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TMI Blog2008 (7) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... must be exercised within the period so specified. Since power has not been exercised within the stipulated period, the direction to file an appeal was illegal. Therefore, the appeal filed by the department on the basis of such direction itself was not maintainable. Consequently, we uphold the order passed by the learned Tribunal. - 13 of 2000 - - - Dated:- 16-7-2008 - Deepak Gupta and V.K. Ahuja, JJ. [Order per : Deepak Gupta, J. (Oral)]. - The present reference is directed against the order No. 320/200-A dated 3-5-2000 [2001 (136) E.L.T. 459 (Tribunal)] passed by the learned Commissioner, Central Excise and Gold (Control) Appellate Tribunal, New Delhi. 2. Brief facts of the case are that the respondent-assessee is a manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 35E(2) of the Act. Sections 35E(2) and (3) read as follows :- 35E. Powers of Board or Commissioner of Central Excise to pass certain orders (1) xx xx xx xx xx (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 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 be specified by the Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise who reviewed the order of the adjudicating authority did not exercise his powers within a period of one year as provided in Section 35E(3) of the Act. The Tribunal relying upon some judgments of the Apex Court held that the review order had been passed beyond the prescribed period and held that the appeal filed in pursuance of the said order was, therefore, not maintainable. 9. We have heard Shri Sandeep Sharma, learned Assistant Solicitor General of India on behalf of the revenue and Shri K.D. Sood, learned Counsel on behalf of the assessee. 10. The main contention raised by Shri Sandeep Sharma is that no ground of limitation was urged or argued when the appeal was argued before the Commissioner (Appeals) who passed the order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 35E of the Act. 14. The Apex Court has considered this question in a number of cases but we may refer to only one decision. The Apex Court in Collector of Central Excise, Madras v. M/s. M.M. Rubber and Co. Tamil Nadu, 1991 (55) E.L.T. 289 (S.C.) = AIR 1991 Supreme Court 2141, held as follows :- 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 to one of the two parties to a quasi-judicial proceeding before the Collector and the Board's right under Section35E 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 superio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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