Page 170 - ELT_15th August 2020_Vol 373_Part 4

504 EXCISE LAW TIMES [ Vol. 373

2020 (373) E.L.T. 504 (Kar.)
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Aravind Kumar and Hemant Chandangoudar, JJ.
WEST COAST OPTILINKS
Versus
COMMISSIONER OF CENTRAL TAX, MYSORE
C.E.A. No. 24 of 2018, decided on 18-3-2020
1
Appeal to Appellate Tribunal - Departmental appeal, Maintainability
of - Monetary limits for prosecution of appeal - Tax component of ` 1,81,754
involved - HELD : Central Board of Excise & Customs vide extent Instruction
F.No. 390/Misc./163/2010-JC, dated 1-1-2016 clarified that C.B.E. & C. Instruc-
tion F. No. 390/Misc./163/2010-JC, dated 17-12-2015, whereunder monetary lim-
its for Appellate Tribunal, High Courts and Supreme Court entertaining ap-
peal fixed, ought to be understood as also applicable to all pending appeals
before CESTAT and High Courts - Hence, appeal pending as on date of
1-1-2016, within monetary limit fixed under Circular dated 17-12-2015 not
maintainable before CESTAT - Tribunal could not have entertained appeal by
Revenue and appeal required to be dismissed as monetary limit fixed was ` 10
lac and in instant case, quantum of Refund being subject matter of appeal, was
` 1,81,754 - Substantial question of law answered in favour of assessee and
against Revenue - Section 35B of Central Excise Act, 1944. - Yet another factor,
which goes unnoticed is that supplementary appeals, which were filed against the com-
mon order passed by Commissioner of Appeals had been dismissed by CESTAT by order
dated 6th January, 2011 vide Annexure-Q on the ground that the delay has not been suf-
ficiently explained against the said order, no appeals have been filed by Revenue, in other
words, the order of original Court which granted relief to appellant, whereunder sanction
of refund was passed which came to be affirmed by Commissioner of Appeal on 8-8-2008
stood revived and enure the order of benefit to the appellant. All these refund orders relate
to one transaction which the assessee had with BSNL. As such, denying the benefit of
refund would definitely discriminatory, Department cannot take different stand in re-
spect of some errors for different orders for this reason also, we are of the considered view
that appeal filed by assessee deserves to be allowed. [paras 11, 12]
Appeal allowed
DEPARTMENTAL CLARIFICATIONS CITED
C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC, dated 20-10-2010...................................... [Para 9]
C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC, dated 17-8-2011 ........................................ [Para 9]
C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC, dated 17-12-2015............................... [Paras 9, 11]
C.B.E. & C. Instruction F. No. 390/Misc./163/2010-JC, dated 1-1-2016 ................................... [Paras 9, 11]
REPRESENTED BY : Shri Dakshina Murthy, Advocate, for the Appellant.
S/Shri Akash Shetty for N.R. Bhaskar, CGSC, for the
Respondent.
[Judgment per : Aravind Kumar, J.]. - Matter has been admitted.
________________________________________________________________________
1 On appeal from Final Order No. 22210/2017, dated 25-9-2017 and Misc. Order No. 20003/2018,
dated 1-1-2018 by CESTAT, Bangalore.
EXCISE LAW TIMES  15th August 2020  170