Section 128A explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 128A governs how the Commissioner (Appeals) deals with an appeal filed under section 128. It gives the appellant a hearing, allows a ground not listed in the appeal in some cases, lists the orders the Commissioner may pass, limits orders that make things worse for the appellant, requires a written reasoned order, sets a six-month target and tells the Commissioner whom to communicate the order to. This article follows the text on the CBIC portal updated to 30 March 2022.
The Commissioner (Appeals) must give the appellant a hearing if he so desires, may allow a ground not specified in the appeal if its omission was not wilful or unreasonable, and after further inquiry may confirm, modify or annul the order, or refer the matter back for fresh adjudication in three listed cases. An order enhancing a penalty or fine, confiscating goods of greater value, or reducing a refund needs a prior chance to show cause. The order is in writing with reasons, and the Commissioner shall, where possible, decide within six months of filing.
The text consulted is the CBIC copy last updated on 30 March 2022 (the Act as amended up to the Finance Act, 2022). Later Finance Acts are not in that copy; check any later change to section 128A before acting.
Where it fits
Section 128, covered in our article on section 128 and the appeal to the Commissioner (Appeals), says who can appeal and in what time. Section 128A says what happens once the appeal is before the Commissioner (Appeals). If your appeal has been filed and the hearing is coming up, our legal dispute resolution team can help you prepare.
The copy consulted prints section 128A with many joined words ("anopportunity", "atthe hearing", "appealnot"). The footnotes record that "Commissioner (Appeals)" replaced "Collector (Appeals)" by the Finance Act, 1995 (22 of 1995), with effect from 26.05.1995. This article reads the text as intended and quotes the figures as printed.
Sub-section (1): the hearing
"The Commissioner (Appeals) shall give an opportunity to the appellant to be heard if he so desires." The hearing is mandatory if the appellant wants it, so an appellant who wants to be heard should say so in writing.
Sub-section (2): grounds not in the appeal
The 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 Commissioner (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable." Two conditions: the omission was not wilful and not unreasonable. The decision rests on the Commissioner's satisfaction.
Sub-section (3): the orders that can be passed
After "making such further inquiry as may be necessary", the Commissioner (Appeals) passes such order as he thinks "just and proper". The words "just and proper" were substituted by section 96 of the Finance Act, 2018 (13 of 2018), with effect from 29-3-2018, and the two limbs below were set out in that substitution, as the footnote prints.
| Limb | Orders | Conditions |
|---|---|---|
| (a) | Confirming, modifying or annulling the decision or order appealed against | None stated beyond "just and proper" |
| (b) | Referring the matter back to the adjudicating authority with directions for fresh adjudication or decision | Only in the three cases below |
The three cases for sending a matter back in limb (b):
- where an order or decision has been passed without following the principles of natural justice;
- where no order or decision has been passed after re-assessment under section 17; or
- where an order of refund under section 27 has been issued by crediting the amount to Fund without recording any finding on the evidence produced by the applicant.
The word "Fund" is printed as shown; the text does not expand it. The list in limb (b) is set out by the words "in the following cases, namely", so the power to refer back is tied to those three cases.
The two provisos
First proviso: worse outcomes. "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." The appellant therefore has a right to know of, and answer, a proposal to make the outcome worse. Our articles on section 124 and section 125 explain the original notice and the fine in lieu of confiscation.
Second proviso: duty. Where the Commissioner (Appeals) is of opinion that any duty has not been levied, has been short-levied or has been 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." The time-limit is that of section 28, explained in our articles on section 28 and the notice for duty not levied and the extended period.
Example with invented names: Jayanti Exports appeals against an order that confirms a penalty. At the hearing the Commissioner (Appeals) thinks the penalty should be higher. Under the first proviso, the Commissioner cannot enhance it without first giving Jayanti a reasonable opportunity to show cause against the proposed enhancement.
Sub-section (4) and (4A): the order and the six months
(4) The order disposing of the appeal "shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision". Three things must appear: the points, the decision and the reasons.
(4A) Inserted by the Finance Act, 2001 (14 of 2001), with effect from 11.05.2001, per the footnote: 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." The words "where it is possible to do so" make this a target and not a hard limit; the text prints no consequence for missing it.
Sub-section (5): communication of the order
On disposal, the Commissioner (Appeals) shall communicate the order to the appellant, the adjudicating authority, the Principal Chief Commissioner of Customs or Chief Commissioner of Customs and the Principal Commissioner of Customs or Commissioner of Customs. The footnotes record that these designations were substituted by the Finance (No.2) Act, 2014 (25 of 2014), with effect from 06.08.2014, and that the words naming the last-mentioned officer were added by the Finance Act, 2005, with effect from 13.05.2005.
The rules
The Customs (Appeals) Rules, 1982, made under section 156(1), have a rule headed "Production of additional evidence before the (Appeals)", as their table of contents prints. The copy consulted is last updated 06-August-2014, the date printed on that file and not of the Act text. This article takes no rule detail from it.
Practical points
- Ask for a hearing in writing, since the right is conditional on the appellant's wish.
- If a ground was left out of the appeal, be ready to show that the omission was neither wilful nor unreasonable.
- If the Commissioner proposes to enhance a penalty or fine, confiscate goods of greater value or reduce a refund, ask for the proposal in writing and reply to it.
- Keep a copy of the final order and note to whom it was communicated.
- For the next stage see our articles on section 129A and appeals to the Appellate Tribunal and how to file a customs appeal before CESTAT.
Need help with a hearing before the Commissioner (Appeals)?
A first appeal is won on the record: the grounds, the documents and the reply to any proposal to make the outcome worse. Our team can help you prepare for the hearing and respond to any notice of enhancement through legal dispute resolution for customs matters.
Key takeaways
- The appellant is heard if he so desires; a ground omitted from the appeal can be allowed if the omission was not wilful or unreasonable.
- The Commissioner (Appeals) may confirm, modify or annul, or refer back in three listed cases.
- Enhancing a penalty or fine, confiscating goods of greater value or reducing a refund needs a prior opportunity to show cause; a duty demand needs notice within the section 28 time-limit.
- The order is written and reasoned, and the six-month target applies where possible.
Read next
- Section 128: appeal to the Commissioner (Appeals)
- Section 129A: appeals to the Appellate Tribunal
- Section 129: the Appellate Tribunal (CESTAT)
- Customs appeal process: Commissioner (Appeals), CESTAT and the High Court
Disclaimer: Based on the Customs Act, 1962 as published on the CBIC Tax Information Portal, updated to 30 March 2022 (amended up to the Finance Act, 2022), as consulted on 2 October 2026. Finance Acts of 2023 and later, and the current rules, regulations and notifications, should be checked. This article is general information, not legal advice; check the official text before acting.