9911796707
TMI Blog2023 (11) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... facture of Data Communication Equipment such as 'Modem' and 'Network Terminators' classifiable under Chapter Subheading 8517 of Central Excise Tariff Act, 1985. Also, they have been engaged in trading from adjoining premises of Modems, Routers, Multiplexes, Switches, etc. During the period July 1999 and August 1999, the appellant had manufactured and cleared/sold Modems against purchase Orders of the customer. They had divided the total value of Modem viz. value of hardware and value 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the modems took place in 1999, the judgment of the Hon'ble Supreme Court in Acer India Ltd. case was delivered in 2004, hence, there could not be any reason to accept the contention of the appellant that the duty was not paid under bona fide belief. It is his contention that he has failed to take note of the fact that the judgment of the Hon'ble Supreme Court in the case of PSI Data Systems vs. CCE: 1997 (89) ELT 3 (SC) was delivered earlier whereby it was held that a computer 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 diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 11AB of CEA,1944 in the light of the judgment of the Hon'ble Supreme Court in Acer India Ltd.'s case(supra). After analysing the judgments, the learned Commissioner (A) has held as follows: "4.2 Leaving at rest the above issue of valuation, let me come to the core issue of imposing of interest and penalty on the appellants which I feel must be primarily on the premise whether they indeed entertained a bonafide view as upheld in the Acer case. In this regard the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude that it is clear cut case of suppression of facts on the part of the appellants with an intent to evade payment of appropriate Central Excise duty as rightly observed by the original authority in the impugned order. Taking all these factors into consideration and also taking into account that the view held by the Supreme Court in the case of CCE Pondicherry vs. Acer India Limited [2004 (61) RLT 719 (SC) has not reached finality in the real sense for the reasons discussed 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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