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TMI Blog2012 (11) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... xtended period under proviso to Section 11A(1), ordered for confiscation of the seized goods and also confirmed the duty demand in respect of the goods alleged to have been clandestinely removed. The adjudicating authority also imposed penalty of Rs.50 Lakhs on Shri Deepak Duggal, Proprietor of the respondent firm under Rule 15 of the Cenvat Credit Rules, 2004. The Commissioner's order was received in the office of the jurisdictional Chief Commissioner on 18.07.2011. The order of the Commissioner was reviewed by the Committee of Chief Commissioners which was of the view that the Commissioner's order is incorrect inasmuch as - (a) Though the Commissioner confirmed the demand for wrongly taken cenvat credit and also of the duty on the goods alleged to have been clandestinely removed by invoking extended period under Section 11A(1), penalty on the respondent company under Section 11AC was not impored which in the facts and circumstance of the case was attracted; (b) The Commissioner has overlooked the imposition of penalty on the Manager and Accounts Manager of the respondent company under Rule 26 of the Central Excise Rules, 2002, which in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 8 days' delay in issue of the review order by the Committee of Chief Commissioners may be condoned. 6. Shri Ravinder Singh, Advocate, ld. Counsel for the respondent, pleaded that during the period of dispute, the limitation period prescribed for reviewing authority, the Committee of Chief Commissioner for issuing directions to the Commissioner in respect of an adjudication order for filing review appeal to the Tribunal was three months from the date of the communication of the order, that in this case, there is no dispute that while the impugned order was received on 18.7.2011, the review order was issued after expiry of the three months period i.e. 25.10.11, that the Apex Court in the case of Commissioner of Central Excise Vs. M.M. Rubber Co. reported in 1991 (55) ELT 289 (SC) has held that when a time limit is prescribed in Section 35E (1) of the Central Excise Act for review of an order, any order issued after expiry of this limitation period would be invalid and ineffective, that same view has been taken by the Hon'ble Himachal Pradesh High Court in the case of CCE Vs. Bhillai Wires Ltd. reported in 2009 (236) ELT 40 (H.P.), that in view of this, the review order dated 25.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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 by the Committee of Chief Commissioners of Central Excise 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 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 by the Commissioner of Central Excise is not legal 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iewing authority which in case of the order passed by the Commissioner is the Committee of Chief Commissioners and in respect of an order passed by an officer lower in rank to Commissioner is the Commissioner. Once the order has been passed by the reviewing authority under Section 35E(1) or Section 35 E(2), as the case may be, within the period prescribed under Section 35 E(3), the concerned adjudicating authority within a period of one month from the date of communication of the review order has to file an application before the Appellate Authority - Tribunal or CCE (Appeals) as the case may be, which treats the same as if it were an appeal filed by the Revenue. Thus, for filing an appeal before the Tribunal or Commissioner (Appeals) in terms of the sub-section (4) of Section 35 E, an order passed by the concerned Reviewing Authority under Section 35E (1) or Section 35 E(2), as the case may be, is a must. The first step i.e. the issuing order passed by the Committee of Chief Commissioners or Commissioners under Section 35E(1) or Section 35E(2) has to be completed within a period of three months from the date of communication of the order and second step i.e. filing of an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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." 10. 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 be exercised within time limit and an order passed beyond the period prescribed under Section 35 E(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 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 Bhillai Wires Ltd. (supra). The judgement of the Tribunal in case of CCE, Raipur Vs. Monnet Ispat & Energy Ltd. (supra) is contrary to the law laid down by the Apex Court in its judgement in case M.M. Rubber Co. ..... 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