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 P

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