TMI Blog2010 (6) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... at arise for consideration are that the appellants were served with 11 show cause notices for the period 1990-95 for the demand of differential duty on the ground that the appellant had not included the value of batteries (bought out item) supplied separately to the purchaser of Uninterrupted Power Supply System (UPSS) which is being manufactured by them. The Adjudicating Authority confirmed the demand so raised. On an appeal, learned Commissioner (Appeals) also upheld the order relying on the decision of this Tribunal. 3. Learned Counsel appearing on behalf of the appellant submits that the Order-in-Appeal has been passed placing reliance only on the decision rendered by the Tribunal in the appellant's case. It is his submission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of alternate power. This shows that battery cannot be treated as the core of UPSS. The presence of the battery does not change the nature and function of the product." 3.1 It is the submission that the said decision of the Larger Bench lays down a law that battery cannot be treated as core of UPSS and hence, the view taken by the Bench in the appellant's own case seems to be improper. It is his submission that when this issue was argued before the Tribunal in 1998, it was submitted that the decision of National Radio and Electronics Co. Ltd. reported in 1995 (7) RLT 219 (T) is in favour of the assessee, while the decision on an identical issue in the case of Kerala State Electronics Development Corporation Ltd. reported in 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an appeal before the Hon'ble Supreme Court and decision of the Supreme Court is pending. She would also submit that an identical issue have been considered by the various Benches in the following cases : (a) Punjab Recorder Ltd. v. CCE, Chandigarh - 2001 (132) E.L.T. 41 (Tri.-Del.) (b) Kerala State Electronics Dev. Corp. Ltd. v. Collr. of C. Ex., Cochin - 1994 (71) E.L.T. 508 (T) (c) Asha Pavro Electronics Pvt. Ltd. v. CCE, Mumbai-III - 2002 (143) E.L.T. 543 (Tri.-Mum.) (d) Collector of Central Excise, Pune v. D.B. Electronics (P) Ltd. - 2000 (126) E.L.T. 1017 (Tri.) (e) Supra Hi-Tech Electro Equipments (P) Ltd. v. CCE, Cochin - 1997 (93) E.L.T. 604 (Tri.) (f) CCE, Chennai v. Mumeric Electronics Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less a battery is part of the UPSS, the system cannot provide uninterrupted power supply. So far as persons who purchase UPSS with battery from the respondent are concerned, they did so only because they wanted to use this system to ensure uninterrupted power supply. So far as the UPSS with battery supplied to these buyers are concerned, UPSS is an integral system of which the battery is an essential and integral part as held in the case of Kerala State Electronics Development Corporation Ltd. As explained in reply to the notice the aspect of optionality arises basically because some buyers want to use the system only for conditioning power and some other buyers who want to use the system for uninterrupted power supply want to buy battery f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of UPSS. 7. As regards the decision relied on by the learned Counsel in the case of CCE v. Acer India Ltd. (supra), we find that the Hon'ble Supreme Court was considering a issue of inclusion of the value of software in the value of hardware. The fact of the current case before us is different, in as much as that the functioning of the UPSS without the battery has been ruled out by the Bench in the appellant's own case. In view of this, we find that the ratio as laid down by the Hon'ble Supreme Court in the facts and circumstances of the Acer India Ltd. are inapplicable in the facts and circumstances of the current case. 8. Accordingly, since the issue stands decided against the assessee, respectfully following the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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