- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CENTRAL EXCISE APPLICATION NO.27 OF 2002 WITH CROSS-OBJECTION NO. OF 2002 ... The Commissioner of Central Excise and Customs ..Applicant v/s. Carbon Corporation Ltd. ..Respondent ... Mr.A.S.Rao with Mr.P.S.Jetly and Mr.Y.R.Mishra for the Applicant. Mr.Rajesh Mehta with Ms.Lisa Abraham i/b Ms.P.G.Bhatia for the Respondent. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 6TH OCTOBER, 2008 P.C.: This application was admitted on 5th May, 2005 on the following question of law- Whether the benefit of Notification No.217/86 issued under the Central Excise Act and Rules made thereunder can be extended to part of machine and machinery? - 2 - 2. The cross-objection filed by the Respondent was also admitted on the following questions of law- 1. Whether the Reference Application filed by the Respondent (original Appellant) is barred/ not maintainable under Section 35H(1) of the Central Excise Act for the reason that the order No.CII/2962/WZB/2001 dated 20-11-2001 passed by the Appellate Tribunal under section 35C is an order that determines a question having a relation to the rate of duty of excise? Whether the respondent (original Applicant) is prevented, precluded and barred from filing the Reference Application and raising a question contrary to/ inconsistent with the contents of the Ministry’s letter F.B.No.3/22/51/86- TRU dated 21st October, 1986? 3. On perusal of the show cause notice issued by the Respondent it is seen that the question raised herein pertains to applicability of the exemption notification which has direct bearing on the rate of duty. According to the Revenue, the exemption - 3 - notification in question is not applicable to the facts of the present case and if the case of the revenue is accepted, the Respondent is liable to pay higher rate of duty. Since the dispute relates to the rate of duty, the Reference application is not maintainable before this Court. Once the cross-objection is upheld, the Reference application filed by the Revenue cannot be entertained by this Court for want of jurisdiction. Accordingly the rule discharged. No order as to costs. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)