IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 C.E.Appeal.No. 4 of 2008() -------------------------- AGAINST THE ORDER IN APPEAL NOS. E/525 & 526/05, E/1014/05 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE .................... APPELLANT:RESPONDENT -------------------- THE COMMISSIONER OF CENTRAL EXCISE, COCHIN. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.P.GOPINATH MENON,SC,CEN.BOARD OF EX RESPONDENT(S): RESPONDENT ------------------------- M/S. BHARATH PETROLEUM CORPORATION LTD IRUMPANAM, COHCIN 682 309 THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... C.E. Appeal No.4 of 2008 & C.M. Appl. No.219 of 2008 .................................................................... Dated this the 26th day of March, 2009. JUDGMENT Ramachandran Nair, J. We heard Standing Counsel appearing for the appellant. We find that the appeal is filed against order of the Tribunal holding that respondent has no duty liability as the clearances were of Naphtha to Power Plants which is exempt from duty under Notification 6/02. The only reason for raising the demand is withdrawal of warehousing facility. We are in agreement with the finding of the Tribunal that withdrawal of warehousing facility does not attract any duty which is seen clarified by the Board by their letter dated 4.9.2004. Since admittedly the goods cleared are exempt from duty by Notification referred to in the Tribunal's order, there is no merit in the appeal filed by the department. However, since Standing Counsel submitted that this fact requires verification, we leave freedom to the appellant to move for review, if the position is different or in other words, if any 2 quantity of Naftha removed is not exempt from duty, the department is free to move this court in review. Reserving this right, we dismiss the delay condonation petition and consequently the appeal. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms