) of clause (41) of section 65 collected in such amanner as may be prescribed.

(2) With effect from the date notified under 1bb section 85 of the Finance (No. 2) Act, 1996 (33 of 1996), there shall be levide a service tax at the rate of five per cent. of the value of the taxable services referred to in sub-clauses (c), (e) and (f) of clause (41) of section 65 collected in such a manner as may be prescribed.

(3) With effect from the date notified (T) under section 84 of the Finance Act, 1997, there shall be levied a service tax at the rate of five per cent. of the value of the taxable services referred to in sub-clauses (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q) and (r) of clause (41) of section 65 collected in such amanner as may be prescribed.

(4) With effect from the date notified under section 116 of the Finance (No. 2) Act, 1998 1bd , there shall be levide a service tax at the rate of five per cent of the value of the taxable services referred to in sub-clauses (p), (q) and (r), (s), (t), (w), (x), (y) and (z) of clause (41) of section 65 collected in such a manner as may be prescribed.

(5) With effect from the date notified under section 116 of the Finance (No. 2) Act, 1998 , there shall be levide a service tax at the rate of one thousand per anumn of the taxable services referred to in sub-clauses (za) of clause (48) of section 65 collected in such a manner as may be prescribed. 1b.

4. VALUATION OF TAXABLE SERVICES FOR CHARGING SERVICE TAX.

For the purposes of this Chapter, the value of taxable services, –

(a) in relation to service provided by a stock-broker, shall be the aggregate of the commission or brokerage charged by him on the sale or purchase of securities from the investors and includes the commission or brokerage paid by the stock-broker to any sub-broker;

(b) in relation to telephone connections provided to the subscribers, shall be the gross total amount (including adjustments made by the telegraph authority from any deposits made by the subscribers at the time of applications for telephone connections) received by the telegraph authority from the subscribers.

Explanation : For the removal of doubts, it is hereby declared that the value of taxable service in this clause shall not include the initial deposits made by the subscribers at the time of applications for telephone connections;

(c) in relation to services of general insurance business provided to the policy holders, shall be the total amount of the premium received by the insurer from the policy holders.

Amendment of insertion clauses (d) and (e) not known – insert it.

(d} in relation to service provided by an advertising agency to a client shall be the gross amount charged by such agency from client for the services in relation to advertisement.

(e) in relation to service provided by an courier agency to a customer shall be the gross amount charged by such agency from customer the services in relation to door-to-door transportation of time sensitive ,documents .goods and articles;

(f) in relation to service provided by a consulting engineer to a client, shall be the gross amount charged by such engineer from the client for advice, consultancy or technical assistance in any manner in one or more disciplines of engineering;

(g) in relation to service provided by a custom house agent to a client, shall be the gross amount charged by such agent from the client for services rendered in any manner in relation to the entry or departure of conveyances or in relation to the import or export of goods;

(h) in relation to service provided by a steamer agent to a shipping line, shall be the gross amount charged by such agent from the shipping line for services in relation to a ship’s husbandry or dispatch or any administrative work related thereto or in relation to the booking, advertising or canvassing of cargo, container feeder services, including the commission paid to such agent;

(i) in relation to service provided by a clearing and forwarding agent to a client, shall be the gross amount charged by such agent from the client for services of clearing and forwarding operations in any manner;

(j) in relation to service provided by a manpower recruitment agency to a client, shall be the gross amount charged by such agency from the client in relation to the recruitment of manpower in any manner;

(k) in relation to service provided by an air travel agent to a customer, shall be the gross amount charged by such agent from the customer for services in relation to the booking of passage for travel by air excluding the airfare but including the commission, if any, received from the airline in relation to such booking;

[ 1c (l) in relation to service provided by a mandap keeper to a client, shall be the gross amount charged by such keeper from the client for the use of mandap including the facilities provided to the client in relation to such use and also the charges for catering, if any;

(m) in relation to service provided by a tour operator to a client, shall be the gross amount charged by such operator from the client for services in relation to a tour and includes the charges for any accommodation, food or any other facilities provided in relation to such tour;

(n) in relation to the service provided by a rent a cab scheme operator to any person, shall be the gross amount charged by such operator from such person for services in relation to the renting of a cab and includes such rental.

(o) in relation to the service provided by an architect to a client, shall be the gross amount charged by such architect from the client for services rendered in professional capacity in any manner;

(p) in relation to the service provided by an interior decorator to a client, shall be the gross amount charged by such decorator from the client for services rendered in relation to planning, design or beautification of spaces in any manner;

(q) in relation to the service provided by a management consultant to a client, shall be the gross amount charged by such consultant from the client for services rendered in connection with the management of any organization in any manner;

(r) in relation to the service provided by a practising cost accountant to a client, shall be the gross amount charged by such accountant from the client for services rendered in professional capacity in any manner;

(s) in relation to the service provided by a practising cost accountant to a client, shall be the gross amount charged by such accountant from the client for services rendered in professional capacity in any manner;

(t) in relation to the service provided by a practising company secretary to a client, shall be the gross amount charged by such secretary from the client for services rendered in professional capacity in any manner;

(u) in relation to the service provided by a real estate agent to a client, shall be the gross amount charged by such agent from the client for services rendered in connection with the sale, purchase, leasing or renting of real estate including any advice, consultancy or technical assistance relating to evaluation, conception, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate;

(v) in relation to the service provided by a security agency to a client, shall be the gross amount charged by such agency from the client for service rendered in connection with the security of any property or person, and includes services of investigation, detection or verification of any fact or activity including services of providing security personnel;

(w) in relation to the service provided by a credit rating agency to a client, shall be the gross amount charged by such agency from the client for services rendered in connection with credit rating of any financial obligation, instrument or security in any manner;

(x) in relation to the service provided by a market research agency to a client, shall be the gross amount charged by such agency from the client for services rendered in connection with market research of any product, service or utility in any manner;

(y) in relation to the service provided by an underwriter to a client, shall be the gross amount charged by such underwriter from the client for services rendered in relation to underwriting in any manner.

5. PAYMENT OF SERVICE TAX.

(1) Every person providing taxable service to any person shall pay service tax at the rate specified in section 66 in such manner and within such period as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), in respect of any taxable service notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified at the rate specified in section 66 and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service.

6. REGISTRATION.

Every person liable to pay the service tax under this Chapter or the rules made thereunder shall, within such time and in such manner and in such form as may be prescribed, make an application for registration to the Central Excise Officer.

7. FURNISHING OF RETURNS.

Every person liable to pay the service tax shall furnish or cause to be furnished to the Central Excise Officer, a return in such form and in such manner and at such frequency as may be prescribed.

8. ASSESSMENT.

(1) For the purpose of making an assessment under this Chapter, the Central Excise Officer may serve on any person who has furnished a return under section 70, a notice requiring him to produce within such period as may be specified therein, such accounts, documents or other evidence as he may deem necessary for such assessment.

(2) The Central Excise Officer, after considering such accounts, documents or other evidence, if any, obtained under sub-section (1) and after taking into account any relevant material which he has gathered, shall, by an order in writing, assess the value of the taxable service and the amount of service tax payable on the basis of such assessment.

9. BEST JUDGMENT ASSESSMENT.

If – (a) any person fails to make the return under section 70, or”;

(b) any person having made a return fails to comply with all the terms of a notice issued under sub-section (1) of section 71, or

(c) the Central Excise Officer is not satisfied with the correctness or the completeness of the accounts of the assessee, the Central Excise Officer, after taking into account all the relevant material which he has gathered, shall, by an order in writing, make the assessment of the value of taxable service to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment.

10. VALUE OF TAXABLE SERVICES ESCAPING ASSESSMENT.

If – (a) the Central Excise Officer has reason to believe that by reason of omission or failure on the part of the assessee to make a return under section 70 for any quarter or to disclose wholly and truly all material facts necessary for his assessment for any quarter, the value of taxable service for that quarter has escaped assessment or has been under assessed, or

(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Central Excise Officer has, in consequence of information in his possession, reason to believe that the value of any taxable service assessable in any prescribed period has escaped assessment or has been under assessed, or

he may, in cases falling under clause (a), at any time within five years, and in cases falling under clause (b), at any time within six months from the date for filing the return, serve on the assessee a notice and proceed to assess or reassess the value of taxable service.

Explanation : Where the services for the notice is stayed by an order of a Court, the period of such stay shall be excluded in computing aforesaid period of five years or six months.

11. RECTIFICATION OF MISTAKE.

(1) With a view to rectifying any mistake apparent from the record, the Central Excise Officer who passed any order under the provisions of this Chapter may, within two years of the date on which such order was passed, amend the order.

(2) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the Central Excise Officer passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided.

(3) Subject to the other provisions of this section, the Central Excise Officer concerned –

(a) may make an amendment under sub-section (1) of his own motion; or

(b) shall make such amendment if any mistake is brought to his notice by the assessee or the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals).

(4) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this section unless the Central Excise Officer concerned has given notice to the assessee of his intention so to do and has allowed the assessee a reasonable opportunity of being heard.

(5) Where an amendment is made under this section, an order shall be passed in writing by the Central Excise Officer concerned.

(6) Subject to the other provisions of this Chapter where any such amendment has the effect of reducing the assessment, the Central Excise Officer shall make any refund which may be due to such assessee.

(7) Where any such amendment has the effect of enhancing the assessment or reducing the refund already made, the Central Excise Officer shall make an order specifying the sum payable by the assessee and the provisions of this Chapter shall apply accordingly.

12. INTEREST ON DELAYED PAYMENT OF SERVICE TAX.

Every person, liable to pay the tax in accordance with the provisions of section 68 or rules made thereunder, who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest at the rate of one and one-half per cent. for every month or part of the month by which such crediting of the tax or any part thereof is delayed.

13. PENALTY FOR FAILURE TO PAY SERVICE TAX.

Any person, liable to pay service tax in accordance with the provisions of section 68 or the rules made thereunder, who fails to pay such tax shall pay in addition to paying such tax, and interest on that tax in accordance with the provisions of section 75, a penalty which shall not be less than one hundred rupees but which may extend to two hundred rupees for every day during which such failure continues, so, however, that the penalty under this clause shall not exceed the amount of service tax that he failed to pay .

14. PENALTY FOR FAILURE TO FURNISH PRESCRIBED RETURN.

If a person fails to furnish in due time the return which he is required to furnish under section 70 or the rules made thereunder, he shall pay, by way of penalty, a sum which shall not be less than one hundred rupees but which may extend to two hundred rupees for every week or part thereof during which such failure continues.

15. PENALTY FOR SUPPRESSING VALUE OF TAXABLE SERVICE.

If the Central Excise Officer in the course of any proceedings under this Chapter is satisfied that any person has, with intent to evade payment of service tax, suppressed or concealed the value of taxable service or has furnished inaccurate value of such taxable service, he may direct that such person shall pay by way of penalty, in addition to service tax and interest, if any, payable by him, a sum which shall not be less than, but which shall not exceed twice, the amount of service tax sought to be evaded by reason of suppression or concealment of the value of taxable service or the furnishing of inaccurate value of such taxable service :

Provided that if the value of taxable service (as determined by the Central Excise Officer on assessment) in respect of which value has been suppressed or concealed or inaccurate value has been furnished exceeds a sum of twenty-five thousand rupees, the Central Excise Officer shall not issue any direction for payment by way of penalty without the previous approval of the Commissioner Central Excise.

16. PENALTY FOR FAILURE TO COMPLY WITH NOTICE.

If the Central Excise Officer in the course of any proceedings under this Chapter is satisfied that any person has failed to comply with a notice under sub-section (1) of section 71, he may direct that such person shall pay, by way of penalty, in addition to any service tax and interest, if any, payable by him, a sum which shall not be less than ten per cent, but which shall not exceed fifty per cent, of the amount of the service tax, if any, which would have been avoided if the value of taxable service stated in the return by such person had been accepted as the correct value of taxable service.

17. PENALTY NOT TO BE IMPOSED IN CERTAIN CASES.

Notwithstanding anything contained in the provisions of section 76, section 77, section 78 or section 79, no penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure.

18. OFFENCES BY COMPANIES.

(1) Where an offence under this Chapter 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 Chapter, if he proves that the offence was committed without his knowledge and 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 Chapter 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 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 any body corporate and includes a firm or other association of individuals; and

(b) “director” in relation to a firm means a partner in the firm.

19. POWER TO SEARCH PREMISES.

(1) If the Commissioner of Central Excise has reason to believe that any documents or books or things which in his opinion will be useful for or relevant to any proceeding under this Chapter are secreted in any place, he may authorise any other Central Excise Officer to search or may himself search for such documents or books or things.

(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches, shall, so far as may be, apply to searches under this section as they apply to searches under that Code.

20. APPLICATION OF CERTAIN PROVISIONS OF ACT (1 OF 1944).

The provisions of the following sections of the Central Excises Act, 1944, as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise :-

9C, 9D, 11, 11B, 11BB, 12A, 12B, 12C, 12D, 12E, 14, 15, 35F to 35O (both inclusive), 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D and 40.

21. REVISION OF ORDERS BY THE COMMISSIONER CENTRAL EXCISE.

(1) The Commissioner of Central Excise may call for the record of a proceeding under this Chapter which has been taken by the Central Excise Officer subordinate to him and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit.

(2) No order which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard.

(3) The Commissioner Central Excise shall communicate the order passed by him under sub-section (1) to the assessee, the Central Excise Officer and the Board.

(4) No order under this section shall be passed by the Commissioner of Central Excise in respect of any issue if an appeal against such issue is pending before the Commissioner of Central Excise (Appeals).

(5) No order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed.

22. APPEALS TO THE COLLECTOR OF CENTRAL EXCISE (APPEALS).

(1) Any person aggrieved by any assessment order passed by the Central Excise Officer under section 71, section 72 or section 73, or denying his liability to be assessed under this Chapter, or by an order levying interest or penalty under this Chapter, may appeal to the Commissioner of Central Excise (Appeals) .

(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.

(3) An appeal shall be presented within three months from the date of receipt of the decision or order of the Central Excise Officer, relating to service tax, interest or penalty under this Chapter :

Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.

(4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty :

Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.

(5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excises and Salt Act, 1944 (1 of 1944).

23. APPEALS TO APPELLATE TRIBUNAL.

(1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under section 84, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order.

(2) The Board may, if it objects to any order passed by the Commissioner of Central Excise under section 84, or the Commissioner of Central Excise may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct the Central Excise Officer to appeal to the Appellate Tribunal against the order.

(3) Every appeal under sub-section (1) or sub-section (2) shall be filed within three months of the date on which the order sought to be appealed against is received by the assessee, the Board or by the Commissioner of Central Excise, as the case may be.

(4) The Central Excise Officer or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, within forty-five days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).

(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4) if it is satisfied that there was sufficient cause for not presenting it within the period.

(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, except in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4), be accompanied by a fee of two hundred rupees.

(7) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excises and Salt Act, 1944 (1 of 1944).

24. WILLFUL ATTEMPT TO EVADE SERVICE TAX, ETC.

If a person willfully attempts in any manner whatsoever to evade collection or payment of any service tax, interest or penalty chargeable or imposable under this Chapter, or to suppress or conceal the total value of taxable services, he shall, without prejudice to any penalty that may be imposable on him under any other provisions of this Chapter, be punishable with imprisonment for a term which may extend to seven years and with fine.

Explanation. – For the purposes of this section, a willful attempt to evade payment of any service tax, interest or penalty chargeable or imposable under this Chapter shall include a case where any person –

(i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Chapter) containing a false entry or statement; or

(ii) makes or causes to be made any false entry or statement in such books of account or other document; or

(iii) willfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or

(iv) causes any other circumstances to exist which will have the effect of enabling such person to evade payment of any service tax, interest or penalty chargeable or imposable under this Chapter.

25. FAILURE TO FURNISH PRESCRIBED RETURNS.

If a person fails to furnish the return which he is required to furnish by a notice given under sub-section (2) of section 70, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Chapter, be punishable with imprisonment for a term which may extend to three years and with fine.

26. FALSE STATEMENT IN VERIFICATION, ETC.

If a person makes a statement in any verification under this Chapter or any rule made thereunder, or delivers an account or statement, which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable with imprisonment for a term which may extend to three years and with fine.

27. ABETMENT OF FALSE RETURN, ETC.

If a person abets or induces in any manner another person to make and deliver an account or a statement or declaration relating to any taxable service which is false and which he either knows to be false or does not believe to be true or to commit an offence under section 87, he shall be punishable with imprisonment for a term which may extend to seven years and with fine.

28. CERTAIN OFFENCES TO BE NON-COGNIZABLE.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under section 87 or section 88 or section 89 or section 90 shall be deemed to be non-cognizable within the meaning of that Code.

29. INSTITUTION OF PROCEEDINGS.

A person shall not be proceeded against for any offence under section 87 or section 88 or section 89 or section 90 except with the previous sanction of the Principal Commissioner of Central Excise.

30. POWER TO GRANT EXEMPTION FROM SERVICE TAX.

(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 or subject to such conditions as may be specified in the notification, taxable service of any specified description from the whole or any part of the service tax leviable
thereon.

(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 any taxable service of any specified description from the payment of whole or any part of the service tax leviable thereon, under circumstances of exceptional nature to be stated in such order.

31. POWER TO MAKE RULES.

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Chapter.

(2)In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:

(a) collection and recovery of service tax under sections 66 and 68;

(b) the time and manner and the form in which application for registration shall be made under section 69;

(c) the form, manner and frequency of the returns to be furnished under section 70;

(d) the form in which appeal under section 85 or under sub-section (6) of section 86 may be filed and the manner in which they may be verified;

(e) the manner in which the memorandum of cross objections under sub-section (4) of section 86 may be verified;

(f) any other matter which by this Chapter is to be or may be prescribed.

(3) The power to make rules conferred by this section shall on the first occasion of the exercise thereof include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Chapter come into force.

(4) Every rule made under this Chapter and every notification issued under section 93 shall be laid, as soon as may be, after it is made or issued, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule should not be made or the notification should not be issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

32. POWER TO REMOVE DIFFICULTIES.

(1) If any difficulty arises in giving effect to the provisions of this Chapter, the Central Government may, by order published in the Official Gazette, not inconsistent with the provisions of this Chapter, remove the difficulty :

Provided that no such order shall be made after the expiry of a period of two years from the date on which the provisions of this Chapter come into force.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

33. CONSEQUENTIAL AMENDMENT.

In the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974), in the Schedule, after Entry 7 relating to the Central Excises and Salt Act, 1944 (1 of 1944),the following entry shall be inserted, namely :

“7A. Chapter V of the Finance Act, 1994.

The Finance ministry has issued a Notification No 25/2012 Service tax dated June 20, 2012 exempting Advocates from Service Tax

This is what the Notification says :

Services provided by

(a) an arbitral tribunal to –

(i) any person other than a business entity; or

(ii) a business entity with a turnover up to rupees ten lakh in the preceding financial year;

(b) an individual as an advocate or a partnership firm of advocates by way of legal services to,-

(i) an advocate or partnership firm of advocates providing legal services ;

(ii) any person other than a business entity; or

(iii) a business entity with a turnover up to rupees ten lakh in the preceding financial year; or

(c) a person represented on an arbitral tribunal to an arbitral tribunal

Bydeb

Rajasthan Sales Tax Act, 1994

Preamble

[Act No. 22 OF 1995]

An Act to consolidate and amend the law relating to the levy of tax on sale or purchase of goods in the State of Rajasthan Be it enacted by the Rajasthan State Legislature in the Forty sixth Year of the Republic of India as follows :-

Section 1. Short title, extent and commencement

(1) This Act may be called the Rajasthan Sales Tax Act, 1994.

(2) It extends to the whole of the State of Rajasthan.

(3) It shall come into force on such date as the State Government may by notification in the Official Gazette appoint and the State Government may appoint different dates for the commencement of the different provisions of this Act.

