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TMI Blog2018 (4) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... round of limitation. - E/1604/07 - A/85984/2018 - Dated:- 10-4-2018 - Shri Ramesh Nair, Member (Judicial),Shri Raju, Member (Technical) Shri M.H. Patil, Advocate for Appellant Shri N.N. Prabhudesai, Supdt. (A.R) for respondent Per : Raju This appeal has been filed by M/s. Emerson Process Manufacture India Pvt. Ltd. against confirmation of demand and imposition of penalty on account of non-inclusion of certain amounts recovered by the appellant. 2. Ld. Counsel for the appellant pointed out that they are engaged in the manufacture of Distributed Control System (DCS). The appellants were recovering through separate invoices on amounts under the head of Project Management Services, Design and Software Development Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion of these amounts was upheld vide order dt.12.7.2004. However Tribunal vide order dt. 2.3.2006 set aside the order and remand the matter back to Commissioner to examine in the light of the decision of Hon ble Apex Court in the case of PSI Data Systems Ltd. Vs. Collector of Central Excise 1997 (89) ELT 3 (S.C.). 2.2. Ld. Counsel further pointed that they had filed CL/PL registration as well as RT 12 returns from time to time. He further pointed out that no demand for the period subsequent to the second show cause notice has been issued. He further argued that penalty under Section 11AB and 11AC come into statute from the year 1996and most of the period under demand pertains to the period prior to the introduction of Section 11AB and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said charges are in respect of software 3.1. Ld. AR further argued that decision of Hon ble Apex Court incase of Commissioner of Central Excise, Pondicherry Vs. ACER India Ltd. 2004 (172) E.L.T.289 (S.C.) has been differed and referred to Larger Bench in the case of Commissioner of Central Excise, Indore Vs. Grasim Industries Ltd. 2009 (241) ELT 321 (S.C.). 4. We have gone through the rival submissions, we find that the issue in dispute is if the value of software supplied separately at the option of buyer is includible in the assessable value of goods. The matter had earlier reached Tribunal and the issue was remanded for examination in the light of decision of Hon ble Apex Court in the case of PSI Data System (supra). It is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Apex Court in the case of ACER India Ltd.(supra) differed with the decision in the case of PSI Data System Ltd. (supra) and referred the matter to the Larger Bench of Hon ble Apex Court. In the case of ACER India Ltd. 2004 (172) ELT 289 (S.C.) Hon ble Apex Court came to following conclusion- 79. Computer and operative softwares are different marketable commodities. They are available in the market separately. They are classified differently. The rate of excise duty for computer is 16% whereas that of a software is nil. Accessories of a machine promote the convenience and better utilization of the machine but nevertheless they are not machine itself. The computer and software are distinct and separate, both as a matter of commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Act. 80.In other words, computers and softwares are different and distinct goods under the said Act having been classified differently and in that view of the matter, no central excise duty would be leviable upon determination of the value there of by taking the total value of the computer and software. So far as, the valuation of goods in terms of transaction value thereof, as defined in Section 4(3)(d) of the Act is concerned, suffice it to say that the said provision would be subject to the charging provisions contained in Section 3 of the Act as also Sub-Section (1) of Section 4. The expressions by reason of sale or in connection with the sale contained in the definition of transaction value refer to such goods which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Transaction Value in Clause (d) of sub-Section (3) of Section 4 are subject to Section 3 of the Act? 2. Whether Sections 3 and 4 of the Central Excise Act, despite being interlinked, operate in different fields and what is their real scope and ambit? 3. Whether the concept of Transaction Value makes any material departure from the deemed normal price concept of the erstwhile Section 4(1)(a) of the Act? Thus it is apparent that the matter is not free from doubt and one could hold a bona fide view that the said value of optional software is not includible for the purpose of Section t. In the instant case extended period of limitation has been invoked. It is apparent from the history of this issue as examined above that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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