Per P.G. Chacko : This appeal of the Revenue is against an order of the Commissioner (Appeals) allowing deemed credit to the respondents for the period April to August 2002 in respect of cotton yarn (Heading 52.07 of the CETA Schedule) used in the manufacture of fabrics called "Denim fabrics" removed to 100% EOU without payment of duty in terms of CT-3 certificates. Before the lower appellate authority, challenging the adverse order passed by the original authority, the assessee had claimed the benefit of Notification No.6/2002-CE (NT) dt. 1.3.2002 issued under Rule 11 of the CENVAT Credit Rules, 2002. This Notification (which superseded earlier Notification No.53/2001-CE (NT) issued under Rule 11 of the CENVAT Credit Rules, 2001), in para-3 thereof, allowed utilization of deemed credit on declared inputs used in the manufacture of final products cleared for export under bond, for payment of duty on any final product cleared for home consumption or for export on payment of duty. The Commissioner (Appeals) allowed this benefit to the respondents by extending the applicability of the first proviso to para-3 of the Notification to declared inputs used in final products cleared to 100% EOU for export. The appellate authority, in this connection, relied on Final Order No.115-116/2002 dt. 25.1.2002 [reported in 2002 (50) RLT 218 (CEGAT-Che.)] passed by this Bench in the same assessee's earlier case. In that case, the question was whether, under Notification No.29/96-CE (NT) dt. 3.9.96 issued under sub-rule (2) of Rule 57A of Central Excise Rules, 1944, the benefit of deemed credit on declared inputs under the said sub-rule could be allowed where such inputs were used in the manufacture of declared final product cleared to 100% EOU for export during the material period. This Bench, by relying on the Larger Bench decision in Hunsur Plywood Works (P) Ltd. Vs. CCE Bangalore, 1996 (13) RLT 67 (CEGAT-SRB)=1996 (82) ELT 256 (Tribunal), held in favour of the assessee. In the present case, the lower appellate authority relied on the Larger Bench decision as well as the decision of this Bench in the respondents' earlier case and, accordingly, set aside the demand raised by the original authority.

2. In the present appeal, it is submitted by the department that the question of law raised by them out of Hunsur Plywood Works case (decided by the Larger Bench) is pending with the Hon'ble Karnataka High Court for decision. It is also submitted that the similar question of law framed in the earlier case of the respondents (out of Final Order No.115-116/02) is pending before the Hon'ble Madras High Court for decision. Ld. SDR submits that both the matters are still pending before the High Courts and that the present appeal can be kept in abeyance, awaiting the decision of the Hon'ble High Courts. In answer to a query from the Bench, ld. SDR submits that there is no stay of operation of the Tribunal's decision in either of the cases.

3. The reason stated in the present appeal as a ground against the decision of the lower appellate authority is that the decision of the Larger Bench in Hunsur Plywood Works case and the decision of this Bench in the respondents' earlier case cannot be considered to have attained finality on account of pendency of the aforesaid question of law before the Hon'ble High Courts. Ld. SDR has reiterated this ground of the appeal.

4. In this context, it is submitted by ld. counsel for the respondents that mere pendency of the referred issue before any High Court would not act as stay of operation of the final order passed by the Tribunal. In this connection, reliance has been placed on the Calcutta High Court's decision in Union of India Vs. Sancheti Food Products Ltd., 1993 (68) ELT 341 (Cal.) as also on the Tribunal's decision in Commissioner of Customs, Mumbai Vs. Yakub I. Yusuf, 2002 (48) RLT 974 (CEGAT-Mum.)=2002 (147) ELT 567 (Tri.-Mumbai), both of which are to the effect that the mere pendency of a reference applica