By the Court.—The appeal by the revenue arises from a decision of the Customs, Excise and Service Tax Appellate Tribunal dated 5 September 2013. A preliminary objection has been taken to the maintainability of the appeal on behalf of the assessee that within the meaning of Section 35G(1) of the Central Excise Act, 1944, an appeal shall not lie before this Court against an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment. Hence, it has been urged that the appeal is not maintainable.

2. In order to determine the correctness of the preliminary objection, a brief reference to the factual conspectus would be in order.

3. The respondent which was a 100% Export Oriented Unit (EOU) was engaged in the manufacture and export of excisable goods covered under Chapter 29, “Organic Chemicals”, of the Central Excise Tariff Act, 1985. From 26 March 2007 the respondent claims to have been operating as a 100% EOU under the Foreign Trade Policy. On 15 March 2011 the respondent applied for de-bonding of its EOU so as to permit it to operate as a DTA unit. On 25 March 2011 an ‘in-principle exit order’ was issued by the Assistant Development Commissioner. On 31 March 2011 stock was taken of the inputs, capital goods, work-in-progress and finished goods. On 1 April 2011 the respondent submitted a duty calculation sheet to the Superintendent of Central Excise for approval. On 12 April 2011 and 14 April 2011 excise duties on inputs and capital goods were paid on the basis of clause (ii) of the proviso to Section 3(1) of the Central Excise Act, 1944. The respondent also paid duties, as determined by the department, on finished goods. The total amount of duty paid was Rs. 29,17,195/- On 30 April 2011 and 16 May 2011 the finished goods were exported against a claim for advance authorisation. A final letter of de-bonding was issued by the Development Commissioner on 10 June 2011.

4. The respondent submitted a claim for refund on 30 September 2011 quantifying the claim as Rs. 22,85,835/-. This represented the difference between the duty paid (Rs.29,17,195/-) and the duty, according to the respondent, which was liable to be paid (Rs.6,31,360/-).

5. The adjudicating authority rejected the claim for refund on 29 June 2012. The order of the adjudicating authority was up-held by the Commissioner (Appeals) on 18 September 2012. The Tribunal by its order dated 5 September 2013 allowed the appeal of the respondent. The Tribunal held that during the intervening period between the date when the No Objection Certificate was granted by the central excise authorities and the date of issue of the final de-bonding order by the Development Commissioner, it was open to an EOU to export the finished goods under a claim for advance authorisation and no excise duty could be charged on such goods as they had not been cleared under the DTA. This decision of the Tribunal is in question at the behest of the revenue.

Section 35G(1) of the Central Excise Act, 1944 provids as follows :

“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 rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.

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6. Under Section 35L(b), an appeal lies to the Supreme Court against an order of the Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment.

7. The issue before the Court on the preliminary objection is whether the order of the Tribunal relates, among other things, to the determination