TMI Blog1994 (9) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... apparatus and computers falling under 33D 33DD respectively of the Central Excise Tariff. The officers found that the appellants were billing for certain charges in the nature of installation and commissioning which, to the department, appeared to be far in excess of the services provided on that account. It was also found that certain essential peripherals and software items forming a part of the minimum Computer System were being cleared without payment of duty. The department was also of the view that additional amounts of duty had been evaded by means of certain basis/compulsory software items and the essential peripherals forming a part of the minimum Computer System being cleared by the appellants without payment of duty on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Superintendent has also been replied to by the appellants on 26-3-1983 wherein they have stated that installation charges do not form part of selling price for computer system and that they have not included it in the price list. The ld. Counsel urged that they have been showing the amounts of installation charges in their invoices. Thus, when there is disclosure of the collection of installation and commissioning charges by the appellants and explanation as to why it was not included in the price list, the longer period cannot be invoked for demanding duty from them. The fact that there has been correspondence regarding these charges with the appellants is also evidence in the narration of the Collector s order. The ld. Counsel in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Item 35DD of the Central Excise Tariff. As regards the installation and commissioning charges, the ld. Counsel referred to their contract, copy of which has been put on record to indicate the nature of installation. It says in the contract that before delivery, the customer at his own expense will suitably prepare the premises for the equipment and provide all necessary electrical and other installations and fittings. Appellants, according to the contract, will assemble the equipment and submit to it standard tests. These are the terms of the contract regarding installation. The ld. Counsel also relied upon the case reported in 1988 (33) E.L.T. 787 in the case of Collector of Central Excise v. Sun Ray Computers in which it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price list submitted, is supported by the Tribunal s decision in the case of IOE Diesel Engg. Works v. Collector of Central Excise - 1991 (53) E.L.T. 70. The ld. S.D.R. argued that for the purpose of extended period, mere suppression by itself will do. The department need not to show wilful suppression. See the decision FACT v. Collector of Central Excise - 1987 (31) E.L.T. 292 and in the case of Formica India Division v. Collector of Central Excise - 1984 (17) E.L.T. 590. Onus of correct declaration in the price list is on the assessee. As regards the valuation of software, the ld. S.D.R. contended that even if the items are bought out items, they are still includible in the assessable value for which she relied upon the case law report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re may have to be taken to see that there is no attempt at diverting a part of the true price of the goods to service charges. The burden of the Deptt. case herein is on these lines. It is also found that the appellants have also been unable to furnish the exact amounts transaction-wise and the Deptt. has found that it is on an average comes to a uniform percentage of 28.5% or 33.33% and the appellants plea is that the general practice in the trade was to make these charges at a uniform percentage. But the fact remains that the installation and commissioning charges on being quantified as such have to be excluded from the assessable value. This exercise of quantification of installation and commissioning charges for the material period in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... catenna of case law on the subject has been referred and the relevance of Sunray Computers decision (supra) has been endorsed and reiterated. The Collector s order in this regard, therefore, calls for no interference. Consequently, the ground in the Appeal Memo No. 53 about apparent mistake in Collector s order in this regard also stands disposed of. 6. On the next question of limitation, it is felt that the appellants have made out a case against invoking the longer period under Section 11A for demanding duty. This is because of the correspondence in 1982 on their price list between the Superintendent (Central Excise) and the appellants referred to above. Also, the Collector himself says in para 3 of his Findings that the Department wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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