Judgment :- (S.C. Dharmadhikari, J.) 1. In this batch of appeals, the Revenue questions the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai dated 28th March, 2013. 2. There are two questions of law which are deemed as substantial questions of law. They read as under : “Whether CESTAT was right in holding that refund of Service Tax was available to the assessee under Section 11B of the Central Excise Act, 1944, when the claim was actually filed under Notification No.9/2009-ST or under Notification No.15/2009-ST. (ii) Whether CESTAT was right in holding that the assessee was eligible for refund at all, when the Notification No.15/2009-ST (which amended Notification No.9/2009-ST) specifically provided that if services are wholly consumed in the SEZ, then the same would be exempted from payment of service tax ? 3. At the hearing of these appeals, Mr. Sahu, learned counsel appearing on behalf of the assessee-respondent raised a preliminary objection to the maintainability of these appeals in this Court. 4. He relied upon section 35-G of the Central Excise Act, 1944, and particularly the language of sub-section (1) thereof to urge that considering the order passed by the Tribunal and the manner in which the questions of law have been framed, an issue having relation to the rate of duty of excise would arise for determination and consideration of this Court. If that is how the questions of law read, then the present appeals to the High Court are incompetent. The Revenue will have to approach the Hon'ble Supreme Court meaning thereby the remedy of the Revenue to challenge the impugned order of the Tribunal would be by way of appeal to the Hon'ble Supreme Court of India. 5. He submits that the words “having a relation to the rate of duty of excise” appearing in the bracketed portion of sub-section (1) of section 35-G would take their colour from a reading of the explanation to section 35-E of the Central Excise Act, 1944. 6. On the last occasion when this question arose and as to whether the explanations are still appearing in that section of the Excise Act, Mr. Sahu submitted that we must consider the words as appearing in the statute when the impugned order was passed. 6. On the last occasion when this question arose and as to whether the explanations are still appearing in that section of the Excise Act, Mr. Sahu submitted that we must consider the words as appearing in the statute when the impugned order was passed. If the impugned order was passed with the retention of the explanation, then, the words “having a relation to the rate of duty of excise” would have to be interpreted accordingly. In any event, they must be interpreted in the light of the law pronounced by the Hon'ble Supreme Court in the case of Navin Chemicals Manufacturing & Trading Company Limited vs. Collector of Customs, 1993 (68) Excise Law Times, Pg. 3. He also relied upon the two orders passed by this Court following the Hon'ble Supreme Court judgment in the case of Commissioner of Central Excise, Nagpur vs. Universal Ferro & Allied Chem. Limited, 2009 (13) Sales Tax Reports Pg. 418 and Union of India vs. Auto Ignation Limited 2002 (142) Excise Law Times, Pg.292. 7. He, therefore, submits that a reading of the order impugned in this appeal would show that this Court has to consider as to whether the subject service provided is exempt or not. The next question would be whether it is exempt under one Notification or the other. This very issue has a relation to the rate of duty and, therefore, cannot be determined by this Court. 8. Contesting this position, Mr. Kantharia appearing in all these appeals for the appellant-Revenue would submit that the only questions which are arising in these appeals are whether the West Zonal Bench of the Tribunal was right in holding that the refund of service tax was available to the assessee under section 11B of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994, when the claim was actually filed under Notification No.9/2009-ST or under Notification No.15/2009-ST. This is not a question having any relation to the rate of duty. The only issue would be whether the regime of refund under the Central Excise Act, 1944, is available to claim refund of service tax. The second would be as to whether the services consumed within the Special Economic Zone (for short “SEZ”) can be said to be forming part of the Notifications. This has no relation to the rate of duty of excise. The second would be as to whether the services consumed within the Special Economic Zone (for short “SEZ”) can be said to be forming part of the Notifications. This has no relation to the rate of duty of excise. Therefore, none of the judgments relied upon nor the provisions would apply. The preliminary objection, therefore, must be answered in favour of the Revenue and against the assessee. 9. On this limited point, we have perused the appeal paper-book and all the annexures. The West Zonal Bench of the Tribunal had before it the appeals of the assessee. They were aggrieved by the orders in appeal of the Commissioner of Central Excise, Appeals, Pune. 10. The assessee claimed to be a unit in the SEZ and engaged in providing information technology, spot services and business process outsourcing services. For rendering these output services they receive various input services such as CHA services, management consultancy services, business support services, manpower recruitment services etc. All these services are duly approved by the Development Commissioner, SEZ, as eligible input services. In respect of these input services, the assessee claimed refund of service tax paid thereon under Notification No.9/2009-ST dated 3rd March, 2009, as amended by Notification No.15/2009-ST dated 20th May, 2009, during the period October, 2009 to February, 2011. This Notification provided for refund of service tax paid on input services except for services consumed wholly within the SEZ, when used for authorized operations in SEZ. Services wholly consumed within the SEZ are not taxable. The Department was of the view that the services consumed within the SEZ are exempt from tax. Hence, no refund can be claimed on such exempt input services under the Notifications. Therefore, the claims for refund were rejected. 