Page 173 - ELT_15th August 2020_Vol 373_Part 4

2020 ] WEST COAST OPTILINKS v. COMMISSIONER OF CENTRAL TAX, MYSORE 507

10. Per contra, Sri Akash Shetty, Learned Counsel appearing on behalf
of Sri N.R. Bhaskar, Learned Central Government Standing Counsel for respond-
ent would support the impugned order.
11. Having heard the Learned Counsel appearing for the parties, we
find by Circular dated 17th August 2011 referred hereinabove supra, monetary
limit fixed for the Appellate Tribunal to adjudicate the appeal had been restricted
to Rs. 5 lac and above. The said monetary limit came to be enhanced upto Rs. 10
lac by Circular dated 17th December 2015. The Central Board of Excise & Cus-
toms by its extent Instruction F.No. 390/Misc./163/2010-JC, dated 1st January
2016 has clarified that Circular dated 17th December 2015, whereunder monetary
limits for Appellate Tribunal, High Courts and Supreme Court entertaining the
appeal has been fixed is to be understood as also applicable to all pending ap-
peals before CESTAT and High Courts. In other words, an appeal which was
pending as on the date of 1st January 2016, within monetary limit fixed under
Circular dated 17th December 2015. Then such appeals were not maintainable
before CESTAT. This aspect having been noticed by Tribunal in the instant case
could not have entertained the appeal by Revenue. It was required to be dis-
missed as monetary limit fixed was Rs. 10 lac and in the instant case, the quan-
tum of refund, which was subject matter of appeal, was Rs. 1,81,754/- (BED
Rs. 1,78,192/- and E. Cess Rs. 3,562/-).
12. Yet another factor, which goes unnoticed is that supplementary ap-
peals, which were filed against the common 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 sufficiently explained
against the said order, no appeals have been filed by Revenue, in otherwords, 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
8th August 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 respect 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. Hence, we answer the substantial [question] of
law in favour of appellant/assessee and against respondent/Revenue. In the
light of the substantial question of law answered in favour of assessee and
against Revenue, we proceed to pass the following :
ORDER
(i) Appeal is allowed.
(ii) Order dated 25th September 2017 passed in E/839/2008-SM by
Customs, Excise &, Service Tax Appellate Tribunal, South Zonal
Bench, Bengaluru vide Annexure-R is hereby set aside;
(iii) Order-in-Original dated 28th February 2007 vide Annexure-H as
confirmed by Appellate Authority in Order-in-Appeal No. 90/2008,
dated 8th August 2008 has affirmed.

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EXCISE LAW TIMES  15th August 2020  173