Section 2. Definitions

In this Act, unless the subject or context otherwise requires –

(1) “Act” means the Rajasthan Sales Tax Act, 1994;

(2) “appellate authority” means a person not below the rank of the Deputy Commissioner appointed as such by the State Government;

(3) “assessing authority” in relation to a dealer means the Assistant Commissioner, Commercial Taxes or the Commercial Taxes Officer or the Assistant Commercial Taxes Officer having jurisdiction for the time being;

(4) “assessment” means determination of liability under the Act and it includes provisional assessment, reassessment and best judgment assessment;

(5) “assessment year” means the year for which tax under this Act is assessable;

(6) “Assistant Commissioner” means a person appointed by the State Government to be the Assistant Commissioner of Commercial Taxes;

(7) “awarder” means any person at whose instance or for whose benefit a works contract is executed;

(8) “business” includes –

(i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit, and whether or not any gain or profit accrues from such trade, commerce, manufacture, adventure or concern, but does not include activities of sale, supply or distribution of goods carried on without any profit motive by –

(a) a charitable or religious institution in the performance of its functions for achieving its avowed objects; and

(b) an educational institution, where such sale, supply or distribution is made to its students;

(ii) the execution of any works contract;

(iii) the transfer of the right to use any goods for any purpose under a lease; and

(iv) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern;

(9) “casual trader” means a person who has, whether as principal, agent or in any other capacity, occasional transactions of a business nature involving buying, selling, supplying, or distribution of such goods as may be specified by the State Government by issuing a notification, whether for cash or deferred payment, or for commission or remuneration or other valuable consideration;

(10) “Commercial Taxes Officer”, “Assistant Commercial Tax Officer” or “Inspector, Commercial Taxes Department” means the person holding office with the designation under the State Government;

(11) “Commissioner” means a person appointed by the State Government to be the Commissioner of Commercial Taxes Department and includes an Additional Commissioner of Commercial Taxes;

(12) “company”, “director”, and “share-holder” shall have the meanings respectively assigned to them in the Companies Act, 1956 (Central Act 1of 1956);

(13) “contractor” means any person executing a works contract and includes a sub-contractor;

(14) “dealer” means any person, who carries on business in any capacity, of buying, selling, supplying or distributing goods directly or otherwise, or making purchases or sales as defined in clause (38) for himself or others, whether for cash or deferred payment, or for commission, remuneration or other valuable consideration;

Explanation I : Every person who conducts any business activity of buying, selling, supplying or distributing goods, as an agent of a non-resident dealer shall be deemed to be a dealer for the purpose of this Act.

Explanation II : The Central or any State Government or any of their departments or offices which, whether or not in the course of business, buy, sell, supply or distribute goods directly or otherwise, whether for cash or deferred payment, or for commission, remuneration or other valuable consideration shall be deemed to be a dealer for the purpose of this Act.

Explanation III : A person, who sells agricultural or horticultural produce, grown by himself or grown on any land on which he has an interest as owner or tenant as defined in the Rajasthan Tenancy Act, 1955 (State Act 3 of 1955) shall not be deemed to be a dealer within the meaning of this clause.

(15) “declared goods” means goods declared by section 14 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956) to be a special importance in inter-State trade or commerce;

(16) “Deputy Commissioner (Administration) ” means person appointed by the State Government to be Deputy Commissioner (Administration) and includes the Deputy Commissioner (Administration) Anti-Evasion;

(17) “Deputy Commissioner” means a person appointed by the State Government to be the Deputy Commissioner of Commercial Taxes;

(18) “exempted goods” means any goods excepted from tax in accordance with the provisions of this Act;

(19) “firm”, “partner” and “partnership” shall have the meanings respectively assigned to them in the Indian Partnership Act, 1932 (Central Act 9 of 1932);

(20) “goods” means all kinds of movable property other than newspapers, money, actionable claims, stocks, shares and securities, and includes goods in some other form involved in the execution of works contracts;

(21) “government” or “the government” shall include both the Central Government and State Government;

(22) “importer of goods” means a dealer who brings or causes to be brought into the State any goods or to whom any goods are despatched from any place outside the State, for the purpose of process, manufacture or sale;

(23) “lease” means any agreement or arrangement whereby the right to use any goods for any purpose is transferred by one person to another whether or not for a specified period for cash, deferred payment or other valuable consideration without the transfer of ownership, and includes a sub-lease but does not include any transfer on hire purchase or any system of payment installments;

(24) “lessee” means any person to whom the right to use any goods for any purpose is transferred under a lease;

(25) “lessor” means any person by whom the right to use any goods for any purpose is transferred under a lease;

(26) “licence” means a licence granted under this Act;

(27) “manufacture” includes every processing of goods which bring into existence a commercially different and distinct commodity but shall not include such processing as may be notified by the State Government;

(28) “month” means the month according to the Gregorian calendar;

(29) “person” means any individual or association or body of individuals and includes a Hindu undivided family or joint family, a firm, a company whether incorporated or not, a co-operative society, a trust, a club, an institution, an agency, a corporation, a local authority and a department of the government;

(30) “place of business” means any place in the State of Rajasthan where a dealer purchases or sells goods and includes –

(a) any warehouse, godowns or other place where the dealer stores goods;

(b) any place where the dealer processes, produces or manufactures goods; and

(c) any place where the dealer keeps his accounts, registers and documents;

Explanation : The dealer shall declare on the places of business as his principal place of business, in the application for registration, and his final accounts, annual statements, registers and documents shall necessarily be kept at such place.

(31) “prescribed” means prescribed by rules made under this Act;

(32) “previous year” means a period of twelve months immediately preceeding the assessment year;

(33) “purchase price” for the purpose of levying tax under this Act, means the amount payable by a dealer as consideration for the purchase of goods including all statutory levies payable;

(34) “raw material” means goods used as an ingredient in the manufacture of other goods and includes preservative, fuel and lubricant required for the process of manufacture;

(35) “registered dealer” means a dealer registered under the provisions of this Act;

(36) “resale” means sale of goods without performing any operation on them which amounts to, or results in a manufacture;

(37) “rules” means the rules made under this Act;

(38) “sale” with all its grammatical variations and cognate expressions means every transfer of property in goods by one person to another for cash, deferred payment or other valuable consideration and includes-

(1) a transfer, otherwise than in pursuance of a contract, of property in goods for cash, deferred payment or other valuable consideration;

(2) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;

(3) any delivery of goods on hire purchase or other system of payment by instalments;

(4) a transfer of the right to use goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;

(5) a supply of goods by an unincorporated association or body of person to a member thereof for cash, deferred payment or other valuable consideration; and

(6) a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being foods or any other article for human consumption or any drink (whether or not intoxicating), where such supply is for cash, deferred payment or other valuable consideration;

and such transfer, delivery or supply shall be deemed to be a sale and the word “purchase” or “buy” shall be construed accordingly.

Explanation I : Notwithstanding anything contained in this Act, where any goods are sold in packing, the packing material in such case shall be deemed to have been sold with the goods, unless otherwise proved by the dealer.

Explanation II : A sale or purchase shall be deemed to take place inside the State –

(a) in case falling under sub-clause (II), if the goods are in the State at the time of their use, application or incorporation in the execution of a works contract, notwithstanding that the agreement for the works contract has been wholly or in part entered into outside the State or that the goods have been wholly or in part moved from outside the State; and

(b) in case falling under sub-clause (4), if the goods are used by the lessee within the State, whether or not for a specified period, notwithstanding that the agreement for the lease has been outside the State or that the goods have been moved from outside the State or the goods have been delivered to the lessee outside the State.

Explanation III : Where there is a single contract of sale or purchase in respect of goods stored or ascertained the State as well as at places outside the State, the goods stored or ascertained in the State shall be deemed sold separately in or from the State.

Explanation IV : Where the work under a work contract is spread over in many States including the State of Rajasthan, the part of the work done, within this State shall be deemed to be the sale made in the State, irrespective of the place of agreement for works or the point of movement of goods involved in the execution of that works contract.

(39) “sale price” means the amount paid or payable to a dealer as consideration for the sale less any sum allowed by way of any kind of discount or rebate according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof;

Explanation I : In the case of a sale by hire purchase agreement, the prevailing market price of the goods on the date on which such goods are delivered to the buyer under such agreement, shall be deemed to be the sale price of such goods.

Explanation II : Where according to the terms of a contract the cost of freight and other expenses in respect of the transportation of goods are incurred by the dealer for or on behalf of the buyer, such cost of freight and other expenses shall not be included in the sale price but the burden of such proof shall lie on the dealer.

(40) “State” means the State of Rajasthan as formed by section 10 of the States Reorganization Act, 1956 (Central Act 37 of 1956);

(41) “tax” means any tax or other levy by any name, leviable under the provisions of this Act;

(42) “taxable turnover” means that part of turnover which remains after deduction therefrom the aggregate amount of the proceeds of sale of goods :-

(i) on which no tax is leviable under this Act;

(ii) which have been exempted from tax or which have suffered tax under this Act, subject to other provisions in the Act; and

(iii) which are taxable at a point of sale within the State subsequent to the sale by the dealer and such sale is covered by a declaration as may be required under any provisions of this Act or the rules made thereunder;

Explanation : Where a works contractor, at the time of assessment, fails to show or establish the value of the goods at the point of their incorporation or use in the execution of a works contract, for the purpose of determining his taxable turnover, the value of such contract, after deduction labour or service charges therefrom, shall be taken for being apportioned for the goods not liable to tax and the goods liable to tax, along with the proportionate respective amounts of profit thereon.

(43) “Tax Board” means Rajasthan Tax Board constituted under section 90;

(44) “turnover” means the aggregate amount received or receivable by a dealer for sales as referred to in clause (38) including the purchase price of the goods which are subject to purchase tax under section 11 of the Act;

Explanation : Tax charged or collected and shown separately in the sale bill/cash memorandum or in the accounts shall not form part of turnover.

(45) “works contract” means a contract for works and labour or services involving transfer of property in goods (whether as goods or in some other form) in its execution;

(46) “year” means the year commencing from 1st April and ending on 31st March.

Section 3. Incidence of tax

(1) Subject to the provisions of this Act, if the turnover of a dealer in any year exceeds rupees fifty thousand in case he is an importer or a manufacturer and rupees one lac in other case, he shall be liable to get registration under the Act, and shall be liable to pay tax from the date from which the certificate of registration is granted to him.

(2) Notwithstanding anything contained in sub-section (1), a dealer –

(a) dealing exclusively in generally exempted goods, shall not be required to get registered;

(b) dealing exclusively in tax paid goods, or partly in tax paid goods and partly in generally exempted goods, shall be required to get registered if his turnover in a year exceeds rupees fifteen lacs.

Explanation : “Tax paid goods” for the purpose of this Act means the goods, the sale of which within the State have been subject to tax in accordance with the provisions of this Act.

(3) Where as a result of any amendment in sub-section (1), if a dealer ceases to be liable to be registered and to pay tax and opts for de-registration, he shall be liable to pay tax in respect of any goods purchased by him at a concessional rate of tax or without paying any tax on strength of any declaration furnished by him as a registered dealer, on the purchase price of such goods at the full rate of tax applicable thereto after adjusting the tax, if already paid by him, in respect thereof.

Explanation : Full rate of tax for the purpose of this Act means the rate of tax notified under sub-section (1) of section 4.

(4) A casual trader who is not liable to get registration and pay tax under sub-section (1), shall nevertheless be liable to pay tax without registration in accordance with the provisions of section 31, whatever may be the amount or extent of this turnover.

(5)

(a) Any person, other than a casual trader, who carries on business temporarily for a period not exceeding one hundred twenty days in a year and if such person is not already registered and has not applied for registration, he may make an application on plain paper for composition of tax to the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, having jurisdiction with reference to the place of business of such person.

(b) Notwithstanding anything contained in this Act, the officer mentioned in clause (a) may either order for composition of tax on the application filed under clause (a), or in the absence of the such application, suo motu determine tax payable by such person, having regard to the specific facts and circumstances of the case.

(c) The composition money ordered or tax determined under clause (b) shall be deemed to be a demand under the Act and shall be recoverable in the manner and time fixed by the officer mentioned in clause (a) and all provisions of recovery and interest, applicable to a demand of tax shall mutatis mutandis apply.

(6) A dealer registered under the Central Sales Tax Act 1956, (Central Act 74 of 1956) who is not liable to get registration and pay tax under sub-section (1), shall nevertheless be liable to get registration and pay tax in accordance with the provisions of this Act, whatever may be amount or extent of his turnover.

Section 4. Levy of tax and its rate

(1) Subject to the other provisions of this Act and the provisions of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the tax payable by a dealer under this Act, shall be at single point in the series of sales by successive dealers, as may be prescribed and shall belevied at such rates not exceeding fifty per cent on the taxable turnover, as may be notified by the State Government in the Official Gazette.

(2) Where any goods are sold packed in some material, whether charged for separately or not, notwithstanding anything contained in sub-section (1), the tax liability of and the rate of tax on the packing material shall be according to the tax liability of and the rate of tax on the goods packed therein.

Section 5. Payment of lump sum in lieu of tax

(1) Notwithstanding anything contrary contained in the Act, the State Government may direct payment of tax in a lump sum in respect of sales of such class of goods or by such class of dealers on such terms and conditions as may be notified in the Official Gazette.

(2) The tax in lump sum specified in sub-section (1) shall not exceed the amount of maximum tax liability provided in sub-section (1) of section 4.

Section 6. Payment of tax based on purchase price

In case of dealer, other than a manufacturer, producer or processor, whose total taxable purchases in a year does not exceeds rupees ten lacs, at his option and in accordance with such terms and conditions as may be specified by the Commissioner, may be allowed by his assessing authority to pay tax for such year payable under the Act, on the aggregate of the amount of purchase price paid or payable by him in respect of the goods purchased by him for resale plus an amount equal to ten per cent of such purchase price

Section 7. Payment of self-assessed tax

The Commissioner may, in public interest and with the approval of the State Government, introduce a general scheme of assessments for such class of dealers and with such terms and conditions as may be specified therein, in pursuance of which assessment order could be passed by assessing authorities on the basis of returns without calling for the accounts, registers and documents of the dealers in their office, and all such schemes of payment of self-assessed tax introduced in the past, duly approved by the State Government, shall be deemed always to have been validity introduced under this section.

Section 8. Levy of tax on livestock

(1) Notwithstanding anything contained in sections 3, 4 and 11, tax on the sale or purchase of livestock at such rate not exceeding ten per cent of the sale or purchase price, as the case may be, of such live-stock and at such point of sale or purchase, as the State Government may in the Official Gazette notify in this behalf, shall be payable by every person, who sells or purchases livestock in the State and the provisions of section 31 shall mutatis mutandis apply to such person.

(2) Notwithstanding anything contained in sub-section (1), in respect of livestock of such class as may be specified by the State Government by notification in the Official Gazette, tax shall be payable at such rate per head not exceeding two hundred rupees, as may be specified in the notification.

(3) Different rate of percentage of price or different rate per head may be notified by the State Government under sub-sections (1) and (2) for different classes of livestock.

Section 9. Levy of tax by weight, volume or measurement on certain commodities

(1) Notwithstanding anything contained in sections 3 and 4, the State Government may fix the amount of tax payable on the sale or purchase of certain commodities on the basis of weight, volume or measurement, as may be notified in the Official Gazette.

(2) The amount of tax payable under sub-section (1) may be fixed with reference to the types of vehicles or carriers transporting the said commodities, and also with reference to the qualities thereof.

(3) The amount of tax notified under sub-sections (1) and (2) shall not exceed the amount of maximum tax liability provided in sub-section (1) of section 4.

Section 10. Levy of tax on raw material and processing articles

(1) Notwithstanding anything contained in section 4, but subject to such restrictions and conditions as may be prescribed, the rate of tax payable on the sale to or purchase by a registered dealer of any raw material for the manufacture in the State of goods for sale by him within the State or in the course of inter-State trade or commerce or in the course of export outside the territory of India shall be at such concessional rate as may be notified by the State Government.

(2) Where after affording reasonable opportunity of being heard it is determined that a registered dealer has paid tax at a concessional rate under sub-section (1) and the goods are not utilised by him for the purpose specified in the said sub-section, he shall be liable to pay the difference of the amount of tax which would have been liable at full rate and the amount of tax paid under sub-section (1) with interest at the rate of two per cent per month.

(3) Notwithstanding anything contained in section 4, and subject to such conditions and restrictions as may be prescribed, sale to or purchase by a registered dealer of articles (other than raw material) specified in the certificate of registration of the registered dealer purchasing the articles and required by him for use in the manufacture or processing of goods for sale or in mining or in generation or distribution of electricity shall, unless the articles are taxable at the lower rate, be liable to tax at four per cent on the condition that the dealer selling the articles shall furnish to the assessing authority in the prescribed manner, a prescribed declaration duly filled and signed by the registered dealer to whom the articles are sold.

(4) Where after affording reasonable opportunity of being heard, it is decided that the articles purchased under sub-section (3) are utilised by the purchasing dealer for any purposes other than those specified in the said sub-section or while purchasing any articles he represents wrongly that such articles are covered by his certificate of registration as specified in sub-section (3), he shall be liable to pay the difference between the amount of tax which would have been liable on the purchase price of such articles at the full rate and the amount of tax paid under sub-section (3) of this section, with interest at the rate of two per cent per month.

Section 11. Levy of purchase tax

(1) Every dealer who in the course of his business purchases any goods other than exempted goods, in the circumstances in which no tax under sections 4 and 12 is payable on the sale price of such goods, shall be liable to pay tax on the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods under sections 4 and 12.

(2) Where any dealer has purchased any goods, otherwise than under the provisions of section 10, without paying any tax or after paying tax at concessional or reduced rate of tax on the strength of any declaration furnished by him under the Act, the purchase price of such goods shall be included in his taxable turnover and such dealer shall be liable to pay tax with interest at the same rate which would have been leviable on the sale price of such goods under sections 4 and 12, except in a case where such dealer satisfies the assessing authority that the said goods have been utilised for the purpose mentioned in the declaration form.

(3) Where tax is leviable under sub-section (1) at the time of purchase of any goods, no tax under section 4 shall be leviable at the time of sale of such goods.

(4) The dealer shall be entitled to claim set-off of the tax paid by him under sub-section (2) on the purchase price of the goods, against the tax payable by him on the sale of such goods.

Section 12. Levy of tax at all points

(1) Notwithstanding anything contained in section 4, the State Government may, in respect of any class of goods which may be notified in the Official Gazette in this behalf, direct that tax under this Act shall be payable on the turnover in respect of such class of goods at each point of sale by every dealer with such terms and conditions and at such rate, as may be specified in the notification.

(2) Notwithstanding anything contained in section 4, every dealer, in case of the transfer of right to use any goods, shall pay tax on the turnover relating to each occasion of such transfer at such rates, as may be notified by the State Government in the Official Gazette, and different rates of tax may be notified for different classes of goods or different classes of dealers.

(3) Notwithstanding anything contained in this Act, the State Government may by issuing a notification in the Official Gazette, introduce the “Value Added Tax System from such date, in such form, for such class of dealers, at such points in the series of sales and with such terms and conditions, as may be specified in the notification.

Explanation : “Value Added Tax” shall mean a tax on sale of commodity at more than one point in the series of sales with the provision of set off of tax paid at the previous point of sale or purchase thereof.

Section 13. Levy of surcharge

(1) Notwithstanding anything contrary contained in this Act, there shall be paid by a denier a surcharge, from such date and at such rate not exceeding twenty five per cent, as notified by the State Government, on the amount of tax or any fee or sum in lieu of tax, payable by him, but the aggregate of tax, fee or sum and surcharge payable under this Act in respect of the goods declared by section 14 of the Central Sales Act, 1956 (Central Act 74 of 1956) to be of special importance in inter-State trade or commerce shall not exceed the tax calculated at the rate specified in clause (a) of section 15 of the aforesaid Central Act.

(2) The provisions as they are applicable to the tax payable under this Act, shall so far as may be, apply in relation to surcharge payable under sub-section (1).

Section 14. Bar against collection of tax when not payable

(1) No person who is not a registered dealer or who is not liable to pay tax in respect of any sale or purchase shall collect on the sale of any goods any sum by way of tax from any other person, and no registered dealer shall collect any amount by way of tax in excess of the amount of tax payable by him under the provisions of this Act.

(2) No dealer shall collect, any sum by way of tax in respect of sale of any goods on which by virtue of section 15, no tax in payable.

(3) Dealers required under section 5 to pay lump in lieu of tax shall not collect tax or any sum in lieu of tax.

Section 15. Exemption of tax

Notwithstanding anything contained in this Act, where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, may, by notification in the Official Gazette, exempt fully or partially, whether prospectively or retrospectively from tax the sale or purchase of any goods or class of goods or any person or class of persons, without any condition or with such condition as may be specified in the notification.

Section 16. Burden of proof

The burden of proving that any sale or purchase effected by any person is not liable to tax for any reason under this Act shall be on such person.

Section 17. Obligatory registration

(1) Every dealer liable to get registration and pay tax under this Act shall get himself registered in the prescribed manner.

(2) Every dealer required under sub-section (1) to be registered, shall make an application in this behalf in the prescribed manner and time to the authority competent to grant registration.

(3) Where the said authority is satisfied that the application for registration is complete in all respects it shall, in accordance with such rules as may be prescribed, after making an order for payment of fee of rupees one hundred, register the applicant and grant him a certificate of registration in the prescribed form.

(4) The certificate of registration so granted shall not be transferable and it shall remain in force unless it is cancelled in accordance with the provisions of this Act.

