TMI Blog2017 (5) TMI 1746X X X X Extracts X X X X X X X X Extracts X X X X ..... ecedent in the chain of value added, an assessee who is an end user is similarly excluded from entitlement for refund. Had inputs representing the accumulated credit been available in stock, those could have been cleared by debit such credit thus obviating the need for claiming refund. Such is not the situation of the applicant. Grant of refund would, therefore, be tantamount to acknowledging incorrect application of rate of duty on the manufacturer preceding the applicant in the value added chain. In the absence of such a finding, it would be contrary to Article 265 of the Constitution to reduce the tax liability of that assessee. The denial of refund by the lower authorities cannot be faulted. The rectification sought in the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-41186/2016] should not have been discarded. It is further submitted that the order failed to consider the decision of the Hon ble High Court of Bombay, as well as those of the Hon ble High Court of Andhra Pradesh and Hon ble High Court of Jharkhand, which would have led to a decision in their favour. 3. It is also contended that, in view of division Benches of the Tribunal having decided against Revenue, it is not open to a single member Bench to hold differently and that, even if so inclined, the only course available was to refer the matter to the Hon ble President to constitute a Larger Bench to consider the issue of divergence. 4. It must be asserted at the outset that no submission made during the hearing was neglected; even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it were, that a single member Bench is hierarchically inferior to division Bench and that the decision of in Bangalore Cables P. Ltd. v. Commissioner of Central Excise, Bangalore [2017 (347) E.L.T. 100 (Tri. - Bang.)] should have been followed. While numerical superiority is considered to accord hierarchical superiority in the constitutional Courts, Section 129C of Customs Act, 1962 merely distinguishes single member and division Benches. Procedures of constitutional Courts do distinguish a single judge Bench from a division bench with conferment of appellate jurisdiction on the latter which chapter of Customs Act, 1962. Thus there is no difference in status of the two types of benches as to warrant the submission made by Learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon ble High Court of Bombay in Commissioner of Central Excise, Nasik v. Jain Vanguard Polybutlene Ltd. [2010 (256) E.L.T. 523 (Bom.)]. 10. It is but obvious that judicial discipline binds the Tribunal and its benches. Undoubtedly, the lead decision of the Hon ble High Court of Karnataka In Re : Slovak India Trading Co. Pvt. Ltd. must be followed but to submit that the order sought to be subject to rectification in this proceeding had not done so emanates from a less than diligent reading of that judgment. The Hon ble High Court did not sanction the refund claimed under Rule 5 of CENVAT Credit Rules, 2004 but has approved the setting aside of the order rejecting the claim for refund on the ground that it was an insufficient dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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