Page 171 - ELT_15th August 2020_Vol 373_Part 4

2020 ] WEST COAST OPTILINKS v. COMMISSIONER OF CENTRAL TAX, MYSORE 505

2. By order dated 11-3-2020, the following substantial question of law
came to be formulated by us for consideration :
“Whether the department/revenue could have prosecuted the appeal be-
fore the CESTAT though as per the extant Circular Bearing No. F. No.
390/Misc/116/2017-JC, dated 17-8-2011 monetory limit was fixed at
Rs. 10 lakhs and as such appeal filed by the revenue against order dated
8-8-2018, which involved tax component of Rs. 1,81,754/- could not have
been prosecuted or not?
3. In other words, appeal has been admitted for consideration of the
above substantial question of law. However, we find that there is typographical
error in mentioning Circular number. As such, we have re-framed the substantial
question of law.
“Whether the department/revenue could have prosecuted the ap-
peal before the CESTAT though as per the extant Circular bearing No. F.
No. 390/Misc /163/2010-JC, dated 17-8-2011 monitory limit was fixed at
Rs. 10 lakhs and as such appeal filed by the revenue against order dated
8-8-2018, which involved the tax component of Rs. 1,81,754/- could not
have been prosecuted or not?”
4. We have heard Sri Dakshina Murthy, Learned Counsel appearing for
appellant and Sri Akash Shetty, Learned Counsel appearing on behalf of Sri N R
Bhaskar, Central Government Standing Counsel for respondent and perused the
records.
5. Appellant has been supplying Polyethylene Insulated Jell Filled
(PIJF) Telephone Cables of various sizes falling under Chapter sub-heading 8544
49 90 to Bharat Sanchar Nigam Limited (for short ‘BSNL’) based on the purchase
orders raised by respective regional offices of BSNL. The said goods was being
despatched on payment of excise duty on 100% composite prices mentioned in
the purchase orders raised by BSNL. As per the terms and conditions of purchase
order, assessee is required to arrive at the cable price based on the copper price
circulars issued by BSNL Headquarters for each month. Considering the market
fluctuation of copper wire, BSNL had issued copper price circulars mentioning
provisional price for each month during the period from April 2005 to August
2006. Hence, assessee at the time of dispatch of telephone cables to BSNL had
worked the cable price provisionally and had cleared said goods on payment of
duty. Assessee also informed the department/jurisdictional range officer that the
assessable value and duty payment made is subject to change on finalisation of
copper price by M/s. BSNL and in such cases of increase or decrease in final
copper price, they would pay differential duty or claim to refund of duty excess
paid, as the case may be.
6. BSNL on finalizing the copper price had issued a Circular No. 203-
22/2005/MMS(Pt-I), dated 21st August 2006 communicating the final copper
wire rod price w.e.f. April 2005 for regularizing the payments in respect of pur-
chases made under contract from appellant-assessee. At the time of clearance
and dispatch of subject goods to assessee, it had raised invoices based on provi-
sional copper price and had realized the billed amount to the extent of 90% only
from BSNL. On account of finalization of copper price, assessee has raised sup-
plementary invoices to realize the balance amount. Assessee has paid differential
duty in cases where copper final price is higher than provisional price in other
cases where the final copper price is less than the provisional price and or where
EXCISE LAW TIMES  15th August 2020  171