COMMISSIONER OF CENTRAL EXCISE, COMMISSIONER, DELHI - ILL, GURGAONversusM/S. KAP CONES, UDYOG VIHAR, PHASE-V, GURGAON

                    [2015) 8 S.C.R. 445


        COMMISSIONER OF CENTRAL EXCISE,                        A
        COMMISSIONER, DELHI - Ill, GURGAON
                             v
M/S. KAP CONES, UDYOG VIHAR, PHASE-V, GURGAON
                                                               B
              (Civil Appeal No. 5432 of 2015)
                       JULY20, 2015

     [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
                                                               c
     Central Excise Act, 1944 - s. 35E(4) - Powers of the
tribunal to condone delay- On facts, Commissioner filed an
application before the tribunal uls. 35-E(4) within one month
of the communication of the order of review-Application also
filed for condonation of delay of 8 days - Said delay occurred o
in review of the order of Commissioner by Committee ofChief
Commissioners since reviewing authority received the
Commissioner's order three days after its pronouncement
and review order which was to be passed within three months
from the date of communication was passed after eight days · E
of expiry of the period - Tribunal held that it cannot condone
the delay - High Court upheld the said order- On appeal,
held: Analysis made by the Full Bench of the tribunal in CCE
v. Monnet lspat & Energy Ltd. that the tribunal has ample power
to condone the delay in filing the appeal including the one F
filed u/s. 35E(4) is correct- Members deciding the /is by the
impugned order should have kept themselves abreast to the
Full Bench decision - Matter is remanded back to tribunal
for consideration of the application for condonation of delay
on merits.                                                      G
      Allowing the appeal, the Court
    HELD: The analysis made by the Full Bench of the
                        445
                                                               H
446      SUPREME COURT REPORTS              (2015] 8 S.C.R.


A tribunal-CCE v. Monnet /spat & Energy Ltd. is correct in
  view of the opinion expressed that "the Tribunal has
  ample power to condone the delay in filing the appeal
  including the one filed under Section 35E(4) of the
  Central Excise Act, ·1944. The period which can be
B condoned in relation to filing of the appeal under Section
  35E(4) of the said Act would include the period availed
  by the review committee in terms of Section 35E(1) or
  35E(2) of the said Act. As regards the appeals by the
  Department in terms of Section 35E(4), the same should
C be filed within one month from the date of
  communication of the order under sub-section (1) or sub-
  section (2) of the said section but not beyond four
  months from the date of communication of order of the
  adjudicating authority to the review committee. In case
0
  there is any delay in this regard, the same can be
  condoned in exercise of powers under Section 358(5),
  on being satisfied about sufficient cause for such delay
  and power to condone the delay would include the
E period availed under Section 35E(1) or (2) by the
  reviewing committee to decide about filing of the
  appeal." The said view is correct. The members deciding
  the lis by the impugned order should have kept
  themselves abreast to the Full Bench decision of the
F tribunal so that there would not have been two views as
  regards the same proposition. The order passed by the
  tribunal is set aside and the matter is remanded to it for
  consideration of the application for condonation of delay
  on its own merits. [Para 27, 28, 29] [465-C-H; 466-8-C]
G
       Commissioner of Customs and Central Excise v. Hongo
  India Private Limited and Another (2009) 5 SCC 791 -
  distinguished. ·

       CCE v. Monnet /spat & Energy Ltd. 2010 (257) ELT 239
H
  CCE,COMMISSIONER, DELHI- Ill, GURGAON v. KAP                 447
              CONES, GURGAON

(Tri-New Delhi) (LB); Central Excise v. M.M. Rubber Co. A
1991 (55) ELT 289; CCE v. Bhillai Wires Ltd. 2009 (236)
ELT 40; CCE v. M.M Rubber Co. 1991 (55) ELT 289 (SC)-
referred to.

                  Case Law Reference                            B
  2010 (257) ELT 239         referred to         Para 4

  1991 (55) ELT 289          referred to           Para 5

  2009 (236) ELT. 40         referred to         Para 5         c
  1991 (55) ELT 289 (SC)     referred to         Para 6

  (2009) 5 sec 191           distinguished       Para 26

   CIVIL APPELLATE JURISDICTION: Civil Appeal No.               D
5432 of2015.

    From the Judgment and Order dated 22.08.2013 in
Central ExciseAppeal No. 69 of2013 (O&M), of the High Court
of Punjab and Haryana at Chandigarh.                            E

    P.S. Patwalia, ASG, J. Smita Rao, Tushar Bakshi and B.
Krishna Prasad for the Appellant.