11. That is how the matter was carried to the Tribunal and after hearing both sides, the Tribunal relied upon an order passed by it in the case of Tata Consultancy Services Limited and WardhaPower Company. The Tribunal concluded that the ratio in these decisions would enable the assessee before us to apply for refund of service tax paid on input services wholly consumed within the SEZ. The refund can be claimed under section 11B of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 subject, of course, to the satisfaction of the conditions stipulated therein. 12. The refund can be claimed under section 11B of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994 subject, of course, to the satisfaction of the conditions stipulated therein. 12. Section 35-G of the Central Excise Act, 1944, which has been relied upon, reads as under: “35G. Appeal to High Court – (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 the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reason to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.” (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.” 13. A bare perusal thereof would indicate that 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 the purpose of assessment. 14. The Tribunal in this case relied upon its own orders in the case of Tata Consultancy Services Limited and Wardha Power Company. Those appeals raised a question as to whether in respect of services which were wholly consumed and which were fully exempt from payment of duty, the benefit of the refund can be claimed and in terms of the Notifications referred above. Those appeals raised a question as to whether in respect of services which were wholly consumed and which were fully exempt from payment of duty, the benefit of the refund can be claimed and in terms of the Notifications referred above. The Tribunal concluded that Notifications exempt the taxable services specified in clause (105) of section 65 of the Finance Act, 1994, which are provided in relation to the authorized operations in a SEZ and received by a developer or units of SEZ, whether or not the said taxable services are provided inside the SEZ, from the whole of the service tax leviable thereon under section 66 of the Finance Act, 1994. The refund procedure is something with which the Tribunal was concerned, but as an ancillary issue. In case of services which are wholly consumed within the SEZ, according to the Tribunal, required no discharge of the service tax liability ab initio. That, according to it, does not mean that where service tax liability has been discharged, the assessees would not be permitted to seek refund under section 11B of the Act. If the appellant is eligible for refund under section 11B then the same cannot be denied on the ground that the claim was made under Notification No.9/2009-ST. Thereafter the Tribunal held that services provided to SEZ or units in the SEZ are deemed as export as per the provisions of section 2 clause (m) (ii) of the Special Economic Zone Act, 2005. 15. As per Rule 31 of the Special Economic Zone Rules, 2006, the appellants are entitled for exemption from payment of service tax on the services which are used or provided for a unit in the SEZ. The Tribunal referred to section 51 of the SEZ Act, 2005 and held that these provisions prevail over the provisions contained in any other law for the time being in force. It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes. If this policy objective has to be sub-served and the objective realized, broader view of the provisions relating to refund has to be taken. Therefore, even if the appellants were not eligible for refund under Notification No.9/2009-ST, the appellants were clearly eligible for refund under section 11B of the Central Excise Act, 1944. Therefore, the rejection of service tax refund is not sustainable in law. 16. Therefore, even if the appellants were not eligible for refund under Notification No.9/2009-ST, the appellants were clearly eligible for refund under section 11B of the Central Excise Act, 1944. Therefore, the rejection of service tax refund is not sustainable in law. 16. The argument of the Revenue before us is that if the services which have been provided or used / wholly consumed within the SEZ are not taxable then the claim for refund could not have been entertained at all. That is squarely an issue arising for determination and consideration. If that is answered either way then dependent on that would be the next issue as to whether the regime or manner in which refund has to be obtained would be governed by the Notifications or by substantive section 11B of the Central Excise Act, 1944. If the issue was whether the services and consumed in the SEZ are not taxable at all, then the claim for refund in relation to exempted services would not be maintainable. The language of section 35-G particularly the words “having a relation to the rate of duty of excise” would, therefore, have a definite bearing on the present case. So long as there is an issue as to whether the services consumed within the SEZ are exempt or taxable, then, the same would be having a relation to the rate of duty. In Navin Chemicals Manufacturing and Trading, the controversy arose because the jurisdiction of a single Member of the then Customs, Excise and Gold (Control) Appellate Tribunal to hear an appeal was considered by the Hon'ble Supreme Court. In paragraph 2 of the judgment of the Hon'ble Supreme Court, the operative order of the Additional Collector of Customs has been reproduced. Thereafter, the Hon'ble Supreme Court construes the similar provision and having a similar language as section 35-G of the Central Excise Act, 1944, but appearing in the Customs Act, 1962. 