(5) Subject to the provisions of section 3, the certificate of registration shall be granted from the date of the commencement of the business as declared by the dealer in the application for registration, subject to the satisfaction of the authority competent to grant registration.

(6) When a dealer, who is liable to get registration, does not make application under sub-section (1) the authority competent to grant registration, after affording an opportunity of being heard to such dealer shall grant him a certificate of registration from such date as may be determined by such authority, and such registration shall take effect as if it has been granted under sub-section (3).

(7) The authority competent to grant registration or the assessing authority, as the case may be, after affording reasonable opportunity of being heard, may amend or cancel any certificate of registration.

Section 18. Provisional registration

(1) Any person intending to establish a manufacturing unit may, notwithstanding that he is not liable to get registration under section 17, apply with a receipt of payment of fee of rupees one hundred to the authority competent to grant registration in the prescribed form for provisional registration.

(2) Where the said authority, after making such enquiry as it may consider necessary, is satisfied as to the bona fide intention of the person making the application, it may grant a provisional certificate of registration in the prescribed manner from the date of the receipt of the application upon furnishing by such person a security as is specified in section 23.

(3) Every person who has been granted a provisional certificate of registration under this section, shall, so long as such certificate is in force, be liable to pay tax under this Act irrespective of his turnover.

(4) The provisional certificate of registration granted under this section shall remain in force for such period as may be allowed initially or extended subsequently or until such provisional certificate is endorsed under sub-section (5); and the provisions of sub-section (7) of section 17 shall, so far as may be, apply to such provisional certificate.

(5) The authority competent to grant registration or the assessing authority, as the case may be, may on an application in the prescribed form made by a person holding a provisional certificate, and on being satisfied that such person has started selling goods manufactured by him, record on the provisional certificate an endorsement in the prescribed form and on such endorsement being recorded, such certificate shall be deemed to be a certificate granted under section 17.

(6) Where, after affording reasonable opportunity of being heard, it is determined that a person who has been granted a provisional certificate of registration under this section and has purchased any plant and machinery, processing articles or raw material or any other goods at a concessional or reduced rate of tax or without paying any tax on the strength of any declaration furnished by him, has failed to start selling goods manufactured by him within the period allowed initially or extended subsequently, he shall be liable to pay the difference of amount of tax which could have been leviable on the purchase price of such plant and machinery, processing articles, raw materials and any other goods at the full rate if purchased on concessional or reduced rate of tax and the whole amount of tax if purchased without paying any tax on the strength of declaration, with interest at the rate of two per cent per month.

Section 19. Voluntary registration

(1) On the application of a dealer, if the authority competent to grant registration is satisfied that his turnover in a year is likely to exceed the limits provided in section 3, the said authority may register such dealer and grant him a certificate of registration in the prescribed manner from the date of commencement of the business as declared by him in the application for registration, on payment of a fee of rupees one hundred and thereupon the provisions of section 17 shall apply to him as they apply to a dealer registered under that section.

(2) Every dealer who has been registered under sub-section (1) shall, so long as his registration remains in force, be liable to pay tax under this Act, irrespective of his turnover.

Section 20. Additional registration

(1) Where a dealer who is already registered and commences a new business at a place other than the existing place of business, he may, at his option, be granted a certificate of registration for such business under sections 17, 18 or 19, as the case may be, or a branch certificate under the certificate of registration already held by him.

Explanation : The provisions of sub-section (1) shall mutatis mutandis apply to a works contractor for different works at different places undertaken by him.

(2) Where a dealer who is already registered, expands or diversifies his business at the existing place of business, no additional certificate of registration shall be granted to him for such expansion or diversification

Section 21. Authority competent to grant registration

(1) Every dealer liable to get registration shall declare his principal place of business in the application for registration filed by him and the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, having territorial jurisdiction over such principal place of business, or any other officer not below the rank of Assistant Commercial Taxes Officer, authorised especially or generally by the Commissioner, shall be the authority competent to grant registration to such dealer.

(2) In the case of a non resident dealer, the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, having territorial jurisdiction over the place of business in the State of such non resident dealer, shall be the authority competent to grant registration and such authority, either on the application of such non-resident dealer or otherwise, shall grant him a certificate of registration from such date and with such terms and conditions, as may be specified therein.

(3) Where a dealer, after having been granted registration, changes his principal place of business outside the territorial jurisdiction of the present assessing authority, he shall seek the permission in writing for such change of the assessing authority from the Commissioner or any other officer authorised by the Commissioner in this behalf and unless such permission is accorded, the present assessing authority shall continue to be the assessing authority of such dealer.

Section 22. Application for registration and authorisation for collection of tax

Where a dealer makes an application for obligatory registration or voluntary registration, or provisional registration, he may start collecting tax on his sales in accordance with the provisions of this Act from the date of such application and in the that case all the provisions of this Act, as are applicable to a registered dealer, shall mutatis mutandis apply to him.

Section 23. Furnishing of security for registration

(1) Subject to any rules framed in this behalf, the authority competent to grant registration or the assessing authority shall, as a condition to the grant of registration to a dealer or at any time after such grant, require him to furnish in the prescribed manner and within the time specified by such authority, the initial security or such subsequent additional security as may be considered necessary –

(a) for the timely payment of the amount of any tax or other sum payable by him under this Act; and

(b) for the safe custody and the proper use of the declaration forms obtained by him under this Act and the rules made thereunder.

(2) Subject to provisions of sub-section (1), the obligatory registration certificate and the voluntary registration certificates may be granted before furnishing of security, but the furnishing of such security shall be a pre-condition for granting of the provisional registration certificate, but in no case declaration forms shall be issued to a dealer who has not furnished the security in accordance with the provisions of this section.

(3) At the time of grant of registration, the initial security shall be of the amount of –

(a) Rs. 10,000 in case of a dealer applying for obligatory registration or voluntary registration; and

(b) Rs. 10,000 in case of a small scale manufacturing unit, Rs. 15,000 in case of a medium scale manufacturing unit and Rs. 25,000 in case of a large scale manufacturing unit, applying for provisional registration.

Explanation : The small scale or medium scale or large scale manufacturing unit shall have the same meaning as assigned to them by the Government of India from time to time.

(4) The amount of security, in case of a dealer who is already registered under the Act, may be increased by the assessing authority, for reasons to be recorded in writing, to five per cent of the annual tax liability of the immediate preceding year, subject to a maximum limit of rupees one lac.

(5) Where the security furnished by a dealer under sub-sections (3) and (4) is in the form of a surety bond and the surety becomes insolvent or dies, the dealer shall within thirty days of the occurrence of any of the aforesaid events, inform the assessing authority and shall within ninety days of such occurrence, furnish a fresh surety bond or furnish in a prescribed manner other security for the amount of the surety bond.

(6) The assessing authority may, by order in writing, forfeit the whole or any part of the security furnished by a dealer –

(a) for realising any amount of tax, penalty, interest or any other sum payable by him under this Act; or

(b) for any loss caused to the government by negligence or wilful default on his part in ensuring the safe custody or the proper use of the declaration forms.

(7) Where by reason of an order of forfeiture under sub-section (6), the security furnished by any dealer is rendered insufficient, he shall make up the deficiency within a period of thirty days from the date of the communication of the order of the assessing authority.

(8) No dealer shall be required to furnish additional security under sub-section (4) and no order of forfeiture of the whole or any part of the security shall be passed against him under sub-section (6) unless he has been given an opportunity of being heard.

Section 24. Amendment or cancellation of registration certificate

(1) Every registered dealer or his legal representative as the case may be, shall inform the assessing authority about every change or event as referred to in sub-sections (2) and (3), within thirty days of the occurrence of such change or event.

(2) Where any change or event does not alter the basic status of a dealer, such as change in the name of business or place of the business, opening of a new place of business or dropping of old place of business, addition, deletion or modification in the description of goods, acquisition of any business, sale or disposal of the business in part, change in the constitution of the firm without dissolution, the certificate of registration already granted to a dealer shall be amended accordingly from the date of the occurrence of the change or the event.

(3) Where any change or event alters the basic status of a dealer, such as, conversion of a proprietary concern into partnership firm or vice versa, dissolution of an existing firm and creation of new firm, formation of a firm into a company or vice versa, a fresh certificate of registration shall be required to be obtained by the dealer.

(4) Where –

(a) any business in respect of which a certificate of registration has been granted to a dealer under this Act, is discontinued permanently; or

(b) in the case of transfer of business by a dealer, the transferee already holds a certificate of registration under this Act; or

(c) a dealer has ceased to be required to be registered and to pay tax under this Act; or

(d) a dealer has obtained the certificate of registration by misrepresentation of facts or by fraud, or

(c) a dealer has obtained a certificate of registration against the provisions of this Act;

the assessing authority may, after affording such dealer an opportunity of being heard, cancel the certificate of registration prospectively or retrospectively.

Section 25. Payment of tax

(1) Tax payable under this Act shall be deposited into a government treasury or a bank authorised to receive money on behalf of the State Government on the basis of the accounts of a dealer in such manner and at such intervals as may be prescribed for different categories of dealers.

(2) Notwithstanding anything contained in sub-section (1), the State Government may by notification in the Official Gazette require any dealer or class of dealers specified therein, to pay tax at intervals shorter than those prescribed under sub-section (1).

(3) Notwithstanding anything contained in sub-sections (1) and (2), where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette, defer the payment of tax payable by any class of dealers, with or without interest, for any period on such conditions and under such circumstances as may be specified in the notification.

(4) Notwithstanding anything contained in this Act, in the case of a works contract, an amount in lieu of tax may be deducted by the awarder at such rate not exceeding three per cent of the total value of the contract, in such manner and under such circumstances as may be prescribed, from every bill of payment to a contractor and such sum shall be deposited or credited in the government account within the specified time and in the prescribed manner.

(5) Every deposit of tax or deduction of amount in lieu of tax made under this section shall be deemed to be provisional subject to adjustment against the tax liability determined in the assessment for any year made under section 29.

Section 26. Filing of returns

(1) Every registered dealer, and such other dealer as may be required by notice to do so by the assessing authority shall furnish prescribed returns, for the prescribed period, in the prescribed form, in the prescribed manner and within the prescribed time to the assessing authority.

(2) The assessing authority may extend the date for submission of any return to be filed by any dealer or class of dealers under sub-section (1) by a period not exceeding fifteen days.

(3) Every return to be filed under sub-section (1) shall be accompanied by a treasury receipt of receipt of the bank authorised to receive money on behalf of the State Government showing the deposit of full amount of tax due on the basis of the return.

(4) Notwithstanding anything contained in sub-section (1), no return shall be required to be filed by a registered dealer who deals exclusively in generally exempted and/or tax paid goods and whose turnover in the previous year does not exceed such limit as may be prescribed with or without any condition.

(5) Where a dealer discovers any omission or error in any return furnished by him under sub-section (1), he may furnish a revised return with in one hundred and eighty days after the close of the year to which it relates, and the burden of proving that the omission or the error was bona fide, shall be on such dealer.

Rajasthan Sales Tax Act, 1994

Section 27. Provisional assessment on failure to deposit tax or submit return

(1) Where a dealer fails to deposit tax as required to be deposited under section 25 or fails to submit a return as per provisions of section 26 for any prescribed period within the prescribed time, the assessing authority, without prejudice to the penal provisions in the Act shall, after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity of being heard, assess the tax for that period to the best of its judgment.

(2) The tax assessed in sub-section (1), after adjustment of any amount deposited in advanced in this behalf, if any, shall be payable by the dealer within thirty days from the date of service of the notice, or within a period of less than thirty days as may be determined by the assessing authority in the special circumstances and for the reasons to be recorded in writing.

(3) The provisional assessment under sub-section (1) shall not be made after the expiry of a period of six months from the end of the period for which tax has not been deposited or return has not been filed or after the issue of notice for assessment under section 29, whichever is earlier

Section 28. Provisional assessment in case of avoidance or evasion of tax

(1) Where the assessing authority has reason to believe that a dealer has avoided or evaded tax or has not paid tax according to law, he may after giving the dealer a reasonable opportunity of being heard, determine at any time and for any period that taxable turnover of such dealer on which tax has been avoided or evaded or has not been paid according to law and assess the tax to the best of its judgment.

(2) The amount assessed in sub-section (1), after the adjustment of any amount deposited in advance in this behalf, if any, shall be payable by the dealer within thirty days from the date of service of the notice, or within a period of less than thirty days as may be determined by the assessing authority in the special circumstances and for the reasons to be recorded in writing.

(3) The provisional assessment under sub-section (1) shall not be made after the expiry of a period of six months from the date of making out the case, but the Commissioner may, for reasons to be recorded in writing in any particular case extend this time limit by a further period not exceeding six months.

Section 29. Assessment

(1) Assessment for a year shall be made after the returns of that year have become clue, but a closed firm could be assessed immediately after its closure.

(2) In the case of a dealer whose turnover as determined in the last assessment order passed subsequent to the first assessment after his registration, does not exceed such limit as may be notified by the State Government in the Official Gazette in this behalf, the assessment of such dealer shall be made for two years at a time by one single order, after all the returns in respect of such period of two years have become due.

(3) In the case of works contract, the assessment of a contractor shall be made on the basis of the work done in a year and the amount paid or deducted at source in that year, if any, in lieu of tax, and in the case of a contractor opting for payment of exemption fee in lieu of tax, on the basis of amount of exemption fee paid or deducted at source in a year, and such year shall be deemed to be his accounting year.

(4) Where the assessing authority, on scrutiny is satisfied that the returns furnished by a dealer are correct and complete, it shall assess the tax on the basis of such returns.

(5) Where the assessing authority is not satisfied without requiring the presence of the dealer who has filed the returns or without production of accounts, registers and document including any other evidence, that the returns are complete and correct, it shall serve on such dealer a notice requiring him on a date and place to be specified there in –

(a) to appear in person, or by an agent duly authorised in writing; or

(b) to produce or cause to be produced such accounts, registers and documents as the assessing authority may require, or

(c) to produce or cause to be produced any evidence on which he may rely in support of the returns filed or the statements made, to the assessing authority.

(6) The assessing authority, after having examined the accounts, registers and documents produced or other evidence adduced before it and after issuing notice on specific points wherever necessary, shall, on the day specified in the notice issued under sub-section (5), or as soon as possible thereafter, assess the tax by an order in writing.

(7) The assessing authority after affording an opportunity of being heard, shall assess a dealer to the best of its judgment and determine the tax payable by him, if such dealer –

(a) has not filed all or any of the returns due for a year; or

(b) has filed any return or returns which appear to the assessing authority incomplete or incorrect; or

(c) has failed to comply with all the terms of a notice issued under sub-section (5); or

(d) has not regularly employed any method of accounting, or if the method employed is such that in the opinion of the assessing authority, assessment cannot properly be made on the basis thereof; or

(e) has with a view to avoid or evade tax, shown in this accounts, registers or documents, sale or purchase of any goods at a price which is lower than the prevailing market price of such goods; or

(f) has concealed any transaction of purchase or sale from his accounts, registers or documents or has avoided or evaded tax in any other manner.

(8)

(a) No assessment order under this section shall be passed after the expiry of two years from the end of the relevant assessment year or one year after coming into force of this Act, whichever is later; however, the Commissioner may for reasons to be recorded in particular case may extend such time limit by a period not exceeding six months.

(b) Notwithstanding anything contained in sub-clause (a), where an assessment order is passed in consequence of or to give effect to, any order of an appellate authority or the tax board or a competent court, it shall be completed within two years of the communication of such order to the assessing authority; however, the Commissioner may for reasons to be recorded in writing, extend in any particular case, such time limit by a period not exceeding six months.

Section 30. Escaped assessment

(1) An assessment –

(a) of a person who is liable to get registration but has not got himself registered; or

(b) in which, for any reason, the levy of tax or any fee or sum payable under the Act has been escaped wholly or in part; or

(c) wherein tax has been wholly or in part unassessed or under-assessed in any way and under any circumstances,

shall be deemed an escaped assessment and the assessing authority shall on the basis of the material on record or after making such enquiry as it may consider necessary, complete such assessment within the limit provided in sub-section (3).

Explanation : The assessment under this section shall not include that part of business which has already been assessed under section 29.

(2) Where the Commissioner or a Deputy Commissioner (Administration) has reason to believe that a dealer has escaped assessment to tax in any manner provided in sub-section (1), he may at any time, subject to the time limit specified in sub-section (3), either direct the assessing authority to assess the tax or the fee or other sum or himself proceed to assess the same.

(3) No notice under sub-sections (1) and (2) shall be issued in respect of any escaped assessment for any year after the expiry of five years and no assessment under the said sub-section shall be completed after the expiry of eight years, from the end of the relevant assessment year, bur this limitation shall not be applicable to any assessment to be made in consequence of, or to give effect to, any finding or direction contained in an order passed by an appellate authority or the Tax board or a competent court.

Section 31. Assessment in case of a casual trader

(1) A casual trader who is registered under the Act, shall be assessed like any other registered dealer.

(2) A casual trader who is not registered shall, immediately on completion, of a transaction of sale or purchase, for which he is liable to pay tax, report to the assessing authority having jurisdiction with reference to the place of such transaction or to the incharge of the nearest checkpost, the amount of sale or purchase price and the tax payable thereon and shall deposit the amount of tax with such assessing authority or in charge of the checkpost within such time and in such manner as such authority or in charge may direct.

(3) Where a casual trader fails to make a report as required by sub-section (2), the assessing authority having jurisdiction or the in charge of the nearest checkpost may require such casual trader to make a report of the sale or purchase price and the tax due, failing which such assessing authority or in charge of the checkpost may assess to the best of its judgment the amount of tax due and direct the casual trader to pay the amount of tax within such time and in such manner as it may direct.

(4) Where the casual trader fails to pay the tax as directed by the assessing authority or the in charge of the checkpost under sub-sections (2) and (3), the goods belonging to such casual trader shall be detained until the tax is paid or adequate security for payment of tax is furnished.

(5) No order under sub-section (2) shall be passed after the expiry of one year from the date of making the report, and under sub-section (3) after the expiry of two years from the date of completion of the transaction.

(6) The amount of tax payable by a casual trader under sub-section (2) or (3) shall be deemed to be a demand payable by registered dealer and all the provisions of recovery under the Act shall apply accordingly to such demand.

(7) The assessing authority may in writing authorise any office subordinate to it to perform all or any of its functions to be performed under this section.

(8) The assessing authority may suo motu or on application of a casual trader, filed within 30 days of the date of deposition or realisation of tax, review or revise any order passed or action taken by the subordinate official, authorised under sub-section (7).

Section 32. Assessment in special cases

(1) Minor and incapacitated person : In the case of any guardian, trustee or agent of any minor or other incapacitated person carrying on business on behalf of and for the benefit of such minor or other incapacitated person, the tax shall be levied upon and recoverable from such guardian, trustee or agent, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from any other person, and all the provisions of the Act and the rules made thereunder shall apply accordingly.

(2) Estate under Court of Wards of business managed by other agencies : Where the estate of a dealer, whether complete or part thereof, is under the control of a Court of Wards, or where the business of a dealer is managed by the Administrator, the Official Trustee, the Official Liquidator or Receiver or any Manager or Controller, appointed by him or under the orders of a court, the tax shall be levied upon and recoverable from such court of wards, Administrator, Official Trustee, Official Liquidator or Receiver or Manager or Controller in the like manner and to the same extent as it would be leviable upon and the rules made thereunder shall apply accordingly.

Section 33. Assessment of a dissolved firm

In the case of a dissolved partnership firm, assessment thereof under this Act shall be made in the same manner as if the firm had not been dissolved.

Section 34. Assessment deemed to be made in certain cases

Where returns have been furnished by a dealer for any period and no assessment has been made under any of the provisions of this Act, within the specified time limit or where in a case provisional assessment has been made but no assessment has been made under section 29, the assessment of such period under section 29 shall be deemed to have been completed on the basis of the returns filed or in accordance with the provisional assessment made, as the case may be, and all the provisions of this Act shall, so far as may be apply accordingly.

Section 35. Rounding off of tax, interest and penalty

(1) The amount of tax, interest, penalty or any other sum payable and the amount of refund due, under the provisions of this Act, shall be rounded off to the nearest multiple of ten rupees and, for this purpose, where such amount contains a part of ten rupees, if such part is five rupees or more, it shall be increased to ten rupees and if such part is less than five rupees, it shall be ignored.

(2) Nothing contained in sub-section (1) shall apply to any collection by a dealer of any amount by way of tax in respect of any sale or purchase made by him of goods under this Act.

Section 36. Want of form not to affect proceedings

Any notice, summons, assessment order, demand notice, order of attachment or any other order passed under this Act, which purports to be made in pursuance of any provision of this Act or the rules, shall not be deemed to be void or voidable and shall not be quashed for want of the prescribed form, or be affected by reason of a mistake, defect or omission therein, if the same is in substance and effect in conformity with or according to the intent and meaning of the Act and the rules.