   Dr. GK. Sarkar, Malabika Sarkar, Susmita Lal and Prasant · F
Kumarforthe Respondent.

    The Judgment of the Court was delivered by

    DIPAK MISRA, J. 1. Leave granted.
                                                                G
    2. The respondent, a proprietary concern having two
factories; one situated at 449A, Udyog Vihar, Phase-V,
Gurgaon and the second at Plot No. 29, Secot-5, IMT Manesar,
Gurgaon, is engaged in manufacture of paper cones to wrap
ice-cream cones and cone biscuits and the said items are        H
448          SUPREME COURT REPORTS                    [2015) 8 S.C.R.


A     chargeable to central excise duty. A proceeding was initiated
      against the firm for filing of input duty credit, capital goods duty
      credit and further clandestine removal of the finished product.
      On 15. 7.2011, the Commissioner adjudicated the matter and
      disallowed the Cenvat credit taken and confirmed the demand
B     as indicated in the show cause notice at the time of
      commencement of the proceeding invoking the extended
      period under the proviso to Section 11A(1) of the Central
      Excise Act, 1944 (for brevity, "the Act") and directed for
      confiscation of the seized goods. The adjudicating authority,
C     as the factual matrix would uncurtain, imposed penalty of Rs.50
      lakhs on the proprietor of the f:rm in exercise of the power
      under Rule 15 of the Cenvat Credit Rules, 2004. The order
      passed by the adjudicating Commissioner was received by
      the concerned jurisdictional Chief Commissioner on 18.7.2011.
0
      After receipt of the said order, the Committee of the Chief
      Commissioners reviewed the same and expressed the opinion
      that the decision taken by the Commissioner was fallacious
      inasmuch as he had not imposed penalty under Section 11A(1)
E     which was imposable; and that the Commissioner had
      overlooked the imposition of penalty on the Manager and
      Accounts Manager of the respondent firm under Rule 26 of
      the Central Excise Rules, 2006, which was required in the facts
      and circumstances of the case. The review order no. 35 of
F     2011 was issued on 25.10.2011 under Section 35-E(1) of the
      Act and a direction was issued to the Commissioner to file
      appropriate application before the Customs Excise and .
      Service Tax Appellate Tribunal (for short, "the tribunal) under
      Section 35-E(4) for correct determination. The order passed
G     by the Committee was received by the Commissioner on
      31.10.2011.

       3. In accordance with the order passed by the Committee
 . of Chief Commissioners, the Commissioner filed an
H application on 16.11.2011 before the tribunal under Section
   CCE,COMMISSIONER, DELHI - Ill, GURGAON v. KAP                449
        CONES, GURGAON [DIPAK MISRA, J.)

35-E(4) within one month from the date of communication of A
the order of review. Be it noted, along with an application filed
under Section 35-E(4), an application for condonation of delay
was filed for condoning 8 days delay that occurred inreview of
the order of the Commissioner by the Committee of Chief
Commissioners, for the Commissioner's order had been . B
received by the reviewing authority on 18. 7.2011 and the review
order which was required to be passed within three months
from the date of communication was passed after eight days
of expiry of the period.
                                                                   c
      4. It was contended by the revenue before the tribunal that
there was genuine reason for eight days delay in issue of the
review order under Section 35-E(1) by the Committee of Chief
Commissioners and, in any case, when the appeal had been
filed within a period of four months of the receipt of the order in D
original, i.e. 15.7.2011, the delay in issue of the review order
under Section 35-E(1) by the Committee of the Chief
Commissioners deserved to be condoned. Reliance was
placed on t~e Full Bench Decision of the Tribunal rendered in
CCE v. Monnet /spat & Energy Ltd. 1                                 E
      5. On behalf of the assessee it was urged that the period
of limitation prescribed for reviewing authority, the Committee
of Chief Commissioner for issuing directions to the
Commissioner in respect of adjudication of order for filing an F
appeal to the tribunal was three months from the date of
communication of the order and there was no dispute that the
impugned order was received on 18.7.2011 and reviewed
order was issued and after expiry of three months, that is,
25.10.2011 and, therefore, the delay could not be condoned G
as per the principle laid down in Central Excise v. M.M.
Rubber Co. 2• To bolster the stand reliance was also placed
1 2010 (257) ELT 239 (Tri-New Delhi) {LB)


'1991 (55) ELT 289                                                 H
450          SUPREME COURT REPORTS                    [2015) 8 S.C.R.


