COMMISSIONER OF CENTRAL EXCISE,  COMMISSIONER, DELHI - ILL, GURGAON versus M/S. KAP CONES, UDYOG VIHAR, PHASE-V, GURGAON
[2015] 8 S.C.R. 445, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[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 
(Civil Appeal No. 5432 of 2015) 
JULY20, 2015 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
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 
B 
c 
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 of Chief 
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 
0 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 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 
H 
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
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) EL T. 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. 
2. The respondent, a proprietary concern having two G 
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 
0 the concerned jurisdictional Chief Commissioner on 18.7.2011. 
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 
F 
G 
''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 
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 
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 1 O and 
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:-
G 
H 
"(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 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
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 
c 
D 
(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 
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 
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. 
H 
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:-
"(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." 
14. Thereafter vide Finance Act, 2005, amendments were 
brought in Section 35E. At the place of "Board", "Committee 
B 
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 
A 
8 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2015] 8 S.C.R. 
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.] 
(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 
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 
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 
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 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 
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."
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:-
F 
G 
H 
"12. It may be seen therefore, that, if an authority is 
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 
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 
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:-
"18. Thus if the intention or design of the statutory provision 
was to protect the interest of the person adversely affected, 
F
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 
B 
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." 
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:-
F 
G 
H 
" ... To hold to the contrary would be inequitable and will 
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 
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 
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 
0 
Act, 2008 prescribing a period of three months. 
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. 
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 
E 
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
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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 
0 intent which is clear as Section 35-B(4) has been made 
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 and Anothet5. 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. 
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:-
'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 
c 
D 
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.