November 30, 2014
CHAPTER I: PRELIMINARY
Section 1. Short title, extent, commencement and applications
(1) This Act may be called the Consumer Protection Act, 1986.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different States and for different provisions of this Act.
(4) Save as otherwise expressly provided by the Central Government by notifications, this Act shall apply to all goods and services.
Section 2. Definitions
(1) In this Act, unless the context otherwise requires,-
1[(a) “appropriate laboratory” means a laboratory or organisation-
(i) recognised by the Central Government;
(ii) recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or
(iii) any such laboratory or organisation established by or under any law for the time-being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect;
2[(aa) “branch office” means-
(i) any establishment described as a branch by the opposite party, or
(ii) any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment;
(b) “complainant” means-
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or
(iii) the Central Government or any State Government,
2[(iv) one or more consumers, where there are numerous consumers having the same interest;] who or which makes a complaint;
(c) “complaint” means any allegation in writing made by a complainant that-
1[(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader;]
(ii) 1[the goods bought by him or agreed to be bought by him] suffer from one or more defect;
(iii) 1[the services hired or availed of or agreed to be hired or availed of by him] suffer from deficiency in any respect;
(iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;
2[(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods. with a view to obtaining any relief provided by or under this Act;
(d) “consumer” means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 1[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person;
2[Explanation: For the purposes of sub-clause (i), “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;]
(e) “consumer dispute” means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;
(f) “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or 2[under any contract, express or] implied, or as is claimed by the trader in any manner whatsoever in relation to any goods;
(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
(h) “District Forum” means a Consumer Disputes Redressal Forum established under clause (a) of section 9;
(i) “goods” means goods as defined in the Sale of Goods Act, 1930 (3 of 1930);
(j) “manufacturer” means a person who-
(i) makes or manufactures any goods or parts thereof; or
(ii) does not make or manufacture any goods but assembles parts thereof made or manufactured by others and claims the end product to be goods manufactured by himself; or
(iii) puts or causes to be put his own mark on any goods made or manufactured by any other manufacturer and claims such goods to be goods made or manufactured by himself.
Explanation : Where a manufacturer despatches any goods or part thereof to any branch office maintained by him, such branch office shall not be deemed to be the manufacturer even though the parts so despatched to it are assembled at such branch office and are sold or distributed from such branch office.
2[(jj) “member” includes the President and a member of the National Commission or a State Commission or a District Forum, as the case may be;]
(k) “National Commission” means the National Consumer Disputes Redressal Commission established under clause (c) of section 9;
(l) “notification” means a notification published in the Official Gazette;
(m) “person” includes-
(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (22 of 1860) or not;
(n) “prescribed” means prescribed by rules made by the State Government, or as the case may be, by the Central Government under this Act;
2[(nn) “restrictive trade practice” means any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as a condition precedent for buying, hiring or availing of other goods or services;]
(o) “service” means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 6[housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
(p) “State Commission” means a Consumer Disputes Redressal Commission established in a State under clause (b) of section 9;
(q) “trader” in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof;
2[(r) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely,-
(1) the practice of making any statement, whether orally or in writing or by visible representation which,-
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof: PROVIDED that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
(viii) makes to the public a representation in a form that purports to be-
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation: For the purposes of clause (1), a statement that is-
(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale of supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement;.
Explanation: For the purposes of clause (2), “bargaining price” means-
(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
(3) permits-
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, games of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such-hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.
(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.
Section 3. Act not in derogation of any other law
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
CHAPTER II: CONSUMER PROTECTION COUNCILS
Section 4. The Central Consumer Protection Council
(1) The Central Government may, by notification, establish with effect from such date as it may specify in such notification, a council to be known as the Central Consumer Protection Council (hereinafter referred to as the Central Council).
(2) The Central Council shall consist of the following members, namely,-
(a) the Minister in charge of 1[consumer affairs] in the Central Government, who shall be its Chairman, and
(b) such number of other official or non-official members representing such interests as may be prescribed.
Section 5. Procedure for meetings of the Central Council
(1) The Central Council shall meet as and when necessary, but 1[at least one meeting] of the council shall be held every year.
(2) The Central Council shall meet at such time and place as the Chairman may think fit and shall observe such procedure in regard to the transaction of its business as may be prescribed.
Section 6. Objects of the Central Council
The objects of the Central Council shall be to promote and protect the rights of the consumers such as-
(a) the right to be protected against the marketing of goods 2[and services] which are hazardous to life and property;
(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods 1[or services, as the case may be], so as to protect the consumer against unfair trade practices;
(c) the right to be assured, wherever possible, access to a variety of goods and services at competitive prices;
(d) the right to be heard and to be assured that consumers’ interests will receive due
consideration at appropriate forums;
(e) the right to seek redressal against unfair trade practices 1[or restrictive trade practices] or unscrupulous exploitation of consumers; and
(f) the right to consumer education.
Section 7. The State Consumer Protection Councils
(1) The State Government may, by notification, establish with effect from such date as it may specify in such notification, a council to be known as the Consumer Protection Council (hereinafter referred to as the State Council).
1[(2) The State Council shall consist of the following members, namely,-
(a) the Minister in-charge of consumer affairs in the State Government who shall be its Chairman;
(b) such number of other official or non-official members representing such interests as may be prescribed by the State Government.
(3) The State Council shall meet as and when necessary but not less than two meetings shall be held every year.
(4) The State Council shall meet at such time and place as the Chairman may think fit and shall observe such procedure in regard to the transaction of its business as may be prescribed by the State Government.
Section 8. Objects of the State Council
The objects of every State Council shall be to promote and protect within the State the rights of the consumers laid down in clauses (a) to (f) of section 6.
CHAPTER III: CONSUMER DISPUTES REDRESSAL AGENCIES
Section 9. Establishment of Consumer Disputes Redressal Agencies
There shall be established for the purposes of this Act, the following agencies, namely,-
(a) a Consumer Disputes Redressal Forum to be known as the “District Forum” established by the State Government 3[* * *] in each district of the State by notification:
2[PROVIDED that the State Government may, if it deems fit, establish more than one District Forum in a district;
(b) a Consumer Disputes Redressal Commission to be known as the “State Commission” established by the State Government 3[* * *] in the State by notification; and
(c) a National Consumer Disputes Redressal Commission established by the Central Government by notification.
Section 10. Composition of the District Forum
1[(1) Each District Forum shall consist of-
(a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President;
(b) two other members, who shall be persons of ability, integrity and standing, and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.
2[(1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely,-
(i) the President of the State Commission-Chairman,
(ii) Secretary, Law Department of the State-Member,
(iii) Secretary in-charge of the Department dealing with consumer affairs in the State-Member.
(2) Every member of the District Forum shall hold office for a term of five years or up to the age of
65 years, whichever is earlier, and shall not be eligible for re-appointment: PROVIDED that a member may resign his office in writing under his hand addressed to the State
Government and on such resignation being accepted, his office shall become vacant and may be filled by the appointment of a person possessing any of the qualifications mentioned in subsection
(1) in relation to the category of the member who has resigned.
(3) The salary or honorarium and other allowances payable to, and the other terms and
conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government.
Section 11. Jurisdiction of the District Forum
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 1[does not exceed rupees five lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or 1[carries on business, or has a branch office or] personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 1[carries on business or has a branch office, or personally works for gain: PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 1[carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
1[12. Manner in which complaint shall be made
A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Forum, by-
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumers association whether the consumer to whom the goods sold or delivered or service provided or agreed to be provided is a member of such association or not; or
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government.
Section 13. Procedure on receipt of complaint
(1) The District Forum shall, on receipt of a complaint, if it relates to any goods-
(a) refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
(b) where the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute in the manner specified in clauses (c) to (g);
(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;
(d) before any sample of the goods is referred to any appropriate laboratory under clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question;
(e) the District Forum shall remit the amount deposited to its credit under clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in clause (c) and on receipt of the report from the appropriate laboratory, the District Forum shall forward a copy of the report along with such remarks as the District Forum may feel appropriate to the opposite party;
(f) if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory;
(g) the District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under clause (f) and issue an appropriate order under section 14.
(2) The District Forum shall, if the complaint received by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,-
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,-
(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegation contained in the complaint, or
(ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.
(3) No proceedings complying with the procedure laid down in sub-sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with.
(4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely,-
(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate
laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed.
(5) Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860), and the District Forum shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
2[(6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of subsection (1) of section 2, the provisions of Rule 8 of Order I of Schedule I to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon.]
Section 14. Finding of the District Forum
(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to 1[do] one or more of the following things, namely,-
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
2[(e) to remove the defects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(i) to provide for adequate costs to parties.]
4[(2) Every proceeding referred to in sub-section (1) shall be conducted by the President of the District Forum and at least one member thereof sitting together:
PROVIDED that where the member, for any reason, is unable to conduct the proceeding till it is completed, the President and the other member shall conduct such proceeding de novo:
(2A) Every order made by the District Forum under sub-section (1) shall be signed by its
President and the member or members who conducted the proceedings:
PROVIDED that where the proceeding is conducted by the President and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum.
(3) Subject to the foregoing provisions, the procedure relating to the conduct of the members of the District Forum, its sittings and other matters shall be such as may be prescribed by the State Government.
Section 15. Appeal
Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:
PROVIDED that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.
Section 16. Composition of the State Commission
(1) Each State Commission shall consist of-
(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President:
2[PROVIDED that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court.
(b) two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman:
2[PROVIDED that every appointment under this clause shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely,-
(i) President of the State Commission-Chairman,
(ii) Secretary of the Law Department of the State-Member
(iii) Secretary in-charge of the department dealing with consumer affairs in the State-Member.]
(2) The salary or honorarium and other allowances payable to, and. the other terms and
conditions of service 3[* * *] of the members of the State Commission shall be such as may be prescribed by the State Government.
2[(3) Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier and shall not be eligible for re-appointment.
(4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or member, as the case may be, till the completion of his term.
Section 17. Jurisdiction of the State Commission
Subject to the other provisions of this Act, the State Commission shall have jurisdiction-
(a) to entertain-
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees 1[five lakhs but does not exceed rupees twenty lakhs;] and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise on its jurisdiction illegally or with material irregularity.
Section 18. Procedure applicable to State Commission
1[The provisions of sections 12, 13 and 14 and the rules made thereunder] for the disposal of complaint by the Districts Forum shall, with such modification as may be necessary, be applicable to the disposal of disputes by the State Commission:
5[18A. Vacancy in the office of the President When the office of the President of the District Forum or of the State Commission, as the case may be, is vacant or when any such President is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such person, who is qualified to be appointed as President of the District Forum or, as the case may be, of the State
Commission, as the State Government may appoint for the purpose.]
Section 19. Appeals
Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
PROVIDED that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
Section 20. Composition of the National Commission
(1) The National Commission shall consist of-
(a) a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President:
2[PROVIDED that no appointment under this clause shall be made except after consultation with the Chief Justice of India;]
(b) four other members who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman:
2[PROVIDED that every appointment under this clause shall be made by the Central Government on the recommendation of a selection committee consisting of the following, namely,-
(a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India- Chairman,
(b) the Secretary in the Department of Legal Affairs in the Government of India-Member.]
(2) The salary or honorarium and other allowances payable to and the other terms and conditions of service 3[* * *] of the members of the National Commission shall be such as may be prescribed by the Central Government.
2[(3) Every member of the National Commission shall hold office for a term of five years or up to the age of seventy years, whichever is earlier and shall not be eligible for re-appointment.
(4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or member, as the case may be, till the completion of his term.]
Section 21. Jurisdiction of the National Commission
Subject to the other provisions of this Act, the National Commission shall have jurisdiction-
(a) to entertain
(i) complaints where the value of the goods or services and cornpensation, if any, claimed exceeds rupees 1[twenty lakhs]; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
Section 22. Power of and procedure applicable to the National Commission
The National Commission shall, in the disposal of any complaints or of any proceedings before it, have
(a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section 13;
(b) the power to issue an order to the opposite party directing him to do any one or more of the things referred to in clauses (a) to (i) of sub-section (1) of section 14, and follow such procedure as may be prescribed by the Central Government.
Section 23. Appeal
Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: PROVIDED that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
Section 24. Finality of order
Every order of a District Forum, State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.
Section 24A. Limitation period
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
PROVIDED that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
Section 24B. Administrative control
(1) The National Commission shall have administrative control over all the State Commissions in the following matters, namely,-
(i) calling for periodical returns regarding the institution, disposal, pendency of cases;
(ii) issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of English translation of judgments written in any language, speedy grant of copies of documents;
(iii) generally overseeing the functioning of the State Commissions or the District Fora to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.
(2) The State Commission shall have administrative controls over all the District Fora within its jurisdiction in all matters referred to in sub-section (1).]
Section 25. Enforcement of orders by the Forum, the State Commission or the National
Commission
Every order made by the District Forum, the State Commission or the National Commission, may be enforced by the District Forum, the State Commission or the National Commission as the case may be, in the same manner as if it were a decree or order made by a court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the court within the local limits of whose jurisdiction-
(a) in the case of an order against a company, the registered office of the company is situated, or
(b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon, the court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution.
Section 1[26. Dismissal of frivolous or vexatious complaints
Where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.
Section 27. Penalties
Where a trader or a person against whom a complaint is made 2[or the complainant] fails or omits to comply with any order made by the District Forum, the State Cornmission or the National Commission, as the case may be, such trader or person 2[or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:
PROVIDED that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than minimum term and the amount lesser than the minimum amount, specified in this section.
CHAPTER IV: MISCELLANEOUS
Section 28. Protection of action taken in good faith
No suit, prosecution or other legal proceedings shall lie against the members of the District Forum, the State Commissions or the National Commission or any officer or person acting under the direction of the District Forum, the State Commission or the National Commission for executing any order made by it or in respect of anything which is in good faith done or intended to be done by such member, officer or person under this Act or under any rule or order made thereunder.
Section 29. Power to remove difficulties
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty:
PROVIDED that no such order shall be made after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.
5[29A. Vacancies or defects in appointment not to invalidate orders No act or proceeding of the Districts Forum, the State Commission or the National Commission
shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof.]
Section 30. Power to make rules
(1) The Central Government may, by notification, make rules for carrying out the provisions contained in 2[clause (a) of sub-section (1) of section 2], clause (b) of sub-section (2) of section 4, sub-section (2) of section 5, clause (vi) of sub-section (4) of section 13, section 19, sub-section (2) of section 20 and section 22 of this Act.
(2) The State Government may, by notification, make rules for carrying out the provisions contained in 2[clause (b) of sub-section (2) and sub-section (4) of section 7], sub-section (3) of section 10, clause (c) of sub-section (1) of section 13, sub-section (3) of section 14, section 15 and sub-section (2) of section 16.
Section 31. Laying of rules
(1) Every rule made by the Central Government 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 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 that rule.
(2) Every rule made by a State Government under this Act shall be laid as soon as may be after it is made, before the State Legislature.
Foot Notes
1 Substituted by Act No. 50 of 1993, w.e.f. 18th. June, 1993.
2 Inserted by Act No. 50 of 1993, w.e.f. 18th. June, 1993.
3 Omitted by Act No. 50 of 1993, w.e.f. 18th. June, 1993.
4 Substituted by Act No. 34 of 1991, w.e.f. 15th. June, 1991.
5 Inserted by Act No. 34 of 1991, w.e.f. 15th. June, 1991.
November 30, 2014
Section 1. Short title, extent and commencement.
[RECEIVED THE ASSENT OF THE PRESIDENT ON 12TH SEPTEMBER, 1957]
An Act to provide for the levy of wealth-tax.
BE it enacted by Parliament in the Eighth Year of the Republic of India as follows :-
(1) This Act may be called the Wealth-Tax Act, 1957.
(2) It extends to the whole of India .
(3) It shall be deemed to have come into force on the 1st day of April, 1957.
Section 2. Definitions
In this Act, unless the context otherwise requires,—
1[***]
2[(b) “Appellate Tribunal” means the Appellate Tribunal constituted under section 252 of the Income-tax Act;]
2 [(c) “assessee” means a person by whom wealth-tax or any other sum of money is payable under this Act, and includes—
(i) every person in respect of whom any proceeding under this Act has been taken for the determination of wealth-tax payable by him or by any other person or the amount of refund due to him or such other person;
(ii) every person who is deemed to be an assessee under this Act;
(iii) every person who is deemed to be an assessee in default under this Act;]
3[(ca) “Assessing Officer” means the Deputy Commissioner of Income-tax or the Assistant Commissioner or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of the Income-tax Act which apply for the purposes of wealth-tax under section 8 of this Act and also the 4[Additional Commissioner or] 5[Additional Director or] Joint Commissioner who is directed under clause (b) of sub-section (4) of the said section 120 to exercise or perform all or any of the powers and functions conferred on or assigned to the Assessing Officer under that Act;]
6[cb)] “assessment” includes re-assessment;
7[(d) “assessment year” means the period of twelve months commencing on the 1st day of April every year;]
8[(e) “assets” includes property of every description, movable or immovable, but does not include,—
(1) in relation to the assessment year commencing on the 1st day of April, 1969, or any earlier assessment year—
(i) agricultural land and growing crops, grass or standing trees on such land;
(ii) any building owned or occupied by a cultivator of, or receiver of rent revenue out of, agricultural land:
Provided that the building is on or in the immediate vicinity of the land and is a building which the cultivator or the receiver of rent or revenue by reason of his connection with the land requires as a dwelling-house or a store-house or an outhouse;
(iii) animals;
(iv) a right to any annuity in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant;
(v) any interest in property where the interest is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee;
(2) in relation to the assessment year commencing on the 1st day of April, 1970, or any subsequent assessment year 9[but before the 1st day of April, 1993]—
(i) animals;
(ii) a right to 10[any annuity (not being an annuity purchased by the assessee or purchased by any other person in pursuance of a contract with the assessee)] in any case where the terms and conditions relating thereto preclude the commutation of any portion thereof into a lump sum grant;
(iii) any interest in property where the interest is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee:]
11[Provided that in relation to the assessment year commencing on the 1st day of April, 1981, 12[and the assessment year commencing on the 1st day of April, 1982], this sub-clause shall have effect subject to the modification that for item (i) thereof, the following item shall be substituted namely:—
(i) (a) agricultural land other than land comprised in any tea, coffee, rubber or cardamom plantation;
(b) any building owned or occupied by a cultivator of, or receiver of rent or revenue out of, agricultural land other than land comprised in any tea, coffee, rubber or cardamom plantation:
Provided that the building is on or in the immediate vicinity of the land and is a building which the cultivator or the receiver of the rent or revenue by reason of his connection with the land requires as a dwelling-house or a store-house or an outhouse;
(c) animals:]
13[Provided further that in relation to the assessment year commencing on the 1st day of April, 1983, or any subsequent assessment year, this sub-clause shall have effect subject to the modification that for item (i) thereof, the following item shall be substituted, namely:—
(i) (a) agricultural land and growing crops (including fruits on trees), grass or standing trees on such land;
(b) one building or one group of buildings owned or occupied by a cultivator of, or receiver of rent or revenue out of, agricultural land:
Provided that such building or group of buildings is on or in the immediate vicinity of the land and is a building which the cultivator or the receiver of rent or revenue by reason of his connection with the land requires as store-house or for keeping livestock;
(c) animals:]
14 [Provided also that] in relation to the State of Jammu and Kashmir, this sub-clause shall have effect subject to the modification that for the assets specified in 15[item (i)] of this sub-clause, the assets specified in 16[items (i) to (iii)] of sub-clause (1) shall be substituted and the other provisions of this Act shall be construed accordingly;]
17[(ea) “assets”, in relation to the assessment year commencing on the 1st day of April, 1993, or any subsequent assessment year, means—
18[(i) any building or land appurtenant thereto (hereinafter referred to as “house”), whether used for residential or commercial purposes or for the purpose of maintaining a guest house or otherwise including a farm house situated within twenty-five kilometres from local limits of any municipality (whether known as Municipality, Municipal Corportation or by any other name) or a Cantonment Board, but does not include—
(1) a house meant exclusively for residential purposes and which is allotted by a company to an employee or an officer or a director who is in whole-time employment, having a gross annual salary of less than five lakh rupees;
(2) any house for residential or commercial purposes which forms part of stok-in-trade;
(3) any house which the assessee may occupy for the purposes of any business or profession carried on by him;
(4) any residential property that has been let-out for a minimum period of three hundred days in the previous year;
(5) any property in the nature of commercial establishments or complexes;]
(ii) motor cars (other than those used by the assessee in the business of running them on hire or as stock-in-trade);
(iii) jewellery, bullion and furniture, utensils or any other article made wholly or partly of gold, silver, platinum or any other precious metal or any alloy containing one or more of such precious metals:
Provided that where any of the said assets is used by the assessee as stock-in-trade, such asset shall be deemed as excluded from the assets specified in this sub-clause;
(iv) yachts, boats and aircrafts (other than those used by the assessee for commercial purposes);
(v) urban land;
(vi) cash in hand, in excess of fifty thousand rupees, of individuals and Hindu undivided families and in the case of other persons any amount not recorded in the books of account.
19[ Explanation 1 ].—For the purposes of this clause,—
(a) “jewellery” includes—
(i) ornaments made of gold, silver, platinum or any other precious metal or any alloy containing one or more of such precious metals, whether or not containing any precious or semi-precious stones and whether or not worked or sewn into any wearing apparel;
(ii) precious or semi-precious stones, whether or not set in any furniture, utensils or other article or worked or sewn into any wearing apparel;
(b) “urban land” means land situate—
(i) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ten thousand according to the last preceding census of which the relevant figures have been published before the valuation date; or
(ii) in any area within such distance, not being more than eight kilometres from the local limits of any municipality or cantonment board referred to in sub-clause (i), as the Central Government may, having regard to the extent of, and scope for, urbanisation of that area and other relevant considerations, specify in this behalf by notification20 in the Official Gazette, but does not include land on which construction of a building is not permissible under any law for the time being in force in the area in which such land is situated or the land occupied by any building which has been constructed with the approval of the appropriate authority or any unused land held by the assessee for industrial purposes for a period of two years from the date of its acquisition by him 21[or any land held by the assessee as stock-in-trade for a period of ten years from the date of its acquisition by him];]
22[ Explanation 2 .—For the removal of doubts, it is hereby declared that “Jewellery” does not include the Gold Deposit Bonds issued under the Gold Deposit Scheme, 1999 notified by the Central Government.]
(f) “Board” means the 23[Central Board of Direct Taxes constituted under the Central Board of Revenue Act, 1963 (54 of 1963)];
24[***]
25[***]
26[(h) “company” shall have the meaning assigned to it in clause (17) of section 2 of the Income-tax Act, 1961, (43 of 1961);]
27[(ha) “co-operative society” means a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State for the registration of co-operative societies;]
28[***]
(i) “executor” means an executor or administrator of the estate of a deceased person;
29[(ia) “High Court”, in relation to the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu, means the High Court at Bombay;]
30[(j) “Income-tax Act” means the Income-tax Act, 1961 (43 of 1961);]
31[***]
32[(ka) “India” means the territory of India as referred to in article 1 of the Constitution, its territorial waters, seabed and subsoil underlying such waters, continental shelf, exclusive economic zone or any other maritime zone as referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976), and the air space above its territory and territorial waters;]
33[***]
34[(lb) “legal representative” has the meaning assigned to it in clause (11) of section 2 of the Code of Civil Procedure, 1908 (5 of 1908);]
35[(lc) “maximum marginal rate” means the rate of wealth-tax applicable in relation to the highest slab of wealth in the case of an individual as specified in Part I of Schedule I;]
36 [(ld) “National Tax Tribunal” means the National Tax Tribunal established under section 3 of the National Tax Tribunal Act, 2005 (49 of 2005;]
(m) “net wealth” means the amount by which the aggregate value computed in accordance with the provisions of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee 37[on the valuation date which have been incurred in relation to the said assets];
(n) “prescribed” means prescribed by rules made under this Act;
(o) “principal officer”, used with reference to a company, means the secretary, manager, managing agent or managing director of the company, and includes any person connected with the management of the affairs of the company upon whom the 38[Assessing Officer] has served a notice of his intention of treating him as the principal officer thereof;
39[(oa) “public servant” has the same meaning as in section 21 of the Indian Penal Code (45 of 1860);]
40[(oaa) “registered valuer” means a person registered as a valuer under section 34 AB;]
39[(ob) “regular assessment” means the assessment made under 41[sub-section (3) or sub-section (5) of section 16];]
(p) “Ruler” means a Ruler as defined in clause (22) of Article 366 of the Constitution;
(q) “valuation date”, in relation to any year for which an assessment is to be made under this Act, means the last day of the previous year as defined in 42[section 3] of the Income-tax Act if an assessment were to be made under that Act for that year:
43[Provided that—
44[***]
(ii) in the case of a person who is not an assessee within the meaning of the Income-tax Act, the valuation date for the purposes of this Act shall be the 31st day of March immediately preceding the assessment year;
(iii) where an assessment is made in pursuance of section 19A, the valuation date shall be the same valuation date as would have been adopted in respect of the net wealth of the deceased if he were alive;]
45[(r) “Valuation Officer” means a person appointed as a Valuation Officer under section 12A, and includes a Regional Valuation Officer, a District Valuation Officer and an Assistant Valuation Officer;]
46[(s) the expressions “Chief Commissioner, Director-General, Commissioner, Commissioner (Appeals), Director, Additional Director of Income-tax, Additional Commissioner of Income-tax, Joint Director, Joint Commissioner of Income-tax, Deputy Director, Deputy Commissioner, Assistant Commissioner, Assistant-Director, Income tax Officer, Inspector of Income-tax and Tax Recovery Officer shall have the meanings respectively assigned to them under section 2 of the Income-tax Act.]
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1. Clause (a) omitted by Act 4 of 1988, sec. 128(i) as amended by Act 26 of 1988, sec. 88(e)(i) (w.e.f. 1-4-1988).
2. Subs. by Act 46 of 1964, sec. 2(a), for clauses (b), (c) and (d) (w.e.f. 1-4-1965).
3. Subs. by Act 21 of 1998, sec. 67(a), for clause (ca) (w.e.f. 1-10-1998). Earlier clause (ca) was inserted by Act 4 of 1988, sec. 128(ii) as amended by Act 26 of 1988, sec. 88(e)(ii) (w.e.f. 1-4-1988).
4. Ins. by Finance Act, 2007, sec. 83(a)(i) (w.r.e.f. 1-6-1994).
5. Ins. by Finance Act, 2007, sec. 83(a)(ii) (w.r.e.f. 1-10-1996).
6. Clause (ca) re-lettered as clause (cb) by Act 4 of 1988, sec. 128(ii) as amended by Act 26 of 1988, sec. 88(e)(i) (w.e.f. 1-4-1988). Earlier clause (ca) was inserted by Act 46 of 1964, 2 (w.e.f. 1-4-1965).
7. Subs. by Act 46 of 1964, sec. 2(a), for clauses (b), (c) and (d) (w.e.f. 1-4-1965).
8. Subs. by Act 14 of 1969, sec. 24(a), for clause (e) (w.r.e.f. 1-4-1969). Earlier clause (e) was amended by Act 46 of 1964, sec. 2(b) (w.e.f. 1-4-1965).
9. Ins. by Act 18 of 1992, sec. 89(a) (w.e.f. 1-4-1993).
10. Subs. by Act 20 of 1974, sec. 14(1)(a), for “any annuity” (w.e.f. 1-4-1975).
11. Subs. by Act 44 of 1980, sec. 36, for the proviso (w.e.f. 1-4-1981). Earlier the proviso was added by Act 19 of 1970, sec. 26(a) (w.r.e.f. 1-4-1969) and was amended by Act 20 of 1974, sec. 14(1)(b) (w.r.e.f. 1-4-1974).
12. Subs. by Act 14 of 1982, sec. 33(a), for “or any subsequent assessment year” (w.e.f. 1-4-1983).
13. Ins. by Act 14 of 1982, sec. 33(b) (w.e.f. 1-4-1983).
14. Subs. by Act 14 of 1982, sec. 33(b), for “Provided further that” (w.e.f. 1-4-1983).
15. Subs. by Act 20 of 1974, sec. 14(1)(b), for “items (i) to (iii)” (w.e.f. 1-4-1975).
16. Subs. by Act 20 of 1974, sec. 14(1)(b), for “items (i) to (v)” (w.e.f. 1-4-1975).
17. Ins. by Act 18 of 1922, sec. 89(b) (w.e.f. 1-4-1993).
18. Subs. by Act 21 of 1998, sec. 67 (b) (i), for sub-clause (i) (w.e.f. 1-4-1999). Earlier sub-clause (i) was substituted by Act 33 of 1996, sec. 56 (w.e.f. 1-4-1997).
19. Explanation re-numbered as Explanation 1 by Act 27 of 1999, sec. 91 (w.e.f. 1-4-2000).
20. See Notification No. S.O. 871(E), dated 9th November, 1993.
21. Subs. by Act 21 of 1998, sec. 67(b)(ii), for certain words (w.e.f. 1-4-1999). Earlier those words were inserted by Act 38 of 1993, sec. 38 (w.e.f. 1-4-1994) and were amended by Act 32 of 1994, sec. 51(i) (w.e.f. 1-4-1995).
22. Ins. by Act 27 of 1999, sec. 91 (w.e.f. 1-4-2000).
23. Subs. by Act 54 of 1963, sec. 5(1), for “Central Board of Revenue constituted under the Central Board of Revenue Act, 1924 (4 of 1924)” (w.e.f. 1-4-1964).
24. Clause (g) omitted by Act 4 of 1988, sec. 128(iii) as amended by Act 26 of 1988, sec. 88(e)(iii) (w.e.f. 1-4-1988).
25. Clause (gg) omitted by Act 4 of 1988, sec. 128(iii) as amended by Act 26 of 1988, sec. 88(e)(iii) (w.e.f. 1-4-1988). Earlier clause (gg) was inserted by Act 29 of 1977, sec. 39, Sch. V, Pt. II, Item 1 (w.e.f. 10-7-1978)
26. Subs. by Act 4 of 1988, sec. 128(iv), for clause (h) (w.e.f. 1-4-1989). Earlier clause (h) was substituted by Act 11 of 1958, sec. 14(a) (w.e.f. 28-4-1958) and was amended by Act 20 of 1967, sec. 34(a) (w.e.f. 1-4-1967) and was substituted by Act 25 of 1975, sec. 25 (w.r.e.f. 1-4-1975).
27. Ins. by Act 16 of 1972, sec. 44(a) (w.e.f. 1-4-1957).
28. Clause (hb) omitted by Act 4 of 1988, sec. 128 (iii) as amended by Act 26 of 1988, sec. 88(e)(iii) (w.e.f. 1-4-1988). Earlier clause (ha) was re-lettered as clause (hb) by Act 16 of 1972, sec. 44(b) (w.e.f. 1-4-1965).
29. Ins. by Act 3 of 1963, sec. 3 and Sch. (w.e.f. 1-4-1963).
30. Subs. by Act 46 of 1964, sec. 2(d), for clause (j) (w.e.f. 1-4-1965).
31. Clause (k) omitted by Act 4 of 1988, sec. 128(iii) as amended by Act 26 of 1988, sec. 88(e)(iii) (w.e.f. 1-4-1988).
32. Subs. by Finance Act, 2007, sec. 83(b), for clause (ka) (w.r.e.f. 25-8-1976). Earlier clause (ka) was inserted by Act 3 of 1963, sec. 3 and Sch. (w.e.f. 1-4-1963). Clause (ka), before substitution by Finance Act, 2007, stood as under: ‘(ka) “India” shall be deemed to include the Union territories of Dadra and Nagar Haveli, Goa, Daman and Diu, and Pondicherry— (i) as respects any period, for the purposes of section 6; and (ii) as respects any period included in the year ending with the valuation date, for the purpose of making any assessment for the assessment year commencing on the 1st day of April, 1963, or for any subsequent year;’.
33. Clauses (l) and (la) omitted by Act 4 of 1988, sec. 128(iii) as amended by Act 26 of 1988, sec. 88(e)(iii) (w.e.f. 1-4-1988). Earlier clause (la) was inserted by Act 46 of 1964, sec. 2(e) (w.e.f. 1-4-1965).
34. Ins. by Act 46 of 1964, sec. 2(e) (w.e.f. 1-4-1965).
35. Ins. by Act 4 of 1988, sec. 128(v) (w.e.f. 1-4-1989).
36. Ins. by Act 49 of 2005, sec. 30 and Sch.—Part II-1.
37. Subs. by Act 18 of 1992, sec. 89(c), for certain words (w.e.f. 1-4-1993). Earlier clause (m) was amended by Act 12 of 1959, sec. 20 (w.e.f. 28-12-1959), by Act 46 of 1964, sec. 2(f) (w.e.f. 1-4-1965), by Act 11 of 1987, sec. 75 (w.e.f. 1-4-1988) and by Act 3 of 1989, sec. 58 (w.e.f. 1-4-1989).
38. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
39. Ins. by Act 46 of 1964, sec. 2(g) (w.e.f. 1-4-1965).
40. Ins. by Act 45 of 1972, sec. 7(a) (w.e.f. 15-11-1972).
41. Subs. by Act 12 of 1990, sec. 51, for “section 16” (w.r.e.f. 1-4-1989).
42. Subs. by Act 46 of 1964, sec. 2(h)(i), for “clause (11) of section 2” (w.e.f. 1-4-1965).
43. Subs. by Act 46 of 1964, sec. 2(h)(ii), for the proviso (w.e.f. 1-4-1965).
44. Clause (i) omitted by Act 4 of 1988, sec. 128(vi) (w.e.f. 1-4-1989).
45. Subs. by Act 45 of 1972, sec. 7(b), for clause (r) (w.e.f. 15-11-1972).
46. Subs. by Act 21 of 1998, sec. 67(c), for clause (s) (w.e.f. 1-10-1998). Earlier clause (s) was amended by Act 46 of 1964, sec. 2(h)(iii) (w.e.f. 1-4-1965) and was substituted by Act 4 of 1988, sec. 128(vii) as amended by Act 26 of 1988, sec. 8(e)(iv) (w.e.f. 1-4-1988) and was amended by Act 32 of 1994, sec. 51(ii) (w.e.f. 1-4-1995).
Chapter II – Charge of Wealth-Tax and Assets subject to such charge
Section 3. Charge of wealth-tax.
1[(1)] 2 [Subject to the other provisions (including provisions for the levy of additional wealth-tax) contained in this Act], there shall be charged for every 3[assessment year] commencing on and from the first day of April, 1957 4[but before the 1st day of April, 1993], a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company 5[at the rate or rates specified in Schedule I].
6[(2) Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the 1st day of April, 1993, wealth-tax in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company, at the rate of one per cent. of the amount by which the net wealth exceeds fifteen lakh rupees.]
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1. Section 3 renumbered as sub-section (1) thereof by Act 18 of 1992, sec. 90 (w.e.f. 1-4-1993).
2. Subs. by Act 4 of 1988, sec. 129, for “Subject to the other provisions contained in this Act” (w.e.f. 1-4-1989).
3. Subs. by Act 46 of 1964, sec. 3, for “Financial year” (w.e.f. 1-4-1965).
4. Ins. by Act 18 of 1992, sec. 90(a) (w.e.f. 1-4-1993).
5. Subs. by Act 66 of 1976, sec. 27(1), for “at the rate or rates specified in the schedule” (w.e.f. 1-4-1977).
6. Ins. by Act 18 of 1992, sec. 90(b) (w.e.f. 1-4-1993).
Section 4. Net wealth to include certain assets.
(1) 1[In computing the net wealth—
(a) of an individual, there shall be included, as belonging to that individual, the value of assets which on the valuation date are held—]
2[(i) by the spouse of such individual to whom such assets have been transferred by the individual, directly or indirectly, otherwise than for adequate consideration or in connection with an agreement to live apart, or
(ii) by a minor child, not being 3[a minor child suffering from any disability of the nature specified in section 80U of the Income-tax Act or] a married daughter, of such individual,4 [***], or
(iii) by a person or association of persons to whom such assets have been transferred by the individual 5[, directly or indirectly,] otherwise than for adequate consideration for the immediate or deferred benefit of the individual, his or her spouse 6[***], or]
(iv) by a person or association of persons to whom such assets have been transferred by the individual otherwise than under an irrevocable transfer, 7[or]
7[(v) by the son’s wife, 8[***] of such individual, to whom such assets have been transferred by the individual, directly or indirectly, on or after the 1st day of June, 1973, otherwise than for adequate consideration,] 9[or]
10[(vi) by a person or association of persons to whom such assets have been transferred by the individual, directly or indirectly, on or after the 1st day of June, 1973, otherwise than for adequate consideration for the immediate or deferred benefit of the son’s wife, 11[***] of such individual or both,] whether the assets referred to in any of the sub-clauses aforesaid are held in the form in which they were transferred or otherwise:
12[Provided that where the transfer of such assets or any part thereof is either chargeable to gift-tax under the Gift-tax Act, 1958 (18 of 1958), or is not chargeable under section 5 of that Act, for any assessment year commencing 13[after the 31st day of March, 1964, but before the 1st day of April, 1972], the value of such assets or part thereof, as the case may be, shall not be included in computing the net wealth of the individual:]
14[Provided further that nothing contained in sub-clause (ii) shall apply in respect of such assets as have been acquired by the minor child out of his income referred to in the proviso to sub-section (1A) of section 64 of the Income-tax Act and which are held by him on the valuation date:
Provided also that where the assets held by a minor child are to be included in computing the net wealth of an individual, such assets shall be included,—
(a) where the marriage of his parents subsists, in the net wealth of that parent whose net wealth (excluding the assets of the minor child so includible under this sub-section) is greater; or
(b) where the marriage of his parents does not subsist, in the net wealth of that parent who maintains the minor child in the previous year as defined in section 3 of the Income-tax Act, and where any such assets are once included in the net wealth of either parent, any such assets shall not be included in the net wealth of the other parent in any succeeding year unless the Assessing Officer is satisfied, after giving that parent an opportunity of being heard, that it is necessary so to do.]
15[(b) of an assessee who is a partner in a firm or a member of an association of persons (not being a co-operative housing society), there shall be included, as belonging to that assessee, the value of his 16[interest in the assets of the firm] or association determined in the manner laid down in Schedule III:
17[Provided that where a minor is admitted to the benefits of partnership in a firm, the value of the interest of such minor in the firm, determined in the manner specified above, shall be included in the net wealth of the parent of the minor, so far as may be, in accordance with the provisions of the third proviso to clause(a).]]
18[(1A) Where, in the case of an individual being a member of a Hindu undivided family, any property having been the separate property of the individual has, at any time after the 31st day of December, 1969, been converted by the individual into property belonging to the family through the act of impressing such separate property with the character of property belonging to the family or throwing it 19[into the common stock of the family or been transferred by the individual, directly or indirectly, to the family otherwise than for adequate consideration (the property so converted or transferred being hereinafter referred to as the converted property)], then, notwithstanding anything contained in any other provision of this Act or in any other law for the time being in force, for the purpose of computing the net wealth of the individual under this Act for any assessment year commencing on or after the 1st day of April, 1972,—
(a) the individual shall be deemed to have transferred the converted property, through the family, to the members of the family for being held by them jointly;
(b) the converted property or any part thereof 20[***] shall be deemed to be assets belonging to the individual and not to the family;
21[(c) where the converted property has been the subject-matter of a partition (whether partial or total) amongst the members of the family, the converted property or any part thereof which is received by the spouse 22[***] of the individual on such partition shall be deemed to be assets transferred indirectly by the individual to the spouse 22[***] and the provisions of sub-section (1) shall, so far as may be, apply accordingly:]
Provided that the property referred to in clause (b) or clause (c) shall, on being included in the net wealth of the individual be excluded from the net wealth of the family or, as the case may be, the spouse 22[***] of the individual.
23[***]
24[***]
(4) Nothing contained in clause (a) of sub-section (1) shall apply to any such transfer as is referred to therein made by an individual before the 1st day of April, 1956, and the value of any assets so transferred shall not be included in the computation of his net wealth.
25[(4A) Notwithstanding anything in sub-section (4), nothing contained in clause (a) of sub-section (1) shall apply to any such transfer as is referred to therein made before the 1st day of April, 1963, by an individual who but for the extension of this Act to the Union territories of Dadra and Nagar Haveli, Goa, Daman and Diu, and Pondicherry, would not have been an assessee, and the value of any assets so transferred shall not be included in the computation of his net wealth.]
(5) The value of any assets transferred under an irrevocable transfer shall be liable to be included in computing the net wealth of the transferor as and when the power to revoke arises to him.
26[(5A) Where a gift of money from one person to another is made by means of entries in the books of account maintained by the person making the gift or by an individual or a Hindu undivided family or a firm or an association of persons or body of individuals with whom or which he has business or other relationship, the value of such gift shall be liable to be included in computing the net wealth of the person making the gift unless he proves to the satisfaction of the 27[Assessing Officer] that the money has actually been delivered to the other person at the time the entries were made.]
28[(6) For the purposes of this Act, the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate.]
29[(7) Where the assessee is a member of a co-operative society, company or other association of persons and a building or part thereof is allotted or leased to him under a house building scheme of the society, company or association, as the case may be, the assessee shall, notwithstanding anything contained in this Act or any other law for the time being in force, be deemed to be the owner of such building or part and the value of such building or part shall be included in computing the net wealth of the assessee; and, in determining the value of such building or part, the value of any outstanding instalments of the amount payable under such scheme by the assessee to the society, company or association towards the cost of such building or part and the land appurtenant thereto shall, whether the amount so payable is described as such or in any other manner is such scheme, be deducted as a debt owed by him in relation to such building or part.]
30[(8) A person—
(a) who is allowed to take or retain possession of any building or part thereof in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 (4 of 1982);
(b) who acquires any rights (excluding any rights by way of a lease from month to month or for a period not exceeding one year) in or with respect to any building or part thereof by virtue of any such transaction as is referred to in clause (f) of section 269UA of the Income-tax Act, shall be deemed to be the owner of that building or part thereof and the value of such building or part shall be included in computing the net wealth of such person.]
31[ Explanation. —For the purposes of this section,—
(a) the expression “transfer” includes any disposition settlement, trust, covenant, agreement or arrangement; 32[***]]
33[(aa) the expression “child” includes a step-child and an adopted child;]
(b) the expression “irrevocable transfer” includes a transfer of assets which, by the terms of the instrument effecting it, is not revocable for a period exceeding six years or during the lifetime of the transferee, and under which the transferor derives no direct or indirect benefit, but does not include a transfer of assets if such instrument—
(i) contains any provision for the re-transfer, directly or indirectly, of the whole or any part of the assets or income therefrom to the transferor, or
(ii) in any way gives the transferor a right to re-assume power, directly or indirectly, over the whole or any part of the assets or income therefrom;]34[and]
35[(c) the expression “property” includes any interest in any property, movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale thereof and where the property is converted into any other property by any method, such other property 36[***].
37[***]
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1. Subs. by Act 3 of 1989, sec. 59(a)(i), for certain words (w.e.f. 1-4-1989). Earlier sub-section (1) was amended by Act 46 of 1964, sec. 4(a) (w.e.f. 1-4-1965) and by Act 32 of 1971, sec. 31(a) (w.e.f. 1-4-1972).
2. Subs. by Act 46 of 1964, sec. 4(a)(ii)(A), for sub-clauses (i), (ii) and (iii) (w.e.f. 1-4-1965).
3. Ins. by Act 32 of 1994, sec. 52 (w.e.f. 1-4-1995).
4. Certain words omitted by Act 18 of 1992, sec. 91(a)(i)(1) (w.e.f. 1-4-1993).
5. Ins. by Act 41 of 1975, sec. 82(i)(a) (w.e.f. 1-4-1976).
6. The words “or minor child (not being a married daughter) or both” omitted by Act 18 of 1992, sec. 91(a)(i)(2) (w.e.f. 1-4-1993).
7. Ins. by Act 41 of 1975, sec. 82(i)(b) (w.e.f. 1-4-1976).
8. The words “or the son’s minor child” omitted by Act 18 of 1992, sec. 91(a)(i)(3) (w.e.f. 1-4-1993).
9. Ins. by Act 67 of 1984, sec. 53(a) (w.e.f. 1-4-1985).
10. Ins. by Act 67 of 1984, sec. 53(b) (w.e.f. 1-4-1985).
11. The words “or the son’s minor child” omitted by Act 18 of 1992, sec. 9(a)(i)(4) (w.e.f. 1-4-1993).
12. Ins. by Act 46 of 1964, sec. 4(a)(ii)(B) (w.e.f. 1-4-1965).
13. Subs. by Act 32 of 1971, sec. 31(a)(i), for “after the 31st day of March, 1964” (w.e.f. 1-4-1972).
14. Ins. by Act 18 of 1992, sec. 91(a)(i)(5) (w.e.f. 1-4-1993).
15. Subs. by Act 3 of 1989, sec. 59(a)(ii), for clause (b) (w.e.f. 1-4-1989).
16. Subs. by Act 18 of 1992, sec. 91(a)(ii)(1), for “interest in the firm” (w.e.f. 1-4-1993).
17. Subs. by Act 18 of 1992, sec. 91(a)(ii)(2), for the proviso (w.e.f. 1-4-1993).
18. Ins. by Act 32 of 1971, sec. 31(b) (w.e.f. 1-4-1972).
19. Subs. by Act 21 of 1979, sec. 23(a), for “into the common stock of the family (such property being hereinafter referred to as the converted property)” (w.e.f. 1-4-1980).
20. Certain words omitted by Act 41 of 1975, sec. 82(ii)(a) (w.e.f. 1-4-1976).
21. Subs. by Act 41 of 1975, sec. 82(ii)(b), for clause (c) (w.e.f. 1-4-1976).
22. The words “or minor child” omitted by Act 18 of 1992, sec. 91(b) (w.e.f. 1-4-1993).
23. Sub-section (2) omitted by Act 3 of 1989, sec. 59(b) (w.e.f. 1-4-1989).
24. Sub-section (3) omitted by Act 18 of 1992, sec. 91(c) (w.e.f. 1-4-1993). Earlier sub-section (3) was substituted by Act 25 of 1975, sec. 26 (w.r.e.f. 1-4-1975) and was amended by Act 21 of 1978, sec. 23(b) (w.e.f. 1-4-1980).
25. Ins. by the Taxation Laws (Extension to Union Territories ) Regulation, 1963, sec. 3 and Sch. (w.e.f. 1-4-1963).
26. Ins. by Act 41 of 1975, sec. 82(iii) (w.e.f. 1-4-1976).
27. Subs. by Act 4 of 1988, sec. 127 for “Wealth-tax Officer” (w.e.f. 1-4-1988).
28. Subs. by Act 46 of 1964, sec. 4(b), for Explanation (w.e.f. 1-4-1965).
29. Subs. by Act 33 of 1996, sec. 57, for sub-section (7) (w.e.f. 1-4-1997). Earlier sub-section (7) was inserted by Act 32 of 1971, sec. 31(c) (w.e.f. 1-4-1972).
30. Sub-sections (7) and (8) subs. by Act 33 of 1996, sec. 57, for sub-section (7) (w.e.f. 1-4-1997).
31. Subs. by Act 46 of 1964, sec. 4(b), for Explanation (w.e.f. 1-4-1965).
32. The word “and” omitted by Act 32 of 1971, sec. 31(d)(i) (w.e.f. 1-4-1972).
33. Ins. by Act 41 of 1975, sec. 82(iv)(a) (w.e.f. 1-4-1976).
34. Ins. by Act 41 of 1975, sec. 82(iv)(b) (w.e.f. 1-4-1976).
35. Ins. by Act 32 of 1971, sec. 31(d)(ii) (w.e.f. 1-4-1972).
36. The word “and” omitted by Act 41 of 1975, sec. 82(iv)(c) (w.e.f. 1-4-1976).
37. Clause (d) omitted by Act 41 of 1975, sec. 82(iv)(d) (w.e.f. 1-4-1976). Earlier clause (d) was inserted by Act 32 of 1971, sec. 31(d)(ii) (w.e.f. 1-4-1972).
Section 5. Exemptions in respect of certain assets.
1[2[***] Wealth-tax shall not be payable by an assessee in respect of the following assets]; and such assets shall not be included in the net wealth of the assessee—
(i) any property held by him under trust or other legal obligation for any public purpose of a charitable or religious nature in India :
3[Provided that nothing contained in this clause shall apply to any property forming part of any business, not being a business referred to in clause (a) or clause (b) of sub-section (4A) of section 11 of the Income-tax Act in respect of which separate books of account are maintained or a business carried on by an institution fund or trust referred to in 4[***] clause (23B) or clause (23C) of section 10 of the Act;]
(ii) the interest of the assessee in the coparcenary property of any Hindu undivided family of which he is a member;
(iii) 5[any one building in the occupation of a Ruler, being a building which immediately before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was his official residence by virtue of a declaration by the Central Government] under paragraph 13 of the Merged States (Taxation Concessions) Order, 1949, or paragraph 15 of the Part B States (Taxation Concessions) Order, 1950;
6[***]
7[(iv)] jewellery in the possession of any Ruler, not being his personal property, which has been recognised before the commencement of this Act by the Central Government as his heirloom or, where no such recognition exists, which the Board may, subject to any rules that may be made by the Central Government in this behalf, recognise as his heirloom at the time of his first assessment to wealth-tax under this Act:
8[Provided that in the case of jewellery recognised by the Central Government as aforesaid, such recognition shall be subject to the following conditions, namely:—
(i) that the jewellery shall be permanently kept in India and shall not be removed outside India except for a purpose and period approved by the Board;
(ii) that reasonable steps shall be taken for keeping the jewellery substantially in its original shape;
(iii) that reasonable facilities shall be allowed to any officer of Government authorised by the Board in this behalf to examine the jewellery as and when necessary; and
(iv) that if any of the conditions hereinbefore specified is not being duly fulfilled, the Board may, for reasons to be recorded in writing, withdraw the recognition retrospectively with effect from the date of commencement of clause (b) of section 5 of the Rulers of Indian States (Abolition of Privileges) Act, 1972 (54 of 1972), and in such a case, wealth-tax shall become payable by the Ruler for all the assessment years after such commencement for which the jewellery was exempted on account of the recognition.
Explanation. —For the purposes of clause (iv) of the foregoing proviso, the fair market value of any jewellery on the date of the withdrawal of the recognition in respect thereof shall be deemed to be the fair market value of such jewellery on each successive valuation date relevant for the assessment years referred to in the said provison:
Provided further that the aggregate amount of wealth tax payable in respect of any jewellery under clause (iv) of the foregoing proviso for all the assessment years referred to therein shall not in any case exceed fifty per cent. of its fair market value on the valuation date relevant for the assessment year in which recognition was withdrawn;]9[***]
10[(v)] in the case of an assessee, being a person of Indian origin 11 [or a citizen of India (hereafter in this clause referred to as such person)] who was ordinarily residing in a foreign country and who, on leaving such country, has returned to India with the intention of permanently residing therein, moneys and the value of assets brought by him into India and the value of the assets acquired by him out of such moneys 12[within one year immediately preceding the date of his return and at any time thereafter]:
Provided that this exemption shall apply only for a period of seven successive assessment year commencing with the assessment year next following the date on which such person returned to India .
13[ Explanation 1].—A person shall be deemed to be of Indian origin if he, or either of his parents or any of his grandparents, was born is undivided India ].
14[ Explanation 2.—For the removal of doubts, it is hereby declared that moneys standing to the credit of such person in a Non-resident (External) Account, in any bank in India in accordance with the Foreign Exchange Regulation Act, 1973 (46 of 1973) and any rules made thereunder, on the date of his return to India, shall be deemed to be moneys brought by him into India on that date.]
15[***]
16[(vi) one house or part of a house or a plot of land belonging to an individual or a Hindu undivided family:
Provided that wealth-tax shall not be payable by an assessee in respect of an asset being a plot of land comprising an area of five hundred square metres or less.]
17[***]
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1. The words “Subject to the provisions of sub-section (1A), wealth-tax shall not be payable by an assessee in respect of the following assets” subs. by Act 19 of 1970, sec. 26(b)(i)(1), for “Wealth-tax shall not be payable by an assessee in respect of the following assets” (w.e.f. 1-4-1971).
2. The words “(1) Subject to the provisions of sub-section (1A)” omitted by Act 18 of 1992, sec. 92(a)(i) (w.e.f. 1-4-1993).
3. Added by Act 32 of 1985, sec. 37(a)(i) (w.e.f. 1-4-1986). The said proviso was substituted by Act 4 of 1988, sec. 160(1) (w.e.f. 1-4-1989) and the proviso so substituted by Act 4 of 1988 was omitted by Act 3 of 1989, sec. 95(r) (w.e.f. 1-4-1989).
4. The words “clause (22) or clause (22A) or” omitted by Act 21 of 1998, sec. 68(a) (w.e.f. 1-4-1999).
5. Subs. by Act 54 of 1972, sec. 5(a), for certain words (w.e.f. 9-9-1972).
6. Clauses (iv) to (xiii) omitted by Act 18 of 1992, sec. 92(a)(ii) (w.e.f. 1-4-1993). Earlier these clauses were amended by Act 14 of 1969, sec. 24(b) (w.r.e.f. 1-4-1969), by Act 19 of 1970, sec. 26(b)(i)(2) and (3) (w.r.e.f. 1-4-1971), by Act 42 of 1970, sec. 59 (w.r.e.f. 1-4-1965), by Act 32 of 1971, sec. 32(a)(i), (ii) and (iii) (w.e.f. 1-4-1972), by Act 20 of 1974, sec. 14(2)(a)(i), (ii) and (iii) (w.r.e.f. 1-4-1974), by Act 25 of 1975, sec. 27(a)(i) and (ii) (w.r.e.f. 1-4-1975), by Act 41 of 1975, sec. 83 (w.e.f. 1-4-1976), by Act 66 of 1976, sec. 27(2)(a) and (b) (w.e.f. 1-4-1977) and (w.e.f. 1-4-1975), by Act 24 of 1982, sec. 34(a)(i) and (ii) (w.e.f. 1-4-1983), by Act 11 of 1983, sec. 41(a) (w.e.f. 1-4-1984) and by Act 21 of 1984, sec. 34(a)(i)(1) (w.e.f. 1-4-1985).
7. Clause (xiv) re-numbered as clause (iv) by Act 18 of 1992, sec. 92(a)(ii) (w.e.f. 1-4-1993).
8. Ins. by Act 54 of 1972, sec. 5(b) (w.e.f. 9-9-1972).
9. Clauses (xv) to (xxxii) omitted by Act 18 of 1992, sec. 92(a)(ii) (w.e.f. 1-4-1993). Earlier these clauses were amended by Act 11 of 1958, sec. 14(b) (w.e.f. 28-4-1958), by Act 13 of 1960, sec. 14 (w.r.e.f. 1-4-1960), by Act 20 of 1962, sec. 12(1) (w.r.e.f. 1-4-1962), by Act 54 of 1962, sec. 5(1) (w.e.f. 13-12-1962), by Act 13 of 1963, sec. 21 (w.r.e.f. 1-4-1963), by Act 46 of 1964, sec. 5 (w.e.f. 1-4-1965), by Act 10 of 1965, sec. 70(1) (w.e.f. 11-5-1965), by Act 15 of 1965, sec. 20 (w.e.f. 11-9-1965), by Act 19 of 1968, sec. 32 (w.r.e.f. 1-4-1968), by Act 19 of 1970, sec. 26(b)(i)(4) and (5) (w.r.e.f. 1-4-1971), by Act 32 of 1971, sec. 32(a)(iv) (w.e.f. 1-4-1972), by Act 16 of 1972, sec. 45(a) (w.r.e.f. 1-4-1972) and 1-4-1973, by Act 25 of 1975, sec. 27(a)(iii), (iv) and (v) (w.r.e.f. 1-4-1973), by Act 66 of 1976, sec. 27(2)(c) and (d) (w.e.f. 1-4-1977), by Act 14 of 1982, sec. 34(a)(v) (w.e.f. 1-4-1983), by Act 11 of 1983, sec. 41(b) (w.e.f. 1-4-1984), by Act 21 of 1984, sec. 34(a)(i)(2) and (3) (w.e.f. 1-4-1984), by Act 37 of 1984, sec. 54(a)(i) (w.e.f. 1-9-1985), by Act 23 of 1986, sec. 40(a)(i) (w.r.e.f. 1-4-1986), by Act 11 of 1987, sec. 76 (w.e.f. 1-4-1986), by Act 4 of 1988, sec. 130(i) (w.e.f. 1-4-1988), by Act 26 of 1988, sec. 55(a) (w.r.e.f. 1-4-1988), by Act 3 of 1989, sec. 60(a) (w.e.f. 1-4-1989), by Act 13 of 1989, sec. 27(a) (w.r.e.f. 1-4-1989), by Act 12 of 1990, sec. 52 (w.e.f. 1-4-1991) and by Act 49 of 1991, sec. 73(a) (w.r.e.f. 1-4-1984) and sec. 73(b) (w.e.f. 1-10-1991).
10. Clause (xxxiii) re-numbered as clause (v) by Act 18 of 1992, sec. 92(a)(ii) (w.e.f. 1-4-1993). Earlier clauses (xxxiii) and (xxxiv) were inserted by Act 66 of 1976, sec. 27(3)(a) (w.e.f. 1-4-1977), and clause (xxxiii) was amended by Act 67 of 1984, sec. 54(a)(ii) (w.e.f. 1-4-1985) and by Act 23 of 1986, sec. 40(a)(ii) (w.r.e.f. 1-4-1986).
11. Ins. by Act 67 of 1984, sec. 54(a)(ii) (w.r.e.f. 1-4-1977).
12. Ins. by Act 23 of 1986, sec. 40(a)(ii)(A) (w.e.f. 1-4-1987).
13. Explanation re-numbered as Explanation 1 by Act 23 of 1986, sec. 40(a)(ii)(B) (w.r.e.f. 1-4-1977).
14. Ins. by Act 23 of 1986, sec. 40(a)(ii)(B) (w.r.e.f. 1-4-1977).
15. Clause (xxxiv) omitted by Act 18 of 1992, sec. 92(a)(ii) (w.e.f. 1-4-1993).
16. Subs. by Act 21 of 1998, sec. 68(b), for clause (vi) (w.e.f. 1-4-1999). Earlier clause (vi) was inserted by Act 38 of 1993, sec. 39 (w.e.f. 1-4-1994).
17. Sub-sections (1A) to (4) omitted by Act 18 of 1992, sec. 92(b) (w.e.f. 1-4-1993). Earlier sub-section (3) was amended by Act 13 of 1963, sec. 21(2) (w.r.e.f. 1-4-1963), sub-section (1A) was inserted by Act 19 of 1970, sec. 26(b)(ii) and sub-section (3) was amended by sec. 26(b)(iii) (w.e.f. 1-4-1971) and was amended by Act 32 of 1971, sec. 32(b) (w.r.e.f. 1-4-1972), by Act 16 of 1972, sec. 45(b) (w.e.f. 1-4-1973), sub-section (3) was amended by Act 16 of 1972, sec. 45(c) (w.e.f. 1-4-1973), by Act 20 of 1974, sec. 14(2)(b) (w.r.e.f. 1-4-1974), by Act 25 of 1975, sec. 27(b) and (c) (w.r.e.f. 1-4-1975), by Act 14 of 1982, sec. 34(b) and (c) (w.e.f. 1-4-1983), by Act 21 of 1984, sec. 34(a)(ii) and (iii) (w.e.f. 1-4-1985), by Act 67 of 1984, sec. 54(b) and (c) (w.e.f. 1-4-1985), by Act 32 of 1985, sec. 37(b) and (c) (w.e.f. 1-4-1986), by Act 23 of 1986, sec. 40(b) (w.r.e.f. 1-4-1986), by Act 4 of 1988, sec. 130(ii) (w.e.f. 1-4-1988), by Act 26 of 1988, sec. 55(b) and (c) (w.r.e.f. 1-4-1988), by Act 3 of 1989, sec. 60(b) and (c) (w.e.f. 1-4-1989) and by Act 13 of 1989, sec. 27(b) (w.e.f. 1-4-1990).
Section 6. Exclusion of assets and debts outside India.
1[In computing the net wealth of an individual who is not a citizen of India or of an individual] or a Hindu undivided family not resident in India or resident but not ordinarily resident in India, or of a company not resident in India during the year ending on the valuation date—
(i) the value of the assets and debts located outside India ; and
(ii) the value of the assets in India represented by any loans or debts owing to the assessee in any case where the interest, if any, payable on such loans or debts is not to be included in the total income of the assessee under 2[section 10] of the Income-tax Act; shall not be taken into account.
Explanation 1.—An individual or a Hindu undivided family shall be deemed to be not resident in India or resident but not ordinarily resident in India during the year ending on the valuation date if in respect of that year the individual or the Hindu undivided family, as the case may be, is not resident in India or resident but not ordinarily resident in India within the meaning of the Income-tax Act.
3[ Explanation 1A.—Where in the case of an individual the value of an asset in India is represented by any debt owing to him, being any moneys to his credit in a Non-resident (External) Account, the interest payable on which is not to be included in his total income under 4 [sub-clause (ii) of clause (4)] of section 10 of the Income-tax Act, the provisions of this section shall, in relation to such asset, apply subject to the modification that the reference in this section to an individual not resident in India shall be construed as a reference to a person resident outside India as defined in clause (q) of section 2 of the Foreign Exchange Regulation Act, 1973 (46 of 1973).]
Explanation 2.—A company shall be deemed to be resident in India during the year ending on the valuation date, if—
(a) it is a company formed and registered under the Companies Act, 1956 (1 of 1956), or is an existing company within the meaning of that Act; or
(b) during that year the control and management of its affairs is situated wholly in India .
——————————————–
1. Subs. by Act 11 of 1958, sec. 14(c), for “In computing the net wealth of an individual” (w.r.e.f. 1-4-1957).
2. Subs. by Act 46 of 1964, sec. 6, for “sub-section (3) of section 4” (w.e.f. 1-4-1965)
3. Ins. by Act 14 of 1982, sec. 35 (w.r.e.f. 1-4-1982).
4. Subs. by Act 3 of 1989, sec. 61, for “clause (4A)” (w.e.f. 1-4-1989).
Section 7. Value of assets how to be determined.
1[7. Value of assets how to be determined. —(1) Subject to the provisions of sub-section (2), the value of any asset, other than cash, for the purposes of this Act shall be its value as on the valuation date determined in the manner laid down in Schedule III.
(2) The value of a house belonging to the assessee and exclusively used by him for residential purposes throughout the period of twelve months immediately preceding the valuation date, may, at the option of the assessee, be taken to be the value determined in the manner laid down in Schedule III as on the valuation date next following the date on which he became the owner of the house or the valuation date relevant to the assessment year commencing on the Ist day of April, 1971, whichever valuation date is later.
2[***]
Explanation .—For the purposes of this sub-section,—
(i) where the house has been constructed by the assessee, he shall be deemed to have become the owner thereof on the date on which the construction of such house was completed:
(ii) “house” includes a part of a house being an independent residential unit.]
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1. Subs. by Act 3 of 1989, sec. 62, for section 7 (w.e.f. 1-4-1989). Earlier section 7 was amended by Act 46 of 1964, sec. 7 (w.e.f. 1-4-1965), by Act 45 of 1972, sec. 8 (w.e.f. 1-1-1973) and by Act 66 of 1976, sec. 27(3) (w.r.e.f. 1-4-1976).
2. Proviso omitted by Act 18 of 1992, sec. 93 (w.e.f. 1-4-1993).
Chapter III – Wealth-Tax Authorities
Section 8. Wealth-tax authorities and their jurisdiction
1[8. Wealth-tax authorities and their jurisdiction .—The income-tax authorities specified in section 116 of the Income-tax Act shall be the wealth-tax authorities for the purposes of this Act and every such authority shall exercise the powers and perform the functions of a wealth-tax authority under this Act in respect of any individual, Hindu undivided family or company, and for this purpose his jurisdiction under this Act shall be the same as he has under the Income-tax Act by virtue of orders or directions issued under section 120 of that Act (including orders or directions assigning concurrent jurisdiction) or under any other provision of that Act.
Explanation. —For the purposes of this section, the wealth-tax authority having jurisdiction in relation to a person who is not an assessee within the meaning of the Income-tax Act shall be the wealth-tax authority having jurisdiction in respect of the area in which that person resides.]
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1. Subs. by Act 4 of 1988, sec. 131, for section 8 (w.e.f. 1-4-1988). Earlier section 8 was amended by Act 20 of 1967, sec. 34(b) (w.r.e.f. 1-4-1967) and by Act 41 of 1975, sec. 84 (w.e.f. 1-4-1976).
Section 8 A. Powers of Commissioner respecting specified areas, cases, persons, etc.
1[8A. Powers of Commissioner respecting specified areas, cases, persons, etc.—[Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988).]]
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1. Sections 8A was earlier inserted by Act 46 of 1964, sec. 9 (w.e.f. 1-4-1965), and was amended by Act 20 of 1967, sec. 34(c) (w.r.e.f. 1-4-1967) and was substituted by Act 67 of 1984, sec. 55 (w.e.f. 1-10-1984).
Section 8 AA. Concurrent jurisdiction of Inspecting Assistant Commissioner and Wealth-tax Officer.
1[8AA. Concurrent jurisdiction of Inspecting Assistant Commissioner and Wealth-tax Officer.—[Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988).]]
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1. Section 8AA was earlier inserted by Act 41 of 1975, sec. 85 (w.e.f. 1-10-1975)
Section 8 B. Power to transfer cases.
1[8B. Power to transfer cases.—[Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988).]]
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1. Section 8B was earlier inserted by Act 20 of 1967, sec. 34 (c) (w.r.e.f. 1-4-1967).
Section 9. Control of wealth-tax authorities.
1[9. Control of wealth-tax authorities.—Section 118 of the Income-tax Act and any notification issued thereunder shall apply in relation to the control of wealth-tax authorities as they apply in relation to the control of the corresponding income-tax authorities, except to the extent to which the Board may, by notification in the Official Gazette, otherwise direct in respect of any wealth-tax authority.]
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1. Subs. by Act 4 of 1988, sec. 131, for sections 9 and 10 (w.e.f. 1-4-1988).
Section 9 A. Commissioner of wealth-tax (Appeals).
1[9A. Commissioner of wealth-tax (Appeals).—[Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988).]]
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1. Section 9A was earlier inserted by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
Section 10. Instructions to subordinate authorities.
1[10. Instructions to subordinate authorities. —(1) The Board may, from time to time, issue such orders, instructions and directions to other wealth-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board:
Provided that no such orders, instructions or directions shall be issued—
(a) so as to require any wealth-tax authority 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 Deputy Commissioner (Appeals) or Commissioner (Appeals) in the exercise of his appellate functions.
(2) Without prejudice to the generality of the foregoing power,—
(a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 2[14, 15, 16, 17, 17B], 18 and 35 or otherwise), general or special orders in respect of any class of cases, setting forth directions or instructions (not being prejudicial to assessees) as to the guidelines, principles or procedures to be followed by other wealth-tax authorities in the work relating to assessment or collection of revenue or the initiation of proceedings for the imposition of penalties and any such order may, if the Board is of opinion that it is necessary in the public interest so to do, be published and circulated in the prescribed manner for general information;
(b) the Board may, if it considers it desireable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise any wealth-tax authority not being a Deputy Commissioner (Appeals) or Commissioner (Appeals), to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law.]
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1. Subs. by Act 4 of 1988, sec. 131, for sections 9 and 10 (w.e.f. 1-4-1988).
2. Subs. by Act 12 of 1990, sec. 53, for “16, 17” (w.r.e.f. 1-4-1990).
Section 10A. Directors of Inspection.
1[10A. Directors of Inspection.—[Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988).]]
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1. Section 10A was earlier inserted by Act 46 of 1964, sec. 10 (w.e.f. 1-4-1965).
Section 11. Jurisdiction of Assessing Officers and power to transfer cases.
1[11. Jurisdiction of Assessing Officers and power to transfer cases. —(1) The provisions of sections 124 and 127 of the Income-tax Act shall, so far as may be, apply for the purposes of this Act as they apply for the purposes of the Income-tax Act, subject to the modifications specified in sub-section (2).
(2) The modifications referred to in sub-section (1) shall be the following, namely:—
(a) in section 124 of the Income-tax Act,—
(i) in sub-section (3), references to the provisions of the Income-tax Act shall be construed as references to the corresponding provisions of the Wealth-tax Act;
(ii) sub-section (5) shall be omitted:
(b) in section 127 of the Income-tax Act, in the Explanation below sub-section 2[(4)], references to proceedings under the Income-tax Act shall be construed as including references to proceedings under the Wealth-tax Act.]
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1. Subs. by Act 4 of 1988, sec. 131, for section 11 (w.e.f. 1-4-1988).
2. Subs. by Act 3 of 1989, sec. 63, for “(5)” (w.r.e.f. 1-4-1988).
Section 11 A. Inspector of Wealth-tax.
1[11A. Inspector of Wealth-tax. —[ Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988). ]]
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1. Sections 11A and 12 were earlier substituted by Act 46 of 1964, sec. 11, for section 12 (w.e.f. 1-4-1965) and section 11A was substituted by Act 20 of 1967, sec. 35(f) (w.e.f. 1-4-1967).
Section 11 AA. Commissioner Competent to perform any function or functions.
1[11AA. Commissioner Competent to perform any function or functions. —[ Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988). ]]
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1. Section 11AA was earlier inserted by Act of 1970 sec. 26 (c) (w.r.e.f. 1-4-1970)
Section 11 B. Wealth-tax Officers Competent to perform any function or functions.
1[11B. Wealth-tax Officers Competent to perform any function or functions. —[ Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988). ]]
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1. Section 11B was earlier inserted by Act 20 of 1967, sec. 34(g) (w.e.f. 1-4-1967) and was amended by Act 41 of 1975, sec. 87 (w.e.f. 1-10-1975).
Section 12. Control of wealth-tax authorities.
1[12. Control of wealth-tax authorities. —[ Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 132 (w.e.f. 1-4-1988). ]]
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1. Sections 11A and 12 were earlier substituted by Act 46 of 1964, sec. 11, for section 12 (w.e.f. 1-4-1965) and section 11A was substituted by Act 20 of 1967, sec. 35(f) (w.e.f. 1-4-1967).
Section 12 A. Appointment of Valuation Officers.
1[12A. Appointment of Valuation Officers. —(1) The Centeral Government may appoint as many Valuation Officers as it thinks fit.
(2) Subject to the rules and orders of the Centeral Government regulating the conditions of service of persons in public services and posts, a wealth-tax authority may appoint as many overseers, surveyors and assessors as may be necessary to assist the Valuation Officers in the performance of their functions.]
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1. Ins. by Act 45 of 1972, sec. 9 (w.e.f. 15-11-1972).
Section 13. Wealth-tax authorities to follow orders, etc., of the Board.
1[13. Wealth-tax authorities to follow orders, etc., of the Board. —[ Rep. by the Direct Tax Laws (Amendment) Act, 1987 (14 of 1988), sec. 132 (w.e.f. 1-4-1988). ]]
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1. Earlier section 13 was amended by Act 46 of 1964, sec. 12 (w.e.f. 1-4-1965).
Section 13 A. Powers of [Director-General or Director], [Chief Commissioner or Commissioner] and [Joint Commissioner] to make enquiries.
1[13A. Powers of 2[Director-General or Director], 3[Chief Commissioner or Commissioner] and 4[Joint Commissioner] to make enquiries. —The 2[Director-General or Director], the 5[Chief Commissioner or Commissioner] and the 6 [Joint Commissioner] shall be competent to make any enquiry under this Act, and for this purpose shall have all the powers that 7[an Assessing Officer] has under this Act in relation to the making of enquiries.]
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1. Ins. by Act 46 of 1964, sec. 13 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Director of Inspection” (w.e.f. 1-4-1988).
3. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
4. Subs. by Act 4 of 1988, sec. 127, for “Inspecting Assistant Commissioner” (w.e.f. 1-4-1988).
5. Subs. by Act 4 of 1988, sec. 127, for “Commissioner of Wealth-tax” (w.e.f. 1-4-1988).
6. Subs. by Act 4 of 1988, sec. 127, for “Inspecting Assistant Commissioner of Wealth-tax” (w.e.f. 1-4-1988).
7. Subs. by Act 4 of 1988, sec. 127, for “a Wealth-tax Officer” (w.e.f. 1-4-1988).
Chapter IV – Assessment
Section 14. Return of Wealth.
1[(1) Every person, if his net wealth or the net wealth of any other person in respect of which he is assessable under this Act on the valuation date exceeded the maximum amount which is not chargeable to wealth-tax, shall, on or before the due date, furnish a return of his net wealth or the net wealth of such other person as on that valuation date in the prescribed form and verified in the prescribed manner setting forth particulars of such net wealth and such other particulars as may be prescribed.
Explanation .—In this sub-section, “due date” in relation to an assessee under this Act shall be the same date as that applicable to an assessee under the Income-tax Act under the Explanation to sub-section (1) of section 139 of the Income-tax Act.
(2) Notwithstanding anything contained in any other provision of this Act, a return of net wealth which shows the net wealth below the maximum amount which is not chargeable to tax shall be deemed never to have been furnished:
Provided that this sub-section shall not apply to a return furnished in response to a notice under section 17.]
2[***]
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1. Subs. by Act 4 of 1988, sec. 133(a), for sub-sections (1) and (2) (w.e.f. 1-4-1989). Earlier sub-section (2) was amended by Act 58 of 1960, sec. 3 and Second Schedule (w.e.f. 26-12-1960), by Act 46 of 1964, sec. 14(b) (w.e.f. 1-4-1965) and sub-section (1) was substituted by Act 46 of 1964, sec. 14(a) (w.e.f. 1-4-1965).
2. Sub-section (3) omitted by Act 4 of 1988, sec. 133(b) (w.e.f. 1-4-1989).
The Wealth-Tax Act, 1957
[Section 15. Return after due date and amendment of return.
1[15. Return after due date and amendment of return. —If any person has not furnished a return within the time allowed under sub-section (1) of section 14 or under a notice issued under clause (i) of sub-section (4) of section 16, or having furnished a return discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier:
Provided that—
(a) where such return or revised return relates to the assessment year commencing on the 1st day of April, 1987, or any earlier assessment year, it may be furnished at any time upto and inclusive of the 31st day of March, 1990, or before the completion of the assessement, whichever is earlier;
(b) where such return or revised return relates to the assessment year commencing on the 1st day of April, 1988, it may be furnished at any time upto and inclusive of the 31st day of March, 1991, or before the completion of the assessment, whichever is earlier.]
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1. Subs. by Act 4 of 1988, sec. 134, for section 15 (w.e.f. 1-4-1989).
Section 15 A. Return by whom to be signed.
1[15A. Return by whom to be signed. —The return made under section 14 or section 15 shall be signed and verified—
2[(a) in the case of an individual,—
(i) by the individual himself;
(ii) where he is absent from India , by the individual himself or by some person duly authorised by him in this behalf;
(iii) where he is mentally incapacitated from attending to his affairs, by his guardian or any other person competent to act on his behalf; and
(iv) where, for any other reason, it is not possible for the individual to sign the return, by any person duly authorised by him in this behalf:
Provided that in a case referred to in sub-clause (ii) or sub-clause (iv), the person signing the return holds a valid power of attorney from the individual to do so, which shall be attached to the return;]
(b) in the case of a Hindu undivided family, by the karta, and, where the karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family; and
3[(c) in the case of a company, by the managing director thereof, or where for any unavoidable reason such managing director is not able to sign and verify the return or where there is no managing director, by any director thereof:]]
4[Provided that where the company is not resident in India, the return may be signed and verified by a person who holds a valid power of attorney from such company to do so, which shall be attached to the return:
Provided further that,—
(a) where the company is being wound up, whether under the orders of the court or otherwise, or where any person has been appointed as the receiver of any assets of the company, the return shall be signed and verified by the liquidator referred to in sub-section (1) of section 178 of the Income-tax Act;
(b) where the management of the company has been taken over by the Central Government or any State Government under any law, the return of the company shall be signed and verified by the principal officer thereof.]
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1. Ins. by Act 46 of 1964, sec. 15 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 135(i), for clause (a) (w.e.f. 1-4-1989).
3. Subs. by Act 41 of 1975, sec. 88, for clause (c) (w.e.f. 1-4-1976).
4. Ins. by Act 4 of 1988, sec. 135(ii) (w.e.f. 1-4-1989).
Section 15 B. Self-assessment .
1[15B. Self-assessment .—(1) Where any tax is payable on the basis of any return furnished under section 14 or section 15 or in response to a notice under clause (i) of sub-section (4) of section 16 or under section 17, after taking into account the amount of tax, if any, already paid under any provision of this Act, the assessee shall be liable to pay such tax, together with interest payable under any provision of this Act for any delay in furnishing the return, before furnishing the return and the return shall be accompanied by proof of payment of such tax and interest.
Explanation .—Where the amount paid by the assessee under this sub-section falls short of the aggregate of the tax and interest as aforesaid, the amount so paid shall first be adjusted towards the interest payable as aforesaid and the balance, if any, shall be adjusted towards the tax payable.
(2) After the regular assessment under section 16 has been made, any amount paid under sub-section (1) shall be deemed to have been paid towards such regular assessment.
(3) If any assessee fails to pay the whole or any part of such tax or interest or both in accordance with the provisions of sub-section (1), he shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of the tax or interest or both remaining unpaid and all the provisions of this Act shall apply accordingly.]
2[(4) The provisions of this section as they stood immediately before their amendment by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year and references in this section to the other provisions of this Act shall be construed as references to those provisions as for the time being in force and applicable to the relevant assessment year.]
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1. Subs. by Act 4 of 1988, sec. 136, for section 15B (w.e.f. 1-4-1989). Earlier section 15B was inserted by Act 46 of 1964, sec. 15 (w.e.f. 1-4-1965) and was amended by Act 42 of 1970, sec. 69 (w.e.f. 1-4-1971) and by Act 41 of 1975, sec. 89 (w.e.f. 1-4-1976).
2. Ins. by Act 36 of 1989, sec. 27 (w.r.e.f. 1-4-1989).
Section 15 C. Provisional Assessment.
1[15C. Provisional Assessment. —[ Rep. by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), sec. 137 (w.e.f. 1-4-1989). ]]
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1. Section 15C was earlier inserted by Act 46 of 1964, sec. 15 (w.e.f. 1-4-1965).
Section 16. Assessment.
1[16. Assessment. — 2[(1) Where a return has been made under section 14 or section 15 or in response to a notice under clause (i) of sub-section (4),—
(i) if any tax or interest is found due on the basis of such return, after adjustment of any amount paid by way of tax or interest, then, without prejudice to the provisions of sub-section (2), an intimation shall be sent to the assessee specifying the sum so payable and such intimation shall be deemed to be a notice of demand issued under section 30 and all the provisions of this Act shall apply accordingly; and
(ii) if any refund is due on the basis of such return, it shall be granted to the assessee and an intimation to this effect shall be sent to the assessee:
Provided that except as otherwise provided in this sub-section, the acknowledgement of the return shall be deemed to be intimation under this sub-section where either no sum is payable by the assessee or no refund is due to him:
Provided further that no intimation under this sub-section shall be sent after the expiry of two years from the end of the assessment year in which the net wealth was first assessable.]
3[***]
4[***]
(2) 5[Where a return has been made under section 14 or section 15, or in response to a notice under clause (i) of sub-section (4) of this section, the Assessing Officer shall, if he] considers it necessary or expedient to ensure that the assessee has not understated the net wealth or has not under-paid the tax in any manner 6[serve on the assessee] a notice requiring him, on a date to be specified therein, either to attend at the office of the Assessing Officer or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return:
7[Provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished.]
(3) On the day specified in the notice issued under sub-section (2) or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by order in writing, assess the net wealth of the assessee and determine the sum payable by him on the basis of such assessment.
(4) For the purposes of making an assessment under this Act, the Assessing Officer may serve, on any person who has made a return under section 14 or section 15 or in whose case the time allowed under sub-section (1) of section 14 for furnishing the return has expired, a notice requiring him, on a date to be specified therein—
(i) where such person has not made a return 8[within the time allowed under sub-section (1) of section 14] to furnish a return of his net wealth or the net wealth of any other person in respect of which he is assessable under this Act on the valuation date, in the prescribed form and verified in the prescribed manner, setting forth the particulars of such net wealth and such other particulars as may be prescribed, or
(ii) to produce or cause to be produced such accounts, records or other documents as the Assessing Officer may require.
(5) If any person—
(a) fails to make the return required under sub-section (1) of section 14 and has not made a return or a revised return under section 15, or
(b) fails to comply with all the terms of a notice issued under sub-section (2) or sub-section (4), the Assessing Officer, after taking into account, all relevant material which he has gathered, shall, after giving such person an opportunity of being heard, estimate the net wealth to the best of his judgment and determine the sum payable by the person on the basis of such assessment:
Provided that such opportunity shall be given by the Assessing Officer by serving a notice calling upon the person to show cause, on a date and time to be specified in the notice, why the assessment should not be completed to the best of his judgment:
Provided further that it shall not be necessary to give such opportunity in a case where a notice under sub-section (4) has been issued prior to the making of the assessment under this sub-section.]
9[(6) Where a regular assessment under sub-section (3) or sub-section (5) is made—
(a) any tax or interest paid by the assessee under sub-section (1) shall be deemed to have been paid towards such regular assessment.
(b) if no refund is due on regular assessment or the amount refunded under sub-section (1) exceeds the amount refundable on regular assessment, the whole or the excess amount so refunded shall be deemed to be tax payable by the assessee and the provisions of this Act shall apply accordingly.]
10[***]
11[***]
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1. Subs. by Act 4 of 1988, sec. 138, for section 16 (w.e.f. 1-4-1989). Earlier section 16 was amended by Act 46 of 1964, sec. 16 (w.e.f. 1-4-1965).
2. Subs. by Act 27 of 1999, sec. 92(a), for sub-section (1) (w.r.e.f. 1-6-1999). Earlier sub-section (1) was amended by Act 3 of 1989, sec. 64(a) (w.e.f. 1-4-1989) and by Act 36 of 1989, sec. 28(a) and (b) (w.r.e.f. 1-4-1989).
3. Sub-section (1A) omitted by Act 27 of 1999, sec. 92(b) (w.e.f. 1-6-1999). Earlier sub-section (1A) was inserted by Act 3 of 1989, sec. 64(b) (w.e.f. 1-4-1989).
4. Sub-section (1B) omitted by Act 27 of 1999, sec. 92(c) (w.e.f. 1-6-1999). Earlier sub-section (1B) was inserted by Act 12 of 1990, sec.
54(a) (w.r.e.f. 1-4-1989)
5. Subs. by Act 36 of 1989, sec. 28(c)(i) for “In a case referred to in sub-section (1), if the Assessing Officer” (w.r.e.f. 1-4-1989).
6. Subs. by Act 36 of 1989, sec. 28(c) (ii), for “he shall serve on the assessee” (w.r.e.f. 1-4-1989).
7. Subs. by Act 49 of 1991, sec. 74(a), for the proviso (w.e.f. 1-10-1991).
8. Subs. by Act 12 of 1990, sec. 54(b), for “before the end of the relevant assessment year” (w.e.f. 1-4-1990).
9. Ins. by Act 36 of 1989, sec. 28(d) (w.r.e.f. 1-4-1989).
10. Sub-section (7) omitted by Act 27 of 1999, sec. 92(d) (w.e.f. 1-6-1999). Earlier sub-section (7) was inserted by Act 36 of 1989, sec. 28(d) (w.r.e.f. 1-4-1989).
11. Explanation omitted by Act 27 of 1999, sec. 92(e) (w.e.f. 1-6-1999). Earlier Explanation was inserted by Act 49 of 1991, sec. 74(b) (w.e.f. 1-10-1991).
Section 16 A. Reference to Valuation Officer.
1[16A. Reference to Valuation Officer. —(1) For the purpose of making an assessment (including an assessment in respect of any assessment year commencing before the date of coming into force of this section) under this Act, 2 [where under the provisions of section 7 read with the rules made under this Act or, as the case may be, the rules made in Schedule III, the market value of any asset is to be taken into account in such assessment,] the 3[Assessing Officer] may refer the valuation of any asset to a Valuation Officer—
(a) in a case where the value of the asset as returned is in accordance with the estimate made by a registered valuer, if the 3[Assessing Officer] is of opinion that the value so returned is less than its fair market value;
(b) in any other case, if the 3[Assessing Officer] is of opinion—
(i) that the fair market value of the asset exceeds the value of the asset as returned by more than such percentage of the value of the asset as returned or by more than such amount as may be prescribed in this behalf; or
(ii) that having regard to the nature of the asset and other relevant circumstances, it is necessary so to do.
(2) For the purpose of estimating the value of any asset in pursuance of a reference under sub-section (1), the Valuation Officer may serve on the assessee a notice requiring him to produce or cause to be produced on a date specified in the notice such accounts, records or other documents as the Valuation Officer may require.
(3) Where the Valuation Officer is of opinion that the value of the asset has been correctly declared in the return made by the assessee under section 14 or section 15, he shall pass an order in writing to that effect and send a copy of his order to the 3[Assessing Officer] and to the assessee.
(4) Where the Valuation Officer is of opinion that the value of the asset is higher than the value declared in the return made by the assessee under section 14 or section 15, or where the asset is not disclosed or the value of the asset is not declared in such return or where no such return has been made, the Valuation Officer shall serve a notice on the assessee intimating the value which he proposes to estimate and giving the assessee an opportunity to state, on a date to be specified in the notice, his objections either in person or in writing before the Valuation Officer and to produce or cause to be produced on that date such evidence as the assessee may rely in support of his objections.
(5) On the date specified in the notice under sub-section (4), or as soon thereafter as may be, after hearing such evidence as the assessee may produce and after considering such evidence as the Valuation Officer may require on any specified points and after taking into account all relevant material which he has gathered, the Valuation Officer shall, by order in writing, estimate the value of the asset and send a copy of his order to the 3[Assessing Officer] and to the assessee.
(6) On receipt of the order under sub-section (3) or sub-section (5) from the Valuation Officer, the 3 [Assessing Officer] shall, so far as the valuation of the asset in question is concerned, proceed to complete the assessment in conformity with the estimate of the Valuation Officer.] ]
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1. Ins. by Act 45 of 1972, sec. 10 (w.e.f. 1-1-1973).
2. Ins. by Act 3 of 1989, sec. 65 (w.e.f. 1-4-1989).
3. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
Section 17. Wealth escaping assessment.
17. Wealth escaping assessment. —1[(1) If the Assessing Officer 2[has reason to believe] that the net wealth chargeable to tax in respect of which any person is assessable under this Act has escaped assessment for any assessment year (whether by reason of under-assessment or assessment at too low a rate or otherwise], he may, subject to the other provisions of this section and section 17A, serve on such person a notice requiring him to furnish within such period, 3[***] as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth the net wealth in respect of which such person is assessable as on the valuation date mentioned in the notice, along with such other particulars as may be required by the notice, and may proceed to assess or reassess such net wealth and also any other net wealth chargeable to tax in respect of which such person is assessable, which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section for the assessment year concerned (hereafter in this section referred to as the relevant assessment year), and the provisions of this Act shall, so far as may be, apply as if the return were a return required to be furnished under section 14:
Provided that where an assessment under sub-section (3) of section 16 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any net wealth chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 14 or section 15 or in response to a notice issued under sub-section (4) of section 16 or this section or to disclose fully and truly all material facts necessary for his assessment for that assessment year:
4[Provided further that the Assessing Officer shall, before issuing any notice under this sub-section, record his reasons for doing so:]
5[Provided also that the Assessing Officer may assess or reassess such net wealth, other than the net wealth which is the subject matter of any appeal, reference or revision, which is chargeable to tax and has escaped assessment.]
Explanation .—Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso.]
(1A) No notice under sub-section (1) shall be issued for the relevant assessment year,—
6[(a) if four years have elapsed from the end of the relevant assessment year unless the case falls under clause (b);
(b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the net wealth chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees ten lakh or more for that year.]
Explanation. —For the purposes of sub-section (1) and sub-section (1A), the following shall also be deemed to be cases where net wealth chargeable to tax has escaped assessment, namely:—
(a) where no return of net wealth has been furnished by the assessee although his net wealth or the net wealth of any other person in respect of which he is assessable under this Act on the valuation date exceeded the maximum amount which is not chargeable to wealth-tax;
(b) where a return of net wealth has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the net wealth or has claimed excessive exemption or deduction in the return.
(1B) (a) In a case where an assessment under sub-section (3) of section 16 or sub-section (1) of this section has been made for the relevant assessment year, no notice shall be issued under sub-section (1) 7[by an Assessing Officer, who is below the rank of 8[Assistant Commissioner or Deputy Commissioner], unless the 9 [Joint Commissioner] is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice]:
Provided that after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the Chief Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid, that it is a fit case for the issue of such notice.
(b) In a case other than a case falling under clause (a), no notice shall be issued under sub-section (1) by an Assessing Officer, who is below the rank of 9[Joint Commissioner], after the expiry of four years from the end of the relevant assessment year, unless the 9[Joint Commissioner] is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice.]
10[ Explanation. —For the removal of doubts, it is hereby declared that the Joint Commissioner, the Commissioner or the Chief Commissioner, as the case may be, being satisfied on the reasons recorded by the Assessing Officer about fitness of a case for the issue of notice, need not issue such notice himself.]
11[(2) Nothing contained in this section limiting the time within which any proceeding for assessment or reassessment may be commenced, shall apply to an assessment or reassessment to be made on such person in consequence of or to give effect to any finding or direction contained in an order under section 23, 24, 25, 27 or 29 12[or by a court in any proceedings under any other law]:
Provided that the provisions of this sub-section shall not apply in any case where any such assessment or reassessment relates to an assessment year in respect of which an assessment or reassessment could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any provision limiting the time within which any action for assessment of reassessment may be taken.]
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1. Subs. by Act 4 1988, sec. 139(a), for sub-section (1) (w.e.f. 1-4-1989). Earlier sub-section (1) was amended by Act 46 of 1964, sec. 17 (w.e.f. 1-4-1965).
2. Subs. by Act 3 of 1989, sec.66(a), for “for reasons to be recorded by him in writing, is of the opinion” (w.e.f. 1-4-1989).
3. The words “not being less than thirty days,” omitted by Act 32 of 2003, sec. 100 (w.r.e.f. 1-4-1989).
4. Ins. by Act 3 of 1989, sec. 66(b) (w.e.f. 1-4-1989).
5. Ins. by the Finance Act, 2008 , sec. 60(a) (w.r.e.f. 1-4-2008).
6. Subs. by Act 14 of 2001, sec. 96, for clauses (a) and (b) (w.e.f. 1-6-2001).
7. Subs. by Act 12 of 1990, sec. 55, for certain words (w.r.e.f. 1-4-1990).
8. Subs. by Act 21 of 1998, sec. 66, for “Deputy Commissioner” (w.e.f. 1-10-1998).
9. Subs. by Act 21 of 1998, sec. 66, for “Assistant Commissioner” (w.e.f. 1-10-1998).
10. Ins. by the Finance Act, 2008 , sec. 60(b) (w.r.e.f. 1-10-1998).
11. Ins. by Act 46 of 1964, sec. 17(b) (w.e.f. 1-4-1965).
12. Ins. by Act 4 of 1988, sec. 139(b) (w.e.f. 1-4-1989).
Section 17 A. Time-limit for completion of assessment and reassessment.
1[17A. Time-limit for completion of assessment and reassessment. —
2[(1) No order of assessment shall be made under section 16 at any time after the expiry of two years from the end of the assessment year in which the net wealth was first assessable:
3[Provided that,—
(a) where the net wealth was first assessable in the assessment year commencing on the 1st day of April, 1987, or any earlier assessment year, such assessment may be made on or before the 31st day of March, 1991;
(b) where the net wealth was first assessable in the assessment year commencing on the 1st day of April, 1988, such assessment may be made on or before the 31st day of March, 1992.]
4[Provided further that in case the assessment year in which the net wealth was first assessable is the assessment year commencing on the 1st day of April, 2004 or any subsequent year, the provisions of this sub-section shall have effect as if for the words “two years”, the words “twenty-one months” had been substituted]
(2) No order of assessment or reassessment shall be made under section 17 after the expiry of 5[one year] from the end of the financial year in which the notice under sub-section (1) of that section was served:
6[Provided that where the notice under sub-section (1) of section 17 was served on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such assessment or reassessment may be made at any time up to the 31st day of March, 2002:]
7[Provided further that where the notice under sub-section (1) of section 17 was served on or after the 1st day of April, 2005, the provisions of this sub-section shall have effect as if for the words “one year”, the words “nine months” had been substituted.]
8[***]]
(3) Notwithstanding anything contained in sub-sections (1) and (2), an order of fresh assessment in pursuance of an order passed on or after the 1st day of April, 1975, under section 9[23A], section 24 or section 25, setting aside or cancelling an assessment, may be made at any time before the expiry of 10[one year] from the end of the financial year in which the order under section 9[23A] or section 24 is received by the 11[Chief Commissioner or
Commissioner] or, as the case may be, the order under section 25 is passed by the Commissioner:
12[Provided that where the order under section 23A or section 24 is received by the Chief Commissioner or Commissioner or, as the case may be, the order under section 25 is passed by the Commissioner, on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such an order of fresh assessment may be made at any time up to the 31st day of March, 2002:]
13[Provided further that where the order under section 23A or section 24 is received by the Chief Commissioner or Commissioner or, as the case may be, the order under section 25 is passed by the Commissioner, on or after the 1st day of April, 2005, the provisions of this sub-section shall have effect as if for the words “one year”, the words “nine months” had been substituted.]
(4) The provisions of sub-sections (1) and (2) shall not apply to the assessment or reassessment made on the assessee or any other person in consequence of, or to give effect to, any finding or direction contained in an order under section 23, section 24, section 25, section 27 or section 29 or in an order of any court in a proceeding otherwise than by way of appeal or reference under this Act, and such assessment or reassessment may, subject to the provisions of sub-section (3), be completed at any time.
Explanation 1.—In computing the period of limitation for the purposes of this section—
(i) the time taken in reopening the whole or any part of the proceeding or in giving an opportunity to the assessee to be reheard under the proviso to section 39, or
(ii) the period during which the assessment proceeding is stayed by an order or injunction of any court, or
14[(iia) the period (not exceeding sixty days) commencing from the date on which the 15[Assessing Officer] received the declaration under sub-section (1) of section 18C and ending with the date on which the order under sub-section (3) of that section is made by him, or]
(iii) in a case where an application made before the Wealth-tax Settlement Commissioner under section 22C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which such application is made and ending with the date on which the order under sub-section (1) of section 22D is received by the 16Chief Commissioner or Commissioner] under sub-section (2) of that section, shall be excluded:
17[Provided that where immediately after the exclusion of the aforesaid time or period, the period of limitation referred to in sub-sections (1), (2) and (3) available to the Assessing Officer, for making an order of assessment or reassessment, as the case may be, is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to be extended accordingly:
18[Provided further that where a proceeding before the Settlement Commission abates under section 22HA, the period of limitation referred to in this section available to the Assessing Officer for making an order of assessment or reassessment, as the case may be, shall, after the exclusion of the period under sub-section (4) of section 22HA, be not less than one year; and where such period of limitation is less than one year, it shall be deemed to be extended to one year.]
Explanation 2. —Where, by an order referred to in sub-section (4), any asset is exclued from the net wealth of one person and held to be the asset of another person, then, an assessment in respect of such asset on such other person shall, for the purposes of sub-section (2) of section 17 and this section, be deemed to be one made in consequence of, or to give effect to, any finding or direction contained in the said order, provided such other person was given an opportunity of being heard before the said order was passed.]
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1. Ins. by Act 41 of 1975, sec. 90 (w.e.f. 1-1-1976).