A     on the decision referred by the High Court of Himachal
      Pradesh in CCE v. Bhillai Wires Ltd. 3

       6. The tribunal referred to Section 35-E of the Act and
  interpreting the said provision came to hold that for filing an
B appeal before the tribunal or the commissioner (appeal) in
  terms of sub-section (4) OF Section 35-E an order passed by
  the concerned reviewing authority under Section 35-E (1) or
  35E (3) as the case may be, is imperative. The tribunal opined
  that filing of an application before the tribunai on the basis of
C the review order issued under Section 35-E (1) or 35 (2) has
  to be completed within the period of one month from the date
  of communication of the review order to the adjudicating
  authority and on that basis posed the question whether the
  delay in completing the first, that is the issue of order the
D Committee of Chief Commissioner or the Commissioner under
  Section 35E (1) of 35 (2) which is to be completed within a
  period of three months could be condoned by it. It referred to
  the decision in CCE v. M.M Rubber Co.• specially paragraph
  18 and came to hold as follows:-
 E
           ''Thus, the Apex Court in this case has held that power
           under section 35E is a power of superintendence
           conferred on a superior authority to ensure that the
           subordinate officers exercise their powers under the Act
 F         correctly and properly and when a time limit is prescribed
           for exercise of this power, the same has been exercised
           within time-limit and an order passed beyond the period
           prescribed under section 35E(3) would be invalid and
           ineffective. When an order passed by the reviewing
G          authority after expiry of the limitation period is invalid and
           ineffective and since such an order is a prerequisite for
           filing appeal before the Tribunal, there is no question of
      3 2009 (236) ELT 40


H • 1991 (55) ELT 289 (SC)
  CCE,COMMISSIONER, DELHI-Ill, GURGAON v. KAP                   451
       CONES, GURGAON [DIPAK MISRA, J.)

    condonation of delay. Same view has been taken by the A
    Hon'ble Himachal Pradesh High Court in the case of
    Bhillai Wires Ltd. (supra). The judgment of the Tribunal in
    case of Monnet lspat & Energy Ltd. (supra) is contrary to
    the law laid down by the Apex Court in its judgment in case
    M.M. Rubber Co. (supra) which has been followed by B
    Hon'ble Himachal Pradesh High Court in case of Bhillai
    Wires Ltd. (supra)."

      In addition to the aforesaid reasoning the tribunal ascribed
another reason that it cannot condone delay in filing as appeal C
as it has a duty to see before accepting an application filed by
the a Commissioner under Section 35E (4) as an appeal
agafnst the Commissioner's order is backed by valid order
passed by the Chief Commissioner under Section 35E (1 ).
The tribunal held so inasmuch as it has formed the opinion D
that when a time limit is prescribed by statute for reviewing
authority, i.e., that is Committee of Chief Commissioners for
exercise of it p·ower of superintendence and if the said authority
issues an order under the said provision after the expiry of the
period of limitation it would be an invalid and ineffective order E
and the tribunal has no power to validate and revive such an
invalid and ineffective order.

    7. Being dissatisfied with the aforesaid order the review
preferred Excise Appeal No. 69 of 2013 (O&M) before the          F
High Court Punjab and Haryana at Chandigarh. The High
Court after enumerating the facts referred to paragraph 1Oand
11 of the tribunal judgment and opined thus:-

    "A due consideration of relevant statutory provisions of G
    Section 35(E)(i) and (ii) of the Act reveals thatthe Tribunal
    has no jurisdiction to condone delay in an order passed
    by the Committee of Chief Commissioner's, asking the
    Commissioner to file an appeal. The power to condone
    delay relates to filing the application."                     H
452          SUPREME COURT REPORTS                    [2015) 8 S.C.R.


A          Being of this view, the High Court has affirmed the view
      expressed by the tribunal and dismissed the appeal. Hence,
      the present appeal by special leave.

       8. We have heard Mr. P. S. Patwalia, Learned Additional
B Solicitor General for Union of India and Dr. GK. Sarkar, learned
  counsel forthe respondent.

