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TMI Blog2008 (5) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent. [Order]- The captioned appeals have been filed by M/s. Narendra Raja Textiles Pvt. Ltd., Coimbatore (NRTPL). One of the orders impugned namely, order in Appeal No. 39/06-CE., dated 20-6-2006 of the Commissioner (A) had rejected an appeal filed by NRTPL as the appeal was filed beyond the time prescribed for filing appeals before that forum. In the order-in-appeal No. 285/2005-C.E. dated 13-12-2005, the Commissioner (A) upheld the order of the lower authority rejecting claim for cash refund of Rs. 2,62,709/- made by NRTPL. 2. In a nutshell, the facts are that a demand of Rs. 9,65,230/- had been raised against the appellants vide Order No. 164/96 dated 21-3-1996 of the Assistant Commissioner, Erode. The demand related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioned. There was no provision in the rules for refund of the amount which had already been allowed as credit in the cenvat account of the assessee. The appeal filed against the above order by the assessee was disposed by the Commissioner (A) vide order-in-appeal No. 285/2005-C.E. dated 13-12-2005. He found that the impugned amount had been pre-deposited in cash and the appellants were eligible for refund of the said amount in cash. The refund of the impugned amount was not governed by Section 11B of the Act. He also found that the appellants had failed to challenge the first order of the Dy. Commissioner for appropriate modification before the Commissioner (A) in time. Therefore, though the assessee was eligible for grant of the refund i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by both parties. The assessee had filed the appeal against the initial order of the Dy. Commissioner and the Commissioner (A) had found the assessee to be eligible for the refund claimed on merits. He rejected the appeal as barred by limitation vide his Order No. 39/06-C.E., dated 20-6-2006. There is no dispute as regards this finding. Therefore the Appeal No. E/661/06 filed by NRTPL is dismissed. 7.2 As regards the appeal against the Order No. 285/2005-C.E., dated 1342-2005, I, find that it is nobody's case that the appellants were not entitled to refund in cash of an amount of Rs. 2,67,709/- deposited on 16-12-1996 in terms of Section 35F of the Act. Once the proceedings before the appellate authorities were finally concluded in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular the pre-deposit had to be refunded in cash. The final products of the assessee had become exempt. I find that the Commissioner (A) was not right in upholding the order of the lower authority which was contrary to the Circular of the Board dated 2-1-2002. The Commissioner (A) should have allowed the appeal considering that the original order in the instant case was an offshoot of an illegal order. The Commissioner (A) was competent to allow the appeal and thus the refund in view of the binding circular of CBEC. 7.4 A constitution Bench of the Supreme Court in CCE v. Dhiren Chemicals Ltd. [2002 (139) E.L.T. 3 (S.C.)] decided that, regardless of the interpretation that it had placed on a phrase, if there were circulars issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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