Section 37. Rectification of a mistake

(1) With a view to rectifying any mistake apart from the record, any officer appointed or any authority constituted under the Act may rectify suo motu or otherwise any order passed by him.

Explanation : A mistake apparent from the record shall include an order which was valid when it was made and is subsequently rendered invalid by an amendment of the law having retrospective operation or by a judgment of the Supreme Court, the Rajasthan High Court or the Rajasthan Tax Board.

(2) No application for rectification shall be filed under sub-section (1) after the expiry of a period of three years from the date of the order sought to be rectified.

(3) Where an application under sub-section (1) is presented to the assessing authority, appellate authority or Tax Board and a receipt there of is obtained, it shall be disposed of within a period of one year from date of presentation and where such application is not disposed of within the said period, the same shall be deemed to have been accepted.

(4) No rectification under this section shall be made after the expiry of four years from the date of the order sought to be rectified.

(5) An order of rectification which has the effect of increasing the liability of a dealer in any way, shall not be made without affording him an opportunity of being heard.

Section 38. Reopening of ex parte assessment

1[** ]

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1. Ommitted by Rajasthan Finance ACt, 1999, dt. 14-5-1999]

Prior to ommission the section stood as follows:

SECTION 38 REOPENING OF EX PARTE ASSESSMENT.

SUB_SECTION (1) Where an assessment has been made ex parte to the best judgment of the assessing authority under sections 27, 28, 29 or 30, the assessing authority may, on the application of the dealer made within thirty days from the date of service of the notice of demand in consequence of such assessment, cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of law, if it is satisfied, –

CLAUSES (a) that the dealer did not receive notice or summons issued to him under sections 27, 28, 29 or 30; or

CLAUSES (b) that he was prevented by sufficient and reasonable cause from complying with any notice or summon referred to in clause (a) above.

SUB_SECTION (2) An application under sub-section (1) shall be presented to the assessing authority himself and a receipt thereof shall be obtained. The said application shall be disposed of within a period of six months from the date of presentation. Where such-application is not disposed of within the said period it shall be deemed to have been accepted.

SUB_SECTION (3) Where the application has been accepted or is deemed to have been accepted under sub-section (2) , the fresh assessment shall be made within a period of one year from the date of presentation of application.

SUB_SECTION (4) Where an application made under sub-section (1) is rejected, the period from the date of filing of the application up to the date of rejection thereof shall be excluded for the purpose of limitation specified in sub-section (2) of section 84.

Section 39. Stay of proceeding

No civil court or any other authority shall stay assessment proceedings purported to be initiated or already initiated under the Act by an assessing authority.

Section 40. Determination of disputed questions

(1) Where any question arises otherwise than in any proceeding before a court or in any proceeding under sections 27, 28, 29 or 30, whether for the purpose of this Act, –

(a) any person is a dealer; or

(b) any particular dealer is required to be registered; or

(c) any transaction is a sale, and if so, the sale price thereof; or

(d) any tax is payable in respect of any particular sale or purchase, or if tax is payable, the point and the rate thereof; or

(e) any particular thing done to any goods amounts to or results in the manufacture of goods;

the Commissioner shall make an order determining such question.

(2) Where any such question arises from any order already passed under the Act, no such question shall be entertained for determination under this section, but such question may be raised by the party concerned in appeal against, or by way of revision of such order.

(3) The Commissioner under sub-section (1) may direct that the determination shall not affect the liability of any person under this Act, in respect of any sale or purchase effected prior to the determination.

(4) Where an order of the Commissioner passed in sub-section (1) is modified in any way in appeal or revision, the modified order shall be effective from the date of order passed in such appeal or revision.

Section 41. Transfer of cases

(1) A dealer may make an application on plain paper to the Commissioner to transfer any case under this Act from one officer or authority to other officer or authority on the following grounds –

(a) dispute of jurisdiction; or

(b) apprehension of miscarriage of justice; or

(c) business convenience.

(2) In the face of cogent reasons adduced by a dealer in his application filed under sub-section (1), notwithstanding anything contained in section 39, the Commissioner may stay the proceedings of the case ex parte for a period not exceeding one month and in no case beyond a period exceeding three months and such period of stay shall be excluded from the period of the time limit specified in respect of the disposal of such case.

(3) The Commissioner may after due notice to the dealer, by order in writing transfer a case from one officer or authority to other officer or authority; however no notice to the dealer shall be necessary where the transfer is from one officer or authority to other officer or authority, whose offices are situated in the same city, town or village.

(4) Notwithstanding anything contained in sub-sections (1), (2) and (3), the Commissioner may, at any time, for administrative reasons, transfer any case or cases from one officer or authority to other officer or authority, without issuing any notice to the dealer or dealers concerned.

Explanation : The word “case” in relation to any dealer under this section shall mean any proceeding pending under the Act on the date of the order made under sub-section (2) or which may have been completed on or before such date or which may commence after such date.

Section 42. Liability for payment of tax or demand

(1) The tax or the demand shall be payable by a dealer or a person on the basis of an assessment made or an order passed, under the Act.

Explanation I : The interest, penalty, composition money or any fee payable under this Act shall be deemed to be tax for the purpose of collection and recovery and for all matters ancillary or incidental thereto.

Explanation II : The demand shall include any amount payable by a person or a dealer under the Act or the rules.

(2) The tax paid by a dealer or a person shall be adjusted against the tax determined as a result of an assessment made or the amount held payable in pursuance of an order passed, under this Act and the balance of the amount shall be payable by such dealer or person within thirty days from the date of service of the notice, or less than thirty days as may be determined by the assessing authority in the special circumstances and for reasons to be recorded in writing.

(3) In default of the payment of tax or demand payable under sub-section (1) or sub-section (2), the amount of tax or demand shall be recoverable in accordance with the provisions of this Act including the provisions of the Rajasthan Land Revenue Act, 1956 (State Act 15 of 1956) and the Revenue Recovery Act, 1890 (Central Act 1 of 1890).

(4) Where an assessee or a person has presented an appeal to the appellate authority against an order passed by an assessing authority or any other officer, the said appellate authority, after registering such appeal and after having heard the appellant and the assessing authority or officer or any representative thereof, may stay the recovery or the disputed amount of tax or demand or any part thereof till the disposal of the appeal by him, on the condition that the said assessee or the person furnishes sufficient security to the satisfaction of the assessing authority or the officer, as the case may be, in such form and in such manner as may be prescribed.

(5) The assessing authority may, subject to such conditions and restriction as may be prescribed, in respect of any particular dealer or person and for reason to be recorded in writing, extend the date of such payment and allow such dealer or person to pay any demand in instalments.

(6) (a) Where the recovery of tax or demand or any part thereof is stayed under sub-section (4), the amount of such tax or demand ultimately found due shall be recoverable with interest as per provisions of the Act, and such interest shall be payable on such amount from the date the tax or demand first became due.

(b) Where the payment of tax or demand is postponed by instalments under sub-section (5), the dealer or the person shall be required to pay interest for the amount postponed and the period extended in accordance with the provisions of this Act.

(7) Notwithstanding anything contained in this Act, the Commissioner may, on the recommendation of the State Government defer the recovery of demand payable by an industrial unit declared as sick by the Board of Industrial and Financial Reconstruction constituted under the Sick Industrial Companies (Special Provisions) Act, 1985 (Central Act No. 1 of 1986) to such extent, for such period and on such conditions with regard to the payment or rate of interest as may be deemed proper.

Section 43. Liability of a surety

The liability of a surety under this Act shall be coextensive to the extent of the amount of security with that of the defaulting dealer and all the modes of recovery enforceable against the dealer shall be simultaneously enforceable against the surety.

Section 44. Liability of the representative of a deceased person

(1) Where a person dies and his business devolves by virtue of his death upon any other person, such other person shall be liable to all obligations and liabilities in respect of such business under the Act and he shall within thirty days of the devolvement of such business apply for registration unless he already holds a certificate of registration.

(2) Where a person dies and his executor, administrator or other legal representative does not continue his business except for the purpose of winding it up, such executor administrator or legal representative shall be assessed as if he were the assessee and shall liable to pay out of the estate of the deceased person, to the extent to which the estate is capable of meeting the charge, the tax assessed or other demand payable under the Act.

Section 45. Liability on dissolution, discontinuance or partition of business

Where any business carried on by a firm, an association of persons or a Hindu undivided family liable to pay tax, is dissolved or discontinued permanently or where such Hindu undivided family is partitioned –

(a) such firm, association or family shall be liable to pay tax in respect of the turnover of the goods and other articles including plant and machinery of such firm, association or family as if there was no such dissolution, discontinuance or partition and all the provisions of this Act, shall apply accordingly;

(b) such firm, association or family as the case may be, shall be liable to pay tax on the goods and other articles including plant and machinery allotted to any partner or member thereof as if the goods or other articles including plant and machinery had been sold to such partner or member unless he holds a certificate of registration or obtains it within a period of three months from the date of such allotment;

(c) every person who was at time of such dissolution, discontinuance or partition, partner or member of such firm, association, or family and the legal representative of any such person who is deceased, shall, in respect of the turnover of such firm, association or family, be jointly and severally liable to assessment and payment of tax or other sum, and all the provisions of this Act, so far as may be, shall apply to such assessment in the liability for payment of tax or other sum;

(d) every person who obtains the whole or any part of the stock relating to the business of such firm, association of persons or Hindu undivided family, and gets himself registered within a period of three months from the date he obtains such stock, shall be liable to pay tax on the sale or purchase of the goods made by him with effect from the date of such dissolution, discontinuance or partition, as the case may be.

Section 46. Liability on transfer of business

(1) When the ownership of the business of a dealer liable to pay tax is entirely transferred in any manner, any tax or other sum payable in respect of such business and remaining unpaid at the time of the transfer, shall be payable by the transferee, as if he were the dealer liable to pay tax or other sum; and for the liability to tax accruing from the date of such transfer, he shall within thirty days of the transfer apply for registration, unless he already holds a certificate of registration.

Explanation : Transfer of entire ownership of business means –

(a) transfer of business assets, debits and credits and stocks in trade, if any; or

(b) transfer of land, building and plant and machinery.

(2) When a dealer liable to pay tax transfers the ownership of a part of his business, the transferor shall be liable to pay tax in respect of the stock of goods and other articles including plant and machinery transferred along with the part of his business which is not transferred, as if the goods and other articles including plant and machinery have been sold by him, unless the transferee holds a certificate of registration or obtains it within a period of three months from the date such transfer.

Section 47. Liability of principal and agent

(1) When an agent sells any taxable goods on behalf of his principal, such agent and his principal shall both be jointly and severally liable to pay tax on such sales.

(2) Notwithstanding that a principal may not be liable to tax on the sale or purchase of any goods made within the State for any reason nevertheless his agent shall be liable to pay tax on the sale or purchase of goods in accordance with the provisions of this Act.

(3) If the principal, on whose behalf the agent has sold goods, shows to the satisfaction of the assessing authority that the tax has been paid by his agent on such goods under sub-section (1), the principal shall not be liable to pay tax again in respect of the same goods

Section 48. Liability of firms and partners

(1) Notwithstanding anything contained in this Act, when any firm, existing or dissolved is liable to pay tax under this Act, such firm as well as each of the partners of such firm shall be jointly and severally liable to pay such tax.

(2) When any partner retires from a firm before it is dissolved, he shall be liable to pay the tax, if any, remaining unpaid at the time of his retirement and also the tax, leviable up to the date of his retirement though it may be unassessed on that date.

Section 49. Liability of directors of a private company

Subject to the provisions of the Companies Act, 1956 (Central Act 1 of 1956) where any tax and other sums recoverable under the Act from any private company, whether existing or wound up or under liquidation, cannot be recovered for any reason whatsoever, every person who was a director at any time during the period for which the tax or other sums are due shall be jointly and severally liable for the payment of such tax and other sums unless he proves to the satisfaction of the assessing authority that the non payment of tax or other sums cannot be attributed to any gross neglect, misfeasance or breach of duty on his part.

Section 50. Liability under this act to be the first charge

Notwithstanding anything to the contrary contained in any law for the time being in force, any amount of tax and any other sum payable by a dealer or any other person under this Act, shall be the first charge on the property of such dealer or person.

Section 51. Certain transfers to be void

Where during the pendency of any proceeding for the determination of any liability to tax, interest, penalty or other sum under this Act, if any dealer or a person against whom such proceeding is pending, creates a charge on, or parts with the possession by way of sale, mortgage, exchange, gift or any other mode of alienation whatsoever, of any of his assets in favour of any other person, such charge, transfer, gift or alienation shall be void as against any claim in respect of any tax, interest, penalty or other sum payable by such dealer or person, which arises as a result of the said proceeding, except when –

(1) such dealer or person has no notice of such proceeding pending against him; and

(2) such transfer is made for adequate valuable consideration.

Section 52. General modes of recovery

Without prejudice to other provisions in the Act, where any tax or other sum payable by a dealer or a person under this Act is not paid in accordance with the provisions of this Act or the rules made or notification issued thereunder, it shall be recoverable as an arrear of land revenue and the assessing authority or any other officer having jurisdiction for the time being over such dealer or person shall be empowered to recover such tax or other sum by attachment and sale of the movable or immovable property of such dealer or person and all the provisions of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956) read with the Rajasthan Land Revenue (Payments, Credits, Refunds and Recovery) Rules, 1958 shall mutatis mutandis apply.

Section 53. Special mode of recovery

(1) Notwithstanding anything contained in section 52 or any law or contract to the contrary, the assessing authority may, at any time or from time to time by notice in writing, a copy of which shall be sent to the dealer at his last address known to the assessing authority, require –

(a) any person from whom any amount is due or may become due to a dealer who has failed to pay due tax or other sum on demand by the assessing authority, or

(b) any person who holds or may subsequently hold any money for or on account of such dealer,

to pay into the government treasury or the bank authorised to receive money on behalf of the State Government, in the manner specified in the notice issued under this section either forthwith or upon the money becoming due from him or being held by him, within the time. specified in the notice (not being before the money becomes due or it is held ), so much of money as is sufficient to pay the amount due from the dealer in respect of the demand of tax and other sum under this Act, or the whole of the money when it is equal to or less than that demand.

Explanation : For the purpose of this sub-section, the amount due to a dealer or money held for or on account of a dealer by any person shall be computed after taking into account such claims, if any, as may have fallen legally due for payment by such dealer to such person.

(2) The authority issuing a notice under sub-section (1) may at any time, or from time to time, amend or revoke any such notice or extend the time for making any payment in pursuance of this notice.

(3) Any person making any payment in compliance with a notice issued under sub-section (1) shall be deemed to have made the payment under the authority of the dealer and the treasury receipt or the challan of the bank for such payment shall constitute a good and sufficient proof of discharge of the liability of such person to the extent of the amount specified in the receipt or the challan.

(4) Any person, who discharges any liability by making payment to the dealer or otherwise, after service on him of the notice issued under sub-section (1), shall be personally liable to the State Government to the extent of the liability discharged or the amount of demand, whichever is less.

(5) Any amount or money which a person is required to pay under sub-section (1) or for which he is personally liable to the State Government under sub-section (4) shall, if it remains unpaid, be recoverable in accordance with the provisions of this Act.

(6) The provisions of this section shall be without prejudice to any action that may be taken for the recovery of the arrears of tax and other sum if any, due from a dealer.

Section 54. Power to reduce or waive interest and penalty in certain cases

(1) Notwithstanding anything contained in this Act, the Commissioner may, on an application made in this behalf by a dealer and after having got conducted such enquiry as he deems necessary and after recording his reasons for so doing, reduce or waive, the amount of interest or penalty or both payable by such dealer under this Act, if he is satisfied that –

(a) the dealer is under financial hardship and is not in a position to make full payment of the demand; or

(b) to do otherwise would cause genuine hardship to the dealer.

(2) Every order made under this section shall be final and shall not be called into question by any civil court or any other authority.

Section 55. Power to write off demand

Where a demand against a dealer for a year or years payable under this Act including the Central Sales Tax Act, 1956 (Central Act 74 of 1956) has been outstanding for more than ten years from the year during which such demand is created, and such demand has been rendered irrecoverable for want of any kind of property for being attached and sold, without prejudice to the provisions of other law or rules providing for writing off of demands, such demand may be written off through an order in writing.

(a) by the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, if it does not exceed rupees five thousand;

(b) by the Deputy Commissioner (Administration), if it does not exceed rupees twenty thousand;

(c) by the Commissioner, if it exceeds rupees twenty thousand but does not exceed rupees one lac; and

(d) by the State Government, if it exceeds rupees one lac.

Section 56. Refund

(1) Where any amount is refundable to a dealer under the provisions of this Act, after having duly verified the fact of deposit of such amount, the assessing authority shall in the prescribed manner refund to such dealer the amount to be refunded either by cash payment or by adjustment against the tax or other sum due in respect of any other period and such refundable amount shall carry interest at the rate of fifteen percent per annum with effect from the date of its deposit.

(2) Where an amount or tax is collected at any checkpost from any person who is not registered under the Act and such amount or tax is not found payable by him, or where an amount in lieu of tax for any work is deducted in any manner by an awarder from any bill of payment to a contractor, who is not liable to get registration under the Act, the amount so collected or deducted shall be refunded in the prescribed manner by the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, in whose territorial jurisdiction such person or contractor ordinarily resides; and where such person or contractor does not reside in the State, then such refund shall be made by such officer who may be directed by the Commissioner.

(3) Any tax levied and collected under this Act, in respect of the sale or purchase inside the State of any declared goods which are subsequently sold in the course of inter-State trade or commerce and on which tax has been paid under the Central Sales Tax Act, 1956 (Central Act 74 of 1956), shall be refunded to the person making such sale or purchase in the course of inter-State trade or commerce, in such manner and subject to such conditions as may be prescribed.

(4) Notwithstanding anything contained in this section or in any other law for the time being in force, a refund can be claimed only by the dealer or the person, who has actually suffered the incidence of tax and the burden of proving the incidence of tax so suffered shall be on the dealer or the person claiming the refund.

Section 57. Power to obtain security or withhold refund in certain cases

Where an order giving rise to refund is subject matter of an appeal, revision or other proceeding and such appeal, revision or other proceeding is contemplated or pending, and the officer concerned or the assessing authority for reasons to be recorded in writing is of the opinion that the grant of the refund is likely to adversely affect the state revenue, the said officer or the assessing authority may, with previous approval of the Commissioner, either obtain the security equal to the amount to be refunded to the dealer or the person or withhold the refund till such time as the Commissioner may determine.

Section 58. Interest on failure to pay tax or other sum payable

(1) Where a dealer or a person commits default in making the payment of any amount of tax leviable or payable or of any amount of tax leviable or payable or of any amount of tax, fee, interest or penalty assessed or determined or of any amount or demand otherwise payable, within the specified time under the provision of this Act or the rules made or notification issued thereunder, such dealer or person shall be liable to pay interest on such amount at the rate of two per cent per month, for the period starting from the day immediately succeeding the date specified for such payment and ending with the day on which such payment is made.

(2) Subject to the provisions of sub-section (2) of section 70, interest under sub-section (1) shall be calculated –

(a) at the time of assessment under any section or in continuation of such assessment; and

(b) on payment including adjustment of a demand in full.

(3) The liability to pay interest under the provisions of this section shall also arise for a period which is less than a month.

Section 59. Penalty for not making application for registration

Where any person has without reasonable cause failed to make an application to get himself registered as required under the provisions of this Act, within the time specified in the Act or prescribed in the rules, the Assistant Commissioner, the Commercial Taxes Officer or any other officer having jurisdiction, as the case may be, may direct that such person shall pay by way of penalty in addition to the fee payable him, a sum not exceeding once thousand rupees.

Section 60. Penalty for not furnishing security or additional security

Where a dealer carries on business without furnishing the security or the additional security as directed to be furnished under section 23, the authority competent to grant registration or the assessing authority, as the case may be, may direct that such person shall pay by way of penalty, a sum not exceeding Rs. 2000 and in the case of a continuing default, a further penalty of Rs. 25 for every day of such continuance.

Section 61. Penalty for failure to furnish return

Where the assessing authority is satisfied that any dealer has without reasonable cause failed to furnish a return under section 26 within the time allowed, he may direct that such dealer shall

pay, in addition to the amount of tax payable by him, –

(a) where tax is required to be paid every month under section 25, a penalty of rupees ten per day for the period during which the default in furnishing of such return continues, but not exceeding in the aggregate twenty per cent of the tax so assessed; and

(b) in all other cases, a penalty of rupees five per day subject to a maximum limit of rupees five hundred, for the period during which the default in furnishing of such return continues.