           9. It is necessary to state at the beginning that there is no
      cavil over the factual scenario. Therefore, we are only required
c     to scrutinise in the statutory backdrop and regard being had
      to the amendments from time to time and the proposition
      stated in the authority in M.M. Rubber(supra) whether tribunal
      has jurisdiction to condone the delay in such a circumstance.
      We need not have to address the extent of delay and
o     sufficiency of the cause stated in the application for condonation
      of delay, for the centripodal issue that has arisen for
      consideration in singularity is whether the tribunal has the
      jurisdiction or authority to condone the delay.

E       10. To appreciate the controversy, first we shall refer to
  the legislative history of Sections 358 and 35E of the Act. We
  shall only note the provisions existing prior to the Finance Act,
  1984 and the amendments thereafter made effective from time
  to time and in this context we shall reproduce the relevant sub-
F Sections. Priortothe FinanceAct, 1984 relevant sub-Sections
  3 to 5 of 358 read as follows:-

           "(3) Every appeal under this section shall be filed within
          three months from the date on which the order sought to
G         be appealed against is communicated to the Collector 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
H
  CCE,COMMISSIONER, DELHI- Ill, GURGAON v. KAP                 453
       CONES, GURGAON [DIPAK MISRA, J.]

    been preferred may, notwithstanding that he may not have A
    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 B
    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 C
    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. Before the Finance Act 1984, Section 35E read as         o
follows:-

    "(1) The Board may, of its own motion, call for and examine
    the record of any proceeding in which a Collector of Central
    Excise as an adjudicating authority has passed any E
    decision or order underthisActforthe purpose of satisfying
    itself as to the legality or propriety of any such decision or
    order and may, by order, direct such collector to apply to
    the Appellate Tribunal for the determination of such points
    arising out of the decision or order as may be specified F
    by the Board in its order.

   (2) The Collector 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 G
   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 such authority
   to apply to the Collector (Appeals) for the determination
   of such points arising out of the decision or order as may . H
454         SUPREME COURT REPORTS                    [2015] 8 S.C.R.


A         be specified by the Collector of Central Excise in his order.

          (3) No order shall be made under sub-section (1) or sub-
          section (2) after the expiry of two years from the date of
          the decision or order of the adjudicating authority.
B
          (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 or the Collector (Appeals) within a period of three
c         months 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 or the Collector (Appeals), as the case may be,
          as if such application were an appeal made against the
D         decision or order of the adjudicating authority and the
          provisions of this Act regarding appeals, including the
          provisions of sub-section (4) of section 358 shall, so far
          as may be, apply to such application."

E      12. The amendment that took place vide Finance Act,
  1984 the only change that was brought was in sub-section (3)
  of Section 35E whereby the time limit was reduced to one
  year from two years, and the rest of the provisions remained
  the same. Vide the amendments in 1995, the words "Collector
F of Central Excise" in Section 358 were substituted with
  "Commissioner of Central Excise"; whereas in Section 35E,
  the word "Collector" was substituted with "the Commissioner''
  and in sub-section (1) at the place of words "such collector"
  the words "Commissioner or any other Commissioner'' were
G added.

          13. As per the amendment made vide Finance Act of 2002,
      changes were brought in sub-section (3) of Section 35E. The
      amended sub-section (3) reads as follows:-
H
          "(3) The Board or Commissioner of Central Excise, as
  CCE,COMMISSIONER, DELHI- Ill, GURGAON v. KAP                 455
       CONES, GURGAON [DIPAK MISRA, J.]

    the case may be, shall, where it is possible to do so, made A
    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."
                                                                B
    14. Thereafter vide Finance Act, 2005, amendments were
brought in Section 35E. At the place of "Board", "Committee
of Chief Commissioners of Central Excise" was added. In
sub-section (2), the words "such authority" were replaced with
"such authority or any Central Excise Officer subordinate to C
him".

   15. Section 35E of Central Excise Act, 1944 (after
amendment vide Finance Act, 2008) reads as follows:-
                                                                  D
    "(1) The Committee of Chief Commissioners of Central
    Excise may, of its own motion, call for and examine the
    record of any proceeding in which a Commissioner of
    Central Excise as an adjudicating authority has passed
    any decision or order under this Act for the purpose of E
    satisfying itself as to the legality or propriety of any such
    decision or order and may, by order, direct such
    Commissioner or any other Commissioner to apply to the
    Appellate Tribunal for the determination of such points
    arising out of the decision or order as may be specified F
    by the Committee of Chief Commissioners in its order.