2. Subs. by Act 4 of 1988, sec. 140(a), for sub-sections (1) and (2) (w.e.f. 1-4-1989).
3. Subs. by Act 13 of 1989, sec. 28, for the proviso (w.e.f. 1-4-1989).
4. Ins. by Act 21 of 2006, sec. 57(a) (w.e.f. 1-6-2006).
5. Subs. by Act 14 of 2001, sec. 97(a)(i), for “two years” (w.e.f. 1-6-2001).
6. Subs. by Act 14 of 2001, sec. 97(a)(ii), for the proviso (w.e.f. 1-6-2001).
7. Ins. by Act 21 of 2006, sec. 57(b) (w.e.f. 1-6-2006).
8. Explanation omitted by Act 14 of 2001, sec. 97(a)(iii) (w.e.f. 1-6-2001).
9. Subs. by Act 14 of 2001, sec. 97(b)(ii), for “23” (w.e.f. 1-6-2001).
10. Subs. by Act 14 of 2001, sec. 97(b)(i), for “two years” (w.e.f. 1-6-2001). Earlier the words “two years” were substituted by Act 4 of 1988, sec. 140(b)(i), for the words “four years” (w.e.f. 1-4-1989).
11. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1989).
12. Subs. by Act 14 of 2001, sec. 97(b)(iii), for the proviso (w.e.f. 1-6-2001). Earlier the proviso was inserted by Act 4 of 1988, sec. 140(b)(ii) (w.e.f. 1-4-1989).
13. Ins. by Act 21 of 2006, sec. 57(c) (w.e.f. 1-6-2006). 14. Ins. by Act 67 of 1984, sec. 56 (w.e.f. 1-10-1984).
15. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
16. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
17. Ins. by Act 49 of 1991, sec. 75 (w.e.f. 27-9-1991). 18. Ins. by the Finance Act, 2008 , sec. 61 (w.r.e.f. 1-6-2007).
Section 17 B. Interest for defaults in furnishing return of net wealth.
1[17B. Interest for defaults in furnishing return of net wealth. —(1) Where the return of net wealth for any assessment year under sub-section (1) of section 14 or section 15, or in response to a notice under clause (i) of sub-section (4) of section 16, is furnished after the due date, or is not furnished, the assessee shall be liable to pay simple interest at the rate of 2[ 3[one per cent.]] for every month or part of a month comprised in the period commencing on the date immediately following the due date, and,—
(a) where the return is furnished after the due date, ending on the date of furnishing of the return, or
(b) where no return has been furnished, ending on the date of completion of the assessment under sub-section (5) of section 16, on the amount of tax payable on the net wealth as determined 4[under sub- section (1) of section 16 or] on regular assessment.
Explanation 1.— In this section, “due date” means the date specified in sub-section (1) of section 14 as applicable in the case of the assessee.
5[ Explanation 2.— In this sub-section, “tax payable on the net wealth as determined under sub-section (1) of section 16” shall not include the additional wealth-tax, if any, payable under section 16.]
Explanation 3. —Where, in relation to an assessment year, an assessment is made for the first time under section 17, the assessment so made shall be regarded as a regular assessment for the purposes of this section.
6[ Explanation 4. —In this sub-section, “tax payable on the net wealth as determined under sub-section (1) of section 16 or on regular assessment” shall, for the purposes of computing the interest payable under section 15B, be deemed to be tax payable on the net wealth as declared in the return.]
(2) The interest payable under sub-section (1) shall be reduced by the interest, if any, paid under section 15B towards the interest chargeable under this section.
(3) Where the return of net wealth for any assessment year, required by a notice under sub-section (1) of section 17 issued 7[after the determination of net wealth under sub-section (1) of section 16 or] after the completion of an assessment under sub-section (3) or sub-section (5) of section 16 or section 17 is furnished after the expiry of the time allowed under such notice, or is not furnished, the assessee shall be liable to pay simple interest at the rate of 8[9[one per cent.]] for every month or part of a month comprised in the period commencing on the day immediately following the expiry of the time allowed as aforesaid, and,—
(a) where the return is furnished after the expiry of the time aforesaid, ending on the date of furnishing the return; or
(b) where no return has been furnished, ending on the date of completion of the reassessment under section 17, on the amount by which the tax on the net wealth determined on the basis of such reassessment exceeds the tax on the net wealth as determined 10 [under sub-section (1) of section 16 or] on the basis of the earlier assessment aforesaid.
11[***]
(4) Where, as a result of an order under section 23 or section 24 or section 25 or section 27 or section 29 or section 35 or any order of the Wealth-tax Settlement Commissioner under sub-section (4) of section 22D, the amount of tax on which interest was payable under this section has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and,—
(i) in a case where the interest is increased, the Assessing Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be a notice under section 30 and the provisions of this Act shall apply accordingly, and
(ii) in a case where the interest is reduced, the excess interest paid, if any, shall be refunded.
(5) The provisions of this section shall apply in respect of assessments for the assessment year commencing on the 1st day of April, 1989 and subsequent assessment years.]
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1. Ins. by Act 4 of 1988, sec. 141 (w.e.f. 1-4-1989).
2. Subs. by Act 14 of 2001, sec. 98, for “two per cent.” (w.e.f. 1-6-2001).
3. Subs. by Act 54 of 2003, sec. 19, for “one and one-fourth per cent.” (w.r.e.f. 8-9-2003).
4. Ins. by Act 3 of 1989, sec. 67(a)(i) (w.e.f. 1-4-1989).
5. Subs. by Act 3 of 1989, sec. 67(a)(ii), for Explanation 2 (w.e.f. 1-4-1989).
6. Ins. by Act 3 of 1989, sec. 67(a)(iii) (w.e.f. 1-4-1989).
7. Ins. by Act 3 of 1989, sec. 67(b)(i) (w.e.f. 1-4-1989).
8. Subs. by Act 14 of 2001, sec. 98, for “two per cent.” (w.e.f. 1-6-2001).
9. Subs. by Act 54 of 2003, sec. 19, for “one and one-fourth per cent.” (w.r.e.f. 8-9-2003).
10. Ins. by Act 3 of 1989, sec. 67(b)(ii) (w.e.f. 1-4-1989).
11. Explanation omitted by Act 3 of 1989, sec. 67(b)(iii) (w.e.f. 1-4-1989).
Section 18. Penalty for failure to furnish returns, to comply with notices and concealment of assets, etc.
1[18. Penalty for failure to furnish returns, to comply with notices and concealment of assets, etc. —(1) If the 2[Assessing Officer], 3[Joint Commissioner (Appeals)],— 4[Commissioner (Appeals),] 5[Chief Commissioner or Commissioner] or Appellate Tribunal in the course of any proceedings under this Act is satisfied that any person—
6[***]
(b) has 7[***] failed to comply with a notice under sub-section (2) or sub-section (4) of section 16; or
(c) has concealed the particulars of any assets or furnished inaccurate particulars of any assets or debts; he or it may, by order in writing, direct that such person shall pay by way of penalty—
8[ 9[***]
10[(ii) in the cases referred to in clause (b), in addition to the amount of wealth-tax payable by him, a sum which shall not be less than one thousand rupees but which may extend to twenty-five thousand rupees for each such failure;]
(iii) in the cases referred to in clause (c), in addition to any wealth-tax payable by him, a sum which shall not be less than, but which shall not exceed five times, the amount of tax sought to be evaded by reason of the concealment of particulars of any assets or the furnishing of inaccurate particulars in respect of any assets or debts:
11[Provided that in the cases referred to in clause (b), no penalty shall be imposable if the person proves that there was a reasonable cause for the failure referred to in that clause.]
Explanation 1. —For the purposes of clause (iii) of this sub-section, the expression “the amount of tax sought to be evaded”—
(a) in a case to which Explanation 3 applies, means the tax on the net wealth assessed;
(b) in any other case, means the difference between the tax on the net wealth assessed and the tax that would have been chargeable had the net wealth assessed been reduced by the amount which represents the value of any assets in respect of which particulars have been concealed or inaccuate particulars have been furnished and of any debts in respect of which inaccurate particulars have been furnished.
Explanation 2. —Where in respect of any facts material to the computation of the net wealth of any person under this Act,—
(A) such person fails to offer an explanation or offers an explanation which is found by the 12[Assessing Officer] or the 13[Deputy Commissioner (Appeals)] 14[or the Commissioner (Appeals)] 15[or the Commissioner] to be false, or
(B) such person offers an explanation which he is 16[not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same and material to the computation of his net wealth have been disclosed by him], then, the amount added or disallowed in computing the net wealth of such person as a result thereof shall, for the purposes of clause (c) of this sub-section, be deemed to represent the value of the assets in respect of which particulars have been concealed.
17[***]
18[ Explanation 3. —Where any person 19[***] fails, without reasonable cause, to furnish within the period specified in sub-section (1) of section 17A, a return of his net wealth which he is required to furnish under section 14 in respect of any assessment year commencing on or after the 1st day of April, 1989, and until the expiry of the period aforesaid, no notice has been issued to him under clause (i) of sub-section (4) of section 16 or sub-section (1) of section 17 and the ssessing Officer or the Deputy Commissioner] (Appeals) or the Commissioner (Appeals) is satisfied that in respect of such assessment year such person has assessable net wealth, the such person shall, for the purposes of clause (c) of this sub-section, be deemed to have concealed the particulars of his assets or furnished inaccurate particulars of any assets or debts in respect of such assessment year, notwithstanding that such person furnishes a return of his net wealth at any time after the expiry of either of the periods aforesaid applicable to him in pursuance of a notice under section 17.]
Explanation 4.—Where the value of any asset returned by any person is less than seventy per cent. of the value of such asset as determined in an assessment under section 16 or section 17, such person shall be deemed to have furnished inaccurate particulars of such asset within the meaning of clause (c) of this sub-section, unless he proves that the value of the asset as returned by him is the correct value.]
20[ Explanation 5.—Where in the course of a search under section 37A, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets represent or form part of his net wealth,—
(a) on any valuation date falling before the date of the search, but the return in respect of the net wealth on such date has not been furnished before the date of the search or, where such return has been furnished before the said date, such assets have not been declared in such return; or
(b) on any valuation date falling on or after the date of the search, then, notwithstanding that such assets are declared by him in any return of net wealth furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of such assets or furnished inaccurate particulars of such assets, 21[unless—
(1) such assets are recorded,—
(i) in a case falling under clause (a), before the date of the search; and
(ii) in a case falling under clause (b), on or before such date, in the books of account, if any, maintained by him or such assets are otherwise disclosed to the 22[Chief Commissioner or Commissioner] before the said date; or
23[(1A) Where any amount is added or disallowed in computing the net wealth of an assessee in any order of assessment or reassessment and the said order contains a direction for initiation of penalty proceedings under clause (c) of sub-section (1), such an order of assessment or reassessment shall be deemed to constitute satisfaction of the Assessing Officer for initiation of the penalty proceedings under the said clause (c).]
(2) he, in the course of the search, makes a statement under sub-section (4) of section 37A that any money, bullion, jewellery or other valuable article or thing found in his possession or under his control, forms part of his net wealth which has not been disclosed so far in his return on net wealth to be furnished before the expiry of the time specified in sub-section (1) of section 14, and also specifies in the statement the manner in which such net wealth has been acquired and pays the tax, together with interest, if any, in respect of such net wealth.]
24[ Explanation 6. —Where any adjustment is made in the wealth declared in the return under the proviso to clause (a) of sub-section (1) of section 16 and additional wealth-tax charged under that section, the provisions of this sub-section shall not apply in relation to the adjustments so made.]
25 [***]
(2) No order shall be made under sub-section (1) unless the person concerned has been given a reasonable opportunity of being heard.
26[***]
27[(3) No order imposing a penalty under sub-section (1) shall be made,—
(i) by the Income-tax Officer, where the penalty exceeds ten thousand rupees;
(ii) by the 28[Assistant Commissioner or Deputy Commissioner], where the penalty exceeds twenty thousand rupees. except with the prior approval of the 29 [Joint Commissioner].]
30[***]
(4) A 31[Deputy Commissioner (Appeals)], 32[a Commissioner (Appeals),] a 33[Chief Commissioner or Commissioner] or the Appellate Tribunal on making an order under this section imposing a penalty, shall forthwith send a copy of the same to the 34[Assessing Officer].
35[(5) No order imposing a penalty under this section shall be passed—
(i) in a case where the assessment to which the proceedings for imposition of penalty relate is the subject-matter of an appeal to the Joint Commissioner (Appeals) or the Commissioner (Appeals) under section 23 or an appeal to the Appellate Tribunal under sub-section (2) of section 24, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated are completed, or six months from the end of the month in which the order of the Joint Commissioner (Appeals) or the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal is received by the Chief Commissioner or Commissioner, whichever is later;
(ii) in a case where the relevant assessment is the subject-matter of revision under sub-section (2) of section 25, after the expiry of six months from the end of the month in which such order or revision is passed;
(iii) in any other case, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, or six onths from the end of the month in which action for imposition of penalty is initiated, whichever period expires later.
Explanation. —In computing the period of limitation for the purpose of this section,—
(i) any period during which the immunity granted under section 22H remained in force;
(ii) the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 39; and
(iii) any period during which a proceeding under this section for the levy of penalty is stayed by an order or injunction of any court, shall be excluded.
(6) The provisions of this section as they stood immediately before their amendment by the Direct Tax Laws (Amendment) Act, 1989, shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year and references in this section to the other provisions of this Act shall be construed as references to those provisions as for the time being in force and applicable to the relevant assessment year.]]
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1. Subs. by Act 46 of 1964, sec. 18, for section 18 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
3. Subs. by Act 21 of 1998, sec. 66, for “Deputy Commissioner” (w.e.f. 1-10-1998). Earlier the words “Deputy Commissioner” were substituted by Act 4 of 1988, sec. 127, for the words “Inspecting Commissioner or Inspecting Assistant Commissioner of Wealth-tax” (w.e.f. 1-4-1988).
4. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
5. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
6. Clause (a) omitted by Act 3 of 1989, sec. 68(a)(i) (w.e.f. 1-4-1989).
7. The words “without reasonable cause” omitted by Act 46 of 1986, sec. 33(a) (w.e.f. 10-9-1986).
8. Clauses (i), (ii), (iii) and Explanations 1 to 4 subs. by Act 41 of 1975, sec. 91(i), for clauses (i), (ii), (iii) and Explanations 1 and 2 (w.e.f. 1-4-1976). Earlier clause (iii) and Explanation were amended by Act 19 of 1968, sec. 32(b) (w.r.e.f. 1-4-1968), clause (ii) was substituted by Act 14 of 1969, sec. 24(c) (w.r.e.f. 1-4-1969).
9. Clause (i) omitted by Act 3 of 1989, sec. 68(a)(ii) (w.e.f. 1-4-1989). Earlier clause (i) was substituted by Act 14 of 1968, sec. 24(c) (w.r.e.f. 1-4-1969), and was amended by Act 32 of 1971, sec. 33(a) (w.e.f. 1-4-1972).
10. Subs. by Act 3 of 1989, sec. 68(a)(iii), for clause (ii) (w.e.f. 1-4-1989).
11. Subs. by Act 3 of 1989, sec. 68(a)(iv), for the proviso (w.e.f. 1-4-1989). Earlier the proviso was inserted by Act 46 of 1986, sec. 33(b) (w.e.f. 10-9-1986).
12. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
13. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
14. Ins. by Act 29 of 1977, sec. 39, Sch. V (w.e.f. 10-7-1978). 15. Ins. by Act 20 of 2002, sec. 110(a) (w.e.f. 1-6-2002).
16. Subs. by Act 46 of 1986, sec. 33(b)(ii)(1), for “not able to substantiate” (w.e.f. 10-9-1986).
17. Proviso omitted by Act 46 of 1986, sec. 33(b)(ii)(2) (w.e.f. 10-9-1986).
18. Subs. by Act 3 of 1989, sec. 68(a)(v), for Explanation 3 (w.e.f. 1-4-1989).
19. The words “who has not previously been assessed under this Act,” omitted by Act 20 of 2002, sec. 110(b) (w.e.f. 1-4-2003).
20. Ins. by Act 67 of 1984, sec. 57 (w.e.f. 1-10-1984).
21. Subs. by Act 46 of 1986, sec. 33(b)(iii), for certain words (w.e.f. 10-9-1986).
22. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
23. Ins. by the Finance Act, 2008 , sec. 62 (w.r.e.f. 1-4-1989).
24. Ins. by Act 3 of 1989, sec. 68(a)(vi) (w.e.f. 1-4-1989).
25. Sub-sections (1A) omitted by Act 41 of 1975, sec. 91(ii). Earlier sub-section (1A) was inserted by Act 32 of 1971, sec. 33(b) (w.e.f. 1-4-1972).
26. Sub-sections (2A) and (2B) omitted by Act 41 of 1975, sec. 91(iii) (w.e.f. 1-4-1976). Earlier sub-sections (2A) and (2B) were inserted by Act 15 of 1965, sec. 20 (w.e.f. 1-4-1965) and sub-section (2A) was amended by Act 42 of 1970, sec. 61(a) (w.e.f. 1-4-1971).
27. Subs. by Act 3 of 1989, sec. 68(b), for sub-section (3) (w.e.f. 1-4-1989). Earlier sub-section (3) was amended by Act 42 of 1970, sec. 61(b) (w.e.f. 1-4-1971) and was substituted by Act 41 of 1975, sec. 91(iv) (w.e.f. 1-4-1976).
28. Subs. by Act 21 of 1998, sec. 66, for “Assistant Commissioner” (w.e.f. 1-10-1998).
29. Subs. by Act 21 of 1998, sec. 66, for “Deputy Commissioner” (w.e.f. 1-10-1998). Earlier the words “Deputy Commissioner” were substituted by Act 4 of 1988, sec. 127, for the words “Inspecting Commissioner or Inspecting Assistant Commissioner of Wealth-tax” (w.e.f. 1-4-1988).
30. Sub-section (3A) omitted by Act 3 of 1989, sec. 68(c) (w.e.f. 1-4-1989). Earlier sub-section (3A) was inserted by Act 41 of 1975, sec. 91(iv) (w.e.f. 1-4-1976).
31. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
32. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
33. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
34. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
35. Subs. by Act 3 of 1989, sec. 68(d), for sub-section (5) (w.e.f. 1-4-1989). Earlier sub-section (5) was substituted by Act 42 of 1970, sec. 61(c) (w.e.f. 1-4-1971).
Section 18 A. Penalty for failure to answer questions, sign statements, furnish information, allow inspections, etc .
1[18A. Penalty for failure to answer questions, sign statements, furnish information, allow inspections, etc . —(1) If any person,—
(a) being legally bound to state the truth of any matter touching the subject of his assessment, refuses to answer any question put to him by a wealth-tax authority in the exercise of his powers under this Act; or
(b) refuses to sign any statement made by him in the course of any proceedings under this Act, which a wealth-tax authority may legally require him to sign; or
(c) to whom a summons is issued under sub-section (1) of section 37 either to attend to give evidence or produce books of account or other documents at a certain place and time, omits to attend or produce the books of account or documents at the place and time, he shall pay, by way of penalty, a sum which shall not be less than five hundred rupees but which may extend to ten thousand rupees for each such default or failure:
Provided that no penalty shall be imposable under clause (c) if the person proves that there was reasonable cause for the said failure.
(2) If a person fails to furnish in due time any statement or information which such person is bound to furnish to the Assessing Officer under section 38, 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 day during which the failure continues:
Provided that no penalty shall be imposable under this sub-section if the person proves that there was reasonable cause for the said failure.
(3) Any penalty imposable under sub-section (1) or sub-section (2) shall be imposed—
(a) in a case where the contravention, failure or default in respect of which such penalty is imposable occurs in the course of any proceeding before a wealth-tax authority not lower in rank than a 2[Joint Director] or a 2[Joint Commissioner], by such wealth-tax authority;
(b) in any other case, by the Joint Director or the Joint Commissioner.
(4) No order under this section shall be passed by any wealth-tax authority referred to in sub-section (3) unless the person on whom the penalty is proposed to be imposed has been heard, or has been given a reasonable opportunity of being heard in the matter, by such authority.
Explanation .—In this section, “wealth-tax authority” includes a Director General, Director, 2[Joint Director], 3[Assistant Director or Deputy Director] and a Valuation Officer while exercising the powers vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the matters specified in sub-section (1) of section 37.]
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1. Sub. by Act 3 of 1989, sec. 69, for section 18A (w.e.f. 1-4-1989). Earlier section 18A was inserted by Act 41 of 1975, sec. 92 (w.e.f. 1-4-1976) and was amended by Act 46 of 1986, sec. 34 (w.e.f. 10-9-1986) and was substituted by Act 4 of 1988, sec. 142 (w.e.f. 1-4-1989).
1. Subs. by Act, 21 of 1998, sec. 66, for “Deputy Director” (w.e.f. 1-10-1998).
2. Subs. by Act, 21 of 1998 sec. 66, for “Assistant Director” (w.e.f. 1-10-1998).
Section 18 B. Power to reduce or waive penalty in certain cases.
1[18B. Power to reduce or waive penalty in certain cases. —(1) Notwithstanding anything contained in this Act, the 2[ 3[***] Commissioner] may, in his discretion, whether on his own motion or otherwise,—
4[***]
(ii) reduce or waive the amount of penalty imposed or imposable on a person under clause (iii) of sub-section (1) of section 18, it he is satisfied that such person,—
5[***]
(b) in the case referred to in clause (ii), has, prior to the detection by the 6[Assessing Officer], of the concealment of particulars of assets or of the inaccuracy of particulars furnished in respect of any asset or debt in respect of which the penalty is imposable, voluntarily and in good faith made full and true disclosure of such particulars, and also has co-operated in any inquiry relating to the assessment of his net wealth and has either paid or made satisfactory arrangements for the payment of any tax or interest payable in consequence of an order passed under this Act in respect of the relevant assessment year.
7[ Explanation 1 ].—For the purposes of this sub-section, a person shall be deemed to have made full and true disclosure of the particulars of his assets or debts in any case where the excess of net wealth assessed over the net wealth returned is of such a nature as not to attract the provisions of clause (c) of sub-section (1) of section 18.
8[***]
(2) Notwithstanding anything contained in sub-section (1), if in a case falling under clause (c) of sub-section (1) of section 18, the net wealth in respect of which the peanlty is imposed or imposable for the relevant assessment year, or, where such disclosure relates to more than one assessment year, the net wealth for any one of the relevant assessment years, exceeds five hundred thousand rupees, no order reducing or waiving the penalty under sub-section (1) shall be made by 9[the Commissioner except with the previous approval of the Chief Commissioner, or Director-General, as the case may be].
(3) Where an order has been made under sub-section (1) in favour of any person, whether such order relates to one or more assessment years, he shall not be entitled to any relief under this section in relation to any other assessment year at any time after the making of such order:
10[Provided that where an order has been made in favour of any person under sub-section (1) on or before the 24th day of July, 1991, such person shall be entitled to further relief only once in relation to other assessment year or years if he makes an application to the wealth-tax authority referred to in sub-section (4) at any time before the 1st day of April, 1992].
(4) Without prejudice to the powers conferred on him by any other provision of this Act, the 11[ 12 [***] Commissioner] may, on an application made in this behalf by an assessee, and after recording his reasons for so doing, reduce or waive the amount of any penalty payable by the assessee under this Act or stay or compound any proceeding for the recovery of any such amount, if he is satisfied that—
(i) to do otherwise would cause genuine hardship to the assessee, having regard to the circumstances of the case, and
(ii) the assessee has co-operated in any inquiry relating to the assessment or any proceeding for the recovery of any amount due from him.
(5) Every order made under this section shall be final and shall not be called into question by any court or any other authority.]
13[(6) The provisions of this section as they stood immediately before their amendment by the Direct Tax Laws (Amendment) Act, 1989, shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, and references in this section to the other provisions of this Act shall be construed as references to those provisions as for the time being in force and applicable to the relevant assessment year.]
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1. Ins. by Act 41 of 1975, sec. 92 (w.e.f. 1-10-1975).
2. The words “Chief Commissioner or Commissioner” subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
3. The words “Chief Commissioner or“ omitted by Act 38 of 1993, sec. 40(a) (w.e.f. 1-6-1993).
4. Clause (i) omitted by Act 3 of 1989, sec. 70(a)(i) (w.e.f. 1-4-1989).
5 Clause (a) omitted by Act 3 of 1989, sec. 70(a) (ii) (w.e.f. 1-4-1989).
6. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
7. Explanation renumbered as Explanation 1 by Act 67 of 1984, sec. 58(a) (w.e.f. 1-10-1984).
8. Explanation 2 omitted by Act 32 of 1985, sec. 38 (w.e.f. 24-5-1985). Earlier Explanation 2 was inserted by Act 67 of 1984, sec. 58(b) (w.e.f. 1-10-1984).
9. Subs. by Act 38 of 1993, sec. 40(b), for “The Chief Commissioner or Commissioner, except with the previous approval of the Board” (w.e.f. 1-6-1993).
10. Ins. by Act 49 of 1991, sec. 76 (w.e.f. 27-9-1991).
11. The words “Chief Commissioner or Commissioner” subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
12. The words “Chief Commissioner or” omitted by Act 38 of 1993, sec. 40(c) (w.e.f. 1-6-1993).
13. Ins. by Act 3 of 1989, sec. 70(b) (w.e.f. 1-4-1989).
Chapter IV A – Special Provision for Avoiding repetitive appeals
Section 18 C. Procedure when assessee claims identical question of law is pending before Hight Court or Supreme Court.
1[18C. Procedure when assessee claims identical question of law is pending before Hight Court or Supreme Court. —(1) Notwithstanding anything contained in this Act, where an assessee claims that any question of law arising in his case for an assessment year which is pending before the 2[ Assessing Officer] or any appellate authority (such case being hereafter in this section referred to as the relevant case) is identical with a question of law arising in his case for another assessment year which is pending before the Hight Court or the Supreme Court on a reference under section 27 3[or in appeal under section 27A before the High Court] or in appeal before the Supreme Court under section 29 (such case being hereafter in this section referred to as the other case), he may furnish to the 3[Assessing Officer] or the appellate authority, as the case may be, a declaration in the prescribed form and verified in the prescribed manner, that if the 2[Assessing Officer] or the appellate authority, as the case may be, agrees to apply to the relevant case the final decision on the question of law in the other case, he shall not raise such question of law in the relevant case in appeal before any appellate authority or 4[in appeal before the High Court under section 27A or the Supreme Court under section 29].
(2) Where a declaration under sub-section (1) is furnished to any appellate authority, the appellate authority shall call for a report from the 2[Assessing Officer] on the correctness of the claim made by the assessee and, where the 2[Assessing Officer] makes a request to the appellate authority to give him an opportunity of being heard in the matter, the appellate authority shall allow him such opportunity.
(3) The 2[Assessing Officer] or the appellate authority, as the case may be, may, by order in writing,—
(i) admit the claim of the assessee if he or it is satisfied that the question of law arising in the relevant case is identical with the question of law in the other case; or
(ii) reject the claim if he or it is not so satisfied.
(4) Where a claim is admitted under sub-section (3)—
(a) the 2[Assessing Officer] or, as the case may be, the appellate authority may make an order disposing of the relevant case without awaiting the final decision on the question of law in the other case; and
(b) the assessee shall not be entitled to raise, in relation to the relevant case, such question of law in appeal before any appellate authority
or 5[in appeal before the High Court under section 27A or the Supreme Court under section 29].
(5) Where the decision on the question of law in the other case, becomes final, it shall be applied to the relevant case and the 2[Assessing Officer] or the appellate authority, as the case may be, shall, if necessary, amend the order referred to in clause (a) of sub-section (4) conformably to such decision.
(6) An order under sub-section (3) shall be final and shall not be called in question in any proceeding by way of appeal, reference or revision under this Act.
Explanation .—In this section,—(a) “appellate authority” means the 6[Deputy Commissioner (Appeals)], or the Commissioner (Appeals) or the Appellate Tribunal;
(b) “case”, in relation to an assessee, means any proceeding under this Act for the assessment of the net wealth of the assessee or for the imposition of any penalty on him.]
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1. Chapter IV (containing section 18C) ins. by Act 67 of 1984, sec. 59 (w.e.f. 1-10-1984).
2. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
3. Ins. by Act 20 of 2002, sec. 111(a)(i) (w.e.f 1-6-2002).
4. Subs. by Act 20 of 2002, sec. 111(a)(ii), for certain words (w.e.f. 1-6-2002).
5. Subs. by Act 20 of 2002, sec. 111(b), for certain words (w.e.f. 1-6-2002).
6. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
Chapter IV B – Charge or Additional Wealth-Tax in certain cases
Section 18 D. Additional wealth-tax.
1[18D. Additional wealth-tax. —[ Rep. by the Direct Tax Laws (Amendment) Act, 1989 (3 of 1989), sec. 95(p) (w.r.e.f. 1-4-1988). ]
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1. Chapter IVB relating to “CHARGE OF ADDITIONAL WEALTH-TAX IN CERTAIN CASES” (containing section 18D) omitted by Act 3 of 1989, sec. 95(p) (w.e.f. 1-4-1989). Earlier Chapter IVB (containing section 18D) was inserted by Act 4 or 1988, sec. 143 (w.e.f. 1-4-1989).
Chapter V – Liability to Assessment in Special cases
Section 19. Tax of deceased person payable by legal representative.
(1) Where a person dies, his executor, administrator or other legal representative shall be 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 wealth-tax assessed as payable by such person, or any sum, which would have been payable by him under this Act if he had not died.
(2) Where a person dies without having furnished a return under the provisions of section 14 or after having furnished a return which the 1[Assessing Officer] has reason to believe to be incorrect or incomplete, the 1[Assessing Officer] may make an assessment of the net wealth of such person and determine the wealth-tax payable by the person on the basis of such assessment, and for this purpose may, by the issue of the appropriate notice which would have had to be served upon the deceased person if he had survived, require from the executor, administrator or other legal representative of the deceased person any accounts, documents or other evidence which might under the provisions of section 16 have been required from the deceased person.
(3) The provisions of sections 14, 15 and 17 shall apply to an executor, administrator or other legal representative as they apply to any person referred to in those sections.
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1. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
Section 19 A. Assessment in the case of executors.
1[19A. Assessment in the case of executors. —(1) Subject to as hereinafter provided, the net wealth of the estate of a deceased person shall be chargeable to tax in the hands of the executor or executors.
(2) The executor or executors shall for the purposes of this Act be treated as an individual.
(3) The status of the executor or executors shall for the purposes of this Act as regards residence and citizenship be the same as that of the deceased on the valuation date immediately preceding his death.
(4) The assessment of an executor under this section shall be made separately from any assessment that may be made on him in respect of his own net wealth or on the net wealth of the deceased under section 19.
(5) Separate assessments shall be made under this section in respect of the net wealth as on each valuation date as is included in the period from the date of the death of the deceased to the date of complete distribution to the beneficiaries of the estate according to their several interests.
(6) In computing the net wealth on any valuation date under this section, any assets of the estate distributed to, or applied to the benefit of, any specific legatee of the estate prior to that valuation date shall be excluded, but the assets so excluded shall, to the extent such assets are held by the legatee on any valuation date, be included in the net wealth of such specific legatee on the valuation date.
Explanation .—In this section, “executor” includes an administrator or other person administering the estate of a deceased person.]
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1. Ins. by Act 46 of 1964, sec. 19 (w.e.f. 1-4-1965).
Section 20. Assessment after partition of a Hindu Undivided Family.
20. Assessment after partition of a Hindu Undivided Family. —(1) Where at the time of making an assessment, it is brought to the notice of the 1[Assessing Officer] that a partition has taken place among the members of a Hindu undivided family, and the 1[Assessing Officer], after inquiry, is satisfied that the joint family property has been partitioned as a whole among the various members or group of members in definite portions, he shall record an order to that effect and shall make assessment on the net wealth of the undivided family as such for the assessment year or years, including the year relevant to the previous year in which the partition has taken place, if the partition has taken place on the last day of the previous year and each member or group of members shall be liable jointly and severally for the tax assessed on the net wealth of the joint family as such.
(2) Where the 1[Assessing Officer] is not so satisfied, he may, by order, declare that such family shall be deemed for the purposes of this Act to continue to be a Hindu undivided family liable to be assessed as such.
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1. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
Section 20 A. Assessment after partial partition of a Hindu Undivided Family.
1[20A. Assessment after partial partition of a Hindu Undivided Family. —Where a partial partition has taken place after the 31st day of December, 1978, among the members of a Hindu undivided family hitherto assessed as undivided,—
(a) such family shall continue to be liable to be assessed under this Act as if no such partial partition had taken place;
(b) each member or group of members of such family immediately before such partial partition and the family shall be jointly and severally liable for any tax, penalty, interest, fine or other sum payable under this Act by the family in respect of any period, whether before or after such partial partition,;
(c) the several liability of any member or group of members aforesaid shall be computed according to the portion of the joint family property allotted to him or it at such partial partition, and the provisions of this Act shall apply accordingly.
Explanation .—For the purposes of this section, “partial partition” shall have the meaning assigned to it in clause (b) of the Explanation to section 171 of the Income-tax Act.]
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1. Ins. by Act 44 of 1980, sec. 39 (w.e.f. 1-4-1980).
Section 21. Assessment when assets are held by courts of wards, administrators-general, etc .
(1) 1[Subject to the provisions of sub-section (1A), in the case of assets chargeable to tax under this Act], which are held by a court of wards or an administrator-general or an official trustee or any receiver or manager or any other person, by whatever name called, appointed under any order of a court to manage property on behalf of another, or any trust appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise (including a trustee under a valid deed of wakf), the wealth-tax shall be levied upon and recoverable from the court of wards, administrator-general, official trustee, receiver, manager or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from the person 2[on whose behalf or for whose benefit] the assets are held, and the provisions of this Act shall apply accordingly.
3[ Explanation. —A trust which is not declared by a duly executed instrument in writing (including a valid deed of wakf) shall be deemed, for the purposes of this sub-section, to be a trust declared by a duly executed instrument in writing if a statement in writing, signed by the trustee or trustees, setting out the purpose or purposes of the trust, particulars as to the trustee or trustees, the beneficiary or beneficiaries and the trust property, is forwarded to the 4[Assessing Officer]—
(i) where the trust has been declared before the 1st day of June, 1981, within a period of three months from that day; and
(ii) in any other case, within three months from the date of declaration of the trust.]
5[(1A) Where the value or aggregate value of the interest or interests of the person or persons on whose behalf or for whose benefit such assets are held falls short of the value of any such assets, then, in addition to the wealth-tax leviable and recoverable under sub-section (1), the wealth-tax shall be levied upon and recovered from the court of wards, administrator-general, official trustee, receiver, manager or other person or trustee aforesaid in respect of the value of such assets, to the extent it exceeds the value or aggregate value of such interest value were the net wealth of an individual who is a citizen of India and resident in India for the purposes of this Act, and—
(i) at the rates specified in Part I of Schedule I; or
(ii) at the rate of three per cent., whichever course would be more beneficial to the revenue.]
(2) Nothing contained in sub-section (1) shall prevent either the direct assessment of the person 6[on whose behalf or for whose benefit] the assets above referred to are held, or the recovery from such person of the tax payable in respect of such assets.
(3) Where the guardian or trustee of any person being a minor, lunatic or idiot 7[***] holds any assets 8[on behalf or for the benefit of such beneficiary,] the tax under this Act shall be levied upon and recoverable from such guardian or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from any such beneficiary if of full age, of sound mind and in direct ownership of such assets.
9 [(4) 10[Notwithstanding anything contained in the foregoing provisions of this section], where the shares of the persons on whose behalf or for whose benefit any such assets are held are indeterminate or unknown, the wealth-tax shall be levied upon and recovered from the court of wards, administrator-general, official trustee, receiver, manager, or other person aforesaid 11[, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from an individual who is a citizen of India and resident in India] for the purposes of this Act, and—
(a) at the rates specified in Part I of 12 [Schedule I] 13[***] or
(b) at the rate of 14[three per cent.], whichever course would be more beneficial to the revenue:
Provided that in a case where—
(i) such assets are held 15 [under a trust declared by any person by will and such trust is the only trust so declared by him]; or
16[(ia) none of the beneficiaries has net wealth exceeding the amount not chargeable to wealth-tax in the case of an individual who is a citizen of India and resident in India for the purposes of this Act or is a beneficiary under any other trust; or]
(ii) such assets are held under a trust created before the 1st day of March, 1970, by a non-testamentary instrument and the 17[Assessing Officer] is satisfied, having regard to all the circumstances existing at the relevant time, that the trust was created bona fide exclusively for the benefit of the relatives of the settlor or where the settlor is a Hindu undivided family, exclusively for the benefit of the members of such family, in circumstances where such relatives or members were mainly dependent on the settlor for their support and maintenance; or
(iii) such assets are held by the trustees on behalf of a provident fund, superannuation fund, gratuity fund, pension fund or any other fund created bona fide by a person carrying on a business or profession exclusively for the benefit of persons employed in such business or profession,
wealth-tax shall be charged at the rates specified in Part I of 18[Schedule I 19[***]]
20[ Explanation 1.—For the purposes of this sub-section, the shares of the persons on whose behalf or for whose benefit any such assets are held shall be deemed to be indeterminate or unknown unless the shares of the persons on whose behalf or for whose benefit such assets are held on the relevant valuation date are expressly stated in the order of the court or instrument of trust or deed of wakf, as the case may be, and are ascertainable as such on the date of such order, instrument or deed.]
21[ 22[ Explanation 2 ]—Notwithstanding anything contained in section 5, in computing the net wealth 23[for the purposes of this sub-section or sub-section (4A) in any case, not being a case referred to in the proviso to this sub-section], any assets referred to in clauses (xv), (xvi), (xxii), (xxiii), (xxiv), (xxv), (xxvi), (xxvii), (xxviii) and (xxix), of sub-section (1) of that section shall not be excluded.]
24[(4A.) Notwithstanding anything contained in this section, where the assets chargeable to tax under this Act are held by a trustee under an oral trust, the wealth-tax shall be levied upon and recovered from such trustee in the like manner and to the same extent as it would be leviable upon and recoverable from an individual who is a citizen of India and resident in India for the purposes of this Act, and—
(a) at the rates specified in Part I of Schedule I; or
(b) at the rate of three per cent.,
whichever course would be more beneficial to the revenue.
Explanation. —For the purposes of this sub-section, “oral trust” means a trust which is not declared by a duly executed instrument in writing (including a valid deed of wakf) and which is not deemed under the Explanation to sub-section (1) to be a trust declared by a duly executed instrument in writing.]
25[(5) Any person who pays any sum by virtue of the provisions of this section in respect of the net wealth of any beneficiary shall be entitled to recover the sum so paid from such beneficiary, and may retain out of any assets that he may hold on behalf or for the benefit of such beneficiary, an amount equal to the sum so paid.
Explanation. —In this section, the term “beneficiary” means any person including a minor, lunatic or idiot on whose behalf or for whose benefit assets are held by any other person.]
26[(6) Nothing contained in this section shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1993, or any subsequent assessment year.]
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1. Subs. by Act 44 of 1980, sec. 40(a), for “In the case of assets chargeable to tax under this Act” (w.e.f. 1-4-1980).
2. Subs. by Act 46 of 1964, sec. 20(a), for “on whose behalf” (w.e.f. 1-4-1965).
3. Ins. by Act 16 of 1981, sec. 26(a) (w.r.e.f. 1-4-1981).
4. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
5. Ins. by Act 44 of 1980, sec. 40(b) (w.e.f. 1-4-1980).
6. Subs. by Act 46 of 1964, sec. 20(a), for “on whose behalf” (w.e.f. 1-4-1965).
7. The words ‘(all of which persons are hereinafter in this sub-section included in the term “beneficiary”)’ omitted by Act 46 of 1964, sec. 20(b)(i) (w.e.f. 1-4-1965).
8. Subs. by Act 46 of 1964, sec. 20(b)(ii), for “on behalf of such beneficiary” (w.e.f. 1-4-1965).
9. Subs. by Act 19 of 1970, sec. 26(e), for sub-section (4) (w.e.f. 1-4-1971). Earlier sub-section (4) was amended by Act 46 of 1964, sec. 20(c) (w.e.f. 1-4-1965) and was substituted by Act 19 of 1970, sec. 26(e) (w.e.f. 1-4-1971).
10. Subs. by Act 16 of 1981, sec. 26(b)(i), for “Notwithstanding anything contained in this section” (w.r.e.f. 1-4-1981).
11. Subs. by Act 44 of 1980, sec. 40(c)(i), for certain words (w.e.f. 1-4-1980).
12. Subs. by Act 66 of 1976, sec. 27(4), for “the Schedule” (w.e.f. 1-4-1977).
13. The words “in the case of an individual” omitted by Act 32 of 1971, sec. 34(a) (w.e.f. 1-4-1972).
14. Subs. by Act 44 of 1980, sec. 40(c)(iv), for “one and one-half per cent.” (w.e.f. 1-4-1980).
15. Subs. by Act 44 of 1980, sec. 40(c)(iii)(I), for “under a trust declared by will” (w.e.f. 1-4-1980).
16. Ins. by Act 44 of 1980, sec. 40(c)(ii)(2) (w.e.f. 1-4-1980).
17. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988). 18. Subs. by Act 66 of 1976, sec. 27(4), for “the Schedule” (w.e.f. 1-4-1977).
19. The words “in the case of an individual” omitted by Act 32 of 1971, sec. 34(a) (w.e.f. 1-4-1972).
20. Ins. by Act 44 of 1980, sec. 40(c)(iv) (w.e.f. 1-4-1980).
21. Ins. by Act 32 of 1971, sec. 34(b) (w.e.f. 1-4-1972).
22. Explanation renumbered as Explanation 2 by Act 44 of 1980, sec. 40(c)(iv) (w.e.f. 1-4-1980).
23. Subs. by Act 16 of 1981, sec. 26(b)(ii), for certain words (w.r.e.f. 1-4-1981).
24. Ins. by Act 16 of 1981, sec. 26(c)(w.r.e.f. 1-4-1981).
25. Ins. by Act 46 of 1964, sec. 20(d) (w.e.f. 1-4-1965).
26. Ins. by Act 18 of 1992, sec. 94 (w.e.f. 1-4-1993).
Chapter V A – Settlement of Cases
Section 21 A. Assessment in cases of diversion of property, or of income from property, held under trust for public charitable or religious purposes.
1[21A. Assessment in cases of diversion of property, or of income from property, held under trust for public charitable or religious purposes. — 2[ 3[Notwithstanding anything contained in clause (1) of section 5, where any property is held] under trust for any public purpose of a charitable or religious nature in India, and
4[(i) any part of such property or any income of such trust [whether derived from such property or from voluntary contributions referred to in sub-clause (iia) of clause (24) of section 2 of the Income-tax Act], being a trust created on or after the 1st day of April, 1962 enures, directly or indirectly, for the benefit of 5[any interested person], or
(ii) any part of the income of the trust [whether derived from such property or from voluntary contributions referred to in sub-clause (iia) of clause (24) of section 2 of the Income-tax Act], being a trust created on or after the 1st day of April, 1962 enures, directly or indirectly, for the benefit of 6[any interested person], 7[***] wealth-tax shall be leviable upon, and recoverable from the trustee or manager (by whatever name called) in the like manner and to the same extent as if the property were held by an individual who is a citizen of India and resident in India for the purposes of this Act,8[***]]:
Provided that in the case of a trust created before the 1st day of April, 1962, the provisions of clause (i) shall not apply to any use or application, whether directly or indirectly, of any part of such property or any income of such trust for the benefit of 9[any interested person] if such use or application is by way of compliance with a mandatory term of the trust:
10[***]
11 [ 12[Provided further that],—
13[(a) in the case of any trust or institution of national importance notified under clause (d) of sub-section (1) of section 80F of the Income-tax Act,—
(i) the provisions of clause (i) and clause (ii) shall not apply; and
(ii) the other provisions of this section shall apply with the modification that the words “at the maximum marginal rate”, the words and figures “at the rates specified in 14[sub-section (2) of section 3];
(b) in the case of any institution, fund or trust referred to in clause (22) or clause (22A) or clause (23B) or clause (23C) of section 10 of the Income-tax Act, the provisions of 15[clauses (i) to (ii)] shall not apply.]
Explanation.— For the purposes of this section,—
16[(a) the expression “interested person” shall have the meaning assigned to if in clause (a) of Explanation 1 below sub-section (4) of section 80F of the Income-tax Act;
(ab) any part of the property or income of a trust shall be deemed to have been used or applied for the benefit of any interested person in every case in which it can be so deemed to have been used or applied within the meaning of clause (c) of sub-section (3) of section 80F of the Income-tax Act at any time during the period of twelve months ending with the relevant valuation date;]]
17[***]
(b) “trust” includes any other legal obligation.]
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1. Ins. by Act 16 of 1972, sec. 46 (w.e.f. 1-4-1973).
2. Subs. by Act 18 of 1992, sec. 95, for “Notwithstanding anything contained in clause (i) of sub-section (1) of section 5, where any property is held” (w.e.f. 1-4-1993)
3. Subs. by Act 33 of 1996, sec. 58, for “Where any property is held” (w.e.f 1-4-1993).
4. Subs. by Act 21 of 1984, sec. 34(b)(1), for certain words (w.e.f. 1-4-1985).
5. Subs. by Act 4 of 1988, sec. 144(a), for “any person referred to in sub-section (3) of section 13 of the Income-tax Act” (w.e.f. 1-4-1989).
6. Subs. by Act 4 of 1988, sec. 144(b), for “any person referred to in sub-section (3) of section 13 of the Income Tax Act, or” (w.e.f. 1-4-1989).
7. Clause (iii) omitted by Act 4 of 1988, sec. 144(c) (w.e.f. 1-4-1989).
8. Certain words omitted by Act 18 of 1992, sec. 95(b) (w.e.f. 1-4-1993).
9. Subs. by Act 4 of 1988, sec. 144(d), for “any person referred to in sub-section (3) of section 13 of the Income-tax Act” (w.e.f. 1-4-1989).
10. Second Proviso omitted by Act 18 of 1992, sec. 95(c) (w.e.f. 1-4-1993). Earlier second proviso was amended by Act 4 of 1988, sec. 144(e) (w.e.f. 1-4-1989).
11. Ins. by Act 21 of 1984, sec. 34(b)(2) (w.e.f. 1-4-1985).
12. Subs. by Act 18 of 1992, sec. 95(d)(i), for “Provided also that” (w.e.f. 1-4-1993). Earlier this proviso was amended by Act 4 of 1988, sec. 144(f) (w.e.f. 1-4-1989).
13. Subs. by Act 4 of 1988, sec. 144(f)(i), for clause (a) (w.e.f. 1-4-1989).
14. Subs. by Act 18 of 1992, sec. 95(d)(ii), for “Part I of Schedule I in the case of an individual” (w.e.f. 1-4-1993).
15. Subs. by Act 4 of 1988, sec. 144(f)(ii), for “clauses (i) to (ii)” (w.e.f. 1-4-1989).
16. Subs. by Act 4 of 1988, sec. 144(g), for clauses (a) and (aa) (w.e.f. 1-4-1989).
17. Clause (aa) omitted by Act 18 of 1992, sec. 95(e) (w.e.f. 1-4-1993). Earlier clause (aa) was inserted by Act 21 of 1984, sec. 34(b)(3) (w.e.f. 1-4-1985).
Section 21 AA. Assessment when assets are held by certain associations of persons.
1[21AA. Assessment when assets are held by certain associations of persons. —(1) Where assets chargeable to tax under this Act are held by an association of persons, other than a company or co-operative society 2[or society registered under the Societies Registration Act, 1860 (21 of 1860), or under any law corresponding to that Act in force in any part of India], and the individual shares of the members of the said association in the income or assets or both of the said association on the date of its formation or at any time thereafter are indeterminate or unknown, the wealth-tax shall be levied upon and recovered from such association in the like manner and to the same extent as it would be leviable upon and recoverable from an individual who is a citizen of India and resident in India for the 3[purposes of this Act 4[***]].
(2) Where any business or profession carried on by an association of persons referred to in sub-section (1) has been discontinued or where such association of persons is dissolved, the 5[Assessing Officer] shall make an assessment of the net wealth of the association of persons as if no such discontinuance or dissolution had taken place and all the provisions of this Act, including the provisions relating to the levy of penalty or any other sum chargeable under any provision of this Act, so far as may be, shall apply to such assessment.
(3) Without prejudice to the generality of the provisions of sub-section (2), if the 5[Assessing Officer] or the 6[Deputy Commissioner (Appeals)] or the Commissioner (Appeals) in the course of any proceedings under this Act in respect of any such association of persons as is referred to in sub-section (1) is satisfied that the association of persons was guilty of any of the acts specified in section 18 or section 18A, he may impose or direct the imposition of a penalty in accordance with the provisions of the said sections.
(4) Every person who was at the time of such discontinuance or dissolution a member of the association of persons, and the legal representative of any such person who is deceased, shall be jointly and severally liable for the amount of tax, penalty or other sum payable, and all the provisions of this Act, so far as may be, shall apply to any such assessment or imposition of penalty or other sum.
(5) Where such discontinuance or dissolution takes place after any proceedings in respect of an assessment year have commenced, the proceedings may be continued against the persons referred to in sub-section (4) from the stage at which the proceedings stood at the time of such discontinuance or dissolution, and all the provisions of this Act shall, so far as may be, apply accordingly.
7 [***]]
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1. Ins. by Act 16 of 1981, sec. 27 (w.r.e.f. 1-4-1981).
2. Ins. by Act 13 of 1989, sec. 29 (w.r.e.f. 1-4-1989).
3. Subs. by Act 4 of 1988, sec. 145, for certain words (w.e.f. 1-4-1989).
4. The words “, and at the maximum marginal rate” omitted by Act 18 of 1992, sec. 96(a) (w.e.f. 1-4-1993).
5. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
6. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
7. Explanation omitted by Act 18 of 1992, sec. 96(6) (w.e.f. 1-4-1993). Earlier Explanation was inserted by Act 16 of 1981, sec. 28 (w.e.f. 1-4-1981).
Section 22. Assessment of persons residing outside India.
122. Assessment of persons residing outside India. —(1) Where the person liable to tax under this Act resides outside India, the tax may be levied upon and recovered from his agent, and the agent shall be deemed to be, for all the purposes of this Act, the assessee in respect of such tax.
(2) Any person employed by or on behalf of a person referred to in sub-section (1) or through whom such person is in the receipt of any income, profits or gains, or who is in possession or has custody of any asset of such person and upon whom the 1[Assessing Officer] has caused a notice to be served of his intention of treating him as the agent of such person shall, for the pusposes of sub-section (1), be deemed to be the agent of such person.
2[***]
3[(3) No person shall be deemed to be the agent of any person residing outside India unless he has had an opportunity of being heard by the 1[Assessing Officer] as to his being treated as such.
(4) Any agent, who, as such, pays any sum under this Act, shall be entitled to recover the sum so paid from the person on whose behalf it is paid or to retain out of any moneys that may be in his possession or may come to him in his capacity as such agent, an amount equal to the sum so paid.
(5) Any agent, or any person who apprehends that he may be assessed as an agent, may retain out of money payable by him to the person residing outside India on whose behalf he is liable to pay tax (hereinafter in this section referred to as the principal), a sum equal to his estimated liability under this section, and in the event of any disagreement between the principal and such agent or person, as to the amount to be so retained, such agent or person may secure from the 1[Assessing Officer] a certificate stating the amount to be so retained pending final settlement of the liability, and the certificate so obtained shall be his warrant for retaining that amount.
(6) The amount recoverable from such agent or person at the time of final settlement shall not exceed the amount specified in such certificate, except to the extent to which such agent or person may at such time have in his hands additional assets of the principal.
(7) Notwithstanding anything contained in this section, any arrears of tax due from a person residing outside India may be recovered also in accordance with the provisions of this Act from any assets of such person which are or may at any time come within India.]
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1. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
2. Proviso omitted by Act 46 of 1964, sec. 21(a) (w.e.f. 1-4-1965).
3. Ins. by Act 46 of 1964, sec. 21(b) (w.e.f. 1-4-1965).
Section 22 A Definitions.
1[2 [22A Definitions. —In this Chapter, unless the context otherwise requires,—
(a) “Bench” means a Bench of the Settlement Commission;
3[(b) “case” means any proceeding for assessment under this Act, of any person in respect of any assessment year or assessment years which may be pending before an Assessing Officer on the date on which an application under sub-section (1) of section 22C is made:
Provided that—
(i) a proceeding for assessment or reassessment under section 17;
(ii) a proceeding for making fresh assessment in pursuance of an order under section 23A or section 24 or section 25, setting aside or cancelling an assessment;
(iii) a proceeding for assessment or reassessment which may be initiated on the basis of a search under section 37A or requisition under section 37B, shall not be a proceeding for assessment for the purposes of this clause.
Explanation. —For the purposes of this clause—
(i) a proceeding for assessment or reassessment referred to in clause (i) of the proviso shall, in case where a notice under section 17 is issued but not on the basis of search under section 37A or requisition under section 37B, be deemed to have commenced from the date on which a notice under section 17 is issued;
(ii) a proceeding for making fresh assessment referred to in clause (ii) of the proviso shall be deemed to have commenced from the date on which the order under section 23A or section 24 or section 25, setting aside or cancelling an assessment was passed;
(iii) a proceeding for assessment or reassessment referred to in clause (iii) of the proviso shall be deemed to have commenced on the date of initiation of the search under section 37A or requisition under section 37B;
(iv) a proceeding for assessment for an assessment year, other than the proceeding of assessment or reassessment referred to in clause (i) or clause (ii) or clause (iii) of the proviso, shall be deemed to have commenced from the 1st day of the assessment year and concluded on the date on which the assessment is made;]
(c) “Chairman” means the Chairman of the Settlement Commission
(d) “Member” means a Member of the Settlement Commission, and includes the Chairman and a Vice-Chairman;
(e) “Settlement Commission” means the Income-tax Settlement Commission constituted under section 245B of the Income-tax Act;
(f) “Vice-Chairman” means a Vice-Chairman of the Settlement Commission 4[and includes a Member who is senior amongst the Members of the Bench];
(g) “Wealth-tax authority” means an income-tax authority specified in section 116 of the Income-tax Act who is treated as a Wealth-tax authority under section 8.] ]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Subs. by Act 11 of 1987, sec. 77, for section 22A (w.e.f. 1-6-1987). Earlier section 22A was amended by Act 67 of 1984, sec. 60 (w.e.f. 1-10-1984).
3. Subs. by Finance Act, 2007, sec. 84(a), for clause (b) (w.e.f. 1-6-2007). Clause (b), before substitution, stood as under: ‘(b) “case” means any proceeding under this Act for the assessment or reassessment of any person in respect of any year or years, or by way of appeal or revision in connection with such assessment or reassessment, which may be pending before any wealth-tax authority on the date on which an application under sub-section (1) of section 22C 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;’.
4. Ins. by Finance Act, 2007, sec. 84(b) (w.e.f. 1-6-2007).
Section 22 B. Wealth-tax Settlement Commission.
1[22B. Wealth-tax Settlement Commission. —(1) The Central Government shall constitute a Commission to be called the Wealth-tax Settlement Commission 2[***] for the settlement of cases under this Chapter.
(2) The Settlement Commission shall consist of a Chairman 3[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 direct taxes.
4[***]
(3) The Chairman 5 [, Vice-Chairmen] 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, problems relating to direct taxes and business accounts:
Provided that, where a member of the Board is appointed as the Chairman 6[, Vice-Chairman] or as a member of the Settlement Commission, he shall cease to be a member of the Board.
7[***]].
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. The words “(hereafter in this Chapter referred to as “the Settlement Commissioner”) omitted by Act 11 of 1987, sec. 78 (w.e.f. 1-6-1987).
3. Subs. by Act 46 of 1986, sec. 35(a), for “and two other members” (w.e.f. 10-9-1986).
4. Sub-section (2A) omitted by Act 46 of 1986, sec. 35(b) (w.e.f. 10-9-1986). Earlier sub-section (2A) was inserted by Act 14 of 1982, sec. 36 (w.r.e.f. 1-4-1982).
5. Ins. by Act 46 of 1986, sec. 35(c)(i) (w.e.f. 10-9-1986).
6. Ins. by Act 46 of 1986, sec. 35(c)(ii) (w.e.f. 10-9-1986).
7. Second proviso omitted by Act 46 of 1986, sec. 35(c)(iii) (w.e.f. l0-9-1986).
Section 22 BA. Jurisdiction and powers of Settlement Commission .
1[2[22BA. Jurisdiction 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 the other Benches shall be known as additional Benches.
(4) Notwithstanding anything contained in sub-sections (1) and (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) 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 two persons may function as the Bench and if the Presiding Officer of the Bench is not one of the remaining two.persons, the senior among the remaining persons shall act as the Presiding Officer of the Bench:
Provided that if at any stage of the hearing of any 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 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.
3 [(5A) 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.]
(6) Subject to the other provisions of this Chapter, the places at which the principal Bench and the additional Benches shall ordinarily sit, shall be such as the Central Government may, by notification in the Official Gazette, specify 4[and the Special Bench shall sit at a place to be fixed by the Chairman]].
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Act 11 of 1987, sec. 79 (w.e.f 1-6-1987).
3. Ins. by Act 49 of 1991, sec. 77(a) (w.e.f. 1-10-1991).
4. Ins. by Act 49 of 1991, sec. 77(b) (w.e.f. 1-10-1991).
Section 22 BB. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances .
1[2[22BB. 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.] ]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Act 11 of 1987, sec. 79 (w.e.f. 1-6-1987).
Section 22 BC. Power of Chairman to transfer cases from one Bench to another.
1[2[22BC. Power of Chairman to transfer cases from one Bench to another.—On the application of the assessee or the 3[Chief Commissioner or Commissioner] and after notice to them, and after hearing such of them as 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.]]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Act 11 of 1987, sec. 79 (w.e.f. 1-6-1987). 3. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
Section 22 BD. Decision to be by majority.
1[2[22BD. 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.]]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Act 11 of 1987, sec. 79 (w.e.f. 1-6-1987).
Section 22 C. Application for settlement of cases .
1[22C. Application for settlement of cases .— 2[(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 wealth which has not been disclosed before the 3[Assessing Officer], the manner in which such wealth has been derived, the additional amount of wealth-tax payable on such wealth and such other particulars as may be prescribed, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided:
4[Provided that no such application shall be made unless such wealth-tax and the interest thereon, which would have been paid under the provisions of this Act had the wealth declared in the application been declared in the return of wealth before the Assessing Officer on the date of application, has been paid on or before the date of making the application and the proof of such payment is attached with the application.]
(1A) For the purposes of sub-section (1) of this section 5[***], the additional amount of wealth-tax payable in respect of the wealth disclosed in an application made under sub-section (1) of this section shall be the amount calculated in accordance with the provisions of sub-sections (1B) to (1D).
6[(1B) Where the wealth disclosed in the application relates to only one previous year,—
(i) if the applicant has not furnished a return in respect of the net wealth of that year, then, wealth-tax shall be calculated on the wealth disclosed in the application as if such wealth were the net wealth;
(ii) if the applicant has furnished a return in respect of the net wealth of that year, wealth-tax shall be calculated on the aggregate of the net wealth returned and the wealth disclosed in the application as if such aggregate were the net wealth.]
7[(1C) The additional amount of wealth-tax payable in respect of the wealth disclosed in the application relating to the previous year referred to in sub-section (IB) shall be;
(a) in a case referred to in clause (i) of that sub-section, the amount of wealth-tax calculated under that clause;
(b) in a case referred to in clause (ii) of that sub-section, the amount of wealth-tax calculated under that clause as reduced by the amount of wealth-tax calculated on the net wealth returned for that year;
8[***]]
(1D) Where the wealth disclosed in the application relates to more than one assessment year, the additional amount of wealth-tax payable in respect of the wealth disclosed for each of the years shall first be calculated in accordance with the provisions of sub-sections (1B) and (1C) and the aggregate of the amount so arrived at in respect of each of the years for which the application has been made under sub-section (1) shall be the additional amount of wealth-tax payable in respect of the wealth disclosed in the application.
(1E) Where any books of account or other documents belonging to an assessee are seized under section 37A, the assessee shall not be entitled to make an application under sub-section (e) before the expiry of one hundred and twenty days from the date of the seizure.]
(2) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed.
(3) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant.
9[(4) An assessee shall, on the date on which he makes an application under sub-section (1) to the Settlement Commission, also intimate the Assessing Officer in the prescribed manner of having made such application to the said Commission.] ]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Subs. by Act 67 of 1984, sec. 61, for sub-section (1) (w.e.f. 1-10-1984).
3. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
4. Subs. by Finance Act, 2007, sec. 85(i), for the proviso (w.e.f. 1-6-2007). Earlier the proviso was inserted by Act 11 of 1987, sec. 80(i) (w.e.f. 1-6-1987). The proviso, before substitution by Finance Act, 2007, stood as under: “Provided that no such application shall be made unless the assessee has furnished the return of wealth which he is or was required to furnish under any of the provisions of this Act.”.
5. The words “and sub-sections (2A) to (2D) of section 22D” omitted by Act 22 of 2007, sec. 85(ii) (w.e.f. 1-6-2007).
6. Subs. by Act 22 of 2007, sec. 85(iii), for sub-section (1B) (w.e.f. 1-6-2007). Earlier sub-section (1B) was inserted by Act 67 of 1984, sec. 61 (w.e.f. 1-10-1984) and was substituted by Act 11 of 1987, section 80(ii) (w.e.f. 1-6-1987). Sub-section (1B), before substitution by Act 22 of 2007, stood as under: “(1B) Where the wealth disclosed in the application relates to only one previous year,— (i) if the applicant has not furnished a return in respect of the net wealth of that year (whether or not an assessment has been made in respect of the net wealth of that year), then, except in a case covered by clause (iii),wealth-tax shall be calculated on the wealth disclosed in the application as if such wealth were the net wealh; (ii) if the applicant has furnished a return in respect of the net wealth of that year (whether or not an assessment has been made in pursuance of such return), wealth tax shall be calculated on the aggregate of the net wealth returned and the wealth disclosed in the application as if such aggregate were the net wealth; (iii) if the proceeding pending before the wealth-tax authority is in the nature of a proceeding for reassessment of the applicant under section 17 or by way of appeal or revision in connection with such reassessment, and the applicant has not furnished a return in respect of the net wealth of that year in the course of such proceeding for reassessment, wealth-tax shall be calculated on the aggregate of the net wealth as assessed in the earlier proceeding for assessment under section 16 or section 17 and the wealth disclosed in the application as if such aggregate were the net wealth.”.
7. Subs. by Act 11 of 1987, sec. 8(ii) (w.e.f. 1-6-1987). Earlier sub-section (1C) was inserted by Act 67 of 1984, sec. 61 (w.e.f. 1-10-1984).
8. Clause (c) omitted by Act 22 of 2007, sec. 85(iv) (w.e.f. 1-6-2007). Clause (c), before omission, stood as under: “(c) in a case referred to in clause (iii) of that sub-section, the amount of wealth-tax calculated under that clause as reduced by the amount of wealth-tax calculated on the net wealth assessed in the earlier proceeding for assessment under section 16 or section 17.”.
9. Ins. by Act 22 of 2007, sec. 85(v) (w.e.f. 1-6-2007).
Section 22 D. Procedure on receipt of an application under section 22C .
1[22D. Procedure on receipt of an application under section 22C .— 2[(1) On receipt of an application under section 22C, the Settlement Commission shall, within seven days from the date of receipt of the application, issue a notice to the applicant requiring him to explain as to why the application made by him be allowed to be proceeded with, and on hearing the applicant, the Settlement Commission shall, within a period of fourteen days from the date of the application, by an order in writing, reject the application or allow the application to be proceeded with:
Provided that where 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.]
3[***]
(2) A copy of every order under sub-section (1) shall be sent to the applicant and to the Commissioner.
4[(2A) Where an application was made under section 22C before the 1st day of June, 2007 but an order under the provisions of sub-section (1) of this section, as they stood immediately before their amendment by the Finance Act, 2007, has not been made before the 1st day of June, 2007, such application shall be deemed to have been allowed to be proceeded with if the additional wealth-tax on the wealth disclosed in such application and the interest thereon is paid on or before the 31st day of July, 2007.
Explanation. —In respect of the application referred to in this sub-section, the 31st day of July, 2007 shall be deemed to be the date of the order of rejection or allowing the application to be proceeded with under sub-section (1).]
5[(2B) The Settlement Commission shall,—
(i) in respect of an application which is allowed to be proceeded with under sub-section (1), within thirty days from the date on which the application was made; or
(ii) in respect of an application referred to in sub-section (2A) which is deemed to have been allowed to be proceeded with under that sub-section, on or before the 7th day of August, 2007, call for a report from the Commissioner, and the Commissioner shall furnish the report within a period of thirty days of the receipt of communication from the Settlement Commission.]
6[(2C) Where a report of the Commissioner called for under sub-section (2B) has been furnished within the period specified therein, the Settlement Commission may, on the basis of the material contained in such report and within a period of fifteen days of the receipt of the report, by an order in writing, declare the application in question as invalid, and shall send the copy of such order to the applicant and the Commissioner:
Provided that an application shall not be declared invalid unless an opportunity has been given to the applicant of being heard:
Provided further that where the Commissioner has not furnished the report within the aforesaid period, the Settlement Commission shall proceed further in the matter without the report of the Commissioner.]
7[(2D) Where an application was made under sub-section (1) of section 22C before the 1st day of June, 2007 and an order under the provisions of sub-section (1) of this section, as they stood immediately before their amendment by the Finance Act, 2007, allowing the application to have been proceeded with, has been passed before the 1st day of June, 2007, but an order under the provisions of sub-section (4), as they stood immediately before their amendment by the Finance Act, 2007, was not passed before the 1st day of June, 2007, such application shall not be allowed to be further proceeded with unless the additional wealth-tax on the wealth disclosed in such application and the interest thereon, is, notwithstanding any extension of time already granted by the Settlement Commission, paid on or before the 31st day of July, 2007.]
8[(3) The Settlement Commission, in respect of —
(i) an application which has not been declared invalid under sub-section (2C); or
(ii) an application referred to in sub-section (2D) which has been allowed to be further proceeded with under that sub-section, may call for the records from the Commissioner 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 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, and the Commissioner shall furnish the report within a period of ninety days of the receipt of communication from the Settlement Commission:
Provided that where the Commissioner does not furnish his report within the aforesaid period, the Settlement Commission may proceed to pass an order under sub-section (4) without such report.
(4) After examination of the records and the report of the Commissioner, if any, received under—
(i) sub-section (2B) or sub-section (3), or
(ii) the provisions of sub-section (1), as they stood immediately before their amendment by the Finance Act, 2007, and after giving an opportunity to the applicant and to the Commissioner 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.]
9[(4A) The Settlement Commission shall pass an order under sub- section (4),—
(i) in respect of an application referred to in sub-section (2A) or sub-section (2D), on or before the 31st day of March, 2008;
(ii) in respect of an application made on or after 1st day of June, 2007, within twelve months from the end of the month in which the application was made.]
10[(5) Subject to the provisions of section 22BA, 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 (4) and, in relation to the passing of such order, the provisions of section 22BD shall apply.]
(6) Every order passed under sub-section (4) shall provide for the terms of settlement including any demand by way of 11[tax, penalty or interest], the manner in which any sum 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.
12[(6A) Where any tax payable in pursuance of an order under sub-section (4) is not paid by the assessee within thirty-five 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 tax or has allowed payment thereof by instalments, the assessee shall be liable to pay simple interest at 13[one and one-fourth per cent. for every month or part of a month] on the amount remaining unpaid from the date or expiry of the period of thirty-five days aforesaid.]
(7) Where a settlement becomes void as provided in sub-section (6), 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 Wealth-tax authority concerned 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 end of the financial year in which the settlement became void.
14[(8), For the removal of doubts, it is hereby declared that nothing contained in section 17A shall apply to any order passed under sub-section (4) or to any order or assessment or reassessment required to be made by the 15[Assessing Officer] in pursuance of any directions contained in such order passed by the Settlement Commission.]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Subs. by Act 22 of 2007, sec. 86(i), for sub-section (1) (w.e.f. 1-6-2007). Earlier sub-section (1) was amended by Act 21 of 1979, sec. 24(a) (w.e.f. 1-4-1980), by Act 49 of 1991, sec. 78(a) (w.e.f. 27-9-1991) and by Act 20 of 2002, sec. 112(a) (w.e.f. 1-6-2002). Sub-section (1), before substitution, by Act 22 of 2007, stood as under: “(1) On receipt of an application under section 22C, the Settlement Commission shall call for a report from the Commissioner 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 shall, where it is possible, by order, reject the application or allow the application to be proceeded with within a period of one year from the end of the month in which such application was made under section 22C: 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 shall furnish the report within a period of one hundred and twenty days of the receipt of communication from the Settlement Commission in case of all applications made under section 22C on or after the date on which the Finance (No.2) Act, 1991, receives the assent of the President and if the Commissioner fails to furnish the report within the said period, the Settlement Commission may make the order without such report.”.
3. Sub-section (1A) omitted by Act 49 of 1991, sec. 78(b) (w.e.f. 27-9-1991). Earlier sub-section (1A) was inserted by Act 21 of 1979, sec. 24(b) (w.r.e.f. 1-4-1979).
4. Subs. by Finance Act, 2007, sec. 86(ii), for sub-section (2A) (w.e.f. 1-6-2007). Earlier sub-section (2A) was amended by Act 32 of 1985, sec. 39 (w.r.e.f. 1-10-1984) and was inserted by Act 67 of 1984, sec. 62(a) (w.e.f. 1-10-1984). Sub-section (2A), before substitution by Finance Act, 2007, stood as under: “(2A) Subject to the provisions of sub-section (2B), the assessee shall, within thirtyfive days of the receipt of a copy of the order under sub-section (1) allowing the application to be proceeded with, pay the additional amount of wealth-tax payable on the wealth disclosed in the application and shall furnish proof of such payment to the Settlement Commission.”.
5. Subs. by Finance Act, 2007, sec. 86(ii), for sub-section (2B) (w.e.f. 1-6-2007). Earlier sub-section (2B) was inserted by Act 67 of 1984, sec. 62(a) (w.e.f. 1-10-1984). Sub-section (2B), before substitution by Finance Act, 2007, stood as under: “(2B) 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 additional amount of wealth-tax referred to in sub-section (2A) 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.”.
6. Subs. by Finance Act, 2007, sec. 86(ii), for sub-section (2C) (w.e.f. 1-6-2007). Earlier sub-section (2C) was inserted by Act 67 of 1984, sec. 62(a) (w.e.f. 1-10-1984). Sub-section (2C), before substitution by Finance Act, 2007, stood as under: “(2C) Where the additional amount of wealth-tax is not paid within the time specified under sub-section (2A), then whether or not the Settlement Commission has extended the time for payment of the amount which remains unpaid or has allowed payment thereof by instalments under sub-section (2B), the assessee shall be liable to pay simple interest at fifteen per cent per annum on the amount remaining unpaid from the date of expiry of the period of thirty-five days referred to in sub-section (2A).”.
7. Subs. by Finance Act, 2007, sec. 86(ii), for sub-section (2D) (w.e.f. 1-6-2007). Earlier sub-section (2D) was inserted by Act 67 of 1984, sec. 62(a) (w.e.f. 1-10-1984), and was amended by Act 4 of 1988, sec. 127 (w.e.f. 1-4-1988). Sub-section (2D), before substitution by Finance Act, 2007, stood as under: “(2D) Where the additional amount of wealth-tax referred to in sub-section (2A) is not paid by the assessee within the time specified under that sub-section or extended under sub-section (2B), as the case may be, the Settlement Commision may direct that the amount of wealth-tax remaining unpaid together with any interest payable thereon under sub-section (2C), be recovered and any penalty for default in making payment of such additional amount of wealth-tax may be imposed and recovered, in accordance with the provisions of Chapter VII, by the Assessing Officer having jurisdiction over the assessee.”.
8. Subs. by Finance Act, 2007, sec. 86(iii), for sub-section (3) and (4) (w.e.f. 1-6-2007). Sub-sections (3) and (4), before substitution by Finance Act, 2007, stood as under: “(3) 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 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 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. (4) After examination of the records and the report of the Commissioner received under sub-section (1) and the report, if any, of the Commissioner received under sub-section (3), and after giving an opportunity to the applicant and to the Commissioner 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 under subsection (1) or sub-section (3).”.
9. Subs. by Finance Act, 2007, sec. 86(iii), for sub-section (4A) (w.e.f. 1-6-2007). Earlier sub-section (4A) was inserted by Act 20 of 2002, sec. 112(b) (w.e.f. 1-6-2002). Sub-section (4A), before substitution by Finance Act, 2007, stood as under: “(4A) In every application, allowed to be proceeded with under sub-section (1), the Settlement Commission shall, where it is possible, pass an order under sub-section (4) within a period of four years from the end of the financial year in which such application was allowed to be proceeded with.”.
10. Ins. by Act 11 of 1987, sec. 81(a) (w.e.f. 1-6-1987). Earlier sub-section (5) was amended by Act 14 of 1982, sec. 37 (w.r.e.f. 1-4-1982) and was omitted by Act 46 of 1986, sec. 35 (w.e.f. 10-9-1986).
11. Subs. by Act 11 of 1987, sec. 81(b), for “tax or penalty” (w.e.f. 1-6-1987). Earlier the words “tax or penalty” were substituted by Act 67 of 1984, sec. 62(b), for the words “tax, penalty or interest” (w.e.f. 1-10-1984).
12. Ins. by Act 67 of 1984, sec. 62(c) (w.e.f. 1-10-1984).
13. Subs. by Finance Act, 2007, for “fifteen per cent. per annum” (w.e.f. 1-4-2008).
14. Ins. by Act 67 of 1984, sec. 62(d) (w.e.f. 1-10-1984).
15. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
Section 22 DD. Power of Settlement Commission to order provisional attachment to protect revenue .
1[2[22DD. 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 the revenue it is necessary so to do, it may, by order, attach provisionally any property belonging to the applicant in the manner provided in the Second Schedule to the Income-tax Act as made applicable to this Act by section 32:
Provided that where a provisional attachment made under section 34C is pending immediately before an application is made under section 22C, an order under this sub-section shall continue such provisional attachment upto the period upto which an order made under section 34C would have continued if such application had not been made:
Provided further that where the Settlement Commission passes an order under this sub-section after the expiry of the period referred to in the preceding proviso, the provisions of sub-section (2) shall apply to such order as if the said order had originally been passed by the Settlement Commission.
(2) Every provisional attachment made by the Settlement Commission under sub-section (1) shall cease to have effect after the expiry of a period of six months from the date of the order made under sub-section (1):
Provided that the Settlement Commission may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as it thinks fit 3[***].]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Act 26 of 1988, sec. 56 (w.r.e.f. 1-4-1988).
3. The words “, so, however, that the total period of extension shall not in any case exceed two years” omitted by Finance Act, 2007, sec. 87 (w.e.f. 1-6-2007).
[Section 22 E. Power of Settlement Commission to re-open completed proceedings .
1[22E. Power of Settlement Commission to re-open completed proceedings .—If the 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 re-open any proceeding connected with the case, but which has been completed under this Act by any Wealth-tax authority before the application under section 22C was made, it may, with the concurrence of the applicant, re-open 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:
2[Provided that no proceeding shall be reopened by the Settlement Commission under this section if the period between the end of the assessment year to which such a proceeding relates and the date of application for settlement under section 22C exceeds nine years:]
3[Provided further that no proceeding shall be reopened by the Settlement Commission under this section in a case where an application under section 22C is made on or after the 1st day of June, 2007.] ]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Subs. by Act 11 of 1987, sec. 82 (w.e.f. 1-6-1987).
3. Ins. by Finance Act, 2007, sec. 88 (w.e.f. 1-6-2007).
Section 22 F. Powers and procedure of Settlement Commission .
1[22F. Powers and procedure of Settlement Commission .—(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 Wealth-tax authority under this Act.
(2) Where an application made under section 22C has been allowed to be proceeded with under section 22D, the Settlement Commission shall, until an order is passed under sub-section (4) of section 22D, have, subject to the provisions of sub-section (3) of that section, exclusive jurisdiction to exercise the powers and perform the functions of a Wealth-tax authority under this Act in relation to the case:
2[Provided that where an application has been made under section 22C on or after the 1st day of June, 2007, the Settlement Commission shall have such exclusive jurisdiction from the date on which the application was made:
Provided further that where—
(i) an application made on or after the 1st day of June, 2007, is rejected under sub-section (1) of section 22D; or
(ii) an application is not allowed to be proceeded with under sub-section (2A) of section 22D, or, as the case may be, is declared invalid under sub-section (2C) of that section; or
(iii) an application is not allowed to be further proceeded with under sub-section (2D) of section 22D, the Settlement Commission, in respect of such application shall have such exclusive jurisdiction up to the date on which the application is rejected, or, not allowed to be proceeded with, or, declared invalid, or, not allowed to be further proceeded with, as the case may be.]
(3) Notwithstanding anything contained in sub-section (2) and in the absence of any express direction to the contrary by the Settlement Commission, nothing contained in this section shall affect the operation of any other provision of this Act requiring the applicant to pay tax on the basis of self assessment in relation to the matters before the Settlement Commission.
(4) For the removal of doubt, it is hereby declared that, 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 insofar as they relate to any matters other than those before the Settlement Commission.
3[ 4[***]
(7) 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 its exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.] ]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Finance Act, 2007, sec. 89 (w.e.f. 1-6-2007).
3. Sub-sections (5) and (6) and (7) subs. by Act 46 of 1986, sec. 37, for sub-section (5) (w.e.f. 10-9-1986).
4. Sub-sections (5) and (6) omitted by Act 11 of 1987, sec. 83 (w.e.f 1-6-1987).
Section 22 G. Inspection, etc., of reports.
1[22G. Inspection, etc., of reports.—No person shall be entitled to inspect, or obtain copies of, any reports made by any Wealth-tax authority 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 the 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.]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
Section 22H. Powers of Settlement Commission to grant immunity from prosecution .
[22H. Powers of Settlement Commission to grant immunity from prosecution .—(1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 22C has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his net wealth and the manner in which such wealth has been acquired, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force 2[and also (either wholly or in part) from the imposition of any penalty] under this Act, with respect to the case covered by the settlement:
3[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 22C.]
4[Provided further that the Settlement Commission shall not grant immunity from prosecution for any offence under the Indian Penal Code (45 of 1860) or under any Central Act other than this Act and the Income-tax Act, 1961 (43 of 1961) to a person who makes an application under section 22C on or after the 1st day of June, 2007.]
5[(1A) 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 settlement passed under sub-section (4) of section 22D within the time specified in such order or within such further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted.]
(2) 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 6[***] had, in the course of the settlement proceedings, concealed any particulars 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. ]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Subs. by Act 67 of 1984, sec. 63, for “and also from the imposition of any penalty” (w.e.f. 1-10-1984).
3. Ins. by Act 11 of 1987, sec. 84(a) (w.e.f. 1-6-1987). 4. Ins. by Finance Act, 2007, sec. 90 (w.e.f. 1-6-2007).
5. Ins. by Act 11 of 1987, sec. 84(b) (w.e.f. 1-6-1987).
6. Certain words omitted by Act 11 of I987, sec. 84(c) (w.e.f. l-6-1987).
Section 22 HA. Abatement of the proceedings before Settlement Commission.
1[2[22HA. Abatement of the proceedings before Settlement Commission. — (1) Where—
(i) an application made under section 22C on or after the 1st day of June, 2007 has been rejected under sub-section (1) of section 22D; or
(ii) an application made under section 22C has not been allowed to be proceeded with under sub-section (2A) or further proceeded with under sub-section (2D) of section 22D; or
(iii) an application made under section 22C has been declared as invalid under sub-section (2C) of section 22D; or
(iv) in respect of any other application made under section 22C, an order under sub-section (4) of section 22D has not been passed within the time or period specified under sub-section (4A) of section 22D, the proceedings before the Settlement Commission shall abate on the specified date.
Explanation. —For the purposes of this sub-section, “specified date” means—
(a) in respect of an application referred to in clause (i), the date on which the application was rejected;
(b) in respect of an application referred to in clause (ii), the 31st day of July, 2007;
(c) in respect of an application referred to in clause (iii), the last day of the month in which the application was declared invalid;
(d) in respect of an application referred to in clause (iv), on the date on which the time or period specified in sub-section (4A) of section 22D expires.
(2) Where a proceeding before the Settlement Commission abates, the Assessing Officer, or, as the case may be, any other wealth-tax 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 22C had been made.
(3) For the purposes of sub-section (2), the Assessing Officer, or, as the case may be, other wealth-tax authority, shall be entitled to use all the material and other information produced by the assessee before the Settlement Commission or the results of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it, as if such material, information, inquiry and evidence had been produced before the Assessing Officer or other wealth-tax authority or held or recorded by him in the course of the proceedings before him.
(4) For the purposes of the time-limit under sections 17A, 32, and 35 and for the purposes of payment of interest under section 34A, in case referred to in sub-section (2), the period commencing on and from the date of a application to the Settlement Commission under section 22C and ending with “specified date” referred to in sub-section (1) shall be excluded.] ]
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1. Chapter VA (Containing sections 22A to 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Finance Act, 2007, sec. 91 (w.e.f. 1-6-2007). Earlier section 22HA relating to “Power of Settlement Commission to send a case back to the Wealth-tax Officer if the assessee does not co-operate” was inserted by Act 11 of 1987, sec. 85 (w.e.f. 1-6-1987) and was amended by Act 4 of 1988, sec. 127 (w.e.f. 1-4-1988) and was omitted by Act 20 of 2002, sec. 113 (w.e.f. 1-6-2002).
Section 22 HAA. Credit for tax paid in case of abatement of proceedings.
1[2[22HAA. Credit for tax paid in case of abatement of proceedings. —Where an application made under section 22C on or after the 1st day of June, 2007, is rejected under sub-section (1) of section 22D, or any other application made under section 22C is not allowed to be proceeded with under sub-section (2A) of section 22D or is declared invalid under sub-section (2C) of section 22D or has not been allowed to be further proceeded with under sub-section (2D) of section 22D or an order under sub-section (4) of section 22D has not been passed within the time or period specified under sub-section (4A) of section 22D, the Assessing Officer shall allow the credit for the tax and interest paid on or before the date of making the application or during the pendency of the case before the Settlement Commission.]]
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1. Chapter VA (Containing sections 22HAA) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Ins. by Finance Act, 2007, sec. 91 (w.e.f. 1-6-2007).
Section 22-I. Order of Settlement to be conclusive .
1[22-I. Order of Settlement to be conclusive .—Every order of settlement passed under sub-section (4) of Section 22D 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 re-opened in any proceeding under this Act or under any other law for the time being in force.]
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1. Chapter VA (Containing sections 22-I) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
Section 22 J. Recovery of sums due under order of settlement .
1[22J. Recovery of sums due under order of settlement .—Any sum specified in an order of settlement passed under sub-section (4) of section 22D 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 in accordance with the provisions of section 32 by the 2[Assessing Officer] having jurisdiction over the person who made the application for settlement under section 22C. ]
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1. Chapter VA (Containing sections 22J) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
Section 22 K. Bar on subsequent application for settlement.
1[2[ 22K. Bar on subsequent application for settlement. —(1) Where,—
(i) an order of settlement passed under sub-section (4) of section 22D provides for the imposition of a penalty on the person who made the application under section 22C for settlement, on the ground of concealment of particulars of his net wealth; or
(ii) after the passing of an order of settlement under the said sub-section (4) in relation to a case, such person is convicted of any offence under Chapter VIII in relation to that case; or
(iii) the case of any such person was sent back to the Assessing Officer by the Settlement Commission on or before the 1st day of June, 2002, then, he shall not be entitled to apply for settlement under section 22C in relation to any other matter.
(2) Where a person has made an application under section 22C on or after the 1st June, 2007 and if such application has been allowed to be proceeded with under sub-section (1) of section 22D, such person shall not be subsequently entitled to make an application under section 22C.]]
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1. Chapter VA (Containing sections 22K) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Subs. by Finance Act, 2007, sec, 92, for section 22K (w.e.f. 1-6-2007). Earlier section 22K was inserted by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976) and was amended by Act 11 of 1987, sec. 86 (w.e.f. 1-6-1987) and by Act 4 of 1988 (w.e.f. 1-4-1988). Section 22K, before substitution, by Finance Act, 2007, stood as under:
“22K. Bar on subsequent application for settlement in certain cases .—
Where— (i) an order of settlement passed under sub-section (4) of section 22D provides for the imposition of a penalty on the person who made the application under section 22C for settlement, on the ground of concealment of particulars of his net wealth; or (ii) after the passing of an order of settlement under the said sub-section (4) in relation to a case, such person is convicted of any offence under Chapter VIII in relation to that case or; (iii) the case of any such person is sent back to the Assessing Officer by the Settlement Commission under section 22HA, then, he shall not be entitled to apply for settlement under section 22C in relation to any other matter.”.
Section 22 L. Proceedings before Settlement Commission to be judicial proceedings .
1[22L. Proceedings before Settlement Commission to be judicial proceedings .—Any proceeding 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).]
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1. Chapter VA (Containing sections 22L) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
Section 22M. Certain persons who have filed appeals to the Appellate Tribunal entitle to make applications to the Settlement Commission.
1[2[22M. Certain persons who have filed appeals to the Appellate Tribunal entitle to make applications to the Settlement Commission. —[ Rep. by Act 11 of 1987, sec. 87 (w.e.f. 1-6-1987). ]]]
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1. Chapter VA (Containing sections 22M) ins. by Act 41 of 1975, sec. 93 (w.e.f. 1-4-1976).
2. Section 22M was earlier amended by Act 67 of 1984, sec. 64 (w.e.f. 1-10-1984).
Chapter VI – Appeals, Revisions and References
Section 23. Appeal to the [Deputy Commissioner (Appeals)] from orders of [Assessing Officer] .
123. Appeal to the 1[Deputy Commissioner (Appeals)] from orders of 2[Assessing Officer] .—(1) 3[Subject to the provisions of sub-section (lA), any person]—
(a) objecting to the amount of4[net wealth] determined under this Act; or
(b) objecting to the amount of wealth-tax determined as payable by him under this Act; or
(c) denying his liability to be assessed under this Act; or
5[(d) objecting to any penalty imposed by the Assessing Offcer under section 18 6[***];]
(e) objecting to any order of the 2[Assessing Officer] under sub-section (2) of section 20; or
(f) objecting to any penalty imposed by the 2[Assessing Officer] under the provisions of 7[section 221] of the Income-tax Act as applied under section 32 for the purposes of wealth-tax; 8[or]
9[(g) objecting to any order made by the 2[Assessing Officer] under section 22 treating him as the agent of a person residing outside India ; or
(h) objecting to any order of the 2[Assessing Officer] under section 35 having the effect of enhancing the assessment or reducing a refund or refusing to allow the claim made by the assessee under the said section; or]
10[(ha) objecting to any order of the Valuation Officer under section 35 having the effect of enhancing the valuation of any asset or refusing to allow the claim made by the assessee under the said section; or 11[***]] may appeal to the 12[Deputy Commissioner (Appeals)] 13[before the 1st day of June, 2000,] against the assessment or order, as the case may be, in the prescribed form and verified in the prescribed manner.
14[(1A) Notwithstanding anything contained in sub-section (1), any person;
(a) objecting to the amount of net wealth determined under this Act or objecting to the amount of wealth-tax determined as payable by him under this Act or denying his liability to be assessed under this Act, where the net wealth determined on assessment made under section 16 exceeds fifteen lakh rupees; or
15[(b) objecting to any penalty imposed under sub-section (1) of section 18 with the previous approval of the 16[Joint Commissioner] as specified in sub-section (3) of that section]; or
17[(c) objecting to any assessment or order referred to in clauses (a) to (h) (both inclusive) of sub-section (1), where such assessment or order has been made by the 16[Joint Commissioner] in exercise of the powers or functions conferred on or assigned to him under section 8 or section ll; or
(d) objecting to any penalty imposed by the 18[Joint Director] or the 16[Joint Commissioner] under section 18A;] or
(e) objecting to an order made by 19[an Assessing Officer] in the case of such persons or classes of persons as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct, may appeal to the Commissioner (Appeals) 20[before the 1st day of June, 2000] against the assessment or order, as the case may be, in the prescribed form and verified in the prescribed manner.
21[(1AA) Notwithstanding anything contained in sub-section (1), every appeal filed, on or after the 1st day of October, 1998, but before the 1st day of June, 2000, before the Deputy Commissioner (Appeals) and any matter arising out of or connected with such appeal and which is so pending shall stand transferred to the Commissioner (Appeals) and the Commissioner (Appeals) may proceed with such appeal or matter from the stage at which it was on that day.]
22[(1B) Notwithstanding anything contained in sub-section (1), the Board or the Director General or Chief Commissioner or Commissioner if so authorised by the Board, may, by order in writing, transfer any appeal which is pending before a Deputy Commissioner (Appeals) and any matter arising out of or connected with such appeal and which is so pending, to the Commissioner (Appeals) if the Board or, as the case may be, the Director General, Chief Commissioner or Commissioner (at the request of the appellant or otherwise) is satisfied that it is necessary or expedient so to do having regard to the nature of the case, the complexities involved and other relevant considerations and the Commissioner (Appeals) may proceed with such appeal or matter from the stage at which it was before it was so transferred:
Provided that the appellant may demand that before proceeding further with the appeal or matter, the previous proceedings or any part thereof be re-opened or that he be reheard;]
(2) An appeal shall be presented within thirty days of the receipt of the notice of demand relating to the assessment or penalty objected to, or the date on which any order objected to, is communicated to him, but the 23[Deputy Commissioner (Appeals)]24[or, as the case may be, the Commissioner (Appeals)] may admit an appeal after the expiration of the period aforesaid if he is satisfied that the appellant had sufficient cause for not presenting the appeal within that period.
25[(2A) Where a return has been filed by an assessee, no appeal under this section shall be admitted unless at the time of filing of the appeal he has paid the tax due on the net wealth returned by him.
26[***]]
(3) The 23[Deputy Commissioner (Appeals)] 24[or, as the case may be, the Commissioner (Appeals)] shall fix a day and place for the hearing of the appeal and may, from time to time, adjourn the hearing.
27[(3A) If the valuation of any asset is objected to in an appeal under clause (a) of sub-section (1)24[or of sub-section (1A)], the 23[Deputy Commissioner (Appeals)] 24[or, as the case may be, the Commissioner (Appeals)] shall—
(a) in a case where such valuation has been made by a Valuation Officer under section 16A, give such Valuation Officer an opportunity of being heard;
(b) in any other case, on a request being made in this behalf by the 26[Assessing Offcer] give an opportunity of being heard to any Valuation Officer nominated for the purpose by the 28[Assessing Officer].]
(4) The 29[Deputy Commissioner (Appeals)] 30[or, as the case may be, the Commissioner (Appeals)) may
(a) at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal;
(b) before disposing of an appeal, make such further inquiry as he thinks fit or cause further inquiry to be made by the 31[ 32[Assessing Officer] or, as the case may be, the Valuation Officer].
(5) In disposing of an appeal the, 29 [Deputy Commissioner (Appeals)] 30[or, as the case may be, the Commissioner (Appeals)] may pass such order as he thinks fit which may include an order enhancing the assessment or penalty:
Provided that no order enhancing the assessment or penalty shall be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.
33[(5A) In disposing of an appeal, the 29[Deputy Commissioner (Appeals)] 30[or, as the case may be, the Commissioner (Appeals)] may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the 29[Deputy Commissioner (Appeals)] 30[or, as the case may be, the Commissioner (Appeals)] by the appellant.]
33[(5B) The order of the 29[Deputy Commissioner (Appeals)] 30[or, as the case may be, the 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.]
(6) A copy of every order passed by the 29[Deputy Commissioner (Appeals)] 30[or, as the case may be, the Commissioner (Appeals)] under this section shall be forwarded to the appellant and the 32[Chief Commissioner or Commissioner].
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1. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
2. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax-Officer” (w.e.f. 1-4-1988).
3. Subs. by Act 29 of 1977, sec. 39 and Sch. V, for “Any person” (w.e.f. 10-7-1978).
4. Subs. by Act 46 of 1964, sec. 22(a)(i), for “his net wealth” (w.e.f. 1-4-1965).
5. Subs. by Act 4 of 1988, sec. 146(a)(i), for clause (d) (w.e.f. 1-4-1989). Earlier clause (d) was amended by Act 46 of 1964, sec. 20(a)(ii) (w.e.f. 1-4-1965).
6. Certain words omitted by Act 3 of 1989, sec. 71(i) (w.e.f. 1-4-1989).
7. Subs. by Act 46 of 1964, sec. 22(a)(iii) for “sub-section (1) of section 46” (w.e.f. 1-4-1965).
8. Ins. by Act 46 of 1964, sec. 22(a)(iii) (w.e.f. 1-4-1965).
9. Ins. by Act 46 of 1964, sec. 22(a)(iv) (w.e.f. 1-4-1965).
10. Ins. by Act 45 of 1972, sec. 11(a)(i) (w.e.f. 1-1-1973).
11. Clause (i) omitted by Act 4 of 1988, sec. 146(a)(ii) (w.e.f. 1-4-1989). Earlier clause (i) was inserted by Act 46 of 1964, sec. 22(a)(iv) (w.e.f. 1-4-1965) and was amended by Act 45 of 1972, sec. 11(a)(ii) (w.e.f. 1-1-1973).
12. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
13. Ins. by Act 10 of 2000, sec. 72(a) (w.e.f. 1-6-2000).
14. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
15. Subs. by Act 3 of 1989, sec. 71(ii), for clause (b) (w.e.f. 1-4-1989). Earlier clause (b) was substituted by Act 4 of 1988, sec. 146(b) (w.e.f. 1-4-1988).
16. Subs. by Act, 21 of 1998, sec. 66, for “Deputy Commissioner” (w.e.f. 1-10-1998).
17. Subs. by Act 4 of 1988, sec. 146(b), for clauses (c) and (d) (w.e.f. 1-4-1988).
18. Subs. by Act 21 of 1998, sec. 66, for “Deputy Director” (w.e.f. 1-10-1998).
19. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
20. Ins. by Act 10 of 2000, sec. 72(b) (w.e.f. 1-6-2000).
21. Ins. by Act 10 of 2000, sec. 72(c) (w.e.f. 1-6-2000).
22. Subs. by Act 4 of 1988, sec. 146(c), for sub-sections (1B) and (1C) (w.e.f. 1-4-1989). Earlier sub-sections (1B) and (1C) were inserted by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
23. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
24. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
25. Ins. by Act 41 of 1975, sec. 94 (w.e.f. 1-10-1975).
26. Proviso omitted by Act 4 of 1988, sec. 146(d) (w.e.f. 1-4-1989).
27. Ins. by Act 45 of 1972, sec. 11(b) (w.e.f. 1-1-1973).
28. Subs. by Act 45 of 1972, sec. 11(c), for “Wealth-tax Officer” (w.e.f. 10-7-1978).
29. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
30. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
31. Subs. by Act 45 of 1972, sec. 11(c), for “Wealth-tax Officer” (w.e.f. 1-1-1973)
32. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988). 33. Ins. by Act 46 of 1964, sec. 22(b) (w.e.f. 1-4-1965).
Section 23 A. Appealable orders before Commissioner (Appeals).
1[23A. Appealable orders before Commissioner (Appeals). —(1) Any person—
(a) objecting to the amount of net wealth determined under this Act, or
(b) objecting to the amount of wealth-tax determined as payable by him under this Act; or
(c) denying his liability to be assessed under this Act; or
(d) objecting to any penalty imposed by the Assessing Officer under section 18 or section 18A; or
(e) objecting to any order of the Assessing Officer under sub-section (2) of section 20; or (f) objecting to any penalty imposed by the Assessing Officer under the provisions of section 221 of the Income-tax Act as applied under section 32 for the purposes of wealth-tax; or
(g) objecting to any order made by the Assessing Officer under section 22 treating him as the agent of a person residing outside India ; or
(h) objecting to any order of the Assessing Officer under section 35 having the effect of enhancing the assessment or reducing a refund or refusing to allow the claim made by the assessee under the said section; or
(i) objecting to any order of the Valuation Officer under section 35 having the effect of enhancing the valuation of any asset or refusing to allow the claim made by the assessee under the said section; or
(j) objecting to any penalty imposed by the Deputy Director or Deputy Commissioner under section 18A.
may appeal to the Commissioner (Appeals) against the assessment or order, as the case may be, in the prescribed form and verified in the prescribed manner and on payment of a fee of two hundred and fifty rupees.