Section 62. Penalty for not maintaining or keeping accounts

Where any dealer does not maintain accounts, registers and documents as required under the provision of sub-sections (1) and (2) of section 75, or does not keep his accounts, registers and documents at a place in accordance with the provisions of sub-sections (3) and (4) of section 75, the assessing authority or any other officer not below the rank of Assistant Commercial Taxes Officer as authorised by the Commissioner may direct that such person shall pay by way of penalty a sum not exceeding Rs. 5000 and in case of continuing default, a further penalty of fifty rupees for every day of such continuance.

Section 63. Penalty for unauthorised collection of tax

Where any person –

(a) not being a dealer liable to pay tax under this Act, collects any amount by way of tax; or

(b) being a registered dealer, collects any amounts by way of tax in excess of the tax payable by him; or

(c) otherwise collects tax in contravention of any of the provisions of the Act including section 14,

the Assistant Commissioner or the Commercial Taxes Officer having jurisdiction or the assessing authority as the case may be, shall forfeit the amount collected as tax or by way of tax, and may direct that such person shall pay by way of penalty a sum equal to double of such amount.

Section 64. Penalty for violation of declaration

Where any dealer uses any declaration form against the provisions of the Act or the rules made thereunder, or after having purchased any goods, other than the goods purchased under section 10, in respect of which he has made declaration under the provisions of this Act or the rules made thereunder, fails without reasonable cause to use or dispose of the goods in accordance with the declared purpose, the assessing authority may direct that such person shall pay by way of penalty in addition to the tax payable under sub-section (2) of section 11, a sum equal to double the amount of tax to the extent to which it was not required to be paid by such dealer on the strength of the declaration forms furnished by him.

Section 65. Penalty for avoidance or evasion of tax

Where any dealer, whether or not registered, has concealed any particulars from any return furnished by him or has deliberately furnished inaccurate particulars therein or has concealed any transaction of sale or purchase from his accounts, registers and documents required to be maintained under this Act or has avoided or evaded tax in any other manner, the assessing authority may direct that such dealer shall pay by way of penalty, in addition to the tax payable by him under law, a sum equal to double the amount of tax avoided or evaded.

Section 66. Penalty for not furnishing statistics

Where any dealer or a person, has without reasonable cause failed to furnish within the time allowed, statistics or other information required to be furnished in pursuance of any direction given by any officer or authority appointed or constituted under this Act, the Assistant Commissioner or the Commercial Taxes Officer having jurisdiction or the assessing authority, as the case may be, may direct that such person or dealer shall pay by way of penalty, a sum not exceeding one thousand rupees.

Section 67. Penalty on awarders

(1) Where an awarder of a works contract fails to deduct the amount in lieu of tax from the bill of a contractor as prescribed, or after having deducted such amount from such bill does not deposit the same in the prescribed manner and time, he shall be liable to pay tax deducted by him and a penalty for each violation, which may extend up to Rs. 1000 in the case of non-deduction, and a penalty at the rate of two per cent per month on the amount so deducted but not deposited for the period during which such default continues.

(2) The assessing authority of the contractor concerned shall be empowered to recover lax and to impose penalty under sub-section (1).

Section 68. Penalty for other violations

Where any dealer or a person fails to comply with a direction given by any officer or authority appointed or constituted under this Act, or violates any of the provisions to this Act or the rules, for which no specific penalty has been provided elsewhere under the Act or the rules, the assessing authority or any other officer not below the rank of Assistant Commercial Taxes Officer as authorised by the Commissioner, may direct that such person shall pay by way of penalty, a sum not exceeding Rs. 2000 and in the case of continuing default, a further penalty of Rs. 25 for every day of such continuance.

Section 69. Opportunity before imposition of penalty

No penalty under this Act shall be imposed unless a reasonable opportunity of being heard is afforded to the dealer or the person concerned.

Section 70. The limit for imposition of penalty or levy of interest

(1) No order for imposing penalty shall be passed –

(a) after expiry of two years from the end of the year in which the relevant assessment, reassessment or rectification order is passed; and

(b) if the assessment, reassessment or rectification order is the subject-matter of appeal, revision or other proceeding, after expiry of two years, from the end of the years in which the order in appeal, revision or other proceeding is passed.

(2)

(a) Subject to the provisions in clause (b) of this sub-section, no order for levy of interest shall be passed –

(i) after expiry of two years from the end of the year in which relevant assessment, reassessment or rectification order is passed; and

(ii) if the assessment, reassessment or rectification order is the subject matter of appeal, revision or other proceeding, after expiry of two years from the end of the year in which the order in appeal, revision or other proceeding is passed.

(b) No order for levy of interest in the case of recovery of a demand shall be passed after expiry of two years from the end of the year in which such demand in full is recovered or adjusted or partly recovered and partly adjusted.

Explanation : In computing the period of limitation under this section, the period during which the proceeding for imposition of penalty or levy of interest remains stayed or restrained under the orders of any competent authority or court, shall be excluded.

Section 71. Prosecution under the act

(1) Where any person –

(a) though not registered under the Act, yet falsely represents that he is registered dealer at the time of any sale or purchase made by him or at the time of making any statement or declaration before any officer or authority appointed or constituted under the Act; or

(b) knowingly prepares or produced false accounts, registers or documents, or knowingly furnishes false returns in relation to his business, or makes a false disclosure or averment in any statement required to be recorded or in any declaration required to be filled under this Act or the rules, or

(c) fraudulently avoids or evades tax or deliberately conceals his tax liability in any manner, or

(d) fails to pay the amount of any demand notice and a period of not less than six months has elapsed since the receipt of the demand notice by him; or

Explanation : An offence under this clause shall be deemed to be a continuing offence until full payment is made.

(e) deliberately disregards a notice issued under section 53; or

(f) prevents or obstructs in any manner the competent officer under the Act, to enter, inspect and search the business place or any other place where the goods or the accounts, registers and documents are believed to be kept, or prevents or obstructs such officer to seize the goods or the accounts, registers and documents; or

(g) fails to stop the vehicle or carrier transporting the goods, of which he is the driver or otherwise in charge, for being inspected in accordance with the provisions of this Act, or prevents or obstructs the inspection of the goods, or the vehicle or the carrier transporting the goods, by the in charge of a checkpost or other officer empowered in this behalf to discharge his duties; or

(h) imports into or exports from, the State of Rajasthan, any goods showing incorrect or fictitious names or addresses of consignors or consignees or incorrect details of goods or incorrect particulars in vouchers or way bills or goods receipt or other documents accompanying the goods while in movement, or

(i) aids or abets any person in the communication of any such offence as aforesaid;

on a compliant being made against such person by the assessing authority or any other competent officer after having obtained sanction from the Deputy Commissioner (Administration) having jurisdiction, he shall, on conviction by a Judicial Magistrate having jurisdiction, be punishable with simple imprisonment for a term which may extend to six months and with fine not exceeding rupees five thousand, and for the offences covered under clauses (b), (c), (f) or (g) with a minimum sentence of simple imprisonment of three months.

(2) Where an offence under this section is committed with regard to a business, every person, who was responsible for the conduct of the business at the time when the offence was committed or who was answerable for a legal lapse in any manner by his action or omission, shall be liable to be proceeded against and published under this section.

(3) Where an offence under this section is committed with regard to a business, every person, who was responsible for the conduct of the business at the time when the offence was committed or who was answerable for a legal lapse in any manner by his action or omission, shall be liable to be proceeded against and punished under this section.

(4) Any proceeding under this Act including the proceeding of assessment, reassessment, rectification or recovery other than the proceeding for imposition of penalty, shall be carried on without prejudice to any prosecution under this section.

Section 72. Composition of offences

(1) Where a person is charged under this Act with the offence of avoidance or evasion of tax in any manner and at any time, or with the offence of misuse of declaration forms, he may make an application on plain paper to the Deputy Commissioner (Administration) having jurisdiction, admitting his offence and making request therein for composition of the offence in lieu of penalty or prosecution.

(2) The Deputy Commissioner (Administration), whether or not an assessment order under any section of the Act has been passed, may accept from the person who made the application under sub-section (1), by way of composition of the offence in lieu of penalty or prosecution –

(i) a sum equal to the amount of tax avoided or evaded in any manner and at any time; and

(ii) a sum equal to the tax payable but not required to be paid on account of the use of the declaration forms.

(3) Notwithstanding anything contained in sub-sections (1) and (2) on an application by a person admitting the offence committed by him under sub-section (8) of section 77 or sub-section (5) or (6) of section 78, the assessing authority, the officer authorised under sub-section (4) of section 77, the officer empowered under sub-section (3) of section 78 of the in charge of a checkpost, as the case may be, may accept composition money from such person in lieu of penalty or prosecution, which shall be equal to the amount of four times of the tax leviable on the goods involved or twenty five per cent of the value of such goods, whichever is less.

(4) The composition of offence in lieu of penalty or prosecution under this section shall be without prejudice to the liability of the person charged with the offence, to pay tax with interest under this Act.

(5) On the payment of the amount of composition determined under sub-section (1) no further proceeding under the provisions of this Act for imposition of penalty or launching or prosecution for the same offence, shall be initiated.

(6) Notwithstanding anything contained in section 84, no appeal shall lie or subsist against an order of composition made under the Act.

(7) Notwithstanding anything contained in section 54, no amount of composition accepted and no amount of interest levied under this section, shall be waived or reduced by the Commissioner.

Section 73. Penalty or composition under the act not to interfere with punishment under other law

Any penalty, proceeding under this Act whether pending or completed or any composition of offence in lieu of penalty or prosecution, shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law.

Section 74. Investigation of offences

(1) Subject to such conditions as may be prescribed, the Commissioner may authorise either generally or in respect of a particular case or class of cases, any officer not below the rank of an Assistant Commercial Taxes Officer to investigate all or any of the offences punishable under this Act.

(2) Every officer so authorised shall, in the conduct of such investigation, exercise the powers conferred by the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) upon the officer in charge of a police station for the investigation of a cognizable offence.

Section 75. Accounts to be maintained by a dealer

(1) Every dealer liable to pay tax under this Act shall keep and maintain a true and correct account of his business activities in an intelligible form including the value and quantity of the goods received, manufactured, sold or otherwise disposed of or held in stock by him.

(2) Every manufacturer liable to pay tax under this Act shall, in addition to accounts referred to in sub-section (1), maintain a stock book of raw materials used and finished goods produced.

(3) The accounts required to be maintained under sub-section (1) shall be kept by the dealer at the place (s) of business as recorded in his certificate of registration, and the stock book as referred to in sub-section (2) shall be kept at the place where manufacturing activity is carried on, however final accounts, annual statement, registers and documents shall be kept at principal place of business.

(4) Where a dealer has established branches at places in the State other than the principal place of business, the necessary accounts, registers and documents relating to the business activities being carried on at each branch shall, without prejudice to the provisions of sub-section (3), be kept by him at such branch.

(5) The accounts, registers and documents, relating to a year shall be preserved and kept by a dealer for six years excluding the year to which they relate, and this period of six years shall be deemed extended by such time until any pending proceeding referring thereto under the Act is finally disposed of.

Section 76. Certain dealers to issue bill or cash memorandum

(1) Every dealer who is liable to pay tax under this Act and whose turnover exceeds rupees two lacs in any year shall, for each sale of goods exceeding rupees fifty in value made by him in the succeeding years, issue to the purchaser, a bill or a cash memorandum signed and dated by such dealer or his manager, agent or servant showing such particulars as may be prescribed, and a counterfoil or duplicate of such bill or cash memorandum shall be kept by him.

(2) Notwithstanding anything contained in sub-section (1), where a dealer deals exclusively in goods not liable to tax, he shall not be required to issue a bill or cash memorandum.

(3) Where any dealer, who deals in any goods liable to tax and to whom sub-section (1) applies, contravenes the provisions of the said sub-section the assessing authority may, after giving such dealer a reasonable opportunity of being heard, direct him to pay by way of penalty a sum equal to double the amount of tax leviable on sale in respect of which a bill or cash memorandum has not been issued, or rupees fifty, whichever is higher.

Rajasthan Sales Tax Act, 1994

Section 77. Power of entry, inspection and seizure of accounts and goods

(1) An assessing authority or any officer not below the rank of Inspector, Commercial Taxes Department authorised by the Commissioner in this behalf with such conditions and restrictions as may be specified by such Commissioner, shall have the power –

(a) to inspect or survey the place of business of a dealer or any other place where it is believed by such authority or officer that business is being done or accounts are being kept by such dealer;

(b) to direct such denier to produce accounts, registers and documents relating to his business activities for examination;

(c) to inspect the goods in the possession of the dealer or in the possession of anybody else on behalf of such dealer, wherever such goods are placed;

(d) to make search of such places including the search of the person found there, where concealment of facts relating to business is suspected;

(e) to break open the door of any premises or to break open any almirah, box, receptacle in which any goods, accounts, registers or documents of the dealer are suspected to be concealed, where access to such premises, almirah, box or receptacle is denied;

(f) to record the statement of the dealer or his manager, agent or servant or to take extracts from the record and to put identification marks on accounts, registers or documents and on any door, almirah, box or receptacle.

Explanation : There shall be presumption in respect of goods, accounts, registers or documents, which are found at any place of business of a dealer during any inspection or search that they relate to his business unless the contrary is proved by him.

(2) The power under clauses (d) and (e) of sub-section (1) shall be exercised by the Inspector in the presence of an authority not below the rank of Assistant Commercial Taxes Officer.

(3) Where any accounts, registers or documents are produced before any assessing authority or any officer not below the rank of Assistant Commercial Taxes Officer in any proceeding under the Act, such authority or officer may, for reasons to be recorded in writing, impound and retain them in its custody for a period not exceeding six months, and shall give the dealer or any other person who has produced such accounts, registers or documents a receipt of the same, and the dealer may obtain copy of such accounts, registers or documents on payment of copying fee as may be prescribed.

(4) Where at the time of inspection, the assessing authority or any officer not below the rank of Assistant Commercial Taxes Officer authorised by the Commissioner in this behalf has reason to suspect that the dealer is attempting to avoid or evade tax or is concealing his tax liability in any manner, it may, for reasons to be recorded in writing seize such accounts, registers or documents of the dealer as it may consider necessary and shall give the dealer or any other person from whose custody such accounts, registers or documents are seized a receipt for the same, and may retain the same in its custody for examination, enquiry, prosecution or other legal action for a period not exceeding six months, and the dealer may obtain copy of such accounts, registers or documents on payment of copying fee as may be prescribed.

(5) The accounts, registers or documents impounded under sub-section (4) or seized under sub-section (3) could not retained even beyond a period of six months and up to a maximum period of two years from the date of impounding or seizure, as the case may be, by such authority or officer, after having obtained permission in writing of the Commissioner or the Deputy Commissioner (Administration) authorised by the Commissioner.

(6) The assessing authority or any other officer not below the rank of Assistant Commercial Taxes Officer authorised by the Commissioner under sub-section (4) may seize any goods liable to tax which are found in the possession of a dealer or in the possession of anybody else on behalf of such dealer and which are not accounted for in his accounts, registers or documents maintained in the course of his business; and a list of goods so seized shall be prepared by such authority or officer and a copy thereof shall be given to the dealer or any other person from whose custody such good are seized.

(7) Where it is not feasible to seize the accounts, registers or documents under sub-section (4) or the goods under sub-section (6) the assessing authority or the officer concerned may serve on the owner or the person who is in immediate possession or certrol there of an order that he shall not remove, part with or otherwise deal with them except with the previous permission of such authority or officer which may, after serving such order, take such steps as may be deemed necessary under the circumstances.

(8) The assessing authority or the officer referred to in sub-section (6) may, after having given the dealer an opportunity of being heard and after having held such further enquiry as it may consider fit, impose on him, for the possession of goods not accounted for, whether seized or not under subs-section (6) a penalty equal to the amount of five times of the tax leviable on such goods or thirty per cent of the value of such goods, whichever is less; and such authority or officer may release the goods, if seized, on payment of the penalty imposed or on furnishing such security for the payment thereof as it may consider necessary.

(9) The assessing authority or other officer as referred to in sub-section (6) may, require any person –

(a) who transports or holds in custody any goods of a dealer, to give any information in his possession in respect of such goods or to allow inspection thereof, as the case may be; and

(b) who maintains or has in his possession any accounts, registers or documents relating to the business of a dealer, to produce such accounts, registers or documents for inspection.

Section 78. Establishment of checkpost and inspection of goods while in movement

(1) The Commissioner may, with a view to prevent or check avoidance or evasion of tax, by notification in the Official Gazette, direct the setting up of a checkpost at such place and for such period as may be specified in the notification, and every officer or official who exercises his powers and discharges his duties at such checkpost by way of inspection of documents produced and goods being moved, shall be its in charge.

(2) The driver or the person in charge of a vehicle or carrier of goods in movement shall –

(a) carry with him a goods vehicle record including “challans” and “bilties”, bills of sale or despatch memos and prescribed declaration forms;

(b) stop the vehicle or carrier at every checkpost set up under sub-section (1);

(c) produce all the documents including prescribed declaration forms relating to the goods before the in charge of the checkpost;

(d) give all the information in his possession relating to the goods; and

(e) allow the inspection of the goods by the in charge of the check post or any other person authorised by such in charge.

Explanation : For the purposes of this Chapter –

(i) “vehicle or carrier” shall include any means of transportation including an animal to carry goods from one point to another point;

(ii) “goods” shall include animals also, and

(iii) “goods in movement” shall means –

(a) the goods which are in the possession or control of a transporting agency or person or other such bailee;

(b) the goods which are being carried in a vehicle or carrier belonging to the owner of such goods; and

(c) the goods which are being carried by a person.

(3) Where any goods are in movement within the territory of the State of Rajasthan, an officer empowered by the State Government in this behalf may stop the vehicle or the carrier or the person carrying such goods, for inspection, at any place within his jurisdiction and the provisions of sub-section (2) shall mutatis mutandis apply.

(4) Where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub-section (2), or documents produced appear false or forged, the in charge of the checkpost or the officer empowered under sub-section (3) may –

(a) direct the driver or the person in charge of the vehicle or carrier or of the goods not to part with the goods in any manner including by transporting or re-booking, till a verification is done or an enquiry is made, which shall not take more than seven days;

(b) seize the goods for reasons to be recorded in writing and shall give receipt of the goods to the person from whose possession or control they are seized;

(c) release the goods seized in clause (b) to the owner of the goods or to anybody else duly authorised by such owner, during the course of the proceeding if the adequate security of the amount equal to the estimated value of the goods is furnished.

(5) The in-charge of the checkpost or the officer empowered under sub-section (3), after having given the person in-charge of the goods a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall impose on his for possession or movement of goods, whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or declaration, a penalty equal to 1[thirty percent of the value of such goods].

(6) During the pendency of the proceeding under sub-section (5), if anybody appears before the in-charge of the checkpost or the officer empowered under sub-section (3) and prays for being impleaded as a party to the case on the ground of involvement of his interest therein, the said in-charge or the officer on being satisfied may permit him to be impleaded as a party to the cases; and thereafter, all the provisions of this section shall mutatis mutandis apply to him.

(7) The in-charge of the checkpost or the officer empowered under sub-section (3) may release the goods to the owner of the goods or to anybody else duly authorised by such owner, if seized and not already released under clause (c) of sub-section (4), on payment of the penalty imposed under sub-section (5) or on furnishing such security for the payment thereof, as such in-charge or officer may consider necessary.

(8) Where the driver or the person In-Charge of the vehicle or the carrier is found guilty for violation of the provisions of sub-section (2) subject to the provisions of sub-section (10), the in-charge of the checkpost or the officer empowered under sub-section (3) may detain such vehicle or carrier and after affording an opportunity of being heard to such driver or Person-in-Charge of the vehicle or the carrier, may impose a penalty on him as provided in sub-section (5).

(9) The in-charge of the checkpost or the officer empowered under sub-section (3) may release the vehicle or the carrier on the payment of the amount of penalty imposed under sub-section (8) or on furnishing such security as may be directed by such in-charge or officer.

(10) Where a transporter, while transporting goods, is found to be in collusion with trader to avoid or evade tax, the in-charge of the check post or the officer empowered under sub-section (3) shall detain the vehicle or carrier of such transporter and after affording him an opportunity of being heard and with the prior approval in writing of the Deputy Commissioner (Administration) having jurisdiction, may confiscate such vehicle or carrier.

2[(11) If a transporter fails to give information as required from him under clause (d) of sub-section (2) about the consignor, consignee or the goods within such time as may be specified or transports the goods with forged documents, besides imposing the penalty under sub-section (5), it shall be presumed that the goods so transported have been sold in the State of Rajasthan by him and he shall be deemed to be a dealer for those goods under this Act.

