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TMI Blog1989 (9) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ty s submissions, Shri Mookherjee, Counsel, for the respondents raised an important, legal objection to the maintainability of the present appeal. We have, therefore, considered it proper to dispose of this objection first. 4. In order to appreciate the objection raised by Shri Mookherjee, a few facts require to be stated. The Assistant Collector of Central Excise, Calcutta, by his order dated 31-3-1982 on classification list No. 1/82 dated 31-3-1982, permitted the respondents to avail themselves of duty exemption in terms of Central Excise Notification Nos. 51/78, dated 1-3-1978, 52/78 dated 1-3-1978 and 105/78, dated 27-4-1978 in respect of electricity generated by their captive power plant. The Collector of Central Excise, Calcutta (Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision, he could not have, as he did, examined the legality and propriety of his own order in his new capacity of Member, Central Board of Excise and Customs. However, Shri Mookherjee did not support this submission by reference to any authority. The learned Departmental Representative, however, submitted that Shri Rangwani as Member of the Board, was not sitting in judgment over the order which he had earlier passed as Collector. He was only examining the validity of the said order in exercise of the Board s powers and directing the Collector to file an appeal by an application to the Tribunal for determination of the points specified in the Board s order. As such the appeal was maintainable. 6. We have considered the aforesaid submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, if they had been taken into consideration, would have rendered the impugned order illegal or improper. Such, however, does not seem to be the case here. The Board s order does not reveal that any new facts or material have come to light. It only proceeds on a different view of the matter, based on the available facts and material. Shri Rangwani should not, therefore, have adopted the course which he did. If at all, the Board considered the impugned order to be illegal or improper, the order under Section 35E(l) could have been passed by a Member of the Board other than Shri Rangwani. 7. In the above view of the matter, we are of the opinion that the order passed by the Board was not proper and correct and the application made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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