Explanation.— For the purposes of this sub-section, where on or before the 1st day of October, 1998, the post of Deputy Commissioner has been redesignated as Joint Commissioner and the post of Deputy Director has been redesignated as Joint Director, the references in this sub-section for “Deputy Commissioner” and “Deputy Director” shall be substituted by “Joint Commissioner” and “Joint Director” respectively.
(2) Notwithstanding anything contained in sub-section (1) of section 23, every appeal under this Act which is pending immediately before the appointed day, before the Deputy Commissioner (Appeals) and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on that day to the Commissioner (Appeals) and the Commissioner (Appeals) may proceed with such appeals or matter from the stage on which it was on that day:
Provided that the appellant may demand that before proceeding further with the appeal or matter, the previous proceedings or any part thereof be re-opened or that he be re-heard.
Explanation.— For the purposes of this sub-section, “appointed day” means the day appointed under section 246A of the Income-tax Act.
(3) An appeal shall be presented within thirty days of the receipt of the notice of demand relating to the assessment or penalty objected to or the day on which any order objected to is communicated to him, but the Commissioner (Appeals) may admit an appeal after the expiration of the period aforesaid, if he is satisfied that the appeallant had sufficient cause for not presenting the appeal within that period.
(4) Where a return has been filed by an assessee no appeal under this section shall be admitted unless at the time of filing of the appeal, he has paid the tax due on the net wealth returned by him.
(5) The Commissioner (Appeals) shall fix a day and place for the hearing of the appeal and may, from time to time, adjourn the hearing.
(6) If the valuation of any asset is objected to in an appeal under clause (a) or clause (i) of sub-section (1), the Commissioner (Appeals) shall.—
(a) in case where such valuation has been made by a Valuation Officer under section 16A give such Valuation Officer an opportunity of being heard;
(b) in any other case on request being made in this behalf by the Assessing Officer, give an opportunity of being heard to any Valuation Officer nominated for the purpose by the Assessing Officer.
(7) The Commissioner (Appeals) may,—
(a) at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal;
(b) before disposing of any appeal, make such further enquiry as he thinks fit or cause further enquiry to be made by the Assessing Officer or, as the case may be, by the Valuation Officer.
(8) In disposing of an appeal, the Commissioner (Appeals) may pass such order as he thinks fit which may include an order enhancing the assessment or penalty:
Provided that no order enhancing the assessment or penalty shall be made unless the person affected thereby has been give a reasonable opportunity of showing cause against such enhancement.
2[(8A) In every appeal, the Commissioner (Appeals), where it is possible, may hear and decide such appeal within a period of one year from the end of the financial year in which such appeal is filed under sub-section (1).]
(9) In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not placed before the Commissioner (Appeals) by the appellant.
3[(9A) In disposing of an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 22HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceedings before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment.]
(10) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determining the decision thereon and reasons for the decision.
(11) A copy of every order passed by the Commissioner (Appeals) under this section shall be forwarded to the appellant and the Chief Commissioner or Commissioner.]
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1. Ins. by Act 21 of 1998, sec. 69 (w.e.f. 1-10-1998). Earlier section 23A was inserted by Act 4 of 1988, sec. 147 (w.e.f. 1-4-1989) and was omitted by Act 3 of 1989, sec. 95(p) (w.e.f. 1-4-1989).
2. Ins. by Act 27 of 1999, sec. 93 (w.e.f. 1-6-1999).
3. Ins. by the Finance Act, 2008, sec. 64 (w.r.e.f. 1-4-2008).
Section 24. Appeal to the Appellate Tribunal from orders of the [Deputy Commissioner (Appeals)].
24. Appeal to the Appellate Tribunal from orders of the 1[Deputy Commissioner (Appeals)]. — 2 [(1) An assessee objecting to an order passed by the 1[Deputy Commissioner (Appeals)]3[or the Commissioner (Appeals)] under section 18 or section 18A or section 23, 4[section 23A] or sub-section (2) of section 37, 5[***]] may appeal to the Appellate Tribunal within sixty days of the date on which the order is communicated to him.]
(2) The Commissioner may, if he is not satisfied as to the correctness of any order passed by 6[a Commissioner (Appeals) under sub-section (10) of section 23A] direct the7[Assessing Officer] to appeal to the Appellate Tribunal against such order, and such appeal may be made at any time before the expiry of sixty days of the date on which the order is communicated to the Commissioner.
8[(2A) The 3[Assessing Officer] or the assessee, as the case may be, on receipt of notice that an appeal against the order of 9[***] the Commissioner (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 thirty 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 9[***] 6[the Commissioner (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 (1) or sub-section (2).]
10[(3) 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 (1) or sub-section (2) or sub-section (2A), if it is satisfied that there was sufficient cause for not presenting it within that period.]
(4) 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), be accompanied by 11[a fee of 12[one thousand rupees]]:
13[Provided that in the case of an appeal not relatable to net wealth as computed by the Assessing Officer, the appeal shall be accompanied by a fee of five hundred rupees.]
(5) The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and any such orders may include an order enhancing the assessment or penalty:
14[Provided that if the valuation of any asset is objected to, the Appellate Tribunal shall,—
(a) in a case where such valuation has been made by a Valuation Officer under section 16A, also give such Valuation Officer an opportunity of being heard;
(b) in any other case, on a request being made in this behalf by the 7[Assessing Officer], give an opportunity of being heard also to any Valuation Officer nominated for the purpose by the 7[Assessing Officer:
Provided further that] no order enhancing an assessment or penalty shall be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.
15 [(5A) In every appeal, the Appellate Tribunal where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) 16[or sub-section (2)];]
15[(5B) The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal.”]
17[***]
(9) A copy of every order passed by the Appellate Tribunal under this section shall be forwarded to the assessee and the Commissioner.
(10) Save as provided in section 27, 18[or section 27A] any order passed by the Appellate Tribunal on appeal shall be final.
(11) The provisions of 19[sub-sections (1), (4) and (5) of section 255] of the Income-tax Act 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 Income-tax Act.
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1. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
2. Subs. by Act 41 of 1975, sec. 95, for sub-section (1) (w.e.f. 10-7-1978). Earlier sub-section (1) was substituted by Act 46 of 1964, sec. 23(a) (w.e.f. 1-4-1965).
3. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
4. Ins. by Act 21 of 1998, sec. 70(a) (w.e.f. 1-10-1998). Earlier the words “or section 23A” were inserted by Act 4 of 1988, sec. 160(2) (w.e.f. 1-4-1989) and said words were omitted by Act 3 of 1989, sec. 95(r) (w.e.f. 1-4-1989).
5. Certain words omitted by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
6. Subs. by Act 21 of 1998, sec. 70(b), for “a Deputy Commissioner (Appeals) or a Commissioner (Appeals) under section 23” (w.e.f. 1-10-1998).
7. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
8. Ins. by Act 46 of 1964, sec. 23(b) (w.e.f. 1-4-1965).
9. The words “the Deputy Commissioner (Appeals) or” omitted by Act 21 of 1998, sec. 70(c) (w.e.f. 1-10-1998).
10. Subs. by Act 46 of 1964, sec. 23(c), for sub-section (3) (w.e.f. 1-4-1971).
11. Subs. by Act 42 of 1970, sec. 62, for “a fee of one hundred rupees” (w.e.f. 1-4-1971).
12. Subs. by Act 21 of 1998, sec. 70(d), for “two hundred rupees” (w.e.f. 1-10-1998). Earlier the words “two hundred rupees” were substituted by Act 16 of 1981, sec. 28, for “One hundred and twenty five rupees” (w.e.f. 1-6-1981).
13. Ins. by Act 27 of 1999, sec. 94(a) (w.e.f. 1-6-1999).
14. Subs. by Act 45 of 1972, sec. 12(a), for “Provided that” (w.e.f. 1-1-1973).
15.Ins. by Act 27 of 1999, sec. 94(b) (w.e.f. 1-6-1999).
16. Ins. by Act 10 of 2000, sec. 73 (w.e.f. 1-6-2000).
17. Sub-sections (6), (7), (8A) and (8B) omitted by Act 45 of 1972, sec. 12(b) (w.e.f. 1-1-1973). Earlier sub-section (6) was amended by Act 58 of 1960, sec. 58 and Second Sch. (w.e.f. 26-12-1960) and sub-sections (6), (7), (8), (8A) and (8B) were substituted by Act 46 of 1964, sec. 23(d), for sub-sections (6), (7) and (8) (w.e.f. 1-4-1965).
18. Ins. by Act 27 of 1999, sec. 92(c) (w.e.f. 1-6-1999).
19. Subs. by Act 46 of 1964, sec. 23(e), for “sub-sections (5), (7) and (8) of section 5A” (w.e.f. 1-4-1965).
Section 25. Powers of Commissioner to revise orders of subordinate authorities.
(1) The Commissioner may, either of his own motion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him, and may make such inquiry, or cause such inquiry to be made, and, subject to the provisions of this Act, pass such order thereon, not being an order prejudicial to the assessee, as the Commissioner thinks fit:
Provided that the Commissioner shall not revise any order under this sub-section in any case— (a) where an appeal against the order lies to the 1[Deputy Commissioner (Appeals)] 2[or to the Commissioner (Appeals)] or to the Appellate Tribunal, the time within which such appeal can be made has not expired or in the case of an appeal 2[to the Commissioner (Appeals) or] to the Appellate Tribunal the assessee has not waived his right of appeal;
(b) where the order is the subject of an appeal before the 1[Deputy Commissioner (Appeals)] 2[or the Commissioner (Appeals)] or the Appellate Tribunal;
(c) where the application is made by the assessee for such revision, unless—
(i) the application is accompanied by a fee of twenty-five rupees; and
(ii) the application is made within one year from the date of the order sought to be revised or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period; and
(d) where the order is sought to be revised by the Commissioner of his own motion, if such order is made more than one year previously.
Explanation.—For the purpose of this sub-section,—
(a) the 1[Deputy Commissioner (Appeals)] shall be deemed to be an authority subordinate to the Commissioner; and
(b) an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee.
(2) Without prejudice to the provisions contained in sub-section (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 3[an Assessing Officer] is erroneous insofar as it is prejudicial to the interests of revenue, he may, after giving the assessee an opportunity of being heard, and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment or cancelling it and directing a fresh assessment.
4[Explanation.—For the removal of doubts, it is hereby declared that, for the purposes of this sub-section;
(a) an order passed 5[on or before or after the 1st day of June, 1988,] by the Assessing Officer shall include an order made by the Deputy Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on or assigned to him under orders or directions issued by the Board or by the ChiefCommissioner or Director General or Commissioner authorised by the Board in this behalf under section 120 of the Income-tax Act read with section 8 of this Act;
(b) “record” 6[shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the Commissioner;
(c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal 7[filed on or before or after the 1st day of June, 1988], the owers of the Commissioner under this sub-section shall extend 8[and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.]
9[(3) No order shall be made under sub-section (2) after the expiry of two years 10[from the end of the financial year in which the order sought to be revised was passed].
11[(3A) On every application made by an assessee for revision under sub-section (1), an order shall be passed by the Commissioner within one year from the end of financial year in which such application is made by the assessee for revision.
Explanation .—In computing the period of limitation for the purposes of this sub-section the time taken in giving an opportunity to the assessee to be re-heard under the proviso to section 39 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.]
12[(4) Notwithstanding anything contained in sub-section (3) or sub-section (3A), an order in revision under sub-section (1) or sub-section (2) may be passed at any time in consequence of, or to give effect to, any finding or direction contained in an order of Appellate Tribunal, 13[National Tax Tribunal] the High Court or the Supreme Court.]
Explanation.— In computing the period of limitation for the purposes of sub-section (3) the time taken in giving an opportunity to the assessee to be re-heard under the proviso to section 39 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.]
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1. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
2. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
3. Subs. by Act 4 of 1988, sec. 127, for “a Wealth-tax Officer” (w.e.f. 1-4-1986).
4. Subs. by Act 26 of 1988, sec. 57, for Explanation (w.e.f. 1-6-1988). Earlier Explanation was inserted by Act 67 of 1984, sec. 65(a) (w.e.f. 1-10-1984).
5. Ins. by Act 13 of 1989, sec. 30(i) (w.r.e.f. 1-6-1988).
6. Subs. by Act 13 of 1989, sec. 30(ii), for “includes” (w.r.e.f. 1-6-1988).
7. Ins. by Act 13 of 1989, sec. 30(iii)(a) (w.r.e.f. 1-6-1988).
8. Ins. by Act 13 of 1989, sec. 30(iii)(b) (w.r.e.f. 1-6-1988).
9. Ins. by Act 46 of 1964, sec. 24 (w.e.f. 1-4-1965).
10. Subs. by Act 67 of 1984, sec. 65(b), for “from the date of the order sought to be refused” (w.e.f. 1-10-1984).
11. Ins. by Act 21 of 1998, sec. 71(a) (w.e.f. 1-10-1998).
12. Subs. by Act 21 of 1998, sec. 71(b), for sub-section (4) (w.e.f. 1-10-1998). Earlier sub-section (4) was inserted by Act 46 of 1964, sec. 24 (w.e.f. 1-4-1965).
13. Ins. by Act 49 of 2005, sec. 30 and Schedule, Pt. II-2.
Section 26. Appeal to the Appellate Tribunal from orders of enhancement by 1[Chief Commissioners or Commissioners].
26. Appeal to the Appellate Tribunal from orders of enhancement by 1[Chief Commissioners or Commissioners]. —(1) Any assessee objecting to 2[an order passed by the 3[Chief Commissioner or Commissioner] under section 18 4[or section 18A] or sub-section (2) of section 25], 5[or an order passed by the Director-General or Director under Section 18A] may appeal to the Appellate Tribunal within sixty days of the date on which the order is communicated to him.
(2) An appeal to the Appellate Tribunal under sub-section (1) shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by6[a fee of 7[two hundred rupees]].
(3) The provisions of 8[sub-section (3), (5), (9) and (10)] of section 24 shall apply in relation to any appeal under this section as they apply in relation to any appeal under that section.
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1. Subs. by Act 4 of 1988, sec. 127, for “Commissioners” (w.e.f. 1-4-1988).
2. Subs. by Act 46 of 1964, sec. 25, for “an order of enhancement made by the Commissioner under section 25” (w.e.f. 1-4-1965).
3. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
4. Ins. by Act 41 of 1975, sec. 96 (w.e.f. 1-4-1976).
5. Ins. by Act 3 of 1989, sec. 72 (w.e.f. 1-4-1989).
6. Subs. by Act 42 of 1970, sec. 63, for “a fee of one hundred rupees” (w.e.f. 1-4-1971).
7. Subs. by Act 16 of 1981, sec. 29, for “One hundred and twenty-five rupees” (w.e.f. 1-6-1981).
8. Subs. by Act 45 of 1972, sec. 13, for “sub-sections (3) and (5) to (10) inclusive” (w.e.f. 1-1-1973).
Section 27. Reference of High Court.
27. Reference of High Court. — 1[(1) The assessee or the 2[Chief Commissioner or Commissioner] may, within sixty days of the date upon which he is served with notice of an order 3[passed before the 1st day of June, 1999] under section 24 or section 26 4[or clause (e) of sub-section (1) or section 35], by application in the prescribed form accompanied, where the application is made by the assessee, by 5[a fee of 6[two hundred rupees]] require the Appellate Tribunal to refer to the High Court any qestion of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court.
(2) The Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period specified in sub-section (1) allow it to be presented within a further period not exceeding thirty days.]
(3) If, on an application made under sub-section (1) the Appellate Tribunal.—
(a) refuses to state a case on the ground that no question of law arises; or
(b) rejects it on the ground that it is time barred; the applicant may, within 7[ninety days] from the date on which he is served with a notice of refusal or rejection, as the case may be, apply to the High Court, and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case to the High Court, and on receipt of such requisition the Appellate Tribunal shall state the case:
Provided that, if in any case where the Appellate Tribunal has been required by an assessee to state a case the Appellate Tribunal refuses to do so on the ground that no question of law arises, the assessee may, within thirty days from the date on which he receives notice of refusal to state the case, withdraw his application, and if he does so, the fee paid by him under sub-section (1) shall be refunded to him.
8[(3A) If, on an application made under this section the Appellate Tribunal is of the opinion that, on account of a conflict in the decisions of the Hight Courts in respect of any particular question of law, it is expedient that a reference should be made direct to the Supreme Court, the Appellate Tribunal may draw up a statement of the case and refer it through its President direct to the Supreme Court.]
(4) The statement to the High Court 9[or the Supreme Court] shall set forth the facts, the determination of the Appellate Tribunal and the question of law which arises out of the case.
(5) If the High Court 9[or the Supreme Court] is not satisfied that the case as stated is sufficient to enable it to determine the question of law raised thereby, it may require the Appellate Tribunal to make much modifications therein as it may direct.
(6) The High Court 9[or the Supreme Court], upon hearing any such case, shall decide the question of law raised therein, and in doing so, may, if it thinks fit, alter the form of the question of law and shall deliver judgment thereon containing the ground on which such decision is founded and shall send a copy of the judgment under the seal of the court and the signature of the Registrar to the Appellate Tribunal and the Appellate Tribunal shall pass such orders as are necessary to dispose of the case conformably to such judgment.
10[(7) The cost of any reference to the High Court or the Supreme Court which shall not include the fee for making the reference, shall be in the discretion of the Court].
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1. Subs. by Act 46 of 1964, sec. 26(a), for sub-sections (1) and (2) (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
3. Ins. by Act 27 of 1999, sec. 95 (w.e.f. 1-6-1999).
4. Ins. by Act 49 of 1991, sec. 79 (w.e.f. 27-9-1991).
5. Subs. by Act 42 of 1970, sec. 64, for “a fee of rupees one hundred” (w.e.f. 1-4-1971).
6. Subs. by Act 16 of 1981, sec. 30, for “one hundred and twenty-five rupees” (w.e.f. 1-6-1981).
7. Subs. by Act 46 of 1964, sec. 26(b), for “three months” (w.e.f. 1-4-1965).
8. Ins. by Act 46 of 1964, sec. 26(c) (w.e.f. 1-4-1965).
9. Ins. by Act 46 of 1964, sec. 26(d) (w.e.f. 1-4-1965).
10. Subs. by Act 46 of 1964, sec. 26(e), for sub-sections (7), (8) and (9) (w.e.f. 1-4-1965).
Section 27 A. Appeal to High Court.
1[27A. Appeal to High Court.—(1) The assessee or the Chief Commissioner or Commissioner may within one hundred twenty days of the day upon which he is served with notice of an order under section 24 or section 26 or clause (e) of sub-section (1) of section 35, file on or after the 1st day of October, 1998 2[but before the date of establishment of the National Tax Tribunal] appeal before the High Court.]
(2) An appeal shall lie to the High Court 3[before the date of establishment the National Tax Tribunal] from every order passed in appeal by the Appellate Tribunal, under sub-section (1) of section 24 only if the High Court is satisfied that the case involves a substantial question of law.
(3) In an appeal under this section, the Memorandum of Appeal shall precisely state the substantial question of law involved in the appeal 4[***].]
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard only on the question so formulated and the respondent shall, at the time of 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.
(6) 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.
(7) The Assessing Officer shall give effect to the order of the High Court on the basis of a certified copy of judgment delivered under sub-section (6).]
5[(8) The Provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to High Court shall, so far as may be, apply in the case of appeals under this section.]
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1. Ins. by Act 21 of 1998, sec. 72 (w.e.f. 1-10-1998).
2. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. II-3(i) (w.e.f. 28-12-2005).
3. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. II-3(ii) (w.e.f. 28-12-2005).
4. Certain words omitted by Act 27 of 1999, sec. 96(a) (w.e.f. 1-6-1999).
5. Ins. by Act 27 of 1999, sec. 96(b) (w.e.f. 1-6-1999).
Section 28. Hearing by High Court.
When a case has been stated to the High Court 1[under section 27, or an appeal filed before the High Court under section 27A], 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 of such Judges, if any:
Provided that 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 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.
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1. Subs. by Act 21 of 1998, sec. 73, for “under section 27” (w.e.f. 1-10-1998).
Section 29. Appeal to Supreme Court.
(1) An appeal shall lie to the Supreme Court from any judgement of the High Court delivered 1[before the date ofestablishment the National Tax Tribunal] on a case stated 2[under section 27 or an appeal filed under section 27A] in any case which the High Court certified as a fit case for appeal to the Supreme Court.
(2) Where the judgment of the High Court is varied or reversed on appeal under this section, effect shall be given to the order of the Supreme Court in the manner provided in sub-section (6) of section 27 3[or in sub-section (7) of section 27A].
(3) The High Court may, on application made to it for the execution of any order of the Supreme Court in respect of any costs awarded by it, transmit the order for execution to any court subordinate to the High Court.
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1. Ins. by Act 49 of 2005, sec. 30 and Schedule, Pt. II-4 (w.e.f. 28-12-2005).
2. Subs. by Act 21 of 1998, sec. 74(a), for “under section 27” (w.e.f. 1-10-1998).
3. Ins. by Act 21 of 1998, sec. 74(b) (w.e.f. 1-10-1998).
Section 29 A. Tax to be paid notwithstanding reference, etc .
1 [ 29A. Tax 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, 2[under this Act before the commencement of the National Tax Tribunal, Act 2005 (49 of 2005)] wealth-tax shall be payable in accordance with the assessment made in the case.]
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1. Ins. by Act 46 of 1964, sec. 27 (w.e.f. 1-4-1965).
2. Ins. by Act 49 of 2005, sec. 30 and Schedule, Pt. II-5 (w.e.f. 28-12-2005).
Section 29 B. Definition of High Court:- In this Chapter, “High Court” means
1[ 29B. Definition of High Court:- In this Chapter, “High Court” means–
(i) in relation to any State, the High Court of that State;
2[(ii) in relation to the Union territory of Delhi , the High Court of Delhi;
3[***]
4[(iii) in relation to the Union territories of Arunachal Pradesh and Mizoram, the Gauhati High Court (the High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura);]
(iv) in relation to the Union territory of Andaman and Nicobar Islands, the High Court at Calcutta ;
(v) in relation to the Union territory of 5[ Lakshadweep ], the High Court of Kerala;
(vi) in relation to the Union territories of Dadra and Nagar Haveli and Goa, Daman and Diu, the High Court at Bombay ;
(vii) in relation to the Union territory of Pondicherry , the High Court at Madras ;
6[(viii) in relation to the Union territory of Chandigarh , the High Court of Punjab and Haryana.]]
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1. Ins. by Act 46 of 1964, sec. 27 (w.e.f. 1-4-1965).
2. Subs. by the Punjab Reorganisation of Delhi High Court (Adaptation of Laws on Union Subjects) Order, 1968, for clause (ii) (w.e.f. 1-11-1966).
3. Clause (iia) omitted by the State of Himachal Pradesh (Adaptation of Laws on Union Subjects) Order, 1973 (w.r.e.f. 25-1-1971).
4. Subs. by the North-Eastern Areas (Reorganisation) (Adaptation of Laws on Union Subjects) Order, 1974, for clause (iii) (w.r.e.f. 21-1-1972).
5. Subs. by the Laccadive, Minicoy, and Aminidivi lslands (Alteration of Name) Adaptation of Laws Order, l974, for “Laccadive, Minicoy and Aminidivi Islands ” (w.r.e.f 1-11-1973).
6. Ins. by the Punjab Reorganisation and Delhi High Court (Adaptation of Laws on Union Subjects) Order, 1968 (w.r.e.f. 1-11-1966).
Chapter VII – Payment and Recovery of Wealth-Tax
Section 30. Notice of demand.
1[30. Notice of demand .—When any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act, the 2[Assessing Officer] shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable.]
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1. Subs. by Act 46 of 1964, sec. 28, for section 30 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
Section 31. When tax, etc., payable and when assessee deemed in default
1[31. When tax, etc., payable and when assessee deemed in default .—(1) Any amount specifed as payable in a notice of demand under section 30 shall be paid within 2[thirty days] of the service of the notice at the place and to the person mentioned in the notice:
Provided that, where the 3[Assessing Officer] has any reason to believe that it will be detrimental to revenue if the full period of 2[thirty days] aforesaid is allowed, he may, with the previous approval of the 4[Deputy Commissioner], direct that the sum specified in the notice of demand shall be paid within such period being a period less than the period of 2[thirty days] aforesaid, as may be specified by him in the notice of demand.
(2) If the amount specifed in any notice of demand under section 30 is not paid within the period limited under sub-section (1), the assessee shall be liable to pay simple interest at 5[ 6[ 7[one per cent.]] for every month or part of a month comprised in the period commencing from the day immediately following the end of the period mentioned in sub-section (1) and ending with the day on which the amount is paid]:
Provided that, where as a result of an order under section 23 8[or section 23A], or section 24, or section 25, or section 26, or section 27, or section 29, or section 35 9[or any order of the Wealth-tax Settlement Commission under sub-section (4) of section 22D] the amount on which interest was payable under this section had been reduced, the interest shall be reduced accordingly and the excess interest paid, if any, shall be refunded:
10[Provided further that in respect of any period commencing on or before the 31st day of March, 1989, and ending after that date, such interest shall, in respect of so much of such period as falls after that date, be calculated at the rate of 11[ 12[ 13[one per cent.]] for every month or part of a month.]
14[(2A) Notwithstanding anything contained in sub-section (2), 15[the [ 16 Chief Commissioner or Commissioner] may] reduce or waive the amount of 17[interest paid or payable by an assessee] under the said sub-section if 18[he is satisfied that]—
19[(i) payment of such amount has caused or would cause genuine hardship to the assessee;
(ii) default in the payment of the amount on which interest thas been paid or was payable under the said sub-section was due to circumstances beyond the control of the assessee; and]
(iii) the assessee has co-operated in any inquiry relating to the assessment or any proceeding for the recovery of any amount due from him.]
(3) Without prejudice to the provisions contained in sub-section (2), on an application made by the assessee before the expiry of the due date under sub-section (1), the20[Assessing Officer] may extend the time for payment or allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case.
(4) If the amount is not paid within the time limit under sub-section (1) or extended under sub-section (3), as the case may be, at the place and to the person mentioned in the said notice, the assessee shall be deemed to be in default.
(5) If in a case where payment by instalments is allowed under sub-section (3), the assessee commits default in paying any one of the instalments within the time fixed under that sub-section, that assessee shall be deemed to be in default as to the whole of the amount then outstanding, and the other instalment or instalments shall be deemed to have been due on the same date as the instalment actually in default.
(6) Where an assessee has presented an appeal under section 23 21[or section 23A], the20[Assessing Officer] may, in his discretion, and subject to such conditions as he may think fit to impose in the circumstances of the case, treat the assessee as not being in default in respect of the amount in dispute in the appeal, even though the time for payment has expired as long as such appeal remains undisposed of.
(7) Where an assessee has been assessed in respect of assets located in a country outside lndia, the laws of which prohibit or restrict the remittance of money to India, the 20[Assessing Officer] shall not treat the assessee as in default in respect of that part of the tax which is attributable to those assets, and shall continue to treat the assessee as not in default in respect of that part of the tax until the prohibition or restriction of remittance is removed.]
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1. Subs. by Act 46 of 1964, sec. 28, for section 31 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 148(a), for “thirty-five days” (w.e.f. 1-4-1989).
3. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
4. Subs. by Act 4 of 1988, sec. l27, for “Inspecting Assistant Commissioner” (w.e.f. l-4-1988).
5. Subs. by Act 4 of 1988, sec. 148(b)(i), for certain words (w.e.f. 1-4-1989).
6. Subs. by Act 4 of 2001, sec. 99, for “one and one-half per cent.” (w.e.f. 1-6-2001).
7. Subs. by Act 54 of 2003, sec. 20(a), for “one and one-fourth per cent.” (w.r.e.f. 8-9-2003).
8. Ins. by Act 10 of 2000, sec. 74(a) (w.e.f. 1-6-2000).
9. Ins. by Act 4 of 1988, sec. 148(b)(ii) (w.e.f. 1-4-1989).
10. lns. by Act 4 of 1988, sec. 148(b)(iii) (w.e.f. 1-4-1989).
11. Subs. by Act 14 of 2001, sec. 99(i), for “one and one-half per cent.” (w.e.f. 1-6-2001).
12. Subs. by Act 14 of 2001, sec. 99(ii), for “one and one-half per cent.” (w.e.f. 1-6-2001).
13. Subs. by Act 54 of 2003, sec. 20(b), for “one and one-fourth per cent.” (w.r.e.f. 8-9-2003).
14. Ins. by Act 67 of 1984, sec. 66(b) (w.e.f. 1-10-1984).
15. Subs. by Act 4 of 1988, sec. 88(a)(i), for “the Board may” (w.r.e.f. 1-4-1987).
16. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
17. Subs. by Act 11 of 1987, sec. 88(a)(ii), for “interest payable by an assessee” (w.r.e.f. 1-10-1984).
18. Subs. by Act 11 of 1987, sec. 88(a)(iii), for certain words (w.r.e.f. 1-4-1987).
19. Subs. by Act 11 of 1987, sec. 88(b), for clauses (i) and (ii) (w.r.e.f. 1-10-1984).
20. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
21. Ins. by Act 10 of 2000, sec. 74(b) (w.e.f. 1-6-2000).
Section 32. Mode of recovery :
1[32. Mode of recovery :—The provisions contained in 2[sections 221 to 227, 228A], 229, 231 and 232 of the Income-tax Act and the Second and Third Schedules to that Act and any rules made thereunder shall, so far as may be, apply as if the said provisions were provisions of this Act and referred to wealth-tax and sums imposed by way of penalty, fine and interest under this Act instead of to income-tax and sums imposed by way of penalty, fine and interest under that Act 3[and to the corresponding wealth-tax authorities instead of to the income-tax authorities specified therein].
4[Explanation I. —Any reference to section 173 and sub-section (2) or sub-section (6) or sub-section (7) of section 220 of the Income-tax Act in the said provisions of that Act or the rules made thereunder shall be construed as references to sub-section (7) of section 22 and sub-section (2) or sub-section (6) or sub-section (7) of section 31 of this Act respectively. ]]
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1. Subs. by Act 46 of 1964, sec. 28, for section 32 (w.e.f. 1-4-1965).
2. Subs. by Act 16 of 1972, sec. 48, for “sections 221 to 227” (w.e.f. 1-4-1972).
3. Subs. by Act 4 of 1988, sec. 149(a), for certain words (w.e.f. 1-4-1988).
4. Subs. by Act 4 of 1988, sec. 149(b), for Explanation II (w.e.f. 1-4-1988). Earlier Explanation II was amended by Act 32 of 1971, sec. 35 (w.e.f. 1-1-1972).
Section 33. Liability of transferees of properties in certain cases .
33. Liability of transferees of properties in certain cases .—(1) Where by reason of the provisions contained in section 4, the value of any assets transferred to any of the persons mentioned in that section have to be included in the net wealth of an individual, the person in whose name such assets stand shall, notwithstanding anything contained in any law to the contrary, be liable, on the service of a notice of demand by the 1[Assessing Officer] in this behalf, to pay that portion of the tax assessed on the assessee as is attributable to the value of the asset standing in his name as aforesaid:
Provided that where any such asset is held jointly by more than one person, they shall be jointly and severally liable to pay the tax as is attributable to the value of the asset so jointly held.
(2) Where any such person as is referred to in sub-section (I) defaults in making payment of any tax demanded from him, he shall be deemed to be an assessee in default in respect of such sum, and all the provisions of this Act relating to recovery shall apply accordingly.
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1. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
Section 34. Restrictions on registration of transfers of immovable property in certain cases:
34. Restrictions on registration of transfers of immovable property in certain cases:—[ Rep. by the Wealth-tax Act, 1964 (46 of 1964), sec. 29 (w.e.f. 1-4-1965). ]
Chapter VII A – Refunds
Section 34 A. Refunds
1[34A. Refunds .—(1) Where, as a result of any order passed in appeal or other proceeding including a rectification proceeding under this Act, refund of any amount becomes due to the assessee, the 2[Assessing Officer] shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf:
3[Provided that where, by the order aforesaid;
(a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment;
(b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the 4[net wealth] returned by the assessee.]
5[(2) Where refund of any amount becomes due to the assessee as a result of an order under this Act or under the provisions of sub-section (1) of section 16 after a return has been” made under section 14 or section 15 or in response to a notice under clause (i) of sub-section (4) of section 16 and the Assessing Officer is of the opinion, having regard to the fact that,
(i) a notice has been issued, or is likely to be issued, under sub-section (2) of section 16 in respect of the said return; or
(ii) the order is the subject-matter of an appeal or further proceeding; or
(iii) any other proceeding under this Act is pending;
that the grant of the refund is likely to adversely affect the revenue, the Assessing Officer may, with the previous approval of the Chief Commissioner or Commissioner, withhold the refund till such time as the Chief Commissioner or Commissioner may determine.]
(3) Where a refund is due to the assessee in pursuance of an order referred to in sub-section (1) and the 2[Assessing Officer] does not grant the refund within a period of six months from the date of such order, the Central Government shall pay to the assessee simple interest at 6[ 7[ 8[ 9[six per cent.]]]] per annum on the amount of refund due from the date immediately following the expiry of the period of six months aforesaid to the date on which the refund is granted.
10[(3A) Where the whole or any part of the refund referred to in sub-section (3) is due to the assessee as a result of any amount having been paid by him after the 31st day of March, 1975 in pursuance of any order of assessment or penalty and such amount or any part thereof having been found in appeal or other proceeding under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in sub-section (3) on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted:
Provided that, where the amount so found to be in excess was paid in instalments, such interest shall be payable on the amount of each such instalment or any part of such instalment, which was in excess, from the date on which such instalment was paid to the date on which the refund is granted:
Provided further that no interest under this sub-section shall be payable for a period of one month from the date of the passing of the order in appeal or other proceeding:
Provided also that where any interest is payable to an assessee under this sub-section, no interest under sub-section (3) shall be payable to him in respect of the amount so found to be in excess.]
(4) Where a refund is withheld under the provisions of sub-section (2), the Central Government shall pay interest at the aforesaid rate on the amount of refund ultimately determined to be due as a result of the appeal or further proceeding for the period commencing after the expiry of six months from the date of the order referred to in that sub-section to the date the refund is granted.
11[(4A) The provisions of sub-sections (3), (3A) and (4) shall not apply in respect of any assessment for the assessment year commencing on the lst day of April, 1989, or any subsequent assessment year.
(4B) (a) 12[Where refund of any amount becomes due to the assessee under this Act,] he shall, subject to the provisions of sub-section, be entitled to receive, in addition to the said amount, simple interest thereon calculated at the rate of 13[14[ 15[one-half per cent.]]] for every month or part of a month comprised in the period or periods from the date or, as the case may be, dates of payment of the tax or penalty to the date on which the refund is granted.
Explanation .—For the purposes of this clause, “date of payment of the tax or penalty” means the date on and from which the amount of tax or penalty specified in the notice of demand issued under section 30 is paid in excess of such demand.
(b) If the proceedings resulting in the refund are delayed for reasons attributable to the assessee, whether wholly or in part, period of the delay so attributable to him shall be excluded from the period for which interest is payable and where any question arises as to the period to be excluded, it shall be decided by the Chief Commissioner or Commissioner whose decision thereon shall be final.
(c) Where as a result of an order under 16[sub-section (3) or sub-section (5) of section 16 or] section 17 or section 23 17[or section 23A] or section 24 or section 25 or section 27 or section 29 or section 35 or any order of the Wealth-tax Settlement Commission under sub-section (4) of section 22D, the amount on which interest was payable under clause (a) has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and in a case where the interest is reduced, the Assessing Officer shall serve on the assessee a notice of demand in the prescribed form specifying the amount of the excess interest paid and requiring him to pay such amount; and such notice of demand shall) be deemed to be a notice under section 30 and the provisions of this Act shall apply accordingly.
(d) The provisions of this sub-section shall apply in respect of assessments for the assessment year commencing on the lst day of April, 1989, and subsequent assessment years.]
(5) Where under any of the provisions of this Act, a refund is found to be due to any person, the 18[Assessing Officer] or 19[Deputy Commissioner (Appeals)] or 20[Commissioner (Appeals)] or 21 [Chief Commissioner or Commissioner] as the case may be may in lieu of payment of the refund, set off the amount to be refunded or any part of that amount, against the sum, if any, remaining payable under this Act by the person to whom the refund is due, after giving an intimation in writing to such person of the action proposed to be taken under this section.] ]
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1. Chapter VIIA (containing section 34A) ins. by Act 46 of 1964, sec. 30 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
3. Ins. by Act 4 of 1988, sec. 150(i) (w.e.f. 1-4-1989).
4. Subs. by Act 3 of 1989, sec. 73(a), for “total income” (w.e.f. 1-4-1989).
5. Subs. by Act 36 of 1989, sec. 29, for sub-section (2) (w.r.e.f. 1-4-1989).
6. Subs. by Act 67 of 1984, sec. 67, for “twelve-per cent.” (w.e.f. 1-10-1984).
7. Subs. by Act 14 of 2001, sec. 100(a), for “fifteen per cent.” (w.e.f. 1-6-2001).
8. Subs. by Act 20 of 2002, sec. 114(a), for “nine per cent.” (w.e.f. 1-6-2002).
9. Subs. by Act 54 of 2003, sec. 21(a), for “eight per cent.” (w.r.e.f. 8-9-2003).
10. Ins. by Act 41 of 1975, sec. 97 (w.e.f. 1-10-1975).
11. Ins. by Act 4 of 1988, sec. 150(ii) (w.e.f. 1-4-1989).
12. Subs. by Act 3 of 1989, sec. 73(b)(i), for certain words (w.e.f. 1-4-1989).
13. Subs. by Act 14 of 2001, sec. 100(b), for “one per cent.” (w.e.f. 1-6-2001).
14. Subs. by Act 20 of 2002, sec. 114(b), for “three-fourth per cent.” (w.e.f. 1-6-2002).
15. Subs. by Act 54 of 2003, sec. 21(b), for “two-third per cent.” (w.r.e.f. 8-9-2003).
16. Ins. by Act 3 of 1989, sec. 73(b)(ii) (w.e.f. 1-4-1989).
17. Ins. by Act 10 of 2000, sec. 75 (w.e.f. 1-6-2000).
18. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
19. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. l-4-1988).
20. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
21. Subs. by Act 4 of 1988, sec. 127, for “Commissioner’ (w.e.f. 1-4-1988).
Chapter VII B – Registered Valuers
Section 34 AA. Appearance by registered valuers .
1[34AA. Appearance by registered valuers .—Notwithstanding anything contained in this Act, any assessee who is entitled to or required to attend before any wealth-tax authority or the Appellate Tribunal in connection with any matter relating to the valuation of any asset, except where he is required under this Act to attend in person, may attend by a registered valuer.]
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1. Chapter VIIB (containing sections 34AA) ins. by Act 45 of 1972, sec. 14 (w.e.f. 15-11-1972).
Section 34 AB. Registration of valuers .
1[34AB. Registration of valuers .—(1) The 6 [Chief Commissioner or Director-General] shall maintain a register to be called the Register of Valuers in which shall be entered the names and addresses of persons registered under sub-section (2) as valuers.
(2) Any person who possesses the qualifications prescribed in this behalf may apply to the 2[Chief Commissioner or Director-General] in the prescribed form for being registered as a valuer under this section:
Provided that different qualifications may be prescribed for valuers of different classes of assets.
(3) Every application under sub-section (2) shall be verified in the prescribed manner, shall be accompanied by such fees as may be prescribed and shall contain a declartion to the effect that the applicant will (i) make an impartial and true valuation of any asset which he may be required to value;
(ii) furnish a report of such valuation in the prescribed form;
(iii) charge fees at a rate not exceeding the rate or rates prescribed in this behalf;
(iv) not undertake valuation of any asset in which he has a direct or indirect interest.
(4) The report of valuation of any asset by a registered valuer shall be in the prescribed form and be verified in the prescribed manner. ]
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1. Chapter VIIB (containing sections 34AB) ins. by Act 45 of 1972, sec. 14 (w.e.f. 15-11-1972).
2. Subs. by Act 26 of 1988, sec. 58, for “Board” (w.e.f. 1-6-1988).
Section 34 AC. Restrictions on practice as registered valuer.
34AC. Restrictions on practice as registered valuer.—(1) No person, either alone or in partnership with any other person, shall practise, describe himself or hold himself out as a registered valuer for the purposes of this Act or permit himself to be so described or held out, unless he is registered as a valuer or, as the case may be, unless he and all his partners are so registered under this Chapter.
(2) No company or other body corporate shall practise, describe itself or hold itself out as registered valuers for the purposes of this Act or permit itself to be so described or held out.
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1. Chapter VIIB (containing sections 34AC) ins. by Act 45 of 1972, sec. 14 (w.e.f. 15-11-1972).
Section 34 ACC. Furnishing of particulars in certain case
1[2[34ACC. Furnishing of particulars in certain case .—Where any person who is registered as a valuer under section 34AB or who has made an application for registration as a valuer under that section is, at any time thereafter;
(a) convicted of any offence and sentenced to a term of imprisonment; or
(b) in a case where he is a member of any association or institution established in India having as its object the control, supervision, regulation or encouragement of the profession of architecture, accountancy, or company secretaries of such other profession as the Board may specify in this behalf by notification in the Official Gazette, found guilty of misconduct in his professional capacity, by such association or institution, he shall immediately after such conviction or, as the case may be, finding, intimate the particulars thereof 3[to the Chief Commissioner or Director-General.] ]
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1. Chapter VIIB (containing sections 34ACC) ins. by Act 45 of 1972, sec. 14 (w.e.f. 15-11-1972).
2. Ins. by Act 67 of 1984, sec. 68 (w.e.f. 1-10-1984).
3. Subs. by Act 26 of 1988, sec. 59, for “to the Board” (w.e.f. 1-6-1988).
Section 34 AD. Removal from register of names of valuers and restoration .
1[34AD. Removal from register of names of valuers and restoration .—(1) The2[Chief Commissioner or Director-General] may remove the name of any person from the register of valuers where 3[he is satisfied] after giving that person a reasonable opportunity of being heard and after such further inquiry, if any, as 4[he thinks fit] to make;
(i) that his name has been entered in the register by error or on account of misrepresentation or suppression of a material fact;
(ii) that he has been convicted of any offence and sentenced to a term of imprisonment or has been guilty of misconduct in his professional capacity which, in the opinion of the 5[Chief Commissioner or Director-General], renders him unfit to be kept in the register.
(2) The 6[Chief Commissioner or Director-General] may, on application and on sufficient cause being shown, restore to the register the name of any person removed therefrom.]
7[(3) Without prejudice to the provisions of sub-sections (1) and (2), the Chief Commissioner or Director-General shall, once in three years, review the performance of all the registered valuers and may remove the name of any person from the register of valuers where he is satisfied, after giving that person a reasonable opportunity of being heard and after such further inquiry, if any, as he thinks fit to make, that his performance is such that his name should not remain on the register of valuers.]
7[(4) The Chief Commissioner or Director-General may himself conduct the inquiry referred to in sub-section (1) or sub-section (3) or appoint an Inquiry Officer not below the rank of a Commissioner to conduct such inquiry, and for the purposes of such inquiry, the Chief Commissioner or Director-General and the Inquiry Officer so appointed shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:—
(a) discovery and inspection;
(b) enforcing the attendance of any person including any officer of a banking company and examining him on oath;
(c) compelling the production of books of account and other documents;
(d) issuing commission.]
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1. Chapter VIIB (containing sections 34AD) ins. by Act 45 of 1972, sec. 14 (w.e.f. 15-11-1972).
2. Subs. by Act 26 of 1988, sec. 60(a)(i), for “Board” (w.e.f. 1-6-1988).
3. Subs. by Act 26 of 1988, sec. 60(a)(ii), for “it is satisfied” (w.e.f. 1-6-1988).
4. Subs. by Act 26 of 1988, sec. 60(a)(iii), for “it thinks fit” (w.e.f. 1-6-1988).
5. Subs. by Act 26 of 1988, sec. 60(a)(i), for “Board” (w.e.f. 1-6-1988).
6. Subs. by Act 26 of 1988, sec. 60(b), for “Board” (w.e.f. 1-6-1988).
7. Ins. by Act 26 of 1988, sec. 60(c) (w.e.f. 1-6-1988).
Section 34 AE. Existing registered valuers to apply afresh :
1[34AE. Existing registered valuers to apply afresh :- (1) Notwithstanding anything contained in this Chapter, every person whose name is included in the register of valuers immediately before the 1st day of June, (1988), shall, if he intends to continue to be registered under this Act, make an application under sub-section (2) of section 34AB within a period of three months from that date, for being registered aftesh as a valuer under this Chapter and the provisions of sub-section (3) of that section and the rules made thereunder shall be applicable in respect of the verification of the application; the fees that shall accompany such application and the declaration to be made by the applicant.
(2) The provisions of this Chapter regarding the registration of a person as a valuer and other matters shall, so far as may be, apply to every application made under sub-section (1).
(3) Every application pending before the Board immediately before the 1st day of June, 1988, shall be deemed to be an application received by the Chief Commissioner or Director General under sub-section (1).]
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1. Ins. by Act 26 of 1988, sec. 61 (w.e.f. 1-6-1988).
Chapter VII C – Miscellaneous
Section 34 B. Transfers to defraud revenue to be void .
1[34B. Transfers to defraud revenue to be void .-—(1) Where, during the pendency of any proceeding under this Act or after the completion thereof, but before the service of notice under rule 2 of the Second Schedule to the Income-tax Act as made applicable to this Act by section 32, any assessee creates a charge on, or parts with (by way of sale, mortgage gift, exchange or any other mode of transfer whatsoever) the possession of any of his assets in favour of any other person, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the assessee as a result of the completion of the proceeding or otherwise:
Provided that such charge or transfer shall not be void, if it is made
(i) for adequate consideration and without notice of the pendency of such proceeding or, as the case may be, without notice of such tax or other sum payable by the assessee; or
(ii) with the previous permission of the 2[Assessing Officer].
(2) This section applies to cases where the amount of tax or other sum payable or likely to be payable exceeds] five thousand rupees and the assets charged or transferred exceed ten thousand rupees in value.
Explanation .—In this section, “assets” means land, building, machinery, plant, shares, securities and fixed deposits in banks to the extent to which any of the assets aforesaid does not form part of the stock in trade of the business of the assessee. ]
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1. Sections 34B and 34C subs. by Act 41 of 1975, sec. 98, for section 34B (w.e.f. 1-10-1975). Earlier section 34B was inserted by Act 46 of 1964, sec. 31 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. l27, for “Wealth-tax Officer” (w.e.f. l-4-1988).
Section 34 C. Provisional attachment to protect revenue in certain cases .
1[34C. Provisional attachment to protect revenue in certain cases .—(1) Where, during the pendency of any proceeding for the assessment of net wealth or for the assessment or re-assessment of net wealth which has escaped assessment, the 2[Assessing Officer] is of the opinion that for the purpose of protecting the interests of the revenue it is necessary to do, he may, with the previous approval of the 3[Chief Commissioner or Commissioner], by order in writing, attach provisionally any property belonging to the assessee in the manner provided in the Second Schedule to the Income-tax Act as made applicable to this Act by section 32.]
4[ Explanation .—For the purposes of this sub-section, the proceedings under sub-section (5) of section 37A shall be deemed to be proceedings for the assessment of any net wealth or for the assessment or reassessment of any net wealth which has escaped assessment.]
(2) Every such provisional attachment shall cease to have effect after the expiry of a period of six months from the date of the order made under sub-section (1):
Provided that the 3[Chief Commissioner or Commissioner] may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as he thinks fit, so however, that the total period of extension shall not in any case exceed two years:]
5[Provided further that where an application for settlement under section 22C is made the period commencing from the date on which such application is made and ending with the date on which an order under sub-section (1) of section 22D is made shall be excluded from the period specified in the preceding proviso.]
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1. Sections 34B and 34C subs. by Act 41 of 1975, sec. 98, for section 34B (w.e.f. 1-10-1975). Earlier section 34B was inserted by Act 46 of 1964, sec. 31 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. l27, for “Wealth-tax Officer” (w.e.f. l-4-1988).
3. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
4. Ins. by Act 26 of 1988, sec. 62(a) (w.r.e.f. 1-4-1988). 5. Ins. by Act 26 of l988, sec. 62(b) (w.r.e.f. 1-4-1988).
[Section 35. Rectification of mistakes
1[35. Rectification of mistakes .—(1) With a view to rectifying any mistake apparent from the record
(a) the 2[Assessing Officer] may amend any order of assessment or of refund or any other order passed by him;
3[(aa) a wealth-tax authority may amend any intimation or deemed intimation under sub-section (1) of section 16.]
4[ 5[(aaa)] the Valuation Officer may amend any order passed by him under
section 16A;]
6[(b) the 7[Joint Director] or 8[Joint Commissioner] or Director or Commissioner or Deputy Commissioner (Appeals) or Commissioner (Appeals) may amend any order passed by him under section 18A;]
9[***]
10[(c) the Deputy Commissioner (Appeals) or Commissioner (Appeals) may amend any order passed by him under section 23 11[or section 23A];
(d) the Commissioner may amend any order passed by him under section 25;
(e) the Appellate Tribunal may amend any order passed by it under section 24.]
(2) Where the amount of tax, penalty or interest determined as a result of the first appeal or revision against the order referred to in sub-clause (iii) of clause (m) of section 2, 12[as it existed immediately before its amendment by the Finance Act, 1992,] is paid within six months of the date of the order passed in such appeal or revision, the 2[Assessing Officer] may, notwithstanding anything to the contrary in this Act, rectify the assessment by allowing a deduction to the extent the tax, penalty or interest so paid stood disallowed therein as if such rectification were a rectification of a mistake apparent from the record.
(3) Subject to the other provisions of this section, the authority concerned—
(a) may make an amendment under sub-section (1) or sub-section (2) of its own motion; and
(b) shall make such amendment for rectifying any such mistake which has been brought to its notice by the assessee, and where the authority concerned is the 13[Valuation Officer or the 14[Deputy Commissioner (Appeals)]] 15[or the Commissioner (Appeals)] or the Appellate Tribunal, by the 2[Assessing Officer] also.
(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 authority concerned has given notice to the assessee of its 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 Wealth-tax authority concerned or the Tribunal, as the case may be.
(6) Where any such amendment has the effect of enhancing the assessment or reducing a refund already made, the 2[Assessing Officer] shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under section 30 and the provisions of this Act shall apply accordingly.
16[(6A) Where any amendment made by the Valuation Officer under clause (aa) of sub-section (1) has the effect of enhancing the valuation of any asset, he shall send a copy of his order to the 2[Assessing Officer] who shall thereafter proceed to amend the order of assessment in conformity with the order of the Valuation Officer and the provisions of subsection (6) shall apply accordingly.]
(7) No amendment under this section shall be made after the expiry of four years—
(a) in the case of an amendment under sub-section (2) 17[from the end of the financial year in which the order was passed in the first appeal or revision] referred to in that sub-section; and
(b) in any other case 18[from the end of the financial year in which the order sought to be amended was passed]
19[(7A) Notwithstanding anything contained in sub-section (7), where the valuation of any asset has been enhanced by the Valuation Officer under this section the consequential amendment to the order of assessment may be made by the 2[Assessing Officer] at any time before the expiry of one year from the date of the order of the Valuation Officer under this section.]
(8) Where any matter has been considered and decided in a proceeding by way of an appeal or revision relating to an order referred to in sub-section (1), the authoriry passing such order may, notwithstanding anything contained in any other law for the time being in force, amend the order under this section in relation to any matter other than the matter which has been so considered and decided.]
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1. Subs. by Act 46 of 1964, sec. 32, for section 35 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
3. Subs. by Act 27 of 1999, sec. 97, for clause (aa) (w.e.f. 1-6-1999). Earlier clasue (aa) was inserted by Act 4 of 1988, sec. 151 (w.e.f. 1-4-1989).
4. Ins. by Act 45 of 1972, sec. 15(a) (w.e.f. 1-1-1973).
5. Clause (aa) re-lettered as clause (aaa) by Act 4 of 1988, sec. 151 (w.e.f. 1-4-1989).
6. Subs. by Act 4 of 1988, sec. 160(3)(a), for clause (b) (w.e.f. 1-4-1989).
7. Subs. by Act 21 of 1998, sec. 66, for “Deputy Director” (w.e.f. 1-10-1998).
8. Subs. by Act 21 of 1998, sec. 66, for “Deputy Commissioner” (w.e.f. 1-10-1968).
9. Clause (c) omitted by Act 41 of 1975, sec. 99 (w.e.f. 1-4-1976).
10. Subs. by Act 4 of 1988, sec. 160(3)(b), for clauses (d) and (e) (w.e.f. 1-4-1988).
11. Ins. by Act 10 of 2000, sec. 76 (w.e.f. 1-6-2000). Earlier the words “or section 23A” were omitted by Act 3 of 1989, sec. 74 (w.e.f. 1-4-1989). 12. Ins. by Act 18 of 1992, sec. 97 (w.e.f. 1-4-1993).
13. Subs. by Act 45 of 1972, sec. 15(b), for “Appellate Assistant Commissioner” (w.e.f 1-1-1973).
14. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
15. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
16. Ins. by Act 45 of 1972, sec. 15(c) (w.e.f. 1-1-1973).
17. Subs. by Act 67 of 1984, sec. 69(i), for “from the date of the order passed in the first appeal or revision” (w.e.f. 1-10-1984).
18. Subs. by Act 67 of 1984, sec. 69(ii), for “from the date of the order sought to be amended” (w.e.f. 1-10-1984).
19. Ins. by Act 45 of 1972, sec. 15(d) (w.e.f. 1-1-1973).
Section 35 A. Wilful attempt to evade tax, etc
1[35A. Wilful attempt to evade tax, etc . —(1) If a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable;
(i) in a case where the amount sought to be evaded exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.
(2) If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provisions of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and shall, in the discretion of the court, also be liable to fine.
Explanation .—For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act of the payment thereof shall include a case where any person
(a) 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 Act) containing a false entry or statement, or
(b) makes, or causes to be made, any false entry or statement in such books of account or other documents, or
(c) wilfully omits, or causes to be omitted, any relevant entry or statement in such books of account or other documents, or
(d) causes any other circumstances to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35 B. Failure to furnish returns of net wealth .
1[35B. Failure to furnish returns of net wealth .—If a person wilfully fails to furnish in due time the return of his net wealth which he is required to furnish under sub-section (1) of section 14 or by notice given under sub-section (2) of section 14 or under sub-section (1) of section 17, he shall be punishable;
(i) in a case where the amount of tax, which would have been evaded if the failure had not been discovered, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine:
Provided that a person shall not be proceeded against under this section for failure to furnish in due time the return of net wealth under sub-section (1) of section 14—
(i) for any assessment year commencing prior to the 1st day of April, 1975; or
(ii) for any assessment year commencing on or after the 1st day of April,
1975, if—
(a) the return is furnished by him before the expiry of the assessment year; or
(b) the tax payable by him on his net wealth determined on regular assessment does not exceed three thousand rupees.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35 C. Failure to produce accounts, records, etc.
1[35C. Failure to produce accounts, records, etc.—If a person wilfully fails to produce, or cause to be produced, on or before the date specified in any notice under sub-section (4) of section 16, such accounts, records and documents as are referred to in the notice, he shall be punishable with rigorous imprisonment for a term which may extend to one year or with fine equal to a sum calculated at a rate which shall not be less than four rupees or more than ten rupees for every day during which the default continues, or with both.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35 D. False statement in verification, etc., made under certain provisions of the Act .
1[35D. False statement in verification, etc., made under certain provisions of the Act .—If a person makes a statement in any verification under this Act (other than under section 34AB) or under 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,—
(i) in a case where the amount of tax which would have been evaded if the statement of account had been accepted as true, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(ii) in any other case, with rigorous imprisonment for a term which shall
not be less than three months but which may extend to three years and with fine.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
[Section 35 E. False statement in verification mentioned in section 34AB
1[35E. False statement in verification mentioned in section 34AB.—If a person makes a statement in a verification mentioned in section 34AB 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 six months or with fine or with both.]
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1. Ins. by Act 67 of 1984, sec. 70 (w.e.f. 1-10-1984).
Section 35 EE. Failure to furnish particulars under section 34ACC.
1[35EE. Failure to furnish particulars under section 34ACC.—If a person referred to in section 34ACC fails 2[***] to intimate to the Board the particulars of conviction of finding referred to in the said section, he shall be punishable with rigorous imprisonment for a term which may extend to two years and shall also be liable to fine:]
3[Provided that no person shall be punishable under this section if he proves that there was reasonable cause or excuse for the said failure.]
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1. Ins. by Act 67 of 1984, sec. 70 (w.e.f. 1-10-1984). 2. The words “without reasonable cause or excuse” omitted by Act 46 of 1986, sec. 38(i) (w.e.f. 10-9-1986). 3. Ins. by Act 46 of 1986, sec. 38(ii) (w.e.f. 10-9-1986).
[Section 35 EEE. Contravention of order made under second proviso to sub- section (1) or sub-section (3A) of section 37A .
1[35EEE. Contravention of order made under second proviso to sub- section (1) or sub-section (3A) of section 37A .—If a person contravenes any order referred to in the second proviso to sub-section (1) or sub-section (3A) of section 37A, he shall be punishable with rigorous imprisonment for a term which may extend to two years and with fine.]
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1. Ins. by Act 12 of 1990, sec. 56 (w.r.e.f. 1-4-1990).
Section 35 F. Abetment of false return, etc .
1[35F. Abetment of false return, etc .—If a person abets or induces in any manner another person to make and deliver an account, statement or declaration relating to any net wealth chargeable to tax which is false and which he either knows to be false or does not believe to be true or to commit an offence under sub-section (1) of section 35A, he shall be punishable,—
(i) in a case where the amount of tax, penalty or interest, which would have been evaded, if the declaration, account or statement had been accepted as true, or which is wilfully attempted to be evaded, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35 G. Punishment for second and subsequent offences .
1[35G. Punishment for second and subsequent offences .—If any person convicted of an offence under sub-section (1) of section 35A or section 35B or section 35D or section 35F is again convicted of an offence under any of the aforesaid provisions, he shall be punishable for the second and for every subsequent offence with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35 GA. Power of Commissioner to grant immunity from prosecution.
1[35GA. Power of Commissioner to grant immunity from prosecution. —(1) A person may make an application to the Commissioner for granting immunity from prosecution, if he has made an application for settlement under section 22C and the proceedings for settlement have abated under section 22HA.
(2) The application to the Commissioner under sub-section (1) shall not be made after institution of the prosecution proceedings after abatement.
(3) The Commissioner may, subject to such conditions as he may think fit to impose, grant to the person immunity from prosecution for any offence under this Act, if he is satisfied that the person has, after the abatement, co-operated with the wealth-tax authority in the proceedings before him and has made a full and true disclosure of his net wealth and the manner in which such net wealth has been derived:
Provided that where the application for settlement under section 22C had been made before the 1st day of June, 2007, the Commissioner may grant immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force.
(4) The immunity granted to a person under sub-section (3) shall stand withdrawn, if such person fails to comply with any condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted.
(5) The immunity granted to a person under sub-section (3) may, at any time, be withdrawn by the Commissioner, if he is satisfied that such person had, in the course of any proceedings, after abatement, concealed any particulars, material to the assessment, from the wealth-tax authority 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 proceedings.]
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1. Ins. by the Finance Act, 2008, sec. 65 (w.r.e.f. 1-4-2008).
Section 35 H. Offences by Hindu undivided families .
1[35H. Offences by Hindu undivided families .—(1) Where an offence under this Act has been committed by a Hindu undivided family, the Karta thereof 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 the Karta liable to any punishment 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 Hindu undivided family 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 member thereof, such member shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.]
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1. Subs. by Act 46 of 1964, sec. 28, for section 32 (w.e.f. 1-4-1965).
Section 35 HA. Offences by companies .
1[35HA. Offences by companies .—(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment 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 be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
2[(3) Where an offence under this Act has been committed by a person, being a company and such offence is punishable with imprisonment and fine, then, without prejudice to the provisions contained in sub-section (1) or sub-section (2), such company shall be punished with fine and every person, referred to in sub-section (1) or the director, manager, secretary or other officer of the company referred to in sub-section (2), shall be liable to be proceeded against and punished in accordance with the provisions of this Act.]
Explanation .—For the purposes of this section,—
(a) “company” means a body corporate, and includes
(i) a firm; and
(ii) an association of persons or a body of individuals whether incorporated or not; and
(b) “director”, in relation to,—
(i) a firm, means a partner in a firm;
(ii) any association of persons or a body of individuals, means any member controlling the affairs thereof.]
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1. Ins. by Act 18 of 1992, sec. 98 (w.e.f. 1-4-1993).
2. Ins. by Act 23 of 2004, sec. 65 (w.e.f. 1-10-2004).
[Section 35-I. Prosecutions to be with the previous sanction of certain wealth-tax authorities and their power to compound offences.
1[35-I. Prosecutions to be with the previous sanction of certain wealth-tax authorities and their power to compound offences. — 2[(1) A person shall not be proceeded against for an offence under this Act except with the previous sanction of the Commissioner or Commissioner (Appeals):
Provided that the Chief Commissioner or, as the case may be, Director-General may issue such instructions or directions to the aforesaid wealth-tax authorities as he may deem fit for institution of proceedings under this sub-section.
(2) Any such offence may, either before or after the institution of proceedings, be compounded by the Chief Commissioner or Director-General.]]
3[ Explanation .—For the removal of doubts, it is hereby declared that the power of the Board to issue orders, instructions or directions under this Act shall include and shall be deemed always to have included the power to issue instructions or directions (including instructions or directions to obtain the previous approval of the Board) to other wealth-tax authorities for the proper composition of offences under this section.]
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1. Subs. by Act 26 of 1988, sec. 63, for section 35-I (w.e.f. 1-4-1989). Earlier section 35-I was inserted by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
2. Subs. by Act 49 of 1991, sec. 81(a), for sub-sections (1) and (2) (w.e.f. 1-10-1991).
3. Ins. by Act 49 of 1991, sec. 81(b) (w.r.e.f. 1-4-1989).
[Section 35J. Certain offences to be non-cognizable :
1[35J. Certain offences to be non-cognizable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under section 35A or section 35B or section 35D or section 35F shall be deemed to be non-cognizable within the meaning of that Code.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
[Section 35 K. Bar on prosecutions and on inadmissibility of evidence in certain circumstances.
1[35K. Bar on prosecutions and on inadmissibility of evidence in certain circumstances.— (1) A person shall not be proceeded against for an offence under section 35A or section 35D in relation to the assessment for 2[an assessment year] in respect of which the penalty imposed or imposable on him under clause (iii) of sub-section (1) of section 18 has been reduced or waived by an order under section 18B.
(2) Where any proceeding for prosecution has been taken against any person under this Act, any statement made on account or other document produced by such person before 3[any Wealth-tax authority (not being an Inspector of Income-tax)] shall not be inadmissible as evidence for the purpose of such proceedings merely on the ground that such statement was made or such account or other document was produced in the belief that the penalty imposable would be reduced or waived under section 18B or that the offence in respect of which such proceeding was taken would be compounded.].
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
2. Subs. by Act 12 of 1990, sec. 57, for “the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year” (w.r.e.f. 1-4-1989). Earlier these words were substituted by Act 4 of 1988, sec. 152(a), for “an assessment year” (w.e.f. 1-4-1989).
3. Subs. by Act 4 of 1988, sec. 152(b), for “any of the Wealth-tax authorities specified in sections 8, 9, 9A, 10, 10A and 11” (w.e.f. 1-4-1989). Earlier the words “in sections 8, 9, 9A” were substituted by Act 29 of 1977, sec. 39 and Sch. V, Pt. V, for “in sections 8, 9” (w.e.f. 10-7-1978)
[Section 35 L. Jurisdiction of courts. :
1[35L. Jurisdiction of courts.—No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35 M. Section 360 of the Code of Criminal Procedure, 1973 and the Probation of Offenders Act, 1958, not to apply.
1[35M. Section 360 of the Code of Criminal Procedure, 1973 and the Probation of Offenders Act, 1958, not to apply.—Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), 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.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35 N. Presumption as to books of account, etc., in certain cases .
1[35N. Presumption as to books of account, etc., in certain cases .—(1) Where during the course of any search made under section 37A, any books of account or other documents, articles or things including money have been found in the possession or control of any person and such books of account or other documents are tendered, or such articles or things including money are relied upon, by the prosecution in evidence against such person or against such person and the person referred to in section 35F for an offence under this Act, the provisions of sub-section (5) of section 37A shall, so far as may be, apply in relation to such books of account or other documents, articles or things including money.
(2) Where
(i) any books of account or other documents taken into custody, from the possession or control of any person by any officer or authority under clause (a) or clause (b) of sub-section (1) of section 37B, are delivered to the requisitioning officer under sub-section (2) of that section; or
(ii) any note or inventory of any articles or things including money taken into custody, from the possession of any person, by any officer or authority under clause (c) of sub-section (1) of section 37B, is furnished to the requisitioning officer under sub-section (2) of that section,
and such books of account or other documents are tendered, or such note or inventory is relied upon, by the prosecution in evidence against such person or against such person and the person referred to in section 35F for an offence under this Act, the provisions of sub-section (5) of section 37A shall, so far as may be, apply in relation to such books of account or other documents or, as the case may be, the articles or things including money, covered by such note or inventory.]
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1. Ins. by Act 41 of 1975, sec. 100 (w.e.f. 1-10-1975).
Section 35-O. Presumption as to culpable mental state .
1[35-O. Presumption as to culpable mental state .—(1) In any prosecution for any 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 sub-section, “culpable mental state” includes intention, motive or knowledge of a fact, or 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.]
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1. Ins. by Act 46 of 1986, sec. 39 (w.e.f. 10-9-1986).
Section 36. Proof of entries in records or documents .
1[36. Proof of entries in records or documents .—Entries in the records or other documents in the custody of a wealth-tax authority shall be admitted in evidence in any proceedings for the prosecution of any person for an offence under this Act, and all such entries may be proved either by the production of the records or other documents in the custody of the Wealth-tax authority containing such entries or by the production of a copy of the entries certified by the Wealth-tax authority having custody of the records or other documents under its signature and stating that it is a true copy of the original entries and that such original entries are contained in the records or other documents in its custody.]
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1. Ins. by Act 3 of 1989, sec. 75 (w.e.f. 1-4-1989). Earlier section 36 was amended by Act 46 of 1964, sec. 33 (w.e.f. 1-4-1965), by Act 15 of 1965, sec. 20(iv) (w.e.f. 11-9-1965), by Act 45 of 1972, sec. 16 (w.e.f. 15-11-1972) and was omitted by Act 41 of 1975, sec. 101 (w.e.f. 1-10-1975).
Section 36 A. Power to tender immunity from prosecution
1[36A. Power to tender immunity from prosecution .—(1) The Central Government may, if it is of opinion (the reasons for such opinion being recorded in writing) that with a view to obtaining the evidence of any person appearing to have been directly or indirectly concerned in or privy to the concealment of particulars of net wealth or to the evasion of payment of tax on net wealth, it is necessary or expedient so to do, tender to such person immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also from the imposition of any penalty under this Act on condition of his making a full and true disclosure of the whole circumstances relating to the concealment of particulars of net wealth or evasion of payment of tax on net wealth.
(2) A tender of immunity made to, and accepted by, the person concerned shall, to the extent to which the immunity extends, render him immune from prosecution for any offence in respect of which the tender was made or from the imposition of any penalty under this Act.
(3) If it appears to the Central Government that any person to whom immunity has been tendered under this section has not complied with the condition on which the tender was made or is wilfully concealing anything or is giving false evidence, the Central Government may record a finding to that effect, and thereupon the immunity shall be deemed to have been withdrawn, and any such person may be tried for the offence in respect of which the tender of immunity was made or for any other offence of which he appears to have been guilty in connection with the same matter and shall also become liable to the imposition of any penalty under this Act to which he would otherwise have been liable.
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1.Ins. by Act 46 of 1964, sec. 34 (w.e.f. 1-4-1965).
Section 37. Power to take evidence on oath, etc :
1[37. Power to take evidence on oath, etc :- (1) 2[The 3[Assessing Officer], Valuation Officer,] 4[Deputy Commissioner (Appeals)], 5‘ [Commissioner (Appeals),] 6[Chief Commissioner or Commissioner] and the Appellate Tribunal shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:—
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any officer of a banking company and examining him on both;
(c) compelling the production of books of account and other documents; and
(d) issuing commissions.
7[(1A) If the Director-General or Director or 8[Joint Director] or 8[Assistant Director] or Deputy Director], or the authorised officer referred to in sub-section (1) of section 37A before he takes action under clauses (i) to (vi) of that sub- section, has reason to suspect that any net wealth has been concealed, or is likely to be concealed, by any person or class of persons within his jurisdiction, then, for the purposes of making any inquiry or investigation relating thereto, it shall be competent for him to exercise the powers conferred under sub-section (1) on the wealth-tax authorities referred to in that sub-section, notwithstanding that no proceedings with respect to such person or class of persons are pending before him or any other wealth-tax authority.]
9[***]
(3) Subject to any rules made in this behalf, any authority referred to in sub-section (1) 10[or sub-section (lA) ] may impound and retain in its custody for such period as it thinks fit any books of account or other documents produced before it in any proceeding under this Act:
Provided that 11[ 12[an Assessing Officer] or a Valuation Officer] 13[or an 14[Assistant Director or Deputy Director]] shall not—
(a) impound any books of account or other documents without recording his reasons for so doing, or
(b) retain in his custody any such books or documents for a period exceeding fifteen days (exclusive of holidays) without obtaining the approval of 15[the Chief Commissioner or Director-General or Commissioner or Director therefor, as the case may be].
(4) Any proceeding under this Act before a Wealth-tax authority or the Tribunal 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).]
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1. Subs. by Act 46 of 1964, sec. 35, for section 37 (w.e.f. 1-4-1965).
2. Subs. by Act 45 of 1972, sec. 17(a), for “The Wealth-tax Officer” (w.e.f. 1-1-1973).
3. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
4. Subs. by Act 4 of 1988, sec. l27, for “Appellate Assistant Commissioner” (w.e.f. l-4-1988).
5. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
6. Subs. by Act 40 of 1988, sec. l27, for “Commissioner” (w.e.f. l-4-1988).
7. Subs. by Act 26 of 1988, sec. 64, for sub-section (1A) (w.e.f. 1-6-1988). Earlier sub-section (1A) was inserted by Act 4 of 1988, sec. 153(a) (w.e.f. 1-4-1989).
8. Subs. by Act 21 of 1998, sec. 66, for “Deputy Director” (w.e.f. 1-10-1998).
9. Sub-section (2) omitted by Act 4 of 1988, sec. 153(b) (w.e.f. 1-4-1989).
10. Ins. by Act 4 of 1988, sec. 153(c)(i) (w.e.f. 1-4-1989).
11. Subs. by Act 45 of 1972, sec. 17(b), for “a Wealth-tax Officer” (w.e.f. 1-1-1973).
12. Subs. by Act 4 of 1988, sec. 127, for “a Wealth-tax Officer” (w.e.f. 1-4-1988).
13. Ins. by Act 4 of 1988, sec. 153(c)(ii) (w.e.f. 1-4-1989).
14. Subs. by Act 21 of 1998, sec. 60, for “Assistant Director” (w.e.f. 1-10-1998).
15. Subs. by Act 26 of 1988, sec. 64(b), for “the Chief Commissioner or Commissioner therefor” (w.e.f. 1-6-1988). Earlier the words “Chief Commissioner or Commissioner” were substituted by Act 4 of 1988, sec. 127, for the word “Commissioner” (w.e.f. 1-4-988).
Section 37 A. Power of search and seizure :
1[37A. Power of search and seizure :- (1) Where the 2[Director-General or Director] or the 3[Chief Commissioner or Commissioner] or any such 4[Joint Director] or 5[Joint Commissioner] as may be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe that—
(a) any person to whom a notice under sub-section (4) of section 16 or a summons under section 37 was issued to produce, or cause to be produced, any books of account or other documents, has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such notice or summons, or
(b) any person to whom a notice or summons as aforesaid has been or might be issued will not, or would not, produce, or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under this Act, or
(c) any person is in possession of6[any money, bullion, jewellery or other valuable article or thing] disproportionate to his known assets, particulars of which will be useful for, or relevant to, any proceeding under this Act, then,—
(A) the 7[Director-General or Director] or the 8[Chief Commissioner or Commissioner], as the case may be, may authorise any 9 [Joint Director], 10[Joint Commissioner], 11[Assistant Director or Deputy Director], 12[Assistant Commissioner or Income-tax Officer], or
(B) such 9[Joint Director] or 10[Joint Commissioner] may authorise any 11[Assistant Director or Deputy Director], 12[Assistant Commissioner or Income-tax Officer],
(the officer so authorised in all cases being hereafter in this section referred to as the authorised officer) to—
(i) enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such books of account or other documents 13[money, bullion, jewellery or other valuable article or thing] are kept;
(ii) search any person who has got out of, or is about to get into, or is in, the building, place, vessel, vehicle or aircraft, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account or other documents, 13[money, bullion, jewellery or other valuable article or thing];
(iii) break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available;
14[(iv) seize any such books of account, other documents money, bullion, jewellery or other valuable article or thing found as a result of such search;]
(v) place, marks of identification on any such books of account or other documents or make, or cause to be made, extracts or copies therefrom;
(vi) make a note or an inventory of 15[any money, bullion, jewellery or other valuable article or thing] found which, in his opinion, will be useful for, or relevant to, any proceeding under this Act:
Provided that where any building, place, vessel, vehicle or aircraft referred to in clause (i) is within the area of jurisdiction of any 16[Chief Commissioner or Commissioner] but such 3 16[Chief Commissioner or Commissioner] has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c) of this sub-section, then, notwithstanding anything contained in 17[section 8], it shall be competent for him to exercise the powers under this sub-section in all cases where he has reason to believe that any delay in getting the authorisation from the 16[Chief Commissioner or Commissioner] having jurisdiction over such person may be prejudicial to the interests of the revenue:
18[Provided further that where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such authorised officer and such action of the authorised officer shall be deemed to be seizure of such valuable article or thing under clause (iv) of this sub-section.]
(2) Where any 16[Chief Commissioner or Commissioner], in consequence of information in his possession, has reason to suspect that any books of account or other documents, 19[money, bullion, jewellery or other valuable article or thing] in respect of which an officer has been authorised by the 20[Director-General or Director] or any other 16[Chief Commissioner or Commissioner] or any such 21[Joint Director] or 22[Joint Commissioner] as may be empowered in this behalf by the Board to take action under clauses (i) to (iv) of subsection (1) are kept in any building, place, vessel, vehicle or aircraft not mentioned in the authorisation under sub-section (1) such 23 [Chief Commissioner or Commissioner] may, notwithstanding anything contained in 24[section 8], authorise the said officer to take action under any of the clauses aforesaid in respect of such building, place, vessel, vehicle or aircraft.
(3) The authorised officer may requisition the services of any police officer or of any officer of the Central Government, or of both, to assist him for all or any of the purposes specified in sub-section (1) or sub-section (2) and it shall be the duty of every such officer to comply with such requisition.
25[(3A) The authorised officer may, where it is not practicable to seize any books of account, other documents, money, bullion, jewellery or other valuable article or thing, for reasons other than those mentioned in the second proviso to sub-section (1), serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub-section.
Explanation .—For the removal of doubts, it is hereby declared that serving of an order as aforesaid under this sub-section shall not be deemed to be seizure of such books of account, other documents, money, bullion, jewellery or other valuable article or thing under clause (iv) of sub-section (1).]
(4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account or other documents, articles or things including money and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under this Act.
26[ Explanation .—For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of matters relevant for the purposes of any investigation connected with any proceedings under this Act.]
(5) Where any books of account or other documents, articles or things including money are found in the possession or control of any person in the course of a search, it may be presumed that—
(i) such books of account or other documents, articles or things including money belong to such person;
(ii) the contents of such books of account or other documents are true; and
(iii) the signature and every other part of such books of account or other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person’s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.
27[(5A) Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in sections 37B and 37C referred to as the assets) is seized under sub-section (1) or sub-section (2), the Assessing Officer, after affording a reasonable opportunity to the person concerned of being heard and making such inquiry as may be prescribed, shall, within one hundred and twenty days of the seizure, make an order, with the previous approval of the Joint Commissioner,—
(i) estimating the undisclosed net wealth in a summary manner to the best of his judgment on the basis of such materials as are available with him;
(ii) calculating the amount of tax on the net wealth so estimated in accordance with the provisions of this Act;
(iii) determining the amount of interest payable and the amount of any penalty imposable in accordance with the provisions of this Act, as if the order had been the order of regular assessment;
(iv) specifying the amount that will be required to satisfy any existing liability under this Act in respect of which such person is in default or is deemed to be in default,
and retain in his custody such assets or part thereof as are in his opinion sufficient to satisfy the aggregate of the amounts referred to in clauses (ii), (iii) and (iv) and forthwith release the remaining portion, if any, of the assets to the person from whose custody they were seized:
Provided that where a person has paid or made satisfactory arrangements for payment of all the amounts referred to in clauses (ii) (iii) and (iv) or any part thereof, the Assessing Officer, may with the previous approval of the Chief, Commissioner or Commissioner release the assets or such part thereof as he may deem fit in the circumstances of the case.]
27[(5B) The assets retained under sub-section (5A) may be dealt with in accordance with the provision of section 37C.
27[(5C) If the Assessing Officer is satisfied that the seized assets or any part thereof were held by such person for or on behalf of any other person, the Assessing Officer may proceed under sub-section (5A) against such other person and all the provisions of this section shall apply accordingly.]
(6) The books of account or other documents seized under sub-section (1) or sub-section (2) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the 28[Chief Commissioner or Commissioner] for such retention in obtained:
Provided that the 28[Chief Commissioner or Commissioner] shall not authorise the retention of the books of account or other documents for a period exceeding thirty days after all the proceedings under this Act in respect of the years for which the books of account or other documents are relevant are completed.
29[(6A) An order under sub-section (3A) shall not be in force for a period exceeding sixty days from the date of the order, except where the authorised officer, for reasons to be recorded in writing by him, extends the period of operation of the order beyond sixty days, after obtaining the approval of the 2 [Director or, as the case may be, Commissioner] for such extension:
Provided that the 30[Director or, as the case may be, Commissioner] shall not approve the extension of the period for any period beyond the expiry of thirty days after the completion of the proceedings under this Act in respect of the years for which the books of account, other documents, money, bullion, jewellery or other valuable articles or things are relevant.]
(7) The person from whose custody any books of account or other documents are seized under sub-section (1) or sub-section (2) may make copies thereof, or take extracts therefrom, in the presence of the authorised officer or any other person empowered by him in this behalf at such place and time as the authorised officer may appoint in this behalf.
(8) Where the authorised officer has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c) of sub-section (1), the books of account or other documents seized under that sub-section shall be handed over by the authorised officer to the 31[Assessing Officer] having jurisdiction over such person within a period of fifteen days of such seizure and thereupon the powers exercisable by the authorised officer under sub-section (6) or sub-section (7) shall be exercisable by such 31[Assessing Officer].
(9) If a person legally entitled to the books of account or other documents seized under sub-section (1) or sub-section (2) objects for any reason to the approval given by the 32[Chief Commissioner or Commissioner] under sub-section (6), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the book of account or other document.
33[(9A) If any person objects for any reason to an order made under sub-section (SA), he may, within thirty days from the date of such order, make an application to the Chief Commissioner or Commissioner stating therein the reasons for such objection and requesting for appropriate relief in the matter.]
34[(10) On receipt of the application under sub-section (9), the Board, or on receipt of the application under sub-section (9A), the Chief Commissioner or Commissioner, may, after giving the applicant an opportunity of being heard, pass such orders as it or he thinks fit.]
(11) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches shall apply, so far as may be, to searches under this section.
(12) The Board may make rules in relation to searches or seizure under this section; and in particular and without prejudice to the generality of the foregoing power, such rules may provide for the procedure to be followed by the authorised officer—
(i) for obtaining ingress into any building, place, vessel, vehicle or aircraft to be searched where free ingress thereto is not available;
(ii) for ensuring the safe custody of any books of account or other documents seized.]
35[ Explanation 1. —In computing the period referred to in sub-section (5A) for the purposes of that sub-section, any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.
Explanation 2. —In this section, the word “proceeding” means any proceeding in respect of any year under this Act which may be pending on the date on which a search is authorised under this section or which may have been completed on or before such date and includes also proceedings under this Act which may be commenced after such date in respect of any year.]
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1. Sections 37A and 37B subs. by Act 41 of 1975, sec. 102, for section 37A (w.e.f. 1-10-1975). Earlier section 37A was inserted by Act 46 of 1964, sec. 36 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Director of Inspection” (w.e.f. 1-4-1988).
3. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
4. Subs. by 21 of 1988, sec. 66, for “Deputy Director” (w.e.f. 1-10-1998). Earlier the words “Deputy Director” were substituted by Act 4 of 1988, sec. 127, for the words “Deputy Director of Inspection” (w.e.f. 1-4-1988).
5. Subs. by 21 of 1988, sec. 66, for “Deputy Commissioner” (w.e.f. 1-10-1998). Earlier the words “Deputy Commissioner” were substituted by Act 4 of 1988, for words “Inspecting Assistant Commissioner or Inspecting Assistant Commissioner of Wealth-tax” (w.e.f. 1-4-1988).
6. Subs. by Act 4 of 1988, sec. 154(1)(a), for “any articles or things including money” (w.e.f. 1-4-1989).
7. Subs. by Act 4 of 1988, sec. 127, for “Director of Inspection” (w.e.f. 1-4-1988).
8. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
9. Subs. by 21 of 1988, sec. 66, for “Deputy Director” (w.e.f. 1-10-1998). Earlier the words “Deputy Director” were substituted by Act 4 of 1988, sec. 127, for words “Deputy Director of Inspection” (w.e.f. 1-4-1988).
10. Subs. by 21 of 1988, sec. 66, for “Deputy Commissioner” (w.e.f. 1-10-1998). Earlier the words “Deputy Commissioner” were substituted by Act 4 of 1988, sec. 127, for words “Inspecting Assistant Commissioner or Inspecting Assistant Commissioner of Wealth-tax” (w.e.f. 1-4-1988).
11. Subs. by 21 of 1988, sec. 66, for “Assistant Director” (w.e.f. 1-10-1998). Earlier the words “Assistant Director” were substituted by Act 4 of 1988, sec. 127, for words “Assistant Director of Inspection” (w.e.f. 1-4-1988).
12. Subs. by Act 4 of 1988, sec. 154(1)(b), for “or Wealth-tax Officer” (w.e.f. 1-4-1989).
13. Subs. by Act 4 of 1988, sec. 154(1)(c), for “articles or things including money” (w.e.f. 1-4-1989).
14. Subs. by Act 4 of 1988, sec. 154(1)(d), for clause (iv) (w.e.f. 1-4-1989).
15. Subs. by Act 4 of 1988, sec. 154(1)(e), for “any article or things including money” (w.e.f. 1-4-1989).
16. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f 1-4-1988).
17. Subs. by Act 4 of 1988, sec. 154(1)(f), for “section 10” (w.e.f. 1-4-1989)
18. Ins. by Act 4 of 1988, sec. 154(1)(g) (w.e.f. 1-4-1989).
19. Subs. by Act 4 of 1988, sec. 154(2)(a), for “articles or things including money” (w.e.f. 1-4-1989).
20. Subs. by Act 4 of 1988, sec. 127, for “Director of Inspection” (w.e.f. 1-4-1988).
21. Subs. by Act 21 of 1998, sec. 60, for “Deputy Director” (w.e.f. 1-10-1998). Earlier the words “Deputy Director” were substituted by Act 4 of 1988 Sec. 127, for “Deputy Director of Inspection” (w.e.f. 1-4-1988).
22. Subs. by Act 21 of 1998, sec. 60, for “Deputy Commissioner” (w.e.f. 1-10-1998). Earlier the words “Deputy Commissioner” were substituted by Act 4 of 1988, sec. 127, for “Inspecting Assistant Commissioner” (w.e.f. 1-4-1988).
23. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f 1-4-1988).
24. Subs. by Act 4 of 1988, sec. 154(2)(b), for “section 10” (w.e.f. 1-4-1989).
25. Ins. by Act 4 of 1988, sec. 154(3) (w.e.f. 1-4-1989).
26. Ins. by Act 4 of 1988, sec. 154(4) (w.e.f. 1-4-1989).
27. Ins. by Act 4 of 1988, sec. 154(5) (w.e.f. 1-4-1989).
28. Subs. by Act 4 of 1988, sec. 27, for “Commissioner” (w.e.f. 1-4-1988).
29. Ins. by Act 4 of 1988, sec. 154(6) (w.e.f. 1-4-1989).
30. Subs. by Act 49 of 1991, sec. 82, for “Chief Commissioners or Commissioner” (w.e.f. 1-10-1991).
31. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988).
32. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
33. Ins. by Act 4 of 1988, sec. 154(7) (w.e.f. 1-4-1989)
34. Subs. by Act 4 of 1988, sec. 154(8), for sub-section (10) (w.e.f. 1-4-1989).
35. Ins. by Act 4 of 1988, sec. 154(9) (w.e.f. 1-4-1989).
Section 37 B. Power to requisition books of account etc :
1[37B. Power to requisition books of account etc :- (1) Where the 2[Director-General or Director] or the 3[Chief Commissioner or Commissioner], in consequence of information in his possession, has reason to believe that—
(a) any person to whom a notice under sub-section (4) of section 16 or a summons under section 37 was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such notice or summons and the said books of account or other documents have been taken into custody by any officer or authority under any other law for the time being in force, or
(b) any books of account or other documents will be useful for, or relevant to, any proceeding under this Act and any person to whom a notice or summons as aforesaid has been or might be issued will not, or would not, produce or cause to be produced such books of account or other documents on the return of such books of account or other documents by any officer or authority by whom or which such books of account or other documents have been taken into custody under any other law for the time being in force, or
(c) 4[any assets] disproportionate to the known assets of any person, particulars of which will be useful for, or relevant to, any proceeding under this Act, have been taken into custody by any officer or authority, under any other law for the time being in force, from the possession of such person,
then, the 5[Director-General or Director] or the 6[Chief Commissioner or Commissioner] may authorise any 7[Joint Director], 8[Joint Commissioner],9[Assistant Director or Deputy Director] 10[, Assistant Commissioner or Income-tax Officer] (hereafter in this section referred to as the requisitioning officer) to require such officer or authority 11 [to deliver such books of account other documents, or assets to the requisitioning officer].
(2) On a requisition being made under sub-section (1) 12[the officer or authority referred to in clause (a) or clause (b) or clause (c) as the case may be, of that sub-section shall deliver the books of account, other documents, or assets to the requisitioning officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody].
13[(3) Where any books of account, other documents or assets have been delivered to the requisitioning officer, the provisions of sub-sections (5) to (12) (both inclusive) of section 37A and section 37C shall so far as may be, apply as if such books of account, other documents, or assets had been seized under sub-section (1) of section 37A by the requistioning officer from the custody of the person referred to in clause (a) clause (b) or clause (c) of sub-section (1) of this section and as if for the words “the authorised officer” occurring in sub-sections (5) to (12) aforesaid, the words “the requisitioning officer” were substituted.]]
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1. Sections 37A and 37B subs. by Act 41 of 1975, sec. 102, for section 37A (w.e.f. 1-10-1975).
2. Subs. by Act 4 of 1988, sec. 127, for “Director of Inspection” (w.e.f. 1-4-1988).
3. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
4. Subs. by Act 4 of 1988, sec. 155(a)(i), for “any articles or things including money” (w.e.f. 1-4-1989).
5. Subs. by Act 4 of 1988, sec. 127, for “Director of Inspection” (w.e.f. 1-4-1988).
6. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
7. Subs. by Act 21 of 1998, sec. 60, for “Deputy Director” (w.e.f. 1-10-1998). Earlier the words “Deputy Director” were substituted by Act 4 of 1988, sec. 127, for the words “Deputy Director of Inspection” (w.e.f. 1-4-1988).
8. Subs. by Act 21 of 1998, sec. 60, for “Deputy Commissioner” (w.e.f. 1-10-1998). Earlier the words “Deputy Commissioner” were substituted by Act 4 of 1988, sec. 127, for the words “Inspecting Assistant Commissioner” (w.e.f. 1-4-1988).
9. Subs. by 21 of 1998, sec. 66, for “Deputy Director” (w.e.f. 1-10-1998). Earlier the words “Deputy Director” were substituted by Act 4 of 1988, sec. 127, for the words “Deputy Director of Inspection” (w.e.f. 1-4-1988).
10. Subs. by Act 4 of 1988, sec. 155(a)(ii), for “or Wealth-tax Officer” (w.e.f. 1-4-1989).
11. Subs. by Act 4 of 1988, sec. 155(a)(iii), for clauses (i) and (ii) (w.e.f. 1-4-1989).
12. Subs. by Act 4 of 1988, sec. 155(b), for clauses (i) and (ii) (w.e.f. 1-4-1989).
13. Subs. by Act 4 of 1988, sec. 155(c), for sub-section (3) (w.e.f. 1-4-1989).
[37C. Application of retained assets :
1[37C. Application of retained assets :- (1) The assets retained under sub-section (5A) of section 37A may be dealt with in the following manner, namely:
(i) the amount of the existing liability referred to in clause (iv) of the said sub-section and the amount of the liability determined on completion of the regular assessment or re-assessment for all the assessment years for which the net wealth referred to in clause (i) of that sub-section is assessable to tax (including any penalty levied or interest payable, in connection with such assessment or re-assessment) and in respect of which the assessee is in default or is deemed to be in default may be recovered out of such assets;
(ii) if the assets consist solely of money, or partly of money and partly of other assets, the Assessing Officer may apply such money in the discharge of the liabilities referred to in clause (i) and the assessee shall be discharged of such liabilities to the extent of the money so applied;
(iii) the assets other than money may also be applied for the discharge of any such liability referred to in clause (i) as remains undischarged and for this purpose such assets shall be deemed to be under distraint as if such distraint was effected by the Assessing Officer under authorisation from the Chief Commissioner or Commissioner under sub-section (5) of section 226 of the Income-tax Act as made applicable to this Act by section 32, and the Assessing Officer may recover the amount of such liabilities by the sale of such assets and such sale shall be effected in the manner laid down in the Third Schedule to the Income-tax Act as made applicable to this Act by section 32.
(2) Nothing contained in sub-section (1) shall preclude the recovery of the amount of liabilities aforesaid by any other mode laid down in this Act.
(3) Any assets or proceeds thereof which remain after the liabilities referred to in clause (i) of sub-section (1) are discharged shall be forthwith made over or paid to the persons from whose custody the assets were seized.
(4) (a) The Central Government shall pay simple interest at the rate of fifteen per cent. per annum on the amount by which the aggregate of the money retained under section 37A and of the proceeds, if any, of the assets sold towards the discharge of the existing liability referred to in clause (iv) of sub-section (5A) of that section exceeds the aggregate of the amounts required to meet the liabilities referred to in clause (i) of sub-section (I) of this section.
(b) Such interest shall run from the date immediately following the expiry of the period of six months from the date of the order under sub-section (5A) of section 37A to the date of the regular assessment or re-assessment referred to in clause (i) of sub-section (1) or, as the case may be, to the date of the last of such assessments or re-assessments.]
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1. Ins. by Act 4 of 1988, sec. 156 (w.e.f. 1-4-1989).
38. Information, returns and statements :-
1[Where, for the purposes of this Act], it appears necessary for 2[any wealth-tax authority] to obtain any statement or information from any individual, company 3[(including a banking company)], firm, Hindu undivided family or other person, 2[such wealth-tax authority] may serve a notice requiring such individual, company, firm, Hindu undivided family or other person, on or before a date to be therein specified, to furnish such statement or information on the points specified in the notice, and the individual or the principal officer concerned or the manager of the Hindu undivided family, as the case may be, shall, notwithstanding anything in any law to the contrary, be bound to furnish such statement or information to 2[such wealth-tax authority]:
Provided that no legal practitioner shall be bound to furnish any statement or information under this section based on any professional
communications made to him otherwise than as permitted by section 126 of the Indian Evidence Act, 1872 (1 of 1872).
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1. Subs. by Act 4 of 1988, sec. 157(a), for “Where for the purposes of determining the wealth-tax payable by any person” (w.e.f. 1-4-1989).
2. Subs. by Act 4 of 1988, sec. 157(b), for “Wealth-tax Officer” (w.e.f. 1-4-1989).
3. Ins. by Act 4 of 1988, sec. 157(c) (w.e.f. 1-4-1989).
38A. Powers of Valuation Officer, etc :-
1[38A. Powers of Valuation Officer, etc :- (1) For the purposes of this Act, a Valuation Officer or any overseer, surveyor or assessor authorised by him in this behalf may, subject to any rules made in this behalf and at such reasonable times as may be prescribed;
(a) enter any land within the limits of the area assigned to the Valuation Officer, or
(b) enter any land, building or other place belonging to or occupied by any person in connection with whose assessment a reference has been made under section 16A to the Valuation Officer, or
(c) inspect any asset in respect of which a reference under section 16A has been made to the Valuation Officer,
and require any person in charge of, or in occupation or possession of, such land, building or other place or asset to afford him the necessary facility to survey or inspect such land, building or other place or asset or estimate its value or inspect any books of account, document or record which may be relevent for the valuation of such land, building or other place or asset and gather other particulars relating to such land, building or other place or asset:
Provided that no Valuation Officer, overseer, surveyor or assessor shall enter any buliding or place referred to in clause (b) or inspect any asset referred to in clause (c) (unless with the consent of the person in charge of, or in occupation or possession of, such building, place or asset) without previously giving to such person at least two days’ notice in writing of his intention to do so.
(2) If a person who, under sub-section (1), is required to afford any facility to the Valuation Officer or the overseer, surveyor or assessor, either refuses or evades to afford such facility, the Valuation Officer shall have all the powers under sub-sections (1) and (2) of section 37 for enforcing compliance of the requirements made.]
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1. Ins. by Act 45 of 1972, sec. 18 (w.e.f. 15-11-1972).
39. Effect of transfer of authorities on pending proceedings :
-Whenever in respect of any proceeding under this Act any Wealth-tax authority ceases to exercise jurisdiction and is succeeded by another who has and exercises such jurisdiction, the authority so succeeding may continue the proceeding from the stage at which the proceeding was left by his predecessor:
1[Provided that the assessee concerned may demand that before the proceeding is so continued the previous proceeding or any part thereof be reopened or that before any order of assessment is passed against him, he be reheard.]
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1. Ins. by Act 46 of 1964, sec. 37 (w.e.f. 1-4-1965).
40. Computation of periods of limitation :—
In computing the period of limitation prescribed for an appeal under this Act or for an application under section 27; the day on which the order complained of was made and the time requisite for obtaining a copy of such order shall be excluded.
41. Service of notice :-
(1) A notice or a requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908).
(2) Any such notice or requisition may, in the case of a firm or a Hindu undivided family, be addressed to any member of the firm or to the manager or any adult male member of the family, 1[and in the case of a company or any other association of persons] be addressed to the principal officer thereof.
2[(3) After a finding of total partition has been recorded by the3[Assessing Officer] under section 20 in respect of any Hindu family, notices under this Act in respect of the net wealth of the Hindu family shall be served on the person who was the last manager of the Hindu family, or, if such person is dead, then on all surviving adults who were members of the Hindu family immediately before the partition.]