17. Interpreting that provision and with the aid of the explanation relied upon by Mr. Sahu, the Hon'ble Supreme Court, in paragraph 11, held as under: “11. It will be seen that sub-section (5) uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it for the purposes of this subsection. It will be seen that sub-section (5) uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it for the purposes of this subsection. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate duty applicable thereto for the purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, question arise directly and proximately as to the rate of duty or other value of the goods.” 18. A perusal of these observations would denote that questions relating to the rate of duty and to the value of goods for purpose of assessment are questions that squarely fall within the meaning of the said expression. The dispute as to classification of goods and as to whether or not they are covered by exemption Notification relates directly and proximately to the rate of duty applicable thereto for the purposes of assessment. The dispute as to classification of goods and as to whether or not they are covered by exemption Notification relates directly and proximately to the rate of duty applicable thereto for the purposes of assessment. Following this view of the Hon'ble Supreme Court in the two matters – Commissioner of Central Excise, Nagpur vs. Universal Ferro and Allied Chemicals Limited and Union of India vs. Auto Ignation Limited, this Court upheld the preliminary objections and dismissed the appeal of the Revenue. 19. Mr. Kantharia would pursuade us to hold that in the present case, the issue as to whether or not the benefit of the exemption Notification as amended was available to the assessee was never in dispute in the show cause notice. The show cause notice proposed to reject the refund claim only to the extent of the service tax paid, although not payable on services wholly consumed in the SEZ for authorized operations. 20. If we read the questions of law framed and one of which now is stated to be not pressed by Mr. Kantharia viz. the question No.2, yet, what would essentially arise for our consideration is whether at all the services and which are stated to be exempt from tax could be subject matter of the refund application. If the refund applications are under the Notifications and as claimed, then, whether these Notifications would govern the claims or a substantial provision in the Act is the next question. If the Revenue is aggrieved by the fact that the Tribunal placed reliance on its earlier decision but which did not cover both issues but the incidental one, then, there is definitely an element and which has a relation to the rate of duty. The taxability of the services and the rate at which they could be subjected to tax are matters which would have to be gone into by this Court in the present appeal. If the explanations appearing in section 35-G at the relevant time guide the interpretation of the words “having a relation to the rate of duty”, then, the preliminary objection would have to be upheld. It has been brought to our notice by Mr. If the explanations appearing in section 35-G at the relevant time guide the interpretation of the words “having a relation to the rate of duty”, then, the preliminary objection would have to be upheld. It has been brought to our notice by Mr. Sahu that explanation 35-E(5) of the Central Excise Act, 1944 is an explanation for the purpose of sub-section (5) of section 35-E. That explanation is as under: “Explanation to section 35E(5) of Central Excise Act Explanation: For the purposes of this sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question - (a) relating to the rate of duty of excise for the time being in force, whether under the Central Excise Tariff Act, 1985 or under any other Central Act providing for the levy and collection of any duty of excise, in relation to any goods on or after the 28th day of February, 1986; or (b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986, or (c) whether the goods are excisable goods or whether the rate of duty of excise on goods is nil; or (d) whether any goods fall under a particular heading or sub-heading of the Schedule of the Central Excise Tariff Act, 1985 or the Additional Duties of Excise (Goods of Special Importance) Act, 1957 or the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, or that any goods are or not covered by a particular notification or order issued by the Central Government or the Board, as the case may be, granting total or partial exemption from duty; or (e) whether the value of any goods for the purposes of assessment of duty of excise shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act.” 21. Clause (c) of this explanation reveals as to how it covers a case of the goods being excisable at all or whether the rate of duty of excise on any goods is nil. Clause (c) of this explanation reveals as to how it covers a case of the goods being excisable at all or whether the rate of duty of excise on any goods is nil. This clause is an aid or guide with the assistance of which we can decide as to whether any question has a relation to the rate of duty of excise as appearing in section 35-G(1) of the Central Excise Act, 1944. If, in construing these words, the assistance of the explanation can be taken in terms of the law laid down by the Hon'ble Supreme Court in NavinChemicals (supra) then, we are unable to accept the arguments of Mr. Kantharia to the contrary. 22. As a result of the above discussion, we uphold the preliminary objection and dismiss each of these appeals of the Revenue as not maintainable before this Court. The Revenue shall have to take recourse to the relevant provisions of law so as to enable them to impugne and challenge the orders of the Tribunal. Leaving that course open, we dispose of these appeals.