ORDER A.S. OKA, J. - Appeal No. 13 of 2007 impugns the Judgment and Order dated 21st August 2006 as well as the Order dated 30th March 2007 of the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short "Appellate Tribunal"). The appellant was engaged in manufacture of resin PVC Pipes and Fittings. There was a dispute regarding availability of Small Scale Industries (SSI) exemption under the notification dated 28th February, 1993. A show cause notice dated 16th March 2000 was issued by the Additional Director for recovery of duty of Rs. 8,45,483/- on clearance of the pipes during the period from April, 1996 to October, 1998 by denying SSI exemption. The Order-in-Original was passed on 18th October 2000 by the Joint Commissioner of Excise confirming the demand of Rs. 8,45,483/-. The same amount was imposed by way of penalty under Section 11AC of the Central Excise Act, 1944 (for short "the said Act of 1944"). Duty of Rs. 2 lakhs under Rule 173Q of the Central Excise Rules, 1944 (for short "the said Rules of 1944") was also demanded by the said order. The SSI exemption was denied on the ground that the appellant was manufacturing pipes bearing a mark "Jain Pipe" and that "Jain Pipe" was a brand name. An Appeal was preferred by the appellant against the Order-in-Original dated 18th October, 2000. The Commissioner (Appeals) allowed the Appeal by holding that Jain Pipe cannot be considered as a brand name. The appellant had deposited various amounts in accordance with Section 35F of the said Act of 1944. According to the case of the appellant, during the pendency of the Appeal, the Appellant suspended manufacturing activities and surrendered its registration certificate vide letter dated 8th September, 2000. 2. In view of the order in Appeal, the appellant filed an application for refund on 12th April, 2004 for seeking refund of all the amounts including the sum of Rs. 8,41,043/- deposited in accordance with Section 35F of the said Act of 1944. 3. A show cause notice was issued on 18th June, 2004 informing the appellant that it was proposed to reject the refund claim of Rs. 8,41,043/- out of the total amount claimed on the ground that on surrender of registration certificate on 8th September 2000, the entire unutilised credit lapses and hence, subsequent reversal made on 23rd November, 2000 was not permissible. 4. 8,41,043/- out of the total amount claimed on the ground that on surrender of registration certificate on 8th September 2000, the entire unutilised credit lapses and hence, subsequent reversal made on 23rd November, 2000 was not permissible. 4. By the Order-in-Original dated 21st September, 2004, the Deputy Commissioner rejected the refund claim in the sum of Rs. 8,41,043/- which was debited in Modvat Account and sanctioned refund of Rs. 2,32,721/-. A finding was recorded that maintenance of Modvat Account alter cancellation of registration certificate was not valid as the account cannot be maintained by a non-existent unit. He observed that amount of Rs. 8,41,043/- was debited from Modvat account on 23rd November, 2000 after cancellation of registration. An Appeal was preferred against the said order by the appellant. In Appeal, the Commissioner of Appeals upheld the Order-in-Original on the ground that the appellant was not entitled to cash refund but was entitled to credit in Cenvat Account on 23rd November, 2000 after surrender of the registration certificate. 5. An Appeal was preferred by the appellant before the Appellate Tribunal. The Appellate Tribunal referred the Appeal to a larger Bench. The larger Bench by order dated 21st August, 2006 recorded the following findings :- "10. In view of the foregoing discussions, we hold that if denial of credit has compelled as Assessee to pay duty out of PLA, the refund of the same would be admissible in cash to the extent of payment of duty in cash during that period. However, if no cash payments duty were made through PLA and the credit would have remained unutilized in the account books, such credit cannot be allowed by way of cash. 11. By applying the above ratio of law as arrived at by this Bench to the fact of the instant case, we find that the debit entry in credit account was made by the appellants on 23-11-2000, the Central Excise registration was surrendered by them in September 2000 i.e. before making of debit entry in RG-23 account. As such, even if the amounts towards duty would not have been debited by them in the said account, the same would have been remained unutilized. As such, even if the amounts towards duty would not have been debited by them in the said account, the same would have been remained unutilized. As such, on the success of their appeal before the Commissioner (Appeals), they cannot claim the refund of the same in cash, inasmuch as on account of such debit entry, they have not discharged any duty out of PLA. If the said refund is granted to the appellants by way of cash, the same would amount to making him unjustifiable enrich." 