SANJIV SRIVASTAVA:

1. The present appeal has been filed by the Revenue along with an application for Condonation of delay in filing the appeal before the Tribunal. On going through the records, it is observed that the impugned order was reviewed by the concerned committee of Chief Commissioner beyond the prescribed period of three Months, from the date of receipt of the order. As such the impugned order has been reviewed beyond the said period could not have been appealed against in terms of Section 35E which provides as follows:-

“Section 35E. Powers of Committee of Principal Chief Commissioners of Central Excise or Chief Commissioners of Central Excise or Principal Commissioners of Central Excise or Commissioner of Central Excise to pass certain orders.-

(1)---------------------------------

(2)---------------------------------

(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.

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

(4)------------------

2. It is seen that as per proviso to Sub-Section (3) only the Board has power to condone the delay in reviewing the order beyond three Months and no other Authority could have condoned the said delay. The Tribunal also has no authority to condone this delay.

3. From the provisions of act reproduced above, we are of the view that the Chief Commissioner has no authority to condone such delay or permit the committee of Commissioners to review the order beyond a stipulated period of three months. The provisions for review are to be construed very strictly as has been held by various authorities including the Hon’ble Supreme Court in the case of MM Rubbers. [(1991) 55 ELT 289 (SC)], wherein following has been held:-

“Thus if the intention or design of the statutory provision was to protect the interest of the person adverse- ly 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 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 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.

Section 35E 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 Sri Gaurishan- kar Murthy, to one of the two parties to a quasi-judicial proceeding before the Collector and the Board's right under Section 35E to the exercise of the right of appeal by an aggrieved assessee from an order passed to its prejudice. The power under Section 35E is a power of superintendence conferred on a superior authority to ensure that the subor- dinate officers exercise their powers under the Act correct- ly and properly. Where a time is limited for the purposes by the statute, such power, as under Section 33A(2) of the Indian Income-tax Act, 1922 referred to in Muthia Chettiar (supra), should be exercised within the specified period from the date of the order sought to be reconsidered. 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 prac- tice 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 depend on the off- chance of the Board coming to know of 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 subsection (3) of Section 35E of the Act should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective. For the foregoing. reasons we are of the view that the Tribunal was right in holding that the application before them was out of time.”

4. This application for Condonation of delay has been filed without any jurisdiction and authorization. Tribunal does not have any power to consider and condone this delay so the same is dismissed. Appeal and Stay application also are dismissed.

5. Dictated and pronounced in open court.