    [Provided that where the Committee of Chief
    Commissioners of Central Excise differs in its opinion as
    to the legality or propriety of the decision or order of the G
    Commissioner of Central Excise], it shall state the point
    or points on which it differs and make a reference to the
    Board which, after considering the facts of the decision
    or order, if is of the opinion that the decision or·order
    passed bythe Commissioner of Central Excise is not legal H
456     SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A     or proper, may, by order, direct such Commissioner or
      any other Commissioner to apply to the Appellate Tribunal
      for the determination of such points arising out of the
      decision or order, as may be specified in its order.]

8     (2) The 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
c     such decision or order and may, by order, direct such
      authority or any central Excise Officer subordinate to him
      to apply to the Commissioner (Appeals) for the
      determination of such points arising out of the decision or
      order as may be specified by the Commissioner of Central
D     Excise in his order.

      (3) Every order under sub-section (1) or sub-section (2),
      as the case may be, shall be made within a period of three
      months from the date of communication of the decision or
E     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
F     Tribunal or the Commissioner (Appeals)] within a period
      of 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 bytheAppellate
      Tribunal or the Commissioner (Appeals), as the case may
G     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 358 shall, so far
      as m~y be, apply to such application."
H
  CCE,COMMISSIONER, DELHI- Ill, GURGAON v. KAP                   457
       CONES, GURGAON [DIPAK MISRA, J.]

     16. By the said Act, amendments were made to sub- A
section (3) and sub-section (4) restricting the period for
passing of order under sub-section (1) or sub-~ection (2) to
three months from the date of communication of the decision
or order of the adjudicating authority and the period for making
application after passing of order under sub-section (1) or sub- B
section (2) was reduced to "one month" instead of "three
months".

    17. Vide amendment of 2014, proviso to Clause (3) of
Section 35E was added which reads as follows:-           C

    "Provided that the Board may, on sufficient cause being
    shown, extend the said period by another thirty days."

     18. It is apt to note here that the controversy in the instant
                                                                    0
case is governed by the 2008 amendments. We have referred
to 2014 amendment, as by the said amendment it has been
stipulated that the Board has power to extend the time for
passing an order under sub-sections (1) and (2) by a period
of 30 days. We shall overt to the impact of the same at a later E
stage.

     19. At this juncture, it is necessary to state that the
Appellate Tribunal has been conferred power under sub-
section 5 to admit an appeal after the expiry of the period
referred to in sub-section 3 of the said Section. The tribunal, F
as has been stated earlier, has ruled that it has no jurisdiction
as the competent authority had not passed the order within
the period of three months and there was delay of eight days
on its part. For the aforesaid view, it has relied upon the G
decision in M.M. Rubber(supra). The question that arose for
consideration therein was what was the relevant date for the
purpose of calculation of the period of one year provided under
Section 35E(1)? In the said case, it was contended before
the tribunal by the assessee that the relevant date of the H
458       SUPREME COURT REPORTS                    (2015] 8 S.C.R.


A Collector's (adjudicating authority) order for the purposes of
  Section 35E(3) should be taken as November 28, 1984, the
  date when the order was passed and not December 21, 1984
  when it was received by the Department and on that basis the
  order of the Board under Section 35E( 1) of the Act should be
B held as beyond the period of one year from the date of decision
  or order of the adjudicating authority and, therefore, the
  application before the tribunal under Section 35E(4) of the Act
  was incompetent. The tribunal accepted the said contention
  and held that application was not maintainable.
c
       20. Before this Court, it was contended by the revenue
  that mere writing an order in file kept in the office is no order in
  the eyes of law and, therefore, limitation would start only from
  the date of receipt of the order by the revenue. A submission
D was also canvassed that departmental authorities and the ·
  private respondents are to be treated equally as aggrieved
  persons for the purposes of calculating the time for making ·
  the direction under Section 35E(3) of the Act. The Court
  scanned the anatomy of Section 35 especially Section 35E
E and proceeded to interpret the words "from the date of decision
  or order''. In that context, the Court referred to number of
  authorities and proceeded to state thus:-

        "12. It may be seen therefore, that, if an authority is
 F      authorised to exercise a power or do an act affecting the
        rights of parties, he shall exercise that power within the
        period of limitation prescribed therefor. The order or
        decision. of such authority comes into force or becomes
        operative or becomes an effective order or decision on
G       and from the date when it is signed by him. The date of
        such order or decision is the date on which the order or
        decision was passed or made : that is to say when he
        ceases to have any authority to tear it off and draft a
        different order and when he ceases to have any locus
H
        paetentiae. Normally that happens when the order or
CCE,COMMISSIONER, DELHI-Ill, GURGAON v. KAP                 459
     CONES, GURGAON [DIPAK MISRA, J.] ·

 decision is made public or notified in some form or when A
 it can be said to have left his hand. The date of
 communication of the order to the party whose rights are
 affected is not the relevant date for purposes ,of
 determining whether the power has been exercised within
 the prescribed time.                                     B

