Per K. Sankararaman: These are two appeals filed by M/s. J.K. Synthetics Limited against two Orders-in-Appeal No. 60/CE/JP/93 dated 4.4.93 and 62/CE/ JPR/94 dated 22.3.94 passed by Collector of Central Excise (Appeals), New Delhi rejecting their two appeals before him and upholding two orders-in-original passed by Assistant Collector of Central Excise. The Assistant Collector had, by his said two orders, rejected the refund claims filed by the appellants wherein they had claimed refund of the amounts reversed by them in their RG-23 A Part II account of Modvat Credit relating to the inputs received by them and used in the manufacture of their final product, Acrylic Fibre/Tow removed to various customers under Rule 191 BB of Central Excise Rules and Notification 33/90 without payment of Central Excise duty. They claimed the refund amounts of Rs. 7,73,373.95 and Rs. 15,55,180.13 on the ground that their clearance of their final product in the aforesaid manner under Rule 191 BB did not attract the provisions of Rule 57C and did not require the disallowance of the credit amount referable-to the inputs used in the manufacture of such quantity of the said final product and that they had erroneously reversed the credit amounts in question which were, therefore, due to be refunded to them or re-credited to their RG-23 A Part II account. Their claims were rejected by the Assistant Collector by his two orders which were upheld by the Collector (Appeals) leading to the present appeals. While the rejection of the two refund claims is common to both the orders and hence a common ground agitated in both the appeals, the first appeal dealt with inNo. 1768/93 against Order-in-Appeal No. 60/CE/JPR/93 dated 21.4.93 covered in addition, the demand of duty Rs. 26,493 and Rs. 1413 on the ground of short reversal of modvat credit taken and non coverage of the inputs by the Gate Pass produced respectively.

2. The appeals were heard together after allowing the miscellaneous application E/Misc/395/95 relating to Appeal No. E/l 768/93 for deleting Ground No. II in the appeal and for the restoration of the amount of Rs. 7,73,373.95 as the amount of refund claimed in Serial No. 8 A (iv) of the E A3 form of the appeal and for amendment of paragraph 12 of the appeal.

3. Shri A.N. Haksar, learned Senior Advocate appeared for the appellants along with S/Shri Sanjay Grover and K. Dutta, learned advocates. Shri Haksar stated that their case for refund of the amount debited by them in their RG-23 A account is fully covered by the Tribunal decision in Orissa Synthetics Limited Vs. Collector of Central Excise, Bhubaneswar reported in 1995 (77) ELT 350. He pleaded that following the said decision their appeals be allowed.

4. Shri Sanjeev Sachdeva, Senior Departmental Representative opposed the plea and supported the impugned orders.

5. We have considered the submissions. We have perused the record. We have also noted the Tribunal decision referred to by Shri Haksar. One of us (Technical Member, K. Sankararaman) was a party to that decision. The said decision took note of the Delhi High Court decision in Hindustan Aluminium Corporation Limited Vs. Collector of Central Excise reported in 1987 (8) ELT 642 where the removal of goods for export under bond without payment of duty was held to be not the same as a general exemption from payment of duty as also the instructions issued by the Central Board of Excise and Customs in consultation with the Ministry of Law about the scope of proviso (i) to sub Rule (2) of Rule 56A which is similar to Rule 57C. On the basis of the Law Ministry's advice, it was stated by the Central Board of Excise in their letter F.No. 21 l/d2/73 CX6 dated 3.4.75 (Circular No. 10/75 CX6) that the goods exported in bond cannot be treated either as exempted from duty or chargeable to nil rate of duty and consequently the provisions of clause (1) of the first proviso to sub Rule (2) of Rule 56A would not apply to cases where finished excisable