TMI Blog2023 (11) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... n 20.07.2004. Here the facts to be noted are the appellants had adopted the above practice only for a short period which was discontinued on their own obviously on the premise that the practice is wrong. However, the duty for the impugned period was paid much after. No contrary evidence has been placed by the appellant to rebut the aforesaid findings of the learned Commissioner (A). Also, there are no merit in the pleading of the learned advocate for the appellant that harbouring a bona fide belief, on the basis of the judgment in the case of PSI DATA SYSTEMS LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [ 1996 (12) TMI 47 - SUPREME COURT] the appellant had split the value of Modem into Hardware and software. The evidence on record is other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of software. Alleging that such bifurcation of value is with intention to evade payment of duty as the software was invoiced as software for PC , show-cause notice was issued to them on 2.8.2004 alleging short payment of duty of Rs.4,75,000/- and proposed to appropriate deposits made by them on 20.07.2004 towards the duty; also interest and penalty have been proposed in the said show-cause notice. On adjudication, the demand was confirmed with interest and equivalent penalty. Aggrieved by the said order, they filed appeal before the learned Commissioner (A) who though confirmed the demand of Rs.4,75,200/-, but dropped penalty imposed under Section 11AC and interest demanded under Section 11AB of Central Excise Act, 1944. Aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and its software are different and an assessee can sell the software separately, if so ordered by the purchaser thereof. Being carried away by the said judgment, the appellant had split the value of the modem, and sold hardware and software separately under different invoices. Further, he has submitted that since the entire amount of duty was deposited much before the issuance of show-cause notice, imposition of penalty and recovery of interest is unwarranted. 5. Per contra, the learned Authorised Representative for the Revenue reiterating the findings of the learned Commissioner (A) has submitted that the claim of the appellant that they have been carried away by the judgment of the PSI Data System Ltd s case is without any merit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following trivia can not be lost sight of. The issue of non-inclusion of software value in the assessable value pertained to the months of July and August 1999 itself where as the above judgment was passed much thereafter i.e., on 24.9.2004. Thus, it would be far fetched to say that the appellants had already entertained the said view at the point of time itself. In this regard the fact can not be ignored that the said practice of non-inclusion of software value was stopped thereafter on their own for reasons best known to them. The above fact of not including the value of software in the assessable value in the impugned two months was kept under wraps till they paid duty for the said clearances only on 20.07.2004. Here the facts to be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussed at Para 4.1 above, I find that there is no need to interfere with the impugned order. 7. No contrary evidence has been placed by the appellant to rebut the aforesaid findings of the learned Commissioner (A). Also, we do not find merit in the pleading of the learned advocate for the appellant that harbouring a bona fide belief, on the basis of the judgment in the case of PSI Data Systems Ltd. the appellant had split the value of Modem into Hardware and software. The evidence on record is otherwise. Even though the purchase orders by the customers were for the total value of the Modem, and the software is embedded to the Modem being indispensable, it is the appellant who has knowingly split the value of modem artificially as valu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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