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TMI Blog2017 (11) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... f Automated Teller Machines (ATM). During the Course of arguments, it has come to our notice that the appellants have imported ATM machines after payment of SAD liable thereon and also imported customized software from their own parent company located in UK. The said imported software is being loaded in the ATM machines cleared by them on payment of duty. The appellant was not including the cost of the customized software in the valuation of imported machineries, whereas, the value of the other ordinary software loaded in the ATM machines was being added in the assessable value of the ATM machines. 3. Revenue by entertaining a view that the value of the customized software is also required to be added in the assessable value of the ATM mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the relevant period thus necessitating the reference of the matter to the Larger Bench, no malafide can be attributed to the assesse. He also draws our attention to various correspondences exchanged between the appellants and the Revenue and submits that all the material particulars and facts were in the knowledge of the department and were being disclosed by the assesse, in which case, no suppression can be alleged against them, so as to invoke the penal provisions on the said issue. 5. We note that the appellants have placed a lot of correspondences before us which needs verification in the hands of the original adjudicating authority. Ld. Advocate has also placed decisions before us laying down that when the matter stands referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of the Cenvat credit, we note that the appellants were not claiming it at the original stage in as much as they were not including the value of the software in the assessable value of ATM. The restriction provided under the law restricts avaliment of credit, when the assessee is working under Cenvat credit and is availing the credit in routine manner. The present claim of the assesse to avail the credit stands arisen only on account of the subsequent demand of differential duty by the Revenue. In such a scenario, there are number of decisions holding that in case of subsequent demand of duty, such credit is required to be examined and extended. Reference can be made to the Punjab and Haryana decision in the case of Industrial Cables Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the said issue. It is made clear that the adjudicating authority would also take declaration of law in the case of Industrial Cables (supra), wherein it was observed that customized software having become integral part of the ATM machines lose its identity and would not be independently entitled to the exemption benefit. 11. All the appeals filed by the assessees and also by Revenue are allowed by way of remand. We expect the Commissioner to complete the proceedings as soon as possible and preferably within a period of four months from the date of receipt of this order. 12. All the appeals are disposed of in the above manner along with the miscellaneous applications that stand filed by the appellants for raising additional grounds, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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