9911796707
TMI Blog2014 (12) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... se order placed by BSNL on the appellant did not speak out about hardware and software separately but was a single order quoting a single value including software, hardware, etc. The observations of the Commissioner in respect of IPC LIM system in paragraphs 24 & 25 of the order are reproduced below : 24. The order placed is for IPCL LIM system consisting of various components - both hardware and software - the final function of the system being cleared by the assessee being lawful interception and monitoring of the IPLC LIM System was given in detail at Annexure G to the purchase order containing 'special conditions' of the contract and technical specifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of materials that includes the hardware and software components mentioned of the equipment system required to carry out the full function of IPLC-LIM System. The IPLC-LIM system is not a computer as generally understood but us telecommunication equipment / apparatus carrying out the required functionality of LIM. Though the software used for and cleared (Data Probe Software, Voice Probe Software, Management Server Software, Traffic Aggregator (SAU) software) along with the IPLC-LIMS is imported software and include general application software like Antivirus System Software, it is undisputed that the what is manufactured and cleared by the assessee is IPLC-LIMS equipment consisting of various hardware and software components. At clause 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etched or burnt or loaded on the hard disc of the system shall be included in the assessable value. It means that the value of the software when cleared separately need not to be included in the assessable value of the system but the value has to be included when the system is cleared in software loaded condition. In the instant case, STM-16 SDH, IPLC LIM and STM-64 SDH equipments were in software loaded condition at the time of their clearance from the factory. However, the assessee has shown the software separately in the Central Excise Invoices, classifying the same under Chapter sub-heading No. 8524.20 / 8523.80. Thus it appears that this was done by the assessee to avail the benefit of 'Nil' rate of duty available under the said chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant had given the details of clearances, copy of purchase order and also the basis for their plea that as to why software cost need not to be included. In our opinion, it shows that there was ground for the appellant to claim limitation. Moreover, the appellant reiterated his serious financial hardship and submitted that they had suffered loss of Rs. 170 crores during the financial year 20012-13 and the companys proposal for financial restructure has been approved only in the previous year. In these circumstances, we consider that on the issue of limitation and also on financial difficulties, the appellant has made out prima facie case for waiver of pre-deposit. Accordingly, the requirement of pre-deposit of the adjudged du ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
