Per A.C.C. Unni :

This matter has come up before this Larger Bench on the basis of order dt. 29.10.99 passed by a single Member Bench of the Tribunal (WRB) in Appeal No. E/ 3173/99-NB in the case of Commissioner of Central Excise, Vadodara vs. M/s. Asia Brown Boveri Ltd.

2. Single Member in Para 3 of the aforesaid order had observed: "The ld.

Single Member in the said judgment allowed the case of the Department. There is conflict of decisions between the order in the appellant's case and the case of Chandigarh Bottling Company. It is to be mentioned here that in the Chandigarh Bottling Company case, the judgment of the appellant company was not cited. In the judgment of the appellant's case, the very ground of distinguishing each other has been referred to in Para 4 thereof. There is a divergence of opinion between two Members. Therefore the matter is placed before the President for constituting Larger Bench to look into the correctness of the judgments".

3. We have heard Shri M.C. Sharma, ld. CDR for the Revenue and Shri V. Laxmikumaran, ld. Advocate who addressed the Bench as an intervener to assist the Bench in the matter.

4. Ld. CDR explained the facts of the case leading to the present reference and stated that the Respondent herein, viz., M/s. Asia Brown Boveri Ltd. had been issued two Show Cause Notices by the Department alleging that the assessee had received certain inputs from S.S.I, units and had subsequently cleared the same as such under Rule 57F (1) (ii) of the Central Excise Rules, 1944 after paying duty at the concessional rate. Department alleged that this was not in consonance with the provisions of Rule 57F (1) (ii). In the Order-in-Original, the Asst. Commissioner held that the assessee was required to pay the applicable rate of duty on the date of clearance of the inputs under Rule 57F (1) (ii). When the matter was heard in Appeal by Commissioner (Appeals), the Commissioner (Appeals), placing reliance on the Tribunal decisions in C.C.E. Coimbatore vs. American Auto Services 1996 (13) RLT 364=[1996 (81) ELT 71 (T)] and Electronics Corporation of India Ltd. vs. C.C.E., Hyderabad 1997 (23) RLT 216=[1997 (95) ELT 476] set aside the Order-in-Original and held that appropriate duty of excise meant the rate of duty which the inputs suffered in the first instance, that is, the rate at which credit was taken and that it was the said rate of duty which was to be debited at the time of clearance of the goods under Rule 57F (1) (ii). When the matter came up in appeal before the Tribunal, the ld. Single Member observed that in the case of C.C.E. Chandigarh vs. Chandigarh Bottling Company reported in 1999 (32) RLT 512=1999 (108) ELT 606, the Single Member Bench had taken a view contrary to the view taken by the Tribunal in the earlier case of C.C.E. vs. American Auto Services. The Single Member Bench had decided the issue on the basis of the Departmental representative's contention that the M/s. American Auto Services case had dealt with the issue of classification of the inputs which was not an issue before him in the Chandigarh Bottling Co. case. In view thereof, ld. Single Member accepted the contention of the Revenue and held that the rate of duty on the date of clearance of the inputs under Rule 57F(1) (ii) would apply to such clearances. In view of the conflict in the views expressed in the aforesaid two cases the referral order suggested the hearing of the divergence of opinion by a Larger Bench. Accordingly by an Order dt. 17.2.2000, the Hon'ble President constituted the present Larger Bench for hearing the matter.

5. As regards the constitution of the Larger Bench by the Hon'ble President pursuing the referral order, 1d. Counsel had pointed out that inasmuch as the Tribunal decision in M/s. American Auto Services (supra) being a decision of a Larger Bench consisting of three members, the same was binding on the other Benches of the Tribunal and to the extent the referral order had recommended to the Hon'ble Pres