Per K. S. Radhakrishan, CJ:

1. This. Appeal has been preferred by the Commissioner of Customs and Excise, J&K Jammu under section 35G of the Central Excise Act, 1944. (for short the Act) The following substantial question of law was framed for reference by the appellant:

"Whether in the absence of any specific mention in Notification No. 79/2003-CE dated 22.12.2003, the Honble court is correct in granting retrospective effect to the said Notification and remanding the case for grant of benefit based on such retrospective effect."

2. Respondent preferred a caveat and raised a preliminary objection regarding the maintainability of appeal stating that the exemption notification has direct nexus with the rate of duty and hence under section 35G of the Act no appeal would lie to the High Court but only before the Supreme Court under section 35-L of the Act.

3. Mr. V.K. Magoo, learned ASGI appearing for Union of India submitted that the appeal is maintainable, since the question framed is not having any relation to rate of duty or value of goods for the purposes of assessment but with regard to the location of the respondents unit that is whether it is situated under Industrial Area Export Promotion (EPIP) or in SIDCO Industrial Complex, Bari Brahamana. Learned counsel submitted that Notification takes in Khasra No. 394 under Industrial Area EPIP Kartholi, Bari Brahamana, Jammu and the respondents Unit does not fall in the above location but falls under SIDCO Industrial Complex Bari Brahamana. Learned counsel submitted that dispute revolves around the location of the Unit and not relates to the rate of duty of excise or to the value of goods for the purposes of assessment.

4. Shri A.V. Gupta, learned Senior Counsel appearing for the respondent submitted that the issue raised is whether respondents unit is entitled to get the benefit of exemption under the Notification, which has got direct relation with the rate of duty of excise, and hence the appeal is not maintainable under section 35G of the Act. In support of his contention, learned counsel placed reliance on the judgments of Bombay High Court reported in Union of India v. Auto Ignition Ltd., 2002 (142) E.L.T. 292 (Bom) and Commissioner of Customs & C. Excise Goa v. Primella Sanitary Products (P) Ltd., 2002 (145) ELT 515 (Bom). Reference was also made to the decision of the Apex Court in the case of Navin Chemicals v Collector, 1993 (68) ELT 3 (SC).

5. Appeal was admittedly filed under section 35G of the Central Excise Act, 1944. Reference may be made to Section 35G as well as section 35L for easy reference which are extracted hereunder. -

"Section 35G

(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law,

(2) The Commissioner of central Excise or the other party aggrieved by any order passed by the Appellate tribunal may file an appeal to the High court and such appeal under this sub-section shall be-

(emphasis added)

(a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party;

(b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party;

(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved,

(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case docs not involve such question.

Provided that nothing in this sub-section shall b

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