2005 (4) TMI 197

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....cise duty paid by them be returned to the appellants. Further, it has been directed that the authorities should follow procedure prescribed under Rule 173-I(2) of the Central Excise Rules, 1944. The matter was remanded to the Original authority. 2. Shri G. Shivadass, the learned Advocate for the appellants and urged that there are mistakes apparent on the face of the record and therefore the same requires rectification. (i)       In Para 3(b) of the Final Order, the following observations have been made. "On an examination of the status of clearances made, for which the refund claim has been sought, it is observed that both sides agree that the classification lists during the relevant period were not a....

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.... in Account Current, a separate cash payment cannot be considered and granted.". It was urged that in the Memorandum of Appeal filed before the Tribunal in August 1999, the fact of closure of the appellant's unit since 1993 had been mentioned. The closure was intimated to the jurisdictional Superintendent and the original Registration Certificate was surrendered. Consequently, there is no Account Current where the excess credit of duty paid by the appellant could be taken as credit. If the above development of the closure of the factory is not taken into account, there would be no effective implementation of the order of the Tribunal. He cited the decision of the Tribunal in the case of MRF Ltd. v. CCE, 1990 (50) E.L.T. 482 (Tri.), where....

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....the following sentence in Para 3(b) is allowed. "There is no evidence of the assessments being provisional." 5. The fact of closure of the factory was mentioned in the Memorandum of Appeal. The Tribunal has passed the final order without taking into account the fact of closure of the factory. When the factory is under closure, Account Current would not be available. In view of the case laws cited by the appellant, they would be entitled for cash refund under such circumstances. The Tribunal has already set aside the order of the lower authority. That means the appellant is entitled for the refund and the same should be paid in cash in view of the Tribunal decision in MRF case cited by the learned Advocate. Hence, the prayer of the app....