TMI Blog2018 (7) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) held the demand for period 01.04.2004 to 31.03.2006 as time barred - We failed to understand why the demand for remaining period should not be held time barred on the same analogy. The ld. Commissioner (Appeals) observed that the last Audits conducted on 28.08.2006 to 30.08.2006, and if the Audit officers have not raised this issue for the subsequent period, no suppression of fact cannot be alleged against the appellant. Therefore, we do not agree with the discriminative finding given by the Commissioner (Appeals) in as much as the demand for 01.04.2004 to 31.03.2006 was held time barred and for the subsequent period, the demand was held within time - Since, Audit has been conducted right from 28.08.2006 to 30.08.2006 and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the appellant ought to have included the value of the software in the value of machine, but, instead of doing so, they had cleared the software related to those machines separately under a cover invoice without payment of duty. A show cause notice dated 13.04.2009 was issued whereby the value of software amount of ₹ 2,49,38,772/- was proposed to be added in the assessable value of laser cutting machines, Diamond cutting machines for the purpose of assessment in terms of Section 4 of Central Excise Act, 1944 and secondly a demand of central excise duty on the said value amounting to ₹ 40,68,408/- was proposed, interest under Section 11AB and penalty under Section 11AC was also proposed. The show cause notice was adjudicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be included in the assessable value of the machines. He further submits that the software is independently classified under Chapter Heading No. 8524 which has been issued by the Commissioner (Appeals) if that be so in terms of note 6 of Chapter 85 even though the software is presented with the machine, the software is separately classifiable under Heading No. 8524. In such case, the value of software cannot be included. Once, the software is classified under Chapter 8424 the relevant Notification No. 6/2006-CE dated 01.03.2006 (Sr. No. 27) clearly exempts the software. The lower authorities have wrongly interpreted that the software supplied by the appellant is a packaged software or canned software. He submits that this software is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Customs, Calicut 2009 (233) ELT 277 (Tri.-Bang.). (v) Nav Bharat Link Chain Mfg. (P) Ltd. Govindpur, Dhanbad, Bihar vs. Collector of Central Excise, Patna 1985 (19) ELT 493 (Tribunal) (vi) Commissioner of Central Excise, Delhi-I vs. Hi-Tech Electronics Industries 2014 (314) ELT 689 (Tri.-Delhi). (vii) Commissioner of Central Excise, Delhi-III vs. Carrier Aircon Ltd. 2005 (184) ELT 113 (S.C.) (viii) Al-Falah (Exports) vs. Commissioner of Central Excise, Surat-I 2006 (198) ELT 343 (Tri.-LB). (ix) V.V.F Ltd. Vs. Commissioner of Central Excise, Daman 2010 (251) ELT 426 (Tri.- Ahmd.) (x) Commissioner of Central Excise, Kolkata IV vs. Birla NGK Insulators (P) Ltd. 2009(247) ELT 631 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal memorandum. In the said Audit Report period of audit is mentioned as 01.04.2004 to 31.03.2006 wherein issue in the present matter was not6 raised. From, the above factual position in the audit reports, I find that in the earlier audit conducted for the period from 01.04.2004 to 31.03.2006, the issue in the present matter was not raised. It was raised during the audit for the period from April 2006 to August 2008 only. Therefore, the contention of the appellant that extended period cannot be invoked has a force. Further, the appellant has relied upon the decision of the Hon ble Tribunal in case of CCE, Aurangabad Vs. Rohit Ind. Ltd. 2009 (242) ELT 240 (Tri.-Mumbai) wherein it was held that - Demand - Limitation - Inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, it can be seen that the Ld. Commissioner has admitted that the issue was raised in the Audit Report dated 20.10.2008 in respect of the Audit conducted for the period April 2006 to August 2008. On the basis of this Audit Report, the Ld. Commissioner (Appeals) held the demand for period 01.04.2004 to 31.03.2006 as time barred. We failed to understand why the demand for remaining period should not be held time barred on the same analogy. The ld. Commissioner (Appeals) observed that the last Audits conducted on 28.08.2006 to 30.08.2006, and if the Audit officers have not raised this issue for the subsequent period, no suppression of fact cannot be alleged against the appellant. Therefore, we do not agree with the discriminative finding gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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