 13. So far as the party who is affected by the order or
 decision for seeking his remedies against the same, he
 should be made aware of passing of such order. Therefore
 courts have uniformly laid down as a rule of law that for ·c
 seeking the remedy the limitation starts from the date on
 which the order was communicated to him or the date on
 which it was pronounced or published under such
 circumstances that the parties affected by it have a
 reasonable opportunity of knowing of passing of the order D
 and what it contains. The knowledge of the party affected
 by such a decision, either actual or constructive is thus an
 essential element which must be satisfied before the
 decision can be said to have been concluded and binding
 on him. Otherwise the party affected by it will have no E
 means of obeying the order or acting in conformity with it
 or of appealing against it or otherwise having it set aside."

 After so stating, the Court proceeded to hold thus:-
                                                              F
 "18. Thus if the intention or design of the statutory provision
 was to protect the interest of the person adversely affected,
 by providing a remedy against the order or decision any
 period of limitation prescribed with reference to invoking
 such remedy shall be read as commencing from the date G
 of communication of the order. But if it is a limitation for a
 competent authority to make an order the date of exercise
 of that power and in the case of exercise of suo moto
 power over the subordinate authorities' orders, the date
.on which such power was exercised by making an order H
460 '     SUPREME COURT REPORTS                     [2015] 8 S.C.R.

                       -
A       are the relevant dates for determining the limitation. The
        ratio of this distinction may also be founded on the principle
        that the government is bound by the proceedings of its
        officers but persons affected are not concluded by the
        decision."
B
       21. After so stating, the three-Judge Bench opined that
  Section 35-E comes under the latter category of an authority
  exercising its own powers under the Act. It is not correct to
  equate the Board, as contended by the revenue, to one of the
C two parties to a quasi-judicial proceeding. The Court further
  held that the power under Section 35-E is a power of
  superintendence conferred on a superior authority to ensure
  that the subordinate officers exercise their powers under the
  Act correctly and properly and, therefore, it is not correct to
D equate the Board to one of the two parties to a quasi-judicial
  proceeding before the Collector and the Board's right under
  Section 35-E to the exercise of the right of appeal by an
  aggrieved assessee from an order passed to its prejudice,
  and, therefore, when a time limit is provided for exercise of
E such a power, that should be exercised within specified period
  from the date of the order soughtto be reconsidered. After so
  observing; the Court proceeded to state thus:-

        "...To hold to the contrary would be inequitable and will
F       also introduce uncertainties into the administration of the
        Act for the following reason. There appears to be no
        provision in the Act requiring the endorsement, by a
        Collector, of all orders passed by him to the Board. If there
        is such a practice in fact or requirement in law, the period
G       of one year from the date of the order is more than
        adequate to ensure action in appropriate cases particularly
        in comparison with the much shorter period an assessee
        has within which to exercise his right of appeal. If, on the
        other hand, there is no such requirement or practice and
H
        the period within which the Board can interfere is left to
     CCE,COMMISSIONER, DELHI-Ill, GURGAON v. KAP               461
          . CONES, GURGAON [DIPAK MISRA, J.]

      depend on the off-chance of the Board coming to know of A
      the existence of a particular order at some point of time,
      however distant, only administrative chaos can result. We
      are, therefore, of the opinion that the period of one year'
      fixed under sub-section (3) of Section 35-E of the Act
      should be given its literal meaning and so construed the B
      impugned direction of the Board was beyond the period
      of limitation prescribed therein and therefore invalid and
      ineffective."                                            •

     22. The said decision has to be understood in its proper C
context. The core issue that arose for consideration was to
the relevant date for the purpose of computation of the period
of one year as stipulated under Section 35-E(3) of the Act.
The controversy in the case related to the year 1984 and the
provision was different. Section 35(3) at that point of time D
reads as follows:-

      "35(3). No order shall be made under sub-section (1) of
      sub-section (2) after the expiry of one years from the date
      of the decision or order of the adjudicating authority."    E

