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

Citation: [2015] 8 S.C.R. 445 · Decided: 20-07-2015 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[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 pap
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