4[(4) Where an association of persons referred to in section 21AA is dissolved, notices under this Act in respect of any matter relating to the association may be served on any person who was a member of the association immediately before its dissolution.]
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1. Subs. by Act 3 of 1989, sec. 76, for “and in the case of any other associations of persons” (w.e.f. 1-4-1989).
2. Ins. by Act 46 of 1964, sec. 38 (w.e.f. 1-4-1965).
3. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer” (w.e.f. 1-4-1988). 4. Ins. by Act 16 of 1981, sec. 31 (w.r.e.f. 1-4-1981).
[42. Notice deemed to be valid in certain circumstances :—
1[42. Notice deemed to be valid in certain circumstances :- Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was—
(a) not served upon him; or
(b) not served upon him in time; or
(c) served upon him in an improper manner:
Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.]
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1. Ins. by Finance Act, 2008, sec. 66 (w.r.e.f. 1-4-2008). Earlier section 42 relating to ‘Prohibition of disclosure of information’ was repealed by the Finance Act, 1964 (5 of 1964), sec. 50(b) (w.r.e.f. 1-4-1964).
42A. Publication of information respecting assessees :-
1[42A. Publication of information respecting assessees :- (1) lf the Central Government is of opinion that it is necessary or expedient in the public interest to publish the name of any assessees and any other particulars relating to any proceedings 2[or prosecutions] under this Act in respect of such assessees, it may cause to be published such names and particulars in such manner as it thinks fit.
3[(2) No publication under this section shall be made in relation to any penalty imposed under this Act until the time for presenting an appeal to the 4[Deputy Commissioner (Appeals)] 5[or, as the case may be, the Commissioner (Appeals)] has expired without an appeal having been presented or the appeal, if presented has been disposed of.]]
6[ Explanation.— In the case of a company, the names of the directors, secretaries and treasurers, or managers, of the company may also be published if in the opinion of the Central Goverrment, circumstances of the case justify it.]
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1. Subs. by Act 5 of 1964, sec. 50(c), for section 42A (w.e.f. 1-4-1964). Earlier section 42A was inserted by Act 28 of 1960, sec. 11 (w.e.f. 1-4-1960).
2. Ins. by Act 41 of 1975, sec. 103(i) (w.e.f. 1-10-1975).
3. Subs. by Act 41 of 1975, sec. 103(ii), for sub-section (2) (w.e.f. 1-10-1975).
4. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
5. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
6. Ins. by Act 3 of 1989, sec. 77 (w.e.f. 1-4-1989).
42B. Disclosure of information respecting assessees
1[42B. Disclosure of information respecting assessees :- Where a person makes an application to the 2[Chief Commissioner or Commissioner] in the prescribed form for any information relating to any assessee in respect of any assessment made under this Act, the 3 [Chief Commissioner or Commissioner] may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law.]
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1. Subs. by Act 5 of 1964, sec. 50(c), for section 42B (w.e.f. 1-4-1964). Earlier section 42B was inserted by Act 28 of 1960, sec. 11 (w.r.e.f. 1-4-1960).
2. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988).
42C. Return of wealth, etc. not to be invalid on certain grounds
1[42C. Return of wealth, etc. not to be invalid on certain grounds :- No return of wealth, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of wealth, assessment, notice, summons or other proceeding if such return of wealth, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.]
——————————————–
1. Ins. by Act 41 of 1975, sec. 104 (w.e.f. 1-10-1975).
42D. Presumption as to assets, books of account, etc :-
1[42D. Presumption as to assets, books of account, etc :-2 [(1)] Where any books of account or other documents, articles or things including money are found in the possession or control of any person in the course of a search under section 37A, it may, in any proceeding under this Act, be presumed that—
(i) such books of account or other documents, articles or things including money belong to such person;
(ii) the contents of such books of account or other documents are true; and
(iii) the signature and every other part of such books of account or other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person’s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.]
3[(2) Where any books of account, other documents or assets have been delivered to the requisitioning officer in accordance with the provisions of section 37B, then, the provisions of sub-section (1) shall apply as if such books of account, other documents or assets which had been taken into custody from the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub-section (1) of section 37B, had been found in the possession or control of that person in the course of a search under section 37A.]
——————————————–
1. Ins. by Finance Act, 2007, sec. 93 (w.r.e.f. 1-10-1975).
2. Section 42D re-numbered as sub-section (1) thereof by the Finance Act, 2008, sec. 67 (w.r.e.f. 1-4-2008).
3. Ins. by the Finance Act, 2008, sec. 67 (w.r.e.f. 1-10-1975).
43. Bar of jurisdiction :—
43. Bar of jurisdiction :- No suit shall lie in any civil court to set aside or modify 1[any proceeding taken or order made] under this Act, and no prosecution, suit or other legal proceeding shall lie against 2[the Government or] any officer of the Government for anything in good faith done or intended to be done under this Act.
——————————————–
1. Subs. by Act 26 of 1988, sec. 65, for “any order made” (w.r.e.f. 1-3-1988). Earlier the words ”any order made” were substituted by Act 11 of 1987, sec. 89, for the words “any assessment made” (w.r.e.f. 1-3-1987).
2. Ins. by Act 5 of 1964, sec. 50(d) (w.r.e.f. 1-4-1964).
44. Appearance before wealth-tax authorities by authorised representatives :-
1[44. Appearance before wealth-tax authorities by authorised representatives :- (1) Any assessee who is entitled to or required to attend before any Wealth-tax authority or the Appellate Tribunal in connection with any proceeding under this Act, except where he is required under this Act to attend in person, may attend by a person who would be entitled to represent him before any income-tax authority or the Appellate Tribunal under section 288 of the Income-tax Act.
(2) Notwithstanding anything in sub-section (1)—
(i) no person who has been convicted of an offence connected with any wealth-tax proceeding or on whom a penalty has been imposed under this Act other than a penalty imposed on him under clause (i) or clause (ii) of sub-section (1) of section 18 shall be qualified to represent an assessee under sub-section (1) for such time as the 2[Chief Commissioner or Commissioner] may by order determine;
(ii) if any person who is not a legal practitioner or a chartered accountant, is found guilty of misconduct in connection with any wealth-tax proceeding by the prescribed authority, the prescribed authority may direct that he shall henceforth be disqualified to represent an assessee under sub-section (1);
(iii) no person not qualified to represent an assessee under the Indian Income-tax Act, 1922 (11 of 1922), the Estate Duty Act, 1953 (34 of 1953), the Expenditure-tax Act, 1957 (29 of 1957), or the Gift-tax Act, 1958 (18 of 1958), shall be entitled to appear on behalf of any assessee under this Act:
Provided that any order or direction under clause (i) or clause (ii) 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 46 of 1964, sec. 39, for section 44 (w.e.f. 1-4-1965).
2. Subs. by Act 4 of 1988, sec. 127, for “Commissioner” (w.e.f. 1-4-1988)
44A. Agreement for avoidance or relief of double taxation with respect to wealth-tax.
1[44A. Agreement for avoidance or relief of double taxation with respect to wealth-tax. — 2[The Central Government may enter into an agreement with the Government of any reciprocating country—
(a) for the avoidance or relief of double taxation with respect to wealth-tax payable under this Act and under the corresponding law in force in the reciprocating country, or
(b) for exchange of information for the prevention of evasion or avoidance of wealth-tax chargeable under this Act, or under the corresponding law in force in that country or investigation of cases of such evasion or avoidance, or
(c) for recovery of tax under this Act and under the corresponding law in force in that country,
and may, by notification in the Official Gazette, make such provision as may be necessary for implementing the agreement.]
Explanation .—The expression “reciprocating country” for the purposes of this Act means any country which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating country.]
——————————————–
1. Ins. by Act 46 of 1964, sec. 39 (w.e.f. 1-4-1965 ).
2. Subs. by Act 16 of 1972, sec. 49, for certain words (w.e.f. 1-4-1972).
[44B. Countries with which no agreement exists :—
1[44B. Countries with which no agreement exists :- Where the net wealth of any assessee includes any foreign wealth and he proves that, in respect of such foreign wealth, he has paid in any country, with which there is no reciprocal arrangement under section 44A for the relief or avoidance of double taxation, a tax in respect of wealth, under the law in force in that country, he shall be entitled to the deduction from the Indian wealth-tax payable by him of a sum calculated on such doubly taxed foreign wealth at the Indian rate of tax or the rate of tax of the said country, whichever is the lower, or at the Indian rate of tax if both the rates are equal.
Explanation :- In this section—
(1) the expression “Indian wealth-tax” means wealth-tax charged in accordance with the provisions of this Act;
(2) the expression “Indian rate of tax” means the rate determined by dividing the amount of Indian wealth-tax after deduction of any relief due under the provisions of this Act but before the deduction of any relief due under this section by the net wealth;
(3) the expression “rate of tax of the said country” means any tax in respect of wealth, actually paid in the said country, in accordance with the corresponding laws in force in the said country after deduction of all relief due, but before deduction of any relief due in the said country in respect of double taxation, divided by the whole amount of the wealth assessed in the said country;
(4) the expression “foreign wealth” in relation to any assessee means the value of all his assets located in any country outside India as reduced by the value of his debts in that country.
——————————————–
1. Ins. by Act 46 of 1964, sec. 39 (w.e.f. 1-4-1965 ).
[44C. Rounding off of net wealth :—
1[44C. Rounding off of net wealth :- The amount of net wealth computed in accordance with the foregoing provisions of this Act shall be rounded off to the nearest multiple of one hundred rupees and, for this purpose, any part of a rupee consisting of paise shall be ignored and thereafter, if such amount contains a part of one hundred rupees, then, if such part is fifty rupees or more, the amount shall be increased to the next higher amount which is a multiple of one hundred and, if such part is less than fifty rupees, the amount shall be reduced to the next lower amount which is a multiple of one hundred; and the amount so rounded off shall be deemed to be the net wealth of the assessee for the purposes of this Act.]
——————————————–
1. Ins. by Act 42 of 1970, sec. 65 (w.e.f. 1-4-1971).
[44D. Rounding off of tax, etc:—
1[44D. Rounding off of tax, etc :- The amount of wealth-tax, interest, penalty, fine or any other sum payable, and the amount of refund 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 42 of 1970, sec. 65 (w.e.f. 1-4-1971).
45. Act not to apply in certain cases :—
Act not to apply in certain cases :- 1[No tax shall be levied under this Act in respect of the net wealth of—]
2[***]
(f) any company registered under section 25 of the Companies Act 1956
(1 of 1956);
3[(g) any co-operative society;]
4[(h) any social club;]
5[(i) any political party.
Explanation :- For the purposes of clause (i), “political party” shall have the meaning assigned to it in the Explanation to section 13A of the Income-tax Act;]
6[(j) Mutual Fund specified under clause (23D) of section 10 of the Income-tax Act.]
——————————————–
1. Subs. by Act 16 of 1972, sec. 50(a), for “The provisions of this Act shall not apply to—” (w.e.f. 1-4-1972).
2. Clauses (a) to (e) omitted by Act 18 of 1992, sec. 99(a) (w.e.f. 1-4-1993).
3. Ins. by Act 16 of 1972, sec. 50(b) (w.r.e.f. 1-4-1957).
4. Subs. by Act 18 of 1992, sec. 99(b), for clause (h) (w.e.f. 1-4-1993). Earlier clause (h) was inserted by Act 25 of 1975, sec. 28 (w.r.e.f. 1-4-1957).
5. Ins. by Act 29 of 1978, sec. 3 (w.e.f. 1-4-1979). 6. Ins. by Act 4 of 1988, sec. 158 (w.e.f. 1-4-1989).
46. Power to make rules :-
(1) The Board may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, rules made under this section may provide for—
(a) the manner in which the market value of any asset may be determined;
(b) the form in which returns under this Act shall be made and the manner in which they shall be verified;
(c) the form in which appeals and applications under this Act may be made, and the manner in which they shall be verified;
1[(cc) the circumstances in which, the conditions subject to which and the manner in which, the 2[Deputy Commissioner (Appeals)]3[or the Commissioner (Appeals)] may permit an appellant to produce evidence which he did not produce or which he was not allowed to produce before the 4[Assessing Officer];]
(d) the form of any notice of demand under this Act;
5[(dd) the procedure to be followed in calculating interest payable by assessees or interest payable by the Government to assessees under any provision of this Act, including the rounding off of the period for which such interest is to be calculated in cases where such period includes a fraction of a month, and specifying the circumstances in which and the extent to which petty amounts of interest payable by assessees may be ignored;]
6[(e) the areas within which Valuation Officers may exercise jurisdiction;
(ee) the manner in which and the conditions subject to which Valuation Officers overseers, surveyors and assessors may exercise their powers under sub-section (1) of section 38A;]
(f) any other matter which has to be, or may be, prescribed for the purposes of this Act.
7[(3) The power to make rules conferred by this section shall include the power to give retrospective effect, from a date not earlier than the date of commencement of this Act, to the rules or any of them and, unless the contrary is permitted (whether expressly or by necessary implication), no retrospective effect shall be given to any rule so as to prejudicially affect the interests of assessees.]
8[(4) The Central Government shall cause every rule made under this Act 9[and the rules of procedure framed by the Settlement Commission under sub-section (7) of section 22F] to 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 10[or in two or more successive sessions], and if before the expiry of the session 11[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 that rule.]
——————————————–
1. Ins. by Act 16 of 1972, sec. 51 (w.e.f. 1-4-1972).
2. Subs. by Act 4 of 1988, sec. 127, for “Appellate Assistant Commissioner” (w.e.f. 1-4-1988).
3. Ins. by Act 29 of 1977, sec. 39 and Sch. V (w.e.f. 10-7-1978).
4. Subs. by Act 4 of 1988, sec. 127, for “Wealth-tax Officer’ (w.e.f. 1-4-1988).
5. Ins. by Act 42 of 1970, sec. 66 (w.e.f. 1-4-1971).
6. Subs. by Act 45 of 1972, sec. 19, for clause (e) (w.e.f. 15-11-1972).
7. Subs. by Act 26 of 1974, sec. 17, for sub-section (3) (w.e.f. 18-8-1974).
8. Subs. by Act 46 of 1964, sec. 40, for sub-section (4) (w.e.f. 1-4-1965).
9. Ins. by Act 32 of 1994, sec. 53 (w.e.f. 1-6-1994).
10. Subs. by Act 41 of 1975, sec. 105(i) for “or in two successive sessions” (w.e.f. 1-4-1976).
11. Subs. by Act 41 of 1975, sec. 105(ii), for “in which it is so laid or the session immediately following” (w.e.f. 1-4-1976).
[46A. Power to make exemption, etc . , in relation to certain Union Territories :—
1[46A. Power to make exemption, etc . , in relation to certain Union Territories :- If the Central Government considers it necessary or expedient so to do for avoiding any hardship or anomaly or removing any difiiculty that may arise as a result of the application of this Act to the Union territories of Dadra and Nager Haveli, Goa, Daman and Diu, and Pondicherry, or in the case of the Union territory of Pondicherry, for implementing any provision of the Treaty of Cession concluded between France and India on the 28th day of May, 1956, that Government may, by general or special order, make an exemption, reduction in rate or other modification in respect of wealth-tax in favour of any class of assets or in regard to the whole or any part of the net wealth of any assessee or class of assessees:
Provided that the power conferred by this section shall not be exercisable after the 31st day of March, 1967 except for the purpose of rescinding an exemption, reduction or modification already made.]
——————————————–
1. Ins. by Act 3 of 1963, sec. 3 (w.e.f. 1-4-1963).
47. Power to remove difficulties :—
1[47. Power to remove difficulties :- (1) If any difficulty arises in giving effect to the provisions of this Act as amended by the Direct Tax Laws (Amendment) Act, 1987, the Central Government may by order, do anything not inconsistent with such provisions for the purpose of removing the difficulty:
Provided that no such order shall be made after the expiration of three years from the 1st day of April, 1988.
(2) Every order made under sub-section (1) shall be laid before each House of Parliament.]
——————————————–
1. Ins. by Act 4 of 1988, sec. 159 (w.e.f. 1-4-1988).
47. Power to remove difficulties :—
1[47. Power to remove difficulties :- (1) If any difficulty arises in giving effect to the provisions of this Act as amended by the Direct Tax Laws (Amendment) Act, 1987, the Central Government may by order, do anything not inconsistent with such provisions for the purpose of removing the difficulty:
Provided that no such order shall be made after the expiration of three years from the 1st day of April, 1988.
(2) Every order made under sub-section (1) shall be laid before each House of Parliament.]
——————————————–
- 1. Ins. by Act 4 of 1988, sec. 159 (w.e.f. 1-4-1988).
SCHEDULE I :— RATES OF WEALTH TAX
3 [PART I
(1) In the case of every individual or Hindu undivided family, not being a Hindu undivided family to which item (2) of this Part applies,—
Read Full Schedule 1
SCHEDULE II :—
1[* * *]
—————-
- 1. Schedule II omitted by Act 18 of 1992, sec. 101 (w.e.f. 1-4-1993). Earlier Schedule II was inserted by Act 66 of 1976, sec. 27(6)(b) (w.e.f. 1-4-1977).
Schedule III :— RULES FOR DETERMINING THE VALUE OF ASSETS
PART A
General
l. Value of assets how to be determined.—The value of any asset, other than cash, for the purposes of this Act, shall be determined in the manner laid down in these rules.
2. Definitions.—In this Schedule, unless the context otherwise requires;—
(1) “accounting year” in relation to a company means a period in respect of which any profit and loss account of the company laid before it in the annual general meeting is made up;
(2) “debenture” includes debenture stock, bonds and any other securites of a company, whether constituting a charge on the assets of the company or not;
(3) “equity share” means any share in the share capital of a company other than a preference share;
(4) “gold” means gold, including its alloy, whether virgin, melted, remelted, wrought or unwrought, in any shape or form of a purity of not less than nine carats and includes any gold coin (whether legal tender or not), any gold ornament and other article of gold;
(5) “gold ornament” means any article in a finished form, meant for personal adornment or for the adornment of any idol, deity or any other object of religious worship, made of, or manufactured from gold, whether or not set with stones or gems, real or artificial, or with pearls, real, cultured or imitation, or with all or any of them and includes parts, pendants or broken pieces of gold ornaments;
(6) “investment company” means a company whose gross total income consists mainly of income which is chargeable to income-tax under the heads “Income from house property”, “Capital gains” and “Income from other sources”.
Read Full Schedule 3
Appendix
Table of 1/P+d – 1
|
Age nearer birthday
|
Premium for unit sum assured
|
1/P+d – 1 Value of life interest of Rupee 1 per annum at 61/2% rate of interest
|
|
(1)
|
(2)
|
(3)
|
|
0
|
0.02906
|
10.100
|
|
1
|
0.01590
|
11.999
|
|
2
|
0.01295
|
12.517
|
|
3
|
0.01162
|
12.765
|
|
4
|
0.01095
|
12.893
|
|
5
|
0.01065
|
12.951
|
|
6
|
0.01058
|
12.965
|
|
7
|
0.01063
|
12.955
|
|
8
|
0.01076
|
12.930
|
|
9
|
0.01095
|
12.893
|
|
10
|
0.01117
|
12.850
|
|
11
|
0.01142
|
12.803
|
|
12
|
0.01169
|
12.751
|
|
13
|
0.01197
|
12.699
|
|
14
|
0.01226
|
12.644
|
|
15
|
0.01257
|
12.587
|
|
16
|
0.01286
|
12.534
|
|
17
|
0.01319
|
12.473
|
|
18
|
0.01350
|
12.417
|
|
19
|
0.01387
|
12.351
|
|
20
|
0.01431
|
12.273
|
|
21
|
0.01469
|
12.207
|
|
22
|
0.01512
|
12.132
|
|
23
|
0.01556
|
12.057
|
|
24
|
0.01606
|
11.972
|
|
25
|
0.01656
|
11.888
|
|
26
|
0.01706
|
11.806
|
|
27
|
0.01762
|
11.715
|
|
28
|
0.01825
|
11.614
|
|
29
|
0.01894
|
11.505
|
|
30
|
0.01962
|
11.399
|
|
31
|
0.02037
|
11.285
|
|
32
|
0.02112
|
11.173
|
|
33
|
0.02194
|
11.053
|
|
34
|
0.02281
|
10.927
|
|
35
|
0.02369
|
10.804
|
|
36
|
0.02462
|
10.675
|
|
37
|
0.02562
|
10.541
|
|
38
|
0.02669
|
10.400
|
|
39
|
0.02787
|
10.249
|
|
40
|
0.02912
|
10.093
|
|
41
|
0.03044
|
9.932
|
|
42
|
0.03181
|
9.771
|
|
43
|
0.03325
|
9.607
|
|
44
|
0.03475
|
9.441
|
|
45
|
0.03637
|
9.267
|
|
46
|
0.03806
|
9.092
|
|
47
|
0.03987
|
8.911
|
|
48
|
0.04181
|
8.724
|
|
49
|
0.04387
|
8.533
|
|
50
|
0.04612
|
8.333
|
|
51
|
0.04850
|
8.130
|
|
52
|
0.05100
|
7.926
|
|
53
|
0.05362
|
7.722
|
|
54
|
0.05637
|
7.518
|
|
55
|
0.05931
|
7.310
|
|
56
|
0.06244
|
7.099
|
|
57
|
0.06575
|
6.888
|
|
58
|
0.06925
|
6.676
|
|
59
|
0.07294
|
6.646
|
|
60
|
0.07681
|
6.255
|
|
61
|
0.08167
|
6.008
|
|
62
|
0.08589
|
5.806
|
|
63
|
0.09025
|
5.610
|
|
64
|
0.09475
|
5.419
|
|
65
|
0.09938
|
5.234
|
|
66
|
0.10415
|
5.054
|
|
67
|
0.10907
|
4.879
|
|
68
|
0.11414
|
4.709
|
|
69
|
0.11938
|
4.543
|
|
70
|
0.12483
|
4.380
|
|
71
|
0.13054
|
4.220
|
|
72
|
0.13652
|
4.062
|
|
73
|
0.14278
|
3.907
|
|
74
|
0.14936
|
3.753
|
|
75
|
0.15627
|
3.602
|
|
76
|
0.16356
|
3.453
|
|
77
|
0.17125
|
3.305
|
|
78
|
0.17937
|
3.160
|
|
79
|
0.18796
|
3.016
|
|
80
|
0.19706
|
2.875
|
November 30, 2014
Section 1. SHORT TITLE, EXTENT AND COMMENCEMENT.
(1) This Act may be called the Factories Act, 1948.
1[(2) It extends to the whole of India 2[***].]
(3) It shall come into force on the 1st day of April 1949.
—————————-
1. Subs. by the A.O. 1950, for sub-section (2).
2. The words “except the State of Jammu and Kashmir” omitted by Act 51 of 1970, sec. 2 and Sch. (w.e.f. 1-9-1971).
Section 2. INTERPRETATION.
In this Act, unless there is anything repugnant in the subject or context,—
(a) “adult” means a person who has completed his eighteenth year of age;
(b) “adolescent” means a person who has completed his fifteenth year of age but has not completed his eighteenth year;
1[(bb) “calendar year” means the period of twelve months beginning with the first day of January in any year;]
(c) “child” means a person who has not completed his fifteenth year of age;
2[(ca) “competent person”, in relation to any provision of this Act, means a person or an institution recognised as such by the Chief Inspector for the purposes of carrying out tests, examinations and inspections required to be done in a factory under the provisions of this Act having regard to
(i) the qualifications and experience of the person and facilities available at his disposal; or
(ii) the qualifications and experience of the persons employed in such institution and facilities available therein, with regard to the conduct of such tests, examinations and inspections, and more than one person or institution can be recognised as a competent person in relation to a factory;
(cb) “hazardous process” means any process or activity in relation to an industry specified in the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes or effluents thereof would—
(i) cause material impairment to the health of the persons engaged in or connected therewith, or
(ii) result in the pollution of the general environment:
Provided that the State Government may, by notification in the Official Gazette, amend the First Schedule by way of addition, omission or variation of any industry specified in the said Schedule;]
(d) “young person” means a person who is either a child or an adolescent;
(e) “day” means a period of twenty-four hours beginning at midnight;
(f) “week” means a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Chief Inspector of Factories;
(g) “power” means electrical energy or any other form of energy which is mechanically transmitted and is not generated by human or animal agency;
(h) “prime mover” means any engine, motor or other appliance which generates or otherwise provides power;
(i) “transmission machinery” means any shaft, wheel, drum, pulley, system of pulleys, coupling, clutch, driving belt or other appliance or device by which the motion of a prime mover is transmitted to or received by any machinery or appliance;
(j) “machinery” includes prime movers, transmission machinery and all other appliances whereby power is generated, transformed, transmitted or applied;
(k) “manufacturing process” means any process for—
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal,
3[(ii) pumping oil, water, sewage or any other substance; or]
(iii) generating, transforming or transmitting power; or
4[(iv) composing types for printing, printing by letter press, lithography,
photogravure or other similar process or book binding;]5[or]
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; 5[or] 5[(vi) preserving or storing any article in cold storage;]
l) “worker” means a person 6[employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not], in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process 5[but does not include any member of the armed forces of the Union];
(m) “factory” means any premises including the precincts thereof—
(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,—
but does not include a mine subject to the operation of 7[the Mines Act, 1952 (35 of 1952)], or 8[a mobile unit belonging to the armed forces of the Union, railway running shed or a hotel, restaurant or eating place].
5[Explanation 9[I].—For computing the number of workers for the purposes of this clause all the workers in 10[different groups and relays] in a day shall be taken into account;]
11[Explanation II.—For the purposes of this clause, the mere fact that an Electronic Data Processing Unit or a Computer Unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof;]
(n) “occupier” of a factory means the person who has ultimate control over the affairs of the factory12[***].
13[Provided that—
(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors shall be deemed to be the occupier
(iii) in the case of a factory owned or controlled by the Central Government or any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier:]
13[14[Provided further that] in the case of a ship which is being repaired, or on which maintenance work is being carried out, in a dry dock which is available for hire,—
(1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for by or under:
(a) section 6, section 7, 13[section 7A, section 7B,] section 11 or section 12;
(b) section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;
(c) section 18, section 19, section 42, section 46, section 47 or section 49, in relation to the workers employed on such repair or maintenance;
(2) the owner of the ship or his agent or master or other officer-in-charge of the ship or any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under section 13, section 14, section 16 or section 17 (save as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to—
(a) the workers employed directly by him, or by or through any agency; and
(b) the machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in-charge or person;]
15[***]
(o) “prescribed” means prescribed by rules made by the State Government under this Act;
16[***]
(r) where work of the same kind is carried out by two or more sets of workers working during different periods of the day, each of such sets is called a 17[“group” or “relay”] and each of such periods is called a “shift”.
Comments
(i) The establishment of hotel would not fall for classification as a factory under section 2(m) of the Act; Lal Bovta Hotel Aur Bakery Mazdoor Union v. Ritz Private Ltd., 2007 (113) FLR 568.
(ii) The definition of “manufacturing process” does not depend upon and is not co-related with any end product being manufactured out of a manufacturing process. It includes even repair, finishing, oiling or cleaning process with view to its use, sale, transport, delivery or disposal. It cannot be restricted to an activity which may result into manufacturing something or production of a commercially different article. The “manufacturing process” cannot be interpreted in a narrow sense in respect of an act which is meant for the purpose connected with social welfare; M/s Qazi Noorul Hasan Hamid Hussain Petrol Pump v. Deputy Director, Employee’s State Insurance Corporation, 2003 LLR 476.
(iii) In the case of a company, which owns a factory, it is only one of the directors of the company who can be notified as the occupier of the factory for the purposes of the Act and the company cannot nominate any other employee to be the occupier of the factory under section 2(n); Container Corporation of India Ltd. v. Lt. Governor Delhi, 2002 LLR 1068 : 2003 (98) FLR 653.
(iv) Under section 2(m) “Factory” means any premises including the precincts thereof in which a manufacturing process is being carried on
Explanation II of section 2(m) sets out that the mere fact that an electronic data processing unit or a computer unit is installed in any premises or part thereof would not render a unit into a factory if no manufacturing process is carried on in such premises or part thereof. Seelan Raj v. Presiding officer 1st Additional Labour Court, Chennai, 2001 LLR 418
(v) It has to be kept in view that the definition of “manufacturing process” in section 2(k) of Act the has nothing to do with manufacturing of goods which may attract excise duty under the Central Excises and Salt Act, 1944; Lal Mohammad v. Indian Railway Construction Co. Ltd., AIR 1999 SC 355.
(vi) All the workers employed by the construction company would squarely attract the definition of the term ‘workman’ as found in section 2(l) of the Act as they are working for remuneration in a manufacturing process carried out by the project; Lal Mohammad v. Indian Railway Construction Co. Ltd., AIR 1999 SC 355.
(vii) For the purpose of section 2(n) what is to be seen is who has the ‘ultimate’ control over the affairs of the factory. Relevant provisions regarding establishment of the Indian Oil Corporation Ltd., and its working, leave no doubt that the ultimate control over all the affairs of the Corporation, including opening and running of factories, is with the Central Government. Acting through the corporation is only a method employed by the Central Government for running its petroleum industry. In the context of section 2(n) it will have to be held that all the activities of the Corporation are really carried on by the Central Government with a corporate mask; Indian Oil Corporation v. Labour Commissioner, AIR 1998 SC 2456.
(viii) Commercial establishment receiving the products in bulk and after unpacking such bulk products pack them according to the customers’ requirements and despatch such products to customers. Such an act is manufacturing process within the meaning of section 2(k); Parry & Co. Ltd. v. Presiding Officer, II Additional Labour Court, Madras, (1998) I LLJ 406.
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1 Ins. by Act 25 of 1954, sec. 2 (w.e.f. 7-5-1954)
2. Ins. by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).
3. Subs. by Act 94 of 1976, sec. 2, for sub-clause (ii) (w.e.f. 26-10-1976).
4. Subs. by Act 25 of 1954, sec. 2, for sub-clause (iv) (w.e.f. 7-5-1954).
5. Ins. by Act 94 of 1976, sec. 2, (w.e.f. 26-10-1976).
6. Subs. by Act 94 of 1976, sec. 2, for certain words (w.e.f. 26-10-1976).
7. Subs. by Act 25 of 1954, sec. 2, for “the Indian Mines Act, 1923 (4 of 1923)”.
8. Subs. by Act 94 of 1976, sec. 2, for “a railway running shed” (w.e.f. 26-10-1976).
9. Explanation numbered as Explanation I by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).
10. Subs. by Act 20 of 1987, sec. 2 for “different relays” (w.e.f. 1-12-1987).
11. Ins. by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).
12. Certain words omitted by Act 20 of 1987, sec. 2, (w.e.f. 1-12-1987).
13. Ins. by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).
14. Subs. by Act 20 of 1987, sec. 2, for “Provided that” (w.e.f. 1-12-1987).
15. Clause (o) omitted by Act 20 of 1987, sec. 2 (w.e.f. 1-12-1987).
16. Clause (q) omitted by the A. O. 1950.
17 Subs. by Act 20 of 1987, sec. 2, for “relay” (w.e.f. 1-12-1987).
Section 3. REFERENCES TO TIME OF DAY.
In this Act references to time of day are references to Indian Standard Time, being five and a half hours ahead of Greenwich Mean Time :
Provided that for any area in which Indian Standard Time is not ordinarily observed the State Government may make rules -
(a) specifying the area,
(b) defining the local mean time ordinarily observed therein, and
(c) permitting such time to be observed in all or any of the factories situated in the area.
Section 4. POWER TO DECLARE DIFFERENT DEPARTMENTS TO BE SEPARATE FACTORIES OR TWO OR MORE FACTORIES TO BE A SINGLE FACTORY.
1[Power to declare different departments to be separate factories or two or more factories to be a single factory.—The State Government may, 2[on its own or] on an application made in this behalf by an occupier, direct, by an order in writing 2[and subject to such conditions as it may deem fit], that for all or any of the purposes of this Act different departments or branches of a factory of the occupier specified in the application shall be treated as separate factories or that two or more factories of the occupier specified in the application shall be treated as a single factory:]
3[Provided that no order under this section shall be made by the State Government on its own motion unless an opportunity of being heard is given to the occupier.]
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1. Subs. by Act 25 of 1954, sec. 3, for section 4 (w.e.f.7-5-1954).
2. Ins. by Act 20 of 1987, sec. 3 (w.e.f. 1-12-1987).
3. Added by Act 20 of 1987, sec. 3 (w.e.f. 1-12-1987).
Section 5. POWER TO EXEMPT DURING PUBLIC EMERGENCY.
In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act 1except section 67 for such period and subject to such conditions as it may think fit : Provided that no such notification shall be made for a period exceeding three months at a time.
2Explanation : For the purposes of this section “public emergency” means a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.
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1. Ins. by the A.O. 1950.
2.Ins. by Act 94 of 1976, sec. 3 (w.e.f. 26-10-1976).
Section 6. APPROVAL, LICENSING AND REGISTRATION OF FACTORIES.
(1) The State Government may make rules -
1(a) requiring, for the purposes of this Act, the submission of plans of any class or description of factories to the Chief Inspector or the State Government;
2(aa) requiring, the previous permission in writing of the State Government or the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction or extension of any factory or class or description of factories;
(b) requiring for the purpose of considering applications for such permission the submission of plans and specifications;
(c) prescribing the nature of such plans and specifications and by whom they shall be certified;
(d) requiring the registration and licensing of factories or any class or description of factories, and prescribing the fees payable for such registration and licensing and for the renewal of licences;
(e) requiring that no licence shall be granted or renewed unless the notice specified in section 7 has been given.
(2) If on an application for permission referred to in 3clause (aa) of sub-section (1) accompanied by the plans and specifications required by the rules made under clause (b) of that sub-section, sent to the State Government or Chief inspector by registered post, no order is communicated to the applicant within three months from the date on which it is so sent, the permission applied for in the said application shall be deemed to have been granted.
(3) Where a State Government or a Chief Inspector refuses to grant permission to the site, construction or extension of a factory or to the registration and licensing of a factory, the applicant may within thirty days of the date of such refusal appeal to the Central Government if the decision appealed from was of the State Government and to the State Government in any other case.
Explanation : A factory shall not be deemed to be extended within the meaning of this section by reason only of the replacement of any plant or machinery, or within such limits as may be prescribed, of the addition of any plant or machinery 4if such replacement or addition does not reduce the minimum clear space required for safe working around the plant or machinery or adversely affect the environmental conditions from the evolution or emission of steam, heat or dust or fumes injurious to health.
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1. Ins. by Act 94 of 1976, sec. 4 (w.e.f. 26-10-1976).
2. Clause (a) re-lettered as clause (aa) by Act 94 of 1976, sec. 4 (w.e.f. 26-10-1976).
3. Subs. by Act 94 of 1976, sec. 4 “for clause (a)” (w.e.f. 26-10-1976).
4. Ins. by Act 94 of 1976, sec. 4 (w.e.f. 26-10-1976).
Section 7. NOTICE BY OCCUPIER.
(1) The occupier shall, at least fifteen days before he begins to occupy or use any premises as a factory, send to the Chief Inspector a written notice containing -
(a) the name and situation of the factory;
(b) the name and address of the occupier;
1(bb) the name and address of the owner of the premises or building (including the precincts thereof) referred to in section 93;
(c) the address to which communication relating to the factory may be sent;
(d) the nature of the manufacturing process -
(i) carried on in the factory during the last twelve months in the case of factories in existence on the date of the commencement of this Act, and
(ii) to be carried on in the factory during the next twelve months in the case of all factories;
2(e) the total rated horse power installed or to be installed in the factory, which shall not include the rated horse power of any separate stand-by plant;
(f) the name of the manager of the factory for the purposes of this Act;
(g) the number of workers likely to be employed in the factory;
(h) the average number of workers per day employed during the last
twelve months in the case of a factory in existence on the date of the commencement of this Act; (i) such other particulars as may be prescribed.
(2) In respect of all establishments which come within the scope of the Act for the first time, the occupier shall send a written notice to the Chief Inspector containing the particulars specified in sub-section (1) within thirty days, from the date of the commencement of this Act.
(3) Before a factory engaged in a manufacturing process which is ordinarily carried on for less than one hundred and eighty working days in the year resumes working, the occupier shall send a written notice to the Chief Inspector containing the particulars specified in sub-section (1)3 at least thirty days before the date of the commencement of work.
(4) Whenever a new manager is appointed, the occupier shall send to the 4Inspector a written notice and to the Chief Inspector a copy thereof within seven days from the date on which such person takes over charge.
(5) During any period for which no person has been designated as manager of a factory or during which the person designated does not manage the factory, any person found acting as manager, or if no such person is found, the occupier himself, shall be deemed to be the manager of the factory for the purposes of this Act.
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1. Ins. by Act 25 of 1954, sec. 4 (w.e.f. 7-5-1954).
2. Subs. by Act 94 of 1976, sec. 5, for clause (e) (w.e.f. 26-10-1976).
3. Subs. by Act 40 of 1949, sec. 3 and Sch. II, for “within thirty days”.
4. Subs. by Act 25 of 1954, sec. 4, for “Chief Inspector a written notice”.
Section 7 A. GENERAL DUTIES OF THE OCCUPIER.
(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include – (a) the provision and maintenance of plant and systems of work in the factory that are safe and without risks to health;
(b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety, of all workers at work;
(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;
(e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.
(3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.
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1. Ins. by Act 20 of 1987, sec. 4 (w.e.f. 1-12-1987).
Section 7 B. GENERAL DUTIES OF MANUFACTURERS, ETC., AS REGARDS ARTICLES AND SUBSTANCES FOR USE IN FACTORIES.
1(1) Every person who designs, manufactures, imports or supplies any article for use in any factory shall -
(a) ensure, so far as is reasonably practicable, that the article is so designed and constructed as to be safe and without risks to the health of the workers when properly used;
(b) carry out or arrange for the carrying out of such tests and examination as may be considered necessary for the effective implementation of the provisions of clause (a);
(c) take such steps as may be necessary to ensure that adequate information will be available -
(i) in connection with the use of the article in any factory;
(ii) about the use for which it is designed and tested; and
(iii) about any conditions necessary to ensure that the article, when put to such use, will be safe, and without risks to the health of the workers :
Provided that where an article is designed or manufactured outside India, it shall be obligatory on the part of the importer to see -
(a) that the article conforms to the same standards if such article is manufactured in India, or
(b) if the standards adopted in the country outside for the manufacture of such article is above the standards adopted in India, that the article conforms to such standards.
(2) Every person, who undertakes to design or manufacture any article for use in any factory, may carry out or arrange for the carrying out of necessary research with a view to the discovery and, so far as is reasonably practicable, the elimination or minimization of any risks to the health or safety of the workers to which the design or article may give rise.
(3) Nothing contained in sub-sections (1) and (2) shall be construed to require a person to repeat the testing, examination or research which has been carried out otherwise than by him or at his instance in so far as it is reasonable for him to rely on the results thereof for the purposes of the said sub-sections.
(4) Any duty imposed on any person by sub-sections (1) and (2) shall extend only to things done in the course of business carried on by him and to matters within his control.
(5) Where a person designs, manufactures, imports or supplies an article on the basis of a written undertaking by the user of such article to take the steps specified in such undertaking to ensure, so far as is reasonably practicable, that the article will be safe and without risks to the health of the workers when properly used, the undertaking shall have the effect of relieving the person designing, manufacturing, importing or supplying the article from the duty imposed by clause (a) of sub-section (1) to such extent as is reasonable having regard to the terms of the undertaking.
(6) For the purposes of this section, an article is not to be regarded as properly used if it is used without regard to any information or advice relating to its use which has been made available by the person who has designed, manufactured, imported or supplied the article.
Explanation : For the purposes of this section, “article” shall include plant and machinery
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1. Ins. by Act 20 of 1987, sec. 4 (w.e.f. 1-6-1988).
Section 8. INSPECTORS.
(1) The State Government may, by notification in the Official Gazette, appoint such persons as possess the prescribed qualification to be Inspectors for the purposes of this Act and may assign to them such local limits as it may think fit.
(2) The State Government may, by notification in the Official Gazette, appoint any person to be a Chief Inspector who shall, in addition to the powers conferred on a Chief Inspector under this Act, exercise the powers of an Inspector throughout the State.
1(2A) The State Government may, by notification in the Official Gazette, appoint as many Additional Chief Inspectors, Joint Chief Inspectors and Deputy Chief Inspectors and as many other officers as it thinks fit to assist the Chief Inspector and to exercise such of the powers of the Chief Inspector as may be specified in such notification.
(2B) Every Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector and every other officer appointed under sub-section (2A) shall, in addition to the powers of a Chief Inspector specified in the notification by which he is appointed, exercise the powers of an Inspector throughout the State.
(3) No person shall be appointed under sub-section (1), sub-section (2)1sub-section (2A) lra-38 ] or sub-section (5), or having been so appointed, shall continue to hold office, who is or becomes directly or indirectly interested in a factory or in any process or business carried on therein or in any patent or machinery connected therewith.
(4) Every District Magistrate shall be an Inspector for his district.
(5) The State Government may also, by notification as aforesaid, appoint such public officers as it thinks fit to be additional Inspectors for all or any of the purposes of this Act, within such local limits as it may assign to them respectively.
(6) In any area where there are more Inspectors than one the State Government may, by notification as aforesaid, declare the powers, which such Inspectors shall respectively exercise and the Inspector to whom the prescribed notices are to be sent.
(7)2 Every Chief Inspector, Additional Chief Inspector, Joint Chief Inspector, Deputy Chief Inspector, Inspector and every other officer appointed under this section shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860), and shall be officially subordinate to such authority as the State Government may specify in this behalf.
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1. Ins. by Act 94 of 1976, sec. 6 (w.e.f. 26-10-1976).
2. Subs. by Act 94 of 1976, sec. 6, for “Every Chief Inspector or Inspector” (w.e.f. 26-10-1976).
Section 9. POWERS OF INSPECTORS.
Subject to any rules made in this behalf, an Inspector may, within the local limits for which he is appointed, -
(a) enter, with such assistants, being persons in the service of the Government, or any local or other public authority, 1[or with an expert] as he thinks fit, any place which is used, or which he has reason to believe is used, as a factory;
2[(b) make examination of the premises, plant, machinery, article or substance;
(c) inquire into any accident or dangerous occurrence, whether resulting in bodily injury, disability or not, and take on the spot or otherwise statements of any person which he may consider necessary for such inquiry;
(d) require the production of any prescribed register or any other document relating to the factory;
(e) seize, or take copies of, any register, record or other document or any portion thereof, as he may consider necessary in respect of any offence under this Act, which he has reason to believe, has been committed;
(f) direct the occupier that any premises or any part thereof, or anything lying therein, shall be left undisturbed (whether generally or in particular respects) for so long as is necessary for the purpose of any examination under clause (b);
(g) take measurements and photographs and make such recordings as he considers necessary for the purpose of any examination under clause (b), taking with him any necessary instrument or equipment;
(h) in case of any article or substance found in any premises, being an article or substance which appears to him as having caused or is likely to cause danger to the health or safety of the workers, direct it to be dismantled or subject it to any process or test (but not so as to damage or destroy it unless the same is, in the circumstances necessary, for carrying out the purposes of this Act), and take possession of any such article of substance or a part thereof, and detain it for so long as is necessary for such examination; (i) exercise such other powers as may be prescribed :
Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself.
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1. Ins. by Act 20 of 1987, sec. 5 (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987, sec. 5, for clauses (b) and (c) (w.e.f. 1-12-1987).
Section 10 CERTIFYING SURGEONS.
(1) The State Government may appoint qualified medical practitioners to be certifying surgeons for the purposes of this Act within such local limits or for such factory or class or description of factories as it may assign to them respectively.
(2) A certifying surgeon may, with the approval of the State Government, authorize any qualified medical practitioner to exercise any of his powers under this Act for such period as the certifying surgeon may specify and subject to such conditions as the State Government may think fit to impose, and references in this Act to a certifying surgeon shall be deemed to include references to any qualified medical practitioner when so authorized.
(3) No person shall be appointed to be, or authorized to exercise the powers of, a certifying surgeon, or having been so appointed or authorized, continue to exercise such powers, who is, or becomes the occupier of a factory or is or becomes directly or indirectly interested therein or in any process or business carried on therein or in any patent or machinery connected therewith or is otherwise in the employ of the factory :
1Provided that the State Government may, by order in writing and subject to such conditions as may be specified in the order, exempt any person or class of persons from the provisions of this sub-section in respect of any factory or class or description of factories.
(4) The certifying surgeon shall carry out such duties as may be prescribed in connection with -
(a) the examination and certification of young persons under this Act;
(b) the examination of persons engaged in factories in such dangerous occupations or processes as may be prescribed;
(c) the exercising of such medical supervision as may be prescribed for any factory or class or description of factories where -
(i) cases of illness have occurred which it is reasonable to believe are due to the nature of the manufacturing process carried on, or other conditions of work prevailing, therein;
(ii) by reason of any change in the manufacturing process carried on or in the substances used therein or by reason of the adoption of any new manufacturing process or of any new substance for use in a manufacturing process, there is a likelihood of injury to the health of workers employed in that manufacturing process;
(iii) young persons are, or are about to be, employed in any work which is likely to cause injury to their health. Explanation : In this section “qualified medical practitioner” means a person holding a qualification granted by an authority specified in the Schedule to the Indian Medical Degrees Act, 1916 (7 of 1916) or in the Schedules to the Indian Medical Council Act, 1933 (27 of 1933). 2
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1. Ins. by Act 94 of 1976, sec. 7 (w.e.f. 26-10-1976).
2. Now see the Indian Medical Council Act, 1956 (102 of 1956).
Section 11. CLEANLINESS.
(1) Every factory shall be kept clean and free from effluvia arising from any drain, privy or other, nuisance, and in particular -
(a) accumulations of dirt and refuse shall be removed daily by sweeping or by any other effective method from the floors and benches of workrooms and from staircases and passages, and disposed of in a suitable manner;
(b) the floor of every workroom shall be cleaned at least once in every week by washing, using disinfectant, where necessary, or by some other effective method;
(c) where a floor is liable to become wet in the course of any manufacturing process to such extent as is capable of being drained, effective means of drainage shall be provided and maintained;
(d) all inside walls and partitions, all ceilings or tops of rooms and all walls, sides and tops of passages and staircases shall—
(i) where they are 1[painted otherwise than with washable water-paint] or varnished, be re-painted or re-varnished at least once in every period of five years;
2[(ia) where they are painted with washable water-paint, be re-painted with at least one coat of such paint at least once in every period of three years and washed at least once in every period of six months;]
(ii) where they are painted or varnished or where they have smooth impervious surfaces be cleaned at least once in every period of fourteen months by such method as may be prescribed;
(iii) in any other case, be kept white washed or colourwashed, and the white-washing or colourwashing shall be carried out at least once in every period of fourteen months;
2[(dd) all doors and window frames and other wooden or metallic framework and shutters shall be kept painted or varnished and the painting or varnishing shall be carried out at least once in every period of five years;]
(e) the dates on which the processes required by clause (d) are carried out shall be entered in the prescribed register.
(2) If, in view of the nature of the operations carried on 3[in a factory or class or description of factories or any part of a factory or class or description of factories], it is not possible for the occupier to comply with all or any of the provisions of sub-section (1), the State Government may by order exempt such factory or class or description of factories 2[or part] from any of the provisions of that sub-section and specify alternative methods for keeping the factory in a clean state.
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1. Subs. by Act 94 of 1976, sec. 8, for “painted” (w.e.f. 26-10-1976).
2. Ins. by Act 94 of 1976, sec. 8 (w.e.f. 26-10-1976).
3. Subs. by Act 94 of 1976, sec. 8, for “in a factory” (w.e.f. 26-10-1976).
Section 12. DISPOSAL OF WASTES AND EFFLUENTS.
(1) Effective arrangements shall be made in every factory for the treatment of wastes and effluents due to the manufacturing process carried on therein, so as to render them innocuous, and for their disposal.
(2) The State Government may make rules prescribing the arrangements to be made under sub-section (1) or requiring that the arrangements made in accordance with sub-section (1) shall be approved by such authority as may be prescribed.
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1. Subs. by Act 94 of 1976, sec. 9, for sub-section (1) (w.e.f. 26-10-1976).
Section 13. VENTILATION AND TEMPERATURE.
(1) Effective and suitable provision shall be made in every factory for securing and maintaining in every workroom -
(a) adequate ventilation by the circulation of fresh air, and
(b) such a temperature as will secure to workers therein reasonable conditions of comfort and prevent injury to health; and in particular, – (i) walls and roofs shall be of such material and so designed that such temperature shall not be exceeded but kept as low as practicable;
(ii) where the nature of the work carried on in the factory involves, or is likely to involve, the production of excessively high temperatures such adequate measures as are practicable shall be taken to protect the workers therefrom, by separating the process which produces such temperatures from the workroom, by insulating the hot parts or by other effective means.
(2) The State Government may prescribe a standard of adequate ventilation and reasonable temperature for any factory or class or description of factories or parts thereof and direct that 1[proper measuring instruments, at such places and in such position as may be specified, shall be provided and such records, as may be prescribed, shall be maintained].
2[(3) If it appears to the Chief Inspector that excessively high temperatures in any factory can be reduced by the adoption of suitable measures, he may, without prejudice to the rules made under sub-section (2), serve on the occupier, an order in writing specifying the measures which, in his opinion, should be adopted, and requiring them to be carried out before a specified date.]
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1. Subs. by Act 20 of 1987, sec. 6, for certain words (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987, sec. 6, for sub-section (3) (w.e.f. 1-12-1987).
Section 14. DUST AND FUME.
(1) In every factory in which, by reason of the manufacturing process carried on, there is given off any dust or fume or other impurity of such a nature and to such an extent as is likely to be injurious or offensive to the workers employed therein, or any dust in substantial quantities, effective measures shall be taken to prevent its inhalation and accumulation in any workroom, and if any exhaust appliance is necessary for this purpose, it shall be applied as near as possible to the point of origin of the dust, fume or other impurity, and such point shall be enclosed so far as possible.
(2) In any factory no stationary internal combustion engine shall be operated unless the exhaust is conducted into the open air, and no other internal combustion engine shall be operated in any room unless effective measures have been taken to prevent such accumulation of fumes therefrom as are likely to be injurious to workers employed in the room.
Section 15. ARTIFICIAL HUMIDIFICATION.
(1) In respect of all factories in which the humidity of the air is artificially increased, the State Government may make rules, -
(a) prescribing standards of humidification;
(b) regulating the methods used for artificially increasing the humidity of the air,
(c) directing prescribed tests for determining the humidity of the air to be correctly carried out and recorded;
(d) prescribing methods to be adopted for securing adequate ventilation and cooling of the air in the workrooms.
(2) In any factory in which the humidity of the air is artificially increased, the water used for the purpose shall be taken from a public supply, or other source of drinking water, or shall be effectively purified before it is so used.
(3) If it appears to an Inspector that the water used in a factory for increasing humidity which is required to be effectively purified under sub-section (2) is not effectively purified he may serve on the manager of the factory an order in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before specified date.
Section 16. OVERCROWDING.
(1) No room in any factory shall be overcrowded to an extent injurious to the health of the workers employed therein.
(2) Without prejudice to the generality of sub-section (1) there shall be in every workroom of a factory in existence on the date of the commencement of this Act at least 1[9.9 cubic metres] and of a factory built after the commencement of this Act at least 2[14.2 cubic metres] of space for every worker employed therein, and for the purposes of this sub-section no account shall be taken of any space which is more than 3[4.2 metres] above the level of the floor of the room.
(3) If the Chief Inspector by order in writing so requires, there shall be posted in each workroom of a factory a notice specifying the maximum number of workers who may, in compliance with the provisions of this section, be employed in the room.
(4) The Chief Inspector may by order in writing exempt, subject to such conditions, if any, as he may think fit to impose, any workroom from the provisions of this section, if he is satisfied that compliance therewith in respect of the room is unnecessary in the interest of the health of the workers employed therein.
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1. Subs. by Act 20 of 1987, sec. 7, for “three hundred and fifty cubic feet” (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987, sec. 7, for “five hundred cubic feet” (w.e.f. 1-12-1987).
3. Subs. by Act 20 of 1987, sec. 7, for “fourteen feet” (w.e.f. 1-12-1987).
Section 17. LIGHTING
(1) In every part of a factory where workers are working or passing there shall be provided and maintained sufficient and suitable lighting, natural or artificial, or both.
(2) In every factory all glazed windows and skylights used for the lighting of the workroom shall be kept clean on both the inner and outer surfaces and, so far as compliance with the provisions of any rules made, under sub-section (3) of section 13 will allow, free from obstruction.
(3) In every factory effective provision shall, so far as is practicable, be made for the prevention of -
(a) glare, either directly from a source of light or by reflection from a smooth or polished surface;
(b) the formation of shadows to such an extent as to cause eye-strain or the risk of accident to any worker.
(4) The State Government may prescribe standards of sufficient and suitable lighting for factories or for any class or description of factories or for any manufacturing process.
Section 18. DRINKING WATER.
(1) In every factory effective arrangements shall be made to provide and maintain at suitable points conveniently situated for all workers employed therein a sufficient supply of wholesome drinking water.
(2) All such points shall be legibly marked “drinking water” in a language understood by a majority of the workers employed in the factory, and no such point shall be situated within 1six metres of any washing place, urinal, latrine, spittoon, open drain carrying sullage or effluent or any other source of contamination unless a shorter distance is approved in writing by the Chief Inspector.
(3) In every factory wherein more than two hundred and fifty workers are ordinarily employed, provisions shall be made for cooling drinking water during hot weather by effective means and for distribution thereof.
(4) In respect of all factories or any class or description of factories the State Government may make rules for securing compliance with the provisions of sub-sections (1), (2) and (3) and for the examination by prescribed authorities of the supply and distribution of drinking water in factories.
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1. Subs. by Act 20 of 1987, sec. 8, for certain words (w.e.f. 1-12-1987).
Section 19. LATRINES AND URINALS.
(1) In every factory -
(a) sufficient latrine and urinal accommodation of prescribed types shall be provided conveniently situated and accessible to workers at all times while they are at the factory;
(b) separate enclosed accommodation shall be provided for male and female workers;
(c) such accommodation shall be adequately lighted and ventilated, and no latrine or urinal shall, unless specially exempted in writing by the Chief Inspector, communicate with any workroom except through an intervening open space or ventilated passage;
(d) all such accommodation shall be maintained in a clean and sanitary condition at all times;
(e) sweepers shall be employed whose primary duty it would be to keep clean latrines, urinals and washing places.
(2) In every factory wherein more than two hundred and fifty workers are ordinarily employed -
(a) all latrine and urinal accommodation shall be of prescribed sanitary types;
(b) the floors and internal walls, up to a height of 1ninety centimeters, of the latrines and urinals and the sanitary blocks shall be laid in glazed titles or otherwise finished to provide a smooth polished impervious surface;
(c) without prejudice to the provisions of clauses (d) and (e) of sub-section (1), the floors, portions of the walls and blocks so laid or finished and the sanitary pans of latrines and urinals shall be thoroughly washed and cleaned at least once in every seven days with suitable detergents or disinfectants or with both.
(3) The State Government may prescribe the number of latrines and urinals to be provided in any factory in proportion to the numbers of male and female workers ordinarily employed therein, and provide for such further matters in respect of sanitation in factories, including the obligation of workers in this regard, as it considers necessary in the interest of the health of the workers employed therein.
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1. Subs. by Act 20 of 1987, sec. 9, for “three feet” (w.e.f. 1-12-1987).
Section 20. SPITTOONS.
(1) In every factory there shall be provided a sufficient number of spittoons in convenient places and they shall be maintained in a clean and hygienic condition.
(2) The State Government may make rules prescribing the type and the number of spittoons to be provided and their location in any factory and provide for such further matters relating to their maintenance in a clean and hygienic condition.
(3) No person shall spit within the premises of a factory except in the spittoons provided for the purpose and a notice containing this provision and the penalty for its violation shall be prominently displayed at suitable places in the premises.
(4) Whoever spits in contravention of sub-section (3) shall be punishable with fine not exceeding five rupees.
Section 21. FENCING OF MACHINERY.
(1) In every factory the following, namely, -
(i) every moving part of a prime mover and every flywheel connected to a prime mover, whether the prime mover or flywheel is in the engine house or not;
(ii) the headrace and tailrace of every water-wheel and water turbine;
(iii) any part of a stock-bar which projects beyond the head stock of a lathe; and
(iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely -
(a) every part of an electric generator, a motor or rotary converter;
(b) every part of transmission machinery; and
(c) every dangerous part of any other machinery, shall be securely fenced by safeguards of substantial construction which 1shall be constantly maintained and kept in position while the parts of machinery they are fencing are in motion or in use :
2Provided that for the purpose of determining whether any part of machinery is in such position or is of such construction as to be safe as
aforesaid, account shall not be taken of any occasion when – (i) it is necessary to make an examination of any part of the machinery aforesaid while it is in motion or, as a result of such examination, to carry out lubrication or other adjusting operation while the machinery is in motion, being an examination or operation which it is necessary to be carried out while that part of the machinery is in motion, or
(ii) in the case of any part of a transmission machinery used in such process as may be prescribed (being a process of a continuous nature the carrying on of which shall be, or is likely to be, substantially interfered with by the stoppage of that part of the machinery), it is necessary to make an examination of such part of the machinery while it is in motion or, as a result of such examination, to carry out any mounting or shipping of belts or lubrication or other adjusting operation while the machinery is in motion, and such examination or operation is made or carried out in accordance with the provisions of sub-section (1) of section 22.
(2) The State Government may by rules prescribe such further precautions as it may consider necessary in respect of any particular machinery or part thereof, or exempt, subject to such condition as may be prescribed, for securing the safety of the workers, any particular machinery or part thereof from the provisions of this section.
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1. Subs. by Act 94 of 1976, sec. 10, for “shall be kept in position” (w.e.f. 26-10-1976).
2. Subs. by Act 94 of 1976 sec. 10, for the proviso (w.e.f. 26-10-1976).
Section 22. WORK ON OR NEAR MACHINERY IN MOTION.
1(1) Where in any factory it becomes necessary to examine any part of machinery referred to in section 21, while the machinery is in motion, or, as a result of such examination, to carry out -
(a) in a case referred to in clause (i) of the proviso to sub-section (1) of section 21, lubrication or other adjusting operation; or
(b) in a case referred to in clause (ii) of the proviso aforesaid, any mounting or shipping of belts or lubrication or other adjusting operation, while the machinery is in motion such examination or operation shall be made or carried out only by a specially trained adult male worker wearing tight fitting clothing (which shall be supplied by the occupier) whose name has been recorded in the register prescribed in this behalf and who has been furnished with a certificate of his appointment, and while he is so engaged, – (a) such worker shall not handle a belt at a moving pulley unless -
(i) the belt is not more than fifteen centimeters in width;
(ii) the pulley is normally for the purpose of drive and not merely a fly-wheel or balance wheel (in which case a belt is not permissible);
(iii) the belt joint is either laced or flush with the belt;
(iv) the belt, including the joint and the pulley rim, are in good repair;
(v) there is reasonable clearance between the pulley and any fixed plant or structure;
(vi) secure foothold and, where necessary, secure handhold, are provided for the operator; and
(vii) any ladder in use for carrying out any examination or operation aforesaid is securely fixed or lashed or is firmly held by a second person.
(b) without prejudice to any other provision of this Act relating to the fencing of machinery, every set screw, bolt and key on any revolving shaft, spindle, wheel or pinion, and all spur, worm and other toothed or friction gearing in motion with which such worker would otherwise be liable to come into contact, shall be securely fenced to prevent such contact.
2(2) No woman or young person shall be allowed to clean, lubricate or adjust any part of a prime mover or of any transmission machinery while the prime mover or transmission machinery is in motion, or to clean, lubricate or adjust any part of any machine if the cleaning, lubrication or adjustment thereof would expose the woman or young person to risk of injury from any moving part either of that machine or of any adjacent machinery.
(3) The State Government may, by notification in the official. Gazette, prohibit, in any specified factory or class or description of factories, the cleaning, lubricating or adjusting by any person of specified parts of machinery when those parts are in motion.
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1. Subs. by Act 94 of 1976, sec. 11, for the opening paragraph and clause (a) (w.e.f. 26-10-1976).
2. Subs. by Act 25 of 1954, sec. 6, for sub-section (2) (w.e.f. 7-5-1954).
Section 23. EMPLOYMENT OF YOUNG PERSONS ON DANGEROUS MACHINES.
(1) No young person 1shall be required or allowed to work at any machine to which this section applies, unless he has been fully instructed as to the dangers arising in connection with the machine and the precautions to be observed and -
(a) has received sufficient training in work at the machine, or
(b) is under adequate supervision by a person who has a thorough knowledge and experience of the machine. (2) Sub-section (1) shall apply to such machines as may be prescribed by the State Government, being machines which in its opinion are of such a dangerous character that young persons ought not to work at them unless the foregoing requirements are complied with.
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1. Subs. by Act 20 of 1987, 10, for “shall work” (w.e.f. 1-12-1987).
Section 24. STRIKING GEAR AND DEVICES FOR CUTTING OFF POWER.
(1) In every factory -
(a) suitable striking gear or other efficient mechanical appliance shall be provided and maintained and used to move driving belts to and from fast and loose pulleys which form part of the transmission machinery, such gear or appliances shall be so constructed, placed and maintained as to prevent the belt from creeping back on to the fast pulley;
(b) driving belts when not in use shall not be allowed to rest or ride upon shafting in motion.
(2) In every factory suitable devices for cutting off power in emergencies from running machinery shall be provided and maintained in every work-room:
Provided that in respect of factories in operation before the commencement of this Act, the provisions of this sub-section shall apply only to work-rooms in which electricity is used as power.
1[(3) When a device, which can inadvertently shift from “off” to “on” position, is provided in a factory to cut off power, arrangements shall be provided for locking the device in safe position to prevent accidental starting of the transmission machinery or other machines to which the device is fitted].
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1. Ins. by Act 94 of 1976, sec. 12 (w.e.f. 26-10-1976).
Section 25. SELF-ACTING MACHINES.
No traversing part of a self-acting machine in any factory and no material carried thereon shall, if the space over which it runs is a space over which any person is liable to pass, whether in the course of his employment or otherwise, be allowed to run on its outward or inward traverse within a distance of 1forty-five centimeters from any fixed structure which is not part of the machine :
Provided that the Chief Inspector may permit the continued use of a machine installed before the commencement of this Act which does not comply with the requirements of this section on such conditions for ensuring safety as he may think fit to impose.
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1. Subs. by Act 20 of 1987, sec. 11, for “eighteen inches” (w.e.f. 1-12-1987).
Section 26. CASING OF NEW MACHINERY.
(1) In all machinery driven by power and installed in any factory after the commencement of this Act, -
(a) every set screw, bolt or key on any revolving shaft, spindle, wheel pinion shall be so sunk, encased or otherwise effectively guarded as to prevent danger;
(b) all spur, worm and other toothed or friction gearing which does not require frequent adjustment while in motion shall be completely encased, unless it is so situated as to be as safe as it would be if it were completely encased.
(2) Whoever sells or lets on hire or, as agent of a seller or hirer, causes or procures to be sold on let or hire, for use in a factory any machinery driven by power which does not comply with the provisions of 1Sub-section (1) or any rules made under sub-section (3), shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.
2[(3) The State Government may make rules specifying further safeguards to be provided in respect of any other dangerous part of any particular machine or class or description of machines.]
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1. Subs. by Act 25 of 1954, sec. 7, for “sub-section (1)”.
2. Subs. by Act 25 of 1954, sec. 7, for sub section (3).
Section 27. PROHIBITION OF EMPLOYMENT OF WOMEN AND CHILDREN NEAR COTTON-OPENERS.
No woman or child shall be employed in any part of a factory for pressing cotton in which a cotton-opener is at work :
Provided that if the feed-end of a cotton-opener is in a room separated from the delivery end by a partition extending to the roof or to such height as the Inspector may in any particular case specify in writing, women and children may be employed on the side of the partition where the feed-end is situated.
Section 28. HOISTS AND LIFTS.
(1) In every factory -
(a) every hoist and lift shall be -
(i) of good mechanical construction, sound material and adequate strength;
(ii) properly maintained, and shall be thoroughly examined by a competent person at least once in every period of six months, and a register shall be kept containing the prescribed particulars of every such examination;
(b) every hoistway and liftway shall be sufficiently protected by an enclosure fitted with gates, and the hoist or lift and every such enclosure shall be so constructed as to prevent any person or thing from being trapped between any part of the hoist or lift and any fixed structure or moving part;
(c) the maximum safe working load shall be plainly marked on every hoist or lift, and no load greater than such load shall be carried thereon;
(d) the cage of every hoist or lift used for carrying persons shall be fitted with a gate on each side from which access is afforded to a landing;
(e) every gate referred to in clause (b) or clause (a) shall be fitted with interlocking or other efficient device to secure that the gate cannot be opened except when the cage is at the landing and that the cage cannot be moved unless the gate is closed.
(2) The following additional requirements shall apply to hoists and lifts used for carrying persons and installed or reconstructed in a factory after the commencement of this Act, namely : (a) where the cage is supported by rope or chain, there shall be at least two ropes or chains separately connected with the cage and balance weight, and each rope or chain with its attachments shall be capable of carrying the whole weight of the cage together with its maximum load;
(b) efficient devices shall be provided and maintained capable of supporting the cage together with its maximum load in the event of breakage of the ropes, chains or attachments;
(c) an efficient automatic device shall be provided and maintained to prevent the cage from over-running.
(3) The Chief Inspector may permit the continued use of a hoist or lift installed in a factory before the commencement of this Act which does not fully comply with the provisions of sub-section (1) upon such conditions for ensuring safety as he may think fit to impose.
(4) The State Government may, if in respect of any class or description of hoist or lift, it is of opinion that it would be unreasonable to enforce any requirement of sub-sections. (1) and (2), by order direct that such requirement shall not apply to such class or description of hoist or lift.
1[Explanation.—For the purposes of this section, no lifting machine or appliance shall be deemed to be a hoist or lift unless it has a platform or cage, the direction or movement of which is restricted by a guide or guides.]
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1. Ins. by Act 20 of 1987, sec. 12 (w.e.f. 1-12-1987).
Section 29. LIFTING MACHINES, CHAINS, ROPES AND LIFTING TACKLES.
1(1) In any factory the following provisions shall be complied with in respect of every lifting machine (other than a hoist and lift) and every chain, rope and lifting tackle for the purpose of raising or lowering persons, goods or materials :- (a) all parts, including the working gear, whether fixed or movable, of every lifting machine and every chain, rope or lifting tackle shall be -
(i) of good construction, sound material and adequate strength and free from defects;
(ii) properly maintained; and
(iii) thoroughly examined by a competent person at least once in every period of twelve months, or at such intervals as the Chief Inspector may specify in writing, and a register shall be kept containing the prescribed particulars of every such examination;
(b) no lifting machine and no chain, rope or lifting tackle shall, except for the purpose of test, be loaded beyond the safe working load which shall be plainly marked thereon together with an identification mark and duly entered in the prescribed register, and where this is not practicable, a table showing the safe working loads of every kind and size of lifting machine or, chain, rope or lifting tackle in use shall be displayed in prominent positions on the premises;
(c) while any person is employed or working on or near the wheel track of a travelling crane in any place where he would be liable to be struck by the crane, effective measures shall be taken to ensure that the crane does not approach within 2[six metres] of that place.
(2) The State Government may make rules in respect of any lifting machine or any chain, rope or lifting tackle used in factories – (a) prescribing further requirements to be complied with in addition to those set out in this section;
(b) providing for exemption from compliance with all or any of the requirements of this section, where in its opinion, such compliance is unnecessary or impracticable.
(3) For the purposes of this section a lifting machine or a chain, rope or lifting tackle shall be deemed to have been thoroughly examined if a visual examination supplemented, if necessary, by other means and by the dismantling of parts of the gear, has been carried out as carefully as the conditions permit in order to arrive at a reliable conclusion as to the safety of the parts examined. Explanation : In this section, -
(a) “lifting machine” means a crane, crab, winch, teagle, pulley block, gin wheel, transporter or runway;
3(b) “lifting tackle” means any chain, sling, rope sling, hook, shackle, swivel, coupling, socket, clamp, tray or similar appliance, whether fixed or movable, used in connection with the raising or lowering of persons, or loads by use of lifting machines.
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1. Subs. by Act 25 of 1954, sec. 8, for section 29 (w.e.f. 7-5-1954).
2. Subs. by Act 20 of 1987, sec. 13, for “twenty feet” (w.e.f. 1-12-1987).
3. Subs. by Act 20 of 1987, sec. 13, for clause (b) (w.e.f. 1-12-1987)
Section 30. REVOLVING MACHINERY.
1(1) In every factory in which the process of grinding is carried on there shall be permanently affixed to or placed near each machine in use a notice indicating the maximum safe working peripheral speed of every grindstone or abrasive wheel, the speed of the shaft or spindle upon which the wheel is mounted, and the diameter of the pulley upon such shaft or spindle necessary to secure such safe working peripheral speed.
(2) The speeds indicated in notices under sub-section (1) shall not be exceeded.
(3) Effective measures shall be taken in every factory to ensure that the safe working peripheral speed of every revolving vessel, cage, basket, flywheel, pulley, disc or similar appliance driven by power is not exceeded.
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1. Subs. by Act 20 of 1987 sec. 14, for “In every room in a factory” (w.e.f. 1-12-1987).
Section 31. PRESSURE PLANT.
1(1) If in any factory, any plant or machinery or any part thereof is operated at a pressure above atmospheric pressure, effective measures shall be taken to ensure that the safe working pressure of such plant or machinery or part is not exceeded.
(2) The State Government may make rules providing for the examination and testing of any plant or machinery such as is referred to in sub-section (1) and prescribing such other safety measures in relation thereto as may in its opinion be necessary in any factory or class or description of factories.
2(3) The State Government may, by rules, exempt, subject to such conditions as may be specified therein, any part of any plant or machinery referred to in sub-section (1) from the provisions of this section.
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1. Subs. by Act 20 of 1987 sec. 15, for sub-section (1) (w.e.f. 1-12-1987).
2. Ins. by Act 94 of 1976, sec. 13 (w.e.f. 26-10-1976).
Section 32. FLOORS, STAIRS AND MEANS OF ACCESS.
In every factory – (a) all floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained 1and shall be kept free from obstructions and substances likely to cause persons to slip, and where it is necessary to ensure safety, steps, stairs, passages and gangways shall be provided with substantial handrails;
(b) there shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person is at any time required to work.
2(c) when any person has to work at a height from where he is likely to fall, provision shall be made, so far as is reasonably practicable, by fencing or otherwise, to ensure the safety of the person so working.
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1. Ins. by Act 94 of 1976, sec. 14, (w.e.f. 26-10-1976).
2. Subs. by Act 20 of 1987, sec. 16, for clause (c) (w.e.f. 1-12-1987).
Section 33. PITS, SUMPS, OPENINGS IN FLOORS, ETC.
(1) In every factory fixed vessel, sump, tank, pit or opening in the ground or in a floor which, by reasons of its depth, situation, construction or contents, is or may be a source of danger, shall be either securely covered or securely fenced.
(2) The State Government may, by order in writing, exempt, subject to such conditions as may be prescribed, any factory or class or description of factories in respect of any vessel, sump, tank, pit or opening from compliance with the provisions of this section.
Section 34. EXCESSIVE WEIGHTS.
(1) No person shall be employed in any factory to lift, carry or move any load so heavy as to be likely to cause him injury.
(2) The State Government may make rules prescribing the maximum weights which may be lifted, carried or moved by adult men, adult women, adolescents and children employed in factories or in any class or description of factories or in carrying on any specified process
Section 35. PROTECTION OF EYES.
In respect of any such manufacturing process carried on in any factory as may be prescribed, being a process which involves -
(a) risk of injury to the eyes from particles or fragments thrown off in the course of the process, or
(b) risk to the eyes by reason of exposure to excessive light, the State Government may by rules require that effective screens or suitable goggles shall be provided for the protection of persons employed on, or in the immediate vicinity of, the process.
Section 36. PRECAUTIONS AGAINST DANGEROUS FUMES, GASES, ETC.
1 (1) No person shall be required or allowed to enter any chamber, tank, vat, pit, pipe, flue or other confined space in any factory in which any gas, fume, vapour or dust is likely to be present to such an extent as to involve risk to persons being overcome thereby, unless it is provided with a manhole of adequate size or other effective means of egress.
(2) No person shall be required or allowed to enter any confined space as is referred to in sub-section (1), until all practicable measures have been taken to remove any gas, fume, vapour or dust, which may be present so as to bring its level within the permissible limits and to prevent any ingress of such gas, fume, vapour or dust and unless -
(a) a certificate in writing has been given by a competent person, based on a test carried out by himself that the space is reasonably free from dangerous gas, fume, vapour or dust; or
(b) such person is wearing suitable breathing apparatus and a belt securely attached to a rope the free end of which is held by a person outside the confined space.
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1. Subs. by Act 20 of 1987, sec. 17, for section 36 (w.e.f. 1-12-1987).
Section 36 A. PRECAUTIONS REGARDING THE USE OF PORTABLE ELECTRIC LIGHT.
1[36A. Precautions regarding the use of portable electric light.—In any factory—
(a) no portable electric light or any other electric appliance of voltage exceeding twenty-four volts shall be permitted for use inside any chamber, tank, vat, pit, pipe, flue or other confined space 2[unless adequate safety devices are provided]; and
(b) if any inflammable gas, fume or dust is likely to be present in such chamber, tank, vat, pit, pipe, flue or other confined space, no lamp or light other than that of flame-proof construction shall be permitted to be used therein.]
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1. Ins. by Act 94 of 1976, sec. 16 (w.e.f. 26-10-1976).
2. Ins. by Act 20 of 1987, sec. 18 (w.e.f. 1-12-1987).
Section 37. EXPLOSIVE OR INFLAMMABLE DUST, GAS, ETC.
(1) Where in any factory any manufacturing process produces dust, gas, fume or vapour of such character and to such extent as to be likely to explode to ignition, all practicable measures shall be taken to prevent any such explosion by -
(a) effective enclosure of the plant or machinery used in the process;
(b) removal or prevention of the accumulation of such dust, gas, fume or vapour;
(c) exclusion or effective enclosure of all possible sources of ignition.
(2) Where in any factory the plant or machinery used in a process such as is referred to in sub-section (1) is not so constructed as to withstand the probable pressure which such an explosion as aforesaid would produce, all practicable measures shall be taken to restrict the spread and effects of the explosion by the provisions in the plant or machinery of chokes, baffles, vents or other effective appliances.
(3) Where any part of the plant or machinery in a factory contains any explosive or inflammable gas or vapour under pressure greater than atmospheric pressure, that part shall not be opened except in accordance with the following provisions, namely :-
(a) before the fastening of any joint of any pipe connected with the part of the fastening of the cover of any opening into the part is loosened, any flow of the gas or vapour into the part of any such pipe shall be effectively stopped by a stop valve or other means;
(b) before any such fastening as aforesaid is removed, all practicable measures shall be taken to reduce the pressure of the gas or vapour in the part or pipe to atmospheric pressure;
(c) where any such fastening as aforesaid has been loosened or removed
effective measures shall be taken to prevent any explosive or inflammable gas or vapour from entering the part of pipe until the fastening has been secured, or, as the case may be, securely replaced : Provided that the provisions of this sub-section shall not apply in the case of plant or machinery installed in the open air.
(4) No plant, tank or vessel which contains or has contained any explosive or inflammable substance shall be subjected in any factory to any welding, brazing, soldering or cutting operation which involves the application of heat unless adequate measures have first been taken to remove such substance and any fumes arising therefrom or to render such substance and fumes non-explosive or non-inflammable, and no such substance shall be allowed to enter such plant, tank or vessel after any such operation until the metal has cooled sufficiently to prevent any risk of igniting the substance.
(5) The State Government may by rules exempt, subject to such conditions as may be prescribed, any factory or class or description of factories from compliance with all or any of the provisions of this section.
Section 38. PRECAUTIONS IN CASE OF FIRE.
138. PRECAUTIONS IN CASE OF FIRE. (1) In every factory, all practicable measures shall be taken to prevent outbreak of fire and its spread, both internally and externally, and to provide and maintain – (a) safe means of escape for all persons in the event of a fire, and (b) the necessary equipment and facilities for extinguishing fire.
(2) Effective measures shall be taken to ensure that in every factory all the workers are familiar with the means of escape in case of fire and have been adequately trained in the routine to be followed in such cases.
(3) The State Government may make rules, in respect of any factory or class or description of factories, requiring the measures to be adopted to give effect to the provisions of sub-sections (1) and (2).
(4) Notwithstanding anything contained in clause (a) of sub-section (1) or sub-section (2), if the Chief Inspector, having regard to the nature of the work carried on in any factory, the construction of such factory, special risk to life or safety, or any other circumstances, is of the opinion that the measures provided in the factory, whether as prescribed or not, for the purposes of clause (a) of sub-section (1) or sub-section (2), are inadequate, he may, by, order in writing, require that such additional measures as he may consider reasonable and necessary, be provided in the factory before such date as is specified in the order
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1. Subs. by Act 20 of 1987, sec. 19, for section 38 (w.e.f. 1-12-1987).
Section 39. POWER TO REQUIRE SPECIFICATIONS OF DEFECTIVE PARTS OR TESTS OF STABILITY.
If it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life or safety, he may serve on 1the occupier or manager or both of the factory an order in writing requiring him before a specified date -
(a) to furnish such drawings, specifications and other particulars as may be necessary to determine whether such building, ways, machinery or plant can be used with safety, or
(b) to carry out such test in such manner as may be specified in the order, and to inform the Inspector of the results thereof.
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1. Subs. by Act 94 of 1976, sec. 18, for “the manager” (w.e.f. 26-10-1976).
Section 40. SAFETY OF BUILDINGS AND MACHINERY.
(1) If it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it is dangerous to human life or safety, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures which in his opinion should be adopted, and requiring them to be carried out before a specified date.
(2) If it appears to the Inspector that the use of any building or part of a building or any part of the ways, machinery or plant in a factory involves imminent danger to human life or safety, he may serve on 1[the occupier or manager or both] of the factory an order in writing prohibiting its use until it has been properly repaired or altered.
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1. Subs. by Act 94 of 1976, sec. 18, for “the manager” (w.e.f. 26-10-1976).
Section 40 A. MAINTENANCE OF BUILDINGS.
1[40A. Maintenance of buildings.—If it appears to the Inspector that any building or part of a building in a factory is in such a state of disrepair as is likely to lead to conditions detrimental to the health and welfare of the workers, he may serve on the occupier or manager or both of the factory an order in writing specifying the measures which in his opinion should be taken and requiring the same to be carried out before such date as is specified in the order.
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1. Ins. by Act 94 of 1976, sec. 19 (w.e.f. 26-10-1976).
Section 40 B. SAFETY OFFICERS.
1[40B. Safety Officers.—(1) In every factory, -
(i) wherein one thousand or more workers are ordinarily employed, or
(ii) wherein, in the opinion of the State Government, any manufacturing process or operation is carried on, which process or operation involves any risk of bodily injury, poisoning or disease, or any other hazard to health, to the persons employed in the factory, the occupier shall, if so required by the State Government by notification in the Official Gazette, employ such number of Safety Officers as may be specified in that notification.
(2) The duties, qualifications and conditions of service of Safety Officers shall be such as may be prescribed by the State Government.
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1. Ins. by Act 94 of 1976, sec. 19 (w.e.f. 26-10-1976).
Section 41 POWER TO MAKE RULE TO SUPPLEMENT THIS CHAPTER.
The State Government may make rules requiring the provision in any factory or in any class or description of factories of such further 1[devices and measures] for securing the safety of persons employed therein as it may deem necessary.
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1. Subs. by Act 94 of 1976, sec. 20, for “devices” (w.e.f. 26-10-1976).
Section 41 A. CONSTITUTION OF SITE APPRAISAL COMMITTEES.
*41A. Constitution of Site Appraisal Committees.—(1) The State Government may, for purposes of advising it to consider applications for grant of permission for the initial location of a factory involving a hazardous process or for the expansion of any such factory, appoint a Site Appraisal Committee consisting of -
(a) the Chief Inspector of the State who shall be its Chairman;
(b) a representative of the Central Board for the Prevention and Control of Water Pollution appointed by the Central Government under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(c) a representative of the Central Board for the Prevention and Control of Air Pollution referred to in section 3 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
(d) a representative of the State Board appointed under section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(e) a representative of the State Board for the Prevention and Control of Air Pollution referred to in section 5 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
(f) a representative of the Department of Environment in the State;
(g) a representative of the Meteorological Department of the Government of India;
(h) an expert in the field of occupational health; and
(i) a representative of the Town Planning Department of the State Government, and not more than five other members who may be co-opted by the State Government who shall be – (i) a scientist having specialised knowledge of the hazardous process which will be involved in the factory,
(ii) a representative of the local authority within whose jurisdiction the factory is to be established, and (iii) not more than three other persons as deemed fit by the State Government.
(2) The Site Appraisal Committee shall examine an application for the establishment of a factory involving hazardous process and make its recommendation to the State Government within a period of ninety days of the receipt of such applications in the prescribed form.
(3) Where any process relates to a factory owned or controlled by the Central Government or to a corporation or a company owned or controlled by the Central Government, the State Government shall co-opt in the Site Appraisal Committee a representative nominated by the Central Government as a member of that Committee.
(4) The Site Appraisal Committee shall have power to call for any information from the person making an application for the establishment or expansion of a factory involving a hazardous process.
(5) Where the State Government has granted approval to an application for the establishment or expansion of a factory involving hazardous process, it shall not be necessary for an applicant to obtain a further approval from the Central Board or the State Board established under the Water (Prevention and Control of Pollution) Act 1974 (6 of 1974) and the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981).
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*Sections 41A ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).
Section 41 B. COMPULSORY DISCLOSURE OF INFORMATION BY THE OCCUPIER.
*41B. Compulsory disclosure of information by the occupier. (1) The occupier of every factory involving a hazardous process shall disclose in the manner prescribed all information regarding dangers, including health hazards and the measures to overcome such hazards arising from the exposure to or handling of the materials or substances in the manufacture, transportation, storage and other processes, to the workers employed in the factory, the Chief Inspector, the local authority within whose jurisdiction the factory is situate and the general public in the vicinity.
(2) The occupier shall, at the time of registering the factory involving a hazardous process, lay down a detailed policy with respect to the health and safety of the workers employed therein and intimate such policy to the Chief Inspector and the local authority and, thereafter, at such intervals as may be prescribed, inform the Chief Inspector and the local authority of any change made in the said policy
(3) The information furnished under sub-section (1) shall include accurate information as to the quantity, specifications and other characteristics of wastes and the manner of their disposal.
(4) Every occupier shall, with the approval of the Chief Inspector, draw up an on-site emergency plan and detailed disaster control measures for his factory and make known to the workers employed therein and to the general public living in the vicinity of the factory the safety measures required to be taken in the event of an accident taking place.
(5) Every occupier of a factory shall, – (a) if such factory engaged in a hazardous process on the commencement of the Factories (Amendment) Act, 1987 (2 of 1987), within a period of thirty days of such commencement; and (b) if such factory proposes to engage in a hazardous process at any time after such commencement, within a period of thirty days before the commencement of such process, inform the Chief Inspector of the nature and details of the process in such form and in such manner as may be prescribed.
(6) Where any occupier of a factory contravenes the provisions of sub-section (5), the licence issued under section 6 to such factory shall, notwithstanding any penalty to which the occupier of factory shall be subjected to under the provisions of this Act, be liable for cancellation.
(7) The occupier of a factory involving a hazardous process shall, with the previous approval of the Chief Inspector, lay down measures for the handling, usage, transportation and storage of hazardous substances inside the factory premises and the disposal of such substances outside the factory premises and publicise them in the manner prescribed among the workers and the general public living in the vicinity.
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*Sections 41B ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).
Section 41 C. SPECIFIC RESPONSIBILITY OF THE OCCUPIER IN RELATION TO HAZARDOUS PROCESSES.
*41C. Specific responsibility of the occupier in relation to hazardous processes. Every occupier of a factory involving any hazardous process shall -
(a) maintain accurate and up-to-date health records or, as the case may be, medical records, of the workers in the factory who are exposed to any chemical, toxic or any other harmful substances which are manufactured, stored, handled or transported and such records shall be accessible to the workers subject to such conditions as may be prescribed;
(b) appoint persons who possess qualifications and experience in handling hazardous substances and are competent to supervise such handling within the factory and to provide at the working place all the necessary facilities for protecting the workers in the manner prescribed :
Provided that where any question arises as to the qualifications and experience of a person so appointed, the decision of the Chief Inspector shall be final;
(c) provide for medical examination of every worker -
(i) before such worker is assigned to a job involving the handling of, or working with, a hazardous substance, and
(ii) while continuing in such job, and after he has ceased to work in such job, at intervals not exceeding twelve months, in such manner as may be prescribed.
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* Sections 41C ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).
Section 41 D. POWER OF CENTRAL GOVERNMENT TO APPOINT INQUIRY COMMITTEE.
*41D. Power of Central Government to appoint Inquiry Committee. (1) The Central Government may, in the event of the occurrence of an extraordinary situation involving a factory engaged in a hazardous process, appoint an Inquiry Committee to inquire into the standards of health and safety observed in the factory with a view to finding out the causes of any failure or neglect in the adoption of any measures or standards prescribed for the health and safety of the workers employed in the factory or the general public affected, or likely to be affected, due to such failure or neglect and for the prevention and recurrence of such extraordinary situations in future in such factory or elsewhere.
(2) The Committee appointed under sub-section (1) shall consist of a chairman and two other members and the terms of reference of the Committee and the tenure of office of its members shall be such as may be determined by the Central Government according to the requirements of the situation.
(3) The recommendations of the Committee shall be advisory in nature.
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* Sections 41D ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).
Section 41 E. EMERGENCY STANDARDS.
*41E. Emergency standards. (1) Where the Central Government is satisfied that no standards of safety have been prescribed in respect of a hazardous process or class of hazardous processes, or where the standards so prescribed are inadequate, it may direct the Director-General of Factory Advice Service and Labour Institutes or any institution specialised in matters relating to standards of safety in hazardous processes, to lay down emergency standards for enforcement of suitable standards in respect of such hazardous processes.
(2) The emergency standards laid down under sub-section (1) shall, until they are incorporated in the rules made under this Act, be enforceable and have the same effect as if they had been incorporated in the rules made under this Act.
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* Sections 41E ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).
Section 41 F. PERMISSIBLE LIMITS OF EXPOSURE OF CHEMICAL AND TOXIC SUBSTANCES.
*41F. Permissible limits of exposure of chemical and toxic substances.—(1) The maximum permissible threshold limits of exposure of chemical and toxic substances in manufacturing processes (whether hazardous or otherwise) in any factory shall be of the value indicated in the Second Schedule.
(2) The Central Government may, at any time, for the purpose of giving effect to any scientific proof obtained from specialised institutions or experts in the field,, by notification in the Official Gazette, make suitable changes in the said Schedule.
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* Sections 41F ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-6-1988).
Section 41 G. WORKERS’ PARTICIPATION IN SAFETY MANAGEMENT.
*41G. Workers’ participation in safety management.—(1) The occupier shall, in every factory where a hazardous process takes place, or where hazardous substances are used or handled, set up a Safety Committee consisting of equal number of representatives of workers and management to promote cooperation between the workers and the management in maintaining proper safety and health at work and to review periodically the measures taken in that behalf :
Provided that the State Government may, by order in writing and for reasons to be recorded, exempt the occupier of any factory or class of factories from setting up such committee.
(2) The composition of the Safety Committee, the tenure of office of its members and their rights and duties shall be such as may be prescribed.
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* Sections 41G ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).
Section 41 H. RIGHT OF WORKERS TO WARN ABOUT IMMINENT DANGER.
*41H. Right of workers to warn about imminent danger. (1) Where the workers employed in any factory engaged in a hazardous process have reasonable apprehension that there is a likelihood of imminent danger to their lives or health due to any accident, they may bring the same to the notice of the occupier, agent, manager or any other person who is incharge of the factory or the process concerned directly or through their representatives in the Safety Committee and simultaneously bring the same to the notice of the Inspector.
(2) It shall be the duty of such occupier, agent, manager or the person incharge of the factory or process to take immediate remedial action if he is satisfied about the existence of such imminent danger and send a report forthwith of the action taken to the nearest Inspector.
(3) If the occupier, agent, manager or the person incharge referred to in sub-section (2) is not satisfied about the existence of any imminent danger as apprehended by the workers, he shall, nevertheless, refer the matter forthwith to the nearest Inspector whose decision on the question of the existence of such imminent danger shall be final.
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* Sections 41E ins. by Act 20 of 1987, sec. 20 (w.e.f. 1-12-1987).
Section 42. WASHING FACILITIES.
(1) In every factory -
(a) adequate and suitable facilities for washing shall be provided and maintained for the use of the workers therein;
(b) separate and adequately screened facilities shall be provided for the use of male and female workers;
(c) such facilities shall be conveniently accessible and shall be kept clean.
(2) The State Government may, in respect of any factory or class or description of factories or of any manufacturing process, prescribe standards of adequate and suitable facilities for washing.
Section 43. FACILITIES FOR STORING AND DRYING CLOTHING.
The State Government may, in respect of any factory or class or description of factories, make rules requiring the provision therein of suitable places for keeping clothing not worn during working hours and for the drying of wet clothing.
Section 44. FACILITIES FOR SITTING.
(1) In every factory suitable arrangements for sitting shall be provided and maintained for all workers obliged to work in a standing position, in order that they may take advantage of any opportunities for rest which may occur in the course of their work.
(2) If, in the opinion of the Chief Inspector, the workers in any factory engaged in a particular manufacturing process or working in a particular room are able to do their work efficiently in a sitting position, he may, by order in writing, require the occupier of the factory to provide before a specified date such seating arrangements as may be practicable for all workers so engaged or working.
(3) The State Government may, by notification in the Official Gazette, declare that the provisions of sub-section (1) shall not apply to any specified factory or class or description of factories or to any specified manufacturing process.
Section 45. FIRST AID APPLIANCES.
(1) There shall in every factory be provided and maintained so as to be readily accessible during all working hours first-aid boxes or cupboards equipped with the prescribed contents, and the number of such boxes or cupboards to be provided and maintained shall not be less than one for every one hundred and fifty workers ordinarily employed 1[at any one time] in the factory.
2[(2) Nothing except the prescribed contents shall be kept in a first-aid box or cupboard.
(3) Each first-aid box or cupboard shall be kept in the charge of a separate responsible person 3[who holds a certificate in first-aid treatment recognised by the State Government] and who shall always be readily available during the working hours of the factory.]
4[(4)] In every factory wherein more than five hundred workers are 5[ordinarily employed] there shall be provided and maintained an ambulance room of the prescribed size, containing the prescribed equipment and in the charge of such medical and nursing staff as may be prescribed 6[and those facilities shall always be made readily available during the working hours of the factory.
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1. Ins. by Act 25 of 1954, sec. 9 (w.e.f. 7-5-1954).
2. Subs. by Act 25 of 1954 sec. 9, for sub-section (2) (w.e.f. 7-5-1954).
3. Subs. by Act 94 of 1976, sec. 21, for “who is trained in first-aid treatment” (w.e.f. 26-10-1976).
4. Sub-section (3) re-numbered as sub-section (4) by Act 25 of 1954, sec. 9 (w.e.f. 7-5-1954).
5. Subs. by Act 94 of 1976, sec. 21, for “employed” (w.e.f. 26-10-1976).
6. Ins. by Act 94 of 1976, sec. 21 (w.e.f. 26-10-1976).
Section 46. CANTEENS.
(1) The State Government may make rules requiring that in any specified factory wherein more than two hundred and, fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for -
(a) the date by which such canteen shall be provided;
(b) the standards in respect of construction, accommodation, furniture and other equipment of the canteen;
(c) the foodstuffs to be served therein and the charges which may be made therefor;
(d) the constitution of a managing committee for the canteen and representation of the workers in the management of the canteen;
1(dd) the items of expenditure in the running of the canteen which are not to be taken into account in fixing the cost of foodstuffs and which shall be
borne by the employer;
(e) the delegation to the Chief Inspector, subject to such conditions as may be prescribed, of the power to make rules under clause (c).
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1. Ins. by Act 94 of 1976, sec. 22 (w.e.f. 26-10-1976).
Section 47. SHELTERS, REST ROOMS AND LUNCH ROOMS.
(1) In every factory wherein more than one hundred and fifty workers are ordinarily employed, adequate and suitable shelters or rest rooms and a suitable lunch room, with provision for drinking water, where workers can eat meals brought by them, shall be provided and maintained for the use of the workers : Provided that any canteen maintained in accordance with the provisions of section 46 shall be regarded as part of the requirements of this sub-section : Provided further that where a lunch room exists no workers shall eat any food in the work room.
(2) The shelters or rest rooms or lunch rooms to be provided under sub-section (1) shall be sufficiently lighted and ventilated and shall be maintained in a cool and clean condition.
(3) The State Government may – (a) prescribe the standards in respect of construction, accommodation, furniture and other equipment of shelters, rest rooms and lunch rooms to be provided under this section;
(b) by notification in the Official Gazette, exempt any factory or class or description of factories from the requirements of this section.
Section 48. CRECHES.
(1) In every factory wherein more than 1thirty women workers are ordinarily employed there shall be provided and maintained a suitable room or rooms for the use of children under the age of six years of such women.
(2) Such rooms shall provide adequate accommodation, shall be adequately lighted and ventilated, shall be maintained in a clean and sanitary condition and shall be under the charge of women trained in the care of children and infants.
(3) The State Government may make rules – (a) prescribing the location and the standards in respect of construction, accommodation, furniture and other equipment of rooms to be provided, under this section;
(b) requiring the provision in factories to which this section applies of additional facilities for the care of children belonging to women workers, including suitable provision of facilities for washing and changing their clothing;
(c) requiring the provision in any factory of free milk or refreshment or both for such children;
(d) requiring that facilities shall be given in any factory for the mothers of such children to feed them at the necessary intervals.
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1. Subs. by Act 94 of 1976, sec. 23, for “fifty women workers” (w.e.f. 26-10-1976).
Section 49. WELFARE OFFICERS.
(1) In every factory wherein five hundred or more workers are ordinarily employed the occupier shall employ in the factory such number of Welfare officers as may be prescribed.
(2) The State Government may prescribe the duties, qualifications and Conditions of service of officers employed under sub-section (1).
Section 50. POWER TO MAKE RULES TO SUPPLEMENT THIS CHAPTER.
The State Government may make rules -
(a) exempting, subject to compliance with such alternative arrangements for the welfare of workers as may be prescribed, any factory or class or description of factories from compliance with any of the provisions of this Chapter;
(b) requiring in any factory or class or description of factories that representatives of the workers employed in the factory shall be associated with the management of the welfare arrangements of the workers.
Section 51. WEEKLY HOURS.
No adult workers shall be required or allowed to work in a factory for more than forty-eight hours in any week.
Section 52. WEEKLY HOLIDAYS.
(1) No adult worker shall be required or allowed to work in a factory on the first day of the week (hereinafter referred to as the said day), unless -
(a) he has or will have a holiday for a whole day on one of the three days immediately before or after the said day, and
(b) the manager of the factory has, before the said day or the substituted day under clause (a), whichever is earlier, -
(i) delivered a notice at the office of the Inspector of his intention to require the worker to work on the said day and of the day which is to be substituted, and
(ii) displayed a notice to that effect in the factory : Provided that no substitution shall be made which will result in any worker working for more than ten days consecutively without a holiday for a whole day.
(2) Notices given under sub-section (1) may be cancelled by a notice delivered at the office of the Inspector and a notice displayed in the factory not later than the day before the said day or the holiday to be cancelled, whichever is earlier.
