ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. Heard learned advocate Mr.Parth P.Rachchh for learned advocate Mr.Paresh M.Dave for the petitioner.

2. This reference is arising out of the of the Appeal Nos.3300 and 3301/99/B and E/3386/98/B of Customs Excise & Service Tax Appellate Tribunal (for short ‘the Tribunal’) by Reference Order No.1/04-B. The Tribunal has forwarded the statement of case by framing the following questions of law:

“i) Whether Heading No. 34.03 of the First Schedule to the Central Excise Tariff Act, 1985 covers two products namely (i) lubricating preparations and (ii) preparations of a kind used for the oil or grease treatment of textile materials, leather, furskins or other materials as held by the Appellate Tribunal; or Heading No. 34.03 of the Tariff covers only lubricating preparations which might be of a kind used for the oil or grease treatment of textile materials, leather, furskins or other materials?

(ii) Is the Appellate Tribunal right in denying benefit of Notification No. 12/94-CE dated 1.3.1994 as amended by Notification No. 14/95-CE dated 16.3.1995 to the applicant for the product in question?”

3. Learned advocate Mr.Rachchh submitted that this Court in (Coram:Hon’ble Mr.Justice Akil Kureshi and Hon’ble Ms.Justice Harsha Devani) by order dated 16.08.2012 dismissed the Tax Appeal No.1054 of 2006, against the final order passed by the CESTAT on the ground that the appeal would lye before the Hon’ble Apex Court as the question involved is one of the classification of the goods and the rate of duty to be collected from the assessee under Section 35L of the Central Excise Act, 1944.

4. The Order passed by this Court wherein similar questions were raised in the Tax Appeal reads as under:

“1. This appeal has been filed by the assessee calling in question legality of the judgment and order dated 1-3-2006 passed by the Customs, Excise and Service Tax Appellate Tribunal ('the Tribunal', for short). At the time of admission of the appeal, following substantial questions of law were framed:-

(a) Whether Heading No.34.03 of the First Schedule to the Central Excise Tariff Act, 1985 covers two products namely (i) lubricating preparations and (ii) preparations of a kind used for the oil or grease treatment of textile materials, leather, fur-skins or other materials as held by the Appellate Tribunal; or Heading No.34.03 of the Tariff covers only lubricating preparations which might be of a kind used for the oil or grease treatment of textile materials, leather, furskins or other materials?

(b) Is the Appellate Tribunal right in denying benefit of Notification No.

12/94-CE dated 1.3.1994 as amended by Notification No. 14/95-CE dated 16.3.1995 to the appellant for the product in question?

2. Upon perusal of the questions, it emerges that the question involved is one of classification of the goods and the rate of duty to be collected from the assessee. Under section 35L of the Central Excise Act, 1944 ('the Act', for short), any order passed by the Tribunal 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 purpose of assessment would lie before the Apex Court. Correspondingly, under section 35G of the Act, which pertains to appeal to the High Court, it is provided that an appeal shall lie to the High Court from every order passed by the Appellate Tribunal, not being an order relating to the rate of duty of excise or to the value of goods for the purpose of assessment. Thus, by virtue of combined application of section 35L read with section 35G of the Central Excise Act, 1944, in a case where besides others, the question involved is one having relation to the rate of duty of excise or to the value of goods for the purpose of assessment arising out of the judgment of the Tribunal, appeal would lie exclusively before the Supreme Court and appeal before this court would not be maintainable.

3. In that view of the matter, t