JUDGMENT

Dr. Arijit Pasayat, J.—

1. Heard learned counsel for the parties.

2. By order dated 12.12.2006 this court had directed that the present matter be placed for disposal after the decision of this Court in CCE v. Ratan Melting & Wire Industries, which had been referred to a larger bench. The larger bench has rendered its judgment in the matter on 14.10.2008 which is reported in Commissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries1 [2008 (13) SCC 1].

3. On a reference made by a Bench of three Judges in Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries, Calcutta2 (2005 (3) SCC 57), these matters were placed before the Five Judge Bench. The reference was necessitated because of certain observations by a Constitution Bench in Collector of Central Excise v. Dhiren Chemical Industries3 (2002 (2) SCC 127). During the hearing of the appeal before the three-Judge Bench it was fairly conceded by the parties that the decision of this Court in Collector of Central Excise, Patna v. Usha Martin Industries4 (1997 (7) SCC 47) on which the Customs, Excise and Gold (Control) Appellate Tribunal placed reliance was over-ruled by the subsequent decision of the Constitution Bench in Dhiren Chemical’s case (supra). But learned counsel for the assessee-respondent submitted that paragraph 11 of Dhiren Chemical’s case (supra) operates in its favour. It reads as under:

“We need to make it clear that regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue.”

4. It was noted by the three-Judge Bench that the effect of the aforesaid observations was noted in several decisions. In Kalyani Packaging Industry v. Union of India and Anr.5 (2004 (6) SCC 719), it was noted as follows:

“We have noticed that para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722) is being misunderstood. It, therefore, becomes necessary to clarify para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722). One of us (Variava, J.) was a party to the judgment of Dhiren Chemical case and knows what was the intention in incorporating para 9 (para 11 in SCC). It must be remembered that law laid down by this Court is law of the land. The law so laid down is binding on all courts/tribunals and bodies. It is clear that circulars of the Board cannot prevail over the law laid down by this Court. However, it was pointed out that during hearing of Dhiren Chemical case because of the circulars of the Board in many cases the Department had granted benefits of exemption notifications. It was submitted that on the interpretation now given by this Court in Dhiren Chemical case the Revenue was likely to reopen cases. Thus para 9 (para 11 in SCC) was incorporated to ensure that in cases where benefits of exemption notification had already been granted, the Revenue would remain bound. The purpose was to see that such cases were not reopened. However, this did not mean that even in cases where the Revenue/Department had already contended that the benefit of an exemption notification was not available, and the matter was sub judice before a court or a tribunal, the court or tribunal would also give effect to circulars of the Board in preference to a decision of the Constitution Bench of this Court. Where as a result of dispute the matter is sub judice, a court/tribunal is, after Dhiren Chemical case, bound to interpret as set out in that judgment. To hold otherwise and to interpret in the manner suggested would mean that courts/tribunals have to ignore a judgment of this Court and follow circulars of the Board. That was not what was meant by para 9 of Dhiren Chemical case.”

5. The three-Judge Bench agreed with the view expressed in Kalyani’s case (supra) and observed that the view about invalidation was sufficient to cl