ORDER
R.K. Abichandani, J. (President)
1. This reference has been made in view of the fact that two conflicting opinions were expressed by different benches of the Tribunal in the context of applicability of the provisions of Section 11B of the Central Excise Act, 1944 to a refund claim relating to duty paid under Section 3A of the Act. The Single Member Bench referring the matter by its order dated 29.6.2005 found itself unable to proceed with the matter in view of the conflicting decisions and referred the matter to a Larger Bench.
2. When the matter was called out before this Larger Bench, it has been pointed out to us by the learned authorized representative for the department that an identical question arising out of conflict between the same two decisions, namely, Kothi Steel Ltd. v. CCE and in the case of K.B. Rolling Mills v. CCE was referred to another Larger Bench which has concluded the issue by its decision dated 10.4.2006.
3. The Larger Bench of the Principal Bench, New Delhi dealing with the identical issue and relying upon the decision of the Supreme Court in Sahakari Khan Udyog Mandal Ltd. v. CCE , answered the question referred to it in favour of the Revenue and, accordingly, held that the bar of unjust enrichment would apply to a refund arising out of clearances of the goods from a unit working under the compounded levy scheme based on capacity of production. Since the issue is already now concluded by the decision of the Larger Bench rendered on 10.4.2006 and the conflict stands resolved, the reference does not survive for our consideration, especially when nothing is urged even in the written submissions filed today on behalf of the appellant, in the context of the said decision of the Larger Bench.
4. We, accordingly, hold that the reference made to us stands answered by the decision of the Larger Bench rendered on 10.4.2006 in Shivagrico Implements Ltd. v. CCE Jaipur. The present reference stands disposed of accordingly. The matter will now be placed before the concerned Bench for disposal on merit.
(dictated and pronounced in the open court)