6. The larger Bench directed the Appeal to be placed before the regular Bench and the regular Bench dismissed the Appeal by the Order dated 30th March, 2007 on the basis of the findings of the larger Bench. The challenge in the Appeal No. 13 of 2017 is to both the said orders. 7. The Central Excise Appeal No. 257 of 2007 has been preferred by the Revenue. The respondent was served with show cause notice on the basis of refund claim made by the respondent in the sum of Rs. 93,88,915/-. The respondent-assessee was engaged in manufacture of Cotton and Manmade Fabrics falling under Chapter 52 and 55 as well as Made Ups falling under Chapter 63 of the Schedule of Central Excise Tariff Act, 1985. The case of the respondent was that it was availing Cenvat Credit of Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (for short "the said Act of 1978") paid on the inputs purchased and was utilizing the same for payment of Additional Duties of Excise under the said Act of 1978 payable on final products at the time of clearance of the same. According to the case of the respondent-assessee, by a Notification dated 9th .July 2004 the Government of India had exempted all goods falling within the schedule of the said Act of 1978. The respondent utilized credit balance of Additional Duties of Excise (Textile and Textile Articles) of Rs. 93,88,915/- in their RG-23A Part II register as on 6th September, 2004 which could not be utilized in future and had remained unutilized. The contention of the respondent was that since none of the products are charged to Additional Duties of Excise, it would not be possible to utilize the said unutilized credit and thus they were eligible for cash refund. 8. By the Order-in-Original the shows cause notice was confirmed. The contention of the respondent was that since none of the products are charged to Additional Duties of Excise, it would not be possible to utilize the said unutilized credit and thus they were eligible for cash refund. 8. By the Order-in-Original the shows cause notice was confirmed. Being aggrieved by that the respondent preferred an Appeal. The said Appeal was allowed and the Appeal preferred against the said order before the Appellate Tribunal by the appellant - revenue was dismissed. 9. As far as Central Excise Appeal No. 28 of 2008 is concerned the facts are more or less similar to Appeal No. 257 of 2007. 10. Appeal No. 13 of 2007 was admitted by this Court on substantial questions of law framed in paragraph 19 which read thus : "1. Whether the Tribunal erred in holding that cash refund of un-utilized credit is not permissible, as the Appellants were not compelled to raise debit from PLA. 2. Whether the Appellants, when have stopped production due to closure of factory and surrendered registration certificate on 8-9-2000, the un-utilized credit is refundable under Section 11B, in the absence of any express prohibition for such cash refund." 11. Appeal No. 257 of 2007 was admitted by order dated 30th July, 2008 on the following substantial question of law : "Whether cash refund is permissible in terms of clause(c) to the proviso to Section 11B(2) of the Central Excise Act, 1944 where an assessee is unable to utilize credit on inputs." 12. Appeal No. 28 of 2008 was admitted by order dated 6th August, 2008 on the three questions of law framed which read thus : "Whether refunding CENVAT credit taken on inputs as cash refund is proper and legal when the final product is exempted from duly after credit is taken." 13. The Learned Counsel appearing for the appellant in Appeal No. 13 of 2007 pointed out the decision of a Division Bench of Karnataka High Court in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd. - 2006 (201) E.L.T. 559 (Kar.) . The Learned Counsel appearing for the appellant in Appeal No. 13 of 2007 pointed out the decision of a Division Bench of Karnataka High Court in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd. - 2006 (201) E.L.T. 559 (Kar.) . He pointed out that Karnataka High Court held that even if there is no express provision in Rule 5 of the Cenvat Credit Rules, 2002 which deals with refund of Cenvat credit, in a contingency where credit could not he used due to the fact that manufacturing activity was stopped due to closure of the company, refund can be ordered in such a case. He pointed out that by order dated 25th January, 2007, the decision of the Karnataka High Court has been upheld on merits by the Apex Court. He pointed out the decision of the Appellate Tribunal at Mumbai in the case of Jain Vanguard Polybutylene Ltd. v. Commissioner of Central Excise, Nashik, 2009 (247) E.L.T. 658 (Tri. - Mumbai) . He submitted that Appellate Tribunal followed the decision of