TMI Blog2006 (8) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... r in Court at the time of hearing), arising out of the order of the Tribunal dated 8-10-2002:- (i) Whether in the facts and circumstances of the case the Delhi Bench of the Tribunal was bound to follow the Kolkata Bench judgment in Utkal Polyweave 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 followe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was some agreement in this behalf with the Government and the latter had agreed in refund the excise duty to the extent of the reduced price." 3. The Commissioner (Appeals) allowed refund to the extent of Rs. 39,44,755/- and rejected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply." 7. In the present case, it is not shown that clearance of the goods was made on provisional basis. Once this is so, reduction of price at a later date could not be made foundation for seeking refund. 8. Further we do not find any merit, whatsoever, in the contention raised by learned Counsel for the assessee that the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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