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 decisi