Karnataka High Court in the case of Slovak India Trading Co. Ltd. (supra). The Member of the Tribunal held that the decision has been confirmed on merits by the Apex Court. The Learned Counsel pointed out the decision of the Tribunal in the case of Jain Vanguard Polybutylene Ltd. (supra) was confirmed by a Division Bench of this Court in the case of Commissioner of Central Excise v. Jain Vanguard Polybutylene Ltd. [2010 (256) E.L.T. 523 (Bom.) ]. He submitted that the Division Bench held that the Apex Court has confirmed the decision of the Karnataka High Court on merits. He pointed out that the decision of the Division Bench of the Bombay High Court has been confirmed by the Apex Court by dismissing the Special Leave Petition by order dated 12th July, 2011. He also relied upon a decision of Punjab and Haryana High Court in the case of M/s. Rama Industries Ltd. v. Commissioner of Central Excise, Chandigarh in C.E.A. No. 15 of 2009 dated 10th February 2009 wherein Punjab and Haryana High Court relied upon the decision of the Karnataka High Court in the case of Slovak India Trading Co. He also relied upon a decision of Punjab and Haryana High Court in the case of M/s. Rama Industries Ltd. v. Commissioner of Central Excise, Chandigarh in C.E.A. No. 15 of 2009 dated 10th February 2009 wherein Punjab and Haryana High Court relied upon the decision of the Karnataka High Court in the case of Slovak India Trading Co. Pvt. Ltd. (supra), and observed that the Appellate Tribunals have consistently held that assessee is entitled to refund in cash of the amount deposited if the Assessee has gone out of Modvat Scheme or his unit is closed. He pointed out that there are several decisions of the Appellate Tribunals which consistently take the same view. He submitted that the law is very well settled. The revenue cannot take a stand which is contrary to consistent decisions of the Tribunals which have been accepted by it. The Learned Counsel appearing for the appellant also pointed out a decision of the Larger Bench of the Appellate Tribunal at Delhi in the case of Steel Strips v. Commissioner of Central Excise, Ludhiana - 2012 (26) S.T.R. 270 (Tri. - LB) . He submitted that the said decision will not be of any help to the respondent - revenue considering the view taken by the Division Bench of this Court. He pointed out the decision of the Apex Court in the case of Birla Corporation Ltd. v. Commissioner of Central Excise - 2005 (186) E.L.T. 266 (S.C.) and submitted that the revenue cannot be allowed to take a stand different from the previous cases. He also relied upon various decisions of the Tribunal which have taken a consistent view in favour of the appellant-assessee. The said decisions are in the following cases : "1. Shree Prakash Textiles - 2004 (169) E.L.T. 162 (T) 2. CCE v. Kores (India) Ltd. - 2009 (245) E.L.T. 411 (T) 3. CCE v. Jai Ganpati Metals - 2015 (322) E.L.T. 730 (T) 4. CCE v. Apex Drugs & Intermediates - 2014 (314) E.L.T. 729 (T) 5. Upheld by AP - HC - 2015 (322) E.L.T. 834 (AP) 6. CCE v. Kochar Sung-up Acrylic Ltd. - 2010 (259) E.L.T. 713 (T) 7. Lohia Polyester Pvt. Ltd. - 2014 (313) E.L.T. 435 (T) " 14. The Learned Counsel for the Revenue supported the stand taken by the Revenue before the Appellate Tribunal in Appeal No. 13 of 2007. Upheld by AP - HC - 2015 (322) E.L.T. 834 (AP) 6. CCE v. Kochar Sung-up Acrylic Ltd. - 2010 (259) E.L.T. 713 (T) 7. Lohia Polyester Pvt. Ltd. - 2014 (313) E.L.T. 435 (T) " 14. The Learned Counsel for the Revenue supported the stand taken by the Revenue before the Appellate Tribunal in Appeal No. 13 of 2007. He urged that the decision of the Karnataka High Court in the case of Slovak India Trading Co. Pvt. Ltd. (supra) has not been confirmed by the Apex Court on merits. But the confirmation is only on the basis of the concession. 15. We have given careful consideration to the submissions. 16. Before the Karnataka High Court, the following three questions were framed : "(a) Whether under the facts and circumstances of the case the Tribunal is right in ordering for refund even if there is no provision in Rule 5 of Cenvat Credit Rules 2002, to refund the unutilized Credit? (b) Whether under the facts and circumstances of the ease the Tribunal is right in ordering for refund even if there is no production and there is no clearance of finished goods? (c) Whether under the facts and circumstances of the case the Tribunal is right in holding that respondent is entitled for refund even if it goes out of Modvat Scheme or Company is closed?" 