(3) Where, in accordance with the provisions of sub-section (1), any worker works on the said day and has had a holiday on one of the three days immediately before it, that said day shall, for the purpose of calculating his weekly hours of work, be included in the preceding week.
Section 53. COMPENSATORY HOLIDAYS.
(1) Where, as a result of the passing of an order or the making of a rule under the provisions of this Act exempting a factory or the workers therein from the provisions of section 52, a worker is deprived of any of the weekly holidays for which provision is made in sub-section (1) of that section, he shall be allowed, within the month in which the holidays were due to him or within the two months immediately following that month, compensatory holidays of equal number to the holidays so lost.
(2) The State Government may prescribe the manner in which the holidays for which provision is made in sub-section (1) shall be allowed.
Section 54. DAILY HOURS.
Subject to the provisions of section 51, not adult worker shall be required or allowed to work in a factory for more than nine hours in any day:
1[Provided that, subject to the previous approval of the Chief Inspector, the daily maximum specified in this section may be exceeded in order to facilitate the change of shifts.]
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1. Added by Act 25 of 1954, sec. 10 (w.e.f. 7-5-1954).
Section 55. INTERVALS FOR REST.
1 (1)2 The periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed five hours and that no worker shall work for more than five hours before he has had an interval for rest of at least half an hour.
3 (2) The State Government or, subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt any factory from the provisions of sub-section (1) so however that the total number of hours worked by a worker without an interval does not exceed six.
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1. Section 55 re-numbered as sub-section (1) of that section by Act 25 of 1954, sec. 11 (w.e.f. 7-5-1954).
2. Subs. by Act 40 of 1949, sec. 3 and Sch. II, for “The period” (w.e.f. 1-5-1949).
3. Added by Act 25 of 1954, sec. 11 (w.e.f. 7-5-1954).
Section 56. SPREADOVER.
The periods of work of an adult worker in a factory shall be so arranged that inclusive of his intervals for rest under section 55, they shall not spreadover more than ten and a half hours in any day : Provided that the Chief Inspector may, for reasons to be specified in in writing, increase the spreadover up to twelve hours.
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1. Subs. by Act 94 of 1976, sec. 24, for “spread over to twelve hours” (w.e.f. 26-10-1976).
Section 57. NIGHT SHIFTS.
Where a worker in a factory works on a shift which extends beyond midnight, -
(a) for the purposes of sections 52 and 53, a holiday for a whole day shall mean in his case a period of twenty-four consecutive hours beginning when his shift ends;
(b) the following day for him shall be deemed to be the period of twenty-four hours beginning when such shift ends, and the hours he has worked after midnight shall be counted in the previous day.
Section 58. PROHIBITION OF OVERLAPPING SHIFTS.
(1) Work shall not be carried on in any factory by means of a system of shifts so arranged that more than one relay of workers is engaged, in work of the same kind at the same time.
1(2) The State Government or subject to the control of the State Government, the Chief Inspector, may, by written order and for the reasons specified therein, exempt on such conditions as may be deemed expedient, any factory or class or description of factories or any department or section of a factory or any category or description of workers therein from the provisions of sub-section (1).
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1. Subs. by Act 25 of 1954, sec. 12, for sub-section (2) (w.e.f. 7-5-1954).
(1) Where a worker works in a factory for more than nine hours in any day or for more than forty-eight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.
1(2) For the purposes of sub-section (1), “ordinary rate of wages” means the basic wages plus such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, but does not include a bonus and wages for overtime work.
(3) Where any workers in a factory are paid on a piece-rate basis, the time rate shall be deemed to be equivalent to the daily average of their full-time earnings for the days on which they actually worked on the same or identical job during the month immediately preceding the calendar month during which the overtime work was done, and such time rates shall be deemed to be the ordinary rates of wages of those workers :
Provided that in the case of a worker who has not worked in the immediately preceding calendar month on the same or identical job, the time rate shall be deemed to be equivalent to the daily average of the earnings of the worker for the days on which he actually worked in the week in which the overtime work was done.
Explanation : For the purposes of this sub-section, in computing the earnings for the days on which the worker actually worked such allowances, including the cash equivalent of the advantage accruing through the concessional sale to workers of foodgrains and other articles, as the worker is for the time being entitled to, shall be included but any bonus or wages for overtime work payable in relation to the period with reference to which the earnings are being computed shall be excluded.
2(4) The cash equivalent of the advantage accruing through the concessional sale to a worker of foodgrains and other articles shall be computed as often as may be prescribed on the basis of the maximum quantity of foodgrains and other articles admissible to a standard family.
Explanation 1 : Standard family means a family consisting of the worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.
Explanation 2 : Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.
(5) The State Government may make rules prescribing -
(a) the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of foodgrains and other articles shall be computed; and
(b) the registers that shall be maintained in a factory for the purpose of securing compliance with the provisions of this section.
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1. Subs. by Act 94 of 1976, sec. 25, for sub-sections (2) and (3) (w.e.f. 26-10-1976).
2. Subs. by Act 25 of 1954, sec. 13, for sub-section (4) (w.e.f. 7-5-1954).
Section 60. RESTRICTION ON DOUBLE EMPLOYMENT.
No adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory, save in such circumstances as may be prescribed.
Section 61. NOTICE OF PERIODS OF WORK FOR ADULTS.
(1) There shall be displayed and correctly maintained in every factory in accordance with the provisions of sub-section (2) of section 108, a notice of periods of work for adults, showing clearly for every day the periods during which adult workers may be required to work.
(2) The periods shown in the notice required by sub-section (1) shall be fixed beforehand in accordance with the following provisions of this section, and shall be such that workers working for those periods would not be working in contravention of any of the provisions of sections 51, 52, 53, 54, 155, 56 and 58.
(3) Where all the adult workers in a factory are required to work during the same periods, the manager of the factory shall fix those periods for such workers generally.
(4) Where all the adult workers in a factory are not required to work during the same periods, the manager of the factory shall classify them into groups according to the nature of their work indicating the number of workers in each group.
(5) For each group which is not required to work on a system of shifts, the manager of the factory shall fix the periods during which the group may be required to work.
(6) Where any group is required to work on a system of shifts and the relays are not to be subject to predetermined periodical changes of shifts, the manager of the factory shall fix the periods during which each relay of the group may be required to work.
(7) Where any group is to work on a system of shifts and the relays are to be subject to predetermined periodical changes of shifts, the manager of the factory shall draw up a scheme of shifts whereunder the periods during which any relay of the group may be required to work and the relay which will be working at any time of the day shall be known for any day.
(8) The State Government may prescribe forms of the notice required by sub-section (1) and the manner in which it shall be maintained.
(9) In the case of a factory beginning work after the commencement of this Act, a copy of the notice referred to in sub-section (1) shall be sent in duplicate to the Inspector before the day on which work is begun in the factory.
(10) Any proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub-section (1) shall be notified to the Inspector in duplicate before the change is made, and except with the previous sanction of the Inspector, no such change shall be made until one week has elapsed since the last change.
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1. Subs. by Act 25 of 1954, sec. 14, for “55 and 56”.
Section 62. REGISTER OF ADULT WORKERS.
(1) The manager of every factory shall maintain a register of adult workers, to be available to the Inspector at all times during working hours, or when any work is being carried on in the factory, showing – (a) the name of each adult worker in the factory;
(b) the nature of his work;
(c) the group, if any, in which he is included;
(d) where his group works on shifts, the relay to which he is allotted; and
(e) such other particulars as may be prescribed :
Provided that if the Inspector is of opinion that any muster roll or register maintained as a part of the routine of a factory gives in respect of any or all the workers in the factory the particulars required under this section, he may, by order in writing, direct that such muster roll or register shall to the corresponding extent be maintained in place of, and be treated as, the register of adult workers in that factory.
1[(1A) No adult worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of adult workers.]
(2) The State Government may prescribe the form of the register of adult workers, the manner in which it shall be maintained and the period for which it shall be preserved.
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1. Ins. by Act 94 of 1976, sec. 26 (w.e.f. 26-10-1976).
Section 63. HOURS OF WORK TO CORRESPOND WITH NOTICE UNDER SECTION 61 AND REGISTER UNDERSECTION 62.
No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory.
Section 64. POWER TO MAKE EXEMPTING RULES.
(1) The State Government may make rules defining the persons who hold positions of supervisions or management or are employed in a confidential position in a factory 1or empowering the Chief inspector to declare any person, other than a person defined by such rules, as a person holding position of supervision or management or employed in a confidential position in a factory if, in the opinion of the Chief Inspector, such person holds such position or is so employed and the provisions of this chapter, other than the provisions of clause (b) of sub-section (1) of section 66 and of the proviso to that sub-section, shall not apply to any person so defined or declared :
1Provided that any person so defined or declared shall, where the ordinary rate of wages of such person 2does not exceed the wage limit specified in sub-section (6) of section 1 of the Payment of Wages Act, 1936 (4 of 1936), as amended from time to time, be entitled to extra wages in respect of over time work under section 59.
(2) The State Government may make rules in respect of adult workers in factories providing for the exemption, to such extent and subject to such conditions as may be prescribed. -
(a) of workers engaged on urgent repairs, from the provisions of sections 51, 52, 54, 55 and 56;
(b) of workers engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of the factory, from the provisions of sections 51, 54, 55 and 56;
(c) of workers engaged in work which is necessarily so intermittent that the intervals during which they do not work while on duty ordinarily amount to more than the intervals for rest required by or under section 55, from the provisions of sections 51, 54, 55 and 56;
(d) of workers engaged in any work which for technical reasons must be carried on continuously 3[***] from the provisions of sections 51, 52, 54, 55 and 56;
(e) of workers engaged in making or supplying articles of prime necessity which must be made or supplied every day, from the provisions of 4[section 51 and section 52];
(f) of workers engaged in a manufacturing process which cannot be carried on except during fixed seasons, from the provisions of 2[section 51, section 52 and section 54];
(g) of workers engaged in a manufacturing process which cannot be carried on except at times dependent on the irregular action of natural forces, from the provisions of sections 52 and 55;
(h) of workers engaged in engine-rooms or boiler-houses or in attending to power-plant or transmission machinery, from the provisions of 4[section 51 and section 52];
5[(i) of workers engaged in the printing of newspapers, who are held up on account of the breakdown of machinery, from the provisions of sections 51, 54 and 56.
Explanation.—In this clause the expression “newspapers” has the meaning assigned to it in the Press and Registration of Books Act, 1867 (25 of 1867);
(j) of workers engaged in the loading or unloading of railway wagons, 6[or lorries or trucks] from the provisions of sections 51, 52, 54, 55 and 56];
6[(k) of workers engaged in any work, which is notified by the State Government in the Official Gazette as a work of national importance, from the provisions of section 51, section 52, section 54, section 55 and section 56.]
(3) Rules made under sub-section (2) providing for any exemption may also provide for any consequential exemption from the provisions of section 61 which the State Government may deem to be expedient, subject to such conditions as it may prescribe.
7[(4) In making rules under this section, the State Government shall not exceed, except in respect of exemption under clause (a) of sub-section (2) the following limits of work inclusive of overtime:—
(i) the total number of hours of work in any day shall not exceed ten;
(ii) the spreadover, inclusive of intervals for rest, shall not exceed twelve hours in any one day :
Provided that the State Government may, in respect of any or all of the categories of workers referred to in clause (d) of sub-section (2), make rules prescribing the circumstances in which, and the conditions subject to which, the restrictions imposed by clause (i) and clause (ii) shall not apply in order to enable a shift worker to work the whole or part of a subsequent shift in the absence of a worker who has failed to report for duty;
8[(iii) the total number of hours of work in a week, including overtime, shall not exceed sixty;]
9[(iv)] the total number of hours of overtime shall not exceed fifty for any one quarter.
Explanation.—“Quarter” means a period of three consecutive months beginning on the 1st of January, the 1st of April, the 1st of July or the 1st of October.]
(5) Rules made under this section shall remain in force for not more than 10[five years].
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1. Ins. by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).
2. Subs. by Act 20 of 1987, 21, for “does not exceed rupees seven hundred and fifty per month” (w.e.f. 1-12-1987).
3. Omitted by Act 25 of 1954, sec. 15 for the words “throughout the day”.
4. Subs. by Act 94 of 1976, sec. 27 for “section 52” (w.e.f. 26-10-1976).
5. Added by Act 25 of 1954, sec. 15 (w.e.f. 7-5-1954).
6. Ins. by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).
7. Subs. by Act 25 of 1954, sec. 15, for sub-section (4) (w.e.f. 7-5-1954).
8. Ins. by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).
9. Clause (iii) re-numbered as clause (iv) by Act 94 of 1976, sec. 27 (w.e.f. 26-10-1976).
10. Subs. by Act 94 of 1976, sec. 27, for “three years” (w.e.f. 26-10-1976).
Section 65. POWER TO MAKE EXEMPTING ORDERS.
(1) Where the State Government is satisfied that, owing to the nature of the work carried on or to other circumstances, it is unreasonable to require that the periods of work of any adult workers in any factory or class or description of factories should be fixed beforehand, it may, by written order, relax or modify the provisions of section 61 in respect of such workers therein, to such extent and in such manner as it may think fit, and subject to such conditions as it may deem expedient to ensure control over periods of work.
(2) The State Government or, subject to the control of the State Government, the Chief Inspector, may by written order exempt, on such conditions as it or he may deem expedient, any or all of the adult workers in any factory or group or class or description of factories from any or all of the provisions of sections, 51, 52, 54 and 56 on the ground that the exemption is required to enable the factory or factories to deal with an exceptional press of work.
1(3) Any exemption granted under sub-section (2) shall be subject to the following conditions, namely :- (i) the total number of hours of work in any day shall not exceed twelve;
(ii) the spread over, inclusive of intervals for rest, shall not exceed thirteen hours in any one day;
(iii) the total number of hours of work in any week, including overtime, shall not exceed sixty;
(iv) no worker shall be allowed to work overtime, for more than seven days at a stretch and the total number of hours of overtime work in any quarter shall not exceed seventy-five. Explanation : In this sub-section “quarter” has the same meaning as in sub-section (4) of section 64.
2[***]
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1. Subs. by Act 94 of 1976, sec. 28, for sub-section (3) (w.e.f. 26-10-1976).
2. Sub-section (4) omitted by Act 94 of 1976, sec. 28 (w.e.f. 26-10-1976).
Section 66. FURTHER RESTRICTIONS ON EMPLOYMENT OF WOMEN.
(1) The provisions of this Chapter shall, in their application to women in factories, be supplemented by the following further restrictions, namely :-
(a) no exemption from the provisions of section 54 may be granted in respect of any women;
(b) no woman shall be 1[required or allowed to work in any factory] except between the hours of 6 A.M. and 7 P.M. :
Provided that the State Government may, by notification in the Official Gazette, in respect of 2[any factory or group or class or description of factories,] vary the limits laid down in clause (b), but so that no such variation shall authorize the employment of any woman between the hours of 10 P.M. and 5 A.M.;
3[(c) there shall be no change of shifts except after a weekly holiday or any other holiday.]
(2) The State Government may make rules providing for the exemption from the restrictions set out in sub-section (1), to such extent and subject to such conditions as it may prescribe, of women working in fish curing or fish-canning factories, where the employment of women beyond the hours specified in the said restrictions is necessary to prevent damage to or deterioration in, any raw material.
(3) The rules made under sub-section (2) shall remain in force for not more than three years at a time.
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1. Subs. by Act 94 of 1976, sec. 29, for “employed in any factory” (w.e.f. 26-10-1976).
2. Subs. by Act 94 of 1976, sec. 29, for “any class or deseription of factories”(w.e.f. 26-10-1976).
3. Ins. by Act 25 of 1954, sec. 17 (w.e.f. 7-5-1954).
Section 67. PROHIBITION OF EMPLOYMENT OF YOUNG CHILDREN.
No child who has not completed his fourteenth year shall be required or allowed to work in any factory.
Section 68. NON-ADULT WORKERS TO CARRY TOKENS.
A child who has completed his fourteenth year or an adolescent shall not be required or allowed to work in any factory unless -
(a) a certificate of fitness granted with reference to him under section 69 is in the custody of the manager of the factory; and
(b) such child or adolescent carries while he is at work a token giving a reference to such certificate.
Section 69. CERTIFICATES OF FITNESS.
(1) A certifying surgeon shall, on the application of any young person or his parent or guardian accompanied by a document signed by the manager of a factory that such person will be employed therein if certified to be fit for work in a factory, or on the application of the manager of the factory in which any young person wishes to work, examine such person and ascertain his fitness for work in a factory.
(2) The certifying surgeon, after examination, may grant to such young person, in the prescribed form, or may renew – (a) a certificate of fitness to work in a factory as a child, if he is satisfied that the young person has completed his fourteenth year, that he has attained the prescribed physical standards and that he is fit for such work;
(b) a certificate of fitness to work in a factory as an adult, if he is satisfied that the young person has completed his fifteenth year, and is fit for a full day’s work in a factory :
Provided that unless the certifying surgeon has personal knowledge of the place where the young person proposes to work and of the manufacturing process in which he will be employed, he shall not grant or renew a certificate under this sub-section until he has examined such place.
(3) A certificate of fitness granted or renewed under sub-section (2) – (a) shall be valid only for a period of twelve months from the date thereof;
(b) may be made subject to conditions in regard to the nature of the work in which the young person may be employed, or requiring re-examination of the young person before the expiry of the period of twelve months.
(4) A certifying surgeon shall revoke any certificate granted or renewed under sub-section (2) if in his opinion the holder of it is no longer fit to work in the capacity stated therein in a factory.
(5) Where a certifying surgeon refuses to grant or renew a certificate or a certificate of the kind requested or revokes a certificate, he shall, if so requested by any person who could have applied for the certificate or the renewal thereof, state his reasons in writing for so doing.
(6) Where a certificate under this section with reference to any young person is granted or renewed subject to such conditions as are referred to in clause (b) of sub-section (3), the young person shall not be required or allowed to work in any factory except in accordance with those conditions.
(7) Any fee payable for a certificate under this section shall be paid by the occupier and shall not be recoverable from the young person, his parents or guardian.
Section 70. EFFECT OF CERTIFICATE OF FITNESS GRANTED TO ADOLESCENT.
(1) An adolescent who has been granted a certificate of fitness to work in a factory as an adult under clause (b) of sub-section (2) of section 69, and who while at work in a factory carries a token giving reference to the certificate, shall be deemed to be an adult for all the purposes of Chapters VI and III.
1[***]
2[(1A)
No female adolescent or a male adolescent who has not attained the age of seventeen years but who has been granted a certificate of fitness to work in a factory as an adult, shall be required or allowed to work in any factory except between 6 A.M. and 7 P.M. :
Provided that the State Government may, by notification in the Official Gazette, in respect of any factory or group or class or description of factories -
(i) vary the limits laid down in this sub-section so, however, that no such section shall authorise the employment of any female adolescent between 10 P.M. and 5 A.M.;
(ii) grant exemption from the provisions of this sub-section in case of serious emergency where national interest is involved.
(2) An adolescent who has not been granted a certificate of fitness to work in a factory as an adult under the aforesaid clause (b) shall, notwithstanding his age, be deemed to be a child for all the purposes of
this Act.
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1. The proviso and the Explanation omitted by Act 20 of 1987, sec. 22 (w.e.f. 1-12-1987).
2. Ins. by Act 20 of 1987, sec. 22 (w.e.f. 1-12-1987).
Section 71. WORKING HOURS FOR CHILDREN.
(1) No child shall be employed or permitted to work, in any factory -
(a) for more than four and a half hours in any day;
1[(b) during the night.
Explanation.—For the purpose of this sub-section “night” shall mean a period of at least twelve consecutive hours which shall include the interval between 10 P.M. and 6 A.M.]
(2) The period of work of all children employed in a factory shall be limited to two shifts which shall not overlap or spread over more than five hours each; and each child shall be employed in only one of the relays which shall not, except with the previous permission in writing of the Chief Inspector, be changed more frequently than once in a period of thirty days.
(3) The provisions of section 52 shall apply also to child workers and no exemption from the provisions of that section may be granted in respect of any child.
(4) No child shall be required or allowed to work in any factory on any day on which he has already been working in another factory.
2[(5) No female child shall be required or allowed to work in any factory except between 8 A.M. and 7 P.M.]
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1. Subs. by Act 25 of 1954, sec 19, for clause (b) (w.e.f. 7-5-1954).
2. Ins. by Act 20 of 1987, sec. 23 (w.e.f. 1-12-1987).
Section 72. NOTICE OF PERIODS OF WORK FOR CHILDREN.
(1) There shall be displayed and correctly maintained in every factory in which children are employed, in accordance with the provisions of sub-section (2) of section 108 a notice of period of work for children, showing clearly for every day the periods during which children may be required or allowed to work.
(2) The periods shown in the notice required by sub-section (1) shall be fixed beforehand in accordance with the method laid down for adult workers in section 61, and shall be such that children working for those periods would not be working in contravention of any of the provisions of section 71.
(3) The provisions of sub-sections (8), (9) and (10) of section 61 shall apply also to the notice required by sub-section (1) of this section.
Section 73. REGISTER OF CHILD WORKERS.
(1) The manager of every factory in which children are employed shall maintain a register of child workers, to be available to the Inspector at all times during working hours or when any work is being carried on in a factory, showing -
(a) the name of each child worker in the factory,
(b) the nature of his work,
(c) the group, if any, in which he is included,
(d) where his group works in shifts, the relay to which he is allotted, and
(e) the number of his certificate of fitness granted under section 69.
1[(1A) No child worker shall be required or allowed to work in any factory unless his name and other particulars have been entered in the register of child workers.]
(2) The State Government may prescribe the form of the register of child workers, the manner in which it shall be maintained and the period for which it shall be preserved.
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1. Ins. by Act 94 of 1976, sec. 30 (w.e.f. 26-10-1976).
Section 74. HOURS OF WORK TO CORRESPOND WITH NOTICE UNDER SECTION 72 AND REGISTER UNDER SECTION 73.
No child shall be employed in any factory otherwise than in accordance with the notice of periods of work for children displayed in the factory and the entries made beforehand against his name in the register of child workers of the factory.
Section 75. POWER TO REQUIRE MEDICAL EXAMINATION.
Where an Inspector is of opinion -
(a) that any person working in a factory without a certificate of fitness is a young person, or
(b) that a young person working in a factory with a certificate of fitness is no longer fit to work in the capacity stated therein, – he may serve on the manager of the factory a notice requiring that such person or young person, as the case may be, shall be examined by a certifying surgeon, and such person or young person shall not, if the Inspector so directs, be employed, or permitted to work, in any factory until he has been so examined and has been granted a certificate of fitness or a fresh certificate of fitness, as the case may be, under section 69, or has been certified by the certifying surgeon examining him not to be a young person.
Section 76. POWER TO MAKE RULES.
The State Government may make rules -
(a) prescribing the forms of certificates of fitness to be granted under section 69, providing for the grant of duplicates in the event of loss of the original certificates, and fixing the fees which may be charged for such certificates and renewals thereof and such duplicates;
(b) prescribing the physical standards to be attained by children and adolescents working in factories;
(c) regulating the procedure of certifying surgeons under this Chapter;
(d) specifying other duties which certifying surgeons may be required to perform in connection with the employment of young persons in factories, and fixing the fees which may be charged for such duties and the persons by whom they shall be payable.
Section 77. CERTAIN OTHER PROVISIONS OF LAW NOT BARRED.
The provisions of this Chapter shall be in addition to, and not in derogation of, the provisions of the Employment of Children Act, 1938 (26 of 1938).
Section 78. APPLICATION OF CHAPTER.
(1) The provisions of this Chapter shall not operate to the prejudice of any right to which a worker may be entitled under any other law or under the terms of any award, 1[agreement (including settlement)] or contract of service:
2[Provided that if such award, agreement (including settlement) or contract of service provides for a longer annual leave with wages than provided in this Chapter, the quantum of leave, which the worker shall be entitled to, shall be in accordance with such award, agreement or contract of service, but in relation to matters not provided for in such award, agreement or contract of service or matters which are provided for less favourably therein, the provisions of sections 79 to 82, so far as may be, shall apply.]
(2) The provisions of this Chapter shall not apply to workers 3[in any factory] of any railway administered by the Government, who are governed by leave rules approved by the Central Government.
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1. Subs. by Act 94 of 1976, sec. 31, for “agreement” (w.e.f. 26-10-1976).
2. Subs. by Act 94 of 1976, sec. 31, for the proviso (w.e.f. 26-10-1976).
3. Subs. by Act 94 of 1976, sec. 31, for “in any workshop” (w.e.f. 26-10-1976).
Section 79. ANNUAL LEAVE WITH WAGES.
(1) Every worker who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at the rate of -
(i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;
(ii) if a child, one day for every fifteen days of work formed by him during the previous calendar year.
Explanation 1 : For the purpose of this sub-section – (a) any days of lay off, by agreement or contract or as permissible under the standing orders;
(b) in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and
(c) the leave earned in the year prior to that in which the leave is enjoyed; shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.
Explanation 2 : The leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave.
(2) A worker whose service commences otherwise than on the first day of January shall be entitled to leave with wages at the rate laid down in clause (i) or, as the case may be, clause (ii) of sub-section (1) if he has worked for two-thirds of the total number of days in the remainder of the calender year.
1(3) If a worker is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, during the course of the calendar year, he or his heir or nominee, as the case may be, shall be entitled to wages in lieu of the quantum of leave to which he was entitled immediately before his discharge, dismissal, quitting of employment, superannuation or death calculated at the rates specified in sub-section (1), even if he had not worked for the entire period specified in sub-section (1) or sub-section (2) making him eligible to avail of such leave, and such payment shall be made -
(i) where the worker is discharged or dismissed or quits employment, before the expiry of the second working day from the date of such discharge, dismissal or quitting, and
(ii) where the worker is superannuated or dies while in service, before the expiry of two months from the date of such superannuation or death.
(4) In calculating leave under this section, fraction of leave of half a day or more shall be treated as one full day’s leave, and fraction of less than half a day shall be omitted.
(5) If a worker does not in any one calendar year take the whole of the leave allowed to him under sub-section (1) or sub-section (2), as the case may be, any leave not taken by him shall be added to the leave to be allowed to him in the succeeding calendar year :
Provided that the total number of days of leave that may be carried forward to a succeeding year shall not exceed thirty in the case of an adult or forty in the case of a child :
Provided further that a worker, who has applied for leave with wages but has not been given such leave in accordance with any scheme laid down in sub-sections (8) and (9) 2[or in contravention of sub-section (10)] shall be entitled to carry forward the 3[leave refused] without any limit.
(6) A worker may at any time apply in writing to the manager of a factory not less than fifteen days before the date on which he wishes his leave to begin, to take all the leave or any portion thereof allowable to him during the calendar year :
Provided that the application shall be made not less than thirty days before the date on which the worker wishes his leave to begin, if he is employed in a public utility service as defined in clause (n) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947) :
Provided further that the number of times in which leave may be taken during any year shall not exceed three.
(7) If a worker wants to avail himself of the leave with wages due to him to cover a period of illness, he shall be granted such leave even if the application for leave is not made within the time specified in sub-section
(6); and in such a case wages as admissible under section 81 shall be paid not later than fifteen days, or in the case of a public utility service not later than thirty days from the date of the application for leave.
(8) For the purpose of ensuring the continuity of work, the occupier or manager of the factory, in agreement with the Works Committee of the factory constituted under section 3 of the Industrial Disputes Act, 1947 (14 of 1947), or a similar Committee constituted under any other Act or if there is no such Works Committee or a similar Committee in the factory, in agreement with the representatives of the workers therein chosen in the prescribed manner, may lodge with the Chief Inspector a scheme in writing whereby the grant of leave allowable under this section may be regulated.
(9) A scheme lodged under sub-section (8) shall be displayed at some conspicuous and convenient places in the factory and shall be in force for a period of twelve months from the date on which it comes into force, and may thereafter be renewed with or without modification for a further period of twelve months at a time, by the manager in agreement with the Works Committee or a similar Committee, or as the case may be, in agreement with the representatives of the workers as specified in sub-section (8), and a notice of renewal shall be sent to the Chief Inspector before it is renewed.
(10) An application for leave which does not contravene the provisions of sub-section (6) shall not be refused, unless refusal is in accordance with the scheme for the time being in operation under sub-sections (8) and (9).
(11) If the employment of a worker who is entitled to leave under sub-section (1) or sub-section (2), as the case may be, is terminated by the occupier before he has taken the entire leave to which he is entitled, or if having applied for and having not been granted such leave, the worker quits his employment before he has taken the leave, the occupier of the factory shall pay him the amount payable under section 80 in respect of the leave not taken, and such payment shall be made, where the employment of the worker is terminated by the occupier, before the expiry of the second working day after such termination, and where a worker who quits his employment, on or before the next pay day.
(12) The unavailed leave of a worker shall not be taken into consideration in computing the period of any notice required to be given before discharge or dismissal.
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1. Subs. by Act 94 of 1976, sec. 32, for sub-section (3) (w.e.f. 26-10-1976).
2. Ins. by Act 94 of 1976, sec. 32 (w.e.f. 26-10-1976).
3. Subs. by Act 94 of 1976, sec. 32, for “unavailed leave” (w.e.f. 26-10-1976).
Section 80. WAGES DURING LEAVE PERIOD.
(1) For the leave allowed to him under 1[section 78 or section 79, as the case may be,] a worker 2[shall be entitled to wages] at a rate equal to the daily average of his total full time earnings for the days on which 3[he actually worked] during the month immediately preceding his leave, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles:
4[Provided that in the case of a worker who has not worked on any day during the calendar month immediately preceding his leave, he shall be paid at a rate equal to the daily average of his total full time earnings for the days on which he actually worked during the last calendar month preceding his leave, in which he actually worked, exclusive of any overtime and bonus but inclusive of dearness allowance and the cash equivalent of the advantage accruing through the concessional sale to the workers of foodgrains and other articles.]
(2) The cash equivalent of the advantage accruing through the concessional sale to the worker of foodgrains and other articles shall be computed as often as may be prescribed, on the basis of the maximum quantity of foodgrains and other articles admissible to a standard family.
Explanation 1 : “Standard family” means a family consisting of a worker, his or her spouse and two children below the age of fourteen years requiring in all three adult consumption units.
Explanation 2 : Adult consumption unit means the consumption unit of a male above the age of fourteen years; and the consumption unit of a female above the age of fourteen years and that of a child below the age of fourteen years shall be calculated at the rates of 0.8 and 0.6 respectively of one adult consumption unit.
(3) The State Government may make rules prescribing -
(a) the manner in which the cash equivalent of the advantage accruing through the concessional sale to a worker of foodgrains and other articles shall be computed; and
(b) the registers that shall be maintained in a factory for the purpose of securing compliance with the provisions of this section.
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1.Subs. by Act 94 of 1976, sec. 33, for “section 79” (w.e.f. 26-10-1976).
2.Subs. by Act 20 of 1987, sec. 24, for “shall be paid” (w.e.f. 1-12-1987).
3.Subs. by Act 94 of 1976, sec. 33, for “he worked” (w.e.f. 26-10-1976).
4.Ins. by Act 20 of 1987, sec. 24 (w.e.f. 1-12-1987).
Section 81. PAYMENT IN ADVANCE IN CERTAIN CASES.
A worker who has been allowed leave for not less than four days, in the case of an adult, and five days, in the case of a child, shall, before his leave begins, be paid the wages due for the period of the leave allowed.
Section 82. MODE OF RECOVERY OF UNPAID WAGES.
Any sum required to be paid by an employer, under this chapter but not paid by him shall be recoverable as delayed wages under the provisions of the Payment of Wages Act, 1936 (4 of 1936).
Section 83. POWER TO MAKE RULES.
The State Government may make rules directing managers of factories to keep registers containing such particulars as may be prescribed and requiring the registers to be made available for examination by Inspectors..
Section 84. POWERS TO EXEMPT FACTORIES.
Where the State Government is satisfied that the leave rules applicable to workers in a factory provide benefits which in its opinion are not less favourable than those for which this Chapter makes provision it may, by written order, exempt the factory from all or any of the provisions of this Chapter subject to such conditions as may be specified in the order.
Explanation : For the purposes of this section, in deciding whether the benefits which are provided for by any leave rules are less favourable than those for which this Chapter makes provision, or not, the totality of the benefits shall be taken into account.
1[Explanation.—For the purposes of this section, in deciding whether the benefits which are provided for by any leave rules are less favourable than those for which this Chapter makes provision, or not, the totality of the benefits shall be taken into account.]
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1. Ins. by Act 94 of 1976, sec. 34 (w.e.f. 26-10-1976).
Section 85. POWER TO APPLY THE ACT TO CERTAIN PREMISES.
(1) The State Government may, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply to any place wherein a manufacturing process is carried on with or without the aid of power or is so ordinarily carried on, notwithstanding that -
(i) the number of persons employed therein is less than ten, if working with the aid of power and less than twenty if working without the aid of power, or
(ii) the persons working therein are not employed by the owner thereof but are working with the permission of, or under agreement with, such owner :
Provided that the manufacturing process is not being carried on by the owner only with the aid of his family.
(2) After a place is so declared, it shall be deemed to be a factory for the purposes of this Act, and the owner shall be deemed to be the occupier, and any person working therein, a worker.
Explanation : For the purposes of this section, owner shall include a lessee or mortgagee with possession of the premises.
Section 86. POWER TO EXEMPT PUBLIC INSTITUTIONS.
The State Government may exempt, subject to such conditions as it may consider necessary, any workshop or workplace where a manufacturing process is carried on and which is attached to a public institution, maintained for the purposes of education, 1training, research or reformation, from all or any of the provisions of this Act :
Provided that no exemption shall be granted from the provisions relating to hours of work and holidays, unless the persons having the control of the institution submit, for the approval of the State Government, a scheme for the regulation of the hours of employment, intervals for meals, and holidays of the persons employed in or attending the institution or who are inmates of the institution, and the State Government is satisfied that the provisions of the scheme are not less favourable than the corresponding provisions of this Act.
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1. Subs. by Act 94 of 1976, sec. 35, for “training” (w.e.f. 26-10-1976).
Section 87. DANGEROUS OPERATIONS.
Where the State Government is of opinion that any 1[manufacturing process or operation] carried on in a factory exposes any persons employed in it to a serious risk of bodily injury, poisoning or disease, it may make rules applicable to any factory or class or description of factories in which the 1[manufacturing process or operation] is carried on—
(a) specifying the 1[manufacturing process or operation] and declaring it to be dangerous;
(b) prohibiting or restricting the employment of women, adolescents or children in the 1[manufacturing process or operation];
(c) providing for the periodical medical examination of persons employed, or seeking to be employed, in the 1[manufacturing process or operation], and prohibiting the employment or persons not certified as fit for such employment 2[and requiring the payment by the occupier of the factory of fees for such medical examination];
(d) providing for the protection of all persons employed in the 1[manufacturing process or operation] or in the vicinity of the places where it is carried on;
(e) prohibiting, restricting or controlling the use of any specified materials or processes in connection with the 1[manufacturing process or operation];
2[(f) requiring the provision of additional welfare amenities and sanitary facilities and the supply of protective equipment and clothing, and laying down the standards thereof, having regard to the dangerous nature of the manufacturing process or operation.
3[***]
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1. Subs. by Act 94 of 1976, sec. 36, for “operation” (w.e.f. 26-10-1976).
2. Ins. by Act 94 of 1976, sec. 36 (w.e.f. 26-10-1976).
3. Clause (g) omitted by Act of 20 of 1987, sec. 25 (w.e.f. 1-12-1987).
Section 87 A. POWER TO PROHIBIT EMPLOYMENT ON ACCOUNT OF SERIOUS HAZARD.
1[87A. Power to prohibit employment on account of serious hazard.—(1) Where it appears to the Inspector that conditions in a factory or part thereof are such that they may cause serious hazard by way of injury or death to the persons employed therein or to the general public in the vicinity, he may, by order in writing to the occupier of the factory, state the particulars in respect of which he considers the factory or part thereof to be the cause of such serious hazard and prohibit such occupier from employing any person in the factory or any part thereof other than the minimum number of persons necessary to attend to the minimum tasks till the hazard is removed.
(2) Any order issued by the Inspector under sub-section (1) shall have effect for a period of three days until extended by the Chief Inspector by a subsequent order.
(3) Any person aggrieved by an order of the Inspector under sub-section (1), and the Chief Inspector under sub-section (2), shall have the right to appeal to the High Court.
(4) Any person whose employment has been affected by an order issued under sub-section (1), shall be entitled to wages and other benefits and it shall be the duty of the occupier to provide alternative employment to him wherever possible and in the manner prescribed.
(5) The provisions of sub-section (4) shall be without prejudice to the rights of the parties under the Industrial Disputes Act, 1947 (14 of 1947).
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1. Ins. by Act 20 of 1987, sec. 26 (w.e.f. 1-12-1987).
Section 88. NOTICE OF CERTAIN ACCIDENTS.
1(1) Where in any factory an accident occurs which causes death, or which causes any bodily injury by reason of which the person injured is prevented from working for a period of forty-eight hours or more immediately following the accident, or which is of such nature as may be prescribed in this behalf, the manager of the factory shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed.
2(2) Where a notice given under sub-section (1) relates to an accident causing death, the authority to whom the notice is sent shall make an inquiry into the occurrence within one month of the receipt of the notice or, if such authority is not the Inspector, cause the Inspector to make an inquiry within the said period.
(3) The State Government may make rules for regulating the procedure at inquiries under this section.
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1. Section 88 re-numbered as sub-section (1) thereof by Act 94 of 1976, sec. 37 (w.e.f. 26-10-1976).
2. Ins. by Act 94 of 1976, sec. 37 (w.e.f. 26-10-1976)
Section 88 A. NOTICE OF CERTAIN DANGEROUS OCCURRENCES.
1[88A. Notice of certain dangerous occurrences.—Where in a factory any dangerous occurrence of such nature as may be prescribed, occurs, whether causing any bodily injury or disability or not, the manager of the factosry shall send notice thereof to such authorities, and in such form and within such time, as may be prescribed.
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1. Ins. by Act 94 of 1976, sec. 38 (w.e.f. 26-10-1976).
Section 89. NOTICE OF CERTAIN DISEASES.
(1) Where any worker in a factory contracts any disease specified in1 the Third Schedule, the manager of the factory shall send notice thereof to such authorities, and in such form and within such time as may be prescribed.
(2) If any medical practitioner attends on a person who is or has been employed in a factory, and who is, or is believed by the medical practitioner to be, suffering from any disease, specified in the Third Schedule the medical practitioner shall without delay send a report in writing to the office of the Chief Inspector stating -
(a) the name and full postal address of the patient,
(b) the disease from which he believes the patient to be suffering, and
(c) the name and address of the factory in which the patient is, or was last, employed.
(3) Where the report under sub-section (2) is confirmed to the satisfaction
of the Chief Inspector, by the certificate of a certifying surgeon or otherwise, that the person is suffering from a disease specified in the Third Schedule, he shall pay to the medical practitioner such fee as may be prescribed, and the fee so paid shall be recoverable as an arrear of land revenue from the occupier of the factory in which the person contracted the disease.
(4) If any medical practitioner fails to comply with the provisions of sub-section (2), he shall be punishable with fine which may extend to 2one thousand rupees.
3(5) The Central Government may, by notification in the Official Gazette,
add to or alter the Third Schedule and any such addition or alteration shall have effect as if it had been made by this Act.
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1. Subs. by Act 20 of 1987, sec. 27, for “the Schedule” (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987, sec. 27, for “fifty rupees” (w.e.f. 1-12-1987).
3. Added by Act 20 of 1987, sec. 27 (w.e.f. 1-12-1987).
Section 90. POWER TO DIRECT ENQUIRY INTO CASES OF ACCIDENT OR DISEASE.
(1) The State Government may, if it considers it expedient so to do, appoint a competent person to inquire into the causes of any accident occurring in a factory or into any case where a disease specified in 1the Third Schedule has been, or is suspected to have been, contracted in a factory, and may also appoint one or more persons possessing legal or special knowledge to act as assessors in such inquiry.
(2) The person appointed to hold an inquiry under this section shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purposes of enforcing the attendance of witnesses and compelling the production of documents and material objects, and may also, so far as may be necessary for the purposes of the inquiry, exercise any of the powers of an Inspector under this Act; and every person required by the person making the inquiry to furnish any information shall be deemed to be legally bound so to do within the meaning of section 176 of the Indian Penal Code, 1860 (45 of 1860).
(3) The person holding an inquiry under this section shall make a report to the State Government stating the causes of the accident, or as the case may be, disease, and any attendant circumstances, and adding any observations which he or any of the assessors may think fit to make.
(4) The State Government may, if it thinks fit, cause to be published any report made under this section or any extracts therefrom.
(5) The State Government may make rules for regulating the procedure as Inquiries under this section.
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1. Subs. by Act 20 of 1987, sec. 28, for “the Schedule” (w.e.f. 1-12-1987).
Section 91. POWER TO TAKE SAMPLES.
(1) An Inspector may at any time during the normal working hours of a factory, after informing the occupier or manager of the factory or other person for the time being purporting to be in charge of the factory, take in the manner hereinafter provided a sufficient sample of any substance used or intended to be used in the factory, such use being -
(a) in the belief of the Inspector in contravention of any of the provisions of this Act or the rules made thereunder, or
(b) in the opinion of the Inspector likely to cause bodily injury to, or injury to the health of, workers in the factory.
(2) Where the Inspector takes a sample under sub-section (1), he shall, in the presence of the person informed under that sub-section unless such person wilfully absents himself, divide the sample into three portions and effectively seal and suitably mark them, and shall permit such person to add his own seal and mark thereto.
(3) The person informed as aforesaid shall, if the Inspector so requires, provide the appliances for dividing, sealing and marking the sample taken under this section.
(4) The Inspector shall -
(a) forthwith give one portion of the sample to the person informed under sub-section (1);
(b) forthwith send the second portion to a Government Analyst for analysis and report thereon;
(c) retain the third portion for production to the Court before which proceedings, if any, are instituted in respect of the substance.
(5) Any document purporting to be a report under the hand of any Government Analyst upon any substance submitted to him for analysis and report under this section, may be used as evidence in any proceedings instituted in respect of the substance.
Section 91 A. SAFETY AND OCCUPATIONAL HEALTH SURVEYS.
1[91A. Safety and occupational health surveys.—(1) The Chief Inspector, or the Director General of Factory Advice Service and Labour Institutes, or the Director General of Health Services, to the Government of India, or such other officer as may be authorised in this behalf by the State Government or the Chief Inspector or the Director General of Factory Advice Service and Labour Institutes or the Director General of Health Services may, at any time during the normal working hours of a factory, or at any other time as is found by him to be necessary, after giving notice in writing to the occupier or manager of the factory or any other person who for the time being purports to be in charge of the factory, undertake safety and occupational health surveys and such occupier or manager or other person shall afford all facilities for such survey, including facilities for the examination and testing of plant and machinery and collection of samples and other data relevant to the survey.
(2) For the purpose of facilitating surveys under sub-section (1) every worker shall, if so required by the person conducting the survey, present himself to undergo such medical examination as may be considered necessary by such person and furnish all information in his possession and relevant to the survey.
(3) Any time spent by a worker for undergoing medical examination or furnishing information under sub-section (2) shall, for the purpose of calculating wages and extra wages for overtime work, be deemed to be time during which such worker worked in the factory.
Explanation : For the purposes of this section, the report, if any, submitted to the State Government by the person conducting the survey under sub-section (1) shall be deemed to be a report submitted by an Inspector under this Act.
2[Explanation.—For the purposes of this section, the report, if any, submitted to the State Government by the person conducting the survey under sub-section (1) shall be deemed to be a report submitted by an Inspector under this Act.]
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1. Ins. by Act 94 of 1976, sec. 39 (w.e.f. 26-10-1976).
2. Ins. by Act 20 of 1987, sec. 29 (w.e.f. 1-12-1987).
Section 92. GENERAL PENALTY FOR OFFENCES.
Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to
1[two years] or with fine which may extend to 2[one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to 3[one thousand rupees] for each day on which the contravention is so continued:
4[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than 5[twenty-five thousand rupees] in the case of an accident causing death, and 6[five thousand rupees] in the case of an accident causing serious bodily injury.
Explanation : In this section and in section 94 “serious bodily injury” means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.
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1. Subs. by Act 20 of 1987, sec. 30, for “three months” (w.e.f. 1-12-1998).
2. Subs. by Act 20 of 1987, sec. 30, for “two thousand rupees” (w.e.f. 1-12-1987).
3. Subs. by Act 20 of 1987, sec. 30, for “seventy-five rupees” (w.e.f. 1-12-1987).
4. Ins. by Act 94 of 1976, sec. 40 (w.e.f. 26-10-1976).
5. Subs. by Act 20 of 1987, sec. 30, for “one thousand rupees” (w.e.f. 1-12-1987).
6. Subs. by Act 20 of 1987, sec. 30, for “five hundred rupees” (w.e.f. 1-12-1987).
Section 93. LIABILITY OF OWNER OF PREMISES IN CERTAIN CIRCUMSTANCES.
1[93. Liability of owner of premises in certain circumstances.—(1) Where in any premises separate buildings are leased to different occupiers for use as separate factories, the owner of the premises shall be responsible for the provision and maintenance of common facilities and services, such as approach roads, drainage, water supply, lighting and sanitation.
(2) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of sub-section (1).
(3) Where in any premises, independent or self-contained, floors or flats are leased to different occupiers for use as separate factories, the owner of the premises shall be liable as if he were the occupier or manager of a factory, for any contravention of the provisions of this Act in respect of -
(i) latrines, urinals and washing facilities in so far as the maintenance of the common supply of water for these purposes is concerned;
(ii) fencing of machinery and plant belonging to the owner and not specifically entrusted to the custody or use of an occupier;
(iii) safe means of access to the floors or flats and maintenance and cleanliness of staircases and common passages;
(iv) precautions in case of fire;
(v) maintenance of hoists and lifts; and
(vi) maintenance of any other common facilities provided in the premises.
(4) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out the provisions of sub-section (3).
(5) The provisions of sub-section (3) relating to the liability of the owner shall apply where in any premises independent rooms with common latrines, urinals and washing facilities are leased to different occupiers for use as separate factories :
Provided that the owner shall be responsible also for complying with the requirements relating to the provisions and maintenance of latrines, urinals and washing facilities.
(6) The Chief Inspector shall have, subject to the control of the State Government, the power to issue orders to the owner of the premises referred to in sub-section (5) in respect of the carrying out of the provisions of section 46 or section 48.
(7) Where in any premises portions of a room or a shed are leased to different occupiers for use as separate factories, the owner of the premises shall be liable for any contravention of the provisions of – (i) Chapter III, except sections 14 and 15;
(ii) Chapter IV, except sections 22, 23, 27, 34, 35 and 36 :
Provided that in respect of the provisions of sections 21, 24 and 32 the owners liability shall be only in so far as such provisions relate to things under his control : Provided further that the occupier shall be responsible for complying with the provisions of Chapter IV in respect of plant and machinery belonging to or supplied by him;
(iii) section 42.
(8) The Chief Inspector shall have, subject to the control of the State Government, power to issue orders to the owner of the premises in respect of the carrying out of the provisions of sub-section (7).
(9) In respect of sub-sections (5) and (7), while computing for the purposes of any of the provisions of this Act the total number of workers employed, the whole of the premises shall be deemed to be a single factory.
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1. Subs. by Act 25 of 1954, sec. 21, for section 93 (w.e.f. 7-5-1954).
Section 94. ENHANCED PENALTY AFTER PREVIOUS CONVICTION.
1[(1)] If any person who has been convicted of any offence punishable under section 92 is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to 2[three years] or with fine 3[which shall not be less than 4[ten thousand rupees] but which may extend to 5[two lakh rupees]] or with both:
6[Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a fine of less than 4[ten thousand rupees]:
Provided further that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily in jury, the fine shall not be less than 7[thirty-five thousand rupees] in the case of an accident causing death and 5[ten thousand rupees] in the case of an accident causing serious bodily injury.]
9[(2) For the purposes of sub-section (1) no cognizance shall be taken of any conviction made more than two years before the commission of the offence for which the person is subsequently being convicted.]
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1. Section 94 re-numbered as sub-section (1) thereof by Act 94 of 1976, sec. 41 (w.e.f.26-10-1976).
2. Subs. by Act 20 of 1987, sec. 31, for “six months” (w.e.f. 1-12-1987).
3. Subs. by Act 94 of 1976, sec. 41, for “which may extend to one thousand rupees”(w.e.f. 26-10-1976).
4. Subs. by Act 20 of 1987, sec. 31, for “ two hundred rupees” (w.e.f. 1-12-1987).
5. Subs. by Act 20 of 1987, sec. 31, for “five thousand rupees” (w.e.f. 1-12-1987).
6. Subs. by Act 94 of 1976, sec. 41, for the proviso (w.e.f. 26-10-1976).
7. Subs. by Act 20 of 1987 sec. 31, for “two thousand rupees” (w.e.f. 1-12-1987).
8. Subs. by Act 20 of 1987, sec. 31, for “one thousand rupees” (w.e.f. 1-12-1987).
9. Ins. by Act 94 of 1976, sec. 41 (w.e.f. 26-10-1976).
Section 95. PENALTY FOR OBSTRUCTING INSPECTOR.
Whoever wilfully obstructs an Inspector in the exercise of any power conferred on him by or under this Act, or fails to produce on demand by an Inspector any registers or other documents in his custody kept in pursuance of this Act or of any rules made thereunder, or conceals or prevents any worker in a factory from appearing before, or being examined by, an Inspector, shall be punishable with imprisonment for a term which may extend to 1[six months] or with fine which may extend to 2[ten thousand rupees] or with both.
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1. Subs. by Act 20 of 1987, sec. 32, for “three months” (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987, sec. 32, for “five hundred rupees” (w.e.f. 1-12-1987).
Section 96. PENALTY FOR WRONGFULLY DISCLOSING RESULTS OF ANALYSIS UNDER SECTION 91.
Whoever, except in so far as it may be necessary for the purposes of a prosecution for any offence punishable under this Act, publishes or discloses to any person the results of an analysis made under section 91, shall be punishable with imprisonment for a term which may extend to 1[six months] or with fine which may extend to 2[ten thousand rupees] or with both.
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1. Subs. by Act 20 of 1987, sec. 33, for “three months” (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987, sec. 33, for “five hundred rupees” (w.e.f. 1-12-1987).
Section 96 A. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF SECTIONS 41B, 41C AND 41H.
1(1) Whoever fails to comply with or contravenes any of the provisions of section 41B, 41C or 41H or the rules made thereunder, shall, in respect of such failure or contravention, be punishable with imprisonment for a term which may extend to seven years and with fine which may extend to two lakh rupees, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.
(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to ten years.
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1. Ins. by Act 20 of 1987, sec. 34 (w.e..f. 1-12-1987).
Section 97. OFFENCES BY WORKERS.
(1) Subject to the provisions of section 111, if any worker employed in a factory contravenes any provision of this Act or any rules or orders made thereunder, imposing any duty or liability on workers, he shall be punishable with fine which may extend to 1five hundred rupees.
(2) Where a worker is convicted of an offence punishable under sub-section (1), the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention, unless it is proved that he failed to take all reasonable measures for its prevention.
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1. Subs. by Act 20 of 1987, sec 35, for “twenty rupees” (w.e.f. 1-12-1987).
Section 98. PENALTY FOR USING FALSE CERTIFICATE OF FITNESS.
Whoever knowingly uses or attempts to use, as a certificate of fitness granted to himself under section 70, a certificate granted to another person under that section, or who, having procured such a certificate, knowingly allows it to be used, or an attempt to use to be made, by another person, shall be punishable with imprisonment for a term which may extend to 1[two months] or with fine which may extend to 2[one thousand rupees] or with both.
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1. Subs. by Act 20 of 1987, sec. 36, for “one month” (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987 sec. 36, for “fifty rupees” (w.e.f. 1-12-1987).
Section 99. PENALTY FOR PERMITTING DOUBLE EMPLOYMENT OF CHILD.
If a child works in a factory on any day on which he has already been working in another factory, the parent or guardian of the child or the person having custody of or control over him or obtaining any direct benefit from his wages, shall be punishable with fine which may extend to 1one thousand rupees unless it appears to the Court that the child so worked without the consent or connivance of such parent, guardian or person.
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1. Subs. by Act 20 of 1987 sec. 37, for “fifty rupees” (w.e.f. 1-12-1987).
Section 100. DETENTION OF OCCUPIER IN CERTAIN CASES.
[Rep. by the Factories (Amendment) Act, 1987 (20 of 1987). Sec. 38 (w.e.f. 1-12-1987)].
Section 101. EXEMPTION OF OCCUPIER OR MANAGER FROM LIABILITY IN CERTAIN CASES.
Where the occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled, upon complaint duly made by him and on giving to the prosecutor not less than three clear days notice in writing of his intention so to do, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier or manager of the factory, as the case may be, proves to the satisfaction of the court -
(a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance, – that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the occupier or manager of the factory, and the occupier or manager, as the case may be, shall be discharged from any liability under this Act in respect of such offence : Provided that in seeking to prove as aforesaid, the occupier or manager of the factory, as the case may be, may be examined on oath, and his evidence and that of any witness whom he calls in his support shall be subject to cross-examination on behalf of the person he charges as the actual offender and by the prosecutor : Provided further that, if the person charged as the actual offender by the occupier or manager cannot be brought before the Court at the time appointed for hearing the charge, the Court shall adjourn the hearing from time to time for a period not exceeding three months and if by the end of the said period the person charged as the actual offender cannot still be brought before the Court, the Court shall proceed to hear the charge against the occupier or manager and shall, if the offence be proved, convict the occupier or manager.
Section 102. POWER OF COURT TO MAKE ORDERS.
(1) Where the occupier or manager of a factory is convicted of an offence punishable under this Act the Court may, in addition to awarding any punishment, by order in writing require him, within a period specified in the order (which the Court may, if it thinks fit and on application in such behalf, from time to time extend) to take such measures as may be so specified for remedying the matters in respect of which the offence was committed.
(2) Where an order is made under sub-section (1), the occupier or manager of the factory, as the case may be, shall not be liable under this Act in respect of the continuation of the offence during the period or extended period, if any, allowed by the Court, but if, on the expiry of such period or extended period, as the case may be, the order of the Court has not been fully complied with, the occupier or manager, as the case may be, shall be deemed to have committed a further offence, and may be sentenced therefor by the Court to undergo imprisonment for a term which may extend to six months or to pay a fine which may extend to one hundred rupees for every day after such expiry on which the order has not been complied with, or both to undergo such imprisonment and to pay such fine, as aforesaid.
Section 103. PRESUMPTION AS TO EMPLOYMENT.
If a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved, be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory.
Section 104. ONUS AS TO AGE.
(1) When any act or omission would, if a person were under a certain age, be an offence punishable under this Act, and such person is in the opinion of the Court prima facie under such age, the burden shall be on the accused to prove that such person is not under such age.
(2) A declaration in writing by a certifying surgeon relating to a worker that he has personally examined him and believes him to be under the age stated in such declaration shall, for the purposes of this Act and the rules made thereunder, be admissible as evidence of the age of that worker.
Section 104 A. ONUS OF PROVING LIMITS OF WHAT IS PRACTICABLE, ETC.
1[104A. Onus of proving limits of what is practicable, etc.-In any proceeding for an offence for the contravention of any provision of this Act or rules made thereunder consisting of a failure to comply with a duty or requirement to do something, it shall be for the person who is alleged to have failed to comply with such duty or requirement, to prove that it was not reasonably practicable, or, as the case may be, all practicable measures were taken to satisfy the duty or requirement.
———————————
1. Ins. by Act 20 of 1987, sec. 39 (w.e.f. 1-12-1987).
Section 105. COGNIZANCE OF OFFENCES.
(1) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an Inspector.
(2) No Court below that of a Presidency Magistrate or of a Magistrate of the first class shall try any offence punishable under this Act.
comments
Since the written complaint was filed by an Inspector of the Factory himself, therefore no previous sanction at all was required to be taken; K.C. Majumdar v. State of Bihar, 2003 (98) FLR 116
state amendment
Himachal Pradesh.—In Section 105, in sub-section (2), omit the words “of a Presidency Magistrate or”.
[Vide Himachal Pradesh A.L.O. 1948 (w.e.f. 25-12-1948)].
Section 106. LIMITATION OF PROSECUTIONS.
No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector :
Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.
1Explanation : For the purposes of this section,
(a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues;
(b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.
STATE AMENDMENT
Uttar Pradesh.—After section 106, insert the following section.—
“106A. Compounding in offences.—The Inspector may, subject to any general or special order of the State Government in this behalf, compound any offences punishable under this Act with fine only, and committed for the first time, either before or after the institution of the prosecution, on realisation of such amount of composition fee as he thinks fit not exceeding the maximum amount of fine fixed for the offence; and where the offence is so compounded,—
(i) before the institution of the prosecution, the offender shall not be liable to prosecution, for such offence and shall, if in custody, be set at liberty;
(ii) after the institution of the prosecution the composition shall amount to acquittal of the offender.”
[Vide Uttar Pradesh Act, 35 of 1979, sec. 4 (w.e.f. 21-12-1979)].
————————————
1. Ins. by Act 94 of 1976, sec. 43 (w.e.f. 26-10-1976).
Section 106 A. JURISDICTION OF A COURT FOR ENTERTAINING PROCEEDINGS, ETC., FOR OFFENCE.
1[106A. Jurisdiction of a court for entertaining proceedings, etc., for offence.—For the purposes of conferring jurisdiction on any court in relation to an offence under this Act or the rules made thereunder in connection with the operation of any plant, the place where the plant is for the time being situate shall be deemed to be the place where such offence has been committed.]
————————————
1.Ins. by Act 20 of 1987, sec. 40 (w.e.f. 1-12-1987).
Section 107. APPEALS.
(1) The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act or the occupier of the factory may, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order.
(2) Subject to rules made in this behalf by the State Government (which may prescribe classes of appeals which shall not be heard with the aid of assessors), the appellate authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the appellate authority and the other by such body representing the industry concerned as may be prescribed :
Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the appellate authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit, without the aid of any assessor.
(3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the appellate authority may in any case think fit to impose, the appellate authority may, if it thinks fit, suspend the order appealed against pending the decision of the appeal.
Section 108. DISPLAY OF NOTICES.
(1) In addition to the notices required to be displayed in any factory by or under this Act, there shall be displayed in every factory a notice containing such abstracts of this Act and of the rules made thereunder as may be prescribed and also the name and address of the Inspector and the certifying surgeon.
(2) All notices required by or under this Act to be displayed in a factory shall be in English and in a language understood by the majority of the workers in the factory, and shall be displayed at some conspicuous and convenient place at or near the main entrance to the factory, and shall be maintained in a clean and legible condition.
(3) The Chief Inspector may, by order in writing served on the manager of any factory, require that there shall be displayed in the factory any other notice or poster relating to the health, safety or welfare of the workers in the factory.
Section 109. SERVICE OF NOTICE.
The State Government may make rules prescribing the manner of the service of orders under this Act on owners, occupiers or managers of factories.
Section 110. RETURNS.
The State Government may make rules requiring owners, occupiers or managers of factories to submit such returns, occasional or periodical, as may in its opinion be required for the purposes of this Act.
Section 111. OBLIGATIONS OF WORKERS.
(1) No worker in a factory -
(a) shall wilfully interfere with or misuse any appliance, convenience or other thing provided in a factory for the purposes of securing the health, safety or welfare of the workers therein;
(b) shall wilfully and without reasonable cause do anything likely to endanger himself or others; and
(c) shall wilfully neglect to make use of any appliance or other thing provided in the factory for the purposes of securing the health or safety of the workers therein.
(2) If any worker employed in a factory contravenes any of the provisions of this section or of any rule or order made thereunder, he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees, or with both.
Section 111 A. RIGHT OF WORKERS, ETC.
1[111A. Right of workers, etc.
Every worker shall have the right to -
(i) obtain from the occupier, information relating to workers’ health and safety at work;
(ii) get trained within the factory wherever possible, or, to get himself sponsored by the occupier for getting trained at a training centre or institute, duly approved by the Chief Inspector, where training is imparted for workers’ health and safety at work;
(iii) represent to the Inspector directly or through his representative in the matter of inadequate provision for protection of his health or safety in the factory.
————————–
1. Ins. by Act 20 of 1987, sec. 41 (w.e.f. 1-12-1987).
Section 112. GENERAL POWER TO MAKE RULES.
The State Government may make rules providing for any matter which, under any of the provisions of this Act, is to be or may be prescribed or which may be considered expedient in order to give effect to the purposes of this Act.
Section 113. POWERS OF CENTRE TO GIVE DIRECTIONS.
The Central Government may give directions to a State Government as to the carrying into execution of the provisions of this Act.
Section 114. NO CHARGE FOR FACILITIES AND CONVENIENCES.
Subject to the provisions of section 46 no fee or charge shall be realised from any worker in respect of any arrangements or facilities to be provided, or any equipments or appliances to be supplied by the occupier under the provisions of this Act.
Section 115. PUBLICATION OF RULES.
1[(1)] All rules made under this Act shall be published in the Official Gazette, and shall be subject to the condition of previous publication; and the date to be specified under clause (3) of section 23 of the General Clauses Act, 1897 (10 of 1897), shall be not less than 2[forty-five days] from the date on which the draft of the proposed rules was published.
3[(2) Every rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.]
———————
1. Section 115 re-numbered as sub-section (1) thereof by Act 20 of 1987 sec. 42 (w.e.f. 1-12-1987).
2. Subs. by Act 20 of 1987, sec. 42, for “three months” (w.e.f. 1-12-1987).
3. Ins. by Act 20 of 1987, sec. 42 (w.e.f. 1-12-1987).
Section 116. APPLICATION OF ACT TO GOVERNMENT FACTORIES.
Unless otherwise provided this Act shall apply to factories belonging to the Central or any State Government.
Section 117. PROTECTION TO PERSONS ACTING UNDER THIS ACT.
No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.
Section 118. RESTRICTION ON DISCLOSURE OF INFORMATION.
(1) No Inspector shall, while in service or after leaving the service, disclose otherwise than in connection with the execution, or for the purposes, of this Act any information relating to any manufacturing or commercial business or any working process which may come to his knowledge in the course of his official duties.
(2) Nothing in sub-section (1) shall apply to any disclosure of information made with the previous consent in writing of the owner of such business or process of for the purposes of any legal proceeding (including arbitration) pursuant to this Act or of any criminal proceeding which may be taken, whether pursuant to this Act or otherwise, or for the purpose of any report of such proceedings as aforesaid.
(3) If any Inspector contravenes the provisions of sub-section (1) he 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.
Section 118A. RESTRICTION ON DISCLOSURE OF INFORMATION.
1[118A. Restriction on disclosure of information.—(1) Every Inspector shall treat as confidential the source of any complaint brought to his notice on the breach of any provision of this Act.
(2) No inspector shall, while making an inspection under this Act, disclose to the occupier, manager or his representative that the inspection is made in pursuance of the receipt of a complaint : Provided that nothing in this sub-section shall apply to any case in which the person who has made the complaint has consented to disclose his name.
—————————-
1. Ins. by Act 20 of 1987, sec. 43 (w.e.f. 1-12-1987).
Section 119. ACT TO HAVE EFFECT NOTWITHSTANDING ANYTHING CONTAINED IN ACT 37 OF 1970.
1[119. Act to have effect notwithstanding anything contained in Act 37 of 1970. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Contract Labour (Regulation and Abolition) Act, 1970 2[or any other law for the time being in force].]
——————————-
1. Ins. by Act 94 of 1976, sec. 44 (w.e.f. 26-10-1976). Earlier section 119 was repealed by Act 35 of 1950, sec. 2 and Sch. 1.
2. Ins. by Act 20 of 1987, sec. 44 (w.e.f. 1-12-1987)
Section 120. REPEAL AND SAVINGS.
The enactments set out in the Table appended to this section are hereby repealed : Provided that anything done under the said enactments which could have been done under this Act if it had then been in force shall be deemed to have been done under this Act.
STATE AMENDMENT
Himachal Pradesh :
For section 120, substitute the following section, namely:—
“120. Any law in force in Himachal Pradesh relating to Factories other than this Act is hereby repealed:
Provided that anything done under any such law which could have been done under this Act if it had then been in force shall be deemed to have been done under this Act.”
[Vide Himachal Pradesh, A.L.O. 1948 (w.e.f. 25-12-1948)].
Table.—Enactments repealed.— [Rep. by the Repealing and Amending Act, 1950 (35 of 1950), Sec. 2 and Sch. I.]
Schedule I
LIST OF INDUSTRIES INVOLVING HAZARDOUS PROCESSES.
1THE FIRST SCHEDULE
[See section 2(cb)]
1. Ferrous metallurgical Industries
– Integrated Iron and Steel
– Ferro-alloys
–Special Steels
2. Non-ferrous metallurgical Industries
- Primary Metallurgical Industries, namely, zinc, lead, copper manganese and aluminium
3. Foundries (ferrous and non-ferrous)
- Castings and forgings including cleaning or smoothing/roughening by sand and shot blasting.
4. Coal (including coke) industries. – Coal, Lignite, Coke, etc.
- Fuel Gases (including Coal gas, Producer gas, Water gas)
5. Power Generating Industries
6. Pulp and paper (including paper products) industries
7. Fertiliser Industries
- Nitrogenous
- Phosphatic
- Mixed
8. Cement Industries
- Portland Cement (including slag cement, puzzolona cement and their products)
9. Petroleum Industries
- Oil Refining
- Lubricating Oils and Greases
10. Petro-chemical Industries
11. Drugs and Pharmaceutical Industries
- Narcotics, Drugs and Pharmaceuticals
12. Fermentation Industries (Distilleries and Breweries)
13. Rubber (Synthetic) Industries
14. Paints and Pigment Industries
15. Leather Tanning Industries
16. Electro-plating Industries
17. Chemical Industries
– Coke Oven by-products and Coaltar Distillation Products
– Industrial Gases (nitrogen, oxygen, acetylene, argon, carbon-dioxide, hydrogen, sulphur-dioxide, nitrous oxide, halogenated hydro-carbon, ozone etc.)
– Industrial Carbon
- Alkalies and Acids
- Chromates and dichromates
- Leads and its compounds
- Electrochemicals (metallic sodium, potassium and magnesium, chlorates, perchlorates and peroxides)
- Electrothermal produces (artificial abrasive, calcium carbide)
- Nitrogenous compounds (cyanides, cyanamides and other nitrogenous compounds)
– Phosphorous and its compounds
- Halogens and Halogenated compounds (Chlorine, Fluorine, Bromine and Iodine)
– Explosives (including industrial explosives and detonators and fuses)
18. Insecticides, Fungicides, herbicides and other Pesticides Industries
19. Synthetic Resin and Plastics
20. Man-made Fibre (Cellulosic and non-cellulosic) Industry
21. Manufacture and repair of electrical accumulators
22. Glass and Ceramics
23. Grinding or glazing of metals
24. Manufacture, handling and processing of asbestos and its products
25. Extraction of oils and fats from vegetable and animal sources
26. Manufacture, handling and use of benzene and substances containing benzene
27. Manufacturing processes and operations involving carbon disulphide
28. Dyes and Dyestuff including their intermediates
29. Highly flammable liquids and gases.
————————–
1. Ins. by Act 20 of 1987, sec. 45 (w.e.f. 1-12-1987).
Schedule. II
1Schedule. II
[See section 41F]
PERMISSIBLE LEVELS OF CERTAIN CHEMICAL SUBSTANCES IN WORK ENVIRONMENT
| Sl. No. |
Substance |
Permissible limits of exposure |
| r |
e |
Time-Weighted average concentration (TWA) |
(TWA) |
Short-term exposure limit (15 min.) |
(STEL) |
| a |
a |
PPm |
mg/m3 |
PPm |
mg/m3 |
| 1 |
2 |
3 |
4 |
5 |
6 |
| 1 |
Acetaldehyde |
100 |
180 |
150 |
270 |
| 2 |
Acetic Acid |
10 |
25 |
15 |
37 |
| 3 |
Acetone |
750 |
1780 |
1000 |
2375 |
| 4 |
Acrolein |
01 |
0.25 |
0.3 |
0.8 |
| 5 |
Acrylonitrile-skin (S.C) |
2 |
4.5 |
- |
- |
| 6 |
Aldrin-skin |
- |
0.25 |
- |
- |
| 7 |
Allyl Chloride |
1 |
3 |
2 |
6 |
| 8 |
Ammonia |
0.25 |
18 |
35 |
27 |
| 9 |
Aniline-skin |
2 |
10 |
- |
- |
| 10 |
Anisidine (O.P.isomers)-skin |
0.1 |
0.5 |
- |
- |
| 11 |
Arsenic & Soluble compounds (as As) |
- |
0.2 |
- |
- |
| 212 |
Benzene (H.C) |
05 |
1.5 |
25 |
7.5 |
| 13 |
Beryllium & Compounds (as Be) (S.C) |
- |
0.002 |
- |
- |
| 14 |
Boron trifluoride C |
1 |
3 |
- |
- |
| 15 |
Bromine |
0.1 |
0.7 |
0.3 |
2 |
| 16 |
Butane |
800 |
1900 |
- |
- |
| 17 |
2-Butanone (Methyle ethyle Ketone MEK) |
200 |
590 |
300 |
885 |
| 18 |
N-Butyl acetate |
150 |
710 |
200 |
950 |
| 19 |
N-Butyl alcohol-skin-C |
50 |
150 |
- |
- |
| 20 |
Sce/tert, Butyl acetate |
200 |
950 |
- |
- |
| 21 |
Butyl Mercaptan |
0.5 |
1.5 |
- |
- |
| 22 |
Cadmium-dust and salts (as Cd) |
- |
0.05 |
- |
0.21 |
| 23 |
Calcium oxide |
- |
2 |
- |
- |
| 24 |
Carbaryl (Sevin) |
- |
5 |
- |
0.10 |
| 25 |
Carbofuran (Furadan) |
- |
0.1 |
- |
- |
| 26 |
Carbon disulphide-skin |
10 |
30 |
- |
- |
| 27 |
Carbon monoxide |
50 |
55 |
400 |
440 |
| 28 |
Carbon tetrachloride-skin (S.C.) |
m5 |
30 |
- |
- |
| 29 |
Chlordane-skin |
- |
0.5 |
- |
2 |
| 30 |
Chlorine |
1 |
3 |
3 |
9 |
| 31 |
Chlorobenzene (monochlorobenzene) |
75 |
350 |
- |
- |
| 32 |
Chloroform (S.C.) |
10 |
50 |
- |
- |
| 33 |
bis-(Chloromethyl) ether (H.C.) |
0.001 |
0.005 |
- |
- |
| 34 |
Chromic acid and chromates (as Cr) (Water soluble) |
- |
0.05 |
- |
- |
| 35 |
Chromous Salts (as Cr) |
- |
0.5 |
- |
- |
| 36 |
Copper fume |
0.2 |
|
- |
- |
| 37 |
Cotton dust, raw |
- |
0.2 |
- |
0.06 |
| 38 |
Cresoal, all isomers-skin |
5 |
22 |
- |
- |
| 39 |
Cyanides (as Cn)-skin |
- |
5 |
- |
- |
| 40 |
Cyanogen |
10 |
20 |
- |
- |
| 41 |
DDT (Dichlorodiphenyl Trichloroethane) |
- |
1 |
- |
3 |
| 42 |
Demeton-skin |
0.01 |
0.1 |
- |
- |
| 43 |
Diazinon-skin |
- |
0.1 |
- |
0.3 |
| 44 |
Dibutyl Phythalate |
- |
5 |
- |
10 |
| 45 |
Dichlorous (DDVP)-skin |
.1 |
1 |
.3 |
3 |
| 46 |
Dieldrin-skin |
- |
0.25 |
- |
.75 |
| 47 |
Dinitrobenzene (all isomers)-skin |
0.15 |
1 |
.5 |
.3 |
| 48 |
Dinitrotoluene-skin |
- |
1.5 |
- |
.5 |
| 49 |
Diphenyl (Biphenyl) |
0.2 |
1.5 |
- |
- |
| 50 |
Endosulfan (Thiodan)- skin |
- |
0.1 |
- |
.4 |
| 51 |
Endrin-skin |
- |
0.1 |
- |
.3 |
| 52 |
Ethyl acetate |
400 |
1400 |
- |
- |
| 53 |
Ethyl alcohol |
1000 |
1900 |
- |
- |
| 54 |
Ethylamin |
10 |
18 |
- |
- |
| 55 |
Fluorides (as F) |
- |
2.5 |
- |
- |
| 56 |
Fluorine |
1 |
2 |
2 |
4 |
| 57 |
Formaldehyde (S.C.) |
1.0 |
1.5 |
2 |
3 |
| 58 |
Formic Acid |
5 |
9 |
- |
- |
| 59 |
Gasoline |
300 |
900 |
500 |
1500 |
| 60 |
Hydrazine-skin (S.C.) |
0.1 |
0.1 |
- |
- |
| 61 |
Hydrogen Chloride-C |
5 |
7 |
a |
a |
| 62 |
Hydrogen Cyanide skin-C |
10 |
10 |
- |
- |
| 63 |
Hydrogen Fluoride (as F)-C |
3 |
2.5 |
- |
- |
| 64 |
Hydrogen Peroxide |
1 |
1.5 |
- |
- |
| 65 |
Hydrogen Sulphide |
10 |
14 |
15 |
21 |
| 66 |
Iodine-C |
0.1 |
1 |
- |
- |
| 67 |
Iron Oxide Fume (F0203) (as Fe) |
- |
5 |
- |
- |
| 68 |
Isoamyl acetate |
100 |
525 |
- |
- |
| 69 |
Isoamyl alcohol |
100 |
360 |
125 |
450 |
| 70 |
Isobutyl alcohol |
50 |
150 |
- |
- |
| 71 |
Lead, inorg, dusts, dusts and fumes (as Pb) |
- |
0.15 |
- |
- |
| 72 |
Lindane-skin |
- |
0.5 |
- |
- |
| 73 |
Malathion-skin |
- |
10 |
- |
- |
| 74 |
Manganese dust and compounds (as (Mn)-C |
- |
5 |
- |
- |
| 75 |
Manganese Fume (as Mn) |
- |
1 |
- |
3 |
| 76 |
Mercury (as Hg)-skin |
a |
a |
a |
a |
| a |
(i) Alkyle compounds |
- |
0.01 |
- |
0.03 |
| a |
(ii) All forms except alkyle vapour |
- |
0.05 |
- |
- |
| a |
(iii) Aryle and inorganic compounds |
- |
0.1 |
- |
- |
| 77 |
Methyl alcohol (Methanol)-skin |
200 |
260 |
250 |
310 |
| 78 |
Methyl cellosolve (2-methoxyethanol)-skin |
5 |
16 |
- |
- |
| 79 |
Methyl isobutyl Ketone |
50 |
205 |
75 |
300 |
| 80 |
Methyl Isocyanate-skin |
0.02 |
0.05 |
- |
- |
| 81 |
Naphthalene |
10 |
50 |
15 |
75 |
| 82 |
Nickel carbonyl (as Ni) |
0.05 |
0.35 |
- |
- |
| 83 |
Nitric acid |
2 |
5 |
4 |
10 |
| 84 |
Nitric Oxide |
25 |
30 |
- |
- |
| 85 |
Nitrobenzene-skin |
1 |
5 |
- |
- |
| 86 |
Nitrogen dioxide |
3 |
6 |
5 |
10 |
| 87 |
Oil mist mineral |
- |
5 |
- |
10 |
| 88 |
Ozone |
0.1 |
0.2 |
0.3 |
0.6 |
| 89 |
Parathion-skin |
- |
0.1 |
- |
- |
| 90 |
Phenol-skin |
5 |
19 |
a |
a |
| 91 |
Phorate (Thimet)-skin |
- |
0.05 |
0.2 |
- |
| 92 |
Phosgene (Carbonyl Chloride) |
0.1 |
0.4 |
- |
- |
| 93 |
Phosphine |
0.3 |
0.4 |
1 |
1 |
| 94 |
Phosphoric acid |
- |
1 |
- |
3 |
| 95 |
Phosphorus (yellow) |
- |
0.1 |
- |
- |
| 96 |
Phosphorus penta- chloride |
0.1 |
1 |
- |
- |
| 97 |
Phosphorus trichloride |
0.2 |
1.5 |
0.5 |
3 |
| 98 |
Picric acid-skin |
- |
0.1 |
- |
0.3 |
| 99 |
Pyridine |
5 |
15 |
- |
- |
| 100 |
Silans (silicon tetrahydride) |
5 |
7 |
- |
- |
| 101 |
Sodium hydroxide-C |
- |
2 |
- |
- |
| 102 |
Styrene, monomer (phanylethlene) |
50 |
215 |
100 |
425 |
| 103 |
Sulphur dioxide |
2 |
5 |
5 |
10 |
| 104 |
Sulphur hexafluoride |
1000 |
6000 |
- |
- |
| 105 |
Sulphuric acid |
- |
1 |
- |
- |
| 106 |
Tetraethyl lead (as Pb) – Skin |
- |
0.1 |
- |
- |
| 107 |
Toluene (Toluol) |
100 |
375 |
150 |
560 |
| 108 |
O-Toluidine-skin (S.C.) |
2 |
9 |
- |
- |
| 109 |
Tributylphosohate |
0.2 |
2.5 |
- |
- |
| 110 |
Trichloroethylene |
50 |
270 |
200 |
1080 |
| 111 |
Uranium natural (as U) |
- |
0.2 |
- |
0.6 |
| 112 |
Vinyl Chloride (H.C.) |
5 |
10 |
- |
- |
| 113 |
Welding fumes |
- |
5 |
- |
- |
| 114 |
Xylene (O-m-P-isomers) |
100 |
435 |
150 |
655 |
| 115 |
Zinc oxide |
d |
a |
a |
a |
| f |
(i) Fume |
- |
5.0 |
- |
10 |
| d |
(ii) Dust (Total dust) |
- |
10.00 |
- |
- |
| 116 |
Zirconium compounds (as Zr) |
- |
5 |
- |
10 |
1. Subs. by S.O. 170 (E), dated 2nd March, 1989.
2. Subs. by S.O. 342 (E), dated 19th April, 2001 (w.e.f. 19-4-2001).
* Lint-free dust as measured by the vertical clutricator cotton-dust sampler.
Schedule III
LIST OF NOTIFIABLE DISEASES
3Schedule III
[See sections 89 and 90]
1. Lead poisoning, including poisoning by any preparation or compound of lead or their sequelae.
2. Lead tetra-ethyl poisoning
3. Phosphorus poisoning or its sequelae.
4. Mercury poisoning or its sequelae.
5. Manganese poisoning or its sequelae.
6. Arsenic poisoning or its sequelae.
7. Poisoning by nitrous fumes.
8. Carbon disulphide poisoning.
9. Benzene poisoning, including poisoning by any of its homologues, their nitro or amido derivatives or its sequelae.
10. Chrome ulceration or its sequelae.
11. Anthrax.
12. Silicosis.
13. Poisoning by halogens or halogen derivatives of the hydrocarbons of the aliphatic series.
14. Pathological manifestations due to
(a) radium or other radio-active substances.
(b) X-rays.
15. Primary epitheliomatous cancer of skin.
16. Toxic anaemia.
17. Toxic jaundice due to poisonous substances.
218. Oil acne or dermatitis due to mineral oils and compounds containing mineral oil base.
19. Byssionosis.
20. Asbestosis.
21. Occupational or contract dermatitis caused by direct contract with chemicals and paints. These are of two types, that is primary irritants and allergic sensitizers.
22. Noise induced hearing loss (exposure to high noise levels).
323. Beriyllium poisoning.
424. Carbon monoxide
25. Coal miners’ pnoumoconiosis.
26. Phosgene poisoning.
27. Occupational cancer.
28. Isocyanates poisoning.
29. Toxic nephirits.
—————
1. The existing Schedule re-numbered as the Third Schedule (w.e.f. 26-10-1976) by Act 20 of 1987, sec. 46 (w.e.f. 1-12-1987).
2. Ins. by Act 94 of 1976, sec. 45 (w.e.f. 26-10-76).
3. Ins. by Act 20 of 1987, sec. 46 (w.e.f. 1-12-1987).
4. Subs. by S.O. 343 (E), dated 19th April, 2001 (w.e.f. 19-4-2001).
November 30, 2014
Section 1. Short title.
(1) This Act may be called the General Clauses Act, 1897;
1[***]
2[***]
———-
1. The word “and” rep. by Act 10 of 1914, sec. 3 and Sch. II.
2. Sub-section (2) rep. by Act 1 of 1914, sec. 3 and Sch. II.
Section 2. Repeal.
(Repealed by the Repealing and Amending Act, 1903 (1 of 1903), Sec. 4 and Schedule III)
Section 3. Definitions.
1 Definitions.-
1. Subs. by the A.O. 1950, for section 3.
In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,-
1. “Abet”, with its grammatical variations and cognate expressions, shall have the same meaning as in the Indian Penal Code (45 of 1860).
2. “Act”, used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions,
3. “affidavit” shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing,
4. “barrister” shall mean a barrister of England or Ireland, or a member of the Faculty of Advocates in Scotland,
5. “British India” shall mean, as respects the period before the commencement of Part III of Government of India Act, 193, all territories and places within His Majesty’s dominions which were for the time being governed by His Majesty through the Governor General of India or through any Governor or Officer subordinate to the Governor General of India, and as respects any period after that date and before the date of establishment of the Dominion of India means all territories for the time being except that a reference to British India in an Indian law passed or made before the commencement of Part III of the Government of India Act, 1935, shall not include a reference to Bearer.
6. “British possession” shall mean any part of Her Majesty’s dominions exclusive of the United Kingdom , and where parts of those dominions are under both a Central and a Local Legislature, all parts under the Central Legislature shall, for the purposes of this definition, be deemed to be one British possession.
7. “Central Act” shall means an Act of Parliament, and shall include- An Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution,
and Act made before such commencement by the Governor General in Council or the Governor General, acting in a legislature capacity.
1[(8) “Central Government” shall,—
(a) in relation to anything done before the commencement of the Constitution, mean the Governor General or the Governor General in Council, as the case may be; and shall include,—
(i) in relation to functions entrusted under sub-section (1) of section 124 of the Government of India Act, 1935, to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and
(ii) in relation to the administration of a Chief Commissioner’s Province, the Chief Commissioner acting within the scope of the authority given to him under sub-section (3) of section 94 of the said Act; and
(b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include,—
(i) in relation to functions entrusted under clause (1) of article 258 of the Constitution, to the Government of a State, the State Government acting within the scope of the authority given to
________________
* 26th January, 1950.
1. Subs. by Adaptation of Laws (Amendent) Order, 1950
____________
it under that clause; 1[***]
(ii) in relation to the administration of a Part C State 2[before the commencement of the Constitution (Seventh Amendment) Act, 1956†], the Chief Commissioner or the Lieutenant- Governor or the Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the Constitution, as the case may be;] 2[and]
3[(iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him under article 239 of the Constitution;]
9. “Chapter” shall mean a chapter of the Act or Regulation in which the word occurs,
10. “Chief Controlling Revenue Authority” or “Chief Revenue Authority” shall mean—
(a) in a State where there is a Board of Revenue, that Board;
(b) in a State where there is a Revenue Commissioner, that Commissioner;
(c) in Punjab, the Financial Commissioner; and
(d) elsewhere, such authority as, in relation to matters enumerated in List I in the Seventh Schedule to the Constitution, the Central Government, and in relation to other matters, the State Government, may by notification in the Official Gazette, appoint;
11. “Collector” shall mean, in a Presidency-town, the Collector of Calcutta, Madras or Bombay, as the case may be, and elsewhere the chief officer-incharge of the revenue administration of a district.
12. “Colony”-
(a) in any Central Act passed after the commencement of Part III of the Government of India Act, 1935*, shall mean any part of His Majesty’s dominions exclusive of the British Islands, the Dominions of India and Pakistan (and before the establishment of those Dominions††, British India), any Dominions as defined in the Statute of Westminster, 1931, any Province or State forming part of any of the said Dominions, and British Burma; and
(b) in any Central Act passed before the commencement of Part III of the said Act, mean any part of His Majesty’s dominions exclusive of the British Islands and of British India, and in either case where parts of those dominions are under both a Central and
1. The word “and” omitted by the Adaptation of Laws (No. 1) Order, 1956.
2. Ins. by the Adaptation of Laws (No. 1) Order, 1956.
† 1st January, 1956
3. Ins. by the Adaptation of Laws (No. 1) Order, 1956.
* 1st April, 1937.
†† 15th August, 1947.
Local Legislature, all parts under the Central Legislature shall, for the purposes of this definition, be deemed to be one colony.
STATE AMENDMENT
Assam: In clause (14) after the words “a division”, insert the following words, namely:— “and shall include the Assam Revenue Tribunal while exercising jurisdiction heretofore exercised by a commissioner in appeals and revisions in Revenue cases.”
[Assam Act 1 of 1939, sec. 5 and Sch. B as amended by Assam Act 4 of 1940.]
15. “Constitution” shall mean the Constitution of India
16. “Consular Officer” shall include consul-general, consul, vice-consul, consular agent, pro- consul and any person for the time being authorised to perform the duties of consul-general, consul, vice-consul or consular agent.
17. “District Judge” shall mean the Judge of a principal Civil Court of original jurisdiction. But shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.
18. “Document” shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose or recording that matter.
19. “Enactment” shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid.
STATE AMENDMENTS
Andhra Pradesh: In clause (19), after the words “any Regulation of the Bengal, Madras or Bombay Code”, insert the words “and any Regulation of the Madras Code in force in the State of Andhra as it existed immediately before the 1st November, 1956”.
[Andhra Pradesh A.L.O., 1954 and Andhra Pradesh A.L.O., 1957.]
Tamil Nadu: In clause (19) as amended by Andhra Pradesh A.L.O. 1954 and Andhra Pradesh A.L.O. 1957, for the words “State of Andhra Pradesh as it existed immediately before the 1st November, 1956”, substitute the words “territories specified in the Second Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959 (Central Act 56 of 1959)”.
[Tamil Nadu (Added Territories) A.L.O., 1961.]
20. “Father” in the case of any one whose personal permits adoption, shall include an adoptive father.
21. “Financial year” shall mean the year commencing on the first day of April.
22. A thing shall be deemed to be done in “good faith” where it is in fact done honesty, whether it is done negligently or not.
23. “Government” or “the Government” shall include both the Central Government and any State Government.
24. “Government securities” shall mean securities of he Central Government or of any State Government, but in any Act or Regulation made before the commencement of the Constitution shall not include securities of the Government of any Part B State.
25. “High Court”, used with reference to civil proceedings, shall mean the highest Civil Court or appeal (not including the Supreme Court) in the part of India in which the Act or Regulation containing the expression operates.
26. “Immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
27. “Imprisonment” shall mean imprisonment of either description as defined in the Indian Penal Code,
28. “India” shall mean- As respects any period before the establishment of the Dominion of India, British India together with all territories of Indian Rulers then under the suzerainty of His Majesty, all territories under the suzerainty of such an Indian Ruler, and the tribal areas.
As respects any period after the establishment of the Dominion of India and before the commencement of the Constitution, all territories for the time being included in that Dominion, and
As respect any period after the commencement of the Constitution, all territories for the time being comprised in the territory of India.
29. “Indian law” shall mean any Act, Ordinance, Regulation, rule, (order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any Province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or Part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act.
____________
* 15th August, 1947.
† 26th January, 1950.
1. Subs. by the Adaptation of Laws (Amendment) Order, 1950, for “order or bye-law”.
30. “Indian State” shall mean any territory which the Central Government recognized as such a State before the commencement of the Constitution, whether described as a State, an Estate, a Jagir or otherwise.
31. “Local authority” shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to , or entrusted by the Government with, the control or management of a municipal or local fund.
32. “Magistrate” shall include every person exercising all or any of the powers of a Magistrate under the code of Criminal Procedure for the time being in force.
33. “Master’, used with reference to a ship, shall mean, any person (except a pilot or harbour-master) having for the time being control or charge of the ship.
34. “Merged territories” shall mean the territories which by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before the commencement of the Constitution being
administered as if they formed part of a Governor’s Province or as if they were a Chief Commissioner’s Province.
35. “Month” shall mean a month reckoned according to the British calendar.
36. “Movable property” shall mean property of every description, except immovable property.
37. “Oath” shall mean property of every description, except immovable property.
38. “Offence” shall mean any act or omission made punishable by any law for the time being in force,
39. “official Gazette” or “Gazette” shall mean the Gazette of India or the official Gazette of a State.
40 “Part” shall mean a part of the Act or Regulation in which the word occurs,
41. “Part A State” shall mean a State for the time being specified in Part A of the First Schedule to the Constitution, (as in force before the Constitution (Seventh Amendment ) Act, 1956, ( Part B State” shall mean a State for the time being specified in Part B of that Schedule and “Part C State” shall mean a State for the time being specified in Part C that Schedule or a territory for the time being administered by the President under the provision s of article 243 of the Constitution.
_____________
† 26th January, 1950.
1. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for “a Part A State or a Part C State”.
2. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for “under article 243 of the Constitution, and shall include”.
_________________
52. “Schedule” shall mean a schedule to the Act or Regulation in which the word occurs.
53. “Scheduled District” shall mean a “Scheduled District” as defined in the Schedule District Act, 1874.
54. “Section” shall mean a section of the Act or Regulation in which the word occurs.
55. “Ship” shall include every description of vessel used in navigation not exclusively propelled by oars.
56. “Sign” with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include, “mark”, with its grammatical variation and cognate expressions,
57. “son”, in the case of any one whose personal law permits adoption, shall include an adopted son.
58. “State”- As respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State, and as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory.
59. “State Act” shall mean an Act passed by the Legislature of a State established or continued by the Constitution,
60. “State Government”,- As respects anything done before the commencement of the Constitution, shall mean, in Part A State, the Provincial Government of the corresponding Province, in Part B State, the authority or person authorised at the relevant date to exercise executive government in the corresponding Acceding State, and in a Part C State, the Central Government.
As respects anything done (after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a Part A state, the Governor, in a Part B State, the Rajpramukh, and in a Part C State, the Central Government.
As respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 195, shall mean, in a State, the Governor, and in a Union territory, the Central Government.
And shall, in relation to functions entrusted under article 258A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under that article.
_________________
1. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for clause (58).
* 1st January, 1956.
† 26th January, 1950.
2. The word “and” omitted by the Adaptation of Laws (No. 1) Order, 1956.
3. Subs. by the Adaptation of Laws (No. 1) Order, 1956, for “or to be done after the commencement of the Constitution”.
____________
61. “Sub-section” shall mean a sub-section of the section in which the word occurs
62. “swear” with its grammatical variations and cognate expressions, shall include affirming and declaring in the case of persons by law allowed to affirm or declare instead of swearing.
62A “Union territory” shall mean any Union territory specified in the First Schedule to the Constitution and shall include any other territory comprised within the territory of Indian but not specified in that Schedule.
63. “Vessel” shall include any ship or boat or any other description of vessel used in navigation.
64. “Will” shall include a codicil and every writing making a voluntary posthumous disposition of property.
65. Expressions referring to “writing” shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form, and
66. “year” shall mean a year reckoned according to the British calendar.
1. Ins. by the Adaptation of Laws (No. 1) Order, 1956.
* 1st November, 1956.
Section 4. Application of foregoing definition to previous enactments.
(1) The definitions in section 3 of the following words and expressions, that is to say, “affidavit”, “barrister”, 1[***] “District Judge”, “father”, 1[***], 2[***], 1[***] “immovable property”, “imprisonment”, 1[***] “Magistrate”, “month”, “movable property”, “oath”, “person”, “section”, “son”, “swear”, “will”, and “year” apply also, unless there is anything repugnant in the subject or context, to all 3[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
(2) The definitions in the said section of the following words and expressions, that is to say, “abet”, “Chapter”, “commencement”, “financial year”, “local authority”, ‘‘master”, “offence”, “part”, “public nuisance”, “registered”, “schedule”, “ship”, “sign”, “sub-section” and “writing” apply also, unless there is anything repugnant in the subject or context, to all 3[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
————
1. The words “ British India ”, “Government of India”, “High Court”, and “Local Government” rep. by the A.O. 1937.
2.The words “Her Majesty” or “the Queen” rep. by Act 18 of 1919, sec. 3 and Sch.II.
3.Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 4 A. Application of certain definitions to Indian Laws.-
1[4A. Application of certain definitions to Indian Laws. —(1) The definitions in section 3 of the expressions ‘British India”, “Central Act”, “Central Government”, “Chief Controlling Revenue Authority”, “Chief Revenue Authority”, “Constitution”, “Gazette”, “Government”, “Government securities”, High Court”, “India”, “Indian law”, “Indian law” “Indian State”, “merged territories”, “Official Gazette”, “Part A State”, ‘Part B State”, “Provincial Government”, “State” and “State Government” shall apply, unless there is anything repugnant in the subject or context, to all Indian laws.
In any Indian law, references, by whatever form of words, to revenues of the Central Government or to any State Government shall, on and from the first day of April, 1950, be construed as references to the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be.
————
1. Subs. by the A.O. 1950, for section 4A. Earlier section 4A was inserted by the A.O. 1937.
Section 5. Coming into operation of enactments.
1[(1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,—
(a) in the case of a Central Act made before the commencement of the Constitution † , of the Governor-General, and
(b) in the case of an Act of Parliament, of the President.]
2[***]
(3) Unless the contrary is expressed, a 3[Central Act] or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.
————
1. Subs. by the A.O. 1950, for sub-section (1).
† 26th January, 1950.
2. Sub-section (2) omitted by the A.O. 1950.
3. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 5 A. Coming into operation of Governor-General’ Act.-
1[5A. Coming into operation of Governor-General’s Act.—[Rep. by the A.O. 1947.]]
————-
1. Section 5A was earlier inserted by the A.O. 1937.
Section 6. Effect of repeal.
Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- Revive anything not in force or existing at the time at which the repeal takes effect, or Affect the previous operation of any enactment so repealed or anything duly done or suffered there under, or Affect any right, privilege, obligation or liability acquired, accrued or incurrent under any enactment so repealed, or Affect any penalty, forfeiture or unishment incurred in respect of any offence committed against any enactment so repealed, or
Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
Section 6 A. Repeal of Act making textual amendment in Act or Regulation.
1[6A. Repeal of Act making textual amendment in Act or Regulation. —Where any 2[Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any 2[Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.]
——–
1. Ins. by Act 19 of 1936, sec. 2.
2. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 7. Revival of repealed enactments.
(1) In any 1[Central Act] or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose.
(2) This section applies also to all 1[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
——–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 8. Construction of references to repealed enactments.
1[(1)] Where this Act, or any 2[Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
3[(2) 4[Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted], with or without modification, any provision of a former enactment, then reference in any 2[Central Act] or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.]
———
1. Section 8 renumbered as sub-section (1) of that section by Act 18 of 1919, sec. 2 and Sch. I.
2. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
3. Ins. by Act 18 of 1919, sec. 2 and Sch. I.
4. Subs. by the A.O. 1950, for “Where any Act of Parliament repeals and re-enacts”.
Section 9. Commencement and termination of time.
(1) In any 1[Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”.
(2) This section applies also to all 2[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
———
1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 10. Computation of time.
(1) Where, by any 1(Central Act) or regulation made after the commencement of this Act, any act or proceeding is directed to allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.
Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877)2 , applies.
(2) This section applies also to all 1[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
———
1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
2. See now the Limitation Act, 1963 (36 of 1963).
Section 11. Measurement of distance.
In the measurement of any distance, for the purpose of any 1 (Central Act) or Regulation made after the commencement of this Act, that distance shall, unless a different intention appears, be measured in a straight line on a horizontal plane.
———
1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section 12. Duty to be taken prorate in enactment.
Where, be any enactment now in force or hereafter to be in force, any duty of customs or exercise, or in the nature thereof, is leviable on any given quantity, by weight, measure or value of any goods or merchandise, then a like duty is leviable according to the same rate on any greater or less quantity.
