(1.) IN Tax Appeal No. 638 of 2006 the Appellant-Revenue has proposed the following two questions :
(2.) TAX Appeal Nos. 638 of 2006 and 1047 of 2008 have not yet been formally admitted. The issue in all the three Appeals is common. Hence these two Tax Appeals are admitted and the following common question of law is formulated in all the three Appeals :
(3.) FOR sake of convenience Tax Appeal No. 638 of 2006 is treated as the lead matter. The brief facts are that the Appellant had purchased copper concentrate from M/s. Marc Rich Company Investment A. G. , Switzerland. The goods were shipped on 17. 02. 2004 and the Appellant filed advance Bill of Entry No. F. 96/2003-2004 dated 20. 02. 2004. The said Bill of Entry was provisionally assessed and a duty of Rs. 1,53,19,612/- was paid by TR-6 challan No. 1224/03-04 dated 21. 02. 2004. The provisional assessment was done on the basis of provisional invoice No. CC81223 dated 17. 02. 2004. In the metal trade, it is common knowledge that the final price of the concentrate is calculated by calculating the metal content and the prevalent price of such metal in the LME (London Metal Exchange ). The Appellant in this case had contracted with the supplier on these terms which are listed in paragraph Nos. 5 and 6 of the contract dated 19. 01. 2004.