2006 (8) TMI 49

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....ave Indus. Pvt. Ltd. v. Commissioner of Central Excise, Bhubaneswar [2001 (136) E.L.T. 818 (Tri.-Kolkata) and in the event of. disagreement, the Tribunal was bound to refer the question to a Larger Bench as was prayed for by the petitioner? (ii) Whether the Tribunal misapplied the MRF judgment of the Supreme Court reported as 1997 (92) E.L.T. 309 (S.C.) to the facts of the petitioners' case when they were totally different from those in the MRF case? (iii) Whether the Tribunal could have followed the judgment of the Larger Bench of the Tribunal in the case of Rajiv Mardia vs Commissioner of Central Excise [2000 (118) E.L.T. 627 (Tri.-LB)] which stood over-ruled by a still Larger Bench in the same case reported as 2001 (129) E.L.T. 334....

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....d the refund to the extent of Rs. 12,87,318/- The reduction. in refund was on the basis of claim for refund being time-barred. 4. On appeal, the Tribunal dismissed the appeal of the assessee and allowed the appeal of the revenue. In para 4 of the order, concession of the assessee that claim was time barred and was not pressed was also noticed. The argument of the assessee that Kolkata Bench of the Tribunal had allowed refund was rejected on the ground that Larger Bench of the Tribunal had taken a different view and the judgment of the Hon'ble Supreme Court was direct on the point . 5. Learned Counsel for the assessee submits that the view taken by the Larger Bench which has been followed by the Tribunal i.e. Rajiv Mardia v commissione....