(12) The provisions of this Act shall, for the purpose of levy, collection and assessment of tax, determination of interest, payment and recovery of tax and interest, appeal, review or revision, apply to the transporter deemed to be a dealer under sub-section (11)].

Section 79. Establishment of checkpost on contract basis

(1) Where the Commissioner is of the view that without establishing a departmental checkpost, it is in the interest of the State to collect a fixed sum of a tax on contract basis, in respect of all kinds of building stones, marble and granite in all their forms, gitti, bazri and animals at a particular point or for a specified area, he may through a contract, permit a contractor to collect such tax at such point or for such area, on such terms and conditions as may be specified by him, for a period not exceeding two years at a time.

(2) A contractor covered by sub-section (1) shall deposit the fixed amount of tax subject to revision on account of any increase or decrease in the rate of tax or grant of exemption from tax, in such manner and within such time as may be fixed by the Commissioner, and all the provisions of this Act including the provisions of recovery and interest shall, so far as may be, apply to such contractor.

(3) Where the period of a contract entered into sub-section (1) expires and no further contract is awarded, the same contract may be extended for a further period of three months or up to the date of the award of the next contract, whichever is earlier, and the contractor shall accordingly deposit the proportionate amount of tax for such extended period, as directed by the Commissioner.

(4) The contractor shall not collect tax on the goods under sub-section (1) exceeding the amount of tax leviable thereon under the provisions of the Act.

(5) Where a contractor violates the provisions of sub-section (4), the Commissioner or any officer not below the rank of Assistant Commercial Taxes Officer authorised by the Commissioner, shall after affording an opportunity of being heard, direct that such contractor shall pay by way or penalty, in addition to the amount of excess tax collected, a sum equal to double the amount of excess tax collected by him or any other person on his behalf.

(6) Where a contractor violates any of the terms or conditions of the contract, the Commissioner may, after recording reasons in writing, terminate the contract at any time and shall be empowered to recover the full amount of tax as stipulated under the contract from such contractor, as if such amount was a demand of tax under the Act.

Section 80. Transit of goods by road through the state and issue of transit pass

(1) Where a vehicle or carrier coming from any place outside the State and bound for any place outside the State and carrying any goods bound for any place outside the State, passes through the State, the owner, the driver or the Person-in-Charge of such vehicle or carrier or goods shall obtain in the prescribed manner a transit pass for such goods from the in-charge of the first checkpost after his entry into the State and deliver it to the in-charge of the last checkpost before his exist from the State.

(2) Where such owner, driver or Person-in-Charge fails to deliver such transit pass in respect of any goods in accordance with the provisions of sub-section (1) or is found to have suppressed of give false particulars of any consignment of goods in his application for issue of transit pass, it shall be presumed that such goods have been sold within the State by the owner, the driver or the Person-in-Charge of the vehicle of the carrier of the goods and after having afforded an opportunity of being heard of such owner, driver or person-in-Charge, any officer not below the rank of Assistant Commercial Taxes Officer as may be authorised by the Commissioner, shall make an order that notwithstanding anything contained in this Act, such owner, driver or Person-in-Charge shall, pay tax on such sale together with the penalty equal to double the amount of such tax.

(3) The system or transit pass as provided in sub-sections (1) and (2) shall come into force from such date and at such checkpost as may be notified by the Commissioner from time to time.

Section 81. Import of goods into the state or export of goods outside the state

(1) Any registered dealer or any other person, who intends to import or bring any goods, or otherwise receives, goods as may be notified by the State Government from outside the Stale, for sale, use, consumption or for other disposal in the State, shall, unless otherwise prescribed, obtain a prescribed declaration form from the prescribed authority, and shall cause it to be carried with the goods as part of the documents specified in sub-section (2) of section 78 and produced along with other documents before the in-charge of the entry checkpost of the State.

(2) Any registered dealer or any other person by whom any goods taxable within the State of Rajasthan are despatched from within the State to a place outside the State either in the course of inter-State trade or commerce or for sale outside the State, such registered dealer or other person shall, unless otherwise prescribed, furnish or cause to be furnished a prescribed, declaration form obtained from the prescribed authority as part of the documents specified in sub-section (2) of section 78, before the in-charge of the exit checkpost of the State.

Section 82. Liability to obtain licence and furnish information by certain agents

(1) A clearing or forwarding agent who in the course of his business renders his service for booking or taking delivery of any consignment of goods liable to tax or handles any document of title relating to goods liable to tax, shall obtain a licence from the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, in whose territorial jurisdiction he conducts his business, in such form and manner and subject to such conditions as may be prescribed.

(2) Every such clearing or for forwarding agent shall furnish to the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, such particulars and information in such form and manner as may be prescribed.

(3) Where any clearing or forwarding agent violates any of the provisions of sub-section (1) or sub-section (2), the Assistant Commissioner or the Commercial Taxes Officer, as the case may be, may, after affording a reasonable opportunity of being heard, direct him to pay an amount way of penalty –

(a) in case of violation of provision of sub-section (1), not more than Rs. 2000 and not less than Rs. 1000; and

(b) in case of violation of provisions of sub-section (2), equal to the amount of tax leviable at the full rate on the value of the goods in respect of which violations has been made.

Section 83. Special provisions relating to under-billing

(1) The Commissioner may permit or authorise any officer not below the rank of an Assistant Commercial Taxes Officer, to purchase any goods in the prescribed manner from a dealer at the price equal to the value shown in his purchase bill or sale bill increased by ten per-cent where such officer has reason to believe that the value shown in the sale or purchase bill is less than the fair market price of such goods. The dealer shall also be reimbursed the octroi and the transportation charges actually incurred.

(2) The dealer, on being directed in purchase of sub-section (1), shall be bound to sell the goods to the officer so permitted or authorised and if he refuses, fails or does not deliver the goods within the time mentioned in the direction given to him, he shall be liable to penalty, which shall be equal to the amount of difference between the fair market price of such goods in the opinion of such officer and the price offered to the dealer for purchase of such goods.

(3) The dealer shall be afforded a reasonable opportunity of being heard before imposition of penalty under sub-section (2).

Section 84. Appeal to the appellate authority

(1) Subject to the provisions of section 88, an appeal against any order of an Assistant Commissioner, a Commercial Taxes Officer, an Assistant Commercial Taxes Officer or in charge of a checkpost shall lie to the appellate authority.

(2) The appeal shall be presented within sixty days of the date on which the order sought to be appealed against is communicated; but the appellate authority may admit an appeal even after the said period of sixty days if it satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.

(3) Notwithstanding anything contained in sub-section (4) of section 42, no appeal under this section shall be entertained unless it is accompanied by satisfactory proof of the payment of tax or other amounts admitted by the appellant to be due from him or of such instalment thereof as might have become payable, or twenty per cent of the tax or other amounts assessed, whichever is higher, but the appellate authority may, for reasons to be recorded in writing waive or relax the requirement of depositing of twenty per cent of the amount of disputed demand.

(4) Notwithstanding that an appeal has been preferred to the appellate authority, the tax or other sum shall, subject to the provisions contained in sub-sections (4) and (5) of section 42, be paid in accordance with the order against which an appeal has been preferred.

(5) The appeal shall be in the prescribed form and shall be verified in the prescribed manner.

(6) The following shall have the right to be heard at the hearing of the appeal –

(a) the appellant, either in person or by the authorised representative;

(b) the authority or officer against whose order the appeal has been preferred either in person or by a representative.

(7) The appellate authority may, before disposing of any appeal make such further enquiry as it thinks fit, or may direct that assessing authority or the officer against whose order appeal has been preferred to make further enquiry and report the result of the same to the appellate authority and in disposing of the appeal the said authority may –

(a) In the case of an order of assessment, interest or penalty –

(i) confirm, enhance, reduce or annul the assessment, interest or penalty; or

(ii) set aside the order of assessment, interest or penalty and direct the assessing authority to pass fresh order after such further enquiry as may be directed; and

(b) In the case of any other order, confirm, cancel, vary or remand such order.

(8) The appellate authority shall send a copy of the order passed by it to the appellant, the assessing authority, the Deputy Commissioner (Administration) concerned and the Commissioner.

Section 85. Appeal to the tax board

(1) An appeal shall lie to the Tax Board against –

(a) an order of the State Level Screening Committee or the Direct Level Screening Committee passed under the Incentive Schemes of Deferment Schemes notified under sub-section (2) of section 15 or under sub-section (3) of section 25;

(b) an order passed by the Commissioner with regard to determination of a disputed question under section 40 or in any proceeding in exercise of his revisional powers under section 87;

(bb) an order passed by the Commissioner or a Deputy Commissioner (Administration) under sub-section (2) of Section 30; and

(c) an order passed by an appellate authority.

(2) Any person aggrieved by any order referred to in clauses (a), (b) and (c) of sub-section (1), may file an appeal before the Tax Board within ninety days of the date on which the order sought to be appealed against is communicated to him in writing.

(3) Notwithstanding anything contained in sub-section (2) the Commissioner or a Deputy Commissioner (Administration) authorised specially or generally by the Commissioner may, if aggrieved by any order referred to in clauses (a), (b) and (c) of sub-section (1), direct any officer or in-charge of a checkpost to file an appeal before the Tax Board and such officer or in-charge shall file such appeal under his signatures within one hundred and eighty days of the date on which the order sought to be appealed against is communicated in writing to the Commissioner or the Deputy Commissioner.

(4) If an appeal is filed by a dealer under clause (a) of sub-section (1) against an order of refusal of the benefit of exemption from tax or deferment of tax, the Commissioner shall be a necessary party as respondent.

(5) The respondent may, on receipt of notice that an appeal against an order referred to in sub-section (1) has been preferred by the appellant, notwithstanding that he may not have appealed against such order, within one hundred and twenty days in the case of an officer of the Commercial Taxes Department and within sixty days in the case of a dealer, of receipt of the notice, file a memorandum of cross-objections verified in the prescribed manner, against any part of the said referred order and such memorandum shall be disposed of by the Tax Board as if it were an appeal within the time specified in sub-section (2) or (3).

(6) The Tax Board may admit an appeal or permit the filing of memorandum of cross-objections after the expiry of the limitation provided in subsections (2), (3) and (5), if it is satisfied that there was sufficient cause for not presenting the same within that limitation.

(7) An appeal to the Tax Board shall be made in the prescribed form and shall be verified in the prescribed manner.

(8) The Tax Board during the pendency of an appeal before it, shall not stay any proceeding but it may, on an application in writing from the dealer, stay the recovery of the disputed amount of tax, fee, interest of penalty or any part thereof on the condition of furnishing adequate security to the satisfaction of the assessing authority; and the amount found ultimately due shall be subject to interest from the date it became first due, in accordance with the provisions of this Act.

(9) Notwithstanding that an appeal against an order has been preferred to the Tax Board of tax, fee, interest or penalty shall be paid in accordance with the order against which appeal has been preferred, unless recovery of such tax, fee, interest or penalty has been stayed by the Tax Board.

(10) The Tax Board shall, with the previous sanction of the State Government, make by notification in the Official Gazette, regulations consistent with the provisions of this Act and the rules made thereunder for regulating its own procedure and the procedure of the benches thereof in the matters arising out of the exercise of its powers or the discharge of its functions; however, until the regulations are made, the Tax Board shall, subject to the provisions of this Act and the rules made thereunder, have power to regulate its own procedure and the procedure of the benches thereof in all matters arising out of the exercise of its powers and discharge of its functions.

(11) The Tax Board shall, after giving both the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit and send a copy thereof to the appellant, the assessing authority, the authority whose order was appealed against and the Commissioner.

Section 86. Revision to the high court

(1) Any dealer aggrieved by an order passed by the Tax Board under sub-section (11) of section 85 or under sub-section (1) of section 37, may, within, ninety days from the date of service of such order, apply to the High Court in the prescribed form accompanied by the prescribed fee, for revision of such order on the ground that it involves a question of law.

(2) The Commissioner may, if he feels aggrieved by any order passed by the Tax Board under sub-section (11) of section 85, direct, any officer or in-charge of a checkpost to apply to the High Court for for revision of such order on the ground that it involves a question of law; and such officer or in-charge of a checkpost shall make the application to the High Court within one hundred and eighty days of the date on which the order sought to be revised is communicated in writing to the Commissioner.

(3) The application for revision under sub-section (1) of sub-section (2) shall state the question of law involved in the order sought to be revised, and the High Court may formulate the question of law in any form or allow any other question of law to be raised.

(4) The High Court shall after hearing the parties to the revision, decide the question of law stated to it or formulated by it, and shall thereupon pass such order as is necessary to dispose of the case.

(5) Any person feeling aggrieved by an order passed under sub-section (4) may apply for a review of the order to the High Court and the High Court may make such order thereon as it thinks fit.

 Section 87. Revision by the commissioner

(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by Assistant Commissioner, Commercial Taxes Officer, Assistant Commercial Taxes Officer or in-charge of a checkpost is erroneous and is prejudicial to the interests of the State revenue, he may, after having made or after having caused to be made, such enquiry as he considers necessary, and after having given to the dealer a reasonable opportunity of being heard, pass such order or issue such direction as he deems proper under the circumstances of the case.

(2) No order or direction under sub-section (1) shall be passed or issued by the Commissioner if a period of five years has already elapsed from the date on which the order sought to be revised was passed.

 Section 88. No appeal or revision in certain cases

Notwithstanding anything contained in sections 84, 85 and 86, no appeal or revision shall lie against –

(a) a notice or summons issued under this Act for the purpose of assessment or for any other purpose including for recording statements; or

(b) a direction to maintain certain accounts or furnish certain information, statement, statistics or return; or

(c) an order for impounding, seizure or retention of accounts, re-registers or documents; or

(d) an interim order other than an order of provisional assessment, passed in assessment or other proceeding subject however it will be open to the party aggrieved to challenge such interim order in any appeal or revision preferred against the final order; or

(e) any guidelines formulated, instructions issued, directions given or orders passed by the Commissioner under section 93 of the Act.

Section 89. Persons appointed under act to be public servants

All the officers and officials, with whatever designation, appointed or posted to discharge a duty under the Act, including the members of Tax Board shall be deemed to be public servants within in the meaning of section 21 of the Indian Penal Code (Central Act XLV of 1860).

Section 90. Constitution of the Rajasthan tax board

(1) The State Government shall constitute the Rajasthan Tax Board for the State consisting of the Chairman and as many members as it thinks fit, to exercise the powers and to discharge the duties conferred on the said Tax Board by this Act or any other law.

(2) The Tax Board shall, subject to any direction given by the State Government, sit at such place or places as it may deem fit.

(3) The State Government shall prescribe the qualifications of persons who shall be eligible for appointment as Chairman and member of the Tax Board the method of their selection for appointment and conditions of their service.

(4) The constitution of the Tax Board shall not be deemed to be invalid if any vacancy occurs or continues on accounts of death, resignation, retirement, transfer expiry or termination of the appointment, or due to temporary absence of the Chairman or of any member.

Section 91. Indemnity

No suit, prosecution or other legal proceeding shall lie against any officer or employee of the State Government for anything which is done or intended to be done under this Act or the rules made thereunder in good faith.

Section 92. Bar to proceedings except as provided in the act

No assessment made and no order passed by any officer appointed or authority constituted under the Act shall be called into question, except as provided in this Act.

Section 93. General powers of the commissioner

(1) Subject to the provisions of this Act and the rules made thereunder, the Commissioner shall be empowered to formulate guidelines or issue administrative instructions, in particular or in general, for carrying out the purposes of the Act and the rules.

(2) For the purposes of the official use, the Commissioner may, by notice in any newspaper, or in such other manner as he deems proper call upon all dealers or any class of dealers to furnish such information, statement or return as may be specified in the notice issued in this behalf.

Section 94. Power to enforce evidence

Any officer not below the rank of Assistant Commercial Taxes Officer or appellate authority or the Tax Board while exercising powers or discharging duties under any of the provisions of this Act, shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (Central Act V of 1908) when trying a suit, in respect of the following matters arising in any proceeding under the Act, namely –

(a) enforcing the attendance of any person and examining him on oath or affirmation;

(b) compelling the production of documents; and

(c) issuing commission for examination of witness;

and the proceeding before the said officer or authority shall be deemed to be a judicial proceeding within the meaning of sections 193, 196 and 228 of the Indian Penal Code (Central Act XLV of 1860).

Section 95. Power to seek assistance from police officer or other officer

An officer exercising the powers under sections 77 and 78 may take the assistance of any police officer or other officer or the other officer shall render necessary help in accordance with law.

Section 96. Disclosure of information relating to an assessee

(1) Where any information about the registration, returns and assessment or matters incidental thereto, of a dealer is required

(a) by a court in connection with any proceeding before it; or

(b) by a police office in connection with any investigation of a case; or

(c) by any government department for any official purpose; the assessing authority may furnish the information under his possession to such court, police officer or government department.

(2) Where any information as referred to in sub-section (1) is required by a person other than a court, a police officer or a government department, such person shall make an application to the Commissioner in the prescribed form and on payment of a prescribed fee, and the Commissioner may after he is satisfied that there are no considerations justifying its refusal, furnish or cause to be furnished the information to the applicant.

Section 97. Court fee payable under the act

(1) Notwithstanding anything contained in any other law for the time being in force, all applications, appeals and other proceedings under this Act shall require court fee stamps of such value as may be prescribed.

(2) The State Government shall be exempt from court fee leviable under this Act and the rules made thereunder.

Section 98. Power to remove difficulties

(1) Where any difficulty arise in giving effect to the provisions of this Act, the State Government may, by notification makes such orders not inconsistent with this Act, as may appear to be necessary or expedient for removing the difficulty.

(2) No order under sub-section (1) shall be made after the expiration of three years from the date of commencement of this Act.

Every order made under sub-section (1) shall be laid before the House of the State Legislature.

Section 99. Power to make rules

(1) The State Government, may by notification in the Official Gazette make rules for carrying out the purposes of this Act.

(2) All rules made under this Act, shall be laid as soon as may be after they are so made, before the House of the State Legislature, while it is in session, for a period of not less than fourteen days which may be comprised in one session or in two successive sessions and if before the expiry of the session in which they are so laid or in the session immediately following, the House of the State Legislature makes any modification in any of such rules or resolves that any such rules should not be made, such rules shall thereafter have effect only in such modified form or be of no effect as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done there under.

Section 100. Repeal and saving

(1) The Rajasthan Sales Tax Act, 1994 (hereinafter referred to as the New Sales Tax Act) hereby repeals the Rajasthan Sales Tax Act, 1954 (Rajasthan Act XXIX of 1954) hereinafter referred as the Old Sales Tax Act).

(2) The repeal under sub-section (1) shall not –

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the Old Sales Tax Act or anything done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued, or incurred under the Old Sales Tax Act; or

(d) affect any penalty, forfeiture or punishment incurred or inflicted in respect of any offence or violation committed under the provisions of the Old Sales Tax Act; or

(e) affect any investigation, enquiry, assessment, proceeding, any other legal proceeding or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment as aforesaid;

and any such investigation, enquiry, assessment, proceeding, any other legal proceedings or remedy may be instituted, continued, or enforced and any such penalty, forfeiture or punishment may be imposed as if the New Sales Tax Act had not been enacted.

(3) All rules made and notifications issued under the provisions of the Old Sales Tax Act and/ or the rules made thereunder, in force on the date of the commencement of the New Sales Tax Act, shall remain in force unless such rules and notifications are superseded in express terms or by necessary implication by the provisions of the New Sales Tax Act or the rules made or notifications issued thereunder.

(4) Any reference of any section of the Old Sales Tax Act in any rule, notification, regulation or circular shall be deemed to refer to the relevant corresponding section of the New Sales Tax Act, until necessary amendments are made in such rule, notification, regulation or circular.

(5) The modified limitations or the newly introduced limitations provided in the New Sales Tax Act shall apply prospectively, and all events occurred and all issues arose prior to the date of commencement of this Act, shall be governed by the limitations provided or the provisions contained in the Old Sales Tax Act.

Bydeb

Delhi Sales Tax, 1975

CHAPTER-I. Preliminary

1. Short title, extent and commencement.

(1) This Act may be called the Delhi Sales Tax Act, 1975.

(2) It extends to the whole of the National Capital Territory of Delhi.

(3) It shall come into force on 3[such date] as the Administrator may, by notification in the Official Gazette, appoint.

2. Definitions:

In this Act, unless the context otherwise requires:-

(a) “Lieutenant. Governor” means Administrator of National Capital Territory of Delhi as appointed by the President under Article 239 of the Constitution.

(b) “Appellate Tribunal” means the Appellate Tribunalconstituted under section 13;

(c) “business” includes:-

(i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any gain or profit accrues from such trade, commerce, manufacture, adventure or concern, and

(ii) any transaction in connection with, or incidental ancillary to, such trade, commerce, manufacture, adventure or concern.