17. The Division Bench referred to Rule 5 of the Cenvat Credit Rules, 2002 by quoting the same. The Division Bench observed that though there may not be a specific provision in the said Rule 5 to grant refund when the manufacturing is stopped as a result of the closure of the factory, there is no prohibition in terms of Rule 5. Paragraph 5 of the said decision reads thus :- "5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. Admittedly, in the case on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour of the assessee." (emphasis added) 18. The Union of India preferred Special Leave Petition (C) No. CC476 of 2007 [2008 (223) E.L.T. A170 (S.C.)] against the aforesaid decision of the Karnataka High Court which was dismissed by passing the following order:- "Delay condoned. The Tribunal while allowing the appeal filed by the respondent assessee has relied upon the following decisions : 1. Eicher Tractors v. CCE, Hyderabad, 2002 (147) E.L.T. 457 (Tri.-Del.) ; 2. Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad, 2004 (169) E.L.T. 162 (Tri.-Mumbai) ; 3. CCE, Ahmedabad v. Babu Textile Industries, 2003 (158) E.L.T. 215 (Tri.-Mumbai) ; and 4. CCE, Ahmedabad v. Arcoy Industries, 2004 (170) E.L.T. 507 (Tri.-Mumbai) . of the Tribunal in which it has been held that the assessee is entitled to refund of the amount deposited if the assessee has gone out of the Modvat Scheme or their unit is closed. Aggrieved against the order of the Tribunal, revenue filed C.E.A. No. 5/2006 in the High Court of Karnataka at Bangalore. The High Court by its impugned order has affirmed the order of the tribunal and dismissed C.E.A. No. 5/2006 filed by the revenue. Learned ASG appearing for the Union of India fairly concedes that those decisions of the Tribunal, which were relied upon by the Tribunal, have not been appealed against. In view of the concession made by the Learned ASC, this special leave petition is dismissed." (emphasis added) 19. In the case of Jain Vanguard Polybutylene Ltd. (supra), the same question arose before the Appellate Tribunal as to whether a refund under Rule 5 of the Cenvat Credit Rules, 2004 of the un-utilized Cenvat credit availed by the assessee can be allowed on the ground of the closure of the factory. In the case of Jain Vanguard Polybutylene Ltd. (supra), the same question arose before the Appellate Tribunal as to whether a refund under Rule 5 of the Cenvat Credit Rules, 2004 of the un-utilized Cenvat credit availed by the assessee can be allowed on the ground of the closure of the factory. The Tribunal relied upon the decision of the Karnataka High Court in the case of Slovak India Trading Company and noted that the said decision has been confirmed by the Apex Court and therefore, allowed the Appeal of the assessee. This order was carried by the Revenue to this Court. The Appeal was dismissed in-limine by a Division Bench of this Court by making the following observations : "2. The Tribunal has relied upon the judgment of the High Court of Karnataka, in the case of Union of India v. Slovak India Trading Co. Pvt. Ltd., 2006 (201) E.L.T. 559 (Kar.) 2008 (10) S.T.R. 101 (Kar.) , wherein it is held that :- "5. There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the ease on hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17, against the Revenue and in favour of the assessee." 3. The above judgment was subject matter of Special Leave Petition. The Special Leave Petition had been dismissed by a reasoned order [2008 (223) E.L.T. A 170(S.C.)]. In the said order, the statement of the Learned Additional Solicitor General was recorded by the Apex Court, who had conceded before the Apex Court that the various judgments relied upon by the Karnataka High Court were not appealed against by the Revenue. Notwithstanding this concession, it is not possible to say that the S.L.P. was dismissed in view of the concession given by the Additional Solicitor General. Notwithstanding this concession, it is not possible to say that the S.L.P. was dismissed in view of the concession given by the Additional Solicitor General. No concession was given with regard to the correctness of the judgment of Karnataka High Court. This judgment was confirmed by the Apex Court on its own merits for the reasons stated therein. The Tribunal was wrong in observing that the S.L.P was dismissed because the Learned Additional Solicitor General had conceded the correctness of the High Court''s judgment. What was conceded by the Learned Additional Solicitor General was that the various judgments relied upon by the Court were not appealed against and not the correctness of the judgment of Karnataka High Court. The Apex Court in Birla Corporation Ltd. v. Commissioner of Central Excise - 2015 (186) E.L.T. 266 (S.C.) held that when question arising for consideration on facts almost identical to previous case, Revenue cannot be allowed to take different view. Following this principle, we cannot take any other view other than the one approved by the Apex Court, which came before it from the Karnataka High Court. 