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TMI Blog2009 (4) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... Wire Industries [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, Calcutta (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 Industries (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 Industries (1997 (7) SCC 47) on which the Customs, Excise and Gold (Control) Appellate Tribunal placed reliance was over-ruled by the subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law. As noted in the order of reference the correct position vis-à-vis the observations in para 11 of Dhiren Chemical's case (supra) has been stated in Kalyani's case (supra). If the submissions of learned counsel for the assessee are accepted, it would mean that there is no scope for filing an appeal. In that case, there is no question of a decision of this Court on the point being rendered. Obviously, the assessee will not file an appeal questioning the view exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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