Per Justice K. Sreedharan :

This application for condonation of delay in filing appeals E/2520 to 2538/99-C is before this Larger Bench on a reference made as per order dated 11.5.2000.

2. Circumstances under which this application happened to be filed are as follows:

3. Show cause notices dated 4.11.1990 were issued against M/s. Highland Dye Works and twenty others proposing action for violation of various provisions contained in the Central Excise Act, 1944. Noticees objected to the proposed action. After considering their objections, Collector of Central Excise, Mumbai-III dropped the proceedings by order No. 18/92 dated 31.3.1992. In exercise of the powers conferred on the Central Broad of Excise and Customs under Section 35 E( 1) of the Act, the Board gave direction to the Collector of Central Excise, Mumbai-III, to apply to this Tribunal for correct determination of the points found by the Board in its order No. 65-R/93 dated 30.3.1993. In compliance with the order passed by the Board, appeal E/2131/93-C was filed before this Tribunal on 14.6 1993. In that appeal, M/ s. Highland Dye Works, Sonapur Road, Mumbai-400 078 were made the sole respondent. Other noticess to whom show cause notices were issued and the proceedings were dropped by the Collector, were not found made eonominee (sic) parties in the appeal. Against those parties the department now wants to file appeals. Since those appeals were filed nearly six years after the date of the order of the Board, this application for condoning the delay caused in the filing of the appeals happened to be filed. The application went before a Bench consisting of two Members. Judicial member took the view that the Tribunal has no power to condone the delay on the facts and circumstances of this case. In support of this conclusion, learned Member relied on the decision of this Tribunal in miscellaneous order No. 108/98-C dated 13.7.1998 in the case of Super Pack vs. Collector of Central Excise Raipur. Learned Technical Member took up the stand that this Tribunal has got ample power to condone the delay in view of the provisions contained in clause (4) of Section 35E of the Act. He also expressed the opinion that the issue relating to condonation of delay under Section 35E (4) of the Act be referred to a larger Bench for decision. As a result of the difference to opinion expressed by the two Members constituting the Bench, the matter was placed before a third Member. The third Member, who happened to be a Judicial member, without pronouncing on the power of this Tribunal to condone the delay under Section 35E (4) of the Act, expressed his opinion to refer the issue to the larger Bench. Thus, in accordance with the majority view to refer the issue regarding the power of this Tribunal to condone the delay, this matter has come before us sitting in larger Bench. The question referred is:

"The issue as to whether the provisions of Section 35B of the Central Excise Act relating to COD may be read into Section 35E (4) of the Act is placed before the Hon'ble President for reference to a Larger Bench."

Section 35E(1) empowers the Board that it 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 the Act for the "purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order direct such 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 Board in its order. According to sub-section (3) of Section 35E, the Board can pass an order of this nature within one year from the date of the decision of the adjudicating authority. That clause makes it clear that no order contemplated by sub- section (1) referred to earlier shall be made after the expiry of one year from the date of decision of the adjudicating authority. The staps