ORDER :

1. The matter is taken up through video conferencing.

2. Heard Mr. S.C. Keyal, learned counsel for the appellant. Also heard Dr. A. Saraf, learned senior counsel for the respondent.

3. This is an appeal filed by the Revenue under Section 35G of the Central Excise Act, 1944 (for short “the Act”). The assessee before this Court is the Indian Oil Corporation, which has paid an excise duty on SKO, which is Superior Kerosene Oil, as applicable at the relevant point of time. The Revenue, on the other hand, relied upon a Circular dated 22.04.2002 and its objection was that since SKO is mixed with Motor Spirit (MS) or High Speed Diesel (HSD), it will have to pay the duty, which is applicable on MS and HSD, as stipulated in the Circular dated 22.04.2002. Admittedly, the rate of duty on MS and HSD is higher than what it is on SKO.

4. The argument of the assessee was that the duty has to be paid at the time of removal of the goods from the gate and admittedly at the time when the goods were removed from the gate, even though from the pipeline, it was in the form of SKO and not MS or HSD. This, however, did not find favour of with the authority and thereafter, the matter was later taken to