4. In the above view of this matter, Appeal is dismissed in limine with no order as to costs." (emphasis added) 20. As far as the effect of dismissal of Special Leave Petition is concerned, the law is crystallized in the case of Kunhayammed & Ors. v. State of Kerala and Anr, (2000) 6 SCC 359 = 2001 (129) E.L.T. 11 . Paragraph 44 of the said decision reads thus :- "44. To sum up, our conclusions are : (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. (iii) The doctrine of merger is not a doctrine of universal of unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications, firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may he of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC." (emphasis added) 21. In the light of what is held by the Apex Court, the effect of dismissal of Special Leave Petition against the decision of the Karnataka High Court will have to be considered. We have already quoted the order of the Apex Court in the Special Leave Petition. The first part of the order is only a statement of fact. It contains a list of the decisions relied upon by the Appellate Tribunal and it mentions that the view taken by the Tribunal has been confirmed by the Karnataka High Court. Thereafter, concession of the Learned Additional Solicitor General of India is recorded that the decisions of the Appellate Tribunal which were relied upon by the Tribunal in the said case have not been appealed against. Prima facie, it is only in the light of this factual concession that the Special Leave Petition has been dismissed. 22. We have quoted the entire decision of the Division Bench of this Court in the case of Jain Vanguard (supra). The Division Bench observed that the Additional Solicitor General of India did not give any concession with regards to correctness of the order of the Karnataka High Court and judgment of the Karnataka High Court was confirmed by the Apex Court on its own merits for the reasons stated therein. 23. When the Division Bench decided the matter, the decision of the Apex Court in the case of Kunhayammed & Ors. v. State of Kerala & Anr. was not pronounced. 23. When the Division Bench decided the matter, the decision of the Apex Court in the case of Kunhayammed & Ors. v. State of Kerala & Anr. was not pronounced. Prima facie, on plain reading of the order of the Apex Court, we do not agree with the view of the Division Bench that reasons have been recorded by the Apex Court on merits for confirming the decision of the Karnataka High Court. 24. There is one more important aspect of the matter. We may note here that while dismissing the Special Leave Petition filed against the aforesaid decision of the Division Bench of this Court in the case of Jain Vanguard (supra), the Apex Court passed the following Order : "Delay condoned. We find no reason to interfere with the impugned order in exercise of our discretion under Article 226 of the Constitution. The Special Leave Petition is, accordingly, dismissed leaving the question of law open." (emphasis added) 25. Thus, the question of law which arose before the Division Bench has been specifically kept open by the Apex Court and therefore, by virtue of dismissal of Special Leave Petition, the legal issues which arose before the Division Bench were not concluded. 26. Therefore, going by the law laid down in the case of Kunhayammed and Ors., in our opinion, the SLP filed by the Union of India against the decision of the Karnataka High Court in the case of Slovak India Trading Company was not dismissed by recording reasons on merits. With greatest respect to the Division Bench, prima facie, in our view, the SLP was dismissed only on the basis of a concession made by the Learned Additional Solicitor General. Prima facie, in our view, clause (iv) of paragraph 44 of the decision of Kunhayammed and Ors. will apply. There is one more aspect of the matter. While dismissing the SLP preferred against the decision of the Division Bench of this Court, the Apex Court has expressly observed that the question of law remains open. However, we cannot take a different view from the view taken by a coordinate Bench. 27. will apply. There is one more aspect of the matter. While dismissing the SLP preferred against the decision of the Division Bench of this Court, the Apex Court has expressly observed that the question of law remains open. However, we cannot take a different view from the view taken by a coordinate Bench. 