(d) “Commissioner” means the the Commissioner of Sales Tax appointed under sub-section (1) of section 9.

(e) ” Dealer” means any person who carries on business of selling goods in Delhi and it includes:-

(i) the Central Government or the State Government carrying on such business,

(ii) an incorporated society (including a co-operative society); Club or Association which sells or supplies goods whether or not in the course of
business to its members for cash or for deffered payment or for commission, remuneration or other valuable consideration;

 (iii) a manager, factor, broker, commission agent or any del credere or any mercantile agent,by whatever named called, and whether of the same
description as herein before mentioned or not, who sells goods belonging to any principal whether disclosed or not , and

(iv) an auctioner who sells or auctions goods belonging to any principal whether disclosed or not , and whether the offer of the intending purchaser is accepted by him or by the principal or a nominee of the principal;

(f) “Delhi” means the 5[National Capital Territory] of Delhi;

(g) “Goods” includes all materials, articles, commodities and all other kinds of movable property, but does not include newspaper, claim stocks,  shares, securities or money.

 (h) “Manufacture”, with its grammatical variations and cognate expressions, means producing, making, extracting, altering, ornamenting, finishing or otherwise processing, treating or adapting any goods, but does not include any such process or mode of manufacture as prescribed.

(i) “Official Gazette” means the Delhi Gazette.

(j) “prescribed” means prescribed by rules;

(k) “registered ” means a dealer registered under this Act;

(l) “Sale” means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration and includes-

(i) A transfer of goods on hire purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a
charge or pledge on goods;

(ii) Supply of goods by a society (including a Co-Operative Society), club, firm or any association to its members for cash or deferred payment, or for commission, remuneration or other valuable consideration, whether or not in course of business; and

(iii) Transfer of goods by an auctioner referred to in sub-clause (iv) of clause (e);

(m) Sale Price means the amount payable to the dealer as consideration for the sale of any goods including any sum charged for anything done by
the dealer in respect of the goods at the time of or before the delivery of the goods other than the cost of freight or delivery or the cost of installation, but less the sum which is allowed as cash discount on that good.

(n)”tax” means the tax payable under this Act;

(o) “turnover ” means the aggregate of the amount of sale price receivable, or if adelear so elects, actually received by a dealer in respect of any sale of property in goods, made during any prescribed period in any year after deducting the amount of sale price, if any, refunded by the delear to a purchaser in respect of any goods purchased and returned by the purchaser within the prescribed period;

PROVIDED that an election as aforesaid once made shall not be altered except with the permission of the Commissioner and on such terms and conditions, as he may think fit to impose;

(p)”year” means the financial year

CHAPTER-II. Incidence and Levy of Tax

3. Incidence of tax.

(1) Every dealer whose turnover of sales during the year immediately preceding the commencement of this Act exceeds the taxable quantum and every dealer who at the commencement of Act,is registered or liable to pay tax under Central Sales Tax Act,1956 (74 of 1956) shall be liable to pay tax under this Act on all sales effected by him on or after such commencement

(2) Every dealer to whom sub-section (1) does not apply, shall:

(i) with effect from the date immediately following the day on which his turnover calculated from the commencement of any year first exceeds, within such year, the taxable quantum, be liable to pay tax under this Act on all sales effected by him after that day.

(ii) if he becomes liable to pay tax under the Central Tax Act, 1956 (74 of 1956) or is registered as a dealer under the said act at any time after the commencement of of this Act, be liable to pay tax on all tax on all sales affected by him or on his behalf within Delhi on or after the date he become so liable or is registered under the said Act, whichever is earlier

(3) Every dealer who becomes liable to pay tax under this Act, shall continue to be so liable until the expiry of three consecutive years during each of which his turnover has failed to exceed the taxable quantum and such further period after the date of such expiry may be prescribed and on
the expiry of such further period his liability to pay tax shall cease:

PROVIDED that any dealer may, after the expiry of one-year following the year in which his turnover has failed to exceed the taxable quantum, apply for the cancellation of his certificate of registration, and on such cancellation, his liability to pay tax shall cease:

 PROVIDED FURTHER that in respect of any goods purchased by any dealer before the date of any cancellation and remaining unsold or unutilised for the purpose for which they are purchased , he shall be liable to pay so much of tax as would have been payable had he not been registered as a dealer on the date

(4) Every dealer whose liability to pay tax under this Act has ceased under sub-section (3),shall,if his turnover calculated from the commencement of any year again exceeds the taxable quantum, on any day within such year, be liable to pay such tax with effect from the date immediately following the day on which his turnover first exceeds the taxable quantum, on all sales affected by him after that day.

(5) Any dealer whose certificate of registration has been canceled under sub-section (3) of section 20,shall:

(i) if his turnover calculated from the date of cancellation of such certificate exceeds the taxable quantum on any day within the year ; or

(ii) if his turnover calculated from the commencement of any subsequent year, exceeds the taxable quantum on any day within the year ; be liable to pay tax under this Act with effect from the date immediately following the day on which such turn over again first exceed the taxable quantum on all sales effected by him after that day of goods imported by him from outside Delhi or manufactured by him in Delhi or purchased by him without payment of tax leviable under this Act.

(6) No dealer who deals exclusively on one or more classes of goods specified in the Third Schedule shallbe liable to pay any tax under this Act.

(7) For the purposes of this Act, “taxable quantum” means,

(a) in relation to any dealer who imports for sale any goods into Delhi – Nil,

(b) in relation to any dealer who manufactures goods for sale regardless of the value of goods manufactured – [Rs. 2,00,000-00] 1,

(c) in relation to any other dealer – [4,00,000-00] 2;

PROVIDED that if the 3[Lieutenant Governor] is of opinion that having regard to the difficulty in maintaining accounts or for other sufficient cause, the taxable quantum in respect of any class of dealers falling under clause (b) or (c) should be increased, the 4[Lieutenant Governor] may, by notification in the official Gazette, fix in respect of such class of dealers such taxable quantum, not exceeding 5[5,00,000 for clause (b) and Rs. 10,00,000] for clause (c), as may be specified in the notification.

6[Explanation. – For the purpose of computation of taxable quantum under sub-section (7), the turnover of sales effected by a dealer shall be
taken into account irrespective of whether such sales are taxable under this Act or not.]

 1. Increased from Rs. 1,00,000/- vide Notification No. F.101(48)/2001-Fin(A/Cs)138-146 dated 31.3.2001 w.e.f. 1.4.2001; earlier raised from Rs.30,000/- to Rs. 1,00,000/- vide Delhi Sales Tax    Amendment Act 1994 w.e.f. 8.4.1994.

2. Increased from Rs. 2,50,000/- vide Notification No. F.101(48)/2001-Fin(A/Cs)138-146 dated 31.3.2001 w.e.f. 1.4.2001; earlier raised from Rs.1,00,000/- to Rs. 2,50,000/- vide Delhi Sales Tax    Amendment Act 1994 w.e.f. 8.4.1994.

3. Subs. By Notification No. F.4/(120)/94 Fin.(G)/2137 to 2145 dated 2.3.1998; Delhi Act 1 of 1998, for “Union Territory” (w.e.f 2-3-1998).

4. Subs. By Notification No. F.4/(120)/94 Fin.(G)/2137 to 2145 dated 2.3.1998; Delhi Act 1 of 1998, for “Union Territory” (w.e.f 2-3-1998).

5. Subs. for the word “Rs. 2.50 lacs for clause (b) and Rs. 5.00 lacs ” by Delhi Sales Tax (Second Amendment) Act 2000, dt. 19.2.2001 w.e.f 8-4-1994.

6. Subs. by Delhi Sales Tax (Amendment) Act, 1994 w.e.f. 8-4-1994, and again by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 8.4.1994.

CHAPTER-II. Incidence and Levy of Tax

4. Rate of tax

(1) The tax payable by a dealer under this Act shall be levied –

(a) 1[ in the case of taxable turnover in respect of the goods specified in the first schedule, at the rate of twelve paise per rupee].

(b) in the case of taxable turnover inrespect of the goods specified in the second schedule, at such rate not exceeding four paise in a rupee as the 2[Lieutenant Governor] may, from time to time , by notification in the official Gazette, determine;

(C) in the case of taxable turnover in respect of any food or drink served for consumption in a hotel or restaurant or part thereof, with which a cabaret floor show or similar entertainment is provided therein, at the rate of forty paise in a rupee;

(d) 3[ (cc) in the case of taxable turnover in respect of the goods specified in the forth schedule, at the rate of twenty paise in a rupee.] (CCC) 4[***]

(i) in the case of taxable turnover of any other goods , at the rate of 5[eight paise] in a rupee;

PROVIDED that the 6[Lieutenant Governor] may 7[***] by notification in the Official Gazette, add to or omit from, or otherwise amend, the First Schedule, the Second Schedule or the Forth Schedule,either retrospectively or prospectively, and there upon the First Schedule, the Second Schedule 8[ or the case may be the Forth Schedule], shall be deemed to be amended accordingly:

PROVIDED FURTHER that no such amendment shall be made retrospectively if it would have the effect of prejudicially affecting the interest of any dealer:

PROVIDED ALSO that in respect of any goods or class of goods the 9[Lieutenant Governor] is of opinion that it is expedient in the interest of the general public so to do, he may 10[***] by notification in the Official Gazette, direct that the tax in respect of taxable turnover of such goods or class of goods shall, subject to such conditions may be specified, be levied at such modified rate not exceeding the rate applicable under this section , as may be specified in the notification.

(2) For the purposes of this Act, “taxable turnover” means that part of a dealer’s turnover during the prescribed period in any year which remains
after deducting there from :-

(i) sale of goods, the point of sale at which such goods shall be taxable is specified by the 11[Lieutenant Governor] under section 5 and in respect of which due tax is shown to the satisfaction of the commissioner to have been paid;

(ii) sale of goods declared tax-free under section 7;

(iii) sale of goods not liable to tax under section 8;

(iv) sale of goods which are proved to the satisfaction of the commissioner to have been purchased within a period of twelve months prior to the date of registration of the dealer and subjected to tax under the Bengal Finance (Sales Tax) Act,1941 (Bengal Act VI of 1941),as it wasthen in force, or under this Act;

(v) sale of registered dealer –

(A) of goods of the class or classes specified in the certificate of registration of such dealer,as being intended for use by him as raw materials in manufacture in Delhi of any goods, other than specified in the Third Schedule or news papers, –

(1) for sale by him inside Delhi; or

(2) for sale by him in the course of inter-State trade or commerce being a sale occasioning, or effected by transfer of documents of title of such goods during the movement of such goods from Delhi; or

(3) for sale by him in the course of export outside India being a sale occasioning the movements of such goods from Delhi, or a sale affected
by transfer of documents of title to such goods effected during the movement of such goods from Delhi, to a place outside India and after the goods have crossed the customs frontiers of India; or

(B) of goods of the class or classes specified in the certificate of the registration of such dealer as being intend for resale by him in Delhi, or for sale by him in the course of inter-state trade or commerce or in the course of export outside India in the manner specified in sub-item (2) or sub-item (3) (A), as the case may be; and

(C) of containers or other materials, used for the packing of goods, of the class or classes specified in the certificate of registration of such dealer, other than goods specified in the Third Schedule, intended for sale or resale;

(vi) such other sales as are exempt from payment of tax under section 66 or as may be prescribed :

PROVIDED that no deduction in respect of any sale referred to in subclause (iv) shall be allowed unless the goods, in respect of which deduction is claimed, are proved to have been sold by the dealer within a period of twelve months from the date of his registration and the claim for such deduction is included in the return required to be furnished by the dealer in respect of the said sale:

12[PROVIDED FURTHER that no deduction in respect of any sale referred to in sub-clause(v) shall be allowed unless a true declaration duly filled and signed by the registered dealer to whom the goods are sold and containing the prescribed particulars in the prescribed form obtainable from the prescribed authority in the manner and subject to such condition as may be prescribed is furnished in the prescribed manner and within the prescribed time, by the dealer who sells the goods:]

PROVIDED ALSO that where any goods are purchased by a registered dealer for any of the purposes mentioned in sub-clause (v), but are not so utilised by him, the price of the goods so purchased shall shall be allowed to be deducted from the turnover of the selling dealer but shall be included in the taxable turnover of the purchasing dealer; and

 (b) the tax collected by the dealer under this Act as such and shown separately in cash memoranda or bills, as the case may be.

1. Rate of tax on goods under the First Schedule have been varied by Notification No. F.4(44)/90-Fin.(G) (ii) dated 8th February, 1993, Notification No. 4(11)/94-Fin.(G)(I), dated 19th May     194, Notification No. F.4(11)/94-Fin.(G), dated 2nd June 194, Notification No. F.4(1)/(99)-Fin. (G)(ii). dated March 31, 1999, etc.

2. Subs. by Notification No. F.4/(120)/94 Fin.(G)/2137 to 2145 dated 2.3.1998; Delhi Act 1 of 198, for “Union Territory” (w.e.f. 2-3-1998).
3. Subs. by Delhi Sales Tax (Amendment) Avt, 2000 w.e.f. 6-1-2000 for “lottery tickets at the rate of twenty paise in the rupee” [Inserted by Delhi Sales Tax (Second Amendment) Act,     1994 w.e.f. 3-12-1994].

4. Omitted by Delhi Sales Tax (Amendment) Act, 2000, w.e.f. 6-1-2000 earlied read as “in the case of taxable turnover in respect of liquor (foreign and Indian made foreign liquor) at the     rate of fifteen paise in the rupee”.
5. Subs. by No. F.4(52)/99-Fin(G)(viii)/1564 dt. 15.1.2000 w.e.f. 16-1-2000.
6. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

7. Words “with the previous approval of the Central Government and” deleted by Delhi Act 1 of 1998 w.e.f. 2.3.1998.

8. Inserted by The Delhi Sales Tax (Amendment) Act, 2000, w.e.f. 6-1-2000.

9. Subs for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

10. Words “with the previous approval of the Central Government and” deleted by Delhi Act 1 od 1998, (w.e.f. 2.3.1998).

11. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

12. Subs. by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 19.2.2001 for “PROVIDED FURTHER that no deduction in respect of any sale referred to in sub-clause     (iv)shall be allowed unless a true declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in the particulars in the     prescribed form obtainable from obtainable from the prescribed authority is furnished in the prescribed manner and within the prescribed time, by the dealer who sells the goods.”

CHAPTER-II. Incidence and Levy of Tax

5. Power of Administrator to prescribe points at which goods may be taxed

Notwithstanding anything contained in the Act, the 1[Lieutenant Governor] may, be notification in the Official Gazette and subject to such conditions, if any, as may be specified therein, specify the point of sale at which any goods or class of goods may be taxed, and on the issue of such notification, the points of sale in relation to any such goods or class of goods other than the point of sale so notified, shall be exempt from payment of tax under this Act:

2[PROVIDED that no such exemption shall be allowed unless a true declaration duly filled and signed by the registered dealer by whom the goods are sold and containing the prescribed particulars in the prescribed form obtainable form the prescribed authority in the manner and subject to such conditions as maybe prescribed is furnished in the prescribed manner and within the prescribed time, by dealer who purchases the goods.]

PROVIDED FURTHER that the Administrator may, if he is of opinion that it is necessary in public interest so to do, by notification in the Official Gazette, exempt, subject to such restrictions and conditions as may be specified therein, any dealer or class of dealers from furnishing a declaration under the first provison

1. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
2. Subs. by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 19.2.2001 for “PROVIDED that no such exemption shall be allowed unless a true declaration duly filled and signed by the registered dealer by whom the goods are sold and containing the prescribed particulars in the prescribed form the prescribed authority is furnished in the prescribed manner and within the prescribed time, by who purchases the goods.”

CHAPTER-II, Incidence and Levy of Tax

6. Burden of proof

The burden of proving that in respect of any sale effected by a dealer he is not liable to pay tax under this Act shall lie on him.

CHAPTER-II, Incidence and Levy of Tax

7. Tax-free goods

(1) No tax shall be payable under this Act on the sale of goods specified in the Third Schedule subject to the conditions and exceptions, if any, set out therein.

(2) The 1[Lieutenant Governor may] by notification in the Official Gazette, add to, or omit from, or otherwise amend, the Third Schedule either retrospectively or prospectively, and thereupon the Third Schedule shall be deemed to be amended accordingly :

PROVIDED that no such amendment shall be made retrospectively if it would have the effect of prejudicially affecting the interests of any dealer.

 1. Subs. for “Administrator may with the previous approval of the Central Government and” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

CHAPTER II- Incidence and Levy of Tax

8. Certain sales and purchases not liable to tax

Nothing in this Act or the rules made thereunder shall be deemed to impose, or authorise the imposition of a tax on any sale or purchase of any goods when such sale or purchase takes place-

(i) In the course of inter-state trade or commerce, or

(ii) Outside Delhi, or

(iii) In the course of the import of the goods into or export of the goods out of the territory of India

 Explanation- Section 3,4 and 5 of the Central Sales Tax Act, 1956 (74 of 1956) shall apply for determining whether or not a particular sale or purchase takes place in the manner indicated in clause (i), clause (ii) or clause (iii) of this section.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

9. Sales tax authority

(1) For carrying out the purposes of this Act, the 1[ Lieutenant Governor] shall appoint a person to be the Commissioner of Sales Tax.

(2) To assist the Commissioner in execution of his functions under this Act, the 2[ Lieutenant Governor] may appoint as many Additional Commissioners of Sales Tax, Sales Tax Officers and such other persons with such designations as the Administrator thinks necessary.

(3) The Commissioners shall have jurisdiction over the whole of Delhi and the other persons appointed under sub-section (2) shall have jurisdiction over such areas as Commissioner may specify.

(4) The Commissioner and other persons appointed under sub-section (2) shall exercise the powers may be conferred, and perform the duties as required by or under this Act.

 1. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
2. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

10. Delegation of Commissioner’s powers

Subject to such restrictions and conditions as may be prescribed, the Commissioner may by order in writing delegate any of his powers under this Act except those under sub-section (3) of section 9 and sub section (1) of section 52 to any person appointed under sub-section (2) of section 9.

PROVIDED that the powers of the Commissioner under clauses (i) to (vi) (both inclusive) of sub-section (3) of section 41 shall not be delegated to any person lower in rank than that of a Sales Tax Officer, and those under sub-section (1) of section 49 shall not be delegated to any person other than an Additional Commissioner of Sales Tax appointed under sub-section (2) of section 9.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

11. Power to transfer Proceedings

(1) The Commissioner may, by order in writing, transfer any proceedings or class of proceedings under any provision of this Act from any person appointed under sub-section (2) of section 9 to any other person so appointed whether or not such other person has jurisdiction in respect of the area to which such proceedings or class of Proceeding relate, and the Commissioner may likewise transfer any such proceedings (including a proceeding already transferred under this section) from any such person to himself.

(2) The person to whom any proceeding is transferred under sub-section (1) shall proceed to dispose it of as if it had been initiated by himself.

 (3) The transfer of a proceeding shall not render necessary the reissue of any notice already issued before such transfer and the person to whom the proceeding is transferred may, in his discretion, continue, continue it from the stage at which it was left by the person from whom it was transferred.

 Explanation- For the purposes of this section, “proceedings” in relation to any person whose name is specified in any order issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or which may have been completed on or before such date, and includes also such proceedings which may be commenced after the date of such order in respect of any year.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

12. Disputes regarding territorial jurisdiction

(1) No person shall be entitled to call in question the jurisdiction of any sales tax authority appointed under section 9, not being an appellate authority, after the expiry of ninety day from the date of receipt by that person of any notice under this Act issued by such sales tax authority.

(2) Any objection as to the jurisdiction of any such sales tax authority may be raised within the period aforesaid by submitting a memorandum to the authority concerned who shall refer the question to the Commissioner and the Commissioner shall after giving the person raising the objection a reasonable opportunity of being heard, make an order determining the question and his decision in this behalf shall be final.

CHAPTER III- Sales Tax Authorities and Appellate Tribunal

13. Appellate Tribunal

 (1) The [Lieutenant Governor] shall, as soon as may be after the commencement of this Act, constitute an Appellate Tribunal Tribunal consisting of one or more members, as it thinks fit, to exercise the powers and discharge the functions conferred on the Appellate Tribunal by or under this Act:

 PROVIDED that where the Appellate Tribunal consists of one member that member shall be a person who has held a civil judicial post for at least ten years or who has been a member of the [Indian Legal Service] (not below Grade III) for at least three years or who has been in practice as an advocate for at least ten years, and where the Appellate Tribunal consists of more than one member, one such member shall be a person be a person qualified as aforesaid.

 (2) Where the number of members of the Appellate Tribunal is more than one, the 3[Lieutenant Governor] shall appoint one of those members to be the Chairman of the Appellate Tribunal.

