TMI Blog2023 (7) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... /BSNL is inclusive of taxes payable; in the schedule the value of software, for each of the hardware items, is indicted per unit and the total price thereof. However, in respect of the purchase order dated 12/02/2001 indicates under bill of material that the Excise Duty and Sales Tax payable for software, as at Row no. 1.3b and 1.5b, to be 0%. However, there is no indication whatsoever to show that such duty paid by the appellants was not reimbursed by their customers. The duty and the value are shown under Invoice no. 340 dated 12/12/2001. In addition to these, no other record or evidence has been produced by the appellants. To substantiate their claim of not passing on the incidence of duty under the circumstances, it is found that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable and have not recovered the same from customers, they are eligible for refund under Section 27 of Customs Act, 1962. A show cause notice dated 10.09.2022 was issued seeking to reject the refund claim. Order-in-Original dated 19.04.2006 was passed by Lower Authority holding that the duty was correctly paid as the value of software was correctly included in the assessable value and that the appellants could not prove that the incidence of duty was borne by them and was not passed off. On an appeal filed by the appellant, the First Appellate Authority vide Order dated 10.01.2007 remanded the matter to Lower Authority with a direction to verify the nature of software and the issue of unjust enrichment. In the remand proceedings, the Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cals Kerala Limited- 2005 (188) ELT 60 (Tri. Bang.). Crane Betal Nut Powder Works-2011 (274) ELT 113 (Tri. Bang.). Reliance Communications Infrastructure Limited- 2012 (279) ELT 85 (Tri. Del.). 3. Shri Amandeep Kumar, learned Authorized Representative appearing on behalf of the Department submits that the Excise Duty charged on the software has clearly been mentioned in the invoices; the appellant has collected duty at the rate of 16% on the combined value of hardware and software; invoice being a statutory document is evidence for either availing CENVAT or Refund; appellant has fulfilled the requirement of Section 12A of Central Excise Act, 1944. He relies upon the following case law: Interach Building Products (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the incidence of duty has not been passed on . 5. On going through the contracts/purchase orders, it is seen that the same are for a value which is inclusive of Excise duty, Sales Tax, Fright/Insurance/ Packing/Forwarding, Documentation, Training charges, Octroi and any other charges; this indicates that the consideration paid by MTNL/BSNL is inclusive of taxes payable; in the schedule the value of software, for each of the hardware items, is indicted per unit and the total price thereof. However, in respect of the purchase order dated 12/02/2001 indicates under bill of material that the Excise Duty and Sales Tax payable for software, as at Row no. 1.3b and 1.5b, to be 0%. However, there is no indication whatsoever to show that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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