Section 13. Gender and number.
In all 1(Central Acts) and Regulations, unless there is anything repugnant in the subject or context.- Words importing the masculine gender shall be taken to include females, and words in the singular shall include the plural, and vice versa.
———–
1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
Section13 A.
1[13A. References to the Sovereign. —[ Rep. by the A.O. 1950. ]]
———–
1. Section 13A was earlier inserted by Act 18 of 1928, sec. 2 and Sch. I.
Section 14. Powers conferred to be exercisable from time to time.
(1) Where, by any 1[Central Act] or Regulation made after the commencement of this Act, any power is conferred 2[***], then 3[unless a different intention appears] that power may be exercised from time to time as occasion requires.
(2) This section applies also to all 1[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
2. The words “on the Government” omitted by Act 18 of 1919, sec. 2 and Sch. I.
3. Ins. by Act 18 of 1919, sec. 2 and Sch. I.
Section 15. Power to appoint to include power to appoint ex officio.
Where, by any 1(Central Act) or Regulation, a power to appoint any person to fill any office or execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be made either by name or by virtue of office.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 16. Power to appoint to include power to suspend or dismiss.
Where, by any 1[Central Act] or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having 2[for the time being] power to make the appointment shall also have power to suspend or dismiss any person appointed 3[whether by itself or any other authority] in exercise of that power.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
2. Ins. by Act 18 of 1928, sec. 2 and Sch. I.
3. Subs. by Act 18 of 1928, sec. 2 and Sch. I, for “by it”.
Section 17. Substitution of functionaries.
(1) In any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for the time being executing the function of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.
(2) This section applies also to all 1[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.
———–
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 18. Successors.
(1) In any 1(Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations.
This section applies also to all 1(Central Acts) made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887
—-
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 19. Official chiefs and subordinates.
(1) In any 1(Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of expressing that a law relative to the chief or superior of an officer shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior, to prescribe the duty of the superior.
This section applies also to all (Central Act) made after the third day of January, 186, and to all Regulations made on or after the fourteenth day of January, 1887
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 20. Construction of Notifications, etc., issued under enactments.
Where, by any (Central Act) or Regulation, a power to issue any (notification), order, scheme, rule, form, or bye-law is conferred, then expressions used in the (notification), order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meaning as in the Act or Regulation conferring the power.
Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877)2 , applies.
(2) This section applies also to all 1[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
———
1. Subs. by the A.O. 1937, for “Acts of the Governor General in Council”.
2. See now the Limitation Act, 1963 (36 of 1963).
Section 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules, or bye-laws.-
Where, by any 1[Central Act] or Regulations a power to 2[issue notifications,] orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any 3[notifications,] orders, rules or bye-laws so 4[issued].
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1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
2. Subs. by Act 1 of 1903, sec. 3 and Sch. II, for “make”.
3. Ins.by Act 1 of 1903, sec. 3 and Sch. II.
4. Subs. by Act 1 of 1903, sec. 3 and Sch. II, for “made”.
Section 22. Making of rules or bye-laws and issuing of orders between passing and commencement of enactment.
Where, by any 1(Central Act) or Regulation which is not to come into force immediately, on the passing thereof, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act or Regulation, or with respect to the establishment of any Court or office or the appointment of any Judge or officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act or Regulation, then that power may be exercised at any time after the passing of the Act or Regulation, but rules, bye-laws or orders so make or issued shall not take effect till the commencement of the Act or Regulation.
———–
1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
Section 23. Provisions applicable to making of rules or bye-laws after previous publication.
Where, by any 1(Central Act) or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:-
The authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby.
The publication shall be made in such manner as that authority deems to be sufficient, or , if the condition with respect to previous publication so requires, in such manner as the 2(Government concerned) prescribed.
There shall be published with the draft a notice specifying a date on after which the draft will be taken into consideration.
The authority having power to make the rules or bye-laws , and where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may me received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified.
The publication in the 3(Official Gazette) of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.
___________
1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
2. Subs. by the A.O. 1950, for “Central Government or the Provincial Government”.
3. Subs. by the A.O. 1937, for “Gazette”.
Section 24. Continuation of orders, etc, issued under enactments repealed and re-enacted.
Where any 1[Central Act] or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided any 2[appointment notification,] order, scheme, rule, form or bye-law, 2[made or] issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been 2[made or] issued under the provisions so re-enacted, unless and until it is superseded by any 2[appointment notification,] order, scheme, rule, form or bye-law, 2[made or] issued under the provisions so re-enacted 3[and when any 1[Central Act] or Regulation, which, by a notification under section 5 or 5A of the 6 Scheduled Districts Act, 1874, (14 of 1874) or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from the re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section].
———–
1. Subs. by A.O. 1937, for “Act of the Governor General in Council”.
2. Ins. by Act 1 of 1903, sec. 3 and Sch. II.
3. Ins. by Act 17 of 1914, sec. 2 and Sch. I
4. Rep. by the A.O. 1937.
Section 25. Recovery of fines.
Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provision s of the 1Code of Criminal Procedure (5 of 1898) for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to al fines imposed under any Act, Regulation, rule or bye-law, unless the Act, Regulation, rule or bye-law contains and express provision to the contrary.
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1. See now the Code of Criminal Procedure, 1973 (2 of 1974).
Section 26. Provisions as to offences punishable under two or more enactments.
Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
Section 27. Meaning of service by post.
Where any 1(Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression “serve” or either of the expressions “give” or “send” or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
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1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 28. Citation of enactments.
(1) any 1(Central Act) or Regulation, and in any rule, bye-law, instrument or document, made under, or with reference to any such Act or Regulation, any enactment may be cited by reference to the title or short title (if any) conferred thereon or by reference to the number and year thereof, and any provision in an enactment may be cited by reference to the section or sub-section of the enactment in which the provision is contained.
———
1. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
Section 29. Saving for previous enactment, rules any bye-laws.
The provisions of this Act respecting the construction of Acts, Regulations, rules or bye-laws made after the commencement of this Act shall not affect the construction of any Act, Regulation, rule or bye-law made before the commencement of this Act, although the Act, Regulation, rule or bye-law is continued or amended by an Act, Regulation, rule or bye-law made after the commencement of this Act.
Section 30. Application of Act to Ordinances.
1[30. Application of Act to Ordinances. —In this Act the expression 2[Central Act], wherever it occurs, except in section 5 and the word “Act” in 3[clauses (9), (13), (25), (40), (43), (52) and (54)] of section 3 and in section 25 shall be deemed to include an Ordinance made and promulgated by the Governor General under section 23 of the Indian Councils Act, 1861 (24 and 25 Vict., c.67) 4[or section 72 of the Government of India Act, 1915,] (5 and 6 Geo. V. c, 61) 5[or section 42 6[***] of the Government of India Act, 1935] (26 Geo. V. c. 2) 7[and an Ordinance promulgated by the President under article 123 of the Constitution].
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1. Ins. by Act 17 of 1914, sec. 2 and Sch. I.
2. Subs. by the A.O. 1937, for “Act of the Governor General in Council”.
3. Subs. by the A.O. 1950, for “clauses (9), (12), (38), (48) and (50)”.
4. Ins. by Act 24 of 1917, sec. 2 and Sch. I.
5. Ins. by the A.O. 1937.
6. The words and figures “or section 43” omitted by the A.O. 1947.
7. Added by the A.O. 1950.
Section 30 A. Application of Act to Acts made by the governor-general -
1[30A. Application of Act to Acts made by the Governor-General.— [Rep. by the A.O. 1937.]]
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1. Section 30A was earlier inserted by Act 11 of 1923, sec. 2 and Sch. I.
Section 31. Construction of references to Local Government of a Province.
1[31. Construction of references to Local Government of a Province. —
[ Rep. by the A.O. 1937 .]]
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1. Section 31 was earlier inserted by Act 31 of 1920, sec. 2 and Sch. I.
THE SCHEDULE .
Enactments repealed.- (Rep. By the Repealing and Amending Act, 1903 (1of 1903), sec. 4 and Sch. III).
November 30, 2014
Preamble
[ACT NO. 52 OF 1962]
An Act to consolidate and amend the law relating to customs.
Be it enacted by Parliament in the Thirteenth Year of the Republic of India as follows. -
Section 1. Short title, extent and commencement.
ACT NO. 52 OF 1962 [13th December, 1962.]
An Act to consolidate and amend the law relating to customs. BE it enacted by Parliament in the Thirteenth Year of the Republic of India as follows:-
(1) This Act may be called the Customs Act, 1962.
(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.
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1. Came into force on 1-2-1963, vide G.S.R. 155, dated 23rd January, 1963, published in the Gazette of India, Extra., Pt. II, Sec. 3 (i), dated 23rd January, 1963.
Section 2. Definitions.
1[(1) “adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Board, 2[Commissioner (Appeals)] or Appellate Tribunal;
(1A) “aircraft” has the same meaning in the Aircraft Act, 1934 (22 of 1934);
(1B) “Appellate Tribunal” means the Customs, Excise and 3[Service Tax] Appellate Tribunal constituted under section 129;]
(2) “assessment” includes provisional assessment, reassessment and any order of assessment in which the duty assessed is nil;
(3) “baggage” includes unaccompanied baggage but does not include motor vehicles;
(4) “bill of entry” means a bill of entry referred to in section 46;
(5) “bill of export” means a bill of export referred to in section 50;
(6) “Board” means the 4[Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)];
(7) “coastal goods” means goods, other than imported goods, transported in a vessel from one port in India to another;
5[(7A) “Commissioner (Appeals)” means a person appointed to be a Commissioner of Customs (Appeals) under sub-section (1) of section 4;]
6[(8) “Commissioner of Customs”, except for the purposes of Chapter XV, includes an Additional Commissioner of Customs;]
(9) “conveyance” includes a vessel, an aircraft and a vehicle;
(10) “customs airport” means any airport appointed under clause (a) of section 7 to be a customs airport;
(11) “customs area” means the area of a customs station and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities;
(12) “customs port” means any port appointed under clause (a) of section 7 to be a customs port 7[and includes a place appointed under clause (aa) of that section to be an inland container depot];
(13) “customs station” means any customs port, customs airport or land customs station;
(14) “dutiable goods” means any goods which are chargeable to duty and on which duty has not been paid;
(15) “duty” means a duty of customs leviable under this Act;
(16) “entry”, in relation to goods means an entry made in a bill of entry, shipping bill or bill of export and includes in the case of goods imported or to be exported by post, the entry referred to in section 82 or the entry made under the regulations made under section 84;
(17) “examination”, in relation to any goods, includes measurement and weighment thereof;
(18) “export”, with its grammatical variations and cognate expressions, means taking out of India to a place outside India;
(19) “export goods” means any goods which are to be taken out of India to a place outside India;
(20) “exporter”, in relation to any goods at any time between their entry for export and the time when they are exported, includes any owner or any person holding himself out to be the exporter;
(21) “foreign-going vessel or aircraft” means any vessel or aircraft for the time being engaged in the carriage of goods or passengers between any port or airport in India and any port or airport outside India, whether touching any intermediate port or airport in India or not, and includes—
(i) any naval vessel of a foreign Government taking part in any naval exercises;
(ii) any vessel engaged in fishing or any other operations outside the territorial waters of India;
(iii) any vessel or aircraft proceeding to a place outside India for any purpose whatsoever;
8[(21A) “Fund” means the Consumer Welfare Fund established under section 12C of the Central Excises and Salt Act, 1944 (1 of 1944)*;]
(22) “goods” includes—
(a) vessels, aircrafts and vehicles;
(b) stores;
(c) baggage;
(d) currency and negotiable instruments; and
(e) any other kind of movable property;
(23) “import”, with its grammatical variations and cognate expressions, means bringing into India from a place outside India;
(24) “import manifest” or “import report” means the manifest or report required to be delivered under section 30;
(25) “imported goods” means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption;
(26) “importer”, in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer;
(27) “India” includes the territorial waters of India;
(28) “Indian Customs Water” means the 9[waters extending into the sea upto the limit of contiguous zone of India under section 5 of the Territorial Waters Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, (80 of 1976)] and includes any bay, gulf, harbour, creek or tidal river;
(29) “land customs station” means any place appointed under clause (b) of section 7 to be a land customs station;
(30) “market price”, in relation to any goods, means the wholesale price of the goods in the ordinary course of trade in India;
10[(30A) “National Tax Tribunal” means the National Tax Tribunal established under section 3 of the National Tax Tribunal Act, 2005 (49 of 2005);]
(31) “person-in-charge” means,—
(a) in relation to a vessel, the master of the vessel;
(b) in relation to an aircraft, the commander or pilot-in-charge of the aircraft;
(c) in relation to a railway train, the conductor, guard or other person having the chief direction of the train;
(d) in relation to any other conveyance, the driver or other person-in-charge of the conveyance;
(32) “prescribed” means prescribed by regulations made under this Act;
(33) “prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with;
(34) “proper officer”, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the 11[Commissioner of Customs];
(35) “regulations” means the regulations made by the Board under any provision of this Act;
(36) “rules” means the rules made by the Central Government under any provision of this Act;
(37) “shipping bill” means a shipping bill referred to in section 50;
(38) “stores” means goods for use in a vessel or aircraft and includes fuel and spare parts and other articles of equipment, whether or not for immediate fitting;
(39) “smuggling”, in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113;
(40) “tariff value”, in relation to any goods, means the tariff value fixed in respect thereof under sub-section (2) of section 14;
(41) “value”, in relation to any goods, means the value thereof determined in accordance with the provisions of 12[sub-section (1) or sub-section (2) of section 14];
(42) “vehicle” means conveyance of any kind used on land and includes a railway vehicle;
(43) “warehouse” means a public warehouse appointed under section 57 or a private warehouse licensed under section 58;
(44) “warehoused goods” means goods deposited in a warehouse;
(45) “warehousing station” means a place declared as a warehousing station under section 9.
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1. Subs. by Act 44 of 1980, sec. 50 and Fifth Sch., Pt. I, for clause (1) (w.e.f. 11-10-1982).
2. Subs. by Act 22 of 1995, sec. 51, for “Collector (Appeals)” (w.e.f. 26-5-1995).
3. Subs. by Act 32 of 2003, sec. 104, for “Gold (Control)” (w.e.f. 14-5-2003).
4. Subs. by Act 54 of 1963, sec. 5, for certain words (w.e.f. 1-1-1964).
5. Subs. by Act 22 of 1995, sec. 51, for clause (7A) (w.e.f. 26-5-1995).
Earlier clause (7A) was inserted by Act 44 of 1980, sec. 50 and Fifth Sch., Pt. I (w.e.f. 11-10-1982).
6. Subs. by Act 22 of 1995, sec. 51, for clause (8) (w.e.f. 26-5-1995). Earlier clause (8) was substituted by Act 18 of 1992, sec. 109 (w.e.f. 14-5-1992).
7.Ins. by Act 11 of 1983, sec. 46 (w.e.f. 13-5-1983).
8. Ins. by Act 40 of 1991, sec. 9 (w.e.f. 20-9-1991).
* Now the Central Excises Act, 1944 (1 of 1944).
9. Subs. by Act 25 of 1978, sec. 2, for certain words (w.e.f. 1-7-1978).
10.Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-1 (w.e.f. 28-12-2005).
11. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
12. Subs. by Act 22 of 2007, sec. 94, for “sub-section (1) of section 14” (w.e.f. 11-5-2007).
Section 3. Classes of officers of customs.
There shall be the following classes of officers of customs, namely :-
(a) Chief Commissioners of Customs;
(b) Commissioners of Customs;
(c) Commissioners of Customs (Appeals);
2(cc) Joint Commissioners of Customs;
(d) Deputy Commissioners of Customs;
(e) Assistant Commissioners of Customs; and
(f) such other class of officers of customs as may be appointed for the purposes of this Act.
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1. Subs. by Act 22 of 1995, sec. 52, for section 3 (w.e.f. 26-5-1995).
2. Ins. by Act, 27 of 1999, sec. 101 (w.e.f. 11-5-1999).
Section 4. Appointment of officers of customs.
1[4. Appointment of officers of customs.—(1) The 2[Board] may appoint such persons as it thinks fit to be officers of customs.
(2) Without prejudice to the provisions of sub-section (1), 3[Board may authorise a Chief Commissioner of Customs or] a 4[Joint or Assistant or Deputy Commissioner of Customs] to appoint officers of customs below the rank of Assistant Commissioner of Customs.]
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1. Subs. by Act 22 of 1995, sec. 52, for section 4 (w.e.f. 26-5-1995).
2. Subs. by Act 20 of 2002, sec. 117, for “Central Government” (w.e.f. 11-5-2002).
3. Subs. by Act 20 of 2002, sec. 117, for “Central Government may authorise the Board” (w.e.f. 11-5-2002).
4. Subs. by Act 27 of 1999, sec. 100, for “Deputy or Assistant Commissioner of Customs” (w.e.f. 11-5-1999)./
Section 5. Powers of officers of customs. Sub-section.
(1) Subject to such conditions and limitations as the Board may impose, an officer of customs may exercise the powers and discharge the duties conferred or imposed on him under this Act.
(2) An officer of customs may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of customs who is subordinate to him.
(3) Notwithstanding anything contained in this section, a Commissioner (Appeals) shall not exercise the powers and discharge the duties conferred or imposed on an officer of customs other than those specified in Chapter XV and section 108.
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1. Subs. by Act 44 of 1980, sec. 50, Fifth Sch., Pt. I, for “an Appellate Collector of Customs” (w.e.f. 11-10-1982).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector (Appeals)” (w.e.f. 26-5-1995).
Section 6. Entrustment of functions of board and customs officers on certain other officers.
The Central Government may, by notification in the Official Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of customs under this Act.
Section 7. Appointment of customs ports, airports, etc.
1The 2[Board] may, by notification in the Official Gazette, appoint -
(a) the ports and airports which alone shall be customs ports or customs airports for the unloading of imported goods and the loading of export goods or any class of such goods;
3(aa) the places which alone shall be inland container depots for the unloading of imported goods and the loading of export goods or any class of such goods;
(b) the places which alone shall be land customs stations for the clearance of goods imported or to be exported by land or inland water or any class of such goods;
(c) the routes by which alone goods or any class of goods specified in the notification may pass by land or inland water into or out of India, or to or from any land customs station from or to any land frontier;
(d) the ports which alone shall be coastal ports for the carrying on of trade in coastal goods or any class of such goods with all or any specified ports in India.
4[(2) every notification issued under this section and in force immediately before the commencement of the Finance Act, 2003 shall, on such commencement, be deemed to have been issued under the provisions of this section as amended by section 105 of the Finance Act, 2003 and shall continue to have the same force and effect after such commencement until it is amended, rescinded or superseded under the provisions of this section.]
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1. Section 7 renumbered as sub-section (1) thereof by Act 32 of 2003, sec. 105 (w.e.f. 14-5-2003).
2. Subs. by Act 32 of 2003, sec. 105, for “Central Government” (w.e.f. 14-5-2003).
3. Ins. by Act 11 of 1983, sec. 47 (w.e.f. 13-5-1983).
4. Ins. by Act 32 of 2003, sec. 105 (w.e.f. 14-5-2003).
Section 8. Power to approve landing places and specify limits of customs area.
The 1[Commissioner of Customs] may, -
(a) approve proper places in any customs port or customs airport or coastal port for the unloading and loading of goods or for any class of goods;
(b) specify the limits of any customs area.
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1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 9. Power to declare places to be warehousing stations.
The Board may, by notification Official Gazette, declare places to be warehousing stations at which alone public warehouses may be appointed and private warehouses may be licensed.
Section 10. Appointment of boarding stations.
The 1[Commissioner of Customs] may, by notification in the Official Gazette, appoint, in or near any customs port, a boarding station for the purpose of boarding of, or disembarkation from, vessels by officers of customs.
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1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 11. Power to prohibit importation or exportation of goods. Sub section
(1) If the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description.
(2) The purposes referred to in sub-section (1) are the following :-
(a) the maintenance of the security of India;
(b) the maintenance of public order and standards of decency or morality;
(c) the prevention of smuggling;
(d) the prevention of shortage of goods of any description;
(e) the conservation of foreign exchange and the safeguarding of balance of payments;
(f) the prevention of injury to the economy of the country by the uncontrolled import or export of gold or silver;
(g) the prevention of surplus of any agricultural product or the product of fisheries;
(h) the maintenance of standards for the classification, grading or marketing of goods in international trade;
(i) the establishment of any industry;
(j) the prevention of serious injury to domestic production of goods of any description;
(k) the protection of human, animal or plant life or health;
(l) the protection of national treasures of artistic, historic or archaeological value;
(m) the conservation of exhaustible natural resources;
(n) the protection of patents, trade marks and copyrights;
(o) the prevention of deceptive practices;
(p) the carrying on of foreign trade in any goods by the State, or by a Corporation owned or controlled by the State to the exclusion, complete or partial, of citizens of India;
(q) the fulfillment of obligations under the Charter of the United Nations for the maintenance of international peace and security;
(r) the implementation of any treaty, agreement or convention with any country;
(s) the compliance of imported goods with any laws which are applicable to similar goods produced or manufactured in India;
(t) the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign State or is derogatory to national prestige;
(u) the prevention of the contravention of any law for the time being in force; and
(v) any other purpose conducive to the interests of the general public.
Section 11A. Definitions.
In this Chapter, unless the context otherwise requires, -
(a) “illegal import” means the import of any goods in contravention of the provisions of this Act or any other law for the time being in force;
(b) “intimated place” means a place intimated under sub-section (1), sub-section (2) or sub-section (3), as the case may be, of section 11C;
(c) “notified date”, in relation to goods of any description, means the date on which the notification in relation to such goods is issued under section 11B;
(d) “notified goods” means goods specified in the notification issued under section 11B.
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* Chapter IVA (containing sections 11A to 11G) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11B. Power of central government to notify goods.
If, having regard to the magnitude of the illegal import of goods of any class or description, the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import, circulation or disposal of such goods, it may, by notification in the Official Gazette, specify goods of such class or description
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* Chapter IVA (containing sections 11A to 11G) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11C. Persons possessing notified goods to intimate the place of storage, etc.
(1) Every person who owns, possesses or controls, on the notified date, any notified goods, shall, within seven days from that date, deliver to the proper officer a statement (in such form, in such manner and containing such particulars as may be specified by rules made in this behalf) in relation to the notified goods owned, possessed or controlled by him and the place where such goods are kept or stored.
(2) Every person who acquires, after the notified date, any notified goods, shall, before making such acquisition, deliver to the proper officer an intimation containing the particulars of the place where such goods are proposed to be kept or stored after such acquisition and shall, immediately on such acquisition, deliver to the proper officer a statement (in such form, in such manner and containing such particulars as may be specified by rules made in this behalf) in relation to the notified goods acquired by him :
Provided that a person who has delivered a statement, whether under sub-section (1) or sub-section (2), in relation to any notified goods, owned, possessed, controlled or acquired by him, shall not be required to deliver any further statement in relation to any notified goods acquired by him, after the date of delivery of the said statement, so long as the notified goods so acquired are kept or stored at the intimated place.
(3) If any person intends to shift any notified goods to any place other than the intimated place, he shall, before taking out such goods from the intimated place, deliver to the proper officer an intimation containing the particulars of the place to which such goods are proposed to be shifted.
(4) No person shall, after the expiry of seven days from the notified date, keep or store any notified goods at any place other than the intimated place.
(5) Where any notified goods have been sold or transferred, such goods shall not be taken from one place to another unless they are accompanied by the voucher referred to in section 11F.
(6) No notified goods (other than those which have been sold or transferred) shall be taken from one place to another unless they are accompanied by a transport voucher (in such form and containing such particulars as may be specified by rules made in this behalf) prepared by the persons owning, possessing or controlling such goods.
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* Chapter IVA (containing sections 11A to 11G) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11D. Precautions to be taken by persons acquiring notified goods.
No person shall acquire (except by gift or succession, from any other individual in India), after the notified date, any notified goods -
(i) unless such goods are accompanied by, -
(a) the voucher referred to in section 11F or the memorandum referred to in sub-section (2) of section 11G, as the case may be, or
(b) in the case of a person who has himself imported any goods, any evidence showing clearance of such goods by the Customs Authorities; and
(ii) unless he has taken, before acquiring such goods from a person other than a dealer having a fixed place of business, such reasonable steps as may be specified by rules made in this behalf, to ensure that the goods, so acquired by him are not goods which have been illegally imported.
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* Chapter IVA (containing sections 11A to 11G) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11E. Persons possessing notified goods to maintain accounts.
(1) Every person who, on or after the notified date, owns, possesses, controls or acquires any notified goods shall maintain (in such form and in such manner as may be specified by rules made in this behalf) a true and complete account of such goods and shall, as often as he acquires or parts with any notified goods, make an entry in the said account in relation to such acquisition or parting with, and shall also state therein the particulars of the person from whom such goods have been acquired or in whose favour such goods have been parted with, as the case may be, and such account shall be kept, along with the goods, at the place of storage of the notified goods to which such accounts relate :
Provided that it shall not be necessary to maintain separately accounts in the form and manner specified by rules made in this behalf in the case of a person who is already maintaining accounts which contain the particulars specified by the said rules.
(2) Every person who owns, possesses or controls any notified goods and who uses any such goods for the manufacture of any other goods, shall maintain (in such form, in such manner and containing such particulars as may be specified by rules made in this behalf) a true and complete account of the notified goods so used by him and shall keep such account at the intimated place.
———
* Chapter IVA (containing sections 11A to 11G) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11F. Sale, etc., of notified goods to be evidenced by vouchers.
On and from the notified date, no person shall sell or otherwise transfer any notified goods, unless every transaction in relation to the sale or transfer of such goods is evidenced by a voucher in such form and containing such particulars as may be specified by rules made in this behalf.
————
* Chapter IVA (containing sections 11A to 11G) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11G. Sections 11C, 11E and 11F not to apply to goods in personal use.
(1) Nothing in sections 11C, 11E and 11F shall apply to any notified goods which are -
(a) in personal use of the person by whom they are owned, possessed or controlled, or
(b) kept in the residential premises of a person for his personal use.
(2) If any person, who is in possession of any notified goods referred to in sub-section (1), sells, or otherwise transfers for a valuable consideration, any such goods, he shall issue to the purchaser or transferee, as the case may be, a memorandum containing such particulars as may be specified by rules made in this behalf and no such goods shall be taken from one place to another unless they are accompanied by the said memorandum.
————
* Chapter IVA (containing sections 11A to 11G) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11H. Definitions.
In this Chapter, unless the context otherwise requires, -
(a) “illegal export” means the export of any goods in contravention of the provisions of this Act or any other law for the time being in force;
(b) “intimated place” means a place intimated under sub-section (1), sub-section (2) or sub-section (3), as the case may be, of section 11J;
(c) “specified area” includes the Indian customs waters, and such inland area, not exceeding one hundred kilometres in width from any coast or other border of India, as the Central Government may, having regard to the vulnerability of that area to smuggling, by notification in the Official Gazette, specify in this behalf :
Provided that where a part of any village, town or city falls within a specified area, the whole of such village, town or city shall, notwithstanding that the whole of it is not within one hundred kilometres from any coast or other border of India, be deemed to be included in such specified area;
(d) “specified date”, in relation to specified goods, means the date on which any notification is issued under section 11-I in relation to those goods in any specified area;
(e) “specified goods” means goods of any description specified in the notification issued under section 11-I in relation to a specified area.
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* Chapter IVB (containing sections 11H to 11M) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11-I. Power of central government to specify goods.
If, having regard to the magnitude of the illegal export of goods of any class or description, the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal export or facilitating the detection of goods which are likely to be illegally exported, it may, by notification in the Official Gazette, specify goods of such class or description.
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* Chapter IVB (containing sections 11H to 11M) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11J. Persons possessing specified goods to intimate the place of storage, etc.
(1) Every person who owns, possesses or controls, on the specified date, any specified goods, the market price of which exceeds fifteen thousand rupees shall, within seven days from that date, deliver to the proper officer an intimation containing the particulars of the place where such goods are kept or stored within the specified area.
(2) Every person who acquires (within the specified area), after the specified date, any specified goods, -
(i) the market price of which, or
(ii) the market price of which together with the market price of any specified goods of the same class or description, if any, owned, possessed or controlled by him on the date of such acquisition, exceeds fifteen thousand rupees shall, before making such acquisition, deliver to the proper officer an intimation containing the particulars of the place where such goods are proposed to be kept or stored after such acquisition :
Provided that a person who has delivered an intimation, whether under sub-section (1) or sub-section (2), in relation to any specified goods, owned, possessed, controlled or acquired by him, shall not be required to deliver any further intimation so long as the specified goods are kept or stored at the intimated place.
(3) If any person intends to shift any specified goods to which sub-section (1) or sub-section (2) applies, to any place other than the intimated place, he shall, before taking out such goods from the intimated place, deliver to the proper officer an intimation containing the particulars of the place to which such goods are proposed to be shifted.
(4) No person shall, after the expiry of seven days from the specified date, keep or store any specified goods to which sub-section (1) or sub-section (2) applies, at any place other than the intimated place.
—————
* Chapter IVB (containing sections 11H to 11M) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11K. Transport of specified goods to be covered by vouchers.
(1) No specified goods shall be transported from, into or within any specified area or loaded on any animal or conveyance in such area, unless they are accompanied by a transport voucher (in such form and containing such particulars as may be specified by rules made in this behalf) prepared by the person owning, possessing, controlling or selling such goods :
Provided that no transport voucher shall be necessary for the transport, within a village, town or city, of any specified goods the market price of which, on the date of transport, does not exceed one thousand rupees.
(2) Notwithstanding anything contained in sub-section (1), where the Central Government, after considering the nature of any specified goods, the time, mode, route and the market price of the goods intended to be transported, the purpose of the transportation and the vulnerability of the specified area with regard to the illegal export of such goods, is satisfied that it is expedient in the public interest so to do, it may, -
(i) by notification in the Official Gazette, specify goods of such class or description and of a market price exceeding such sum as that Government may notify; and different sums in relation to the specified goods of the same class or description, or different classes or descriptions, may be notified for the same specified area or for different specified areas, and
(ii) direct that no person shall transport any goods so specified unless the transport voucher in relation to them has been countersigned by the proper officer.
—————
* Chapter IVB (containing sections 11H to 11M) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11L. Persons possessing specified goods to maintain accounts.
(1) Every person who, on or after the specified date, owns, possesses or controls, within a specified area, any specified goods of a market price exceeding fifteen thousand rupees, shall maintain (in such form and in such manner as may be specified by rules made in this behalf) a true and complete account of such goods and shall, as often as he acquires or parts with any specified goods, make an entry in the said account in relation to such acquisition or parting with, and shall also state therein the particulars of the person from whom such goods have been acquired or in whose favour such goods have been parted with, as the case may be, and such account shall be kept, along with the goods, at the place of storage of the specified goods to which such accounts relate :
Provided that it shall not be necessary to maintain separately accounts in the form and manner specified by rules made in this behalf in the case of a person who is already maintaining accounts which contain the particulars specified by the said rules.
(2) Every person who owns, possesses or controls any specified goods to which the provisions of sub-section (1) apply, and who uses any such goods for the manufacture of any other goods, shall maintain (in such form, in such manner and containing such particulars as may be specified by rules made in this behalf) a true and complete account of the specified goods so used by him and shall keep such account at the intimated place.
————
* Chapter IVB (containing sections 11H to 11M) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11M. Steps to be taken by persons selling or transferring any specified goods.
Except where he receives payment by cheque drawn by the purchaser, every person who sells or otherwise transfers within any specified area, any specified goods, shall obtain, on his copy of the sale or transfer voucher, the signature and full postal address of the person to whom such sale or transfer is made and shall also take such other reasonable steps as may be specified by rules made in this behalf to satisfy himself as to the identity of the purchaser or the transferee, as the case may be, and if after an inquiry made by a proper officer, it is found that the purchaser or the transferee, as the case may be, is not either readily traceable or is a fictitious person, it shall be presumed, unless the contrary is proved, that such goods have been illegally exported and the person who had sold or otherwise transferred such goods had been concerned in such illegal export :
Provided that nothing in this section shall apply to petty sales of any specified goods if the aggregate market price obtained by such petty sales, made in the course of a day, does not exceed two thousand and five hundred rupees.
Explanation : In this section “petty sale” means a sale at a price which does not exceed one thousand rupees.
————
* Chapter IVB (containing sections 11H to 11M) ins. by Act 12 of 1969, sec. 2 (w.r.e.f. 3-1-1969).
Section 11N. Power to exempt.
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 as may be specified in the notification, goods of any class or description from all or any of the provisions of Chapter IVA or Chapter IVB.
Section 12. Dutiable goods.
(1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into, or exported from, India.
(2) The provisions of sub-section (1) shall apply in respect of all goods, belonging to Government as they apply in respect of goods not belonging to Government.
__________
1. Subs. by Act 51 of 1975, sec. 13, for “Indian Tariff Act, 1934 (32 of 1934)” (w.e.f. 2-8-1976).
2. Subs. by Act 30 of 1963, sec. 2, for sub-section (2) (w.e.f. 1-10-1963).
Section 13. Duty on pilfered goods.
If any imported goods are pilfered after the unloading thereof and before the proper officer has made an order for clearance for home consumption or deposit in a warehouse, the importer shall not be liable to pay the duty livable on such goods except where such goods are restored to the importer after pilferage.
Section 14. Valuation of goods for purposes of assessment.
1(1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force where under a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or offer for sale :
Provided that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill or bill of export, as the case may be, is presented under section 50;
(1A) Subject to the provisions of sub-section (1), the price referred to in that sub-section in respect of imported goods shall be determined in accordance with the rules made in this behalf.
(2) Notwithstanding anything contained in sub-section (1) or sub-section (1A), if the Central Government is satisfied that it is necessary or expedient so to do it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value.
(3) For the purposes of this section – (a) “rate of exchange” means the rate of exchange – (i) determined by the Central Government, or
(ii) ascertained in such manner as the Central Government may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency;
(b) “foreign currency” and “Indian currency” have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1973 (46 of 1973)
——–
1. Subs. by Act 22 of 2007, sec. 95, for section 14. Earlier section 14 was amended by Act 20 of 1966, sec. 2 (w.e.f. 31-8-1966), by Act 51 of 1975, sec. 13 (w.e.f. 2-8-1976), by Act 25 of 1978, sec. 3 (w.e.f. 1-7-1978), by Act 27 of 1988, sec. 2 (w.e.f. 16-8-1988), by Act 20 of 2002, sec. 118 (w.e.f. 11-5-2002). Section 14, before substitution, stood as under:—
‘14. Valuation of goods for purposes of assessment .—(1) For the purposes of the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force whereunder a duty of customs is chargeable on any goods by reference to their value, the value of such goods shall be deemed to be—
the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation or exportation, as the case may be, in the course of international trade, where—
(a) the seller and the buyer have no interest in the business of each other; or
(b) one of them has no interest in the business of the other,
and the price is the sole consideration for the sale or offer for sale:
Provided that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill or bill of export, as the case may be, is presented under section 50;
(1A) Subject to the provisions of sub-section (1), the price referred to in that sub-section in respect of imported goods shall be determined in accordance with the rules made in this behalf.
(2) Notwithstanding anything contained in sub-section (1) or sub-section (1A) if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value.
(3) For the purposes of this section—
(a) “rate of exchange” means the rate of exchange—
(i) determined by the Board, or
(ii) ascertained in such manner as the Board may direct,
for the conversion of Indian currency into foreign currency or foreign currency into Indian currency;
(b) “foreign currency” and “Indian currency” have the meanings respectively assigned to them in clause (m) and clause (q) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999).’.
Section 15. Date for determination of rate of duty and tariff valuation of imported goods.
1(1) The rate of duty 2[***]and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, -
(a) in the case of goods entered for home consumption under section 46, on the date on which 3a bill of entry in respect of such goods is presented under that section;
(b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse;
(c) in the case of any other goods, on the date of payment of duty :
4Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be.
(2) The provisions of this section shall not apply to baggage and goods imported by post.
5[***]
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1. Subs. by Act 20 of 1966, sec. 3, for “The rate of duty” (w.e.f. 31-8-1966).
2. The words “, rate of exchange” omitted by Act 25 of 1978, sec. 4 (w.e.f. 1-7-1978).
3. Subs. by Act 32 of 2003, sec. 106, for “the goods are actually removed from the warehouse” (w.e.f. 14-5-2003).
4. Subs. by Act 33 of 1996, sec. 59, for the proviso (w.e.f. 28-9-1996).
5. Sub-section (3) omitted by Act 25 of 1978, sec. 4 (w.e.f. 1-7-1978).
Earlier sub-section (3) was inserted by Act 20 of 1966, sec. 3 (w.e.f. 31-8-1966).
Section 16. Date for determination of rate of duty and tariff valuation of export goods.
1(1) The rate of duty and tariff valuation, if any, applicable to any export goods, shall be the rate and valuation in force, -
(a) in the case of goods entered for export under section 50, on the date on, which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51;
(b) in the case of any other goods, on the date of payment of duty.
(2) The provisions of this section shall not apply to baggage and goods exported by post.
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1. Subs. by Act 23 of 1986, sec. 50, for sub-section (1) (w.e.f. 13-5-1986).
Section 17. Assessment of duty.
(1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under, section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer.
(2) After such examination and testing, the duty, if any, livable on such goods shall, save as otherwise provided in section 85, be assessed.
(3) For the purpose of assessing duty under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any contract, broker’s note, policy of insurance, catalogue or other document whereby the duty livable on the imported goods or export goods, as the case may be, can be ascertained, and to furnish any information required for such ascertainment which it is in his power to produce or furnish, and thereupon the importer, exporter or such other person shall produce such document and furnish such information.
(4) Notwithstanding anything contained in this section, imported goods or export goods may, prior to the examination or testing thereof, be permitted by the proper officer to be assessed to duty on the basis of the statements made in the enter relating thereto and the documents produced and the information furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be re-assessed to duty.
1[(5) Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification therefor under this Act, and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said assessment in writing, the proper officer shall pass a speaking order within fifteen days from the date of assessment of the bill of entry or the shipping bill, as the case may be].
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1. Ins. by Act 29 of 2006, sec. 20 (w.e.f. 13-7-2006).
Section 18. Provisional assessment of duty.
(1) Notwithstanding anything contained in this Act but without prejudice to the provisions contained in section 46 -
(a) where the proper officer is satisfied that an importer or exporter is unable to produce any document or furnish any information necessary for the assessment of duty on the imported goods or the export goods, as the case may be; or
(b) where the proper officer deems it necessary to subject any imported goods or export goods to any chemical or other test for the purpose of assessment of duty thereon; or
(c) where the importer or the exporter has produced all the necessary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty, the proper officer may direct that the duty livable on such goods may, pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed.
(2) When the duty livable on such goods is assessed finally in accordance with the provisions of this Act, then – (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against 1the duty finally assessed and if the amount so paid falls short of, or is in excess of the duty finally assessed, the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be;
(b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the duty provisionally assessed, require the importer to execute a bond, binding himself in a sum equal to twice the amount of the excess duty.
2[(3) The importer or exporter shall be liable to pay interest, on any amount payable to the Central Government, consequent to the final assessment order under sub-section (2), at the rate fixed by the Central Government under section 28AB from the first day of the month in which the duty is provisionally assessed till the date of payment thereof.
(4) Subject to sub-section (5), if any refundable amount referred to in clause (a) of sub-section (2) is not refunded under that sub-section within three months from the date of assessment, of duty finally, there shall be paid an interest on such unrefunded amount at such rate fixed by the Central Government under section 27A till the date of refund of such amount.
(5) The amount of duty refundable under sub-section (2) and the interest under sub-section (4), if any, shall, instead of being credited to the Fund, be paid to the importer or the exporter, as the case may be, if such amount is relatable to—
(a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use;
(c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(d) the export duty as specified in section 26;
(e) drawback of duty payable under sections 74 and 75.]
—————
1. Subs. by Act 56 of 1974, sec. 3 and Second Sch., for “the finally assessed” (w.e.f. 20-12-1974).
2. Ins. by Act 29 of 2006, sec. 21 (w.e.f. 13-7-2006).
Section 19. Determination of duty where goods consist of articles liable to different rates of duty.
Except as otherwise provided in any law for the time being in force, where goods consist of a set of articles, duty shall be calculated as follows :-
(a) articles liable to duty with reference to quantity shall be chargeable to that duty;
(b) articles liable to duty with reference to value shall, if they are liable to duty at the same rate, be chargeable to duty at that rate, and if they are liable to duty at different rates, be chargeable to duty at the highest of such rates;
(c) articles not liable to duty shall be chargeable to duty at the rate at which articles liable to duty with reference to value are liable under clause (b) :
Provided that, -
(a) accessories of, and spare parts or maintenance and repairing implements for, any article which satisfy the conditions specified in the rules made in this behalf shall be chargeable at the same rate of duty as that article;
(b) if the importer produces evidence to the satisfaction of the proper officer regarding the value of any of the articles liable to different rates of duty, such article shall be chargeable to duty separately at the rate applicable to it.
Section 20. Re-importation of goods.
1If goods are imported into India after exportation there from, such goods shall be liable to duty and be subject to all the conditions and restrictions, if any, to which goods of the like kind and value are liable or subject, on the importation thereof.
2[***]]
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1. Subs. by Act 32 of 1994, sec. 60, for section 20 (w.e.f. 13-5-1994).
2. Provisos and Explanations omitted by Act 22 of 1995, sec. 53 (w.e.f. 26-5-1995).
Section 21. Goods derelict, wreck, etc.
All goods, derelict, jetsam, flotsam and wreck brought or coming into India, shall be dealt with as if they were imported into India, unless it be shown to the satisfaction of the proper officer that they are entitled to be admitted duty-free under this Act.
Section 22. Abatement of duty on damaged or deteriorated goods.
(1) Where it is shown to the satisfaction of the 1Assistant Commissioner of Customs -
(a) that any imported goods had been damaged or had deteriorated at any time before or during the unloading of the goods in India; or
(b) that any imported goods, other than warehoused goods, had been damaged at any time after the unloading thereof in India but before their examination under section 17, on account of any accident not due to any willful act, negligence or default of the importer, his employee or agent; or
(c) that any warehoused goods had been damaged at any time before clearance for home consumption on account of any accident not due to any willful act, negligence or default of the owner, his employee or agent, such goods shall be chargeable to duty in accordance with the provisions of sub-section (2).
(2) The duty to be charged on the goods referred to in sub-section (1) shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration.
(3) For the purposes of this section, the value of damaged or deteriorated goods may be ascertained by either of the following methods at the option of the owner :-
(a) the value of such goods may be ascertained by the proper officer, or
(b) such goods may be sold by the proper officer by public auction or by tender, or with the consent of the owner in any other manner, and the gross sale proceeds shall be deemed to be the value of such goods.
—————
1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 23. Remission of duty on lost, destroyed or abandoned goods.
(1) Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the 2Assistant Commissioner of Customs that any imported goods have been lost 3(otherwise than as a result of pilferage) or destroyed, at any time before clearance for home consumption, the5 Assistant Commissioner of Customs shall remit the duty on such goods.
4(2) The owner of any imported goods may, at any time before an order for clearance of goods for home consumption under section 47 or an order for permitting the deposit of goods in a warehouse under section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon.
5[Provided that the owner of any such imported goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force.]
—————
1. Subs. by Act 11 of 1983, sec. 48, for “where it is shown” (w.e.f. 13-5-1983).
2. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
3. Ins. by Act 11 of 1983, sec. 48 (w.e.f. 13-5-1983).
4. Subs. by Act 32 of 1994, sec. 60, for sub-section (2) (w.e.f. 13-5-1994).
5. Ins. by Act 21 of 2006, sec. 58 (w.e.f. 18-4-2006).
Section 24. Power to make rules for denaturing or mutilation of goods.
The Central Government may make rules for permitting at the request of the owner the denaturing or mutilation of imported goods which are ordinarily used for more than one purpose so as to render them unfit for one or more of such purposes; and where any goods are so denatured or mutilated they shall be chargeable to duty at such rate as would be applicable if the goods had been imported in the denatured or mutilated form.
Section 25. Power to grant exemption from duty.
(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 clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon.
1(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, for reasons to be stated in such order, any goods, of strategic or secret nature, or for charitable purpose, on which duty is leviable.
2[(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(3) An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs 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 goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty.
Explanation : “Form or method”, in relation to a rate of duty of customs, means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable.
4(4) Every notification issued under (1) 5 [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 of the Board, New Delhi.
(5) Notwithstanding anything contained in sub-section (4), 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.
6[(6) Notwithstanding anything contained in this Act, no duty shall be collected if the amount of duty leviable is equal to, or less than, one hundred rupees.]
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1. Subs. by Act 32 of 2003, sec. 107, for sub-section (2) (w.e.f. 14-5-2003). Earlier sub-section (2) was substituted by Act 27 of 1999, sec. 102 (w.e.f. 11-5-1999).
2. Ins. by Act 20 of 2002, sec. 119 (w.e.f. 11-5-2002).
3. Ins. by Act 11 of 1983, sec. 49 (w.e.f. 13-5-1983).
4. Ins. by Act 21 of 1998, sec. 99 (w.e.f. 1-8-1998).
5. Ins. by Act 20 of 2002, sec. 119 (w.e.f. 11-5-2002).
6. Ins. by Act 32 of 2003, sec. 107 (w.e.f. 14-5-2003).
Section 26. Refund of export duty in certain cases.
Where on the exportation of any goods any duty has been paid, such duty shall be refunded to the person by whom or on whose behalf it was paid, if -
(a) the goods are returned to such person otherwise than by way of re-sale;
(b) the goods are re-imported within one year from the date of exportation; and
(c) an application for refund of such duty is made before the expiry of six months from the date on which the proper officer makes an order for the clearance of the goods.
Section 27. Claim for refund of duty.
(1) Any person claiming refund of any duty and interest, if any, paid on such duty -
(i) paid by him in pursuance of an order of assessment; or
(ii) borne by him, may make an application for refund of such 2duty and interest, if any, paid on such duty to the 3Assistant Commissioner of Customs
(a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year;
(b) in any other case, before the expiry of six months, from the date of payment of 4duty and interest, if any, paid on such duty, 5in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of 4duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such 4duty and interest, if any, paid on such duty had not been passed on by him to any other person :
Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section and the same shall be dealt with in accordance with the provisions of sub-section (2) :
Provided further that the limitation of one year or six months, as the case may be, shall not apply where any duty and interest, if any, paid on such duty has been paid under protest.
6Provided also that in the case of goods which are exempt from payment Of duty by a special order issued under sub-section (2) of section 25, the limitation of one year or six months, as the case may be, shall be computed from the date of issue of such order.
7[Provided also that where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year or six months, as the case may be, shall be computed from the date of such judgment, decree, order or direction.]
Explanation 8I : For the purposes of this sub-section, “the date of payment of duty and interest, if any, paid on such duty”, in relation to a person, other than the importer, shall be construed as “the date of purchase of goods” by such person.
9Explanation II : Where any duty is paid provisionally under section 18, the limitation of one year or six months, as the case may be, shall be computed from the date of adjustment of duty after the final assessment thereof.
(2) If, on receipt of any such application, the 10Assistant Commissioner of Customs is satisfied that the whole or any part of the 4duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :
Provided that the amount of 4duty and interest, if any, paid on such duty as determined by the 10Assistant Commissioner of Customs 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)the 4duty and interest, if any, paid on such duty paid by the importer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person;
(b) the 4duty and interest, if any, paid on such duty on imports made by an individual for his personal use;
(c) the 4duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such 4duty and interest, if any, paid on such duty 61 ] to any other person;
(d) the export duty as specified in section 26;
(e) drawback of duty payable under sections 74 and 75;
(f) the 4duty and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify :
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of 4duty and interest, if any, paid on such duty has not been passed on by the persons concerned to any other person.
(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal 12 [, the National Tax Tribunal]or any Court or in any other provision of this Act or the regulations made there under 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 there under.
(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.
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1. Subs. by Act 40 of 1991, sec. 10, for section 27 (w.e.f. 20-9-1991).
2. Subs. by Act 55 of 1991, sec. 2, for “duty” (w.e.f. 23-12-1991).
3. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995,
sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
4. Subs. by Act 55 of 1991, sec. 2, for “duty” (w.e.f. 23-12-1991).
5. Subs. by Act 22 of 1995, sec. 54, for “in such form” (w.e.f. 26-5-1995).
6. Ins. by Act 33 of 1996, sec. 60 (w.e.f. 28-9-1996).
7. Ins. by Act 22 of 2007, sec. 96 (w.e.f. 11-5-2007).
8. Explanation renumbered as Explanation I by Act 21 of 1998, sec. 100 (w.e.f. 1-8-1998).
9. Ins. by Act 21 of 1998, sec. 100 (w.e.f. 1-8-1998).
10.Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995,
11. Ins. by Act 32 of 2003, sec. 108 (w.e.f. 14-5-2003).
12.Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-2 (w.e.f. 28-12-2005).
Section 27A. Interest on delayed refunds.
If any duty ordered to be refunded under sub-section (2) of section 27 to an 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,2 not below ten per cent and not exceeding thirty per cent per annum as is for the time being fixed 3[by the Central Government, by notification in the Official Gazette], , on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty :
Provided that where any duty, ordered to be refunded under sub-section (2) of section 27 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 5Assistant commissioner of Customs under sub-section (2) of section 27, 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 that sub-section for the purposes of this section.
—————
1. Ins. by Act 22 of 1995, sec. 55 (w.e.f. 26-5-1995).
2. Subs. by Act 14 of 2001, sec. 102, for “not below ten per cent.” (w.e.f. 11-5-2001).
3. Subs. by Act 10 of 2000, sec. 78, for “by the Board” (w.e.f. 12-5-2000).
*. Ed. The Finance Bill, 1995 received the assent of the President on 26th May, 1995.
4. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-3.
5. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999).
Section 28. Notice for payment of duties, interest etc.
1(1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may, -
(a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year;
(b) in an other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part 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 has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any willful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, the provisions of this sub-section shall have effect as if for the words “one year” and “six months”, the words “five years” were substituted.
2[***]
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 one year or six months or five years, as the case may be.
3[(1A) When any duty has not been levied or has been short-levied or the interest has not been charged or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter, to whom a notice is served under the proviso to sub-section (1) by the proper officer, may pay duty in full or in part as may be accepted by him, and the interest payable thereon under section 28AB 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) The proper officer, after considering the representation, if any made by the person on whom notice is served under sub-section (1), shall determine the amount of duty or interest due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount determined.
4[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 135, 135A and 140, 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 proper officer shall determine the amount of duty or interest not being in excess of the amount partly due from such person.]
5[(2A) Where any notice has been served on a person under sub-section (1), the proper officer,—
(i) In case any duty has not been levied or has been short-levied, or the interest has not been paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, where it is possible to do so, shall determine the amount of such duty or the interest, within a period of one year; and
(ii) In any other case, where it is possible to do so, shall determine the amount of duty which has not been levied or has been short-levied or erroneously refunded or the interest payable which has not been paid, part 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 has not been levied or has been short-levied or erroneously refunded, or any interest payable has not been paid, part paid or erroneously refunded, the person, chargeable with the duty or the interest, may pay the amount of duty or interest before service of notice on him under sub-section (1) in respect of the duty or the interest, as the case may be, and inform the proper 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 or the interest so paid:
Provided that the proper officer may determine the amount of short-payment of duty or interest, if any, which in his opinion has not been paid by such person and, then, the proper officer shall proceed to recover such amount in the manner specified in this section, and the period of “one year” or “six months” as the case may be, 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 the interest was not paid or was part paid or the duty or interest was erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter.
Explanation 2.—For the removal of doubts, it is hereby declared that the interest under section 28AB 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 proper officer, but for this sub-section.
(2C) The provisions of sub-section (2B) shall not apply to any case where the duty or the interest 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 sub-section (1), the expression “relevant date” means -
(a) in a case where duty is not levied, or interest is not charged, the date on which the proper officer makes an order for the clearance of the goods;
(b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof;
(c) in a case where duty or interest has been erroneously refunded, the date of refund;
(d) in any other case, the date of payment of duty or interest.
———
1. Subs. by Act 22 of 1995, sec. 56, for section 28 (w.e.f. 26-5-1995).
2. Second and third provisos omitted by Act 32 of 2003, sec. 109 (w.e.f. 14-5-2003). Earlier second and third provisos were inserted by Act 10 of 2000, sec. 79 (w.e.f. 12-5-2000).
3. Ins. by Act 29 of 2006, sec. 22 (w.e.f. 13-7-2006)
4. Added by Act 29 of 2006, sec. 22 (w.e.f. 13-7-2006).
5. Ins. by Act 14 of 2001, sec. 103 (w.e.f. 11-5-2001).
*. Ed. The Finance Bill, 2001 received the assent of the President on 11th May, 2001.
Section 28A. Power not to recover duties not levied or short-levied as a result of general practice.
1[28A. Power not to recover duties 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 (including non-levy thereof) on any goods imported into, or exported from, India; and
(b) that such goods were, or are, liable—
(i) to duty, in case where according to the said practice the duty was not, or is not being, levied, or
(ii) to a higher amount of duty than what was, or is being, levied according to the said practice,
then, the Central Government may by notification in the Official Gazette, direct that the whole of the duty payable on such goods, or, as the case may be, the duty 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 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 paid on such goods, or, as the case may be, the duty 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 27:
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 4[Assistant Commissioner of Customs or Deputy Commissioner of Customs], in the form referred to in sub-section (1) of section 27, before the expiry of six months from the date of issue of the said notification.]
—————
1. Ins. by Act 25 of 1978, sec. 7 (w.e.f. 1-7-1978).
2. Section 28A re-numbered as sub-section (1), thereof by Act 29 of 1988, sec. 3 (w.e.f. 1-7-1988).
3. Subs. by Act 40 of 1991, sec. 11, for sub-section (2) (w.e.f. 20-9-1991). Earlier sub-section (2) was inserted by Act 29 of 1988, sec. 3 (w.e.f. 1-7-1988).
4. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 28AA. Interest on delayed payment of duty.
1[28AA. Interest on delayed payment of duty.—2[(1)] 3[Subject to the provisions contained in section 28AB, where a person,] chargeable with the duty determined under sub-section (2) of section 28, fails to pay such duty within three months from the date of such 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 28 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[, the 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[, the 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 or the interest becomes payable or ought to be paid 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. 57 (w.e.f. 26-5-1995).
2. Section 28AA renumbered as sub-section (1) thereof by Act 14 of 2001, sec. 104 (w.e.f. 11-5-2001).
3. Subs. by Act 33 of 1996, sec. 61, for “Where a person” (w.e.f. 28-9-1996).
4. Subs. by Act 10 of 2000, sec. 80, for certain words (w.e.f. 12-5-2000).
5. Subs. by Act 20 of 2002, sec. 120, for “eighteen per cent.” (w.e.f. 11-5-2002).
* Ed. The Finance Bill, 1995 received the assent of the President on 26th May, 1995.
6. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-4 (w.e.f. 28-12-2005).
7. Ins. by Act 14 of 2001, sec. 104 (w.e.f. 11-5-2001).
** Ed. The Finance Bill, 2001 received the assent of the President on 11th May, 2001.
Section 28AB. Interest on delayed payment of duty in special cases.
1[28AB. Interest on delayed payment of duty in special cases.—2[(1) Where any duty has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person who is liable to pay the duty as determined under sub-section (2), or has paid the duty under sub-section (2B) of section 28, 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 day 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 28, 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 151A, 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 or interest 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 theCommissioner (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. 62 (w.e.f. 28-9-1996).
2. Subs. by Act 14 of 2001, sec. 105, for sub-section (1) (w.e.f. 11-5-2001).
3. Subs. by Act 20 of 2002, sec. 121, for “eighteen per cent.” (w.e.f. 11-5-2002).
4. Subs. by Act 14 of 2001, sec. 105, for sub-section (2) (w.e.f. 11-5-2001).
* Ed. The Finance Bill, 2001 received the assent of the President on 11th May, 2001.
5. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-5 (w.e.f. 28-12-2005).
Section 28B. Duties collected from the buyer to be deposited with the central government.
1[28B. Duties 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 2[, National Tax Tribunal] or any court or in any other provision of this Act or the regulations made thereunder, 3[every person who is liable to pay duty under this Act and has collected any amount in excess of the duty assessed or determined or paid on any goods under this Act from the buyer of such goods] in any manner as representing duty of customs, shall forthwith pay the amount so collected to the credit of the Central Government.
4[(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 proper officer may serve on the person liable to pay such amount, a notice requiring him to show cause why he should not pay the amount, as specified in the notice to the credit of the Central Government.
(3) The proper officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined.
(4) The amount paid to the credit of the Central Government under sub-section (1) or sub-section (3) shall be adjusted against the duly payable by the person on finalisation of assessment or any other proceeding for determination of the duty relating to the goods referred to in sub-section (1).
(5) Where any surplus is left after the adjustment made 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 27 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 Customs for the refund of such surplus amount.]
—————
1. Ins. by Act 40 of 1991, sec. 12 (w.e.f. 20-9-1991).
2. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-6 (w.e.f. 28-12-2005).
3. Subs. by Act 10 of 2000, sec. 82, for certain words (w.r.e.f. 20-9-1991).
4. Subs. by Act 10 of 2000, sec. 82, for sub-section (2) (w.r.e.f. 20-9-1991).
Section 28C. 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 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.
Section 28D. Presumption that incidence of duty has been passed on to the buyer.
Every person who has paid the duty 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.
Section 28E. Definitions.
In this Chapter, unless the context otherwise requires,-
(a) “activity” means import or export;
(b) “advance ruling” means the determination, by the Authority, of a question of law or fact specified in the application regarding the liability to pay duty in relation to an activity which is proposed to be undertaken, by the applicant;
(c) “applicant” means a non-resident setting up a joint venture in India in collaboration with a non-resident or resident, or a resident setting up a joint venture in India in collaboration with a non-resident, making application;
(d) “application” means an application made to the Authority under sub-section (1) of section 28H;
(e) “Authority” means the Authority for Advance Rulings constituted under section 28F;
(f) “Chairperson” means the Chairperson of the Authority;
(g) “Member” means a Member of the Authority and includes the Chairperson; and
(h) “non-resident” shall have the meaning assigned to it in clause (30) of section 2 of the Income-tax Act, 1961.
Section 28F. Authority for advance rulings.
(1) The Central Government shall, by notification in the Official Gazette, constitute an Authority for giving advance rulings, to be called as “the Authority for Advance Rulings”.
(2) The Authority shall consist of the following Members appointed by the Central Government, namely:-
(a) a Chairperson, who is a retired Judge of the Supreme Court;
(b) an officer of the Indian Customs and Central Excise Service who is qualified to be a Member of the Board;
(c) an officer of the Indian Legal Service who is, or is qualified to be, an Additional Secretary to the Government of India.
(3) The salaries and allowances payable to, and the terms and conditions of service of, the Members shall be such as the Central Government may by rules determine.
(4) The Central Government shall provide the Authority with such officers and staff as may be necessary for the efficient exercise of the powers of the Authority under this Act.
(5) The office of the Authority shall be located in Delhi.
Section 28G. Vacancies, etc., not to invalidate proceedings.
No proceeding before, or pronouncement of advance ruling by, the Authority under this Chapter shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the constitution of the Authority.
Section 28H. Application for advance ruling.
(1) An applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and in such manner as may be prescribed, stating the question on which the advance ruling is sought.
(2) The question on which the advance ruling is sought shall be in respect of,-
(a) classification of goods under the Customs Tariff Act, 1975;
(b) applicability of a notification issued under sub-section (1) of section
25, having a bearing on the rate of duty;
(c) the principles to be adopted for the purposes of determination of value of the goods under the provisions of this Act.
1[(d) applicability of notifications issued in respect of duties under this Act, the Customs Tariff Act, 1975 (51 of 1975) and any duty chargeable under any other law for the time being in force in the same manner as duty of customs leviable under this Act.]
2[(e) determination of origin of the goods in terms of the rules notified under the Customs Tariff Act, 1975 (51 of 1975) and matters relating thereto.]
(3) The application shall be made in quadruplicate and be accompanied by a fee of two thousand five hundred rupees.
(4) An applicant may withdraw his application within thirty days from the date of the application.
————
* Chapter VB (containing sections 28E to 28M) ins. by Act 27 of 1999, sec. 103 (w.e.f. 11-5-1999).
1. Ins. by Act 32 of 2003, sec. 111 (w.e.f. 14-5-2003).
2. Ins. by Act 18 of 2005, sec. 67 (w.e.f. 13-5-2005).
Section 28-I. Procedure on receipt of application.
*28-I. Procedure on receipt of application.—(1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the Commissioner of Customs and, if necessary, call upon him to furnish the relevant records: Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the Commissioner of Customs.
(2) The Authority may, after examining the application and the records called for, by order, either allow or reject the application:
Provided that the Authority shall not allow the application except in the case of a resident applicant 1[***] where the question raised in the application is,-
(a) already pending in the applicant’s case before any officer of customs, the Appellate Tribunal or any Court;
(b) the same as in a matter already decided by the Appellate Tribunal or any Court:
Provided further that no application shall be rejected under this sub-section unless an opportunity has been given to the applicant of being heard: Provided also that where the application is rejected, reasons for such rejection shall be given in the order.
(3) A copy of every order made under sub-section (2) shall be sent to the applicant and to the Commissioner of Customs.
(4) Where an application is allowed under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority, pronounce its advance ruling on the question specified in the application.
(5) On a request received from the applicant, the Authority shall, before pronouncing its advance ruling, provide an opportunity to the applicant of being heard, either in person or through a duly authorised representative.
Explanation : For the purposes of this sub-section, “authorised representative” shall have the meaning assigned to it in sub-section (2) of section 146A.
(6) The Authority shall pronounce its advance ruling in writing within ninety days of the receipt of application.
(7) A copy of the advance ruling pronounced by the Authority, duly signed by the Members and certified in the prescribed manner shall be sent to the applicant and to the Commissioner of Customs, as soon as may be, after such pronouncement.
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* Chapter VB (containing sections 28E to 28M) ins. by Act 27 of 1999, sec. 103 (w.e.f. 11-5-1999).
1. The words “except in the case of a resident applicant” omitted by Act 20 of 2002, sec. 122 (w.e.f. 11-5-2002).
Section 28J. Applicability of advance ruling.
*28J. Applicability of advance ruling.— (1) The advance ruling pronounced by the Authority under section 28-I shall be binding only-
(a) on the applicant who had sought it;
(b) in respect of any matter referred to in sub-section (2) of section 28H;
(c) on the Commissioner of Customs, and the customs authorities subordinate to him, in respect of the applicant.
(2) The advance ruling referred to in sub-section (1) shall be binding as aforesaid unless there is a change in law or facts on the basis of which the advance ruling has been pronounced.
————
* Chapter VB (containing sections 28E to 28M) ins. by Act 27 of 1999, sec. 103 (w.e.f. 11-5-1999).
Section 28K. Advance ruling to be void in certain circumstances.
*28K. Advance ruling to be void in certain circumstances.—(1) Where the Authority finds, on a representation made to it by the Commissioner of Customs or otherwise, that an advance ruling pronounced by it under sub-section (6) of section 28-I has been obtained by the applicant by fraud or misrepresentation of facts, it may, by order, declare such ruling to be void abilities and thereupon all the provisions of this Act shall apply (after excluding the period beginning with the date of such advance ruling and ending with the date of order under this sub-section) to the applicant as if such advance ruling had never been made.
(2) A copy of the order made under sub-section (1) shall be sent to the applicant and the Commissioner of Customs.
—————
* Chapter VB (containing sections 28E to 28M) ins. by Act 27 of 1999, sec. 103 (w.e.f. 11-5-1999).
Section 28L. Powers of authority.
* POWERS OF AUTHORITY.(1) The Authority shall, for the purpose of exercising its powers regarding discovery and inspection, enforcing the attendance of any person and examining him on oath, issuing commissions and compelling production of books of account and other records, have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908).
(2) The Authority shall be deemed to be a civil court for the purposes of section 195, but not for the purposes of Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974), and every proceeding before the Authority 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.
—————
* Chapter VB (containing sections 28E to 28M) ins. by Act 27 of 1999, sec. 103 (w.e.f. 11-5-1999).
Section 28M. Procedure of authority.
*28M. Procedure of Authority. The Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure in all matters arising out of the exercise of its powers under this Act.
————
* Chapter VB (containing sections 28E to 28M) ins. by Act 27 of 1999, sec. 103 (w.e.f. 11-5-1999).
Section 29. Arrival of vessels and aircrafts in india.
(1) The person-in-charge of a vessel or an aircraft entering India from any place outside India shall not cause or permit the vessel or aircraft to call or land -
(a) for the first time after arrival in India; or
(b) at any time while it is carrying passengers or cargo brought in that vessel or aircraft; at any place other than a customs port or a customs airport, as the case may be.
(2) The provisions of sub-section (1) shall not apply in relation to any vessel or aircraft which is compelled by accident, stress of weather or other unavoidable cause to call or land at a place other than a customs port or customs airport but the person-in-charge of any such vessel or aircraft – (a) shall immediately report the arrival of the vessel or the landing of the aircraft to the nearest customs officer or the officer-in-charge of a police station and shall on demand produce to him the log book belonging to the vessel or the aircraft;
(b) shall not without the consent of any such officer permit any goods carried in the vessel or the aircraft to be unloaded from, or any of the crew or passengers to depart from the vicinity of, the vessel or the aircraft; and
(c) shall comply with any directions given by any such officer with respect to any such goods, and no passenger or member of the crew shall, without the consent of any such officer, leave the immediate vicinity of the vessel or the aircraft :
Provided that nothing in this section shall prohibit the departure of any crew or passengers from the vicinity of, or the removal of goods from, the vessel or aircraft where the departure or removal is necessary for reasons of health, safety or the preservation of life or property.
Section 30. Delivery of import manifest or import report.
(1) The person-in-charge of a vessel or an aircraft carrying imported goods shall, deliver to the proper officer, an import manifest, and in the case of a vehicle, an import report, within twenty-four hours after arrival thereof at a customs station in the case of a vessel and twelve hours after arrival in the case of an aircraft or a vehicle, in the prescribed form: Provided that,-
(a) in the case of a vessel or an aircraft, any such manifest may be delivered to the proper officer before the arrival of the vessel or aircraft;
(b) if the proper officer is satisfied that there was sufficient cause for not delivering the import manifest or import report or any part thereof within the time specified in this sub-section, he may accept it at any time thereafter.”.
(2) The person delivering the import manifest or import report shall at the foot thereof make and subscribe to a declaration as to the truth of its contents.
(3) If the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be amended or supplemented.
Section 31. Imported goods not to be unloaded from vessel until entry inwards granted.
(1) The master of a vessel shall not permit the unloading of any imported goods until an order has been given by the proper officer granting entry inwards to such vessel.
(2) No order under sub-section (1) shall be given until an import manifest has been delivered or the proper officer is satisfied that there was sufficient cause for not delivering it.
(3) Nothing in this section shall apply to the unloading of baggage accompanying a passenger or a member of the crew, mail bags, animals, perishable goods and hazardous goods.
Section 32. Imported goods not to be unloaded unless mentioned in import manifest or import report.
No imported goods required to be mentioned under the regulations in an import manifest or import report shall, except with the permission of the proper officer, be unloaded at any customs station unless they are specified in such manifest or report for being unloaded at that customs station.
Section 33. Unloading and loading of goods at approved places only.
Except with the permission of the proper officer, no imported goods shall be unloaded, and no export goods shall be loaded, at any place other than a place approved under clause (a) of section 8 for the unloading or loading of such goods.
Section 34. Goods not to be unloaded or loaded except under supervision of customs officer.
Imported goods shall not be unloaded from, and export goods shall not be loaded on, any conveyance except under the supervision of the proper officer:
Provided that the Board may, by notification in the Official Gazette, give general permission and the proper officer may in any particular case give special permission, for any goods or class of goods to be unloaded or loaded without the supervision of the proper officer.
Section 35. Restrictions on goods being water-borne.
No imported goods shall be water-borne for being landed from any vessel, and no export goods which are not accompanied by a shipping bill, shall be water-borne for being shipped, unless the goods are accompanied by a boat-note in the prescribed form:
Provided that the Board may, by notification in the Official Gazette, give general permission, and the proper officer may in any particular case give special permission, for any goods or any class of goods to be water-borne without being accompanied by a boat-note.
Section 36. Restrictions on unloading and loading of goods on holidays, etc.
No imported goods shall be unloaded from, and no export goods shall be loaded on, any conveyance on any Sunday or on any holiday observed by the Customs Department or on any other day after the working hours, except after giving the prescribed notice and on payment of the prescribed fees, if any :
Provided that no fees shall be levied for the unloading and loading of baggage accompanying a passenger or a member of the crew, and mail bags.
Section 37. Power to board conveyances.
The proper officer may, at any time, board any conveyance carrying imported goods or export goods and may remain on such conveyance for such period as he considers necessary.
Section 38. Power to require production of documents and ask questions.
For the purposes of carrying out the provisions of this Act, the proper officer may require the person-in-charge of any conveyance or animal carrying imported goods or export goods to produce any document and to answer any questions and thereupon such person shall produce such documents and answer such questions.
Section 39. Export goods not to be loaded on vessel until entry-out-wards granted.
The master of a vessel shall not permit the loading of any export goods, other than baggage and mail bags, until an order has been given by the proper officer granting entry-outwards to such vessel.
Section 40. Export goods not to be loaded unless duly passed by proper officer.
The person-in-charge of a conveyance shall not permit the loading at a customs station- (a) of export goods other than baggage and mail bags, unless a shipping bill or bill of export or a bill of transshipment, as the case may be, duly passed by the proper officer, has been handed over to him by the exporter;
(b) of baggage and mail bags, unless their export has been duly permitted by the proper officer.
Section 41. Delivery of export manifest or export report.
(1) The person-in-charge of a conveyance carrying export goods shall, before departure of the conveyance from a customs station, deliver to the proper officer in the case of a vessel or aircraft, an export manifest, and in the case of a vehicle, an export report, in the prescribed form:
1[***]
(2) The person delivering the export manifest or export report shall at the foot thereof make and subscribe to a declaration as to the truth of its contents.
(3) If the proper officer is satisfied that the export manifest or export report is in any way incorrect or incomplete and that there was no fraudulent intention, he may permit such manifest or report to be amended or supplemented.
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1. Proviso omitted by the Finance (No. 2) Act, 2004 (23 of 2004), sec. 66 (w.e.f. 10-9-2004). The proviso, before omission, stood as under:
“Provided that if the agent of the person-in-charge of the conveyance furnishes such security as the proper officer deems sufficient for duly delivering within seven days from the date of departure of the conveyance the export manifest or the export report, as the case may be, the proper officer may (subject to such rules as the Central Government may make in this behalf) accept such manifest or report within the aforesaid period.”
Section 42. No conveyance to leave without written order.
(1) The person-in-charge of a conveyance which has brought any imported goods or has loaded any export goods at a customs station shall not cause or permit the conveyance to depart from that customs station until a written order to that effect has been given by the proper officer.
(2) No such order shall be given until -
(a) the person-in-charge of the conveyance has answered the questions put to him under section 38;
(b) the provisions of section 41 have been complied with;
(c) the shipping bills or bills of export, the bills of transshipment, if any, and
such other documents as the proper officer may require have been delivered to him;
(d) all duties leviable on any stores consumed in such conveyance, and all charges and penalties due in respect of such conveyance or from the person-in-charge thereof have been paid or the payment secured by such guarantee or deposit of such amount as the proper officer may direct;
(e) the person-in-charge of the conveyance has satisfied the proper officer that no penalty is leviable on him under section 116 or the payment of any penalty that may be levied upon him under that section has been secured by such guarantee or deposit of such amount as the proper officer may direct;
(f) in any case where any export goods have been loaded without payment of export duty or in contravention of any provision of this Act or any other law for the time being in force relating to export of goods, – (i) such goods have been unloaded, or
(ii) where the 1Assistant Commissioner of Customs is satisfied that it is not practicable to unload such goods, the person-in charge of the conveyance has given an undertaking, secured by such guarantee or deposit of such amount as the proper officer may direct, for bringing back the goods to India.
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1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 43. Exemption of certain classes of conveyances from certain provisions of this chapter.
(1) The provisions of sections 30, 41 and 42 shall not apply to a vehicle which carries no goods other than the luggage of its occupants.
(2) The Central Government may, by notification in the Official Gazette, exempt the following classes of conveyances from all or any of the provisions of this Chapter -
(a) conveyances belonging to the Government or any foreign Government;
(b) vessels and aircraft which temporarily enter India by reason of any emergency.
Section 44. Chapter not to apply to baggage and postal articles.
The provisions of this Chapter shall not apply to (a) baggage, and
(b) goods imported or to be exported by post. CLEARANCE OF IMPORTED GOODS
Section 45. Restrictions on custody and removal of imported goods.
(1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the 1Commissioner of Customs until they are cleared for home consumption or are warehoused or are transshipped in accordance with the provisions of Chapter VIII.
(2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, -
(a) shall keep a record of such goods and send a copy thereof to the proper officer;
(b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer.
2(3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as the case may be, an import report to the proper officer under section 30 for the arrival of the conveyance in which the said goods were carried.
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1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
2. Ins. by Act 22 of 1995, sec. 58 (w.e.f. 26-5-1995).
Section 46. Entry of goods on importation.
(1) The importer of any goods, other than goods intended for transit or transshipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form :
Provided that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof
(a) to examine the goods in the presence of an officer of customs, or
(b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same.
(2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor.
(3) A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report as the case may be :
Provided that the 1Commissioner of Customs may in any special circumstances permit a bill of entry to be presented before the delivery of 2such report :
3Provided further that a bill of entry may be presented even before the delivery of such manifest if the vessel or the aircraft by which the goods have been shipped for importation into India is expected to arrive within thirty days from the date of such presentation.
(4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods.
(5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa.
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1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
2. Subs. by Act 25 of 1978, sec. 8, for “such manifest or report” (w.e.f. 11-7-1978).
3. Subs. by Act 33 of 1996, sec. 63, for the second proviso (w.e.f. 28-9-1996).
Section 47. Clearance of goods for home consumption.
1(1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption.
2[(2) Where the importer fails to pay the import duty under sub-section (1) 3[within 4[five days], excluding holidays] from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest 5[at such rate, not below 6[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 till the date of payment of said duty:
Provided that where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section.
7Provided further that if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section.
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1. Section 47 re-numbered as sub-section (1) of that section by Act 55 of 1991, sec. 3 (w.e.f. 23-12-1991).
2. Ins. by Act 55 of 1991, sec. 3 (w.e.f. 23-12-1991).
3. Subs. by Act 27 of 1999, sec. 105, for “within seven days” (w.e.f. 11-5-1999).
4. Subs. by Act 20 of 2002, sec. 123, for “two days” (w.e.f. 11-5-2002).
5. Subs. by Act 10 of 2000, sec. 83, for certain words (w.e.f. 12-5-2000).
6. Subs. by Act 20 of 2002, sec. 123, for “eighteen per cent.” (w.e.f. 11-5-2002).
7. Ins. by Act 22 of 1995, sec. 59 (w.e.f. 26-5-1995).
Section 48. Procedure in case of goods not cleared, warehoused, or transshipped within thirty days after unloading.
48. Procedure in case of goods not cleared, warehoused or transhipped within 1[thirty days] after unloading.—If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transshipped 2[within 3[thirty days]] from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof :
Provided that -
(a) animals, perishable goods and hazardous goods, may, with the permission of the proper officer, be sold at any time;
(b) arms and ammunition may be sold at such time and place and in such manner as the Central Government may direct.
Explanation : In this section, “arms” and “ammunition” have the meanings respectively assigned to them in the Arms Act, 1959 (54 of 1959).
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1. Subs. by Act 55 of 1991, sec. 4, for “two months” (w.e.f. 23-12-1991).
2. Subs. by Act 80 of 1985, sec. 4, for “within two months” (w.e.f. 27-12-1985).
3. Subs. by Act 55 of 1991, sec. 4, for “forty-five days” (w.e.f. 23-12-1991).
Section 49. Storage of imported goods in warehouse pending clearance.
Where in the case of any imported goods, whether dutiable or not, entered for home consumption, the Assistant Commissioner of Customs is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse, or in a private warehouse if facilities for deposit in a public warehouse are not available; but such goods shall not be deemed to be warehoused goods for the purposes of this Act, and accordingly the provisions of Chapter IX shall not apply to such goods.
————
1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 50. Entry of goods for exportation.
(1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form.
(2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its Contents.
Section 51. Clearance of goods for exportation.
Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation.
Section 52. Chapter not to apply to baggage, postal articles and stores.
The provisions of this Chapter shall not apply to
(a) baggage,
(b) goods imported by post, and
(c) stores.
Section 53. Transit of certain goods without payment of duty.
1[53. Transit of certain goods without payment of duty.—Subject to the provisions of section 11, any goods imported in a conveyance and mentioned in the import manifest or the import report, as the case may be, as for transit in the same conveyance to any place outside India or any customs station may be allowed to be so transited without payment of duty.
————
1. Subs. by Act 21 of 1998, sec. 101, for section 53 (w.e.f. 1-8-1998).
Section 54. Transshipment of certain goods without payment of duty.
1[54. Transhipment of goods without payment of duty.—(1) Where any goods imported into a customs station are intended for transshipment, a bill of transshipment shall be presented to the proper officer in the prescribed form.
2Provided that where the goods are being transshipped under an international treaty or bilateral agreement between the Government of India and Government of a foreign country, a declaration for transshipment instead of a bill of transshipment shall be presented to the proper officer in the prescribed form.
(2) Subject to the provisions of section 11, where any goods imported into a customs station are mentioned in the import manifest or the import report, as the case may be, as for transshipment to any place outside India, such goods may be allowed to be so transshipped without payment of duty.
(3) Where any goods imported into a customs station are mentioned in the import manifest or the import report, as the case may be, as for transshipment D (a) to any major port as defined in the Indian Ports Act, 1908 (15 of 1908), or the customs airport at Mumbai, Calcutta, Delhi or Chennai or any other customs port or customs airport which the Board may, by notification in the Official Gazette, specify in this behalf, or
(b) to any other customs station and the proper officer is satisfied that the goods are bona fide intended for transshipment to such customs station, the proper officer may allow the goods to be transshipped, without payment of duty, subject to such conditions as may be prescribed for the due arrival of such goods at the customs station to which transshipment is allowed.
————
1. Subs. by Act 21 of 1998, sec. 101, for section 54 (w.e.f. 1-8-1998).
2. Ins. by Act 27 of 1999, sec. 106 (w.e.f. 11-5-1999).
Section 55. Liability of duty on goods transited under section 53 or transshipped under section 54.
1[55. Liability of duty on goods transited under section 53 or transhipped under section 54. Where any goods are allowed to be transited under section 53 or transshipped under sub-section (3) of section 54 to any customs station, they shall, on their arrival at such station, be liable to duty and shall be entered in like manner as goods are entered on the first importation thereof and the provisions of this Act and any rules and regulations shall, so far as may be, apply in relation to such goods.
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1. Subs. by Act 21 of 1998, sec. 101, for section 55 (w.e.f. 1-8-1998).
Section 56. Transport of certain classes of goods subject to prescribed conditions.
Imported goods may be transported without payment of duty from one land customs station to another, and any goods may be transported from one part of India to another part through any foreign territory, subject to such conditions as may be prescribed for the due arrival of such goods at the place of destination.
Section 57. Appointing of public warehouses.
1At any warehousing station, the Assistant Commissioner of Customs may appoint public warehouses wherein dutiable goods may be deposited
2[***].
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1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
2. The words “without payment of duty” omitted by Act 55 of 1991, sec. 5 (w.e.f. 23-12-1991).
Section 58. Licensing of private warehouses.
(1) At any warehousing station, the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may license private warehouses wherein dutiable goods imported by or on behalf of the licensee, or any other imported goods in respect of which facilities for deposit in a public warehouse are not available, may be deposited 2[***].
(2) The 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may cancel a licence granted under sub-section (1)—
(a) by giving one month’s notice in writing to the licensee; or
(b) if the licensee has contravened any provision of this Act or the rules or regulations or committed breach of any of the conditions of the licence:
Provided that before any licence is cancelled under clause (b), the licensee shall be given a reasonable opportunity of being heard.
(3) Pending an enquiry whether a licence granted under sub-section (1) should be cancelled under clause (b) of sub-section (2), the Assistant Commissioner of Customs may suspend the licence.
————
1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
2. The words “without payment of duty” omitted by Act 55 of 1991, sec. 5 (w.e.f. 23-12-1991).
Section 59. Warehousing bond.
1(1) The importer of any goods specified 2[***]in sub-section (1) of section 61, which have been entered for warehousing and assessed to duty under section 17 or section 18 shall execute a bond binding himself in a sum equal to twice the amount of the duty assessed on such goods -
(a) to observe all the provisions of this Act and the rules and regulations in respect of such goods;
(b) to pay on or before a date specified in a notice of demand, -
(i) all duties, and interest, if any, payable under sub-section (2) of section 61;
(ii) rent and charges claimable on account of such goods under this Act, together with interest on the same from the date so specified 3[at such rate not below eighteen 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]; and
(c) to discharge all penalties incurred for violation of the provisions of this Act and the rules and regulations in respect of such goods.
(2) For the purposes of sub-section (1), the 4[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may permit an importer to enter into a general bond in such amount as the 4[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may approve in respect of the warehousing of goods to be imported by him within a specified period.
(3) A bond executed under this section by an importer in respect of any goods shall continue in force notwithstanding the transfer of the goods to any other person or the removal of the goods to another warehouse :
Provided that where the whole of the goods or any part thereof are transferred to another person, the proper officer may accept a fresh bond from the transferee in a sum equal to twice the amount of duty assessed on the goods transferred and thereupon the bond executed by the transferor shall be enforceable only for a sum mentioned therein less the amount for which a fresh bond is accepted from the transferee.
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1. Subs. by Act 55 of 1991, sec. 6, for sub-section (1) (w.e.f. 23-12-1991).
2. The words, brackets and letter “clause (a) of” omitted by Act 32 of 1994, sec. 60 (w.e.f. 13-5-1994).
3. Subs. by Act 10 of 2000, sec. 84, for certain words (w.e.f. 12-5-2000).
4. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 59A. Conditions For Warehousing Of Certain Goods.
1[59A. Conditions for warehousing of certain goods.—[Rep. by the Finance Act, 1994 (32 of 1994), sec. 60 (w.e.f. 13-5-1994).]]
—————
1. Ins. by Act 55 of 1991, sec. 7 (w.e.f. 23-12-1991).
Section 60. Permission for deposit of goods in a warehouse.
When the provisions of 1[section 59 2[***]] have been complied with in respect of any goods, the proper officer may make an order permitting the deposit of the goods in a warehouse, 3[***].
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1. Subs. by Act 55 of 1991, sec. 9, for “section 59” (w.e.f. 23-12-1991).
2. The words, figures and letters, “or section 59A” omitted by Act 32 of 1994, sec. 60 (w.e.f. 13-5-1994.)
3. The words “without payment of duty” omitted by Act 55 of 1991, sec. 5 (w.e.f. 23-12-1991).
Section 61. Period for which goods may remain warehoused.
(1) Any warehoused goods may be left in the warehouse in which they are deposited or in any warehouse to which they may be removed, -
(a) in the case of capital goods intended for use in any hundred per cent. export oriented undertaking, till the expiry of five years; 2[***]
3[(aa) in the case of goods other than capital goods intended for use in any hundred per cent. export-oriented undertaking, till the expiry of three years; and]
(b) in the case of any other goods, till the expiry of one year, after the date on which the proper officer has made an order under section 60 permitting the deposit of the goods in a warehouse : Provided that -
4(i) in the case of any goods which are not likely to deteriorate, the period specified in 5[clause (a) or clause (aa) or clause (b)] may, on sufficient cause being shown, be extended—
(A) in the case of such goods intended for use in any hundred per cent. export-oriented undertaking, by the Commissioner of Customs, for such period as he may deem fit; and
(B) in any other case, by the Commissioner of Customs, for a period not exceeding six months and by the Chief Commissioner of Customs for such further period as he may deem fit;]
(ii) in the case of any goods referred to in clause (b), if they are likely to deteriorate, the aforesaid period of one year may be reduced by the 6Commissioner of Customs to such shorter period as he may deem fit
Provided further that when the licence for any private warehouse is cancelled, the owner of any goods warehoused therein shall, within seven days from the date on which notice of such cancellation is given or within such extended period as the proper officer may allow, remove the goods from such warehouse to another warehouse or clear them for home consumption or exportation.
7where any warehoused goods-
(i) specified in sub-clause (a) of sub-section (1), remain in a warehouse beyond the period specified in that sub-section by reason of extension of the aforesaid period or otherwise, interest at such rate as is specified in section 47 shall be payable, on the amount of duty payable at the time of clearance of the goods in accordance with the provisions of section 15 on the warehoused goods, for the period from the expiry of the said warehousing period till the date of payment of duty on the warehoused goods;
(i) specified in 8[sub-clause (a) or sub-clause (aa)] of sub-section (1), remain in a warehouse beyond the period specified in that sub-section by reason of extension of the aforesaid period or otherwise, interest at such rate as is specified in section 47 shall be payable, on the amount of duty payable at the time of clearance of the goods in accordance with the provisions of section 15 on the warehoused goods, for the period from the expiry of the said warehousing period till the date of payment of duty on the warehoused goods;
(ii) specified in sub-clause (b) of sub-section (1), remain in warehouse beyond a period of 9[ninety days], interest shall be payable at such rate or rates not exceeding the rate specified in section 47, as may be fixed by the Board, on the amount of duty payable at the time of clearance of the goods in accordance with the provisions of section 15 on the warehoused goods, for the period from the expiry of the said 9[ninety days], till the date of payment of duty on the warehoused goods]:
Provided that the Board may, if it considers it necessary so to do in the public interest, by order and under circumstances of an exceptional nature, to be specified in such order, waive the whole or part of any interest payable under this section in respect of any warehoused goods :
Provided further that the Board may, if it is satisfied that it is necessary so to do in the public interest, by notification in the Official Gazette, specify the class of goods in respect of which no interest shall be charged under this section.
Explanation : For the purposes of this section, “hundred per cent export oriented undertaking” has the same meaning as in Explanation 2 to sub-section (1) of section 3 of the Central Excises and Salt Act, 1944 (1 of 1944).
—————
1. Subs. by Act 32 of 1994, sec. 60, for section 61 (w.e.f. 13-5-1994).
2. The word “and” omitted by Act 32 of 2003, sec. 113 (w.e.f. 14-5-2003).
3. Ins. by Act 32 of 2003, sec. 113 (w.e.f. 14-5-2003).
4. Subs. by Act 20 of 2002, sec. 124, for clause (i) (w.e.f. 11-5-2002).
5. Subs. by Act 32 of 2003, sec. 113, for “clause (a) or clause (b)” (w.e.f. 14-5-2003).
6. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
7. Subs. by Act 27 of 1999, sec. 107, for certain words (w.e.f. 11-5-1999).
8. Subs. by Act 32 of 2003, sec. 113, for “sub-clause (a)” (w.e.f. 14-5-2003).
9. Subs. by Act 32 of 2003, sec. 113, for “thirty days” (w.e.f. 14-5-2003). Earlier the words “thirty days” were substituted by Act 14 of 2001, sec.106, for the words “six months” (w.e.f. 1-6-2001).
*. Now the Central Excise Act, 1944 (1 of 1944).
Section 62. Control over warehoused goods.
(1) All warehoused goods shall be subject to the control of the proper officer.
(2) No person shall enter a warehouse or remove any goods there from without the permission of the proper officer.
(3) The proper officer may cause any warehouse to be locked with the lock of the Customs Department and no person shall remove or break such lock.
(4) The proper officer shall have access to every part of a warehouse and power to examine the goods therein.
Section 63. Payment of rent and warehouse charges.
(1) The owner of any warehoused goods shall pay to the warehouse-keeper rent and warehouse charges at the rates fixed under any law for the time being in force or where no rates are so fixed, at such rates as may be fixed by the 1Commissioner of Customs.
(2) If any rent or warehouse charges are not paid within ten days from the date when they became due, the warehouse-keeper may, after notice to the owner of the warehoused goods and with the permission of the proper officer cause to be sold (any transfer of the warehoused goods notwithstanding) such sufficient portion of the goods as the warehouse-keeper may select.
———
1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1999).
Section 64. Owner’s right to deal with warehoused goods.
With the sanction of the proper officer and on payment of the prescribed fees, the owner of any goods may either before or after warehousing the same -
(a) inspect the goods;
(b) separate damaged or deteriorated goods from the rest;
(c) sort the goods or change their containers for the purpose of preservation, sale, export or disposal of the goods;
(d) deal with the goods and their containers in such manner as may be necessary to prevent loss or deterioration or damage to the goods;
(e) show the goods for sale; or
(f) take samples of goods without entry for home consumption, and if the proper officer so permits, without payment of duty on such samples.
Section 65. Manufacture and other operations in relation to goods in a warehouse.
(1) With the sanction of the1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] and subject to such conditions and on payment of such fees as may be prescribed, the owner of any warehoused goods may carry on any manufacturing process or other operations in the warehouse in relation to such goods.
(2) Where in the course of any operations permissible in relation to any warehoused goods under sub-section (1), there is any waste or refuse, the following provisions shall apply :-
(a) if the whole or any part of the goods resulting from such operations are exported, import duty shall be remitted on the quantity of the warehoused goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods exported :
Provided that such waste or refuse is either destroyed or duty is paid on such waste or refuse as if it had been imported into India in that form;
(b) if the whole or any part of the goods resulting from such operations are cleared from the warehouse for home consumption, import duty shall be charged on the quantity of the warehoused goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods cleared for home consumption.
———
1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 66. Power to exempt imported materials used in the manufacture of goods in warehouse.
If any imported materials are used in accordance with the provisions of section 65 for the manufacture of any goods and the rate of duty leviable on the imported materials exceeds the rate of duty leviable on such goods, the Central Government, if satisfied that in the interests of the establishment or development of any domestic industry it is necessary so to do, may, by notification in the Official Gazette, exempt the imported materials from the whole or part of the excess rate of duty.
Section 67. Removal of goods from one warehouse to another.
The owner of any warehoused goods may, with the permission of the proper officer, remove them from one warehouse to another, 1[***] subject to such conditions as may be prescribed for the due arrival of the warehoused goods at the warehouse to which removal is permitted.
—————
1. The words “without payment of duty” omitted by Act 55 of 1991, sec. 5 (w.e.f. 23-12-1991).
Section 68. Clearance of warehoused goods for home consumption.
The importer of any warehoused goods may clear them for home consumption, if -
(a) a bill of entry for home consumption in respect of such goods has been presented in the prescribed form;
(b) the import duty leviable on such goods and all penalties, rent, interest and other charges payable in respect of such goods have been paid; and
(c) an order for clearance of such goods for home consumption has been made by the proper officer.
1[Provided that the owner of any warehoused goods may, at any time before an order for clearance of goods for home consumption has been made in respect of such goods, relinquish his title to the goods upon payment of rent, interest, other charges and penalties that may be payable in respect of the goods and upon such relinquishment, he shall not be liable to pay duty thereon.]
2[Provided further that the owner of any such warehoused goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force.]
—————
1. Ins. by Act 32 of 2003, sec. 114 (w.e.f. 14-5-2003).
2. Ins. by Act 21 of 2006, sec. 59 (w.e.f. 18-4-2006).
Section 69. Clearance of warehoused goods for exportation.
(1) Any Warehoused goods may be exported to a place outside India without payment of import duty if -
(a) a shipping bill or a bill of export has been presented in respect of such goods in the prescribed form;
(b) the export duty, penalties, rent, interest and other charges payable in respect of such goods have been paid; and
(c) an order for clearance of such goods for exportation has been made by the proper officer.
(2) Notwithstanding anything contained in sub-section (1), if the Central Government is of opinion that warehoused goods of any specified description are likely to be smuggled back into India, it may, by notification in the Official Gazette, direct that such goods shall not be exported to any place outside India without payment of duty or may be allowed to be so exported subject to such restrictions and conditions as may be specified in the notification.
Section 70. Allowance in case of volatile goods.
(1) When any warehoused goods to which this section applies are at the time of delivery from a warehouse found to be deficient in quantity on account of natural loss, the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may remit the duty on such deficiency.
(2) This section applies to such warehoused goods as the Central Government, having regard to the volatility of the goods and the manner of their storage, may, by notification in the Official Gazette, specify.
—————
1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 71. Goods not to be taken out of warehouse except as provided by this act.
No warehoused goods shall be taken out of a warehouse except on clearance for home consumption or re-exportation, or for removal to another warehouse, or as otherwise provided by this Act.
Section 72. Goods improperly removed from warehouse, etc.
(1) In any of the following cases, that is to say, -
(a) where any warehoused goods are removed from a warehouse in contravention of section 71;
(b) where any warehoused goods have not been removed from a warehouse at the expiration of the period during which such goods are permitted under section 61 to remain in a warehouse;
(c) where any warehoused goods have been taken under section 64 as samples without payment of duty;
(d) where any goods in respect of which a bond has been executed under 1[section 59 2[***]] and which have not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer,
(2) If any owner fails to pay any amount demanded under sub-section (1), the proper officer may, without prejudice to any other remedy, cause to be detained and sold, after notice to the owner (any transfer of the goods notwithstanding) such sufficient portion of his goods, if any, in the warehouse, as the said officer may select.
————
1. Subs. by Act 55 of 1991, sec. 9, for “section 59” (w.e.f. 23-12-1991).
2. The words, figures and letter “or section 59A” omitted by Act 32 of 1994, sec. 60 (w.e.f. 13-5-1994).
Section 73. Cancellation and return of warehousing bond.
When the whole of the goods covered by any bond executed under 1[section 59 2[***]] have been cleared for home consumption or exported or are otherwise duly accounted for, and when all amounts due on account of such goods have been paid, the proper officer shall cancel the bond as discharged in full, and shall on demand deliver it, so cancelled, to the person who has executed or is entitled to receive it.
—————
1. Subs. by Act 55 of 1991, sec. 9, for “section 59” (w.e.f. 23-12-1991).
2. The words, figures and letter “or section 59A” omitted by Act 32 of 1994, sec. 60 (w.e.f. 13-5-1994).
Section 74. Drawback allowable on re-export of duty-paid goods.
(1) When any goods capable of being easily identified which have been imported into India and upon which 1any duty has been paid on importation-
(i) are entered for export and the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51; or
(ii) are to be exported as baggage and the owner of such baggage, for the purpose of clearing it, makes a declaration of its contents to the proper officer under section 77 (which declaration shall be deemed to be an entry for export for the purposes of this section) and such officer makes an order permitting clearance of the goods for exportation; or
(iii) are entered for export by post under section 82 and the proper officer makes an order permitting clearance of the goods for exportation, ninety-eight per cent of such duty shall, except as otherwise hereinafter provided, be re-paid as drawback, if -
(a) the goods are identified to the satisfaction of the2 Assistant Commissioner of Customs as the goods which were imported; and
(b) the goods are entered for export within two years from the date of payment of duty on the importation thereof :
Provided that in any particular case the aforesaid period of two years may, on sufficient cause being shown, be extended by the Board by such further period as it may deem fit.
(2) Notwithstanding anything contained in sub-section (1), the rate of drawback in the case of goods which have been used after the importation thereof shall be such as the Central Government, having regard to the duration of use, depreciation in value and other relevant circumstances, may, by notification in the Official Gazette, fix.
3(3) The Central Government may make rules for the purpose of carrying out the provisions of this section and, in particular, such rules may – (a) provide for the manner in which the identity of goods imported in different consignments which are ordinarily stored together in bulk, may be established;
(b) specify the goods which shall be deemed to be not capable of being easily identified; and
(c) provide for the manner and the time within which a claim for payment of drawback is to be filed.
