Full Judgment
2. A clear or specific question has not been framed for reference.
However, it appears that after reading the relevant material that the department wishes to refer following two questions. The first is whether a decision of three member larger Bench, in which one member descent from the view of the majority can be accepted as precedence in comprehend to another earlier unanimous decision of two member Bench.
It is settled law that a decision of a Larger Bench takes precedence over a decision of a smaller bench notwithstanding that the number of members of the Larger Bench, on taking the majority view may not exceed the number of the Bench which passed the earlier order.
3. The second question sought to be referred is whether the exclusion clause in the proviso to clause in Rule 57A includes parts of machines and machinery referred to there. On this, a reference has already been made to a High Court by the Delhi bench following its decision in Union Carbide Industries Ltd. v. C.C.E. However we do not consider it necessary to make a reference on this point. The goods that were concerned with are refractory materials. The Calcutta High Court in its judgment in Singh Alloys & Steel Ltd. v. Assistant Collector -1993 (66) E.L.T. 594 has held the refractory materials similar to those used by the assessee to be inputs eligible for Modvat credit under Rule 57A.This point, as to whether the refractory materials are inputs already having been decided by a High Court, we do not see any purpose in referring the matter to another High Court.