     Sub-section (4) of Section 35-E(4) provided that appeals
should be filed within a period of three months from the date of
communication of the order under sub-section ( 1) or (2) to the
adjudicating authority. The Court has taken note of the fact f
that period that was given by the legislature to the revenue
was one year which is more than adequate to take appropriate
action in proper cases in comparison with the much shorter
period within which the assessee has to exercise his right of
appeal. The Court gave emphasis on the administrative chaos G
that would result if a further period was granted and accordingly
opined that the statutory provision was to be given a literal
meaning. As is noticeable, the amendment made by the
Finance Act, 2008, the Committee of Chief Commissioners
was required to pass an order within three months from the H
·,
462         SUPREME COURT REPORTS                   [2015] 8 S.C.R.


A date of communication of the decision or the order. This period
  of three months is identical to the period of three months
  stipulated in Section 35-8 of the Act. It is apt to note that sub-
  section (4) to Section 35-E of the Act, however, grants right
  and authorises the adjudicating authority or adjudicating officer
B to file an appeal within a period of one month from the date of
  the decision or the order. The provision also stipulates that if
  such an application is made against the decision or order, the
  pn;>visions of the Act inclusive of a provision of the sub-section
  (4) of Section 35 so far as may be shall apply to such
C applications. We may note with profit that the stipulation as to
  the applicability of sub-section (4) to Section 35 has always
  existed. However, its relevance, applicability and importance
  underwent a change with the amendment made by Finance
  Act, 2008 prescribing a period of three months.
0
           23. Thus, as per the scheme oftheAct, sub-section (4) of
      Section 35-8(5) of the Act authorises the appellate tribunal to
      admit an appeal or permit filing of memorandum of cross-
      objections after expiry of relevant period if the tribunal is
E     satisfied there was sufficient cause for not presenting the
      appeal within that period. As stated earlier, the power under
      sub-section (4) of Section 35-B has been made applicable to
      appeals preferred following the administrative procedure
F     prescribed under Section 35-E of the Act. The statutory
      position as it existed in 1984, as we find, has undergone a
      change by the amendment made under the Finance Act, 2008.
      Underthe changed circumstances, it would not be appropriate
      to restrict and bar an application of the provisions of sub-
G     section (4) of Section 35-E to the period after passing of an
      order under sub-sections (1) and (2) of Section 35-E of the
      Act. We are inclined to think so as the amendment made by
      the Finance Act, 2008, the legislature, in effect, has equated
      the period of limitation prescribed under sub-section (3) of
H     Section 35-E with the period prescribed for the Committee of

                                                                      •
   CCE,COMMISSIONER, DELHI- Ill, GURGAON v. KAP                 463
        CONES, GURGAON [DIPAKMISRA, J.]

the Chief Commissions under Section 35-E of the Act. Earlier,     A
that is, before the Finance Act, 2005, the legislature had
prescribed and given a longer period of limitation to the Board
or the Committee of the Chief Commissioners which could be
two years or one year. The said extended period or concession
granted to the Board or the Committee of Chief                    B
Commissioners was withdrawn by the Finance Act, 2008. The
only concession available to the revenue is the additional
period of one month. The postulates regarding approval, as
we perceive, is in favour of the assesses as the mandate is
that the Committee of Chief Commissioners would apply its         C
mind before recommending to file an appeal, for frivolous and
unnecessary appeals are not filed. In fact, the provision has
been enacted to prevent filing of unwarranted and undeserving
appeals. Simultaneously, it also engrafts a procedure by which
                                                                  0
there is assured transparency and objectivity against loss of
revenue and an erroneous decision goes on unchallenged. In
that event, it would affect the fundamental sanctity behind the
apposite fiscal principle, which is an inseparable part of good
governance.                                                       E
      24. There can be no scintilla of doubt that an order passed
 or decision taken under Section 35-E by the Board/Committee
 of Chief Commissioners is the date of the order or decision. It
 is not a quasi-judicial order determining a dispute or rights of F
 parties, for there is no adjudication. We have already referred
 to the proviso that has been added to sub-section (3) to Section
 35-E by Finance Act, 2014 wherein it is stipulated that the
 Board has the power to extend the time for passing an order
 under sub-sections (1) and (2) by a period of 30 days. We are G
·disposed to think as it is evident that the legislature is aware
 of the fact that there can be delay in filing of the appeals in
 spite of the time limit and procedure prescribed in Section
 35-E of the Act and, therefore, Section 35-B(4) has been made
 applicable to the appellants preferred after necessary approval/· H
464       SUPREME COURT REPORTS                    (2015] 8 S.C.R.