(4) For the purposes of this section – (a) goods shall be deemed to have been entered for export on the date with reference to which the rate of duty is calculated under section 16;
(b) in the case of goods assessed to duty provisionally under section 18, the date of payment of the provisional duty shall be deemed to be the date of payment of duty.
————
1. Subs. by Act 80 of 1985, sec. 6, for certain words (w.e.f. 27-12-1985).
2. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
3. Subs. by Act 22 of 1995, sec. 60, for sub-section (3) (w.e.f. 26-5-1995).
Section 75. Drawback on imported materials used in the manufacture of goods which are exported.
(1) Where it appears to the Central Government that in respect of goods of any class or description 1[manufactured, processed or on which any operation has been carried out in India] 2[, being goods which have been entered for export and in respect of which an order permitting the clearance and loading thereof for exportation has been made under section 51 by the proper officer], 3[or being goods entered for export by post under section 82 and in respect of which an order permitting clearance for exportation has been made by the proper officer], a drawback should be allowed of duties of customs chargeable under this Act on any imported materials of a class or description used in the 4[manufacture or processing of such goods or carrying out any operation on such goods], the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance with, and subject to, the rules made under sub-section (2):
5[Provided that no drawback shall be allowed under this sub-section in respect of any of the aforesaid goods which the Central Government may, by rules made under sub-section (2), specify, if the export value of such goods or class of goods is less than the value of the imported materials used in the 4[manufacture or processing of such goods or carrying out any operation on such goods] or class of goods, or is not more than such percentage of the value of the imported materials used in the 4[manufacture or processing of such goods or carrying out any operation on such goods] or class of goods as the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that where any drawback has been allowed on any goods under this sub-section and the sale proceeds in respect of such goods are not received by or on behalf of the exporter in India within the time allowed under the 6[Foreign Exchange Management Act, 1999 (42 of 1999)], such drawback shall be deemed never to have been allowed and the Central Government may, by rules made under sub-section (2), specify the procedure for the recovery or adjustment of the amount of such drawback].
7[(1A) Where it appears to the Central Government that the quantity of a particular material imported into India is more than the total quantity of like material that has been used in the goods 1[manufactured, processed or on which any operation has been carried out in India] and exported outside India, then, the Central Government may, by notification in the Official Gazette, declare that so much of the material as is contained in the goods exported shall, for the purpose of sub-section (1), be deemed to be imported material.]
(2) The Central Government may make rules for the purpose of carrying out the provisions of sub-section (1) and, in particular, such rules may provide—
8[(a) for the payment of drawback equal to the amount of duty actually paid on the imported materials used in the manufacture or processing of the goods or carrying out any operation on the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture or processing of export goods or carrying out any operation on export goods of that class or description either by manufacturers generally or by persons processing or carrying on any operation generally or by any particular manufacturer or particular person carrying on any process or other operation, and interest, if any, payable thereon;]
9[(aa) for specifying the goods in respect of which no drawback shall be allowed;
(ab) for specifying the procedure for recovery or adjustment of the amount of any drawback which had been allowed under sub-section (1) 10[or interest chargeable thereon];]
(b) for the production of such certificates, documents and other evidence in support of each claim of drawback as may be necessary;
(c) for requiring the 11[manufacturer or the person carrying on any process or other operation] to give access to every part of his manufactory to any officer of customs specially authorised in this behalf by the 12[Assistant Commissioner of Customs or Deputy Commissioner of Customs] to enable such authorised officer to inspect the processes of 13[manufacture, process or any other operation carried out] and to verify by actual check or otherwise the statements made in support of the claim for drawback.
10[(d) for the manner and the time within which the claim for payment of drawback may be filed;]
10[(3) The power to make rules conferred by sub-section (2) shall include the power to give drawback with retrospective effect from a date not earlier than the date of changes in the rates of duty on inputs used in the export goods.]
—————
1. Subs. by Act 22 of 1995, sec. 61, for “manufactured in India” (w.e.f. 26-5-1995).
2. Subs. by Act 11 of 1983, sec. 52, for “and exported to any place outside India” (w.e.f. 13-5-1983).
3. Ins. by Act 80 of 1985, sec. 7 (w.e.f. 27-12-1985).
4. Subs. by Act 22 of 1995, sec. 61, for “manufacture of such goods” (w.e.f. 26-5-1995).
5. Ins. by Act 49 of 1991, sec. 120 (w.e.f. 27-12-1991).
6. Subs. by Act 20 of 2002, sec. 125, for “Foreign Exchange Regulation Act, 1973 (46 of 1973)” (w.e.f. 11-5-2002).
7. Ins. by Act 25 of 1978, sec. 10 (w.e.f. 1-7-1978).
8. Subs. by Act 22 of 1995, sec. 61, for clause (a) (w.e.f. 26-5-1995).
9. Ins. by Act 49 of 1991, sec. 120 (w.e.f. 27-12-1991).
10. Ins. by Act 22 of 1995, sec. 61 (w.e.f. 26-5-1995).
11. Subs. by Act 22 of 1995, sec. 61, for “manufacturer” (w.e.f. 26-5-1995).
12. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
13. Subs. by Act 22 of 1995, sec. 61, for “manufacture” (w.e.f. 26-5-1995).
Section 75A. Interest on drawback.
1[75A. Interest on drawback.—(1) Where any drawback payable to a claimant under section 74 or section 75 is not paid within a 2[period of 3[one month]] from the date of filing a claim for payment of such drawback, there shall be paid to that claimant in addition to the amount of drawback, interest at the rate fixed under section 27A from the date after the expiry of the said 2[period of 3[one month]] till the date of payment of such drawback:
4[***]
5[(2) Where any drawback has been paid to the claimant erroneously or it becomes otherwise recoverable under this Act or the rules made thereunder, the claimant shall, within a period of two months from the date of demand, pay in addition to the said amount of drawback, interest at the rate fixed under section 28AB and the amount of interest shall be calculated for the period beginning from the date of payment of such drawback to the claimant till the date of recovery of such drawback.]
———-
1. Ins. by Act 22 of 1995, sec. 62 (w.e.f. 26-5-1995).
2. Subs. by Act 8 of 1999, sec. 2, for “period of three months” (w.e.f. 8-1-1999).
3. Subs. by Act 32 of 2003, sec. 115, for “two months” (w.e.f. 14-5-2003).
4. Proviso omitted by Act 32 of 2003, sec. 115 (w.e.f. 14-5-2003).
5. Subs. by Act 22 of 2007, sec. 98, for sub-section (2) (w.e.f. 11-5-2007). Earlier sub-section (2) was amended by Act 8 of 1999, sec. 2 (w.e.f. 8-1-1999). Sub-section (2), before substitution by Act 22 of 2007, stood as under:
Section 76. Prohibition and regulation of drawback in certain cases.
(1) Notwithstanding anything hereinbefore contained, no drawback shall be allowed -
1[***]
(b) in respect of any goods the market-price of which is less than the amount of drawback due thereon;
(c) where the drawback due in respect of any goods is less than 2fifty rupees.
(2) Without prejudice to the provisions of sub-section (1), if the Central Government is of opinion that goods of any specified description in respect of which drawback may be claimed under this Chapter are likely to be smuggled back into India, it may, by notification in the Official Gazette, direct that drawback shall not be allowed in respect of such goods or may be allowed subject to such restrictions and conditions as may be specified in the notification..
—————
1. Clause (a) omitted by Act 11 of 1983, sec. 53 (w.e.f. 13-5-1983).
2. Subs. by Act 11 of 1983, sec. 53, for “five rupees” (w.e.f. 13-5-1983).
Section 77. Declaration by owner of baggage.
The owner of any baggage shall, for the purpose of clearing it, make a declaration of its contents to the proper officer.
Section 78. Determination of rate of duty and tariff valuation in respect of baggage.
The rate of duty and tariff valuation, if any, applicable to baggage shall be the rate and valuation in force on the date on which a declaration is made in respect of such baggage under section 77.
Section 79. Bona fide baggage exempted from duty.
(1) The proper officer may, subject to any rules made under sub-section
(2), pass free of duty -
(a) any article in the baggage of a passenger or a member of the crew in respect of which the said officer is satisfied that it has been in his use for such minimum period as may be specified in the rules;
(b) any article in the baggage of a passenger in respect of which the said officer is satisfied that it is for the use of the passenger or his family or is a bona fide gift or souvenir; P
Provided that the value of each such article and the total value of all such articles does not exceed such limits as may be specified in the rules.
(2) the Central Government may make rules for the purpose of carrying out the provisions of this section and, in particular, such rules may specify -
(a) the minimum period for which any article has been used by a passenger or a member of the crew for the purpose of clause (a) of sub-section (1);
(b) the maximum value of any individual article and the maximum total value of all the articles which may be passed free of duty under, clause (b) of sub-section (1);
(c) the conditions (to be fulfilled before or after clearance) subject to which any baggage may be passed free of duty.
(3) Different rules may be made under sub-section (2) for different classes of persons.
Section 80. Temporary detention of baggage.
Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited and in respect of which a true declaration has been made under section 77, the proper officer may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving India 1[and if for any reason, the passenger is not able to collect the article at the time of his leaving India, the article may be returned to him through any other passenger authorised by him and leaving India or as cargo consigned in his name].
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1. Ins. by Act 22 of 1995, sec. 63 (w.e.f. 26-5-1995).
Section 81. Regulations in respect of baggage.
The Board may make regulations, -
(a) providing for the manner of declaring the contents of any baggage;
(b) providing for the custody, examination, assessment to duty and clearance of baggage;
(c) providing for the transit or transshipment of baggage from one customs station to another or to a place outside India.
Section 82. Label or declaration accompanying goods to be treated as entry.
In the case of goods imported or exported by post, any label or declaration accompanying the goods, which contains the description, quantity and value thereof, shall be deemed to be an entry for import or export, as the case may be, for the purposes of this Act.
Section 83. Rate of duty and tariff valuation in respect of goods imported or exported by post.
(1) The rate of duty and tariff value, if any, applicable to any goods imported by, post shall be the rate and valuation in force on the date on which the postal authorities present to the proper officer a list containing the particulars of such goods for the purpose of assessing the duty thereon :
Provided that if such goods are imported by a vessel and the list of the goods containing the particulars was presented before the date of the arrival of the vessel, it shall be deemed to have been presented on the date of such arrival.
(2) The rate of duty and tariff value, if any, applicable to any goods exported by post shall be the rate and valuation in force on the date on which the exporter delivers such goods to the postal authorities for exportation.
Section 84. Regulations regarding goods imported or to be exported by post.
The Board may make regulations providing for -
(a) the form and manner in which an entry may be made in respect of any specified class of goods imported or to be exported by post, other than goods which are accompanied by a label or declaration containing the description, quantity and value thereof;
(b) the examination, assessment to duty, and clearance of goods imported or to be exported by post;
(c) the transit or transshipment of goods imported by post, from one customs station to another or to a place outside India.
STORES
Section 85. Stores may be allowed to be warehoused without assessment to duty.
Where any imported goods are entered for warehousing and the importer makes and subscribes to a declaration that the goods are to be supplied as stores to vessels or aircrafts without payment of import duty under this Chapter, the proper officer may permit the goods to be warehoused without the goods being assessed to duty.
Section 86. Transit and transshipment of stores.
(1) Any stores imported in a vessel or aircraft may, without payment of duty, remain on board such vessel or aircraft while it is in India.
(2) Any stores imported in a vessel or aircraft may, with the permission of the proper officer, be transferred to any vessel or aircraft as stores for consumption therein as provided in section 87 or section 90.
Section 87. Imported stores may be consumed on board a foreign-going vessel or aircraft.
Any imported stores on board a vessel or aircraft (other than stores to which section 90 applies) may, without payment of duty, be consumed thereon as stores during the period such vessel or aircraft is a foreign-going vessel or aircraft.
Section 88. Application of section 69 and chapter x to stores.
The provisions of section 69 and Chapter X shall apply to stores (other than those to which section 90 applies) as they apply to other goods, subject to the modifications that-
(a) for the words “exported to any place outside India” or the word “exported”, wherever they occur, 1the words “taken on board any foreign-going vessel or aircraft as stores” shall be substituted;
(b) in the case of drawback on fuel and lubricating oil taken on board any foreign-going aircraft as stores, sub-section (1) of section 74 shall have effect as if for the words “ninety-eight per cent”, the words “the whole” were substituted.
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1. These words occur in sub-sections (1) and (2) of section 69, sub-section (1) of section 74 and sub-section (1) of section 75.
Section 89. Stores to be free of export duty.
Goods produced or manufactured in India and required as stores on any foreign-going vessel or aircraft may be exported free of duty in such quantities as the proper officer may determine, having regard to the size of the vessel or aircraft, the number of passengers and crew and the length of the voyage or journey on which the vessel or aircraft is about to depart.
Section 90. Concessions in respect of imported stores for the navy.
(1) Imported stores specified in sub-section (3) may without payment of duty be consumed on board a ship of the Indian Navy.
(2) The provisions of section 69 and Chapter X shall apply to stores specified in sub-section (3) as they apply to other goods, subject to the modifications that -
(a) for the words “exported to any place outside India” or the word “exported” wherever they occur,1 the words “taken on board a ship of the Indian Navy” shall be substituted;
(b) for the words “ninety-eight per cent” in sub-section (1) of section 74, the words “the whole” shall be substituted.
(3) The stores referred to in sub-sections (1) and (2) are the following :- (a) stores for the use of a ship of the Indian Navy;
(b) stores supplied free by the Government for the use of the crew of a ship of the Indian Navy in accordance with their conditions of service.
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1. These words occur in sub-sections (1) and (2) of section 69, sub-section (1) of section 74 and sub-section (1) of section 75.
Section 91. Chapter not to apply to baggage and stores.
The provisions of this Chapter shall not apply to baggage and stores.
Section 92. Entry of coastal goods.
(1) The consignor of any coastal goods shall make an entry thereof by presenting to the proper officer a bill of coastal goods in the prescribed form.
(2) Every such consignor while presenting a bill of coastal goods shall, at the foot thereof, make and subscribe to a declaration as to the truth of the contents of such bill.
Section 93. Coastal goods not to be loaded until bill relating thereto is passed, etc.
The master of a vessel shall not permit the loading of any coastal goods on the vessel until a bill relating to such goods presented under section 92 has been passed by the proper officer and has been delivered to the master by the consignor.
Section 94. Clearance of coastal goods at destination.
(1) The master of a vessel carrying any coastal goods shall carry on board the vessel all bills relating to such goods delivered to him under section 93 and shall, immediately on arrival of the vessel at any customs or coastal port, deliver to the proper officer of that port all bills relating to the goods which are to be unloaded at that port.
(2) Where any coastal goods are unloaded at any port, the proper officer shall permit clearance thereof if he is satisfied that they are entered in a bill of coastal goods delivered to him under sub-section (1).
Section 95. Master of a coasting vessel to carry an advice book.
(1) The master of every vessel carrying coastal goods shall be supplied by the Customs authorities with a book to be called the “advice book”.
(2) The proper officer at each port of call by such vessel shall make such entries in the advice book as he deems fit, relating to the goods loaded on the vessel at that port.
(3) The master of every such vessel shall carry the advice book on board the vessel and shall on arrival at each port of call deliver it to the proper officer at that port for his inspection.
Section 96. Loading and unloading of coastal goods at customs port or coastal port only.
No coastal goods shall be loaded on, or unloaded from, any vessel at any port other than a customs port or a coastal port appointed under section 7 for the loading or unloading of such goods.
Section 97. No coasting vessel to leave without written order.
(1) The master of a vessel which has brought or loaded any coastal goods at a customs or coastal port shall not cause or permit the vessel to depart from such port until a written order to that effect has been given by the proper officer.
(2) No such order shall be given until -
(a) the master of the vessel has answered the questions put to him under section 38;
(b) all charges and penalties due in respect of that vessel or from the master thereof have been paid or the payment secured by such guarantee or deposit of such amount as the proper officer may direct;
(c) the master of the vessel has satisfied the proper officer that no penalty is leviable on him under section 116 or the payment of any penalty that may be levied upon him under that section has been secured by such guarantee or deposit of such amount as the proper officer may direct;
(d) the provisions of this Chapter and any rules and regulations relating to coastal goods and vessels carrying coastal goods have been complied with.
Section 98. Application of certain provisions of this act to coastal goods, etc.
(1) Sections 33, 34, and 36 shall, so far as may be, apply to coastal goods as they apply to imported goods or export goods.
(2) Sections 37 and 38 shall, so far as may be, apply to vessels carrying coastal goods as they apply to vessel carrying imported goods or export goods.
(3) The Central Government may, by notification in the Official Gazette, direct that all or any of the other provisions of Chapter VI and the provisions of section 45 shall apply to coastal goods or vessels carrying coastal goods subject to such exceptions and modifications as may be specified in the notification.
Section 98A. Power to relax.
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 as may be specified in the notification, coastal goods or vessels carrying coastal goods from all or any of the provisions of this Chapter.
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1. Ins. by Act 22 of 1995, sec. 64 (w.e.f. 26-5-1995).
Section 99. Power to make rules in respect of coastal goods and coasting vessels.
The Central Government may make rules for -
(a) preventing the taking out of India of any coastal goods the export of which is dutiable or prohibited under this Act or any other law for the time being in force;
(b) preventing, in the case of a vessel carrying coastal goods as well as imported or export goods, the substitution of imported or export goods by coastal goods.
Section 100. Power to search suspected persons entering or leaving india, etc.
(1) If the proper officer has reason to believe that any person to whom this section applies has secreted about his person, any goods liable to confiscation or any documents relating thereto, he may search that person.
(2) This section applies to the following persons, namely :-
(a) any person who has landed from or is about to board, or is on board any vessel within the Indian customs waters;
(b) any person who has landed from or is about to board, or is on board a foreign-going aircraft;
(c) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India;
(d) any person not included in clauses (a), (b) or (c) who has entered or is about to leave India;
(e) any person in a customs area.
Section 101. Power to search suspected persons in certain other cases.
(1) Without prejudice to the provisions of section 100, if an officer of customs empowered in this behalf by general or special order of the 1Commissioner of Customs, has reason to believe that any person has secreted about his person any goods of the description specified in sub-section (2) which are liable to confiscation, or documents relating thereto, he may search that person.
(2) The goods referred to in sub-section (1) are the following : -
(a) gold;
(b) diamonds;
(c) manufactures of gold or diamonds;
(d) watches;
(e) any other class of goods which the Central Government may, by notification in the Official Gazette, specify.
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1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 102. Persons to be searched may require to be taken before gazetted officer of customs or magistrate.
(1) When any officer of customs is about to search any person under the provisions of section 100 or section 101, the officer of customs shall, if such person so requires, take him without unnecessary delay to the nearest gazetted officer of customs or magistrate.
(2) If such requisition is made, the officer of customs may detain the person making it until he can bring him before the gazetted officer of customs or the magistrate.
(3) The gazetted officer of customs or the magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) Before making a search under the provisions of section 100 or section 101, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.
(5) No female shall be searched by any one excepting a female.
Section 103. Power to screen or x-ray bodies of suspected persons for detecting secreted goods.
(1) Where the proper officer has reason to believe that any person referred to in sub-section (2) of section 100 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before the nearest magistrate.
(2) A magistrate before whom any person is brought under sub-section (1) shall, if he sees no reasonable ground for believing that such person has any such goods secreted inside his body, forthwith discharge such person.
(3) Where any such magistrate has reasonable ground for believing that such person has any such goods secreted inside his body and the magistrate is satisfied that for the purpose of discovering such goods it is necessary to have the body of such person screened or X-rayed, he may make an order to that effect.
(4) Where a magistrate has made any order under sub-section (3), in rotation to any person, the proper officer shall, as soon as practicable, take such person before a radiologist possessing qualifications recognized by the Central Government for the purpose of this section, and such person shall allow the radiologist to screen or X-ray his body.
(5) A radiologist before whom any person is brought under sub-section (4) shall, after screening or X-raying the body of such person, forward his report, together with any X-ray pictures taken by him, to the magistrate without unnecessary delay.
(6) Where on receipt of a report from a radiologist under sub-section (5) or otherwise, the magistrate is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing out such goods be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction :
Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner.
(7) Where any person is brought before a magistrate under this section, such magistrate may for the purpose of enforcing the provisions of this section order such person to be kept in such custody and for such period as he may direct.
(8) Nothing in this section shall apply to any person referred to in sub-section (1), who admits that goods liable to confiscation are secreted inside his body, and who voluntarily submits himself for suitable action being taken for bringing out such goods.
Explanation : For the purposes of this section, the expression “registered medical practitioner” means any person who holds a qualification granted by an authority specified in the Schedule to the Indian Medical Degrees Act, 1916 (7 of 1916), or notified under section 3 of that Act, or by an authority specified in any of the Schedules to the Indian Medical Council Act, 1956 (102 of 1956).
Section 104. Power to arrest.
1 (1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under section 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate.
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the 142 Code of Criminal Procedure, 1898 (5 of 1898).
(4) Notwithstanding anything contained in the 143 Code of Criminal Procedure, 1898 (5 of 1898)2, an offence under this Act shall not be cognizable.
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1. Subs. by Act 29 of 2006, sec. 24, for sub-section (1) (w.e.f. 13-7-2006). Sub-section (1), before substitution, stood as under:
“(1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under section 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.”.
2. See now the Code of Criminal Procedure, 1973 (2 of 1974).
Section 105. Power To Search Premises
(1) If the 1Assistant Commissioner of Customs, or in any area adjoining the land frontier or the coast of India an officer of customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things.
(2) The provisions of the 145 2Code of Criminal Procedure, 1898 (5 of 1898), relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub-section (5) of section 165 of the said Code shall have effect as if for the word “Magistrate”, wherever it occurs, the words 3[“Commissioner of Customs”] were substituted.
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1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
2.See now the Code of Criminal Procedure, 1973 (2 of 1974).
3. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 106. Power to stop and search conveyances.
(1) Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian customs waters has been, is being, or is about to be, used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and -
(a) rummage and search any part of the aircraft, vehicle or vessel;
(b) examine and search any goods in the aircraft, vehicle or vessel or on the animal;
(c) break open the lock of any door or package for exercising the powers conferred by clauses (a) and (b), if the keys are withheld.
(2) Where for the purposes of sub-section (1) – (a) it becomes necessary to stop any vessel or compel any aircraft to land, it shall be lawful for any vessel or aircraft in the service of the Government while flying her proper flag and any authority authorised in this behalf by the Central Government to summon such vessel to stop or the aircraft to land, by means of an international signal, code or other recognized means, and thereupon, such vessel shall forthwith stop or such aircraft shall forthwith land; and if it fails to do so, chase may be given thereto by any vessel or aircraft as aforesaid and if after a gun is fired as a signal the vessel fails to stop or the aircraft fails to land, it may be fired upon;
(b) it becomes necessary to stop any vehicle or animal, the proper officer may use all lawful means for stopping it, and where such means fail, the vehicle or animal may be fired upon.
Section 106A. Power to inspect.
1[106A. Power to inspect.—Any proper officer authorised in this behalf by the 2[Commissioner of Customs] may, for the purpose of ascertaining whether or not the requirements of this Act have been complied with at any reasonable time, enter any place intimated under Chapter IVA or Chapter IVB, as the case may be, and inspect the goods kept or stored therein and require any person found therein, who is for the time being in charge thereof, to produce to him for his inspection the accounts maintained under the said Chapter IVA or Chapter IVB, as the case may be, and to furnish to him such other information as he may reasonably require for the purpose of ascertaining whether or not such goods have been illegally imported, exported or are likely to be illegally exported.]
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1. Ins. by Act 12 of 1969, sec. 3 (w.r.e.f. 3-1-1969).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 107. Power to examine persons.
Any officer of customs empowered in this behalf by general or special order of the 1Commissioner of Customs may, during the course of any enquiry in connection with the smuggling of any goods, -
(a) require any person to produce or deliver any document or thing relevant to the enquiry;
(b) examine any person acquainted with the facts and circumstances of the case.
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1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 108. Power to summon persons to give evidence and produce documents.
1(1) Any gazetted officer of customs 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 in connection with the smuggling of any goods.
(2) 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.
(3) 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 produce such documents and other things as may be required :
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.
(4) 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).
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1. Subs. by Act 29 of 2006, sec. 25, for sub-section (1) (w.e.f. 13-7-2006). Sub-section (1), before substitution, stood as under:
“(1) Any gazetted officer of custom 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 in connection with the smuggling of any goods.”.
Section 109. Power to require production of order permitting clearance of goods imported by land.
Any officer of customs appointed for any area adjoining the land frontier of India and empowered in this behalf by general or special order of the Board, may require any person in possession of any goods which such officer has reason to believe to have been imported, into India by land, to produce the order made under section 47 permitting clearance of the goods :
Provided that nothing in this section shall apply to any imported goods passing from a land frontier to a land customs station by a route appointed under clause (c) of section 7.
Section 110. Seizure of goods, documents and things.
(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods :
Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.
1(1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified.
(1B) Where any goods, being goods specified under sub-section (1A), have been seized by a proper officer under sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of -
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or
(c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.
(1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application.
(2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized :
Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the 2Commissioner of Customs for a period not exceeding six months.
(3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act.
(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts there from in the presence of an officer of customs.
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1. Ins. by Act 80 of 1985, sec. 8 (w.e.f. 27-12-1985).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 110A. Seizure of goods, documents and things.
1[110A. Provisional release of goods, documents and things seized pending adjudication.—Any goods, documents or things seized under section 110, may, pending the order of the adjudicating officer, be released to the owner on taking a bond from him in the proper form with such security and conditions as the Commissioner of Customs may require.]
1. Ins. by Act 29 of 2006, sec. 26 (w.e.f. 13-7-2006).
Section 111. Confiscation of improperly imported goods, etc.
The following goods brought from a place outside India shall be liable to confiscation :-
(a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods;
(b) any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods;
(c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port;
(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;
(e) any dutiable or prohibited goods found concealed in any manner in any conveyance;
(f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned;
(g) any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45;
(h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34;
(i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof;
(j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission;
(k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein;
(l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77;
(m)1[any goods which do not correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 2[in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54];
(n) any dutiable or prohibited goods transisted with or without transhipment or attempted to be so transited in contravention of the provisions of Chapter VIII;
(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;
3[(p) any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.]
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1. Subs. by Act 36 of 1973, sec. 2, for certain words (w.e.f. 1-9-1973).
2. Subs. by Act 27 of 1999, sec. 108, for “in respect thereof;” (w.e.f. 11-5-1999).
3. Ins. by Act 12 of 1969, sec. 4 (w.r.e.f. 3-1-1969).
Section 112. Penalty for improper importation of goods, etc.
Any person, – (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or
(b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable,-
(i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty 1not exceeding five times the value of the goods or one thousand rupees, whichever is the greater;
2(ii) in the case of dutiable goods, other than prohibited goods, to a penaltynot exceeding five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater;
(iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the greater;
(iv) in the case of goods falling both under clauses (i) and (iii), to a penalty not exceeding five times the value of the goods or five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the highest;
(v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding five times the duty sought to be evaded on such goods or five times the difference between the declared value and the value thereof or one thousand rupees, whichever is the highest.
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1. Subs. by Act 14 of 2001, sec. 107, for certain words (w.e.f. 11-5-2001).
2. Ins. by Act 36 of 1973, sec. 3 (w.e.f. 1-9-1973).
Section 113. Confiscation of goods attempted to be improperly exported, etc.
The following export goods shall be liable to confiscation :- (a) any goods attempted to be exported by sea or air from any place other than a customs port or a customs airport appointed for the loading of such goods;
(b) any goods attempted to be exported by land or inland water through any route other than a route specified in a notification issued under clause
(c) of section 7 for the export of such goods;
(c) any 1[***]dutiable or prohibited goods brought near the land frontier or the
coast of India or near any bay, gulf, creek or tidal river for the purpose of being exported from a place other than a land customs station or a customs port appointed for the loading of such goods;
(d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;
(e) any 2[***]dutiable or prohibited goods found concealed in a package which is brought within the limits of a customs area for the purpose of exportation;
(f) any 2[***]dutiable or prohibited goods which are loaded or attempted to be loaded in contravention of the provisions of section 33 or section 34;
(g)2[***] any dutiable or prohibited goods loaded or attempted to be loaded on
any conveyance, or water-borne, or attempted to be water-borne for being loaded on any vessel, the eventual destination of which is a place outside India, without the permission of the proper officer;
(h) any2[***] dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77;
3(i) any dutiable or prohibited goods or goods entered for exportation under claim for drawback which do not correspond in any material particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof;
4(ii) any goods entered for exportation under claim for drawback which do not correspond in any material particular with any information furnished by the exporter or manufacturer under this Act in relation to the fixation of rate of drawback under section 75;
(j) any goods on which import duty has not been paid and which are entered for exportation under a claim for drawback under section 74;
(k) any goods cleared for exportation5 under a claim for drawback which are not loaded for exportation on account of any willful act, negligence or default of the exporter, his agent or employee, or which after having been loaded for exportation are unloaded without the permission of the proper officer;
6(l) any specified goods in relation to which any provisions of Chapter IVB or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.
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1. The words “dutiable or prohibited” omitted by Act 32 of 2003, sec. 116 (w.e.f. 14-5-2003).
2. The words “dutiable or prohibited” omitted by Act 32 of 2003, sec. 116 (w.e.f. 14-5-2003).
3. Subs. by Act 32 of 2003, sec. 116, for clause (i) (w.e.f. 14-5-2003).
4. Ins. by Act 49 of 1991, sec. 120 (w.r.e.f. 1-4-1991).
5. The words “under a claim for drawback” omitted by Act 32 of 2003, sec. 116 (w.e.f. 14-5-2003).
6. Ins. by Act 12 of 1969, sec. 5 (w.r.e.f. 3-1-1969).
Section 114. Penalty for attempt to export goods improperly, etc.
Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable,—
(i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty 1[2[not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act]], whichever is the greater;
(ii) in the case of dutiable goods, other than prohibited goods, to a penalty 3[not exceeding the duty sought to be evaded or five thousand rupees], whichever is the greater;
4[(iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater.]
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1. Subs. by Act 14 of 2001, sec. 108, for “not exceeding five times the value of the goods or one thousand rupees” (w.e.f. 11-5-2001).
2. Subs. by Act 32 of 2003, sec. 117, for “not exceeding the value of the goods or five thousand rupees” (w.e.f. 14-5-2003).
3. Subs. by Act 14 of 2001, sec. 108, for “not exceeding five times the duty sought to be evaded on such goods or one thousand rupees” (w.e.f. 11-5-2001).
4. Subs. by Act 32 of 2003, sec. 117, for clause (iii) (w.e.f. 14-5-2003).
Section 114A. Penalty For Short-Levy Or Non-Levy Of Duty In Certain Cases.
1[114A. Penalty for short-levy or non-levy of duty in certain cases.—Where the duty has not been levied or has not been short-levied or the interest has not been charged or paid or has been part paid or the duty or interest has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts, the person who is liable to pay the duty or interest, as the case may be, as determined under sub-section (2) of section 28 shall, also be liable to pay a penalty equal to the duty or interest so determined:]
2[Provided that where such duty or interest, as the case may be, as determined under sub-section (2) of section 28, and the interest payable thereon under section 28AB, is paid within thirty days from the date of the communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the duty or interest, as the case may be, so determined:
Provided further that the benefit of reduced penalty under the first proviso shall be available subject to the condition that 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 or interest 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 or interest as reduced or increased, as the case may be, shall be taken into account:
Provided also that where the duty or interest 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 the duty or the interest so increased, along with the interest payable thereon under section 28AB, and twenty-five per cent. of the consequential increase in penalty have also been paid within thirty days of the communication of the order by which such increase in the duty or interest takes effect:
Provided also that where any penalty has been levied under this section, no penalty shall be levied under section 112 or section 114.
Explanation.—For the removal of doubts, it is hereby declared that—
(i) the provisions of this section shall also apply to cases in which the order determining the duty or interest under sub-section (2) of section 28 relates to notices issued prior to the date on which the Finance Act, 2000 receives the assent of the President*;
(ii) 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. 64 (w.e.f. 28-9-1996).
2. Subs. by Act 10 of 2000, sec. 85, for the first and second provisos (w.e.f. 12-5-2000).
*. Ed. The Finance Act, 2000 received the assent of the President on 12th May, 2000.
Section 114AA. penalty for use of false and incorrect material.
1[114AA. Penalty for use of false and incorrect material.—If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods.]
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1. Ins. by Act 29 of 2006, sec. 27 (w.e.f. 13-7-2006).
Section 115. Confiscation of conveyances.
(1) The following conveyances shall be liable to confiscation :-
(a) any vessel which is or has been within the Indian customs waters, any aircraft which is or has been in India, or any vehicle which is or has been in a customs area, while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods;
(b) any conveyance from which the whole or any part of the goods is thrown overboard, staved or destroyed so as to prevent seizure by an officer of customs;
(c) any conveyance which having been required to stop or land under section 106 fails to do so, except for good and sufficient cause;
(d) any conveyance from which any warehoused goods cleared for exportation, or any other goods cleared for exportation under a claim for drawback, are unloaded, without the permission of the proper officer;
(e) any conveyance carrying imported goods which has entered India and is afterwards found with the whole or substantial portion of such goods missing, unless the master of the vessel or aircraft is able to account for the loss of, or deficiency in, the goods.
(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal : 1[***]:
Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods, as the case may be.
Explanation : In this section, “market price” means market price at the date when the goods are seized.
———
1. Certain words omitted by Act 26 of 1988, sec. 79 (w.e.f. 13-5-1988).
Section 116. Penalty for not accounting for goods.
If any goods loaded in a conveyance for importation into India, or any goods transshipped under the provisions of this Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India, or if the quantity unloaded is short of the quantity to be unloaded at that destination, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs], the person-in-charge of the conveyance shall be liable, -
(a) in the case of goods loaded in a conveyance for importation into India or goods transshipped under the provisions of this Act, to a penalty not exceeding twice the amount of duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been imported;
(b) in the case of coastal goods, to a penalty not exceeding twice the amount of export duty that would have been chargeable on the goods not unloaded or the deficient goods, as the case may be, had such goods been exported.
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1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 117. Penalties for contravention, etc., not expressly mentioned.
Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision, of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding 1ten thousand rupees.
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1. Subs. by Act 27 of 1999, sec. 109, for “one thousand rupees” (w.e.f. 11-5-1999).
Section 118. Confiscation of packages and their contents.
(a) Where any goods imported in a package are liable to confiscation, the package and any other goods imported in that package shall also be liable to confiscation.
(b) Where any goods are brought in a package within the limits of a customs area for the purpose of exportation and are liable to confiscation, the package and any other goods contained therein shall also be liable to confiscation.
Section 119. Confiscation of goods used for concealing smuggled goods.
Any goods used for concealing smuggled goods shall also be liable to confiscation.
Explanation : In this section, “goods” does not include a conveyance used as a means of transport.
Section 120. Confiscation of smuggled goods notwithstanding any change in form, etc.
(1) Smuggled goods may be confiscated notwithstanding any change in their form.
(2) Where smuggled goods are mixed with other goods in such manner that the smuggled goods cannot be separated from such other goods, the whole of the goods shall be liable to confiscation :
Provided that where the owner of such goods proves that he had no knowledge or reason to believe that they included any smuggled goods, only such part of the goods the value of which is equal to the value of the smuggled goods shall be liable to confiscation.
Section 121. Confiscation of sale-proceeds of smuggled goods.
Where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale-proceeds thereof shall be liable to confiscation. .
Section 122. Adjudication of confiscations and penalties.
In every case under this Chapter in which 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 1[Commissioner of Customs] or a 2[Deputy Commissioner of Customs];
3[(b) where the value of goods liable to confiscation does not exceed 4[two lakh] rupees, by an 2[Assistant Commissioner of Customs or Deputy Commissioner of Customs];]
5[(c) where the value of the goods liable to confiscation does not exceed 6[ten thousand] rupees, by a gazetted officer of customs lower in rank than an 2[Assistant Commissioner of Customs or Deputy Commissioner of Customs].]
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1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
2. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
3. Subs. by Act 25 of 1978, sec. 12, for clause (b) (w.e.f. 1-7-1978).
4. Subs. by Act 32 of 2003, sec. 118, for “fifty thousand” (w.e.f. 14-5-2003). Earlier the words “fifty thousand” were substituted by Act 18 of 1992, sec. 109(3), for the words “twenty five thousand” (w.e.f. 14-5-1992).
5. Subs. by Act 25 of 1978, sec. 12, for clause (c) (w.e.f. 1-7-1978).
6. Subs. by Act 32 of 2003, sec. 118, for “two thousand five hundred” (w.e.f. 14-5-2003).
Section 122A. Adjudication procedure.
1[122A. Adjudication procedure.—(1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires.
(2) The adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during the proceeding.]
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1. Ins. by Act 23 of 2004, sec. 67 (w.e.f. 10-9-2004).
Section 123. Burden of proof in certain cases.
1(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be -
(a) in a case where such seizure is made from the possession of any person, -
(i) on the person from whose possession the goods were seized; and
(ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person;
(b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.
(2) This section shall apply to gold, 2and manufactures thereof, watches,
and any other class of goods which the Central Government may by notification in the Official Gazette specify.
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1. Subs. by Act 36 of 1973, sec. 4, for sub-section (1) (w.e.f. 1-9-1973).
2. Subs. by Act 40 of 1989, sec. 2, for “diamonds, manufactures of gold or diamonds” (w.e.f. 26-10-1989).
Section 124. Issue Of Show Cause Notice Before Confiscation Of Goods, Etc.
No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person -
(a) is given a notice in 1[writing with the prior approval of the officer of customs not below the rank of a Deputy Commissioner of Customs, informing] him of the grounds on which it is proposed to confiscate the goods or to impose a penalty;
(b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and
(c) is given a reasonable opportunity of being heard in the matter :
Provided that the notice referred to in clause (a) and the representation referred to in clause (b) may, at the request of the person concerned be oral.
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1. Subs. by Act 29 of 2006, sec. 28, for “writing informing” (w.e.f. 13-7-2006).
Section 125. Option to pay fine in lieu of confiscation.
(1) Whenever confiscation of any goods is authorised by this act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods 1or, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit :
Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon.
2(2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the person referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods.
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1. Ins. by Act 80 of 1985, sec. 9 (w.e.f. 27-12-1985).
2. Subs. by Act 80 of 1985, sec. 9, for sub-section (2) (w.e.f. 27-12-1985).
Section 126. On confiscation, property to vest in central government.
(1) When any goods are confiscated under this Act, such goods shall thereupon vest in the Central Government.
(2) The officer adjudging confiscation shall take and hold possession of the confiscated goods.
Section 127. Award of confiscation or penalty by customs officers not to interfere with other punishments.
The award of any confiscation or penalty under this Act by an officer of customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under the provisions of Chapter XVI of this Act or under any other law.
Section 127A. Definition.
In this Chapter, unless the context otherwise requires, -
(a) “Bench” means a Bench of the Settlement Commission;
2[(b) “case” means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty, pending before an adjudicating authority on the date on which an application under sub-section (1) of section 127B 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;
(c) “Chairman” means the Chairman of the Settlement Commission;
(d) “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;
(e) “Member” means a Member of the Settlement Commission and includes the Chairman and the Vice-Chairman;
(f) “Settlement Commission” means the Customs and Central Excise Settlement Commission constituted under section 32 of the Central Excise Act, 1944 (1 of 1944); and
(g) “Vice-Chairman” means a Vice-Chairman of the Settlement Commission.
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1. Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998).
2. Subs. by Act 22 of 2007, sec. 100, for clause (b) (w.e.f. 1-6-2007). Clause (b),
Section 127B. Application for settlement of cases.
1[127B. Application for settlement of cases.—2[(1) Any importer, exporter or any other person (hereinafter referred to as the applicant in this Chapter) 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 specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification, under-valuation or inapplicability of exemption notification but excluding the goods not included in the entry made under this Act and 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 a bill of entry, or a shipping bill, in respect of import or export of such goods, as the case may be, and in relation to such bill of entry or shipping bill, a show cause notice has been issued to him by the proper officer;
(b) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and
(c) the applicant has paid the additional amount of customs duty accepted by him along with interest due under section 28AB:
Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending in the Appellate Tribunal or any court:
Provided also that no application under this sub-section shall be made in relation to goods to which section 123 applies or to goods in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) has been committed:
Provided also that no application under this sub-section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975).
(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 127C has not been made before the said date, 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 dutiable goods, books of account, other documents or any sale proceeds of the goods have been seized under section 110, the applicant 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 specified by rules.
(4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant.]
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1.Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998).
2. Subs. by Act 22 of 2007, sec. 101, for sub-section (1) (w.e.f. 1-6-2007). Earlier sub-section (1) was amended by Act 10 of 2000, sec. 86 (w.e.f. 12-5-2000). Sub-section (1) before substitution by Act 22 of 2007, stood as under:
“(1) Any importer, exporter or any other person (hereinafter in this Chapter referred to as the applicant) may, at any stage of a case relating to him, make an application in such form and in such manner as may be specified by rules, and containing a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification or otherwise of goods, to the Settlement Commission to have the case settled and 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 a bill of entry, or a shipping bill, in respect of import or export of goods, as the case may be, and in relation to such bill of entry or shipping bill or a show cause notice has been issued to him by the proper officer;
(b) the additional amount of duty accepted by the applicant in his 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 in the Appellate Tribunal or any court:
Provided also that no application under this sub-section shall be made in relation to goods to which section 123 applies or to goods in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), has been committed:
Provided also that no application under this sub-section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975).”.
Section 127C. Procedure receipt of application under section 127b.
1[2[127C. Procedure on receipt of an application under section 127B.—(1) On receipt of an application under section 127B, 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 Customs 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 Customs 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 Customs 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 Customs 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 Customs 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 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 127B had been made.
(7) Subject to the provisions of section 32A of the Central Excise Act, 1944
(1 of 1944), 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 of the Central Excise Act, 1944(1 of 1944) 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 127B.
(9) Where any duty, interest, fine and penalty payable in pursuance of an order under sub-section (5) is not paid by the applicant 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 proper officer having jurisdiction over the applicant in accordance with the provisions of section 142.
(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 proper 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 XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998)./
2.Subs. by Act 22 of 2007, sec. 102, for section 127C (w.e.f. 1-6-2007). Section 127C, before substitution by Act 22 of 2007,
Section 127D. 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 the revenue it is necessary so to do, it may, by order, attach provisionally any property belonging to the applicant in such manner as may be specified by rules.
(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 Cover anent for which such attachment is made are discharged by the applicant and evidence to that effect is submitted to the Settlement Commission.
————
* Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f. 1-8-1998).
Section 127E. Power of settlement commission to reopen completed proceedings.
1If the 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 127B 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 under sub-section (1) of section 127B.
2[Provided further that no proceeding shall be reopened by the Settlement Commission under this section in a case where an application under section 127B is made on or after the 1st day of June, 2007.]]
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1.Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998).
2.Ins. by Act 22 of 2007, sec. 103 (w.e.f. 1-6-2007).
Section 127F. Power and procedure of settlement commission.
1[127F. Power and procedure of Settlement Commission.—(1) In addition to the powers conferred on the Settlement Commission under Chapter V of the Central Excise Act, 1944 (1 of 1944), it shall have all the powers which are vested in an officer of the customs under this Act or the rules made thereunder.
(2) Where an application made under section 127B has been allowed to be proceeded with under section 127C, the Settlement Commission shall, until an order is passed under sub-section 2[(5)] of section 127C, 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 officer of customs or Central Excise Officer, as the case may be, under this Act or in the Central Excise Act, 1944 (1 of 1944), as the case may be, 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 matter other than those before the Settlement Commission.
(4) The Settlement Commission shall, subject to the provisions of Chapter V of the Central Excise Act, 1944 (1 of 1944) and 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.]
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1.Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998).
2. Subs. by Act 22 of 2007, sec. 104, for “(7)” (w.e.f. 1-6-2007).
3.Subs. by Act 22 of 2007, sec. 104, for “(6)” (w.e.f. 1-6-2007).
Section 127G. Inspection, etc., of reports.
No person shall be entitled to inspect, or obtain copies of, any report made by any officer of the Customs 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 such fee as may be specified by rules:
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 by such person of such fee as may be specified by rules, furnish him with a certified copy of any such report or part thereof relevant for the purpose.
————
* Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f. 1-8-1998).
Section 127H. Power Of Settlement Commission To Grant Immunity From Prosecution And Penalty.
1[127H. 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 127B 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 127B.
3[Explanation.—For the removal of doubts, it is hereby declared that the application 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 127C within the time specified in such order], or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had 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 particulars, 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.
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1.Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998).
2.Subs. by Act 22 of 2007, sec. 105(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. 105(i)(b) (w.e.f. 1-6-2007).
4.Subs. by Act 22 of 2007, sec. 105(ii), for “sub-section (7) of section 127C 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).
Section 127-I. Power of settlement commission to send a case back to the proper officer.
(1) The Settlement Commission may if it is of opinion that any person who made an application for settlement under section 127B has not co-operated with the Settlement Commission in the proceedings before it, send the case back to the proper officer who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 127B had been made.
(2) For the purpose of sub-section (1), the proper officer shall be entitled to use all the materials and other information produced by the assessee before the Settlement Commission or the results 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 proper 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 28 and for the purposes of interest under section 28AA, 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 127B and ending with the date of receipt by the officer of customs of the order of the Settlement Commission sending the case back to the officer of customs shall be excluded.
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* Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f. 1-8-1998).
Section 127J. Order of settlement to be conclusive.
Every order of settlement passed under sub-section (7) of section 127C 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.
Section 127K. Recovery of sums due under order of settlement.
1[127K. Recovery of sums due under order of settlement.—Any sum specified in an order of settlement passed under sub-section 2[(5)] of section 127C 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 of section 142, by the proper officer having jurisdiction over the applicant.]
———-
1.Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998).
2.Subs. by Act 22 of 2007, sec. 107, for “(7)” (w.e.f. 1-6-2007).
Section 127L. Bar on subsequent application for settlement in certain cases.
1[127L. Bar on subsequent application for settlement in certain cases.—2[(1)] 3[Where, before the 1st day of June, 2007]—
(i) an order of settlement passed under sub-section (7) of section 127C provides for the imposition of a penalty on the applicant under section 127B for settlement, on the ground of concealment of particulars of his duty liability; or
(ii) after the passing of an order of settlement under 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 proper officer by the Settlement Commission under section 127-I,
then such person shall not be entitled to apply for settlement under section 127B in relation to any other matter.
4[(2) Where an applicant has made an application under sub-section (1) of section 127B, 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 127C, such applicant shall not be entitled to apply for settlement under section 127B in relation to any other matter:
Provided that such applicant 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 XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f.1-8-1998).
2. Section 127L renumbered as sub-section (1) thereof by Act 22 of 2007, sec. 108 (w.e.f. 11-5-2007).
3. Subs. by Act 22 of 2007, sec. 108(i) for “Where” (w.e.f. 11-5-2007).
4.Ins. by Act 22 of 2007, sec. 108(ii) (w.e.f. 1-6-2007).
Section 127M. 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).
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* Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f. 1-8-1998).
Section 127MA. Certain persons who have filed appeals to the appellate tribunal entitled to make applications to the settlement commission.
1[127MA. Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission. — [ Repealed by the Finance Act, 2007 (22 of 2007), sec. 109 (w.e.f. 1-6-2007) ] .
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1. Section 127MA omitted by Act 22 of 2007, sec. 109 (w.e.f. 1-6-2007). Earlier section 127MA was inserted by Act 10 of 2000, section 87 (w.e.f. 12-5-2000) and was amended by Act 18 of 2005, section 68 (w.e.f. 13-5-2005). Section 127MA, before omission by Act 22 of 2007, stood as under:
“127MA. Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission. —(1) Notwithstanding anything contained in this Chapter, any person who has filed an appeal to the Appellate Tribunal under this Act, on or before the 29th day of February, 2000 and which is pending, shall, on withdrawal of such appeal from the Appellate Tribunal, be entitled to make an application to the Settlement Commission to have his case settled under this Chapter:
Provided that no such person shall be entitled to make an application under this section in a case where the Commissioner of Customs or any officer on his behalf has, on or before the date on which the Finance Act, 2000 receives the assent of the President, applied to the Appellate Tribunal for the determination of such points arising out of the decision or order specified by the Board in its order under sub-section (1) of section 129D or filed an appeal under sub-section (2) of section 129A, as the case may be.
(2) Any person referred to in sub-section (1) may make an application to the Appellate Tribunal for permission to withdraw the appeal.
(3) On receipt of an application under sub-section (2), the Appellate Tribunal shall grant permission to withdraw the appeal.
(4) Upon withdrawal of the appeal, the proceedings in appeal immediately before such withdrawal shall, for the purposes of this Chapter, be deemed to be a proceeding pending before a proper officer.
(5) An application to the Settlement Commission under this section shall be made within a period of thirty days from the date on which the order of the Appellate Tribunal permitting the withdrawal of the appeal is communicated to the person.
(6) An application made to the Settlement Commission under this section shall be deemed to be an application made under sub-section (1) of section 127B and the provisions of this Chapter, except sub-section (11) of section 127C, and sub-section (1) of section 127-I, shall apply accordingly.
(7) Where an application made to the Settlement Commission under this section is not entertained by the Settlement Commission, then, the appeal shall be deemed to have been revived before the Appellate Tribunal and the provisions contained in section 129A, section 129B and section 129C, shall, so far as may be, apply accordingly.
(8) The Settlement Commission may, if it is of opinion that any person who made an application under sub-section (5) has not co-operated with the proceedings before it, send the case back to the Appellate Tribunal and the provisions containing in section 129A, section 129B and section 129C shall, so far as may be, apply accordingly.”.
Section 127N. Applications of certain provisions of central excise act.
The provisions of Chapter V of the Central Excise Act, 1944 (1 of 1944) in so far as it is not inconsistent with the provisions of this Chapter shall apply in relation to proceedings before the Settlement Commission under this Chapter.
—————
* Chapter XIVA (containing sections 127A to 127N) ins. by Act 21 of 1998, sec. 102 (w.e.f. 1-8-1998).
Section 128. Appeals To Commissioner (Appeals).
1[128. Appeals to 2[Commissioner (Appeals)]. —(1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a 3[Commissioner of Customs] may appeal to the 2[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 such form and shall be verified in such manner as may be specified by rules made in this behalf.]
———-
1. Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector (Appeals)” (w.e.f. 26-5-1995).
3. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
4. Subs. by Act 14 of 2001, sec. 109, for “within three months” (w.e.f. 11-5-2001).
5. Subs. by Act 14 of 2001, sec. 109, for the proviso (w.e.f. 11-5-2001).
6.Ins. by Act 23 of 2004, sec. 68 (w.e.f. 10-9-2004).
Section 128A. Procedure in appeal.
1[128A. Procedure in appeal. —(1) The 2[Commissioner (Appeals)] shall give an opportunity to the appellant to be heard if he so desires.
(2) The 2[Commissioner (Appeals)] may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the 2[Commissioner (Appeals)] is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.
(3) 3[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 the 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 2[Commissioner (Appeals)] is of opinion that any duty has not been levied or has been short-levied or erroneously refunded, no order requiring the appellant to pay any duty not levied, short-levied or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 28 to show cause against the proposed order.
(4) The order of the 3[Commissioner (Appeals)] disposing of the appeals shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision.
4[(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 3[Commissioner (Appeals)] shall communicate the order passed by him to the appellant, the adjudicating authority 5[, the Chief Commissioner of Customs and the Commissioner of Customs].
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1. Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector (Appeals)” (w.e.f. 26-5-1995).
3. Subs. by Act 14 of 2001, sec. 110, for certain words (w.e.f. 11-5-2001).
4. Ins. by Act 14 of 2001, sec. 110 (w.e.f. 11-5-2001).
5. Subs. by Act 18 of 2005, sec. 69, for “and the Commissioner of Customs” (w.e.f. 13-5-2005)
Section 129. Appellate tribunal.
1[129. Appellate Tribunal. —(1) The Central Government shall constitute an Appellate Tribunal to be called the ‘Customs, Excise and 2[Service Tax] Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.
3[(2) A judicial member shall be a person who has for at least ten years held a judicial office in the territory of India or who has been a member of the 4[Indian Legal Service] and has held a post in Grade I of that service or any equivalent or higher post for at least three years, or who has been an advocate for at least ten years.
Explanations.— For the purposes of this sub-section,—
(i) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;
(ii) in computing the period during which a person has been an advocate, there shall be included any period during which the person has held a judicial office, or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate.
(2A) A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of 5[Commissioner of Customs] or Central Excise or any equivalent or higher post for at least three years.]
6[(3) The Central Government shall appoint—
(a) a person who is or has been a Judge of a High Court; or
(b) one of the members of the Appellate Tribunal,
to be the President thereof.]
(4) The Central Government may appoint one or more members of the Appellate Tribunal to be the Vice-President, or as the case may be Vice-Presidents, thereof.
7[***]
(5) 8[ 9[A Vice-President]] shall exercise such of the powers and perform such of the functions of the President as may be delegated to him by the President by a general or special order in writing.
10[(6) On ceasing to hold office, the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal.]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982).
2. Subs. by Act 32 of 2003, sec. 119, for “Gold (Control)” (w.e.f. 14-5-2003).
3. Subs. by Act 21 of 1984, sec. 39, for sub-section (2) (w.e.f. 11-5-1984).
4. Subs. by Act 32 of 2003, sec. 119, for “Central Legal Service” (w.e.f. 14-5-2003).
5. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
6. Subs. by Act 33 of 1996, sec. 65, for sub-section (3) (w.e.f. 28-9-1996).
7. Sub-section (4A) omitted by Act 32 of 2003, sec. 119 (w.e.f. 14-5-2003). Earlier sub-section (4A) was inserted by Act 21 of 1984, sec. 39 (w.e.f. 11-5-1984).
8. Subs. by Act 21 of 1984, sec. 39, for “The Vice-President” (w.e.f. 11-5-1984).
9. Subs. by Act 32 of 2003, sec. 119, for “The Senior Vice-President or a Vice-President” (w.e.f. 14-5-2003).
10.Ins. by Act 22 of 2007, sec. 110 (w.e.f. 11-5-2007).
Section 129A. Appeals to the appellate tribunal.
1[129A. 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 2 [Commissioner of Customs] as an adjudicating authority;
(b) an order passed by the 3 [Commissioner (Appeals)] under section 128A;
(c) an order passed by the Board or the Appellate 2 [Commissioner of Customs] under section 128, as it stood immediately before the appointed day;
(d) an order passed by the Board or the 2 [Commissioner of Customs], either before or after the appointed day, under section 130, as it stood immediately before that day:
4 [Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,—
(a) any goods imported or exported as baggage;
(b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;
(c) payment of drawback as provided in Chapter X, and the rules made thereunder:
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) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or
(ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs 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
(iii) the amount of fine or penalty determined by such order, does not exceed 5 [Fifty thousand rupees.]
6[(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 40 of the Finance Act, 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 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section.]
7 [((1B) (i) The Board 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 Customs or two Commissioners of Customs, as the case may be.]
8 [(2) 9 [The Committee of Commissioners of Customs may, if it is] of opinion that an order passed by—
(a) the Appellate 8 [Commissioner of Customs] under section 128, as it stood immediately before the appointed day, or
(b) the 3[Commissioner (Appeals)] under section 128A, is not legal or proper, direct the proper officer to appeal 10 [on its behalf] to the Appellate Tribunal 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, 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 3 [Commissioner of Customs], 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 such manner as may be specified by rules made in this behalf 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 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.
11[(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf 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 officer of customs 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 officer of customs 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 officer of customs 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 Customs under this sub-section.]
———-
1. Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
3. Subs. by Act 22 of 1995, sec. 50, for “Collector (Appeals)” (w.e.f. 26-5-1995).
4. Subs. by Act 21 of 1984, sec. 40, for “Provided that” (w.e.f. 11-5-1984).
5 Subs. by Act 38 of 1993, sec. 43, for “ten thousand rupees” (w.e.f. 13-5-1993).
6 1. Ins. by Act 21 of 1984, sec. 40 (w.e.f. 11-5-1984).
7. Ins. by Act 18 of 2005, sec. 70 (w.e.f. 13-5-2005).
8. Subs. by Act 62 of 1986, sec. 34, for sub-section (2).
9. Subs. by Act 18 of 2005, sec. 70, for “The Commissioner may, if he is” (w.e.f. 13-5-2005).
10. Subs. by Act 18 of 2005, sec. 70, for “on his behalf” (w.e.f. 13-5-2005).
11. Subs. by Act 23 of 2004, sec. 69, for sub-section (6) (w.e.f. 1-11-2004). Sub-section (6), before substitution, stood as under:
“(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, in the case of an appeal made on or after the 1st day of June, 1993, 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 officer of customs in the case to which the appeal relates is one lakh rupees or less, two hundred rupees;
(b) where the amount of duty and interest demanded and penalty levied by any officer of customs 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).”.
Section 129B. Orders of appellate tribunal.
1[129B. 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.
2 [(1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant 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 3 [six 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 4[Commissioner of Customs] or the other party to appeal:
Provided that an amendment which has the effect of enhancing the 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.
5[(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 129A, 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 4 [Commissioner of Customs] and the other party to the appeal.
(4) Save as otherwise provided in section 130 or section 130E, orders passed by the Appellate Tribunal on appeal shall be final.]
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1. Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982).
2. Ins. by Act 23 of 2004, sec. 70 (w.e.f. 10-9-2004).
3.Subs. by Act 20 of 2002, sec. 127, for “four years” (w.e.f. 11-5-2002).
4. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
5.Ins. by Act 20 of 2002, sec. 127 (w.e.f. 11-5-2002).
Section 129C. Procedure of appellate tribunal.
1PROCEDURE OF APPELLATE TRIBUNAL. (1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof.
(2) Subject to the provisions contained in 2sub-section (4), a Bench shall consist of one judicial member and one technical member.
3[***]
(4) 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) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or
(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs 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
(c) the amount of fine or penalty involved, does not exceed 4ten lakhs rupees.
5(5) 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 President 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 Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of these members of the Appellate Tribunal who have heard the case, including those who first heard it.
(6) Subject to the provisions of this Act, the Appellate Tribunal shall 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 or of the discharge of its functions, including the places at which the Benches shall hold their sittings.
(7) The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely :-
(a) discovery and inspection;
(b) enforcing the attendance of any person and examining him on oath;
(c) compelling the production of books of account and other documents; and
(d) issuing commissions.
(8) Any proceeding before the Appellate Tribunal 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), 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).
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982).
2. Subs. by Act 22 of 1995, sec. 65, for “sub-sections (3) and (4)” (w.e.f. 26-5-1995).
3. Sub-section (3) omitted by Act 22 of 1995, sec. 65 (w.e.f. 26-5-1995).
4. Subs. by Act 33 of 1996, sec. 66, for “one lakh rupees” (w.e.f. 28-9-1996).
5. Subs. by Act 12 of 1990, sec. 62, for sub-section (5) (w.e.f. 31-5-1990).
Section 129D. Power of committee of chief commissioners of customs or commissioner of customs to pass certain orders.
129D. Power of 1[Committee of Chief Commissioners of Customs] or 2[Commissioner of Customs] to pass certain orders.—(1) The 1[Committee of Chief Commissioners of Customs] may, of its own motion, call for and examine the record of any proceeding in which a 2[Commissioner of Customs] 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 3[Commissioner] 4[or any other Commissioner] to apply to the Appellate Tribunal 5[ 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] for the determination of such points arising out of the decision or order as may be specified by the 1[Committee of Chief Commissioners of Customs] in its order.
(2) The 2[Commissioner of Customs] 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 officer of customs 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 2[Commissioner of Customs] in his order.
8[(3) The Committee of Chief Commissioners of Customs or the Commissioner of Customs, 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 or any officer of customs authorised in this behalf by the 3[Commissioner of Customs] makes an application to the Appellate Tribunal 5[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)] 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 5[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 applications 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 129A 5[or, as the case may be, the provisions of the Customs and Excise Revenues Appellate 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 the duty 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.
- —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 for the time being in force, whether under the Customs Tariff Act, 1975 (51 of 1975) or under any other Central Act providing for the levy and collection of any duty of customs, 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(b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986; or
(c) whether any goods fall under particular heading or sub-heading of the First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975) or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or
(d) whether the values of any goods for the purposes of assessment of duty 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.]
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1. Subs. by Act 18 of 2005, sec. 71, for “Board” (w.e.f. 13-5-2005).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
3. Subs. by Act 22 of 1995, sec. 50, for “Collector” (w.e.f. 26-5-1995).
4. Ins. by Act 14 of 2001, sec. 111 (w.e.f. 11-5-2001).
5. Ins. by Act 62 of 1986, sec. 34.
6. Subs. by Act 29 of 2006, sec. 29, for “such authority” (w.e.f. 13-7-2006)
7. Subs. by Act 22 of 1995, sec. 50, for “Collector (Appeals)” (w.e.f. 26-5-1995).
8. Subs. by Act 22 of 2007, sec. 111(i), for sub-section (3) (w.e.f. 11-5-2007). Earlier sub-section (3) was substituted by Act 20 of 2002, sec. 128 (w.e.f. 11-5-2002) and was amended by Act 18 of 2005, sec. 71 (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 Customs or the Commissioner of Customs, 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. 111(ii), for “three months” (w.e.f. 11-5-2007).
10. Ins. by Act 29 of 1988, sec. 4 (w.e.f. 1-7-1988).
Section 129DA. Powers of revision of board or commissioner of customs in certain cases.
1 POWERS OF REVISION OF BOARD OR COMMISSIONER OF CUSTOMS IN CERTAIN CASES. -(1) The Board may, of its own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceedin
g in which a 2Commissioner of Customs 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 129D for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit.
(2) The 2Commissioner of Customs may, of his own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order of the nature referred to in sub-section (5) of section 129D for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as he thinks fit.
(3) (a) No decision or order under this section shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity of making representation and if, he so desires, of being heard in his defence.
(b) Where the Board or, as the case may be, the 2Commissioner of Customs is of the opinion that any duty has not been levied or has been short-levied or short-paid or erroneously refunded, no order requiring the affected person to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed under this section unless such person is given notice within the time limit specified in section 28 to show cause against the proposed order.
(4) No proceedings shall be initiated under sub-section (1) or sub-section (2) in respect of any decision or order after the expiry of a period of six months from the date of communication of such decision or order :
Provided that in respect of any decision or order passed before the commencement of the Customs and Central Excises Laws (Amendment) Act, 1988, the provisions of this sub-section shall have effect as if for the words “six months”, the words “one year” were substituted.
(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
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1. Ins. by Act 29 of 1988, sec. 5 (w.e.f. 1-7-1988).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
*. Ed. Date of commencement of the Customs and Central Excise Laws (Amendment) Act, 1988 is 1st July, 1988.
Section 129DD. Revision by central government.
1(1) The Central Government may, on the application of any person aggrieved by any order passed under section 128A, where the order is of the nature referred to in the first proviso to sub-section (1) of section 129A, annul or modify such order.
Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.
Explanation : For the purposes of this sub-section, “order passed under section 128A” includes an order passed under that section before the commencement of section 40 of the Finance Act, 1984, against which an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal.
2(1A) The Commissioner of Customs may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 128A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order.
(2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made :
Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months.
3(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 an officer of customs in the case to which the application relates is one lakh rupees or less;
(b) one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by an officer of customs in the case to which the application relates is more than one lakh rupees:
Provided that no such fee shall be payable in the case of an application referred to in sub-section(1A).
(4) The Central Government may, of its own motion, annul or modify any order referred to in sub-section (1).
(5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section, -
(a) in any case in which an order passed under section 128A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and
(b) in any other case, unless the person affected by the proposed, order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified.
(6) Where the Central Government is of opinion that any duty of customs has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in section 28.
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1. Ins. by Act 21 of 1984, sec. 43 (w.e.f. 11-5-1984).
2. Ins. by Act 27 of 1999, sec. 110 (w.e.f. 11-5-1999).
*. Ed. Date of commencement of section 40 of the Finance Act, 1984 is 11th May, 1984
3. Subs. by Act 27 of 1999, sec. 110, for sub-section (3) (w.e.f. 11-5-1999).
Section 129E. Deposit, pending appeal, of duty and interest demanded or penalty levied.
1[129E. Deposit, pending appeal, of 2[duty and interest], demanded or penalty levied. —Where in any appeal under this Chapter, the decision or order appealed against relates to any 2 [duty and interest] demanded in respect of goods which are not under the control of the customs 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 proper officer 2[duty and interest] demanded or penalty levied:
Provided that where in any particular case, the 3[Commissioner (Appeals)] or the Appellate Tribunal is of the opinion that the deposit of 2 [duty and interest] demanded or penalty levied would cause undue hardship to such person, the 3 [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:
4[Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest 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 filing.] ]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2.Subs by Act 55 of 1991, sec 10 , for “duty” (w. e. f 23.12. 1991 ).
3. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
4. Ins by Act 14 of 2001, sec. 112 ( w. e. f. 11. 5. 2001).
130. Appeal to High Court.
1[ 2 [130. Appeal to High Court. —[ Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VI-7 (w.e.f. 28-12-2005). ]] ]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2. Section 130, before repeal, stood as under:
“ 130. 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 customs or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.
(2) Commissioner of Customs 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 Customs 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.”.
Section 130A. Application to high court.
1[2 [130A. Application to High Court. —[ Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VI-7 (w.e.f. 28-12-2005) .]]]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2. Section 130A, before repeal, stood as under:
“ 130A. Application to High Court. —(1) The Commissioner of Customs 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 129B 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 customs 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 Customs 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.”.
Section 130B. Power of high court or supreme court to require statement to be amended.
1[2[130B. 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. VI-7 (w.e.f. 28-12-2005) .]]]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982)
2. Section 130B, before repeal, stood as stood:
“ 130B. 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 to the Appellate Tribunal for the purpose of making such additions thereto or alterations therein as it may direct in that behalf.”.
Section 130C. Case before high court to be heard by not less than two judges.
1[2 [130C. 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. VI-7 (w.e.f. 28-12-2005) .]]]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2. Section 130C, before repeal, stood as stood:
“ 130C. 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 130, or section 130A 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 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.”.
Section 130D. Decision Of High Court Or Supreme Court On The Case Stated.
1[2[130D. Decision of High Court or Supreme Court on the case stated. —[ Rep. by the National Tax Tribunal Act, 2005 (49 of 2005), sec. 30 and Sch., Pt. VI-7 (w.e.f. 28-12-2005) .]]]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2. Section 130D, before repeal, stood as stood:
“ 130D. Decision of High Court or Supreme Court on the case stated. —(1) The High Court or the Supreme Court hearing any such case shall decide the questions of the 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.
(1A) Where the High Court delivers a judgment in an appeal filed before it under section 130, effect shall be given to the order passed on the appeal by the proper officer on the basis of a certified copy of the judgment.
(2) The costs of any reference to the High Court or an appeal to the High Court or the Supreme Court, as the case may be, which shall not include the fee for making the reference shall be in the discretion of the Court.”.
Section 130E. Appeal to supreme court.
An appeal shall lie to the Supreme Court from -
2 [(a) any judgment of the High Court delivered—
(i) in an appeal made under section 130; or
(ii) on a reference made under section 130 by the Appellate Tribunal before the 1st day of July, 2003;
(iii) on a reference made under section 130A,
in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or]
(b) any order passed 3[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 customs or to the value of goods for purposes of assessment.]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2. Subs. by Act 32 of 2003, sec. 123, for clause (a) (w.e.f. 14-5-2003).
3.Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-8.
Section 130F. Hearing before supreme court.
1 130F. 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 130E 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 130D or section 131.
(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 130D in the case of a judgment of the High Court.
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
Section 131. Sums due to be paid notwithstanding reference, etc.
1[131. 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 2 [under this Act before the commencement of the National Tax Tribunal Act, 2005], sums due to the Government as a result of an order passed under sub-section (1) of section 129B shall be payable in accordance with the order so passed.]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VI-9.
Section 131A. Exclusion of time taken for copy.
In computing the period of limitation specified 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.
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
Section 131B. Transfer of certain pending proceedings and transitional provisions.
1(1) Every appeal which is pending immediately before the appointed day before the Board under section 128, 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 131, 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) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or
(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs 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
(c) 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 131 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 2Commissioner of Customs under section 130, 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 Customs, 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 146A, have the right to appear before the Appellate Tribunal in relation to such appeal or proceeding.
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982) .
2. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
Section 131C. Definitions.
1[131C. Definitions. —In this Chapter—
(a) “appointed day” means the date of coming into force of the amendments to this Act specified in part 1 of the Fifth Schedule to the Finance (No. 2) Act, 1980 (44 of 1980);
2[***]
(c) “President” means the President of the Appellate Tribunal.]
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1.Chapter XV (containing sections 128, 128A, 129, 129A, 129B, 129C, 129D, 129E, 130, 130A, 130B, 130C, 130D, 130E, 130F, 131, 131A, 131B, 131C) subs. by Act 44 of 1980, sec. 50 and the Fifth Sch. Pt. 1, for Chapter XV (containing sections 128, 129, 130, and 131) (w.e.f. 11-10-1982).
2. Clause (b) omitted by Act 49 of 2005, sec. 30 and Sch., Pt. VI-10 (w.e.f. 28-12-2005). Clause (b), before omission, stood as under:
‘(b) “High Court” means—
(i) in relation to any State, the High Court for that State;
(ii) in relation to the Union territories to which jurisdiction of the High Court of a State has been extended by law, that High Court;
(iii) in relation to the Union territory of Dadra and Nagar Haveli and Goa, Daman and Diu, the High Court at Bombay;
(iv) in relation to any other Union territories, the highest court of civil appeal for that territory other than the Supreme Court of India;’.
Section 132. False declaration, false documents, etc.
Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to 1[two years], or with fine, or with both.
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1. Subs. by Act 29 of 2006, sec. 30, for “six months” (w.e.f. 13-7-2006).
Section 133. Obstruction of officer of customs.
If any person intentionally obstructs any officer of customs in the exercise of any powers conferred under this Act, such person shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
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1. Subs. by Act 29 of 2006, sec. 31, for “six months” (w.e.f. 13-7-2006).
Section 134. Refusal to be x-rayed.
If any person -
(a) resists or refuses to allow a radiologist to screen or to take X-ray picture of his body in accordance with an order made by a Magistrate under section 103, or
(b) resists or refuses to allow suitable action being taken on the advice and under the supervision of a registered medical practitioner for bringing out goods liable to confiscation secreted inside his body, as provided in section 103,
he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
Section 135. Evasion of duty or prohibitions.
1(1) Without prejudice to any action that may be taken under this Act, if any person -
(a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, he shall be punishable, – (i) in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof 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 less than three years;
(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.
2(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 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 less than 3one year.
(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 one year, 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 which are the subject matter of 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 to the commission of the offence;
(iv) the age of the accused.
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1. Subs. by Act 22 of 2007, for sub-section (1). Earlier section 135 was renumbered as sub-section thereof by Act 36 of 1973, sec. 5 (w.e.f. 1-9-1973) and was amended by Act 25 of 1978, sec. 16 (w.e.f. 1-7-1978) by Act 40 of 1989, sec. 3 (w.e.f. 26-10-1989) and by Act 32 of 2003, sec. 124 (w.e.f. 14-5-2003). Sub-section (1), before substitution by Act 22 of 2007, stood as under:
“(1) Without prejudice to any action that may be taken under this Act, if any person—
(a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or section 113, as the case may be, or,
(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113, shall be punishable,—
(i) in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof 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 less than three years;
(ii) in any other case with imprisonment for a term which may extend to three years, or with fine, or with both.”.
2. Ins. by Act 36 of 1973, sec. 5 (w.e.f. 1-9-1973).
3. Subs. by Act 25 of 1978, sec. 16, for “six months” (w.e.f. 1-7-1978).
Section 135A. Preparation.
If a person makes preparation to export any goods in contravention of the provisions of this Act, and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will, he is determined to carry out his intention to commit the offence, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.
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1. Ins. by Act 36 of 1973, sec. 6 (w.e.f. 1-9-1973).
Section 135B. Power of court to publish name, place of business, etc., of persons convicted under the act.
(1) Where any person is convicted under this Act for contravention of any of the provisions, thereof, it shall be competent for the court convicting the person to cause the name and place of business or residence of such person, nature of the contravention, the fact that the person has been so convicted and such other particulars as the court may consider to be appropriate in the circumstances of the case, to be published at the expense of such person in such newspapers or in such manner as the court may direct.
(2) No publication under subsection (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.
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1. Ins. by Act 36 of 1973, sec. 6 (w.e.f. 1-9-1973).
Section 136. Offences by officers of customs.
(1) If any officer of customs enters into or acquiesces in any agreement to do, abstains from doing, permits, conceals or 1connives at any act or thing whereby any duty of customs leviable on any goods, or any prohibition for the time being in force under this Act or any other law for the time being in force with respect to any goods is or may be evaded, he shall be punishable with imprisonment for a term which may extend to 2three years, or with fine, or with both.
(2) If any officer of customs, -
(a) requires any person to be searched for goods liable to confiscation or any document relating thereto, without having reason to believe that he has such goods or document secreted about his person; or
(b) arrests any person without having reason to believe that he has been guilty of an offence punishable under section 135; or
(c) searches or authorises any other officer of customs to search any place without having reason to believe that any goods, documents or things of the nature referred to in section 105 are secreted in that place, he 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) If any officer of customs, except in the discharge in good faith of his duty as such officer or in compliance with any requisition made under any law for the time being in force, discloses any particulars learnt by him in his official capacity in respect of any goods, he 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.
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1. Subs. by Act 32 of 2003, sec. 125, for “connives at any act or thing whereby” (w.e.f. 14-5-2003).
2. Subs. by Act 36 of 1973, sec. 7, for “two years” (w.e.f. 1-9-1973).
Section 137. Cognizance Of Offences.
(1) No court shall take cognizance of any offence under section 132, section 133, section 134 or 1section 135, except with the previous sanction of the 2Commissioner of Customs.
(2) No court shall take cognizance of any offence under section 136, -
(a) where the offence is alleged to have been committed by an officer of customs not lower in rack than 3Assistant Commissioner of Customs, except with the previous sanction of the Central Government;
(b) where the offence is alleged to have been committed by an officer of customs lower in rank than 3Assistant Commissioner of Customs, except with the previous sanction of the 2Commissioner of Customs.
4[(3) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Chief Commissioner of Customs on payment, by the person accused of the offence to the Central Government, of such compounding amount as may be specified by rules.]
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1. Subs. by Act 29 of 2006, sec. 32, for “section 135″ (w.e.f. 13-7-2006).
2. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
3. Subs. by Act 22 of 1995, sec. 50, for “Assistant Collector of Customs” (w.e.f. 26-5-1995) and again subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999).
4. Ins. by Act 23 of 2004, sec. 71 (w.e.f. 10-9-2004).
Section 138. Offences to be tried summarily.
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898)1 an offence under this Chapter other than an offence punishable 2[under clause (i) of sub-section (1) of section 135 or under sub-section (2) of that section] may be tried summarily by a magistrate..
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1. See now the Code of Criminal Procedure, 1973 (2 of 1974).
2. Subs. by Act 36 of 1973, sec. 8, for “under clause (i) of section 135″ (w.e.f. 1-9-1973).
Section 138A. Presumption of culpable mental state.
1 (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.
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1. Ins. by Act 36 of 1973, sec. 9 (w.e.f. 1-9-1973).
Section 138B. Relevancy of statements under certain circumstances.
(1) A statement made and signed by a person before any gazetted officer of customs 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. 9 (w.e.f. 1-9-1973).
Section 138C. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence.
1138C. 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 there under and shall be admissible in any proceedings there under, 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 regularly supplied 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 that 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 there under 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.
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1. Ins. by Act 29 of 1988, sec. 6 (w.e.f. 1-7-1988).
Section 139. Presumption as to documents in certain cases.
1139. PRESUMPTION AS TO DOCUMENTS IN CERTAIN CASES. – Where any document -
(i) 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, or
(ii) has been received from any place outside India in the course of investigation of any offence alleged to have been committed by any person under this Act, 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) presume, unless the contrary is proved, 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;
(c) in a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document.
2Explanation : For the purposes of this section, “document” includes inventories, photographs and lists certified by a Magistrate under sub-section (1C) of section 110
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1. Subs. by Act 36 of 1973, sec. 10, for section 139 (w.e.f. 1-9-1973).
2. Ins. by Act 80 of 1985, sec. 11 (w.e.f. 27-12-1985).
Section 140. Offences by companies.
(1) If the person committing an offence under this Chapter 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 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 such punishment provided in this Chapter if he proves that the offence was committed without his knowledge or that he 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 negligence 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 a 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.
Section 140A. Application of section 562 of the code of criminal procedure, 1898, and of the probation of offenders act, 1958.
(1) Nothing contained in section 562 of the 2Code of Criminal Procedure, 1898 (5 of 1898), 260 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 135.
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1. Ins. by Act 36 of 1973, sec. 11 (w.e.f. 1-9-1973).
2. See now section 360 of the Code of Criminal Procedure, 1973 (2 of 1974).
Section 141. Conveyances and goods in a customs area subject to control of officers of customs.
All conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of customs.
Section 142. Recovery of sums due to government.
(1) 1[Where any sum payable by any person] under this Act 2[including the amount required to be paid to the credit of the Central Government under section 28B] is not paid,—
(a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other officer of customs; or
(b) the 3Assistant Commissioner of Customs may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the Assistant Commissioner of Customs or such other officer of customs; or
5(c) if the amount cannot be recovered from such person in the manner provided in clause (a) or clause (b) -
(i) the 4Assistant Commissioner of Customs may prepare a certificate signed by him specifying the amount due from such person and send it to the Collector of the district in which such person owns any Property or resides or carries on his business and the said Collector on receipt of such certificate shall proceed to recover from such person the amount specified there under as if it were an arrear of land revenue; or
(ii) the proper officer may, on an authorisation by a Commissioner of Customs and in accordance with the rules made in this behalf, distain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person.
6[Provided that where the person (hereinafter referred to as predecessor), by whom any sum payable under this Act including the amount required to be paid to the credit of the Central Government under section 28B is not paid, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all 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 the proper officer, after obtaining written approval from the Commissioner of Customs, for the purposes of recovering the amount so payable by such predecessor at the time of such transfer or otherwise disposal or change.]
(2) Where the terms of any bond or other instrument executed under this Act or any rules or regulations made there under provide that any amount due under such instrument may be recovered in the manner laid down in sub-section (1), the amount may, without prejudice to any other mode of recovery, be recovered in accordance with the provisions of that sub-section.
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1. Subs. by Act 22 of 1995, sec. 66, for certain words (w.e.f. 26-5-1995).
2. Ins. by Act 10 of 2000, sec. 88 (w.e.f. 12-5-2000).
3. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
4. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f.11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
5. Subs. by Act 22 of 1995, sec. 66, for clause (c) (w.e.f. 26-5-1995).
6. Ins. by Act 23 of 2004, sec. 72 (w.e.f. 10-9-2004).
Section 143. Power to allow import or export on execution of bonds in certain cases.
(1) Where this Act or any other law requires anything to be done before a person can import or export any goods or clear any goods from the control of officers of customs and the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] is satisfied that having regard to the circumstances of the case, such thing cannot be done before such import, export or clearance without detriment to that person, the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs], may, notwithstanding anything contained in this Act or such other law, grant leave for such import, export or clearance on the person executing a bond in such amount, with such surety or security and subject to such conditions as the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] approves, for the doing of that thing within such time after the import, export or clearance as may be specified in the bond.
(2) If the thing is done within the time specified in the bond, the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] shall cancel the bond as discharged in full and shall, on demand, deliver it, so cancelled, to the person who has executed or who is entitled to receive it; and in such a case that person shall not be liable to any penalty provided in this Act or, as the case may be, in such other law for the contravention of the provisions thereof relating to the doing of that thing.
(3) If the thing is not done within the time specified in the bond, the 1[Assistant Commissioner of Customs or Deputy Commissioner of Customs] shall, without prejudice to any other action that may be taken under this Act or any other law for the time being in force, be entitled to proceed upon the bond in accordance with law.
—————
1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 143A. Duty deferment.
1[143A. Duty deferment.—(1) When any material is imported under an import licence belonging to the category of Advance Licence granted under the 2Imports and Exports (Control) Act, 1947 (18 of 1947), subject to an obligation to export the goods as are specified in the said Licence within the period specified therein, the 3[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may, notwithstanding anything contained in this Act, permit clearance of such material without payment of duty leviable thereon.
(2) The permission for clearance without payment of duty under sub-section (1) shall be subject to the following conditions, that is to say—
(a) the duty payable on the material imported shall be adjusted against the drawback of the duty payable under this Act under any other law for the time being in force on the export of goods specified in the said Advance Licence; and
(b) where the duty is not so adjusted either for the reason that the goods are not exported within the period specified in the said Advance Licence, or within such extended period not exceeding six months as the 3[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may, on sufficient cause being shown, allow, or for any other sufficient reason, the importer shall, notwithstanding anything contained in section 28, be liable to pay the amount of duty not so adjusted together with simple interest thereon at the rate of twelve per cent. per annum from the date the said permission for clearance is given to the date of payment.
(3) While permitting clearance under sub-section (1), the 3[Assistant Commissioner of Customs or Deputy Commissioner of Customs] may require the importer to execute a bond with such surety or security as he thinks fit for complying with the conditions specified in sub-section (2)].
—————
1. Ins. by Act 25 of 1978, sec. 17 (w.e.f. 1-7-1987).
2. See now the Foreign Trade Development and Regulation Act, 1992 (22 of 1992).
3. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 144. Power to take samples.
(1) The proper officer may, on the entry or clearance of any goods or at any time while such goods are being passed through the customs area, take samples of such goods in the presence of the owner thereof, for examination or testing, or for ascertaining the value thereof, or for any other purposes of this Act.
(2) After the purpose for which a sample was taken is carried out, such sample shall, if practicable, be restored to the owner, but if the owner fails to take delivery of the sample within three months of the date on which the sample was taken, it may be disposed of in such manner as the 1Commissioner of Customs may direct.
(3) No duty shall be chargeable on any sample of goods taken under this section which is consumed or destroyed during the course of any test or examination thereof, if such duty amounts to five rupees or more.
————
1. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f 26-5-1995).
Section 145. Owner, etc., to perform operations incidental to compliance with customs law.
All operations necessary for making any goods available for examination by the proper officer or for facilitating such examination shall be performed by, or at the expense of, the owner, importer or exporter of the goods, as the case may be.
Section 146. Custom house agents to be licensed.
(1) No person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customs-station unless such person holds a licence granted in this behalf in accordance with the regulations.
(2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulations may provide for -
(a) the authority by which a licence may be granted under this section and the period of validity of any such licence;
(b) the form of the licence and the fees payable therefore;
(c) the qualifications of persons who may apply for a licence and the
qualifications of persons to be employed by a licensee to assist him in his work as an agent;
(d) the restrictions and conditions (including the furnishing of security by the licensee) subject to which a licence may be granted;
(e) the circumstances in which a licence may be suspended or revoked; and
(f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed.
Section 146A. Appearance by authorised representative.
1146A. APPEARANCE BY AUTHORISED REPRESENTATIVE. (1) Any person who is entitled or required to appear before an officer of customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under section 108 to attend 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) a custom house agent licensed under section 146; or
(c) any legal practitioner who is entitled to practice in any civil court in India; or
(d) any person who has acquired such qualifications as the Central Government may specify by rules made in this behalf.
(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 an officer of customs 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 Central Excises and Salt Act, 1944 (1 of 1944), or the 3Gold
(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 4[Commissioner of Customs] or the competent authority under the 2Central Excises and Salt Act, 1944, or the 2Gold (Control) Act, 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 an officer of customs 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 such authority as may be specified by rules made in this behalf, that 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. Ins. by Act 44 of 1980, sec. 50 and Fifth Sch., Pt. 1 (w.e.f. 11-10-1982).
2. See now the Central Excise Act, 1944 (1 of 1944).
3. This Act has been repealed by Act 18 of 1990, sec. 2 (w.e.f. 6-6-1990).
4. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f 26-5-1995).
Section 147. Liability of principal and agent.
(1) Where this Act requires anything to be done by the owner, importer or exporter of any goods, it may be done on his behalf by his agent.
(2) Any such thing done by an agent of the owner, importer or exporter of any goods shall, unless the contrary is proved, be deemed to have been done with the knowledge and consent of such owner, importer or exporter, so that in any proceedings under this Act, the owner, importer or exporter of the goods shall also be liable as if the thing had been done by himself.
(3) When any person is expressly or impliedly authorised by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter, be deemed to be the owner, importer or exporter of such goods for such purposes :
Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than any willful act, negligence or default of the agent, such duty shall not be recovered from the agent unless in the opinion of 1Assistant Commissioner of Customs the same cannot be recovered from the owner, importer or exporter.
—————
1. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 148. Liability of agent appointed by the person in charge of a conveyance.
(1) Where this Act requires anything to be done by the person in charge of a conveyance, it may be done on his behalf by his agent.
(2) An agent appointed by the person in charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person in charge, and is accepted as such by that officer, shall be liable for the fulfillment in respect of the matter in question of all obligations imposed on such person in charge by or under this Act or any law for the time being in force, and to penalties and confiscations which may be incurred in respect of that matter.
Section 149. Amendment of documents.
Save as otherwise provided in sections 30 and 41, the proper officer may, in his discretion, authorise any document, after it has been presented in the custom house to be amended :
Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.
Section 150. Procedure for sale of goods and application of sale proceeds.
(1) Where any goods not being confiscated goods are to be sold under any provisions of this Act, they shall, after notice to the owner thereof, be sold by public auction or by tender or with the consent of the owner in any other manner.
(2) The proceeds of any such sale shall be applied -
(a) firstly to the payment of the expenses of the sale,
(b) next to the payment of the freight and other charges, if any, payable in respect of the goods sold, to the carrier, if notice of such charges has been given to the person having custody of the goods,
(c) next to the payment of the duty, if any, on the goods sold,
(d) next to the payment of the charges in respect of the goods sold due to the person having the custody of the goods,
(e) next to the payment of any amount due from the owner of the goods to the Central Government under the provisions of this Act or any other law relating to customs, and the balance, if any, shall be paid to the owner of the goods.
Section 151. Certain officers required to assist officers of customs.
The following officers are hereby empowered and required to assist officers of customs in the execution of this Act, namely :- (a) officers of the Central Excise Department;
(b) officers of the Navy;
(c) officers of Police;
(d) officers of the Central or State Governments employed at any port or airport;
(e) such other officers of the Central or State Governments or a local authority as are specified by the Central Government in this behalf by notification in Official Gazette.
Section 151A. Instructions to officers of customs.
1 151A. INSTRUCTIONS TO OFFICERS OF CUSTOMS.The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon, issue such orders, instructions and directions to officers of customs as it may deem fit and such officers of customs and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board :
Provided that no such orders, instructions or directions shall be issued -
(a) so as to require any such officer of customs 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 Commissioner of Custom (Appeals) in the exercise of his appellate functions.
—————
1. Ins. by Act 80 of 1985, sec. 12 (w.e.f. 27-12-1985).
Section 152. 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 shall be exercisable also by 1[a 2[Chief Commissioner of Customs] or a 3[Commissioner of Customs]] empowered in this behalf by the Central Government;
(b) any power exercisable by a 3[Commissioner of Customs] under this Act may be exercisable also by a 4[Joint Commissioner of Customs] or an 5[Assistant Commissioner of Customs or Deputy Commissioner of Customs] empowered in this behalf by the Central Government;
(c) any power exercisable by a 4[Joint Commissioner of Customs] under this Act may be exercisable also by an 15[Assistant Commissioner of Customs or Deputy Commissioner of Customs] empowered in this behalf by the Central Government;
(d) any power exercisable by an 6[Assistant Commissioner of Customs or Deputy Commissioner of Customs] under this Act may be exercisable also by a gazetted officer of customs empowered in this behalf by the Board.
—————
1. The words “a Principal Collector of Customs or a Collector of Customs” ins. by Act 29 of 1988, sec. 7, for “a Collector of Customs” (w.e.f. 1-7-1988).
2. Subs. by Act 22 of 1995, sec. 50, for “Principal Collector of Customs” (w.e.f. 26-5-1995).
3. Subs. by Act 22 of 1995, sec. 50, for “Collector of Customs” (w.e.f. 26-5-1995).
4. Subs. by Act 27 of 1999, sec. 100, for “Deputy Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Deputy Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Deputy Collector of Customs” (w.e.f. 26-5-1995).
5. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
6. Subs. by Act 27 of 1999, sec. 100, for “Assistant Commissioner of Customs” (w.e.f. 11-5-1999). Earlier the words “Assistant Commissioner of Customs” were substituted by Act 22 of 1995, sec. 50, for the words “Assistant Collector of Customs” (w.e.f. 26-5-1995).
Section 153. Service of order, decision, etc.
Any order or decision passed or any summons or notice issued under this Act, shall be served -
(a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or
(b) if the order, decision, summons or notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house.
Section 154. Correction of clerical errors, etc.
Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor in office of such officer, as the case may be.
Section 154A. Rounding off of duty, etc. -
The amount of duty, interest, penalty, fine or any other sum payable, and the amount of refund, drawback 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.
Section 154B. Publication of information respecting persons in certain cases.
1[154B. Publication of information respecting persons in certain cases.—(1) If the Central Government is of opinion that it is necessary or expedient in the public interest to publish the names of any person and any other particulars relating to any proceedings or prosecutions under this Act in respect of such person, it may cause to be published such names and particulars in such manner as it thinks fit.
(2) No publication under this section shall be made in relation to any penalty imposed under this Act until the time for presenting an appeal to the Commissioner (Appeals) under section 128 or the Appellate Tribunal under section 129A, as the case may be, has expired without an appeal having been presented or the appeal, if presented, has been disposed of.
Explanation.—In the case of a firm, company or other association of persons, the names of the partners of the firm, directors, managing agents, secretaries and treasurers or managers of the company, or the members of the association, as the case may be, may also be published if, in the opinion of the Central Government, circumstances of the case justify it.]
—————
1. Subs. by Act 2 of 2006, sec. 33 (w.e.f. 13-7-2006).
Section 155. Protection of action taken under the act.
(1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations.
(2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act 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.
Section 156. General power to make rules.
(1) Without prejudice to any power to make rules contained elsewhere in this Act, the Central Government may make rules consistent with this Act generally to carry out the purposes of this Act.
(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 :-
1[(a) the manner of determining the transaction value of the imported goods and export goods under sub-section (1) of section 14;]
(b) the conditions subject to which accessories of and spare parts and maintenance and repairing implements for, any article shall be chargeable at the same rate of duty as that article;
2[***]
(d) the detention and confiscation of goods the importation of which is prohibited and the conditions, if any, to be fulfilled before such detention and confiscation and the information, notices and security to be given and the evidence requisite for the purposes of such detention or confiscation and the mode of verification of such evidence;
(e) the reimbursement by an informant to any public officer of all expenses and damages incurred in respect of any detention of any goods made on his information and of any proceedings consequent on such detention;
(f) the information required in respect of any goods mentioned in a shipping bill or bill of export which are not exported or which are exported and are afterwards re-landed;
3[(g) 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 the rules.]
4[(h) the amount to be paid for compounding under sub-section (3) of section 137.]
———-
1. Subs. by Act 22 of 2007, sec. 113, for clause (a). Earlier clause (a) was substituted by Act 27 of 1988, sec. 3 (w.e.f. 16-8-1988). Clause (a), before substitution by Act 22 of 2007, stood as under:
“(a) the manner of determining the price of imported goods under sub-section (1A) of section 14;”.
2. Clause (c) omitted by Act 26 of 1988, sec. 80 (w.e.f. 13-5-1988).
3. Added by Act 36 of 1973, sec. 12 (w.e.f. 1-9-1973).
4. Ins. by Act 23 of 2004, sec. 73 (w.e.f. 10-9-2004).
Section 157. General power to make regulations.
(1) Without prejudice to any power to make regulations contained elsewhere in this Act, the Board may make regulations consistent with this Act and the rules, generally to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely :-
(a) the form of a bill of entry, shipping bill, bill of export, import manifest, import report, export manifest, export report, 1bill of transshipment, declaration for transshipment boat note and bill of coastal goods;
2[(aa) the 3[form and manner] in which an application for refund shall be made under section 27;]
(b) the conditions subject to which the transshipment of all or any goods under sub-section (3) of section 54, the transportation of all or any goods under section 56 and the removal of warehoused goods from one warehouse to another under section 67, may be allowed without payment of duty;
(c) the conditions subject to which any manufacturing process or other operations may be carried on in a warehouse under section 65.
—————
1. Subs. by Act 27 of 1999, sec. 115, for “bill of transshipment” (w.e.f. 11-5-1999)
2. Ins. by Act 40 of 1991, sec. 14 (w.e.f. 20-9-1991).
3. Subs. by Act 22 of 1995, sec. 67, for “form” (w.e.f. 26-5-1995).
Section 158. Provisions with respect to rules and regulations.
(1) All rules and regulations made under this Act shall be published in the Official Gazette.
(2) Any rule or regulation which the Central Government or the Board is empowered to make under this Act may provide -
(i) for the levy of fees in respect of applications, amendment of documents, furnishing of duplicates of documents, issue of certificates, and supply of statistics, and for rendering of any services by officers of customs under this Act;
(ii) that any person who contravenes any provision of a rule or regulation or abets such contravention or any person who fails to comply with any provision of a rule or regulation with which it was his duty to comply, shall be liable, -
(a) in the case of contravention or failure to comply with a rule, to a penalty which may extend to five hundred rupees;
(b) in the case of contravention or failure to comply with a regulation, to a penalty which may extend to two hundred rupees.
Section 159. Rules, certain notifications and orders to be laid before parliament.
1Every rule or regulation made under this Act, every notification issued under sections 11, 11B, 11H, 11-I, 11K, 11N, 14,25, 28A, 43, 66, 69, 70, 74,75, 76, 98, 98A, 101 and 123 and every order made under sub-section (2) of section 25, 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 regulation or notification or order, or both Houses agree that the rule or regulation should not be made or notification or order should not be issued or made, the rule or regulation 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 regulation or notification or order.
—————
1. Subs. by Act 22 of 1995, sec. 68, for section 159 (w.e.f. 26-5-1995).
Section 160. Repeal and savings.
(1) The enactments specified in the Schedule are hereby repealed to the extent mentioned in the fourth column thereof.
(2) In the Indian Tariff Act, 1934 (32 of 1934) -
(a) for section 2, the following section shall be substituted, namely :- “2. Duties specified in the Schedules to be levied. The rates at which duties of customs shall be levied under the Customs Act, 1962, are specified in the First and Second Schedules.”;
(b) sections 5 and 6 shall stand repealed.
(3) Notwithstanding the repeal of any enactment by this section, – (a) any notification, rule, regulation, order or notice issued or any appointment or declaration made or any licence, permission or exemption granted for any assessment made, confiscation adjudged or any duty levied or any penalty or fine imposed or any forfeiture, cancellation or discharge of any bond ordered or any other thing done or any other action taken under any repealed enactment shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act;
(b) any document referring to any enactment hereby repealed shall be construed as referring to this Act or to the corresponding provision of this Act.
(4) This Act shall apply to all goods which are subject to the control of customs at the commencement of this Act notwithstanding that the goods were imported before such commencement.
(5) Where the period prescribed for any application, appeal, revision or other proceeding under any repealed enactment had expired on or before the commencement of this Act, nothing in this Act shall be construed as enabling any such application, appeal or revision to be made or a proceeding to be instituted under this Act by reason only of the fact that a longer period therefor is prescribed or provision is made for extension of
time in suitable cases by the appropriate authority.
(6) The provisions of section 65 shall apply to goods warehoused before the commencement of this Act if the operations permissible under that section were carried on after such commencement.
(7) Any duty or penalty payable under any repealed enactment may be recovered in a manner provided under this Act but without prejudice to any action already taken for the recovery of such duty or penalty under the repealed enactment.