 (3) Subject to the provisions of sub-section (1), the qualifications and other conditions of service of the member or members constituting the Appellate Tribunal and the period for which such member or members shall hold office, shall be such as may be determined by the 4[Lieutenant Governor]

 (4) Any vacancy in the membership of the Appellate Tribunal shall be filled up by the 5[Lieutenant Governor] as soon as practicable.

 (5) Where the number of members of the Appellate Tribunal is more than one and if the members differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, if there is a majority, but if the members are equally divided, the decision of the Chairman of the Appellate Tribunal thereon shall be final.

 (6) Subject to the previous sanction of the 6[Lieutenant Governor], the Appellate Tribunal shall, for the purpose of regulating its procedure and disposal of its business, make regulations consistent with the provisions of this Act and the rules made thereunder.

 (7) The regulations made under sub-section (6) shall be published in the Official Gazette.

 (8) The Appellate Tribunal shall, for the purpose of discharging its functions, have all the powers which are vested in the Commissioner under section 42 and any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and 228, and for the purpose of section 196 of the Indian Penal Code, 1860 (45 of 1860) and the Appellate Tribunal shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. (2 of 1974)

 3. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
4. Subs. for “Central Legal Service” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
5. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
6. Subs. for “Central Government”by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
7. Sub. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.
8. Subs. for “Central Government” by Delhi Act 1 of 1998, w.e.f. 2.3.1998.

CHAPTER IV- Registration, Amendment and Cancellation

14. Registration

(1) No dealer shall, while being liable to pay tax under section 3, carry on business as a dealer unless he has been registered and possesses a certificate of registration.

(2) Every dealer required by sub-section (1) to be registered shall make an application for registration within such time, in such manner and to such authority, as may be prescribed.

(3) If the said authority is satisfied that the application is in order, it shall, in accordance with such rules as may be prescribed, register the applicant within the prescribed period and grant him a certificate of registration in the prescribed form which shall specify the goods or class of goods for the purposes of sub-clause (v) of clause (a) of sub-section 4:

PROVIDED that if the said authority is of opinion that the application is not in order, it shall, by an order passed within the said period and for reasons to be recorded in writing, reject the application;

PROVIDED FURTHER that no goods or class of goods in respect of which the 1[ point of sale] has been specified by the 2[Lieutenant Governor] under section 5 shall be specified in a certificate of registration, and where a notification is issued under that section subsequent to the grant of any certificate of registration in respect of any goods or class of goods specified in a certificate, the said certificate shall be deemed to have been amended to omit the references to such goods or class of goods.

 (4) For the removal of doubts, it is hereby declared that the goods or class of goods to be specified in a certificate of registration granted under sub-section (3) of this section or sub-section (2) of section16 shall not include goods referred to in sub-clause (i) or sub clause (a) of sub-section(2) of section 4.

 1. Subs. by Act 38 of 1978, for “point of sale.”
2. Subs. for “Administrator” by Delhi Act 1 of 1998, w.e.f. 2.3.1998

15. Voluntary registration

(1) Any dealer, other than a dealer who deals exclusively in one or more classes of goods specified in the Third Schedule whose turnover during a year exceeds twenty-five thousand rupees may, notwithstanding that he may not be liable to pay tax under section 3, apply for registration under this section.

(2) The provision of sub-section (2), (3) and (4) of section 14 shall, as far as may be, apply in relation to registration of dealers under this section.

(3) Every dealer who has been registered under this section shall, for so long as his registration remains in force, be liable to pay tax under this Act.

(4) The registration of a dealer under this section shall be in force for a period of not less than three complete years and shall remain in force thereafter unless cancelled under the provisions of this Act.

 CHAPTER IV- Registration, Amendment and Cancellation

16. Provisional Registration

 (1) Any person who intends to establish a business in Delhi for purpose of manufacturing goods of a value exceeding thirty thousand rupees per year, may, not-with standing that he is not required to be registered under section 14, apply for provisional registration in such manner and to such authority as may be prescribed.

(2) If the said authority, after making such inquiry as it may consider necessary, is satisfied as to the bona fide intention of the person making the application, it may, subject to such restrictions and conditions it may impose, grant a provisional certificate of registration on such person furnishing such security as it may consider necessary and shall specify in such certificate the goods or class of goods for the purposes of sub-clause (v) of clause (a) of sub-section (2) of section 4.

(3) Every person who has been granted a provisional certificate of registration under this section shall, for so long as such certificate is in force, be liable to pay tax under this Act.

(4) A provisional certificate of registration granted under this section shall be in force for such period as may be specified therein.

(5) The authority prescribed under sub-section (1) may, on application made in this behalf in the prescribed manner and subject to such restrictions and conditions as it may impose, extend, from time to time, the period specified in the provisional certificate of registration.

 (6) The provisions of section 18 shall, so far as may be, apply in relation to security required to be furnished under sub-section (2) of this section.

(7) If a person, who has been granted a provisional certificate of registration under this section, fails without sufficient cause to establish a business within the period specified in such certificate or fails to comply with any of the restrictions or conditions subject to which such certificate was granted, he shall be liable to pay a penalty equal to one and a half times the amount of tax which would have been payable had he not been so registered under this section.

17. Special registration

(1) No dealer shall, while being liable to pay tax under sub-section (5) of section 3, carry on business as a dealer unless he obtained a special certificate of registration.

 (2) Every dealer required to be registered under sub-section (1) shall make an application for registration within such time, in such manner and to such authority, as may be prescribed.

(3) If the said authority is satisfied that the application is in order, it shall, in accordance with such rules as may be prescribed, grant a special certificate of registration to the applicant in the prescribed form:

 PROVIDED that the said authority shall not specify in any such certificate the goods or class of goods for the purposes of sub-clause (v) of clause (a) of sub-section (2) of section 4.

18. Security from certain class of dealers

(1) The Commissioner may, if it appears to him to be necessary so to do for the proper realisation of the Tax, composition money or other dues payable under this Act or for the proper custody and use of the forms referred to in the second proviso to clause (a) of sub-section (2) of section 4, or the first proviso to section 5, as the case may be, impose, for reasons to be recorded in writing as a condition of the grant of the certificate of registration under section 14, section 15 or section 17 to a dealer of the continuance in effect of such certificate granted to any dealer, a requirement that the dealer shall furnish in the prescribed manner and within such time as may be specified in the order of such security or, as the case may be, such additional security as may be so specified, for all or any of the aforesaid purposes

(2) No dealer shall be required to furnish any security or additional security under sub-section (1) unless he has been given an opportunity of being heard and the amount of security or additional security that may be required to be furnished, shall-

(a) in the case of a dealer liable to pay tax under sub-section (2) of section 3 who has applied for the grant of a certificate of registration under section 14, be such amount as the Commissioner may, having regard to the nature and size of the business of such dealer, determine for the payment of the tax for which the dealer may be or become liable under this Act:

(b) in a case where security is to be given for the proper custody and use of the forms referred to in sub-section (1), be the amount of tax determined by the Commissioner which is likely to be saved by dealer by the issue of such forms:

(c) in the case of a dealer liable to pay tax under sub-section (2) of section 3 who has applied for the grant of a certificate of registration under section 14, be such amount as the Commissioner may, having regard to the nature and size of the business of such dealer, determine for the payment of the tax for which the dealer may be or become liable under this Act:

 (3) Where the security or additional security furnished by a dealer is in the form of a security bond and the surety dies or becomes insolvent, the dealer shall, within thirty days of the occurrence of such event, inform the authority granting the certificate of registation and shall, within ninety days of such occurrence, execute a fresh surety bond.

(4) The Commissioner may be order, for good and sufficient cause, and after giving the dealer an opportunity of being heard, forfeit the whole or any part of the security furnished by a dealer.

(5) Where, by reason of an order under sub-section (4) the security furnished by any dealer is forfeited in whole or is rendered insufficient, he shall furnish a fresh security of the requisite amount or, as the case may be, shall make up the deficiency in such manner and within such period as may be specified in the order.

CHAPTER IV- Registration, Amendment and Cancellation

19.Amendment of certificate of registration

(1)The Commissioner may, after considering any information furnished under this Act or otherwise received and after making such inquiry as he may deem fit, amend from time to time any certificate of registration.

 (2) An amendment of the certificate of registration made under sub-section (1) shall take effect:-

 (a) in the case of a change in the name, ownership or place of business, or opening of a new place of business, from the date of the contingency which necessitates the amendment whether or not information in that behalf is furnished within the time prescribed under section 40;

(b) in the case of any addition or modification in the description of any goods or class of goods in the certificate of registration, from the date of the contingency if information in that behalf is furnished within the time prescribed under section 40 and from the date of receipt of request for such addition or modification by the Commissioner, in any other case:

 (c) in the case of deletion of any goods or class of goods, from the date of order of deletion:

 PROVIDED that the Commissioner shall, before amending on his own motion a certificate of registration, give the dealer affected by such amendment a reasonable opportunity of being heard:

PROVIDED that where in consequence of a change in the ownership of a business the liability to pay tax of a dealer ceases, the amendment of the certificate of registration shall take effect from the date on which information in respect of such change is furnished under section 40.

(3) Any amendment of a certificate of registration under this section shall be without prejudice to any liability for tax or penalty imposable, or for any prosecution for an offence under this Act.

(4) For the removal of doubts, it is hereby declared that where a registered dealer-

 (a) effects a change in the name of his business: or

(b) is a firm and there is a change in the constitution of the firm without dissolution thereof: of

(c) is a trustee of a trust and there is a change in the trustees thereof:of

(d) is a guardian of a ward and there is a change in the guardian: of (e) is a Hindu undivided family and the business of such family is converted into a partnership business with all or any of the copartners as partners thereof,

then, merely by reason of any of the circumstances aforesaid, it shall not be necessary for the dealer, or 1[the firm which changed the constitution] or the new trustees, or the new guardian, or as the case may be, the partners of such partnership business, to apply for a fresh certificate of registration and on information being furnished in the manner required by section 40 the certificate of registration shall be amended.

 1 Subs. by Act 38 of 1978, for “the firm who charged the constitution.”

20. Cancellation of certificate of registration

(1) Where-

(a) any business in respect of which a certificate of registration has been granted to a dealer under this Act, is discontinue ; or

(b) in the case of transfer of business by a dealer, the transferee already holds a certificate of registration under this Act; or

 (c) a dealer has ceased to be liable to pay tax under this Act, the Commissioner may cancel the certificate of registration of such dealer or the transferor, as the case may be, from such date as may be specified by him :

 PROVIDED that in a case referred to in clause (a) or clause (b), the certificate of registration shall be deemed to be inoperative with effect from the date of discontinuance or transfer of the business, as the case may be, and in a case referred to clause (c) from the date on which the dealer’s liability to pay tax has ceased, notwithstanding the fact that the order of cancellation is passed or that the particulars of the dealer regarding cancellation are published, as required by section 65, in the Official Gazette, after the aforesaid date:

 PROVIDED FURTHER that where a dealer has failed to furnish information regarding discontinuance of his business as required by section 40, the Commissioner shall before canceling the certificate from any specified date, publish in the Official Gazette, a notice of his intention so to do for the information of the dealer and shall hear objections, if any, of the dealer before passing the order.

 (2) A dealer registered under section 15 may, subject to the provisions of sub-section (4) of that section, apply in the prescribed manner not later than six months before the end of a year to the Commissioner for cancellation of his certificate of registration and the Commissioner shall, unless the dealer is liable to pay tax under section 3, cancel the certificate of registration accordingly, and such cancellation shall take effect from the end of the year.

 (3) Notwithstanding anything contained in sub-section (1) and (2), the Commissioner may at any time for reasons to be recorded in writing and after giving the dealer an opportunity of being heard, cancel the certificate of registration held by such dealer from such date as the Commissioner may specify in this behalf-

(a) if the dealer has failed to pay tax (including any penalty) due from him under any provisions of this Act; or

 (b) if the dealer holds or accepts or furnishes or causes to be furnished a declaration for the purposes of sub-clause (v) of clause (a) of sub-section (2) of section 4 or section5 which he knows or has reason to be false; or

(c) if the dealer who has been required to furnish the security under the provisions of section 18 has failed to furnish the security under the provisions of section 18 has failed to furnish such security; or

(d) if the dealer contravenes or has contravened any of the provisions of this Act; or

 (e) if the dealer has been convicted of an offence under this Act or under the Bengal Finance (Sales Tax) Act 1941 (Bengal Act, VI of 1941), as then in force in Delhi; or

 (f) if there is any other reason which in the opinion of the Commissioner warrants such cancellation

 (4) (a) If an order of cancellation passed under sub-section (3) is set aside as a result of an appeal or other proceeding under this Act, the certificate of registration of the dealer shall be restored and he shall be liable to pay tax as if his certificate had not been canceled.

 (b) If any dealer whose certificate of registration has been restored under clause (a) satisfies the Commissioner that tax has been paid by such dealer on sale of goods made to him during the period his certificate of registration was inoperative which, but for the cancellation of such certificate he would not have paid, then the amount of such tax shall be adjusted or refunded in such manner as may be prescribed.

 (5) Every dealer who applies for cancellation of his registration shall surrender with his application the certificate of registration granted to him and every dealer whose registration is canceled otherwise than on the basis of his application shall surrender the certificate of registration within seven days of the date of communication to him of the order of cancellation.

(6) If a dealer fails to surrender his certificate of registration as provided in sub-section (5), the Commissioner may, by an order in writing and after giving the dealer an opportunity of being heard, direct that the dealer shall pay, by way of penalty, a sum not exceeding twenty-five rupees for every day of default.

(7) The cancellation of a certificate of registration shall not affect the liability of any person to pay tax due for any period prior to the date of such cancellation, but remains unpaid or is assessed thereafter notwithstanding that he is not liable to pay tax under this Act.

(8) Where by any order passed under this Act it is found that any person registered as a dealer ought not to have been so registered, then notwithstanding anything contained in this Act, such person shall be liable to pay tax for the period commencing with the date of his registration and ending with the date of such order, as if he were a dealer.

21. Periodical payment of tax and filing or returns

(1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed.

(2) Every registered dealer and every other dealer who may be required so to do by the Commissioner by notice served in the prescribed manner shall furnish such returns of turnover by such dates and to such authority as may be prescribed.

(3)Every registered dealer required to furnish returns under sub-section (2) shall pay into Government Treasury or the Reserve Bank of India or in such other manner as may be prescribed, the full amount of tax due from him under this Act according to such return and shall where such payment is made into a Government Treasury or the Reserve Bank Of India furnish alongwith the return a receipt from such Treasury of Bank showing the payment of such amount.

(4)If any registered dealer discovers any mistake or error in any return furnished by him, he may at any time, before the expiry of three months next following the last date prescribed for furnishing of the return, furnish a revised return, and if the revised return shows a higher amount of tax to be due that was shown in the original return, it shallbe accompanied by a receipt showing payment in the manner provided in sub-section (3) of the excess amount.

(a)in the case of an individual, by the individual himself, and where the individual is absent from India by the individual concerned or by some person duly authorised by him in this behalf and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;

 (b)in the case of a Hindu undivided family, by a Karta, and where the Karta is absent from India or mentally incapacitated from attending to his affairs, by any other adult member of such family;

(c)in the case of a company or local authority, by the principal officer thereof;

 (d)in the case of a firm, by any partner thereof not being a minor;

(e)in the case of any other association, by any member of the association or the principal officer thereof; and

(f)in the case of any other person, by that person or by some person competent to act on his behalf.

(6)For the purposes of sub-section (5) of this section and section 59 the expression “principal officer” shall have the meaning assigned to it under clause (35) of section 2 of the Income-tax Act, 1961(43 of 1961).

22. Collection of tax only by registered dealer

(1)No person who is not a registered dealer shall collect in respect of any sale of goods by him in Delhi any amount by way of tax under this Act, and no registered dealer shall make any such collection except in accordance with this Act and the rules made thereunder.

(2) Notwithstanding anything contained in sub-section (1) a dealer who has been permitted by the Commissioner to make a lump sum payment under section 29 shall not collect any sum by way of tax on the sale of goods if made during the period to which such lump sum payment relates.

 CHAPTER V- Returns, Assessment, Recovery and Refund of Tax

23. Assessment

 (1)The amount of tax due from a registered dealer shall be assessed separately for each year during which he is liable to pay the tax :

PROVIDED the when such dealer fails to furnish a return relating to any period of a year by the prescribed date, the Commissioner may, if he thinks fit, assess the tax due from such dealer separately for that period or any other period of such year :

 PROVIDED FURTHER that the Commissioner may, subject to such conditions as may be prescribed and for reasons to be recorded in writing, assess the tax due from any dealer for a part of a year.

 (2)If the Commissioner is satisfied that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such return.

 (3)(a)If the Commissioner is not satisfied that the returns furnished in respect of any period are correct and complete and he thinks it necessary to require the presence of the dealer or the production of further evidence, he shall serve on such dealer in the prescribed manner a notice requiring him on a date and at a place specified therein either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his returns, or to produce such evidence as is specified in the notice.

(b) On the date specified in the notice, or as soon as may be thereafter, the Commissioner shall, after considering all the evidence which may be produced, assess the amount of tax due from the dealer.

(4) If a dealer fails to comply with the terms of any notice issued under sub-section (3), the Commissioner shall assess to the best of his judgment the amount of tax due from him.

(5) If a dealer fails to furnish returns in respect of any period by the prescribed date, the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of his judgment the amount of tax, if any, due from him.

 (6) If, upon information which has come into his possession, the Commissioner is satisfied that any dealer who has been liable to pay tax under this Act in respect of any period, has failed to get himself registered under section 14 or section 17, as the case may be , the Commissioner shall proceed in such manner as may be prescribed to assess to the best of this judgment the amount of tax due from the dealer in respect of such period and all subsequent periods and in making such assessment shall give the dealer a reasonable opportunity of being heard, and the Commissioner may, if he is satisfied that the default was made without reasonable cause, direct that the dealer shall pay, by way of penalty, in addition to the amount of the tax so assessed, a sum not exceeding twice that amount.

(7) 1[No assessment under the provisions of sub-sections (1) to (5) shall be made after the expiry of two years, and no assessment under the provision of subsection (6) shall be made after the expiry of six years from the end of the year in respect of which or part of which the tax is assessable:

PROVIDED that for the assessments of the years 1997-98, no assessments under the provisions of sub-sections (1) to (5) shall be made after the expiry of two and a half years 2[and no assessments of the year 1999-2000 under the provisions of the said sub-sections shall be made after the expiry of one year and nine months].

 PROVIDED FURTHER that where such assessment is made in consequence of, or to give effect to, any order of an appellate or revisional authority or of a court, the period of two years or six years, as the case may be, shall be reckoned from the date of such order and further that the provisions of sub-section (1) of section 24 regarding time limit for service of notice shall not apply for assessment made under this provision.

 Explanation : For the assessment made in consequence of, or to give effect to , any order of an appellate or revisional authority or of a court, the revised limitation period shall be applicable for the order to the appellate or revisional limitation period shall be applicable for the order of the appellate or revisional authority or of the court, made after the commencement of the Delhi Sales Tax (Second Amendment) Act, 2000]

(8) Any assessment made under this section shall be without prejudice to any prosecution for an offense under this Act.

 1. Subs. by Delhi Sales Tax (Second Amendment) Act, 2000, dt. 19.2.2001 w.e.f. 9.8.2000 earlier read as: “No assessment under the provisions of sub-section (1) to (5) shall be made after the expiry of three years [substituted by “four years” vide the Delhi Sales Tax Amendment Act, 1997 (Delhi Act No. 2 of 1999) w.e.f. 1.12.1999] and no assessment under the provisions of sub-section (6) shall be made after the expiry of six years from the end of the year in respect of which or part of which the tax is assessable”.

PROVIDED that where such assessment is made in consequence of or to give effect to, any order of an appellate or revisional authority or of a court, the period of three years, [substituted by “four years” vide the Delhi Sales Tax amendment Act, 1997 (Delhi Act No. 2 of 1999) w.e f. 1.12.1999] or six years, as the case may be, shall be reckoned from the date of such order and further that the provisions of sub-section (1) of section 24 regarding time for service of notice shall not apply for assessment made under this proviso.”

2. Inserted by The Delhi Sales Tax (Amendment) Ordinance, 2001 (Ordinance No. 2 of 2000) (published in Delhi Gazette, Extraordinary No. 140 dt. 27 th August 2001

21. Periodical payment of tax and filing or returns

(1) Tax payable under this Act shall be paid in the manner hereinafter provided at such intervals as may be prescribed.

 (2) Every registered dealer and every other dealer who may be required so to do by the Commissioner by notice served in the prescribed manner shall furnish such returns of turnover by such dates and to such authority as may be prescribed.

(3)Every registered dealer required to furnish r