S.J.MUKHOPADHAYA, J. - (1.)THIS petition under Sec.35 H(1) of the Central Excise Act, 1944 has been preferred on behalf of the Revenue raising a doubt relating to legality and propriety of the order dated 30th April, 2002, passed by the Customs, Excise & Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata (hereinafter to be referred as 'CEGA Tribunal ') in Appeal No. E -680/2001. By the said order, the CEGA Tribunal has accepted the stand of the appellant (respondent herein), set aside the order dated 5th September, 2001, passed by the Commissioner (Appeals), Customs & Central Excise, Patna and directed the Revenue to refund the amount in cash to the respondent -appellant.
(2.)THE respondent M/s. Ashok Arc, Panchet Road, Chirkunda, District -Dhanbad claimed refund of Rs. 42,503.51 (rupees forty two thousand five hundred three and fifty one paise only) pursuant to Order Nos. A -598 -599, dated 19th May, 1998, passed by the CEGA Tribunal in 1, 2 Appeals E -3441, 3442/93. The said amount was debited by the respondent from MODVAT Account under Sec.35F of the Central Excise & Salt Act, 1944. The Deputy Commissioner, Central Excise, Ranchi, while sanctioned a sum of Rs. 3,150.00 (rupees three thousand one hundred and fifty only) for payment through cheque, ordered that the balance amount of Rs. 39,353.51 (rupees thirty nine thousand three hundred fifty three and fifty one paise only) be made available to CENVAT Account, it having been debited by the respondent from its MODVAT Account. The respondent M/s. Ashok Arc, Dhanbad, initially moved in appeal before the Commissioner (Appeals), Customs & Central Excise, Patna, and prayed for refund of total amount in cash and to set aside the order, passed by the Deputy Commissioner, Central Excise, Ranchi. The appeal was rejected vide order dated 5th September, 2001, passed by the Commissioner (Appeals), Customs & Central Excise, Patna, in Appeal 414/JSR/CE/Appeal/2001, which was the impugned order before the CEGA Tribunal.
We have considered the submissions, made by the Counsel for the Revenue. He particularly relied on Sub -rules (12) and (13) of Rule 57F of the Central Excise Rules, 1944. It has been submitted that the CEGA Tribunal while passing the impugned order dated 30th April, 2002, has overlooked the provisions, wherein, it is stipulated that the credit of specified duty allowed in respect of any inputs may be utilised by manufacturer of the final products towards payment of duty of excise on any of the following :

(a) On any of the final products in the manufacture of the final products; or

(b) On the waste, if any, arising in the course of manufacture of the final products; or

(c) On the inputs themselves if such inputs are removed as such under Sub -rule(3) to Rule 57F.

(3.)IN this petition, the Revenue has raised the following question for reference: Whether the learned Tribunal has gravely erred in allowing the Appeal and directing the authority to refund the pre -deposit amount in cash when the same has been deposited through RG 23A Pt. -II i.e. MODVAT account and under the provisions ofCentral Excise Rules, 1944 no such refund in cash is permissible?