(8) The mention of particular matters in sub-sections (4), (5), (6) and (7) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeals.
(9) Nothing in this Act shall affect any law for the time being in force relating to the constitution and powers of any Port authority in a major port as defined in the Indian Ports Act, 1908 (15 of 1908).
Section 161. Removal of difficulties.
If any difficulty arises in giving effect to the provisions of this Act, particularly in relation to the transition from the enactments repealed by this Act to the provisions of this Act, the Central Government may, by general or special order, do anything not inconsistent with such provisions which appears to be ] necessary or expedient for the purpose of removing the difficulty.
Schedule. -
(See Section 160)
Repeals
| Year |
|
Short title |
Extent of repeal |
| 1 |
2 |
3 |
4 |
| 1878 |
8 |
The Sea Customs Act |
The whole |
| 1896 |
8 |
The Inland Bonded Warehouse Act |
The whole |
| 1924 |
19 |
The Land Customs Act |
The whole |
| 1934 |
22 |
The Aircraft Act |
Section 16 |
November 30, 2014
Section 1. Short title, extent and commencement.
14th September 1984]
An Act to provide for the establishment of Family Court with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and, family affairs and for matters connected therewith.
Be it enacted by Parliament in the Thirty-fifty year of the Republic of India as follows:
(1) This Act may be called the Family Courts Act, 1984.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different States.
Section 2. Definitions.
In this Act, unless the context otherwise requires, -
(a) “Judge” means the Judge or, as the case may be, the Principal Judge. Additional Principal Judge or other Judge of a Family Court;
(b) “Notification” means a notification published in the Official Gazette;
(c) “Prescribed” means prescribed by rules made under this Act;
(d) “Family Court” means a Family Court established under Section 3;
(e) All other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code.
Section 3. Establishment of Family Courts.
(1) For the purpose of exercising the jurisdiction and powers conferred on a Family Court by this Act, the State Government, alter consultation with the High Court, and by notification. -
(a) Shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceeds one million, a Family Court;
(b) May establish Family Courts for such other areas in the State as it may deem necessary.
(2) The State Government shall, after consultation with the High Court, specify, by notification, the local limits of the area to which the jurisdiction of a Family Court shall extend and may, at any time, increase, reduce or alter such limits.
Section 4. Appointment of Judges.
(1) The State Government may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of’ a Family Court. (2) When a Family Court consists of more than one Judge, -
(a) Each of the Judges may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force;
(b) The State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal Judges and any other Judge to be the Additional Principal Judge;
(c) The Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof,
(d) The Additional Principal Judge may exercise the powers of the Principal Judge in the event of any vacancy in the office of the Principal Judge or when the Principal Judge is unable to discharge his functions owing to absence, illness or any other cause.
(3) A person shall not be qualified for appointment as a Judge unless he-
(a) Has for at least seven years held a judicial office in India or the office of a member of a tribunal or any post under the Union or a State requiring special knowledge of law; or
(b) Has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or
(c) Possesses such other qualifications as the Central Government may with the concurrence of the Chief Justice of India, prescribe.
(4) In selecting persons for appointment as Judges, -
(a) Every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counseling are selected; and
(b) Preference shall be given to women.
(5) No person shall be appointed as, or hold the office of, a Judge of a Family Court after he has attained the age of sixty-two years.
(6) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of a Judge shall be as the State Government may, in consultation with the High Court, prescribe.
Section 5. Association of social welfare agencies, etc.
The State Government may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of-
(a) Institutions or organisations engaged in social welfare or the representatives thereof,
(b) Persons professionally engaged in promoting the welfare of the family;
(c) Persons working in the field of social welfare; and
(d) Any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act.
Section 6. Counsellors, officers and other employees of Family Courts.
(1) The State Government shall in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such Counsellors, officers and other employees as it may think fit.
(2) The terms and conditions of association of the counsellors and the terms and conditions of service of the officers and other employees, referred to in Sub-section (1), shall be such as may be specified by rules made by the State Government.
Section 7. Jurisdiction.
(1) Subject to the other provisions of this Act, a Family Court shall. -
(a) Have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceeding of the nature referred to in the explanation; and
(b) Be deemed, for the purposes of exercising such jurisdiction under such law to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation. – The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:
(a) A suit or proceeding between the parties to a marriage for a decree of nullity of marriage declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) A suit or proceeding for a declaration as to the validity of a marriage or a, to the matrimonial status of any person;
(c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) A suit or proceeding for all order or injunctions in circumstances arising out of a marital relationship;
(e) A suit or proceeding for a declaration as to the legitimacy of any person;
(f) A suit or proceeding for maintenance,
(g) A suit or proceeding in relation to the guardianship of the person or the custody or, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have all exercise-
(a) The jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife. children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b). Such other jurisdictions as may be conferred on it by any other enactment.
8. Exclusion of jurisdiction and pending proceedings.
Where a Family Court has been established for any area:-
(a) No district court or any subordinate civil court referred to in subsection (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect, of any suit or proceeding of the nature referred to in the explanation to that sub-section; (b) No magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) Every suit or proceeding of the nature referred to in the explanation to, sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), -
(i) Which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be before any magistrate under the said Code; and
(ii) Which would have been required to he instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had conic into force and such Family Court had been established,
Shall stand transferred to such Family Court on the date on which it is established.
Section 9. Duty of Family Court to make efforts for settlement.
(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family (stiff may adjourn the proceedings for such period as it think fit to enable attempts to be Inside to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.
Section 10. Procedure generally.
(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. (2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court. (3) Nothing in sub-section (1) or subsection (2) shall prevent a Family Court front laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other.
Section 11. Proceedings to be held in Camera.
Every suit or proceedings to which this Act applies, the proceedings may be held in camera if the Family Court so desires and shall be so held if either party so desires.
Section 12. Assistance of medical and welfare experts.
In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act.
Section 13. Right to legal representation.
Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall he entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae
Section 14. Application of Indian Evidence Act, 1872.
A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).
Section 15. Record of oral evidence.
In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded a memorandum of the substance of what the witness deposes, and such memorandum Shall be signed by the witness and the Judge and shall form part of the record.
Section 16. Evidence of formal character on affidavit.
(1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court. (2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit.
Section 17. Judgement.
Judgement of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision.
Section 18. Execution of decrees and orders.
(1) A decree or all order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders.
(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.
(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary civil court to which it is sent for execution.
Section 19. Appeal.
Chapter V
1[APPEALS AND REVISIONS]
1 Substituted by Act. No. 59 of 1991
(1) Save as provided in subsection (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974). Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act 1991].
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. 2[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being ail interlocutory order, and, as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.
1 Inserted by Act. No. 59 of 1991
2. Sub-sec (4) inserted and original sub-section (4) & (5) re-numbered as (5) & (6) by Act No. 59 of 1991
Section 20. Act to have overriding effect.
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
Section 21. Power of High Court to make rules.
(1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the purposes of this Act. (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) Normal working hours of Family Courts and holding of sittings of Family Courts on holidays and outside normal working hours;
(b) Holding of sittings of Family Courts at places other than their ordinary places of sitting;
(c) Efforts which may be made by, and the procedure which may be followed by a Family Court for assisting and persuading parties to arrive at a settlement.
Section 22. Power of the Central Government to make rules.
(1) The Central Government may, with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of a Judge referred to in clause (c) of subsection (3) of Section 4.
(2) Every rule made under this Act by the Central Government 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 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 it 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 else 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 23. Power of the State Government to make rules.
(1) The State Government may, after consultation with the High Court, by notification, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the provisions of subsection (1) such rules may provide for all or any of the following matters, namely: -
(a) The salary or honorarium and other allowances payable to, and the other terms and conditions of Judges under subsection (6) of Section 4;
(b) The terms and conditions of association of counselors and the terms and conditions of service of the officers and other employees referred to in See section 6;
(c) Payment of fees and expenses (including travelling expenses) of medical and other experts and other persons referred to in Section 13 out of the revenues of the State Government and the scales of such fees and expenses;
(d) Payment of fees and expenses to legal practitioners appointed under Section 13 as amicus and curiae out of the revenues of the State Government and the scales of such fees and expenses;
(e) Any other matter which is required to be, or may be, prescribed or provided for by rules.
(3) Every rule made by State Government under this Act shall be laid as soon as may be after it is made, before the State Legislature.
November 30, 2014
Preamble
[15th March, 1948]
An act to provide for fixing minimum rate of wages in certain employments.
Where it is expedient to provide for fixing minimum rates of wages in certain employments:
It is hereby enacted as follows:
“The justification for statutory fixation of minimum wages is obvious. Such provisions which exists in more advanced countries are even more necessary in India, where workers organisations are yet poorly developed and worker’s bargaining power is consequently poor.” (Gazette of India).
Section 1. Short title and extent
(1) This Act may be called the Minimum Wages Act 1948.
(2) It extends to the whole of India.
Section 2. Interpretation
In this Act unless there is anything repugnant in the subject or context -
(a) “adolescent” means a person who has completed his fourteenth year of age but has not completed his eighteenth year;
(aa) “adult” means a person who has completed his eighteenth year of age;
(b) “appropriate government” means -
(i) in relation to any scheduled employment carried on by or under the authority of the Central Government or a railway administration] or in relation to a mine oilfield or major port or any corporation established by a Central Act the Central Government and
(ii) in relation to any other scheduled employment the State Government;
(bb) “child” means a person who has not completed his fourteenth year of age;
(c) “competent authority” means the authority appointed by the appropriate government by notification in its Official Gazette to ascertain from time to time the cost of living index number applicable to the employees employed in the scheduled employments specified in such notification;
(d) “cost of living index number” in relation to employees in any scheduled employment in respect of which minimum rates of wages have been fixed means the index number ascertained and declared by the competent authority by notification in the Official Gazette to be the cost of living index number applicable to employee in such employment;
(e) “employer” means any person who employs whether directly or through another person or whether on behalf of himself or any other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act and includes except in sub-section (3) of section 26 -
(i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person named under clause (f) of sub-section (1) of section 7 of the Factories Act 1948 (63 of 1948) as manager of the factory;
(ii) in any scheduled employment under the control of any government in India in respect of which minimum rates of wages have been fixed under this Act the person or authority appointed by such government for the supervision and control of employees or where no person or authority is so appointed the head of the department;
(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act the persons appointed by such authority for the supervision and control of employees or where no person is so appointed the chief executive officer of the local authority;
(iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person responsible to the owner for the supervision and control of the employees or for the payment of wages;
(f) “prescribed” means prescribed by rules made under this Act;
(g) “schedule employment” means an employment specified in the Schedule or any process or branch of work forming part of such employment;
(h) “wages” means all remuneration capable of being expressed in terms of money which would if the terms of the contract of employment express or implied were fulfilled be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance but does not include -
(i) the value of -
(a) any house accommodation supply of light water medical attendance or
(b) any other amenity or any service excluded by general or special order of the appropriate government;
(ii) any contribution paid by the employer to any person fund or provident fund or under any scheme of social insurance;
(iii) any traveling allowance or the value of any traveling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(v) any gratuity payable on discharge;
(i) “employee” means any person who is employed for hire or reward to do any work skilled or unskilled manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up cleaned washed altered ornamented finished repaired adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate government; but does not include any member of the Armed Forces of the Union.
Section 3. Fixing of minimum rates of wages
(1) The appropriate government shall in the manner hereinafter provided -
(a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Party by notification under section 27 :
Provided that the appropriate government may in respect of employees employed in an employment specified in Part II of the Schedule instead of fixing minimum rates of wages under this clause for the whole State fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof;
(b) review at such intervals as it may think fit such intervals not exceeding five years the minimum rates of wages so fixed and revise the minimum rates if necessary :
Provided that where for any reason the appropriate government has not reviewed the minimum rates of wages fixed by it in respect of any scheduled employment within any interval of five years nothing contained in this clause shall be deemed to prevent it from reviewing the minimum rates after the expiry of the said period of five years and revising them if necessary and until they are so revised the minimum rates in force immediately before the expiry of the said period of five years shall continue in force.
(1A) Notwithstanding anything contained in sub-section (1) the appropriate government may refrain from fixing minimum rates of wages in respect of any scheduled employment in which there are in the whole State less than one thousand employees engaged in such employment but if at any time the appropriate government comes to a finding after such inquiry as it may make or cause to be made in this behalf that the number of employees in any scheduled employment in respect of which it has refrained from fixing minimum rates of wages has risen to one thousand or more it shall fix minimum rates of wages payable to employees in such employment as soon as may be after such finding.
(2) The appropriate government may fix -
(a) a minimum rate of wages for time work (hereinafter referred to as “a minimum time rate”);
(b) a minimum rates of wages for piece work (hereinafter referred to as “a minimum piece rate”);
(c) a minimum rate of remuneration to apply in the case of employees employed on piece work for the purpose of securing to such employees a minimum rate of wages on a time work basis (hereinafter referred to as “a guaranteed time rate”);
(d) a minimum rate (whether a time rate or a piece rate) to apply in substitution for the minimum rate which would otherwise be applicable in respect of overtime work done by employees (hereinafter referred to as “overtime rate”).
(2A) Where in respect of an industrial dispute relating to the rates of wages payable to any of the employees employed in a scheduled employment any proceeding is pending before a Tribunal or National Tribunal under the Industrial Disputes Act 1947 (14 of 1947) or before any like authority under any other law for the time being in force or an award made by any Tribunal National Tribunal or such authority is in operation and a notification fixing or revising the minimum rates of wages in respect of the scheduled employment is issued during the pendency of such proceeding or the operation of the award then notwithstanding anything contained in this Act the minimum rates of wages so fixed or so revised shall not apply to those employees during the period in which the proceeding is pending and the award made therein is in operation or as the case may be where the notification is issued during the period of operation of an award during that period; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment no minimum rates of wages shall be fixed or revised in respect of that employment during the said period.
(3) In fixing or revising minimum rates of wages under this section -
(a) different minimum rates of wages may be fixed for -
(i) different scheduled employments;
(ii) different classes of work in the same scheduled employment;
(iii) adults adolescents children and apprentices;
(iv) different localities;
(b) minimum rates of wages may be fixed by any one or more of the following wage periods; namely :
(i) by the hour
(ii) by the day
(iii) by the month or
(iv) by such other larger wage-period as may be prescribed;
and where such rates are fixed by the day or by the month the manner of calculating wages for a month or for a day as the case may be may be indicated :
Provided that where any wage-periods have been fixed under section 4 of the Payment of Wages Act 1936 (4 of 1936) minimum wages shall be fixed in accordance therewith.
Section 4. Minimum rate of wages
(1) Any minimum rate of wages fixed or revised by the appropriate government in respect of scheduled employments under section 3 may consist of -
(i) a basic rate of wages and a special allowance at a rate to be adjusted at such intervals and in such manner as the appropriate government may direct to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the “cost of living allowance”); or
(ii) a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of suppliers of essential commodities at concession rates where so authorised; or
(iii) an all-inclusive rate allowing for the basic rate the cost of living allowance and the cash value of the concessions if any.
(2) The cost of living allowance and the cash value of the concessions in respect of supplied of essential commodities at concession rate shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate government.
Section 5. Procedure for fixing and revising minimum wages
(1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed the appropriate government shall either -
(a) appoint as many committees and sub-committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision as the case may be or
(b) by notification in the Official Gazette publish its proposals for the information of persons likely to be affected thereby and specify a date not less than two months from the date of the notification on which the proposals will be taken into consideration.
(2) After considering the advice of the committee or committee appointed under clause (a) of sub-section (1) or as the case may be all representations received by it before the date specified in the notification under clause (b) of that sub-section the appropriate government shall by notification in the Official Gazette fix or as the case may be revise the minimum rates of wages in respect of each scheduled employment and unless such notification otherwise provides it shall come into force on the expiry of three months from the date of its issue :
Provided that where the appropriate government proposes to revise the minimum rates of wages by the mode specified in clause (b) of sub-section (1) the appropriate government shall consult the Advisory Board also.
Section 6. Advisory committees and sub-committees
Repealed by the Minimum Wages (Amendment) Act 1957.
Section 7. Advisory Board
For the purpose of co-ordinating work of committees and sub-committees appointed under section 5 and advising the appropriate government generally in the matter of fixing and revising minimum rates of wages the appropriate government shall appoint an Advisory Board.
Section 8. Central Advisory Board
(1) For the purpose of advising the Central and State Governments in the matters of the fixation and revision of minimum rates of wages and other matters under this Act and for co-ordinating the work of the Advisory Boards the Central Government shall appoint a Central Advisory Board.
(2) The Central Advisory Board shall consist of persons to be nominated by the Central Government representing employers and employees in the scheduled employments who shall be equal in number and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman of the Board by the Central Government.
Section 9. Composition of committees etc.
Each of the committees sub-committees and the Advisory Board shall consist of persons to be nominated by the appropriate government representing employers and employees in the scheduled employments who shall be equal in number and independent persons not exceeding one-third of its total number of members; one of such independent persons shall be appointed the Chairman by the appropriate government.
Section 10. Correction of errors
10. (1) The appropriate government may at any time by notification in the Official Gazette correct clerical or arithmetical mistakes in any order fixing or revising minimum rates of wages under this Act or errors arising therein from any accidental slip or omission.
(2) Every such notification shall as soon as may be after it is issued be placed before the Advisory Board for information.
Section 11. Wages in kind
(1) Minimum wages payable under this Act shall be paid in cash.
(2) Where it has been the custom to pay wages wholly or partly in kind the appropriate government being of the opinion that it is necessary in the circumstances of the case may by notification in the Official Gazette authorise the payment of minimum wages either wholly or partly in kind.
(3) If appropriate government is of the opinion that provision should be made for the supply of essential commodities at concession rates the appropriate government may by notification in the Official Gazette authorise the provision of such supplies at concessional rates.
(4) The cash value of wages in kind and of concessions in respect of supplies of essential commodities at concession rates authorised under sub-sections (2) and (3) shall be estimated in the prescribed manner.
Section 12. Payment of minimum rate of wages
(1) Where in respect of any scheduled employment a notification under section 5 is in force the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorised within such time and subject to such conditions as may be prescribed.
(2) Nothing contained in this section shall affect the provisions of the Payment of Wages Act 1936 (4 of 1936).
Section 13. Fixing hours for normal working day etc.
(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act the appropriate government may -
(a) fix the number of hours of work which shall constitute a normal working day inclusive of one or more specified intervals;
(b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest;
(c) provide for payment for work on a day of rest at a rate not less than the overtime rate.
(2) The provisions of sub-section (1) shall in relation to the following classes of employees apply only to such extent and subject to such conditions as may be prescribed :-
(a) employees engaged on urgent work or in any emergency which could not have been foreseen or prevented;
(b) employees engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working in the employment concerned;
(c) employees whose employment is essentially intermittent;
(d) employees engaged in any work which for technical reasons has to be completed before the duty is over;
(e) employees engaged in a work which could not be carried on except at times dependent on the irregular action of natural forces.
(3) For the purposes of clause (c) of sub-section (2) employment of an employee is essentially intermittent when it is declared to be so by the appropriate government on the ground that the daily hours of duty of the employee or if there be no daily hours of duty as such for the employee the hours of duty normally include periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention.
Section 14. Overtime
(1) Where an employee whose minimum rate of wages is fixed under this Act by the hour by the day or by such a longer wage-period as may be prescribed works on any day in excess of the number of hours constituting a normal working day the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate government for the time being in force whichever is higher.
(2) Nothing in this Act shall prejudice the operation of the provisions of section 59 of the Factories Act 1948 (63 of 1948) in any case where those provisions are applicable.
Section 15. Wages of worker who works for less than normal working day
If an employee whose minimum rate of wages has been fixed under this Act by the day works on any day on which he was employed for a period less than the requisite number of hours constituting a normal working day he shall save as otherwise hereinafter provided be entitled to receive wages in respect of work done by him on that day as if he had worked for a full normal working day :
Provided however that he shall not be entitled to receive wages for a full normal working day -
(i) in any case where his failure to work is caused by his unwillingness to work and not by the omission of the employer to provide him with work and
(ii) in such other cases and circumstances as may be prescribed.
Section 16. Wages for two or more classes of work
Where an employee does two or more classes of work to each of which a different minimum rate of wages is applicable the employer shall pay to such employee in respect of the time respectively occupied in each such class of work wages at not less than the minimum rate in force in respect of each such class.
Section 17. Minimum time rate wages for piece work
Where an employee is employed on piece work for which minimum time rate and not a minimum piece rate has been fixed under this Act the employer shall pay to such employee wages at not less than the minimum time rate.
Section 18. Maintenance of registers and records
(1) Every employer shall maintain such registers and records giving such particulars of employees employed by him the work performed by them the wages paid to them the receipts given by them and such other particulars and in such form as may be prescribed.
(2) Every employer shall keep exhibited in such manner as may be prescribed in the factory workshop or place where the employees in the scheduled employment may be employed or in the case of out-workers in such factory workshop or place as may be used for giving out work to them notices in the prescribed form containing prescribed particulars.
(3) The appropriate government may by rules made under this Act provide for the issue of wage books or wage slips to employees employed in any scheduled employment in respect of which minimum rates of wages have been fixed and prescribed to manner in which entries shall be made and authenticated in such wage books or wage slips by the employer or his agent.
Section 19. Inspectors
(1) The appropriate government may by notification in the Official Gazette appoint such persons as it thinks fit to be Inspectors for the purposes of this Act and define the local limits within which they shall exercise their functions.
(2) Subject to any rules made in this behalf an Inspector may within the local limits for which he is appointed -
(a) enter at all reasonable hours with such assistants (if any) being persons in the service of the government or any local or other public authority as he thinks fit any premises or place where employees are employed or work is given out to out-workers in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act for the purpose of examining any register record of wages or notices required to be kept or exhibited by or under this Act or rules made thereunder and require the production thereof for inspection;
(b) examine any person whom he finds in any such premises or place and who he has reasonable cause to believe is an employee employed therein or an employee to whom work is given out therein;
(c) require any person giving out-work and any out-workers to give any information which is in his power to give with respect to the names and addresses of the persons to for and from whom the work is given out or received and with respect to the payments to be made for the work;
(d) seize or take copies of such register record or wages or notices or portions thereof as he may consider relevant in respect of an offence under this Act which he has reason to believe has been committed by an employer; and
(e) exercise such other powers as may be prescribed.
(3) Every Inspector shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).
(4) Any person required to produce any document or thing or to give any information by an Inspector under sub-section (2) shall be deemed to be legally bound to do so within the meaning of section 175 and section 176 of the Indian Penal Code (45 of 1860).
Section 20. Claim
(1) The appropriate government may by notification in the Official Gazette appoint any Commissioner for Workmen’s Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a judge for a civil court or as a Stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub-section (1) of section 13 or of wages at the overtime rate under section 14 to employees employed or paid in that area.
(2) Where an employee has any claim of the nature referred to in sub-section (1) the employee himself or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf or any Inspector or any person acting with the permission of the authority appointed under sub-section (1) may apply to such authority for a direction under sub-section (3) :
Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable :
Provided Further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3) When any application under sub-section (2) is entertained the authority shall hear the applicant and the employer or give them an opportunity of being heard and after such further inquiry if any as it may consider necessary may without prejudice to any other penalty to which the employer may be liable under this Act direct -
(i) in the case of a claim arising out of payment of less than the minimum rates of wages the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid together with the payment of such compensation as the authority may think fit not exceeding ten times the amount of such excess;
(ii) in any other case the payment of the amount due to the employee together with the payment of such compensation as the authority may think fit not exceeding ten rupees;
and the authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious it may direct that a penalty not exceeding fifty rupees be paid to be employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered -
(a) if the authority is a Magistrate by the authority as if it were a fine imposed by the authority as a Magistrate or
(b) if the authority is not a Magistrate by any Magistrate to whom the authority makes application in this behalf as if it were a fine imposed by such Magistrate.
(6) Every direction of the authority under this section shall be final.
(7) Every authority appointed under sub-section (1) shall have all the powers of a civil court under the Code of Civil Procedure 1908 (5 of 1908) for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and every such authority shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure 1898 (5 of 1898).
Section 21. Single application in respect of a number of employees
(1) Subject to such rules as may be prescribed a single application may be presented under section 20 on behalf or in respect of any number of employees employed in the scheduled employment in respect of which minimum rates of wages have been fixed and in such cases the maximum compensation which may be awarded under sub-section (3) of section 20 shall not exceed ten times the aggregate amount of such excess or ten rupees per head as the case may be.
(2) The authority may deal with any number of separate pending applications presented under section 20 in respect of employees in the scheduled employments in respect of which minimum rates of wages have been fixed as a single application presented under sub-section (1) of this section and the provisions of that sub-section shall apply accordingly.
Section 22. Penalties for certain offences any employer who
(a) pays to any employee less than the minimum rates of wages fixed for that employee’s class of work or less than the amount due to him under the provisions of this Act or
(b) contravenes any rule or order made under section 13;
shall 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 :
Provided that in imposing any fine for an offence under this section the court shall take into consideration the amount of any compensation already awarded against the accused in any proceedings taken under section 20.
Section 22A. General provision for punishment of other offences
Any employer who contravenes any provision of this Act or of any rule or order made thereunder shall if no other penalty is provided for such contravention by this Act be punishable with fine which may extend to five hundred rupees.
Section 22B. Cognizance of offences
(1) No court shall take cognizance of a complaint against any person for an offence -
(a) under clause (a) of section 22 unless an application in respect of the facts constituting such offence has been presented under section 20 and has been granted wholly or in part and the appropriate government or an officer authorised by it is this behalf has sanctioned the making of the complaint;
(b) under clause (b) of section 22 or under section 22A except on a complaint made by or with the sanction of an Inspector.
(2) No court shall take cognizance of an offence -
(a) under clause (a) or clause (b) of section 22 unless complaint thereof is made within one month of the grant of sanction under this section;
(b) under section 22A unless complaint thereof is made within six months of the date on which the offence is alleged to have been committed.
Section 22C. Offences by companies
(1) If the person committing any offence under this Act 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 provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1) where any 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 of the company 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.
Section 22D. Payment of undisbursed amounts due to employees
All amounts payable by an employer to an employee as the amount of minimum wages of the employee under this Act or otherwise due to the employee under this Act or any rule or order made thereunder shall if such amounts could not or cannot be paid to the employee on account of his death before payment or on account of his whereabouts not being known be deposited with the prescribed authority who shall deal with the money so deposited in such manner as may be prescribed.
Section 22E. Protection against attachment of assets of employer with government
Any amount deposited with the appropriate government by an employer to secure the due performance of a contract with that government and any other amount due to such employer from that government in respect of such contract shall not be liable to attachment under any decree or order of any court in respect of any debt or liability incurred by the employer other than any debt or liability incurred by the employer towards any employee employed in connection with the contract aforesaid.
Section 22F. Application of Payment of Wages Act 1936 to scheduled employments
(1) Notwithstanding anything contained in the Payment of Wages Act 1936 (4 of 1936) the appropriate government may by notification in the Official Gazette direct that subject to the provisions of sub-section (2) all or any of the provisions of the said Act shall with such modifications if any as may be specified in the notification apply to wages payable to employees in such scheduled employments as may be specified in the notification.
(2) Where all or any of the provisions of the said Act are applied to wages payable to employees in any scheduled employment under sub-section (1) the Inspector appointed under this Act shall be deemed to be the Inspector for the purpose of enforcement of the provisions so applied within the local limits of his jurisdiction.
Section 23. Exemption of employer from liability in certain cases
Where an employer is charged with an offence against this Act he shall be entitled upon complaint duly made by him to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if after the commission of the offence has been proved the employer proves to the satisfaction of the court-
(a) that he has used due deligence to enforce the execution of this Act and
(b) that the said other person committed the offence in question without his knowledge consent or connivance.
that other person shall be convicted of the offence and shall be liable to the like punishment as if he were the employer and the employer shall be discharged :
Provided that in seeking to prove as aforesaid the employer may be examined on oath and the evidence of the employer or his witness if any shall be subject to cross-examination by or on behalf of the person whom the employer charges as the actual offender and by the prosecution.
Section 24. Bar of suits
No court shall entertain any suit for the recovery of wages in so far as the sum so claimed -
(a) forms the subject of an application under section 20 which has been presented by or on behalf of the plaintiff or
(b) has formed the subject of a direction under that section in favour of the plaintiff or
(c) has been adjudged in any proceeding under that section not to be due to the plaintiff or
(d) could have been recovered by an application under that section.
Section 25. Contracting out
Any contract or agreement whether made before or after the commencement of this Act whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under this Act.
Section 26. Exemption and exceptions
(1) The appropriate government may subject to such conditions if any as it may think fit to impose direct that the provisions of this Act shall not apply in relation to the wages payable to disabled employees.
(2) The appropriate government if for special reasons it thinks so fit by notification in the Official Gazette direct that subject to such conditions and for such period as it may specify the provisions of this Act or any of them shall not apply to all or any class of employees employed in any scheduled employment or to any locality where there is carried on a scheduled employment.
(2A) The appropriate government may if it is of opinion that having regard to the terms and conditions of service applicable to any class of employees in a scheduled employment generally or in a scheduled employment in a local area or to any establishment or a part of any establishment in a scheduled employment it is not necessary to fix minimum wages in respect of such employees of that class or in respect of employees in such establishment or such part of any establishment as are in receipt of wages exceeding such limit as may be prescribed in this behalf direct by notification in the Official Gazette and subject to such conditions if any as it may think fit to impose that the provisions of this Act or any of them shall not apply in relation to such employees.
(3) Nothing in this Act shall apply to the wages payable by an employer to a member of his family who is living with him and is dependent on him.
Explanation : In this sub-section a member of the employer’s family shall be deemed to include his or her spouse or child or parent or brother or sister.
Section 27. Power of State Government to add to Schedule
The appropriate government after giving by notification in the Official Gazette not less than three months’ notice of its intention so to do may by like notification add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly.
Section 28. Power of Central Government to give directions
The Central Government may give directions to a State Government as to the carrying into execution of this Act in the State.
Section 29. Power of Central Government to make rules
The Central Government may subject to the condition of previous publication by notification in the Official Gazette make rules prescribing the term of office of the members the procedure to be followed in the conduct of business the method of voting the manner of filling up casual vacancies in membership and the quorum necessary for the transaction of business of the Central Advisory Board.
Section 30. Power of appropriate government to make rules
(1) The appropriate government may subject to the condition of previous publication by notification in the Official Gazette make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power such rules may -
(a) prescribe the term of office of the members the procedure to be followed in the conduct of business the method of voting the manner of filling up casual vacancies in membership and the quorum necessary for the transaction of business of the committees sub-committees and the Advisory Board;
(b) prescribe the method of summoning witnesses production of documents relevant to the subject-matter of the enquiry before the committees sub-committees and the Advisory Board;
(c) prescribe the mode of computation of the cash value of wages in kind and of concessions in respect of supplies of essential commodities at concession rates;
(d) prescribe the time and conditions of payment of and the deductions permissible from wages;
(e) provide for giving adequate publicity to the minimum rates of wages fixed under this Act;
(f) provide for a day of rest in every period of seven days and for the particulars to be entered in such registers and records;
(g) prescribe the number of hours of work which shall constitute a normal working day;
(h) prescribe the cases and circumstance in which an employee employed for a period of less than the requisite number of hours constituting a normal working day shall not be entitled to receive wages for a full normal working day;
(i) prescribe the form of registers and records to be maintained and the particulars to be entered in such registers and records;
(j) provide for the issue of wage book and wage slips and prescribe the manner of making and authenticating entries in wage books and wage slips;
(k) prescribe the powers of Inspectors for purposes of this Act;
(l) regulate the scale of costs that may be allowed in proceedings under section 20 and
(m) prescribe the amount of court-fees payable in respect of proceedings under section 20; and
(n) provide for any other matter which is to be or may be prescribed.
Section 30A. Rules made by Central Government to be laid before Parliament
Every rule made by the Central Government 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 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 31. Validation of fixation of certain minimum rates of wages
Where during the period -
(a) commencing on the 1st day of April 1952 and ending with the date of the commencement of the Minimum Wages (Amendment) Act 1954 (26 of 1954); or
(b) commencing on the 31st day of December 1954 and ending with the date of the commencement of the Minimum Wages (Amendment) Act 1957 (30 of 1957); or
(c) commencing on the 31st day of December 1959 and ending with the date of the commencement of the Minimum Wages (Amendment) Act 1961 (31 of 1961) minimum rate of wages have been fixed by an appropriate government as being payable to employees employed in any employment specified in the Schedule in the belief or purported belief that such rates were being fixed under clause (a) of sub-section (1) of section 3 as in force immediately before the commencement of the Minimum Wages (Amendment) Act 1954 (26 of 1954) or the Minimum Wages (Amendment) Act 1957 (30 of 1957) or the Minimum Wages
(Amendment) Act 1961 (31 of 1961) as the case may be such rates shall be deemed to have been fixed in accordance with law and shall not be called in question in any court on the ground merely that the relevant date specified for the purpose in that clause had expired at the time the rates were fixed :
Provided that nothing contained in this section shall extend or be construed to extend to affect any person with any punishment or penalty whatsoever by reason of the payment by him by way of wages to any of his employees during any period specified in this section of an amount which is less than the minimum rates of wages referred to in this section or by reason of non-compliance during the period aforesaid with any order or the rule issued under section 13.
Schedule
Part 1
Employment in any wollen carpet making or shawl weaving establishment.
Employment in any rice mill flour mill or dal mill.
Employment in any tobacco (including bidi making) manufactory.
Employment in any plantation that is to say any estate which is maintained for the purpose of growing cinchona rubber tea or coffee.
Employment in any oil mill.
Employment under any local authority.
Employment on the construction or maintenance of roads or in building operations.
Employment in stone breaking or stone crushing.
Employment in any lac manufactory.
Employment in any mica works.
Employment in public motor transport.
Employment in tanneries and leather manufactory.
Employment in gypsum mines.
Employment in barytes mines.
Employment in bauxite mines.
Employment in manganese mines.
Employment in the maintenance of buildings and employment in the construction and maintenance of runways.
Employment in china clay mines.
Employment in kyantite mines.
Employment in copper mines.
Employment in clay mines covered under the Mines Act 1952 (35 of 1952).
Employment in magnesite mines covered under the Mines Act 1952 (35 of 1952).
Employment in white clay mines.
Employment in stone mines.
Schedule
PART II
(1) Employment in agriculture that is to say in any form of farming including the cultivation and tillage of the soil dairy farming the production cultivation growing and harvesting of any agricultural or horticultural commodity the raising of live-stock bees or poultry and any practice performed by a farmer or on a farm as incidental to or in conjunction with farm operation (including any forestry or timbering operations and the preparation for market and delivery to storage or to market or to carriage for transportation to market of farm produce).
November 30, 2014
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.
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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.
Section 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.
—————
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.
Section 2 A. 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).
Section 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.]
———-
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).
Section 3 A . 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
Section 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.]
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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).
Section 4 A. 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.]
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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).
Section 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.]
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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).
Section 5 A. 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.]
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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).
Section 5 B. 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.]
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1. Ins. by the Finance Act, 2007.
Section 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.
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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).
Section 7. Form and Conditions of licence.
[Rep. by the Finance Act, 1992 (18 of 1992), sec. 113 (w.e.f. 14-5-1992).]
Section 8. RESTRICTION ON POSSESSION OF EXCISABLE GOODS.
From such date as may be specified in this behalf by the Central Government by notification in the Official Gazette, no person shall, except as provided by rules made under this Act, have in his possession 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.
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1. Subs. by Act 18 of 1956, sec. 34, for certain words (w.e.f. 27-4-1956).
Section 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.
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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).
Section 9 A. 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.]
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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).
Section 9 AA. 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.
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1. Ins. by Act 79 of 1985, sec. 2 (w.e.f. 27-12-1985).
Section 9 B. 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.
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1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).
Section 9 C. 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.
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1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).
Section 9 D. 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.
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1. Ins. by Act 36 of 1973, sec. 21 (w.e.f. 1-9-1973).
Section 9 E. 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.
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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).
Section 10. POWER OF COURTS TO ORDER FORFEITURE.
Any Court trying an offence under this Chapter may order the forfeiture to Government of any goods in respect of which the Court is satisfied that an offence under this Chapter has been committed, and may also order the forfeiture of any receptacles, packages or coverings in which such goods are contained and the animals, vehicles, vessels or other conveyances used in carrying the goods, and any implements or machinery used in the manufacture of the goods.
Section 11. RECOVERY OF SUMS DUE TO GOVERNMENT.
In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, 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.]
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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).
Section 11 A. 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.]
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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).
Section 11 AA. 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.]
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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).
Section 11 AB. 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.]
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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).
Section 11 AC. 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).
Section 11 B. 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.]
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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).
Section 11 BB. 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.
—————
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).
Section 11 C. 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.
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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).
Section 11 D. 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.]
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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).
Section 12. APPLICATION OF THE PROVISIONS OF ACT NO. 52 OF 1962 TO CENTRAL EXCISE DUTIES.
The Central Government may, by notification in the Official Gazette, 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.
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1. Subs. by Act 33 of 1996, sec. 78, for “Sea Customs Act, 1878 (8 of 1878)” (w.e.f. 28-9-1996).
Section 12 A. 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.
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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).
Section 12 B. 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).
Section 12 C. 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).
Section 12 D. 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).
Section 12 E. 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.
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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).
Section 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.]
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1. Subs. by Act 32 of 2003, sec. 141, for section 13 (w.e.f. 14-5-2003).
Section 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).
Section 14 A. 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).
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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).
Section 14 AA. 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).
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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).
Section 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.
Section 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).]
Section 17. PUNISHMENT FOR CONNIVANCE AT OFFENCES.
[Rep. by the Finance Act, 2002 (20 of 2002), sec. 137 (w.e.f. 11-5-2002).]
Section 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).
Section 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.
Section 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.
Section 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.
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1. See now the Code of Criminal Procedure, 1973 ( 2 of 1974).
Section 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.
Section 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.
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1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).
Section 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.]
Section 25. EXCEPTIONS.
[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]
Section 26. POWER OF STOPPAGE, SEARCH AND ARREST.
[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]
Section 27. PENALTIES FOR RESISTING OFFICER.
[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]
Section 28. CONFISCATION OF VESSEL AND CARGO.
[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f. 11-5-2002.]
Section 29. JURISDICTION.
[Rep. by the Finance Act, 2002 (20 of 2002), sec. 139 (w.e.f.11-5-2002.]
Section 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.]
Section 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. ]
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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;’.
Section 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.
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 32 A. 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.
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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).
Section 32 B. 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.
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 32 C. 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.
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 32 D. 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.
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 32 E. 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).”
Section 32 F. 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.”
Section 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.
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 32 H. 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).
Section 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).
Section 32 J. 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.
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 32 K. 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).
Section 32 L. 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.
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 32 M. 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).
Section 32 N. 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).
Section 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).
Section 32 P. 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).
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* Chapter V (containing sections 31, 32, 32A to 32P) ins. by Act 21 of 1998, sec. 110 (w.e.f. 1-8-1998).
Section 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.
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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).
Section 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.
Section 34 A. 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.
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1. Ins. by Act 36 of 1973, sec. 22 (w.e.f. 1-9-1973).
Section 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.
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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).
Section 35 A. 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].
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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).
Section 35 B. 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.]
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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).”.
Section 35 C. 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).
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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).
Section 35 D. 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).
Section 35 E. 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).
Section 35 EA. 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.]
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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).
Section 35 EE. 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).
Section 35 F. 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.]
———-
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)
Section 35 G. 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.”.
Section 35 H. 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).]]
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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.”.
Section 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.”.
Section 35 J. 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.”.
Section 35 K. 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.
—————
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).
Section 35 L. 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).
Section 35 M. 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.
Section 35 N. 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.
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1. Ins. by Act 49 of 2005, sec. 30 and Sch., Pt. VII-9 (w.e.f. 28-12-2005).
Section 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.
Section 35 P. 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.
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1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f 26-5-1995).
Section 35 Q. 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.
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1. Subs. by Act 22 of 1995, sec. 70, for “Collector of Central Excise” (w.e.f. 26-5-1995).
Section 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.
—————
1. Came into force on 11-10-1982, vide G.S.R. 592 (E), dated 11th October, 1982.
Section 36 A. 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).
Section 36 B. 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.]
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1. Ins. by Act 27 of 1988, sec. 13 (w.e.f. 16-8-1988).
Section 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 purify |
Rs. |
| salt in the process of such manufacture and refining |
50 |
| Licence to manufacture saltpetre |
02 |
| Licence to manufacture sulphate of soda (kharinun) by |
Rs |
| solar heat in evaporating pans |
10 |
| Licence to manufacture sulphate of soda (kharinun) by artificial heat |
02 |
| Licence to manufacture other saline substances |
02 |
(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).
Section 37 A. 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).
Section 37 B. 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).
Section 37 C. 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).
Section37 D. 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).
Section 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).
Section 39 . REPEAL OF ENACTMENTS.
[Repealed by the Repealing and Amending Act, 1947 (2 of 1948) s. 2 and Sch.]
Section 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.No |
Heading, sub-heading or tariff item |
Description of goods |
| 1 |
2 |
3 |
| 1 |
0402 91 10 or 0402 99 20 |
Concentrated (condensed) milk, whether sweetened or not put up in unit containers and ordinarily intended for sale |
| 2 |
1702 |
Preparations of other sugar |
| 3 |
1702 |
Sugar syrups not containing added flavouring or colouring matter, artificial honey whether or not mixed with natural honey; caramel |
| 4 |
1704 |
Gums, whether or not sugar coated (including chewing gum, bubble gum and the like) |
| 5 |
1704 90 |
All goods |
| 6 |
1805 00 00 or 1806 10 00 |
Cocoa powder, whether or not containing added sugar or other sweetening matter |
| 7 |
1806 |
Other food preparations containing cocoa |
| 8 |
1806 90 10 |
Chocolates in any form, whether or not containing nuts, fruit, kernels or fruits including drinking chocolates |
| 9 |
1901 20 00 or 1901 90 |
All goods |
| 10 |
1902 |
All goods other than seviyan (Vermicelli) |
| 11 |
1904 |
All goods |
| 12 |
1905 31 00 or 1905 90 20 |
Biscuits, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power |
| 13 |
1905 32 11 or 1905 32 90 |
Waffles and wafers, coated with chocolate or containing chocolate |
| 14 |
1905 32 19 or 1905 32 90 |
All goods |
| 15 |
2101 11 00 or 2101 12 00 |
Extracts, essences and concentrates, of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee |
| 16 |
2102 |
All goods |
| 17 |
2105 00 00 |
Ice cream and other edible ice, whether or not containing cocoa |
| 18 |
2106 90 20 |
Pan 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 |
| 19 |
2106 90 30 |
Betel nuts powder known as “Supari” |
| 20 |
2106 90 11 |
Sharbat |
| 21 |
2106 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 99 |
Edible preparations (excluding “Prasad or prasadam”), not elsewhere specified or included, bearing a brand name |
| 22 |
2201 |
Waters, including natural or artificial mineral waters (excluding Aerated waters), bearing a brand name |
| 23 |
2201 10 20 |
Aerated waters |
| 24 |
2201 10 10 |
Aerated waters |
| 25 |
2201 10 90 |
Waters, including mineral waters, bearing a brand name |
| 26 |
2209 |
Vinegar and substitutes for vinegar obtained from acetic acid |
| 27 |
2403 99 10, 2403 99 20,2403 99 30 |
Chewing tobacco and preparations containing chewing tobacco |
| 28 |
2403 99 90 |
Pan masala containing tobacco |
| 29 |
2523 21 00 |
White cement, whether or not artificially coloured and whether or not with rapid hardening properties |
| 1[29A. |
252329 |
All Goods] |
| 30 |
2710 |
Lubricating oils and lubricating preparations |
| 31 |
3004 |
(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. |
| 32 |
3204 20 or 3204 90 00 |
Synthetic organic products of a kind used as florescent brightening agents or as a uminophores |
| 33 |
3206 |
All goods other than pigments and inorganic products of a kind used as luminophores |
| 34 |
2201 10 10 |
All goods |
| 35 |
2201 10 10 |
Dyes and other colouring matter put up in forms or small packing of kind used for domestic or laboratory purposes |
| 36 |
(i) 3213(ii) 3214 |
All goodsAll goods excluding primers (heading 3208),
varnishes (heading 3209) |
| 37 |
(i) 3303 or 3304(ii) or 3305 |
Perfumes and toilet waters, not containing the substances specified in Note 1(d) to this Chapter.All goods |
| 38 |
3306 |
Toothpaste |
| 39 |
3307 |
All goods, not containing the substances specified in Note 1(d) to this Chapter |
| 40 |
3401 |
Soaps 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) 3402 |
Organic 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 |
| 42 |
3403 |
Lubricating preparations (including cutting-oil preparations, bolt or nut release preparations, antirust or anti-corrosion preparations and mould release preparations based on lubricants) |
| 43 |
3405 |
Polishes 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 |
| 44 |
3506 |
Prepared glues and other prepared adhesives, not elsewhere specified or included |
| 45 |
3702 |
All goods other than for X-ray and cinematograph films, unexposed |
| 46 |
3808 |
Insecticides, fungicides, herbicides, weedicides and pesticides |
| 47 |
3808 |
Disinfectants and similar products |
| 47A |
3808 9340 |
Plant growth regulators |
| 48 |
3814 00 10 |
Thinners |
| 49 |
3819 |
Hydraulic 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 |
| 50 |
3820 20 00 |
Anti-freezing preparations and prepared de-icing fluids |
| 51 |
3824 or 3825 |
Stencil correctors and other correcting fluids, ink removers put up in packings for retail sale |
| 52 |
3919 |
Self-adhesive tapes of plastics |
| 53 |
3923 or 3924 |
Insulated ware |
| 54 |
4816 |
Carbon paper, self-copy paper, duplicator stencils of paper |
| 55 |
4818 |
Cleansing or facial tissues, handkerchiefs and towels of paper pulp, paper cellulose wadding or webs of cellulose fibres |
| 56 |
6401 to 6405 |
Footwear |
| 57 |
6506 10 |
Safety headgear |
| 58 |
6907 |
Vitrified tiles, whether polished or not |
| 59 |
6908 |
Glazed tiles |
| 60 |
7321 |
Cooking appliances and plate warmers |
| 61 |
7323 |
Pressure cookers |
| 62 |
7324 |
Sanitary ware of iron or steel |
1. Ins. by the Finance Act, 2007
|
|
|
| 1 |
2 |
3 |
| 63 |
7418 |
Sanitary ware of copper |
| 64 |
7615 19 10 |
Pressure cookers |
| 65 |
8212 |
Razor and razor blades (including razor blade blanks in strips) |
| 66 |
8305 |
Staples in strips, paper clips of base metal |
| 67 |
8414 |
Electric fans |
| 68 |
8415 |
Window room air-conditioners and split airconditioners of capacity up to 3 tonnes |
| 69 |
8418 |
Refrigerators |
| 70 |
8421 |
Water filters and water purifiers, of a kind used for domestic purposes |
| 71 |
8422 |
Dish washing machines |
| 71A |
8443 3100 or 844332 |
Printer, whether or not combined with the functions of copying or facsimile transmission |
| 71B |
84433260 or 84433970 |
Facsimile machines |
| 71C |
84439951 |
Ink cartridges, with print head assembly] |
| 72 |
8450 |
Household or laundry type washing machines, including machines which both wash and dry |
| 73 |
8469 |
Typewriters, other than braille typewriters |
| 74 |
8470 |
Calculating machines and pocket-size data recording, reproducing and displaying machines with calculating functions |
| 74A |
847130 |
All goods] |
| 74B |
847160 |
All goods] |
| 75 |
8472 |
Stapling machines (Staplers) |
| 76 |
8506 |
Primary cells and primary batteries |
| 76A |
8508 |
Vacuum Cleaners with self contained electric motor] |
| 77 |
8509 |
4[Electro-mechanical domestic appliances with self contained electric motor, other than vacuum cleaners of heading 8508] |
| 78 |
8510 |
Shavers, hair clippers and hair-removing appliances, with self-contained electric motor |
| 79 |
8513 |
Portable electric lamps designed to function by their own source of energy (for example, dry batteries, accumulators, magnetos), other than lighting equipment of heading 8512 |
| 80 |
8516 |
Electric 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).
| 1 |
2 |
3 |
| 81 |
8517 |
Telephone sets including telephones with cordless handsets; video phones; 1[***] |
| 81A |
85176230 |
Modems (modulators-demodulators) |
| 81B |
85176960 |
Set top boxes for gaining access to internet] |
| 82 |
3[8519] |
All goods |
| 83 |
8521 |
All goods |
| 84 |
8523 |
4[Unrecorded audio cassettes; recorded or unrecorded video cassettes; recorded or unrecorded magnetic discs] |
| 85 |
5[***] |
5[***] |
| 86 |
6[***] |
6[***] |
| 87 |
7[***] |
7[***] |
| 88 |
8[***] |
8[***] |
| 89 |
8525 or 8517 |
Cellular or mobile phones |
| 89A |
8527 |
Pagers] |
| 90 |
8527 |
Radio 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 |
| 91 |
8527 |
Reception apparatus for radio-broadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock |
| 92A |
8528 |
Monitors of a kind solely or principally used in an automatic data processing machine |
| 92B |
85287100 |
Set top boxes for television sets] |
| 93 |
10[8536 |
All 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”.
| 94 |
8539 |
Electric filament or discharge lamps, including sealed beam lamp units and ultra-violet or infra-red lamps; arc lamps |
| 95 |
9006 |
All goods] |
| 96 |
9101 or 9102 |
Stapling machines (Staplers) |
| 97 |
9103 or 9105 |
Clocks |
| 97A |
96032100 |
Toothbrush] |
| 98 |
9612 |
All goods] |
| 99 |
9617 |
Vacuum flasks |
| 100 |
Any heading |
Parts, 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”.
November 30, 2014
Section 1. Short title.
This Act may be called the Citizenship Act, 1955.
Section 2. Interpretation.
(1) In this Act, unless the context otherwise requires,
(a) “a Government in India” means the Central Government or a State Government;
1[(b) “illegal migrant” means a foreigner who has entered into India
(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or
(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time;]
(d) “Indian consulate” means the office of any consular officer of the Government of India where a register of births is kept, or where there is no such office, such office as may be prescribed;
(e) “minor” means a person who has not attained the age of eighteen years:
2[(ee) “overseas citizen of India” means a person registered as an overseas citizen of India by the Central Government under section 7A;]
(f) “person” does not include any company or association or body of individuals, whether incorporated or not;
(g) “prescribed” means prescribed by rules made under this Act;
3[***]
(h) “undivided India” means India as defined in the Government of India Act, 1935, as originally enacted.
STATEMENT OF OBJECTS AND REASONS [The Citizenship (Amendment) Act, 2005]
To expand the scope of grant of Overseas Citizenship of India to Persons of Indian Origin of all countries except Pakistan and Bangladesh.
(2) For the purposes of this Act, a person born aboard a registered ship or
aircraft, or aboard an unregistered ship or aircraft of the Government of any country, shall be deemed to have been born in the place in which the ship or aircraft was registered or, as the case may be, in that country.
(3) Any reference in this Act to the status or description of the father of a person at the time of that person’s birth shall, in relation to a person born after the death of his father, be construed as a reference to the status or description of the father at the time of the father’s death; and where that death occurred before, and the birth occurs after, the commencement of this Act, the status or description which would have been applicable to the father had he died after the commencement of this Act shall be deemed to be the status or description applicable to him at the time of his death.
(4) For the purposes of this Act, a person shall be deemed to be of full age
if he is not a minor and of full capacity if he is not of unsound mind.
——————–
1. Subs. by Act 6 of 2004, sec. 2, for clauses (b) and (el-and the proviso to clause (c) (w.e.f, 3-12-2004). (See Annexe 1) .
2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 2 (w.r.e.f, 28-6-2005), for clause “(ee) “overseas citizen of India” means a person who-
(i) is of Indian origin being a citizen of a specified country, or
(ii) was a citizen of India immediately before becoming a citizen of a specified country, and is registered as an overseas citizen of India by the Central Government under subsection (1) of section 7A;
3. Clause (gg) omitted by the Citizenship (Amendment) Act, 2005, sec. 2 (w.r.e.f, 28-6-2005).
Clause (gg) prior to its omission stood as:
“(gg) “specified country” means a country specified in the Fourth Schedule:
Provided that the Central Government may, by notification in the Official Gazette, amend the said Schedule by way of addition or omission of any entry therein:
Provided further that every notification issued under this clause shall, as soon as may be, after it is made, be laid before each House of Parliament”.
Acquisition of Citizenship
Section 3. Citizenship by birth.
1[Citizenship by birth. (1) Except as provided in sub-section (2), every person born in India,-
(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;
(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where-
(i) both of his parents are citizens of India; or
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,
shall be a citizen of India by birth.
(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth-
(a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.]
——————–
1. Subs. by Act 6 of 2004, sec. 3, for section 3 (w.e.f. 3-12-2004). (See Annexe 1)
Section 4. Citizenship by descent.
1[(1) A person born outside India shall be a citizen of India by descent,-
(a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or
(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth:
Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless-
(a) his birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or
(b) his father is, at the time of his birth, in service under a Government in India:
Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless- .
(a) his birth is registered at an Indian consulate within one year of its occurrence or on or after the 10th day of December, 1992, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or
(b) either of his parents is, at the time of his birth, in service under a Government in India:
Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003, a person shall not be a citizen of India by virtue of this section, unless his birth is registered at an Indian consulate in such form and in such manner, as may be prescribed,-
(i) within one year of its occurrence or the commencement of the Citizenship (Amendment) Act, 2003, whichever is later; or
(ii) with the permission of the Central Government, after the expiry of the said period:
Provided also that no such birth shall be registered unless the parents of such person declare, in such form and in such manner as may be prescribed, that the minor does not hold the passport of another country.
(lA) A minor who is a citizen of India by virtue offhis section and is also a citizen of any other country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age.]
(2) if the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration.
(3) For the purposes of the proviso to sub-section (I), any 2[person] born outside undivided India who was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only.
——————–
1. Subs. by Act 6 of 2004, sec. 4, for sub-section (1) (w.e.f. 3-12-2004). (See Annexe 1)
2. Subs. by Act 39 of 1992, sec. 2, for “any male person” (w.e.f. 10-12-1992).
Section 5. Citizenship by registration.
1[(1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely:-
(a) a person of Indian origin who are ordinarily resident in India for seven years before making an application for registration;
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
(d) minor children of persons who are citizens of India;
(e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or sub-section (1) of section 6;
(f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
(g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for 2[one year] before making an application for registration.
STATEMENT OF OBJECTS AND REASONS [The Citizenship (Amendment) Act, 2005]
To reduce the period of residence in India from two years to one year for the persons registered as Overseas Citizens of India to acquire Indian citizenship.
Explanation 1.- For the purposes of clauses (a) and (c), an applicant shall be deemed to be ordinarily resident in India if-
(i) he has resided in India throughout the period of twelve months immediately before making, an application for registration; and
(ii) he has resided in India during the eight years immediately preceding the said period of twelve months for a period of not less than six
years.
Explanation 2.- For the purposes of this sub-section, a person shall be deemed to be of Indian origin if he, or either of his parents, was born in undivided India or in such other territory which became part of India after the 15th day of August, 1947.}
(2) No person being of full age shall be registered as a citizen of India under sub-section (1) until he has taken the oath of allegiance in the form specified in the Second Schedule.
(3) No person who has renounced, or has been deprived of, his Indian citizenship or whose Indian citizenship has terminated, under this Act shall be registered as a citizen of India under sub-section (1) except by order of the Central Government.
(4) The Central Government may, if satisfied that there are special circumstances justifying such registration, cause any minor to be registered as a citizen of India.
(5) A person registered under this section shall be a citizen of India by registration as from the date on which he is so registered; and a person registered under the provisions of clause(b)(ii) of article 6 or article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the commencement of the Constitution or the date on which he was so registered, whichever may be later.
3[(6) If the Central Government is satisfied that circumstances exist which render it necessary to grant exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of persons, it may, for reasons to be recorded in writing, grant such exemption.]
——————–
1. Subs. by Act 6 of 2004, sec. 5, for sub-section (1) (w.e.f. 3-12-2004). (See Annexe 1)
2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 3, for “two years”, (w.r.e.f. 28-6-2005).
3. Ins. by Act 6 of 2004, sec. 5 (w.e.f, 3-12-2004).
Section 6. Citizenship by naturalisation.
(l) Where an application is made in the prescribed manner by any person of full age and capacity 1[not being an illegal migrant] for the grant of a certificate of naturalisation to him, the Central Government may, if satisfied that the applicant is qualified for naturalisation under the provisions of the Third Schedule, grant to him a certificate of naturalisation:
Provided that, if in the opinion of the Central Government, the applicant is a person who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or human progress generally, it may
waive all or any of the conditions specified in the Third Schedule.
(2) The person to whom a certificate of naturalisation is granted under subsection (1) shall, on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalisation as from the date on which that certificate is granted.
——————–
1. Subs. by Act 6 of 2004, sec. 6, for “who is not a citizen of a country specified in the First Schedule (w.e.f, 3-12-2004).
Section 6 A. Special provisions as to citizenship of persons covered by the Assam Accord.
1[Special provisions as to citizenship of persons covered by the Assam Accord. (1) For the purposes of this section-
(a) “Assam” means the territories included in the State of Assam immediately before the commencement of the Citizenship (Amendment) Act, 1985;
(b) “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order;
(c) “specified territory” means the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985;
(d) a person shall be deemed to be of Indian origin, if he, or either of his parents for any of his grandparents was born in undivided India;
(e) a person shall be deemed to have been detected to be a foreigner on the date on which a Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect that he is a foreigner to the officer or authority concerned.
(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the Ist day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the Ist day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who-
(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and
(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and
(c) has been detected to be a foreigner,
shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.
Explanation.-In the case of every person seeking registration under this subsection, the opinion of the Tribunal constituted under the Foreigners (Tribunals Order, 1964 holding such person to be a foreigner, shall be deemed to b sufficient proof of the requirement under clause (c) of this sub-section and if an question arises as to whether such person complies with any other requiremen under this sub-section, the registering authority shall,-
(i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order hang jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference.
(4) A person registered under sub-section (3) shall have, as from the date on which he has been detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15 of 1967) and the obligations connected therewith), but shall not be entitled to have his name included in any electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said period of ten years.
(5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes as from the date of expiry of a period of ten years from the date on which he has been detected to be a foreigner.
(6) Without prejudice to the provisions of section 8,-
(a) if any person referred to in sub-section (2) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement of the Citizenship (Amendment) Act, 1985, for year a declaration that he does not wish to be a citizen of India, such person shall not be deemed to have become a citizen of India under that sub-section;
(b) If any person referred to in sub-section (3) submits in the prescribed manner and form and to the prescribed authority within sixty days from the date of commencement the Citizenship (Amendment) Act, 1985, for year or from the date on which he has been detected to be a foreigner, whichever is later, a declaration that he does not wish to be governed by the provisions of that sub-section and sub-sections (4) and (5), it shall not be necessary for such person to register himself under sub-section (3).
Explanation.- Where a person required to file a declaration under this subsection does not have the capacity to enter into a contract, such declaration may be filed on his behalf by any person competent under the law for the time being in force to act on his behalf.
(7) Nothing in sub-sections (2) to (6) shall apply in relation to any person -
(a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, for year is a citizen of India;
(b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, for year under the Foreigners Act, 1946 (31 of 1946).
(8) Save as otherwise expressly provided in this section, the provisions of this section shall have effect notwithstanding anything contained in any other law for the time being in force.]
——————–
1. Ins. by Act 65 of 1985, sec. 2 (w.e.f. 7-12-1985).
Section 7. Citizenship by incorporation of territory.
If any territory becomes a part of India, the Central Government may, by order notified in the Official Gazette, specify the persons who shall be citizens of India by reason of their connection with that territory; and those persons shall be citizens of India as from the date to be specified in the order.
Overseas Citizenship
Section 7 A. Registration of overseas citizens of India.
1[Overseas Citizenship]
2[Registration of overseas citizens of India. (1) The Central Government may, subject to such conditions and restrictions as may be prescribed, on an application made in this behalf, register any person as an overseas citizen of India-
(a) any person of full age and capacity,-
(i) who is citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or
(ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or
(iii) who is citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or
(iv) who is a child or a grand-child of such a citizen; or
(b) a person, who is a minor child of a person mentioned in clause (a): Provided that no person, who is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an overseas citizen of India.]
——————–
1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
2. Subs. by the Citizenship (Amendment) Act, 2005, sec. 4 (w.r.e.f, 28-6-2005), for section “7A. Registration of overseas citizens.-(l) The Central Government may, subject to such conditions and restrictions including the condition of reciprocity as may be prescribed, on an application made in this behalf, register any person as an overseas citizen of India if-
(a) that person is of Indian origin of full age and capacity who is a citizen of a specified country; or
(b) that person is of full age and capacity who has obtained the citizenship of a specified country on or after the commencement of the Citizenship (Amendment) Act, 2003 and who was a citizen of India immediately before such commencement; or
(c) that person is a minor of a person mentioned in clause (a) or clause (b).
(2) The person registered as an overseas citizen of India under sub-section (1) shall be an overseas citizen of India as from the date on which he is so registered.
(3) No person who has been deprived of his Indian citizenship under this Act shall be registered as an overseas citizen of India under sub-section (1) except by an order of the Central Government.
Explanation.-For the purposes of this section and sections 7B, 7C and 7D, the expression “person of Indian origin” shall mean a citizen of another country who-
(i) was eligible to become a citizen of India at the time of the commencement of the Constitution;
(ii) belonged to a territory that became part of India after the 15th day of August, 1947; and
(iii) the children and grand-children of a person covered under clauses (i) and (ii); but does not include a person who is or had been at any time a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify.”
Section 7 B. Conferment of rights on overseas citizens of India.
1[Conferment of rights on overseas citizens of India.
(1) Notwithstanding anything contained in any other law for the time being in force, an overseas citizen of India shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf.
(2) An overseas citizen of India shall not be entitled to the rights conferred on a citizen of India-
(a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
(b) under article 58 of the Constitution for election as President:
(c) under article 66 of the Constitution for election of Vice-President;
(d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court:
(e) under article 217 of the Constitution for appointment as a Judge of the High Court;
(f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter;
(g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;
(h) under sections 5, 5A and 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or a Legislative Council, as the case may be, of a State;
(i) for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may by special order in that behalf specify.
(3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.]
——————-
1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
Section 7 C. Renunciation of overseas citizenship.
1[Renunciation of overseas citizenship. (1) If any overseas citizen of India of full age and capacity makes in the prescribed manner a declaration renouncing his overseas citizenship of India, the declaration shall be registered by the Central Government, and; upon such registration, that person shall cease to be an overseas citizen of India.
(2) Where a person ceases to be an overseas citizen of India under sub-section (1), every minor child of that person registered as an overseas citizen of India, shall thereupon cease to be an overseas citizen of India.]
——————-
1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
Section 7 D. Cancellation of registration as overseas citizen of India.
1[Cancellation of registration as overseas citizen of India. The Central Government may, by order, cancel the registration granted under sub-section (1) of section 7A if it is satisfied that -
(a) the registration as an overseas citizen of India was obtained by means of fraud, false representation or the concealment of any material fact; or
(b) the overseas citizen of India has shown disaffection towards the Constitution of India as by law established; or
(c) the overseas citizen of India has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in.: or associated with, any business or commercial activity that was to his knowledge carried on in such manner as to assist an enemy in that war; or
(d) the overseas citizen of India has, within five years after registration under sub-section (1) of section 7A has been sentenced to imprisonment for a term of not less than two years; or
(e) it is necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.]
——————–
1. Ins. by Act 6 of 2004, sec. 7 (w.e.f. 3-12-2004).
Termination of Citizenship
Section 8. Renunciation of citizenship.
(1) If any citizen of India of full age and capacity, 1[***] makes in the prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered by the prescribed authority; and, upon such registration, that person shall cease to be a citizen of India:
Provided that if any such declaration is made during any war in which India may be engaged, registration thereof shall be withheld until the Central Government otherwise directs.
(2) Where 2[a person] ceases to be a citizen of India under sub-section (1)
every minor child of that person shall thereupon cease to be a citizen of India:
Provided that any such child may, within one year after attaining full age, make a declaration 3[in the prescribed form and manner] that he wishes to
resume Indian citizenship and shall thereupon again become a citizen of India.
——————–
1. The words “who is also a citizen or national of another country”, omitted by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004).
2. Subs. by Act 39 of 1992, sec. 3, for “a male person” (w.e.f. 10-12-1992).
3. Ins. by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004).
4. Sub-section (3) omitted by Act 6 of 2004, sec. 8 (w.e.f. 3-12-2004). (See Annexe 1)
Section 9. Termination of citizenship.
(1) Any citizen of India who by naturalisation, registration otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.
(2) If any question arises as to whether, when or how any 1[citizen of India] has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
——————-
1. Subs. by Act 6 of 2004, sec. 9, for “person” (w.e.f. 3-12-2004).
Section 10. Deprivation of citizenship.
(1) A citizen of India who is such by riaturalisation or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b) (ii) of arlicle 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section.
(2) SUbject to the provisions of this section, the Central Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that-
(a) the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact; or
(b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or
(c) that citizen has, during any war in which India may be engaged unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war; or
(d) that citizen has, within five years after registration or naturalisation, been sentenced in any country to imprisonment for a term of not less than two years; or
(e) that citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government in India or of an international organisation of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India.
(3) The Central Government shall not deprive a person of citizenship under
this section unless it is satisfied that it is not conducive to the public good that the person should continue to be a citizen of India.
(4) Before making an order under this section, the Central Government shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub-section (2) other than clause (e) thereof, of his right, upon making application therefor in the prescribed manner, to have his case referred to a committee of inquiry under this section.
(5) If the order is proposed to be made against a person on any of the grounds specified in sub-section (2) other than clause (e) thereof and that person so applies in the prescribed manner, the Central Government shall, and in any other case it may, refer the case to a Committee of Inquiry consisting of a chairman (being a person who has for at least ten years held a judicial office) and two other members appointed by the Central Government in this behalf.
(6) The Committee of Inquiry shall, on such reference, hold the inquiry in such manner as may be prescribed and submit its report to the Central Government; and the Central Government shall ordinarily be guided by such report in making an order under this section.
Supplemental
Section 11. Commonwealth citizenship.
[Rep. by the Citizenship (Amendment) Act, 2003 (6 of 2004), sec. 10.]
Section 12. Power to confer rights of Indian citizen or citizens of certain countries.
[Rep. by the Citizenship (Amendment) Act, 2003 (6 of 2004), sec. 10.]
Section 13. Certificate of Citizenship in case of doubt.
The Central Government may, in such cases as it thinks fit, certify that a person, with respect to whose citizenship of India a doubt exists, is a citizen of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date.
Section 14. Disposal of application under [sections 5, 6 and 7A].
Disposal of application under 1[sections 5, 6 and 7A]. (1) The prescribed authority or the Central Government may, in its discretion, grant or refuse an application under 2[section 5,6 or section 7A] and shall not be required to assign any reasons for such grant or refusal.
(2) Subject to the provisions of section 15 the decision of the prescribed authority or the Central Government on any such application as aforesaid shall be final and shall not be called in question in any court.
——————–
1. Subs. by Act 6 of 2004, sec. 11, for “sections 5 and 6″ (w.e.f, 3-12-2004).
2. Subs. by Act 6 of 2004, sec. 11, for “section 5 or section 6″ (w.e.f, 3-12-2004). Ed. section 11 of the Act 6 of 2004, states that for the words and figures “sections 5 and 6″, the words, figures and letter “sections 5, 6 and 7A” shall be substituted. The words “sections 5 and 6″ appear in the heading and not in the body, but in the body the text has been changed according to its construction.
Section 14 A. Issue of national identity cards.
1[Issue of national identity cards. (1) The Central Government may compulsorily register every citizen of India and issue national identity card to him.
(2) The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority.
(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2003, the Registrar General, India, appointed under sub-section (1) of section 3 of the Registration of Births and Deaths Act, 1969 (18 of 1969) shall act as the National Registration Authority and he shall function as the Registrar General of Citizen Registration.
(4) The Central Government may appoint such other officers and staff as may be required to assist the Registrar General of Citizen Registration in discharging his functions and responsibilities.
(5) The procedure to be followed in compulsory registration of the citizens of India shall be such as may be prescribed.]
——————–
1. Ins. by Act 6 of 2004, sec. 12 (w.e.f. 3-12-2004).
Section 15. Revision.
(1) Any person aggrieved by an order made under this Act by the prescribed authority or any officer or other authority (other than the Central Government) may, within a period of thirty days from the date of the order, make an application to the Central Government for revision of that order:
Provided that the Central Government may entertain the application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.
(2) On receipt of any such application under sub-section (I), the Central Government shall, after considering the application of the aggrieved person and any report thereon which the officer or authority making the order may submit, make such order in relation to the application as it deems fit, and the decision of the Central Government shall be final.
Section 15 A. Review.
1[Review. (1) Any person aggrieved by an order made by the Central Government, may within thirty days from the date of such order, make an application for review of such order:
Provided that the Central Government may entertain application after the expiry of the said period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the application in time:
Provided further that an application for a review of an order passed in terms of the provisions of section 14A shall be disposed of in the manner provided for in the procedure as may be laid down under clause (ia) of sub-section (2) of section 18.
(2) On receipt of an application under sub-section (I), the Central Government shall, make such order as it deems fit, and the decision of the
Central Government on such review shall be final.]
——————–
1. Ins. by Act 6 of 2004, sec. 13 (w.e.f. 3-12-2004).
Section 16. Delegation of power.
The Central Government may, by order, direct that any power which is conferred on it by any of the provisions of this Act other than those of section 10 and section 18 shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercisable also by
such officer or authority as may be so specified.
Section 17. Offences.
Any person who, for the purpose of procuring anything to be done or not to be done under this Act, knowingly makes any representation which is false in a material particular shall be punishable with imprisonment for a term which may extend to 1[five years], or 2[with fine which may extend to fifty thousand rupees], or with both.
——————–
1. Subs. by Act 6 of 2004, sec. 14, for “six months” (w.e.f. 3-12-2004).
2. Subs. by Act 6 of 2004, sec. 14, for “with fine” (w.e.f. 3-12-2004).
Section 18. 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 provide for-
(a) the registration of anything required or authorized under this Act to be registered, and the conditions and restrictions in regard to such registra tion;
1[(aa) the form and manner in which a declaration under sub-section (1) of
section 4 shall be made;]
(b) the forms to be used and the registers to be maintained under this Act;
(c) the administration and taking of oaths of allegiance under this Act and the time within which, and the manner in which, such oaths shall be taken and recorded;
(d) the giving of any notice required or authorized to be given by any person under this Act;
(e) the cancellation of the registration of, and the cancellation and amendment of certificate of naturalisation relating to, persons deprived of citizenship under this Act, and the delivering up of such certificates for those purposes;
2[(ee) the manner and form in which and the authority to whom declarations referred to in clauses (a) and (b) of sub-section (b) of section 6A shall be submitted and other matters connected with such declarations;]
(f) the registration at Indian consulates of the births and deaths of persons of any class or description born or dying outside India;
(g) the levy and collection of fees in respect of applications, registrations, declarations and certificates under this Act, in respect of the taking of an oath of allegiance, and in respect of the supply of certified or other copies of documents;
(h) the authority to determine the question of acquisition of citizenship of another country, the procedure to be followed by such authority and rules of evidence relating to such cases;
(i) the procedure to be followed by the committees of inquiry appointed under section 10 and the conferment on “such committees of any of the powers, rights and privileges of civil court;
3[(ia) the procedure to be followed in compulsory registration of the citizens of India under sub-section (5) of section 14A;]
(j) the manner in which applications for revision may be made and the procedure to be followed by the Central Government in dealing with such applications; and
(k) any other matter which is to be, or may be, prescribed under this Act.
(3) In making any rule under this section, the Central Government may provide that breach thereof shall be punishable with fine which may extend to one thousand rupees:
4[Provided that any rule made in respect of a matter specified in clause (ia) of sub-section (2) may provide that a breach thereof shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both.]
5[(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 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 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.]
——————–
1. Ins. by Act 6 of 2004, sec. 15 (w.e.f. 3-12-2004).
2. Ins. by Act 65 of 1985, sec. 3 (w.e.f. 7-12-1985).
3. Ins. by Act 65 of 1985, sec. 3 (w.e.f. 7-12-1985).
4. Ins. by Act 6 of 2004, sec. 15 (w.e.f. 3-12-2004).
5. Subs. by Act 4 of 1986, sec. 2 and Sch. (w.e.f. 15-5-1986).
Section 19. Repeals.
[Repealed by the Repealing and Amending Act, 1960 (Act 58 of 1960), sec. 2 and the First Schedule (w.ef 26-10-1960).]
Schedule
Schedule 1
Refer to Section 19.
Schedule 2
1[***]
2[THE SECOND SCHEDULE
[See sections 5(2) and 6(2))
OATH OF ALLEGIANCE
I, A/B ………………..do solemnly affirm (or swear) that I will bear true faith and allegiance to the Constitution of India as by law established, and that I will faithfully observe the laws of India and fulfil my duties as a citizen of India.)
——————–
1. The First Schedule omitted by Act 6 of 2004, sec. 16 (w.e.f. 3-12-2004). (See Annexe)
2. Subs. by Act 6 of 2004, sec. 17, for the Second Schedule (w.e.f. 3-12-2004). (See Annexe)
Schedule 3
THE THIRD SCHEDULE
[See section 6 (1)]
QUALIFICATIONS FOR NATURALISATION
The qualifications for naturalisation of a person 1[***] are-
(a) that he is not a subject or citizen of any country where citizens of India are prevented by law or practice of that country from becoming subjects or citizens of that country by naturalisation;
(b) that, if he is a citizen of any country, 2[he undertakes to renounce the citizenship of that country in the event of his application for Indian citizenship being accepted];
(c) that he has either resided in India or been in the service of a Government in India or partly the one and partly the other, throughout the period of twelve months immediately preceding the date of the application;
(d) that during the 3[fourteen years] immediately preceding the said period of twelve months, he has either resided in India or been in the service of a Government in India, or partly the one and partly the other, for periods amounting in the aggregate to not less than 4[eleven years];
(e) that he is of good character;
(f) that he has an adequate knowledge of a language specified in the Eighth Schedule to the Constitution; and
(g) that in the event of a certificate of naturalisation being granted to him, he intends to reside in India, or to enter into or continue in, service under a Government in India or under an international organisation of which India is
a member or under a society, company or body of persons established in India: Provided that the Central Government may, if in the special circumstances of any particular case it thinks fit,-
(i) allow a continuous period of twelve months ending not more than six months before the date of the application to be reckoned, for the pmposes of clause (c) above, as if it had immediately preceded that date;
(ii) allow periods of residence or service earlier than 5[fifteen years] before the date of the application to be reckoned in computing the aggregate mentioned in clause (d) above.
——————–
1. The words “who is not a citizen of a country specified in the First Schedule” omitted by Act 6 of 2004, sec. 18 (w.e.f. 3-12-2004).
2. Subs. by Act 6 of 2004, sec. 18, for “he has renounced the citizenship of that country in accordance with the law therein in force in that behalf and has notified such renunciation to the Central Government” (w.e.f. 3-12-2004).
3. Subs. by Act 6 of 2004, sec. 18, for “twelve years” (w.e.f. 3-12-2004).
4. Subs. by Act 6 of 2004, sec. 18, for “nine years” (w.e.f. 3-12-2004)
5. Subs. by Act 6 of 2004, sec. 18, for “thirteen years” (w.e.f. 3-12-2004).
1[***]
——————-
1. Ins. by Act 6 of 2004, sec. 19 (w.e.f. 3-12-2004) and omitted by he Citizenship (Amendment) Act, 2005 sec. 5 (w.e.f. 28-6-2005).
Prior to ommission it stood as: “THE FOURTH SCHEDULE
[See section 2(1)(gg)]
1. Australia
2. Canada
3. Finland
4. France
5. Greece
6. Ireland
7. Israel
8. Italy
9. Netherlands
10. New Zealand
11. Portugal
12. Republic of Cyprus
13. Sweden
14. Switzerland
15. United Kingdom
16. United States of America.”
November 30, 2014
Section 1. Short title.
(1) This Act may be called the Explosives Act, 1884; and Local extent.
(2) It extends to the whole of India.
Section 2. Commencement.
(1) This Act shall come into force on such day as the Central Government, by notification, in the Official Gazette appoints.
Section 3. Repeal of portions of Act 12 of 1875.
[Rep. by Art X of 1889.]
Section 4. Definitions.
In Act, unless the context otherwise requires, -
(a) “Aircraft” means any machine which can derive support in the atmosphere from the reaction of the air, other than the reactions of the air against the earth’s surface, and includes balloons, whether fixed or free, airships, kites, gliders and flying machines; I
(b) “Carriage” includes any carriage, wagon cart, truck, vehicle or other means of conveying goods or passengers by land, in whatever manner the same may be propelled;
(c) “District Magistrate” in relation to any area for which a Commissioner of Police has been appointed, means the Commissioner of Police thereof and includes-
(i) Any such Deputy Commissioner of Police, exercising jurisdiction over the whole or any part of such area, as may he specified by the State Government in this behalf in relation to such area or part; and
(ii) An additional District Magistrate;
(d) “Explosive” means gunpowder, nitroglycerine, ritroglycol, and gun cotton di-nitro-toluene, tri-nitro-toluene picric acid, di-nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclotrimethylene trinitramine, pentaerythritol-tetranitrate, totryl, nitro gannidine, lead azide, lead styphynate, fulminate of mercury or any other metal diazo-di-nitrophenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fog signals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all description and every adaptation of preparation of an explosive as defined in this clause;
(e) “Export” means taking out of India to a place outside India by land, sea of air;
(f) “Import “ means to bring into India from a place outside India by land, sea of air;
(g) “Master”, -
(i) In relation to any vessel or aircraft means any person, other than a pilot harbour master, assistant harbour master or berthing master, having for the time being the charge or control of such vessel or aircraft, as the case may be; and
(ii) In relation to any boat belonging to a ship, means the master of that ship;
(h) “Manufacture” in relation to an explosive includes the process of-
(1) Dividing the explosive into its component parts or otherwise breaking up or unmaking the explosive, or making fit for use any damaged explosive, and
(2) Remaking, altering or repairing the explosive;
(i) “Prescribed” means prescribed by rules made under the Act;
(j) “Vessel” includes any ship, boat, sailing vessel, or other description of vessel used in navigation whether propelled by cars or otherwise and anything made for the conveyance, mainly by water, of human beings or of goods and a caisson.
Section 5. Power to make rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosives.
(1) The Central Government may for any part of India make rules consistent with this Act to regulate or prohibit, except under and in accordance with the conditions of a licence granted as provided by those rules, the manufacture, possession, sale, transport, import and export of explosives, or ally specified class of explosives,
(2) Rules under this section may provide for all or any of the following among other matters, that is to say, -
(a) The authority by which licences may be granted;
(b) The fees to be charged for licences, and the other sums (if any) to be paid for expenses by applicants for licences; (c) The manner in which applications for licences must be made, and the matters to be specified in such applications;
(d) The form in which, and the conditions on and subject to which, licences must be granted;
(e) The period for which licences are to remain in force;
(ee) The authority to which appeals may be preferred under Section 6-F, the procedure to be followed by such authority and the period within which appeals shall be preferred, the fees to be paid in respect of such appeals and the circumstances under which such fees may be refunded;
(ee-a) The total quantity of explosives that a licensee can purchase in a given period of time;
(ee-b) The fees to be charged by the Chief Controller of Explosives or any officer authorised by him in this behalf, for services rendered in connection with the manufacture, transport, import or export of explosives;
(f) The exemption absolutely or subject to conditions of any explosives or ally person or class of persons from the operation of the rules.
Section 5-A. Persons, already in business in respect of certain explosives to carry on such business without licence for a certain period.
Notwithstanding anything in Section 5 or in the rules made thereunder where, immediately before the commencement of the Indian Explosives (Amendment) Act, 1978, any person was carrying on the business or manufacture, sale, transport, import or export of any explosive for which no licence was required under this Act before its amendment by the Indian Explosives (Amendment) Act, 1978, then, such person shall be entitled to continue to carry on such business without licence in respect of such explosive-
(a) For a period of three months from the date of such commencement; or
(b) If before the expiry of the said period of three months, such person has made an application for grant of licence under this Act for such licences in such explosive, until the final disposal of his application, whichever is later.
Section 6. Power for Central Government to prohibit the manufacture, possession of importation of specially dangerous explosives.
(1) Notwithstanding anything in the rules under the last foregoing section, the Central Government may from time to time, by notification in the official Gazette,-
Prohibit, either absolutely or subject to conditions, the manufacture, possession or importation of any explosive which is of so dangerous a character that, in the opinion of the Central Government, it is expedient for the public safety to issue the notification.
(2) The officers of sea customs at every port shall have the same power in respect of any explosive with regard to the importation of which a notification has been issued under this section and the vessel containing the explosive, as they have for the time being in respect of any article, the importation of which is prohibited or regulated by the law relating to sea customs and the vessel containing the same, and the enactments for the time being in force relating to sea customs or any such article or vessel shall apply accordingly.
(3) Any person manufacturing, possessing or importing an explosive in contravention of a notification issued under this section shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both and in the case of importation by water, the owner and master of the vessel in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees.
Section 6A. Prohibition of manufacture, possession, sale, or transport of explosive by young persons and certain other persons.
Notwithstanding anything in the foregoing provisions of this Act,-
(a) No person, -
(i) Who has not completed the age of eighteen years, or
(ii) Who has been sentenced on conviction of any offence involving violence or moral turpitude for a term of not less than six months, at any time during a period of five years after the expiration of the sentence, or
(iii) Who has been ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974), a bond for keeping the peace or for good behaviour, at any time during the term of the bond, or
(iv) Whose licence under this Act has been cancelled, whether before or after the commencement of the Indian Explosives (Amendment) Act, 1978, for contravention of the provisions of this Act or of the rules made thereunder, at any time during a period of five years from the date of cancellation of such licence, Shall-
(1) Manufacture, sell, transport, import or export any explosive, or
(2) Possess any such explosive as the Central Government may, having regard to the nature thereof, by notification in the Official Gazette, specify;
(b) No person shall sell, deliver or despatch any explosive to a person whom he knows or has reason to believe fit the time of such sale, delivery or dispatch,-
(i) To be prohibited under clause (a) to manufacture, sell, transport, import, export or possess such explosive, or
(ii) To be of unsound mind.
Section 6-B. Grant of licences.
(1) Where a person makes an application for licence under Section 5, the authority prescribed in the rules made under that section for grant of ,licences (hereinafter referred to in this Act as the licensing authority), after making such inquiry, if any, as it may consider necessary, shall, subject to the other provisions of this Act, by order in writing either grant the licence or refuse to grant the same,
(2) The licensing authority shall grant a licence-
(a) Where it is required for the purpose of manufacture of explosive if the licensing authority is satisfied that the person by whom licence is required-
(i) Possesses technical know-how and experience in the manufacture of explosives; or
(ii) Has in his employment or undertaken to employ a person or pencils, possessing such technical know, how and experience; or
(b) Where it is required for any other purpose, if the licensing authority is satisfied that the person by whom licence is required has a good reason for obtaining the same.
Section 6-C. Refusal of licences.
(1) Notwithstanding anything contained in Section 6-B the licensing authority shall refuse to grant a licence-
(a) Where such licence is required in respect of any prohibited explosive; or
(b) Where such licence is required by a person whom the licensing authority has reason to believe-
(i) To be prohibited by this Act or by any other law for the time being in force to manufacture, possess, sell, transport, import or export any explosive, or
(ii) To be of unsound mind, or
(iii) To be for any reason unfit for a licence under this Act; or
(c) Where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) Where the licensing authority refuses to grant a licence to any person, it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of opinion that it will not be in the public interest to furnish such statement.
Section 6-D . Licensing authority competent to impose conditions in addition to prescribed conditions.
A licence granted under Section 6-B may contain in addition to prescribed conditions such other conditions as may be considered necessary by the licensing authority in any particular case.
Section 6-E. Variation , suspension and revocation of licences.
(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the holder of licence by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.
(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.
(3) The licensing authority may, by order in writing, suspend a licence for such period as it thinks fit or revoke a licence,-
(a) If the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by other law for the time being in force to manufacture, possess, sell, transport, import or export any explosive, or is of unsound mind, or is for any reason unfit for a licence under this Act; or
(b) If the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or
(c) If the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for the licence; or
(d) If any of the conditions of the licence has been contravened; or
(e) If the holder of the licence has failed to comply with a notice under sub-section (I requiring him to deliver-up the licence.
(4) The licensing authority may also revoke a licence on the application of the holder- thereof.
(5) Where the licensing authority makes an order varying the conditions of a license under sub-section (1) or an order suspending or revoking a licence under sub-section(3) It shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.
(6) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke a licence
Provided that if the conviction is set-aside on appeal or otherwise, the suspension or revocation shall become void.
(7) An order of suspension or revocation under sub-section (6) may also be made by an appellate court or by the High Court when exercising its powers of revision.
(8) The Central Government may, by order in the Official Gazette suspend or revoke, or direct any licensing authority to suspend or revoke, all or any licences granted wider this Act throughout India or any part thereof.
(9) On the suspension or revocation of a licence under this section, the holder thereof shall without delay surrender the licence to the authority by which it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.
Section 6-F. Appeals.
(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority suspending or evoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:
Provided that no appeal shall lie against an order made by, or under the direction of, the Central Government.
(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor
Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.
(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Limitation Act, 1963 (36 of 1963), with respect to the computation of periods of limitation thereunder.
(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed where such statement has been furnished to the appellant and by such fee as may be prescribed.
(5) In disposing of at) appeal the appellate authority shall follow such procedure as may be prescribed
Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.
6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order.
(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.
Section 7. Power to make rules conferring powers of inspection, search, seizure, detention’ and removal.
(1) The Central Government may make rules consistent with this Act authorising any officer either by name or in virtue of his office-
(a) To enter, inspect and examine any place, aircraft, carriage or vessel in which an explosive is being manufactured, possessed, used, sold, transported or imported under a licence granted under this Act, or in which he has reason to believe that an explosive has been or is manufactured, possessed, used, sold, transported, imported or exported, in contravention of this Act or of the rules made under this Act;
(b) To search for explosive therein;
(c) To take samples of any explosive found therein on payment of the value thereof; and ze, detain and remove any explosive or ingredient thereof found therein
(d) To seize and, if necessary, also destroy such explosive or ingredient.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches under that Code shall, so far as the same are applicable, apply to searches by officers authorized by rules this section.
Section 8. Notice of accidents.
(1) Whenever there occurs in or about, or in connection with, any place in which an explosive is manufactured, possessed or used, or any aircraft, carriage or vessel either conveying an explosive or on or from which an explosive is being loaded or unloaded, any accident by explosion or by fire attended with loss of human life or serious injury to person or property, or of a description usually attended with such loss or injury, the occupier of the place, or the master of the aircraft or vessel or the person in charge of the carriage, as the case may be, shall within such hire and in such manner as may be by rule prescribed, give notice thereof and of the attendant loss of human life or personal injury, if any, to the Chief Controller of Explosives in India and to the officer-in-charge of the nearest police station.
(2) 1[ * * * ]
1. Sub-section (2) omitted by Act No. 32 of 1978.
Section 9. Inquiry into accidents.
(1) Where any accident such as is referred to in Section 8 occurs in or about or in connection with any place, aircraft, carriage or vessel under the control of any of Armed forces of the Union an inquiry into the causes of the accident shall be held by the naval, military or air force authority concerned, and where any such accident occurs in any other circumstances, the District Magistrate shall, in cases attended by loss of human life, or may, in any other case, hold or direct a Magistrate subordinate to him to hold, such an inquiry.
(2) Any person holding an inquiry under this section shall have all the powers of Magistrate in holding an inquiry into an offence under the Code of Criminal Procedure, 1973(2 of 1974) and may exercise each of the powers conferred on any officer by rules under Section 7 as he may think it necessary or expedient to exercise for the purpose of the inquiry.
(3) The person holding an inquiry under this section shall make a report to the Central Government stating the causes of the accident and its circumstances.
(4) The Central Government may make rules-
(a) To regulate the procedure at inquires under this section;
(b) To enable the Chief Controller of Explosive in India to be present or represented at any such inquiry;
(c) To permit the Chief Controller of Explosives in India or his representative to examine any witnesses at the inquiry;
(d) To provide that where the Chief Controller of Explosives in India is not present or represented at any such inquiry, a report of the proceedings thereof shall be sent to him;
(e) To prescribe the manner in which and the time within which notices referred to in Section 8 shall be given.
Section 9-A. Inquiry into more serious accidents.
(1) The Central Government may, where it is of opinion, whether or not it has received the report of an inquiry under Section 9, that an inquiry of more formal character should be held into the causes of an accident such as is referred to in Section 8, appoint the Chief Controller of Explosives or any other competent person to hold such inquiry, and may also appoint one or more persons possessing legal or special knowledge to act as assessors in such inquiry.
(2) Where the Central Government orders in an inquiry under this Section, it may also direct that any inquiry under Section 9 pending at the time shall be discontinued.
(3) The person appointed to hold an inquiry under this section, shall have all the powers of Civil Court under the Code of Civil Procedure, 1908 (V of 1980), for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects; and every person required by such person as aforesaid to furnish any information shall be deemed to be legally bound so to do within the meaning of Section 176 of the Indian Penal Code (XLV of 1860).
(4) Any person holding an inquiry under this section may exercise such of the powers conferred on any officer by rules under Section 7 as he may think it necessary or expedient to exercise for the purposes of the inquiry.
(5) The person holding an inquiry under this section shall make a report to the Central Government stating the causes of the accident and its circumstances, and adding any observations which he or any of the assessors may think fit to make; and the Central Government shall cause every report so made to be published at such time and in such manner as it may think fit.
(6) The Central Government may make rules for regulating the procedure at inquiries under this section.
Section 9-B. Punishment of certain offences.
(1) Whoever, in contravention of rules made under Section 5 or of the conditions of a licence granted under the said rules-
(a) Manufactures, imports or exports any explosive shall be punishable with imprisonment for a term, which may extend to three years, or with fine, which may extend to five thousand rupees, or with both;
b) Possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and
(c) In any other case, with fine which may extend to one thousand rupees.
(2) Whoever in contravention of a notification issued under Section 6, manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and in the case of importation by water, the owner and master of the vessel or in the case of importation by air, the owner and the master of the aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each to be punishable with fine which may extend to five thousand rupees.
(3) Whoever, -
(a) Manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of clause (a) of Section 6; or
(b) Sells, delivers or dispatches any explosive in contravention of the provisions of Clause (b) of that section, shall be punishable with imprisonment for ay extend to three years or with fine or with both; or
(c) In contravention of the provisions of section 8 fails to give notice of any accident shall be punishable-
(i) With fine which may extend to five hundred rupees, or
(ii) If the accident is attended by loss of human life, with imprisonment for a term, which may which, may extend to three months or fine or with both.
Section 9-C. Offences by companies.
(1) Whenever 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, or 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 against and punished accordingly be liable to be proceeded
Provided that nothing contained in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without edge and that he 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.
Section 10. Forfeiture of explosives.
Where a person is convicted of an offence punishable under this Act, or the rules made under this Act, the court before which he is convicted may direct that the explosive, or ingredient of the explosive or the substance (if any) in respect of which the offence has been committed, or any part of that explosive, ingredient or substance, shall with the receptacles containing the same, be forfeited.
Section 11. Distress of aircraft or vessel.
Where the owner or master of any aircraft or vessel is adjudged under this Act to pay a fine for any offence committed with, or in relation to, that aircraft or vessel, the court may, in addition to any power it may have for the purpose of compelling payment of the fine, direct it to be levied by distress and sale of, -
(a) The aircraft and its furniture or so much of the furniture, or (a)
(b) The vessel and the tackle, apparel and furniture of such vessel or so much of the tackle, apparel and furniture thereof, as is necessary for the payment of the fine.
Section 12. Abetment and attempts.
Whoever abets, within the meaning of the Indian Penal Code (XLV of 1860), the commission of an offence punishable under this Act, or the rules made under this Act, or attempts to commit any such offence and in such attempt does any act towards the commission of the same, c ,hall be punished as if he had committed the offence.
Section 13. Power to arrest without warrant persons committing dangerous offences.
Whoever is found committing any act for which he is punishable under this Act, and which tends to cause explosion or fire in or about any place where an explosive is manufactured or stored, or any railway or port, or any carriage, aircraft or vessel may be apprehended without a warrant by a police officer or by the occupier of, or the agent or servant of, or other person authorised by the occupier of, that place or by any agent or servant of, or other person authorised by the Railway Administration or conservator of the port or officer in charge of the airport and be removed from the place where he is arrested and conveyed as soon as conveniently may be before a Magistrate.
Section 14. Saving and power to exempt.
(1) Nothing in this Act, except Sections 8, 9 and 9-A, shall apply to the manufacture, possession, use transport or importation of any explosive-
(a) By any of Armed Forces of the Union and Ordnance Factories or other establishment or such Forces in accordance with rules or regulations made by the Central Government.
(b) By any person employed under the Central Government or under a State Government in execution of this Act.
(2) The Central Government may, by notification in the official Gazette exempt, absolutely or subject to any such condition as it may think fit to impose, any explosive and any person or class of persons from all or any of the provisions of this Act or the rules made thereunder.
Section 15. Saving of Indian Arms Act, 1978.
Nothing under this Act shall affect the provisions of the Arms Act, 1959 (54 of 1959) :
Provided that all authority granting a licence under this Act for the manufacture, possession, sale, transport or importation of all explosive may, if empowered in this behalf by the rules under which the licence is granted, direct by an order in writing on the licence that it shall have the effect of a like licence granted under the said Indian Arms Act.
Section 16. Saving as to liability under other law.
Nothing in this Act or the rules under this Act shall prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence against this Act or those rules, or from being liable under that other law to any other or higher punishment or penalty than that provided by this Act or those miles:
Provided that a person shall not be punished twice for the same offence.
Section 17. Extension of definition of “explosive” to other explosive substances.
The Central Government may, from time to time, by notification in the Official Gazette, declare that any substance which appears to the Central Government to be specially dangerous to life or property, by reason either of its explosive properties or of any process in the manufacture thereof being liable to explosion, shall be deemed to be an explosive within the meaning of this Act, and the provisions of this Act (subject to such exceptions, limitations and restrictions as may be specified in the, notification) shall accordingly extend to that substance in like manner as if it were included in the definition of the term “explosive” in this Act.
Section 17-A. Power to delegate.
The Central Government may, by notification in the Official Gazette, direct that any power to function which may be exercised or performed by it under this Act other than the power under Sections 5, 6, 6-A, 14 and 17 may, in relation to such matters and subject to such conditions, if any, as it may specify in the notification, be exercised Or performed also by-
(a) Such officer or authority subordinate to the Central Government, or
(b) Such State Government or such officer or authority subordinate to the state Government.
Section 18. Procedure for making publication and confirmation or rules.
(1) An authority making rules under this Act shall, before making the rule, publish a draft of the proposed information of persons likely to be affected thereby.
(2) The publication shall be made in such manner as the Central Government, from time to time, by notification in the Official Gazette, prescribes.
(3) There shall be published with the draft a notice specifying date at or after which (3) the draft will be taken into consideration.
(4) The authority making the rule, shall receive and consider any objection or suggestion, which may be made by any person with respect to the draft before the date so specified.
(5) A rule made under this Act shall not take effect until it has been published in the Official Gazette.
(6) The publication in the Official Gazette of a rule purporting to be made under this Act shall be conclusive evidence that it has been duly made, and, if it requires sanctions that, it has been duly sanctioned.
(7) All powers to make rules conferred by this Act may be exercised from time to time, as occasion requires.
(8) 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 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.
