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TMI Blog2004 (3) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... ands on any further case law on this subject. 2. Shri Hardik Modh, learned Advocate for the respondents takes a preliminary objection that the present appeal has been authorised to be filed by the Applicant Commissioner Shri Jeet Ram Kait against the order-in-appeal which was passed by none other than himself earlier as Commissioner (Appeals). He cites the decision in the case of CCE v. Titaghur Paper Mills Co. Ltd. - 1989 (44) E.L.T. 667 (Tri.) wherein it is held that the Member of the Board cannot review an order passed by him in his earlier capacity as Collector unless new facts or material has been rendered which would have made the order illegal or imp-roper. Shri Modh states that though the said decision of the Tribunal was rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppendix to this Notification, the application for refund has to be lodged before expiry of limitation period under Section 11B of Central Excise Act, 1944." 3. Shri Bhagat, further states that under Section 11B of the Central Excise Act, 1944, Explanation (B) makes it clear that the relevant date in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable material used in the manufacture of such goods, the relevant date shall be the date on which the ship on which such goods are loaded leaves India. Shri Bhagat states that in view of such clear provisions and in view of the fact that in the case of all the 11 consignments, the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation when in his new capacity as Commissioner, Ahmedabad-II he realised that the earlier order-in-appeal has been passed ignoring specific provisions of law. The provision of law which he earlier did not notice and which came to his knowledge later on can be taken to be new material before him apart from the fact that he was statutorily vested with the power and was required to authorize filing of appeal, against any illegal and incorrect order passed by the Commissioner (Appeals), under Section 35B(2). As such, the preliminary objection raised by the counsel for the respondents is rejected. 6. In view of my findings as above, the impugned order-in-appeal is set aside and the matter is remanded to the Commissioner (Appeals) for fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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