27. The Learned Counsel appearing appearing for the appellant-assessce had relied upon a decision of the Apex Court in the case of Commissioner of Central Excise, Hyderabad v. Novapan Industries Limited, 2007 (209) E.L.T. 161 (S.C.) and in particular what is observed in paragraph 14 thereof, which reads thus :- "14. In view of a catena of decisions of this Court, it is settled law that the department having accepted the principles laid down in the earlier case cannot be permitted to take a contra stand in the subsequent cases (see : Birla Corporation Ltd. v. CCE [ 2005 (186) E.L.T. 266 (S.C.)] , Jayaswals Neco Ltd. v. CCK, Nagpur [ 2006 (195) E.L.T. 142 (S.C.)] etc." 28. In the present case, the revenue did not accept the decision of the Division Bench of this Court in the case of Jain Vanguard Polybutylene Ltd (supra). While dismissing the SLP preferred by the Revenue, the Apex Court has specifically observed that the question of law which arose before the Division Bench of this Court is kept open. The said question which was kept open expressly arises in this group of Appeals. 29. We may also make a reference to the decision of the larger bench of the Appellate Tribunal in the case of Steel Strips v. Commissioner of Central Excise, Ludhiana (supra). The question which arises before the Tribunal was in respect of Modvat credit. The said question which was kept open expressly arises in this group of Appeals. 29. We may also make a reference to the decision of the larger bench of the Appellate Tribunal in the case of Steel Strips v. Commissioner of Central Excise, Ludhiana (supra). The question which arises before the Tribunal was in respect of Modvat credit. The question is formulated in the said decision which reads thus : "whether in cases where either on account of coercion by the Department or otherwise, the assessee pays the duty through PLA account, in spite of having sufficient balance in the Modvat/Cenvat credit, on the factory or unit becoming inoperative and there being no likelihood of restarting the production, can such assessee be entitled for refund of the credit amount under the provisions of law in force." [Ref : Para 30 of the referral order ]." In paragraph 1.2 of the said decision, there is a reference to the decision of the Karnataka High Court in the case of Slovak India Trading Company and order of the Apex Court in the SLP. In paragraphs 3.4 and 3.5, the Tribunal noted the submissions made on behalf of the assessee. Ultimately, in paragraph 5.16, the question was answered thus :- "5.16 Modvat law has codified procedure for adjustment of duty liability against Modvat Account. That is required to be carried out in accordance with law and unadjusted amount is not expressly permitted to be refunded. In absence of express provision to grant refund, that is difficult to entertain except in the case of export. There cannot his presumption that in the absence of debarment to make refund in other cases that is permissible. Refund results in outflow from treasury, which needs sanction of law and an order of refund for such purpose is sine qua non. Law has only recognized the event of export of goods for refund of Modvat credit as has been rightly pleaded by Revenue and present reference is neither the case of "otherwise due" of the refund nor the case of exported goods. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Similarly absence of express grant in statute does not imply ipso facto entitlement to refund. So also absence of express grant is an implied bar for refund. When right to refund does not accrue under law, claim thereof is inconceivable. Therefore, present reference is to be answered negatively and in favour of Revenue since refund of unutilized credit is only permissible in case of export of goods and for no other reason whatsoever that may be. As has been stated earlier that equity, justice and good conscience are the guiding factors for Civil Courts, no fiscal Courts are governed by these concepts, the present reference is bound to be answered in favour of Revenue and it is answered accordingly." 30. Prima facie, we do not agree with the view taken by the Division Bench of this Court in the case of the Jain Vanguard (supra), and therefore, it will be appropriate if the following questions are considered by a larger bench of this Court. In fact, it will be more appropriate if the questions are considered by the larger bench. We are of the view that the following questions need to be decided by larger Bench of this Court :- "(a) Whether cash refund is permissible in terms of clause (c) to the proviso to section 11B(2) of the Central Excise Act, 1944 where an assessee is unable to utilize credit on inputs? (b) Whether by exercising power under Section 11B of the said Act of 1944, a refund of un-utilized amount of Cenvat Credit on account of the closure of manufacturing activities can be granted. (c) Whether what is observed in the order dated 25th January 2007 passed by the Apex Court in Petition for Special Leave to Appeal (Civil) No. CC 476 of 2007 (Union of India v. Slovak India Trading Company Pvt. Ltd.) can be read as a declaration of law under Article 141 of the Constitution of India? " 31. We direct the Prothonotary and Senior Master to place these Appeals before the Hon''ble the Acting Chief Justice for passing appropriate order on the administrative side.