TMI Blog1994 (8) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... oods are subjected to excise duty under T.I. 33D or under T.I. 33DD of the erstwhile Excise Tariff at the relevant time with reference to value thereof. The appellants sold their products to buyers at a price negotiated through a contract. The contract/purchase orders reveal that the price settled for sale are inclusive of charges such as technical service charges, annual maintenance charges, software charges and certain bought out items. According to Department, these charges would become part of the assessable value of the excisable goods but the appellants filed the price list declaring the price of the goods without disclosing these charges therein. Shri Ashok Sagar, learned Advocate, appearing for the appellants, submitted that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for the Revenue submitted that in principle installation and commissioning charges are not includible in the assessable value but in the absence of bifurcated figures the same is to be included in the assessable value relying upon the order of the Tribunal as per Order No. 168/94-A, dated 6-7-1994 in the case of O.R.G. Systems reported in 1994 (73) E.L.T.450 (Tri.). 3.2 On hearing both sides on this issue, we find now it is settled position that installation and commissioning charges and site maintenance charges are post manufacturing expenses and this activity has no nexus with the manufacturing and marketability and as such they are not includible in the assessable value. Following the ratio of the decision in the case of Sunray Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held in the case of Sunray Computers (supra), P.S.I. Data Systems [1989 (39) E.L.T. 692] and in the case of Wipro Information Technology Ltd. [1989 (39) E.L.T. 113] and issue with reference to bought out items has been decided in a series of cases in favour of the revenue holding that value of bought out items is to be included in the assessable value. She referred to the following decisions in support of her contention :- (1) Narne Tulaman Manufacturers Pvt. Ltd. v. Collector of Central Excise [1988 (38) E.L.T. 566 (SC)]. (2) Collector of Central Excise, Bangalore v. Wipro Information Technology Ltd. [1989 (39) E.L.T. 113 (Tribunal)]. (3) Collector of Central Excise, Bangalore v. Sunray Computers (P) Ltd. [1988 (33) E.L.T. 787 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omputer, including that of the software, would have to be assessed to duty, irrespective of the fact whether the software part is supplied along with the hardware or in a separate lot and irrespective of the fact whether a single invoice is made for both hardware and software or a separate invoice is made for the software." 3.5 Accordingly, we hold that Department was right in including the value of the software in the assessable value of the computer. 4. As regards remaining bought out items on going through the aforesaid decisions, we are of the view that the value of such bought out items is includible even if they are not essential for the operation of manufactured goods provided they are fitted or attached to the goods before clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext, it was contended by Shri Ashok Sagar that though specific plea has been taken by the appellants in respect of bought out items mentioned in Annexure-A to the Show Cause Notice at serial Nos. 9 to 13 and 21 to 25 in Appeal No. E/2595/93-A on the ground that the appellants were not required to pay duty on such bought out items since items covered under serial Nos. 9 to 13 have already suffered duty with the supported invoices and gate passes and similarly items covered under serial numbers 21 to 25 have not been sold but have been stock transferred, but neither the Assistant Collector nor the Collector has dealt with this specific issue in their respective orders. On going through the orders, we find that this point was not dealt with by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable to the facts of this case. On the other hand, we find that the contention of the appellants on this issue is well founded since Section 11A is concerned with recovery of duty and wherein it was specified that notice has to be issued within the prescribed period as the case may be from the relevant date and relevant date has been defined in Section 11A(3)(ii). Section 11A(3)(ii)(b) is relevant and the same is reproduced as under :- 3(ii) - relevant date" means : (a) - (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; 7. In view of the above provision it is clear that cause of action un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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