A sanction/direction under Section 35-E of the Act. The reduction
  of the period has ensured equality and parity between the
  appeals, one preferred by the assessee and the other
  preferred by the revenue. The only thing is that the appeal
  preferred by the revenue has to be after satisfaction of
B conditions mentioned in Section 35-E of the Act. It is difficult
  to conceive that after the amendment brought in by the Finance
  Act, 2008 that the legislative intent is to put the revenue or the
  State at a disadvantage. It is not the intention of the legislature
  to deny and prevent the revenue from preferring an appeal
C which is barred by limitation or the delay in preferring an appeal
  cannot be condoned even if sufficient cause is shown. If such
  an interpretation is placed after 2008 amendment, it would be
  counter productive and not in consonance with the legislative
  intent which is clear as Section 35-B(4) has been made
0
  applicable to appeals which are preferred after taking recourse
  to the mechanism provided under Section 35-E.

        25. As stated earlier, we must advert to the proviso
  inserted to sub-section (3) to Section 35-E by the Finance Act,
E 2014. The said proviso has a different purport. It empowers
  the Board to extend the time of passing of an order under sub-
  sections (1) and (2) by a period of 30 days. Once an order
  has been passed by the Board in exercise of the said power
F under the proviso, there would be no need and necessity to
  file an application seeking condonation of delay for the periods
  specified, which cannot exceed 30 days. The insertion of the
  said proviso by Finance Act, 2014 does not negate and is not
  contrary to the legislative mandate by Section 35-E as it existed
G prior to or after insertion of the said proviso.
        26. Learned counsel has commended us to the decision
    in Commissioner of Customs and Central Excise v.
  . Hongo India Private Limited andAnothet5. In the said case,
H ' (2009J s sec 791.
  CCE,COMMISSIONER, DELHI- Ill, GURGAON v. KAP                   465
       CONES, GURGAON [DIPAK MISRA, J.]

the Court was dealing with Section 35-H which relates to A
limitationforfiling a reference to the High Court. In view of the
specific language of the said provision which provided only
for 180 days period or no further period for filing of a reference,
it had been held that the period is not extendable but absolute
and in that context it had been held Section 5 of the Limitation B
Act would not be applicable. Thus, the authority in the said
case is distinguishable. Be it noted, the said situation having
changed by inserting sub-section 3A in Section 35-H of the
Central ExciseActw.e.f. 1.7.1999.
                                                                     c
     27. At this juncture, we think it appropriate to refer to the
Full Bench decision of the tribunal in Monnet /spat & Energy
Ltd. (supra). In the said case, interpreting the provisions, the
Full Bench of the tribunal has recorded the following conclusion:-
                                                                  D
    'The Tribunal has ample power to condone the delay in
    filing the appeal including the one filed under Section
    35E(4) of the said Act. The period which can be condoned
    in relation to filing of the appeal under Section 35E(4) of
    the said Act would include the period availed by the review E
    committee in terms of Section 35E(1) or 35E(2) of the
    said Act. As regards the appeals by the Department in
    terms of Section 35E(4), the same should be filed within
    one month from the date of communication of the order
    und,er sub-section (1) or sub-section (2) of the said section F
    but not beyond four months from the date of communication
    of order of the adjudicating authority to the review
    committee. In case there is any delay in this regard, the ·
    same can be condoned in exercise of powers under
    Section 35B(5), on being satisfied about sufficient cause G
    for such delay and power to condone the delay would
    include the period availed under Section 35E(1) or(2) by
    the reviewing committee to decide about filing of the
    appeal."
                                                                  H
466          SUPREME COURT REPORTS                (2015] 8 S.C.R.


A      28. In our considered opinion, the analysis made by the
  Full Bench is correct in view of the opinion expressed by us in
  the preceding paragraph and accordingly we hold the said
  view to the correct. We are obliged to note with profit that the
  members deciding the lis by the impugned order should have
B kept themselves abreast to the Full Bench decision of the
  tribunal so that there would not have been two views as regards
  the same proposition.

       29. Resultantly, the appeal is allowed, the order passed
C by the tribunal is set aside and the matter is remanded to it for
  consideration of the application for condonation of delay on
  its own merits. There shall be no order as to costs.

      Nidhi Jain                                     Appeal allowed.