Commissioner of Central Excise vs Kap Cones

Rajive Bhalla, J.—Allowed as prayed for. Annexures A-1 to A-3 are taken on record.

C.M. No. 13 743-CII of 2013

Prayer in this application is for permission to make up the deficiency in affixing court fee.

For reasons stated in the application and arguments addressed by counsel for the appellant, the application is allowed.

Central Excise Appeal No. 69 of 2013

The Commissioner of Central Excise, challenges order dated 25.07.2012 (Annexure A-3), passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, Principal Bench, New Delhi, dismissing the appeal.

We have heard counsel for the appellant and perused the impugned order.

A committee of Chief Commissioners, issued order No. 35/2011, dated 25.10.2011, u/s 35(E)(i) & (ii) of the Central Excise Act, 1944 (hereinafter referred to as ''the Act''), directing the Commissioner to file an application before the Tribunal u/s 35(E)(4) of the Act. The order was received by the Commissioner on 31.10.2011, The Commissioner filed an application before the Tribunal u/s 35(E)(4) of the Act, which was treated as an appeal, accompanied by a separate application for condonation of delay of 8 days. The Tribunal dismissed the appeal by holding that as the order passed by the Committee of Chief Commissioner''s is barred by limitation and it has no jurisdiction to condone this delay, the appeal is not maintainable. The Tribunal has placed reliance upon a judgment of the Hon''ble Supreme Court in Collector of Central Excise, Madras Vs. M.M. Rubber and Co., Tamil Nadu, . A relevant extract from the order reads as follows:-- 10. Thus, the Apex Court in this case has held that power u/s 35E 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 when a limit is prescribed for exercise of this power the same has to be exercised within time limit and an order passed beyond the period prescribed u/s 35E(Hi) would be invalid and ineffective. When an order is passed by the reviewing authority after expiry of the limitation period is invalid and ineffective and since such an order is a pre-requisite for filing appeal before the Tribunal, there is no question of condonation of delay. Same view has been taken by the Hon''ble Himachal Pradesh High Court in the case of Bhilai Wires Ltd. (supra). The judgment of the Tribunal in case of CCB, Raipur v. Monnet Ispat & Energy Ltd. (supra) is contrary to the law laid down by the Apex Court in its judgment in case MM. Rubber Co. Ltd. (supra) which has been followed by the Hon''ble Himachal Pradesh High Court in case of Bhilai Wires Ltd. (supra).

There is one more reason as to why the Tribunal cannot condone the delay in issue of review order u/s 35E(i) by reviewing authority which is that while the Tribunal can condone the delay only in filing of appeal the Tribunal has nothing to do with the exercise of the power of superintendent be exercised by the reviewing authority u/s 35E(1) of the Central Excise Act. All the tribunal has to see before accepting an application file by the Commissioner u/s 35(E)(4) as an appeal against the Commissioner''s order is as to whether the application is backed by statute for reviewing authority-Committee of Chief Commissioners for exercise of its powers of superintendence and if the reviewing authority issues an order u/s 35E(1) after expiry of the limitation period, the same as held by the Apex Court would become invalid and revive such invalid and ineffective order.

A due consideration of relevant statutory provisions of Section 35(E)(i) and (ii) of the Act reveals that the 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. The controversy is covered against the revenue by a judgment of the Hon''ble Supreme Court in MM. Rubber Co.''s case (supra). The learned Tribunal, therefore, rightly declined to entertain the appeal. We find no reason to even prima facie hold that there is any error in the impugned order. As a consequence, the appeal is dismissed, in limine.